IGNACIO & IGNACIO

[2014] FamCA 1146

FAMILY COURT OF AUSTRALIA

IGNACIO & IGNACIO [2014] FamCA 1146

FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Where the eldest child is an adult, lives with the father and has no interaction with the mother – Where the middle child has a meaningful relationship with the father, but presently derives no benefit from any relationship with the mother – Where the youngest child has meaningful relationships with both parents – Where the youngest child is not at unacceptable risk of physical or psychological harm within the father’s household through her subjection to physical abuse by the father’s partner – Where the youngest child’s medical conditions are capably managed by both parties – Sibling relationships – Middle child to live with the father and spend time with the mother in accordance with her wishes – Youngest child to live with the mother and spend significant and substantial time with the father.

FAMILY LAW – CHILDREN – Parental Responsibility – The presumption of equal shared parental responsibility does not apply because both parties perpetrated family violence upon the other – Where the parties demonstrated an inability to communicate effectively with one another – Where parental responsibility must be conferred exclusively on the party with whom the children live – Father to have sole parental responsibility for the middle child – Mother to have sole parental responsibility for the youngest child.

Australian Passports Act 2005 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 65Y, 68P

AMS v AIF (1999) 199 CLR 160
Cales & Cales (2010) FLC 93-459; (2010) 44 Fam LR 376
Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Ignacio

RESPONDENT: Mr Ignacio

INDEPENDENT CHILDREN’S LAWYER: Winder Lawyers

FILE NUMBER: NCC 671 of 2013

DATE DELIVERED: 18 December 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8, 9, 10 & 11 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas

SOLICITOR FOR THE APPLICANT: Todd Street Lawyer

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Boyd Olsen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Brady

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Winder Lawyers

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)L Ignacio, born … 1998 (“L”); and

   (b)Y Ignacio, born … 2007 (“Y”).

2. The father shall have sole parental responsibility for L.

3. The child L shall live with the father.

4. The mother and father shall take all reasonable steps to ensure that L spends time with the mother in accordance with L’s wishes.

5. The mother shall have sole parental responsibility for Y.

6. The child Y shall live with the mother.

7. The mother and father shall take all reasonable steps to ensure that Y spends time with the father as follows, unless otherwise agreed:

   (a)During school terms:

   (i)each alternate week from the conclusion of school on Thursday until the commencement of school the following day, commencing on the first Thursday of each term; and

   (ii)each alternate week from the conclusion of school on Thursday to the commencement of school on the following Monday, commencing on the second Thursday of each term;

   (b)During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year and for the second half of such holidays in every odd numbered year; and

   (c)During Christmas school holidays, on an alternating week about basis, commencing in the first week in the years when the holidays commence in an even numbered year and commencing in the second week in the years when the holidays commence in an odd numbered year.

8. For the purposes of implementation of Order 7 hereof, the school holidays are deemed to commence at the conclusion of school on the last day of the term, the holidays are deemed to end at the commencement of school on the first day of the new school term, and the mid-point is 12.00 noon on the day halfway between those first and last days.

9. Order 7 is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm Boxing Day each year, during which period Y will spend time with the father from 3.00 pm Christmas Day until 3.00 pm Boxing Day and with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years; and

   (b)From 5.00 pm Saturday until the commencement of school on the following Monday on each Mother’s Day and Father’ Day weekend during which periods Y shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

10. For the purposes of implementing these orders the parties shall respectively ensure:

    (a)Collection of Y from school whenever her residence or expenditure of time with the party is to commence at or about the conclusion of school during school term;

    (b)Return of Y to school whenever her residence or expenditure of time with the party is to conclude at or about the commencement of school during school term; and

    (c)Otherwise, Y’s collection from and return to the McDonalds Restaurant ...

11. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12. The father shall authorise and request the principal of any school attended by L to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to L.

13. The mother shall authorise and request the principal of any school attended by Y to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to Y.

14. Leave is granted to the parties to furnish a sealed copy of these orders to the principals of any schools attended by the children.

15. The mother shall inform the father, and keep him informed, in writing of the names and addresses of all doctors and other treating health professionals who provide medical services to Y.

16. The mother shall authorise any doctors and other treating health professionals who provide medical services to Y to communicate with the father about her condition and treatment.

17. Leave is granted to the parties to furnish to any doctor or other treating health professional who provides medical services to Y:

    (a)A sealed copy of these orders; and

    (b)A copy of the reasons given by the Court for such orders.

18. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

19. By reason of an actual or potential inconsistency between some of these orders and existing Apprehended Violence Orders, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these orders to:

    (a)The Commissioner of NSW Police;

    (b)The Registrar of the Local Court of NSW at Newcastle; and

(c)The Registrar of the Local Court of NSW at City D.

1. The parties are restrained from causing or permitting either of the children from coming into contact with, or remaining in the physical presence of, either:

   (a)The maternal uncle, Mr K; or

   (b)Mr M.

2. The Registrar of the Newcastle Registry shall forthwith return any passport delivered into his/her care pursuant to Order 12 made on 5 December 2013 in the following manner:

   (a)L’s passport to the father; and

   (b)Y’s passport to the mother.

3. Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. Costs in respect of the parties’ applications under Part VII of the Family Law Act are reserved for 28 days.

2. Any and all outstanding applications for orders pursuant to Part VII of the Family Law Act are dismissed.

3. In respect of the parties’ respective pending applications for orders pursuant to Part VIII of the Family Law Act and/or Part 7 of the Child Support (Assessment) Act:

   (a)Those applications are adjourned to 9.30 am on Thursday, 26 February 2015 for further procedural directions;

   (b)The parties shall each file and serve a schedule of their existing legal and equitable property interests by Thursday 12 February 2015; and

   (c)The parties shall exchange written offers of settlement by Thursday 19 February 2015.

NOTATIONS

(A)These orders are actually or potentially inconsistent with:

(a)the Apprehended Domestic Violence Order made against the father in favour of the mother at the Local Court of NSW at City D on 22 May 2013; and

(b)the Apprehended Domestic Violence Order made against the mother in favour of the father at the Local Court of NSW at Newcastle on 10 July 2013, and subsequently extended on 23 September 2014.

in which case Division 11 of Part VII of the Family Law Act applies and these parenting orders prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 671 of 2013

Ms Ignacio

Applicant

And

Mr Ignacio

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parties have three children, but only the two youngest are still minors. They are aged 16 and seven years respectively. These proceedings concern the parenting orders that should be made in respect of only the two minors, both of whom are daughters. The adult child is a son.

