Jallip and Jallip (No. 2)

FAMILY COURT OF AUSTRALIA

JALLIP & JALLIP (NO. 2)

[2008] FamCA 629

FAMILY LAW – CHILDREN - With whom a child lives - Relocation

Family Law Act 1975 (Cth)

Family Law (Shared Parental Responsibility) Act 2006 (Cth)

Goode and Goode (2006) FLC 93-286

B and B; Family Law Reform Act 1995 (1997) FLC 92-755

Mazorski v Albright (2007) 37 Fam LR 518

AMS v AIF: AIF v AMS (1999) FLC 92-852

A v A: Relocation Approach (2000) FLC 93-035

H v L (2000) FLC 93-036

U v U (2002) FLC 93-112

Bolitho v Cohen (2005) FLC 93-224

M and S (2007) FLC 93-313

Godfrey and Sanders [2007] FamCA 102

Taylor and Barker (2007) 37 Fam LR 461

Bale v Jenkins [2007] FamCA 809

APPLICANT:

Ms Jallip

RESPONDENT:

Mr Jallip

FILE NUMBER:

SYC

4320

2007

DATE DELIVERED:

6 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O’Ryan J

HEARING DATE:

25 January, 11 March, 1 & 15 April, 5 & 6 May, 28, 29 & 30 August 2008.

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

Louise Butt Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Serisier

SOLICITOR FOR THE RESPONDENT:

McBride Harle & Martin Solicitors

Orders

All previous parenting orders and undertakings be and hereby are discharged.
The Mother have sole parental responsibility for each of the children, Y born on … July 2000, and L born on … December 2001.
Each of the Father and the Mother have responsibility for the day-to-day care, welfare and development of the children while the children are in his/her care.
The children live with the Mother and in that regard the Mother may establish a residence for the children in the metropolitan area of Brisbane in Queensland.
The children spend time with the Father as follows:
5.1At any time when both parents are living in the same city, whether Sydney or Brisbane, and within 15 kilometres of the children’s school(s):
5.1.1 In each alternate week, from after school on Thursday until before school on Monday;
5.1.2 For one half of each school term holiday period other than the Christmas holidays being the first half in odd numbered years and the second half in even numbered years;
5.1.3 For two weeks in the Christmas school holiday period being the first two weeks in odd numbered years commencing on the last day of term and the last two weeks in even numbered years concluding on the last Sunday of the holiday period;
5.1.4 For the Greek Orthodox Easter period from after school on the commencing day until 5:00 pm on the concluding day.
5.2At any time when the Mother is living in Brisbane and the Father is living in Sydney:
5.2.1 In the first and third school term holidays for ten consecutive days and failing agreement for the ten days concluding on the last Saturday of the holiday period as the tenth day;
5.2.2 For the Greek Orthodox Easter period from 5:00 pm on the commencing day until 5:00 pm on the concluding day;
5.2.3 For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years;
5.2.4 For such additional time as the Father wishes to spend with the children in Brisbane for up to one week during each school term PROVIDED THAT the Father gives 14 days notice in writing to the mother of the proposed period and the Mother responds in writing within 48 hours confirming or advising of commitments of the children during the proposed period which cannot be changed AND for the purposes of this order the Father be responsible for ensuring that the children attend school as required and also attend any extra-curricular activities in which they are normally engaged;
5.2.5 For one weekend during each school term in Sydney PROVIDED THAT the Father gives the Mother not less than 14 days notice in writing of the proposed weekend and the Mother confirms in writing within 48 hours.
For the purposes of Orders 5.2.1, 5.2.2, 5.2.3 and 5.2.5 hereof, the children travel between Brisbane and Sydney by air and the Father be responsible for booking and paying for flights from Brisbane to Sydney and the Mother be responsible for booking and paying for flights from Sydney to Brisbane.
The Father notify the Mother in writing of the flight details for any trip by the children from Brisbane to Sydney pursuant to these Orders as soon as tickets are paid for but in any event not less than 28 days before the date of travel, and the Mother within 14 days of receiving flight details from the Father notify the Father in writing of the flight details for the return trip by the children from Sydney to Brisbane.
The parties or either of them may accompany the children on any flight at his or her own expense.
The children have liberal telephone communication with the Father.
The Father ensure that the children have telephone communication with the Mother on at least two occasions during each school holiday period when they are with him.
Each party keep the other advised of their current residential address, contact telephone number(s) and email address.
The Mother keep the Father advised of the school(s) which the children are attending and shall authorise such school(s) to forward to the Father copies of the children’s school reports, order forms for school photos and other information concerning significant events in relation to the children’s education and welfare.
Each party immediately advise the other of any medical emergency, significant illness or hospitalisation involving either of the children.
The Father be and hereby is restrained from the following:
14.1Denigrating the Mother or speaking about the Mother in a critical or derogatory manner to the children or in their presence or hearing, or allowing any other person to do so;
14.2Discussing these proceedings or any of the allegations raised in these proceedings with the children or in their presence or hearing.
Note that these orders are made on the basis that neither of the paternal grandparents will say anything to or in the presence of the children which is in any way critical or derogatory of the Mother or undermines her relationship with the children or discuss these proceedings or any of the allegations raised in these proceedings even if this brings the paternal grandparents into conflict with the Father.
Within 28 days, the Father pay to the Legal Aid Commission of New South Wales the total sum of $8,298.40 being the costs of the Independent Children’s Lawyer in the amount of $7,198.40 and the father’s share of Dr W’s court attendance fees in the amount of $1,100.00.
Within 28 days the Mother shall pay to the Legal Aid Commission of New South Wales the sum of $1,100 being her share of Dr W’s court attendance fees.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC4320 of 2007