2. The two eldest children live with the father and they have little or no interaction with the mother.

3. The youngest child lives with the mother and, until several weeks ago, she regularly spent substantial amounts of time in the father’s care. The mother stopped the youngest child’s visits to the father because of an allegation the father’s partner physically assaulted the child.

4. The principal issues between the parties are: first, how parental responsibility for the two children should be allocated between the parties; secondly, when and how the youngest child should begin spending time with the father again; and thirdly, how much time the youngest child should spend with the father when she resumes her visits with him.

Short history

1. The parties cohabited for some time before marrying in 2000. There was a difference of opinion about when they finally separated, but it is common ground the father vacated the former matrimonial home in March 2013.

2. The two children who are the subject of these proceedings were born in 1998 and 2007.

3. The mother remained in occupation of the former matrimonial home after the father vacated it in March 2013. The youngest child continued to live with the mother, but the two eldest children left to live with the father. The children’s residence has been unchanged ever since.

4. These proceedings were commenced by the mother within weeks of the father vacating the former matrimonial home, but she only sought orders for property settlement under Part VIII of the Family Law Act 1975 (Cth) (“the Act”).

5. Parenting orders in respect of the children under Part VII of the Act were not sought until the father filed his Response in May 2013. The mother joined issue on the parenting orders when she filed a Reply some weeks later.

6. Interim parenting orders were made between the parties on 5 December 2013. In respect of the middle child, the orders provided for her to live with the father and spend time with the mother in accordance with her wishes. In respect of the youngest child, the orders provided for her to live with the mother and spend time with the father for five nights each fortnight (one night in one week and four nights in the alternate week), half of school holidays, and on other special occasions.

7. Those orders were implemented unremarkably until late October 2014, when the mother took steps to sever the youngest child’s relationship with the father. The mother maintained her decision was warranted, since the father’s partner physically assaulted the youngest child. The father and his partner denied the youngest child was assaulted and asserted the mother’s contravention of the existing interim orders was unjustified.

8. The parties’ parenting applications proceeded to final trial in December 2014. Their respective applications for property settlement are yet to be determined by separate hearing.

Proposal of mother

1. The mother’s parenting proposals, particularly in respect of the youngest child, have changed several times.

2. Her final proposal was detailed in a minute of orders she circulated to the father and Independent Children’s Lawyer on the last business day before the final trial commenced, which was tendered as an exhibit.[1] She abandoned the proposal contained within her Amended Amended Initiating Application (sic) filed on 12 September 2014, which superseded the former proposals contained within her Reply filed on 21 May 2013 and her Amended Initiating Application filed on 20 December 2013.

   [1] Exhibit M5

3. The mother’s eventual proposal was for:

   (a)The middle child to live with the father and to spend time with her as and when she desires, but for no express order to be made conferring parental responsibility for that child;

   (b)The youngest child to live with her and for her to have sole parental responsibility for the youngest child; and

   (c)The youngest child to spend time with the father each alternate weekend for two nights, conditional upon a counsellor (chosen unilaterally by the mother) determining when, if at all, such visits by the child to the father should begin.

Proposal of father

1. The father’s proposals in respect of the children also changed over time. He eventually pressed for the orders set out in his Further Amended Response filed on 30 October 2014, which proposal essentially entailed:

   (a)The middle child living with him and him having sole parental responsibility for her;

   (b)The middle child spending time with the mother in accordance with the child’s wishes;

   (c)The youngest child living with the mother, but both parties having equal shared parental responsibility for her; and

   (d)The youngest child spending time with him for five nights per fortnight, for half of school holidays, and on other special occasions (which part of the father’s proposal effectively replicated the interim orders made in December 2013).

Proposal of independent children’s lawyer

1. The proposal of the Independent Children’s Lawyer was not revealed until the evidence was closed. No minute of proposed orders was tendered. The Independent Children’s Lawyer simply adopted the interim orders made in December 2013 as final orders.

The evidence

1. The mother relied upon her affidavit filed in Court on 8 December 2014, being the first day of final trial. The mother failed to comply with earlier procedural orders requiring her to file and serve her affidavit well in advance of final trial but, with the consent of the father and Independent Children’s Lawyer, she was given leave to file the affidavit in Court and rely upon the evidence contained within it.

2. The father wanted to rely upon more affidavits than earlier procedural orders permitted but, with the consent of the mother and the Independent Children’s Lawyer, he relied upon:

   (a)His two affidavits filed on 30 October 2014 and 12 November 2014;

   (b)The affidavit of his partner, Ms T, filed on 31 October 2014; and

   (c)The affidavit of Mr B, filed on 21 November 2014.

3. Some objections were successfully made to some of the evidence in chief adduced by the parties.

4. The parties and the Independent Children’s Lawyer also relied upon:

   (a)The Family Report dated 2 April 2014; and

   (b)The affidavit of the single expert medical practitioner, Associate Professor C, filed on 1 October 2014.

5. The Family Consultant and single expert were both cross-examined. It was not suggested by either party or the Independent Children’s Lawyer that any of their written or oral evidence should not be accepted as correct.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Act, wherein the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. The two children’s relationships with the parties are qualitatively different.

2. The middle child, who has chosen to live with the father since he vacated the former matrimonial home, has a meaningful relationship with him, but not with the mother. The middle child told the Family Consultant she had spent virtually no time with the mother since Christmas 2013 and then went on to relate her criticisms of the mother.[2]

   [2] Family Report, paras 55-60

3. The mother attributes the middle child’s negativity about her to the father, whom she believes has deliberately aligned the child against her. The Family Consultant, however, considered the middle child’s views were “developmentally appropriate” and were probably shaped by the child’s own experiences with the mother rather than as a result of any deliberate alignment by the father.[3] The Family Consultant considered that dynamic was “quite possibly” due to the mother’s sufferance of depression, which impinged upon her parenting performance. The evidence adduced at trial revealed the mother has suffered depression and anxiety for many years, for which she has been treated and medicated.

   [3] Family Report, paras 63-64

4. Irrespective of the reason, the middle child derives no benefit from any relationship with the mother at the present time. She is disinterested in rekindling their relationship and she is now at an age where she cannot be forced to forge a relationship with the mother against her will. The mother acknowledges that to be correct, for otherwise she would not have proposed the orders she did in respect of the middle child. Hopefully they will recover their relationship when the middle child is an adult and has the maturity to appreciate history from different perspectives.

5. The youngest child, who has lived with the mother since the father and her siblings vacated the former matrimonial home, has managed to retain meaningful relationships with both parties. She misses the mother when she visits the father and she misses the father and her siblings when she lives with the mother.[4] The Family Consultant observed her to interact warmly with both the paternal and maternal families.[5]

   [4] Family Report, paras 68, 76

   [5] Family Report, paras 78-79

6. At least until the last business day before the final trial began, both parties believed the youngest child should live with the mother and spend “substantial and significant time” (s 65DAA(3)), amounting to five nights per fortnight and half of school holidays, with the father. Their concurrence about that residential regime was commendable acknowledgement of the youngest child’s need to derive a full measure of benefit from her meaningful relationships with both parties.

7. The mother’s belated change of opinion – to maintain the youngest child’s estrangement from the father and only resume their interaction on a reduced basis once a therapist approves of it – failed to recognise the importance of the child’s relationship with the father (and her siblings). The mother’s changed opinion was allegedly explained by recent evidence about the child’s physical abuse and antiquated evidence about family violence (relevant to the inquiry under s 60CC(2)(b)) and the mother’s persistent concern about the father’s ability to competently manage the child’s diabetes and coeliac disease (relevant to the inquiry under s 60CC(3)).

Section 60CC(2)(b)

1. The risk of the youngest child’s harm, attributable to either physical abuse or exposure to family violence, was an issue of heated dispute. The evidence adduced in respect of each issue is best analysed separately.

Alleged physical abuse

1. The mother alleged the father’s partner physically assaulted the youngest child on the morning of 24 October 2014 by punching her in the back. The mother’s belief in that assault caused her to cease compliance with the existing interim orders that provided for the youngest child to spend substantial amounts of time with the father.

2. The mother’s belief in the assault was based on two things – what she was told by the child and her observation of some redness to the child’s back, which blemish the mother considered was consistent with the child’s complaint.

3. There is no doubt the mother genuinely holds to her belief in the child’s assault, but of course her genuineness has no bearing upon objective appraisal of the evidence.

4. The child reported to the mother on the afternoon of 24 October 2014, after she was collected from school and asked why her day was “not very good”:[6]

   [The father’s partner] punched me in the back. I have a sore back. I felt knuckles in my back. I told [the father’s partner] it hurt but [she] was angry…

   …I don’t love dad and I don’t love [the father’s partner]…

   …I don’t want to go back to dad’s anymore.

   [6] Mother’s affidavit, para 157

5. After the conversation, the mother inspected the youngest child’s back and observed a red mark and some swelling at the spot the child indicated was the site of her soreness.[7] She admitted in cross-examination she later exaggerated the injury when she described it as “bruising” in the Notice of Abuse and Family Violence she filed on 2 December 2014.

   [7] Mother’s affidavit, para 159

6. The mother immediately notified the police and child welfare authorities of the alleged assault and took the child to her doctor for examination.

7. In the presence of the mother, the youngest child told the doctor she was punched hard at a point on her back she identified to the doctor, which he described as the “right upper lumbar region”. The doctor’s medical notes are brief and lack specificity, but the most plausible inference is that the doctor observed some redness and some swelling.[8]

   [8] Mother’s affidavit, Annexure M

8. The mother deposed the youngest child continued to complain of back soreness so she arranged for her to consult with a chiropractor twice over ensuing days.[9] Puzzlingly, the chiropractor identified the child’s back pain to be located at different sites at both consultations, both of which were different from the site of the child’s back pain identified by the doctor some days before. On the first visit the chiropractor identified the “upper thoracic” area and on the second visit the chiropractor identified the “lower thoracic region”.[10]

   [9] Mother’s affidavit, para 167

   [10] Mother’s affidavit, Annexure N

9. It is important to contextualise the youngest child’s complaints of back discomfort at around that time. The child was x-rayed on 30 October 2014, six days after the alleged assault, and was found to have no bony injury. Significantly though, she was found to have “bilateral spondylolyses with minimal spondylolisthesis” at her L5 vertebra,[11] which the parties agreed was commonly known as “degenerative change” in the spine.

   [11] Exhibit F5

10. The mother conceded in cross-examination the child’s complaints of back discomfort could also be consistent with her sufferance of that medical condition, and additionally, that “growing pains” have been a problem for the youngest child. In cross-examination the mother admitted taking the child to the hospital on 29 October 2014 because she was suffering “aches and pains”.

11. Notwithstanding, the mother did observe redness and swelling on the child’s back at the point she was allegedly punched. Such redness and swelling observed on her skin could have nothing to do with any degenerative changes in her spine, which could only account for the child’s back soreness or discomfort, not a mark on her skin. Nor could such redness and swelling relate to generalised aches and pains in other parts of her body. However, the redness and swelling observed on the skin of the child’s back on 24 October 2014 can only be linked to the alleged assault of the child by what the child verbally reported to the mother.

12. Although the youngest child repeated to the doctor her allegation of being punched, she did so in the mother’s presence. It is unremarkable she repeated the same story. If she was assaulted as she alleged, she was only reporting the truth, but alternatively, if she had not been punched, she would likely have felt compelled to nonetheless repeat the same story she earlier told to the mother. If she recanted, she risked being scolded for embarrassing the mother, since the mother had already acted on her complaint by involving the police, child welfare authorities, and the doctor. Consequently, the fact she told the same story to the doctor adds nothing to the weight of the evidence.

13. Self-evidently, the redness and swelling to the child’s back could have been caused by the impact of her back with any animate or inanimate object throughout the day while she was at school. She did not see the father or his partner after she was delivered to school earlier that morning. Therefore, the critical evidence about the alleged assault is the truth and accuracy of the child’s initial report to the mother about how she was hurt.

14. For several convincing reasons, the youngest child’s reliability as a historian is impugned and so considerable caution must attend acceptance of any representation attributed to her.

15. Long ago in early 2013 the mother was warned by staff at the youngest child’s school that she was “using manipulative behaviour” and sometimes said things “which were not necessarily true”.[12]

    [12] Mother’s affidavit, paras 83, 169.4

16. More recently, on 2 November 2014, little more than a week after the alleged assault, the mother presented the youngest child to hospital at 11.15 pm. The child was complaining of soreness in her legs, but she gave the hospital staff contradictory information about the location of the soreness in her legs. The mother conceded the hospital staff informed her there was no physiological explanation for the child’s complaints. The inference is well open that the child was malingering on that occasion.

17. The father and his partner deposed that the child was happy when she left their house and was driven to school on the morning of 24 October 2014. The child apparently made no complaint about either her assault or her back pain during the day whilst she was at school. The allegation was first made to the mother later in the afternoon. The failure of a relatively young child to complain of abuse at the first available opportunity is not critical, but is noteworthy nevertheless in this case because of the uncontroverted evidence about the child’s willingness to be manipulative.

18. It is also noteworthy that the child could have no real knowledge of what happened to her. However she came to sustain the redness and swelling to her back, she was struck from behind, so she could not know exactly how or under what circumstances. She only reported to the mother she “felt knuckles” in her back. The mother admitted in cross-examination it had occurred to her the child would have been unaware of what occurred behind her back, but she rejected any suggestion the child’s report was either erroneous or exaggerated. She was unwise to be so summarily dismissive of the idea.

19. Some of what the youngest child reported to the mother on the afternoon of 24 October 2014 was undoubtedly false, which the mother conceded. The child said to the mother “I don’t love dad”, but the mother knew that was false because she knows the youngest child did and still does love the father.

20. Some of what the youngest child reported to the mother was probably false. She said “I don’t love [the father’s partner]”, but there is clear evidence of the youngest child writing loving messages to the father’s partner in the recent past, which included statements like “I love you”.[13] The mother responded cynically to that evidence, asserting the child would have been “forced” to write such messages, but I reject her cynicism. It had only a tenuous logical basis and was most probably only a product of the mother understanding the evidence did not correlate with the case she was conducting.

    [13] Exhibits F8, F9

21. The only evidentiary basis for doubting the depth of the youngest child’s affection for the father’s partner is the child’s statement to the Family Consultant in March 2014 that she did not love the father’s partner and only liked her “medium”. She initially refused to kiss the father’s partner goodbye on that occasion, but eventually did while laughing.[14] As the Family Consultant said in cross-examination, she was perhaps merely being protective of the mother by minimising her stated affection for the father’s partner. It could hardly be doubted she knew the parties were in conflict and her loyalty was divided between them. She would probably under-state her affection for the father’s partner lest her affection be construed as disloyalty to or betrayal of the mother.

    [14] Family Report, paras 77-78

22. Therein lies the probable answer for why the youngest child is an unreliable historian. The mother is well aware the child’s statements should not necessarily be taken at face value because of the level of parental conflict.[15]

    [15] Mother’s affidavit, para 169.3

23. Children who are “stuck in the middle” of high conflict between their parents, as the Family Consultant agreed the youngest child was and is, try to please and display loyalty to both parents. One way they demonstrate such loyalty is to say things they perceive each parent wants to hear.

24. That could logically explain why the child reported to the mother she was assaulted by the father’s partner. The mother is ill-disposed towards the father’s partner. She posted messages on her Facebook page stating her belief in the father’s infidelity with his partner.[16] The mother is not reticent about sharing her feelings. They were often on display during the trial. Given she admitted in cross-examination the youngest child was “very smart and in tune with how [the mother is] feeling”, the youngest child is probably well aware of her animosity towards the father’s partner.

    [16] Exhibit F7

25. The child’s perception of being caught in the crossfire between the parties could also logically account for why, on the one hand, she has told the mother she is reluctant to visit the father,[17] but on the other, told the Family Consultant she enjoys her visits with the father and by all accounts actually does enjoy her visits with him. Why the child might be adjusting her statements to correlate with her perception of the mother’s feelings and attitudes is an issue that deserves consideration under s 60CC(3) of the Act.

    [17] Mother’s affidavit, para 140

26. The father’s partner was cross-examined vigorously but courteously in respect of her alleged assault of the youngest child. She confidently rebuffed any suggestion she punched the youngest child or assaulted her in any way. She said the youngest child had “a little tantrum” on the morning of 24 October 2014 because of the discomfort she felt from the application of drops to her aching ears, but she was not physically chastised in any way. The father’s partner’s demeanour changed commensurately with the nature of the challenges she faced. She was resolute, quizzical, and then slightly exasperated. She was not hesitant, embarrassed or avoidant. Her evidence was credible and I accept the truth and accuracy of it unreservedly.

27. The father’s partner voluntarily participated in a police interview in the course of the police investigation of the mother’s complaint against her for the alleged assault of the youngest child. Inferentially, the police must also have found her denials credible. The police notified the father’s solicitor by email that their investigation is concluded and the father’s partner will not be charged with any offence.[18]

    [18] Exhibit F11

28. The father conceded in cross-examination he attended the youngest child’s school to see her on 19 November 2014, while the police investigation was pending. He credibly refuted the suggestion he set out to exert pressure upon the youngest child on that occasion to resile from her allegation against his partner. The mother may honestly believe that was his intention, but there was nothing tangible to support her theory. The mother stopped the child’s visits to the father weeks before and he was desperate to see her. The father said he told the school staff to inform the mother he had attended the school, which they duly did,[19] so there was no secrecy about his visit.

    [19] Mother’s affidavit, para 186

29. In application of the civil standard of proof, including those considerations relevant to the gravity of the allegation (ss 140(1), 140(2) of the Evidence Act 1995 (Cth)), the evidence does not permit any positive finding that the father’s partner physically abused the youngest child on 24 October 2014. Nor is the evidence sufficiently strong to establish that the child is at unacceptable risk of physical or psychological harm within the father’s household through her subjection to physical abuse by the father’s partner.

Family violence

1. The mother adduced a large volume of evidence in an apparent effort to prove the father had perpetrated serious and sustained family violence upon her throughout their relationship.

2. Although the evidence revealed clear instances of family violence, which rendered the presumption of equal shared parental responsibility inapplicable (s 61DA(2)), the evidence had little or no bearing upon other orders about how and when the youngest child would spend time with the father, for four persuasive reasons: first, both parties perpetrated family violence upon the other and it serves no useful purpose to apportion blame when both are blameworthy; secondly, in the course of these proceedings the parties have both acted in a way which suggested family violence was not an influential issue; thirdly, they both made admissions that implied family violence was not an influential issue; and lastly, there has been no family violence at all between them since May 2013, proximate to the final break down of their relationship.

3. As to the first reason, both parties have been convicted, or at least found guilty, of assaults upon the other.

4. In May 2013, the father pleaded guilty to an offence of assault upon the mother, which charge related to an incident in February 2013 when he threw a laptop computer at her.[20]

   [20] Father’s first affidavit, page 14; Mother’s affidavit, paras 45-48; Exhibit M1

5. In July 2013, the mother also pleaded guilty to offences of violence involving the father and their adult son, which resulted from her recklessly driving a motor vehicle at or near them in May 2013.[21]

   [21] Mother’s affidavit, paras 58-66; Father’s first affidavit, page 14; Family Report, para 36

6. Both parties have the current protection of apprehended violence orders against the other, which orders were made contemporaneously with their successful prosecution on the abovementioned criminal charges.[22] There is another current apprehended violence order protecting the mother from the parties’ adult son.[23]

   [22] Mother’s affidavit, para 8; Father’s first affidavit, pages 13-14; Family Report, para 5

   [23] Mother’s affidavit, para 8.3; Father’s first affidavit, page 15

7. The parties’ behaviour towards one another was reprehensible over many years. The father admitted in cross-examination that he occasionally man-handled the mother, called her abusive and demeaning names, criticised her in the presence of the children, and damaged their personal property. The mother also admitted that she called the father abusive names. It is now pointless, several years later, to try and make factual findings about where fault lay for the many incidents of verbal and physical conflict between the parties. In fact, the High Court has cautioned there are strong practical reasons why courts should refrain from making positive findings about allegations of past impropriety unless impelled by the particular circumstances of the case to do so (see M v M (1988) 166 CLR 69 at 76-77).

8. Although the High Court was there specifically referring to allegations of child sexual abuse, the admonition has wider application to any allegation of past criminal misconduct made by one party against the other. That is because the Court’s task is to make parenting orders regulating the children’s future care which will best promote and protect the interests of the children, not to resolve historical factual disputes – in this case, the parties’ squabble about who should bear most blame for their unhappy marriage. The resolution of the parties’ allegations of family violence is subservient and ancillary to the determination of what orders are in the children’s best interests.

1. This is not a case in which, utilising the High Court’s terminology, the Court is “impelled by the particular circumstances of the case” to make precise factual findings in relation to the allegations and counter-allegations of family violence, for the reasons which follow.  

2. As to the second and third reasons, which can be explained compendiously, the positions adopted by the parties during these proceedings and the comments they each made in cross-examination were telling.

3. The mother said in cross-examination the alleged assault of the youngest child by the father’s partner on 24 October 2014 was “the day things went off the rails”. Up to that point in time the mother was still outwardly content with an arrangement where the youngest child would spend five nights of every fortnight and half of school holidays in the father’s care. That was the proposal she made in her Amended Amended Initiating Application (sic), filed as recently as 12 September 2014.

4. The mother asserted in cross-examination she was forced by her former solicitor to adopt that proposal against her will, but I reject her evidence as untruthful or inherently improbable, because she voluntarily told the single expert at a consultation on 15 September 2014 that her proposal was for the youngest child to spend five nights of each fortnight in the father’s care.[24] Her former solicitor was not present at that medical consultation to overbear her free will. Before then, the only reason the mother had suggested any restriction of the youngest child’s time with the father was needed was because, in her view, he did not manage the youngest child’s medical condition satisfactorily.[25]

   [24] Exhibit F4

   [25] Family Report, para 17

5. The mother’s counsel put to the father in cross-examination that, but for the alleged assault of the youngest child by his partner on 24 October 2014, the parties “would not even be here”. The question plainly implied the parties would have resolved their differences without the need for further litigation if it were not for the alleged incident of physical abuse. The question presumably correlated with the mother’s instructions to her lawyers, for otherwise it would not have been posed in that form. The father agreed with the proposition – that was the only reason he perceived caused the mother to change her mind about the amount of time the youngest child should spend in his care.

6. The evidence of both parties in cross-examination clearly demonstrated that the issue of prominence for them was the alleged physical assault of the youngest child by the father’s partner on 24 October 2014; not the family violence that occurred between them some years before.

7. Lastly, violence must never be condoned, but spouses are rarely at their best when their marital relationship is under strain and in the process of finally breaking down. Hostility between them in the throes of such a process sometimes occurs, even though never justifiable. Significantly, save for one exception, the violence between the parties ended when the father vacated the former matrimonial home in March 2013. The solitary exception was an instance of violent conduct by the mother only two months later in May 2013, when she unwisely drove to the home of the father’s current partner and caused a confrontation.

8. The parties’ behaviour is constrained by reciprocal apprehended violence orders. The mother admitted she was successfully prosecuted in September 2014 for breach of the apprehended violence order protecting the father,[26] but presently neither party apparently has any wish to contact the other. The chance of further violent conduct between them in the future must therefore be relatively low. There is little risk of the youngest child being exposed to family violence between the parties.

   [26] Mother’s affidavit, para 70; Father’s first affidavit, pages 14-15

9. There is no evidence of the occurrence of any family violence between the father and his partner,[27] so there is no risk of the youngest child being exposed to family violence between them in their household.

   [27] Family Report, para 116

Best interests of children – additional considerations

1. It is uncontroversial that the youngest child suffers from both type 1 diabetes and coeliac disease. For a long time, a central plank of the mother’s case has been that the father cannot adequately manage the youngest child’s medical conditions. The evidence did not, however, vindicate the mother’s concern. Her argument was wounded by the contents of the single expert’s report and killed by the evidence given by the single expert in cross-examination.

2. Without exhaustively quoting tranches of the single expert report, the single expert importantly concluded:

   (a)In respect of the youngest child’s diabetes: her insulin levels are under “excellent control” and she is receiving “gold standard” therapeutic treatment, but fluctuations in blood sugars should be expected and it is almost inevitable she will have some level of mild hypoglaecemia from time to time because it is extremely difficult to have perfect blood sugars on a continual basis;

   (b)In respect of the youngest child’s coeliac disease: she needs strict adherence to a gluten-free diet, her “transglutaminase antibody titres” confirm she is following her coeliac diet, and she is within the “normal range and normal growth”; and

   (c)Overall: both conditions are being very well managed.

3. None of those opinions was the subject of even slight revision by the single expert upon her cross-examination. Her evidence replicated her earlier report to the youngest child’s general practitioner, in July 2014, that “both sides of the family are doing a good job” with the youngest child’s care.[28]

   [28] Exhibit F3

4. The single expert was asked to comment upon the youngest child’s insulin pump records for two periods during the last school holidays in September 2014 – one period in the care of the father,[29] and one period in the care of the mother.[30] Upon examination of those records the single expert was unable to materially differentiate the level of care the child received for her conditions in the two households, other than to observe the child probably ate breakfast at an earlier time of the day when living with the mother. The child’s diabetes was monitored frequently by both parties throughout each day and her multiple insulin doses were altered accordingly. She adhered to her gluten-free diet in both households.

   [29] Exhibit M4

   [30] Exhibit F13

5. Given the evidence of the single expert, little or no weight can be reposed in the reports made by the youngest child to the mother about having a “sore belly” and “always feel[ing] sick” when she visits the father, which the mother believed necessarily meant the father was not managing her medical conditions correctly.[31] As already mentioned, there are other rational explanations for why the child might report inaccuracies to the mother.

   [31] Mother’s affidavit, para 125-126, 139

6. The mother was also concerned about the father’s lack of medical training in diabetes care, but the father has conferred with the youngest child’s doctors,[32] and he, his partner, the youngest child’s siblings, and other members of the paternal family have all received technical training in relation to diabetes care.[33] The father and members of the paternal family satisfactorily cared for the youngest child’s diabetes and coeliac disease on the many occasions she visited them in the period between December 2013 (when the interim orders were made) and October 2014 (when the mother terminated the child’s visits to the father). He is a member of a support group and tried unsuccessfully to join another.[34]

   [32] Father’s first affidavit, pages 4, 8, 32-33

   [33] Father’s first affidavit, pages 4-5; Family Report, para 118

   [34] Father’s first affidavit, pages 17-18

7. The mother said in cross-examination the father may have had diabetes training, but it was only “on paper”, implying his education was theoretical and artificial rather than practical and real. She could not accept the father was genuinely interested in ensuring the youngest child was properly treated.

8. Despite the mother’s belief otherwise,[35] the father’s medical care of the youngest child is quite satisfactory and is not an objectively valid basis to curtail the time she spends with him.

   [35] Family Report, paras 17, 43, 47, 50

9. While the mother’s management of the child’s medical conditions could possibly be more fastidious than, or perhaps even superior to, the father’s management of those conditions, it does not mean the standard of care the father gives the child is inadequate. It just means the mother may provide an even higher standard of care than the father. No aspect of the evidence fairly suggested the father’s care of the child was deficient.

10. Whether or not the mother’s unnecessary worry about the child in the care of the father is rooted in her fragile psychological state need not be determined, but the mother’s fragility was an important issue because of its likely effect on the child’s psychological state.

11. The mother admitted she suffered from “depressed mood at times during [the parties’] relationship”,[36] but her psychological instability is much more pronounced than her admission suggested.

    [36] Mother’s affidavit, para 87

12. She was diagnosed with depression over a decade ago and prescribed anti-depressant medication. Over the intervening period, her condition periodically worsened and warranted renewal of her medication. That pattern accelerated in recent years. She was treated in April 2010, January 2011, and October 2012. When she was facing sentence in July 2013 for the offences she committed upon the father and their adult son, her doctor prepared a certificate for the court referring to her anxiety and depression as contributory factors in her commission of the offences. More recently, in February and August 2014, the mother consulted her doctor about anxiety, depression, and insomnia.

13. On 28 August 2014 the mother’s doctor formulated a Mental Health Care Plan for her, which she used to consult a psychologist.[37]

    [37] Mother’s affidavit, para 88

14. It seems much more than coincidental that the very next day – 29 August 2014 – the same doctor formulated a Mental Health Care Plan for the youngest child and she then consulted the same psychologist as the mother.[38]

    [38] Mother’s affidavit, paras 142, 150-151, Annexure I

15. The mother refused to accept the proposition that the youngest child has been emotionally disturbed by exposure to her own emotional disturbance, but that inference is strong. The mother’s anxiety has most probably spilled into the life of the youngest child and caused her to be anxious about the maintenance of her meaningful relationships with the father and siblings for fear it will upset the mother.

16. There seems little doubt the child is now anxious, but the reasons for her anxiety were contentious. The explanation could not be the alleged assault on 24 October 2014, because the mother said the child experienced anxiety for months beforehand and her Mental Health Care Plan was formulated in August 2014. The explanation could not be her mistreatment or inadequate medical care when with the father because the evidence demonstrated she interacts warmly with the father and her siblings and enjoys a happy time with them.

17. The mother said the youngest child’s anxiety presents at times proximate to her transfer into the care of the father, but the father said she is happy and settled when in his care. When with him, the youngest child tells him and her siblings she wants to stay with them.[39] The father gave no evidence about the child’s apprehension over her impending return to the care of the mother. The most likely explanation for the child’s anxiety is her worry the mother will react adversely to her demonstration of joy at the prospect of spending time with the father and her siblings. The mother’s self-esteem needs to be bolstered by re-assurance that she is the primary and best carer of the child.

    [39] Family Report, para 61

18. The mother seemed to think that because her general practitioner continued to certify the youngest child as “unfit to [have] access [with the father]”,[40] that she was justified in withholding the child from the father. She is mistaken.

    [40] Mother’s affidavit, Annexures P, R, U, and X

19. Little weight is reposed in the opinions of the mother’s general practitioner and psychologist for many good reasons: they fulfil a therapeutic role for the mother and youngest child, not a forensic role for the Court; they discharge their therapeutic role by reliance upon the truth and accuracy of what is reported to them by the mother and the youngest child; they are ignorant of the evidence, much of which was inconsistent with the mother’s perspective of events, adduced before the Court; there is no indication either of them understood their opinions would be relied upon as evidence in these proceedings; if they did understand that then the explanation of their opinions was hopelessly inadequate; and there was no opportunity for the father to test the veracity of their opinions.

20. The father justifiably entertained concern that the mother lacks the capacity and willingness to promote the youngest child’s important relationships with him and her siblings. The mother did, however, say in cross-examination that she would comply with the orders made by the Court even if they were not consistent with her proposal. She said she understood the ramifications of contravention of the Court’s orders. I see no good reason to reject that evidence as untruthful. She knows she would risk reversal of the youngest child’s residence if she obdurately refused to comply with the orders.

21. As earlier mentioned, the mother criticised the father for not fostering the eldest two children’s relationships with her.

22. The eldest child is an adult and can make his own decisions about with whom he associates. His adverse view of the mother is logically attributable to his own experiences with her, which have included the mother complaining about him to police, obtaining an apprehended violence order against him, and nearly running him down with a car.

23. The middle child also has apparent reason to harbour discontent with the mother. She feels she unnecessarily involved the police in family affairs,[41] she was disappointed in the mother’s nurture (which may have a valid basis in the mother’s depression),[42] and she received unwanted text messages from the mother (one of which alleged the father was the biological father of his partner’s youngest child – implying their adulterous affair).

    [41] Family Report, para 63

    [42] Family Report, para 64

24. In cross-examination the mother refused to accept any responsibility for her deteriorated relationships with the two eldest children, but she must be at least partly responsible. So must the father. His parenting capacity is not so impaired that he could have no influence at all over the two eldest children. Their estrangement from the mother simply suits him.

25. Despite the mother’s doubts, the father attempted to persuade the middle child to attend counselling with the mother, as interim orders provided, but it did not eventuate.[43] The middle child is now at an age where her decisions will almost always usurp her parents’ control, but I am satisfied the father could do more to improve the middle child’s relationship with the mother.

    [43] Family Report, paras 28, 39

26. There is a pressing need for the youngest child to renew her sibling relationships. She has been deprived of interaction with them since the mother terminated her visits to the father’s home, because the two eldest children have refused to visit her at the mother’s home – perhaps out of loyalty to the father or as a display of displeasure at the mother’s attitude. The children are obviously emotionally disturbed about the family fracture,[44] which distress would only have intensified since the youngest child ceased visiting the father’s household in late October 2014.

    [44] Family Report, paras 62, 68

27. The middle child emphatically expressed her view to the Family Consultant. She wants the orders, in so far as they relate to her, to remain as they are.[45]

    [45] Family Report, para 65

28. The youngest child expressed views to the Family Consultant which reflected her love for both parties and her siblings, but she wanted to remain living with the mother and to spend the same amount of time with the father as was then occurring,[46] which amounted to five nights each fortnight and half of school holidays.

    [46] Family Report, paras 68, 76

29. Any orders that make provision for frequent exchange of the youngest child between the parties are reasonably practicable and inexpensive to implement. The parties both live on the fringes of Newcastle about 15 kilometres apart.[47] Both parties drive and both parties have vehicular access.

    [47] Family Report, paras 8-10

30. The mother adduced evidence about the father’s obligation to pay her child support in respect of the youngest child, which payments are not being made. The arrears are large.[48] The father should rightfully be criticised about that. Even if he is no longer working, or only earning much less income than was formerly the case, he has apparently made no application to the Child Support Agency for re-adjustment of his liability.

    [48] Mother’s affidavit, para 98

31. There are, however, two ameliorating circumstances about the child support arrears. First, the father has the full-time care of the middle child and there was no evidence of the mother paying any child support to him in respect of her. Secondly, the mother did not submit that the father’s delinquent child support payments should affect the decision about the youngest child’s expenditure of time with him.

32. No other issues were addressed by the parties or Independent Children’s Lawyer as relevant considerations under s 60CC(3) of the Act.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because of the irrefutable evidence of family violence committed by both parties (s 61DA(2)).

2. Equal shared parental responsibility for the children, or either of them, may still be allocated to the parties, but that outcome depends upon how the children’s best interests would be affected by the allocation of their parental responsibility.

3. The parties have repeatedly demonstrated an inability to communicate effectively with one another, which ability is integral to the effective exercise of equal shared parental responsibility. Courteous consultation and genuine conciliation over an issue of significance to the children is really beyond them.

4. The mother excluded the father from important medical decisions concerning the youngest child,[49] and the father has similarly shut the mother out of decisions related to the middle child. The parties have been able to maintain use of a communication book and they have occasionally exchanged text messages,[50] but that alone is insufficiently convincing. Their disrespectful behaviour towards one another is more compelling. For example, they were not even able to share an insulin pump, which is apparently so important to the youngest child’s health.[51]

   [49] Family Report, para 26

   [50] Father’s first affidavit, pages 16-17

   [51] Family Report, para 115

5. The father told the Family Consultant that, in his view, shared parental responsibility for the children was “not an option”.[52] The mother reported a similar view to the Family Consultant.[53] The Family Consultant also concluded that equal shared parental responsibility for the children should not be conferred on the parties, but that the residential parent should have sole parental responsibility for the child in their primary care.[54]

   [52] Family Report, para 31

   [53] Family Report, para 48

   [54] Family Report, para 147

6. In view of his admission to the Family Consultant, it was perplexing the father eventually proposed that he have sole parental responsibility for the middle child, but that the parties have equal shared parental responsibility for the youngest child. If he acknowledged the parties would not be able to manage equal shared parental responsibility for one child he could not consistently propose it in respect of the other. The mother’s proposal was similarly perplexing. She proposed she have sole parental responsibility for the youngest child, but that there be no order conferring parental responsibility for the middle child,[55] presumably meaning it rested where placed by the Act (s 61C).

   [55] Exhibit M5, Orders 2-5

1. I accept the Family Consultant’s recommendation that parental responsibility for each child should be allocated exclusively to the parent with whom each child lives. It was common ground the middle child would live with the father and the youngest child would live with the mother. It is unnecessary to consider particular types of residential regimes (s 65DAA) because equal shared parental responsibility is not ordered for either child.

2. Since the parties were agreed about the order regulating the middle child’s expenditure of time with the mother, the contentious issue was the order/s regulating the youngest child’s expenditure of time with the father.

3. It is initially instructive to note the unchallenged opinion of the Family Consultant, who recommended that the youngest child should spend substantial and significant time (s 65DAA(3)) with the father – much like that dictated by the interim orders made in December 2013 – provided the Court was satisfied the father was properly managing the youngest child’s medical conditions whilst she was in his care.[56] I am so satisfied of the father’s care of the youngest child.

   [56] Family Report, paras 146, 148, 150, 153, 154

4. The father and Independent Children’s Lawyer both proposed a regime that effectively perpetuated the interim orders made in December 2013, providing for the child to spend time with the father for five nights per fortnight during school terms and half of all school holidays. There is no good reason why that regime cannot be perpetuated. It worked satisfactorily until October 2014. The only reason it stopped was the mother’s formation of an opinion that the child was at unacceptable risk of harm in the father’s household, but findings have now been made that the child is not at unacceptable risk of harm in the father’s care. The only obstacle to successful operation of that regime has therefore been removed.

5. The reasons advanced by the mother for curtailment of the child’s expenditure of time with the father to two nights per fortnight[57] lacked any merit. She is not at unacceptable risk of harm when with the father and her medical conditions are capably managed by the father.

   [57] Exhibit M5, Order 7.1

6. The mother also proposed an additional layer of complexity upon resumption of the youngest child’s visits to the father – the requirement for a counsellor to determine when, if at all, the child would resume such visits.[58]

   [58] Exhibit M5, Orders 7-8

7. The reason behind that proposal was the child’s existent anxiety. As earlier mentioned, there seems no doubt the child is anxious, but the father, Independent Children’s Lawyer, and Family Consultant all have a different view to the mother about why that is so. No matter what parenting regime is conjured for the youngest child, she will likely remain anxious for the foreseeable future. If she lived with the father she would be anxious about her removal from the primary care of the mother. If she is prevented from seeing the father and her siblings, or her contact with them is unreasonably curtailed, she would be anxious about deprivation of meaningful relationships with them. If she remains living with the mother and spends substantial and significant time with the father, she will likely remain anxious about changeovers because of her knowledge of the mother’s anxiety. There is no immediate solution.

8. The mother’s proposal is certainly not a solution. The Court should not abdicate its statutory responsibility to decide the parties’ dispute according to law in light of the evidence adduced. The obligation to decide the dispute is not fulfilled by the Court’s delegation of the decision to a counsellor – much less a counsellor chosen unilaterally by the mother, who has been instructed exclusively by the mother, and about whom the Court knows nothing.

9. That is not to say it would not be beneficial for the youngest child to receive counselling to relieve her stress. Unfortunately, according to the single expert, stress is liable to aggravate her diabetes and make it harder to control. Relief of her stress would therefore be beneficial. The mother will have to decide whether she procures counselling for the child, but any such counselling to which the child is submitted will not be a pre-condition of her resumption of visits with the father and her siblings. It is unnecessary to make an order for counselling between the youngest child and the father in the nature of that proposed by the mother.[59] If the mother desires it and the father is receptive, it will happen anyway. If the mother is not desirous or the father is not receptive, the existence of an order will not make it happen.

   [59] Exhibit M5, Order 8

10. The mother proposed a similar order compelling her and the middle child to attend counselling together.[60] I also decline to make that order. Aside from the middle child’s resistance, the order was not the subject of any evidence or submission.

    [60] Exhibit M5, Order 4

11. The father orally sought an order for leave to provide a copy of the orders and these reasons to any doctor or other health professional (which would include psychologists and counsellors) consulted by the youngest child. The idea was that, since the mother might have sole parental responsibility for the youngest child, any health professional who treats the youngest child, particularly in respect of her existing diabetes, coeliac disease, and anxiety, would have an objective perspective about the problems in the child’s life. The order was meritorious and an order to that effect is made.

12. The father proposed that the youngest child be exchanged between the parties at a public venue near to his home, if it could not be achieved at the child’s school.[61] The interim orders made in December 2013 provided for the changeovers to occur at a public venue near to the mother’s home,[62] and that order operated without complaint. There was no evidence given, either in chief or in cross-examination, and no submission made, about why a different public venue would be better. Therefore, the final order will replicate the interim order, as the mother desired.[63]

    [61] Further Amended Response 30/10/14, Order 7

    [62] Order 7 made on 5 December 2013

    [63] Exhibit M5, Order 9

13. The mother proposed an order restricting the parties’ use of family and friends to assist in the child’s changeovers.[64] No such order is made. There was no evidence adduced and no submission made about it. No good purpose is served by forcing the parties to confront one another if, either individually or mutually, they would prefer to meet their obligations under the orders by garnering assistance from family and friends.

    [64] Exhibit M5, Order 10

14. The Family Consultant recommended no telephone communication between the households.[65] The father did not seek any order that would enable his telephone communication with the youngest child and the mother only sought an order that was not prescriptive and probably unenforceable.[66] In view of the parties’ antipathy, it is better to avoid any opportunity for disagreement. In the absence of any proposal for a prescriptive order for communication I decline to manufacture one. Telephone communication was not the subject of any evidence in chief, cross-examination, or submission.

    [65] Family Report, para 155

    [66] Exhibit M5, Order 20

15. The parties and the Independent Children’s Lawyer all sought an order mandating the parties’ continued use of a communication book to facilitate management of the youngest child’s medical conditions. I decline to make the order because it is not needed. The differences between the proposed orders were not raised with either party during their cross-examination so a precise order could not be made consensually. The parties already voluntarily use a communication book, so they must each accept it is a good idea. If they remain of that view they will probably continue to use it, but I decline to make an order forcing them.

16. The mother sought an order restraining physical chastisement of the youngest child.[67] The order is not made. It could only have been proposed by reason of the mother’s belief in the father’s partner’s assault of the child, but in view of the findings of fact already made such an order is quite unnecessary. So is the proposed order precluding the father from leaving the youngest child in the care of his partner.[68]

    [67] Exhibit M5, Order 11

    [68] Exhibit M5, Order 12

17. The father sought a suite of specific orders about management of the youngest child’s diabetes and coeliac disease.[69] No such orders are made. Management of the child’s medical conditions will be a matter for the parties when the child is in their respective care. They have cared for her perfectly well so far. There is no reason to think they will not continue to do so.

    [69] Further Amended Response 30/10/14, Orders 14-16

18. The father sought an injunction precluding the parties from moving their residences to places outside a defined geographical area.[70] The order is not made. It was not the subject of any evidence or submission. The Court should only make such an order cautiously (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). Parents enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for a child (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210).

    [70] Further Amended Response 30/10/14, Order 18

19. The mother sought orders in relation to passports for the children and their international travel, but paradoxically also sought retention of their names on the Airport Watch List.[71] None of those orders are made.

    [71] Exhibit M5, Orders 34-37

20. An interim order was consensually made in December 2013 for the children’s passports to be delivered by the father to the registrar. An order is made for the registrar to forthwith return the middle child’s passport to the father and the youngest child’s passport to the mother, consonantly with the father’s proposal.[72] The issue of any other passports for the children is governed by the Australian Passports Act 2005 (Cth). Any international travel of the children is adequately governed by the Act (s 65Y). Placement of the children’s names on the Airport Watch List would only serve to impede any international travel the parties plan for the children. There is no suggestion either child will be permanently spirited away from Australia. The interim order made in December 2013,[73] with the parties’ consent, placing the children’s names on the Airport Watch List has now expired. There is consequently no need to make a specific removal order as the father proposed.[74]

    [72] Further Amended Response 30/10/14, Order 19

    [73] Order 13 made on 5 December 2013

    [74] Further Amended Response 30/10/14, Order 20

21. When interim orders were made in December 2013 an injunction was imposed precluding the parties from allowing the children to be brought into contact with two named men.[75] That particular order was made with the parties’ consent. The father wanted the interim order converted to a final order, but the mother opposed it. Such an injunction is made on a final basis because both men pose an element of danger to the children,[76] the mother said in cross-examination she had no intention of allowing the children any contact with them anyway, and there is no evidence of any need for the children to have any contact with them.

    [75] Order 11 made on 5 December 2013

    [76] Family Report, para 108; Exhibits F1 and F2; Father’s first affidavit, page 18

22. The mother sought a number of other orders that were superfluous and are accordingly not made.[77] None of them were raised either in the evidence or in submissions.

    [77] Exhibit M5, Orders 17-19, 21-29, 30, 32

23. An order is made for the children to have the orders explained to them by the Independent Children’s Lawyer, and if thought appropriate, the reasons for the orders. That will avoid the children having the outcome of the proceedings conveyed to them by the parties in a partial or distorted way.

24. The remaining orders either reflect the residue of the parties’ proposals or could not be the subject of sensible opposition.

25. Both parties sought costs against the other.[78] Since there was no argument about costs during final submissions, costs are reserved for 28 days.

    [78] Exhibit M5, Order 38; Further Amended Response 30/10/14, Order 22

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 December 2014.

Associate: 

Date:  18 December 2014