MS JALLIP

Applicant

And

MR JALLIP

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Before me for hearing are applications for final parenting orders. There were also applications for property settlement orders however the proceedings were settled.
The proceedings were commenced by an application filed on 18 June 2007 on behalf of Ms Jallip, who I shall refer to as the Mother. An amended application was filed by the Mother on 4 October 2007 and a further amended application was filed on 22 February 2008. The final orders sought by the Mother were set out in a minute of orders attached to the case outline document filed on her behalf shortly prior to the resumed hearing on 28 July 2008.
On 1 August 2007 a response was filed on behalf of Mr Jallip, who I shall refer to as the Father. An amended response was filed on 11 March 2008. The final orders sought by the Father were set out in a minute of orders attached to the case outline document filed on his behalf shortly prior to the resumed hearing in July 2008.
The Father was born in April 1962 and the Mother was born in January 1969.
The parties met in 1993 and commenced living together in August 1993. They were married in August 1994. The parties separated on 11 November 2006, after approximately 12 years of marriage. The parties were divorced on 1 May 2008.
There are two children of the marriage Y born in July 2000 (aged 8) and L born in December 2001 (aged 6).
Interim orders were made by consent on 26 July 2007 which provide for the children to live with the Mother and spend five nights each fortnight with the Father. The children live with the Mother, in Sydney, and spend time with the Father as follows: in week one, from the conclusion of school on Thursday until the commencement of school on the following Monday; and in week two, from the conclusion of school on Thursday until the commencement of school on Friday morning.
The separation followed an incident of family violence during which the Father threatened to kill the Mother and physically assaulted her. This occurred in the former matrimonial home and was witnessed by the children, one of whom was also hit. On 13 November 2006, a twelve month apprehended violence order was issued at the Local Court at Newtown in Sydney, naming the Mother as the protected person. The Father pleaded guilty to and was convicted of a charge of assault occasioning grievous bodily harm. The Father was placed on a “good behaviour bond” which expired sometime during March 2008.
Both parties currently reside in the inner-western suburbs of Sydney. The Mother lives in rented accommodation in D and the Father resides in the former matrimonial home at M. The parties live 5-10 minutes away from each other by motor vehicle.
The Father is a self-employed technician and works up to 40 hours per week. The Mother is an executive assistant.

Orders sought by the Mother

The Mother sought the following orders:
1.The mother will have sole parental responsibility for the children [Y] (d.o.b. […]/7/2000) and [L] (d.o.b. […]/12/2001), collectively known herein as “the children”.
2.Each party will have responsibility for the day-to-day care, welfare and development of the children while the children are in their care.
3.The children will live with the mother in the Brisbane metropolitan area of Queensland.
4.When the father does not live in the Brisbane metropolitan area of Queensland the children will spend time with the father as follows:
a.      In each and every school holidays apart from the Christmas school holidays for ten consecutive days, with the commencement and conclusion of the time to be agreed between the parties, or failing agreement such time to commence 2 days after the start of the holidays and conclude 2 days prior to the conclusion of the holidays.
b.      For the purpose of these orders, commencement and conclusion of the children’s time with the father will be taken to occur when the children leave the care of their mother for the purpose of travel to the father, howsoever that takes place, and conclude when the children return to the care of their mother.
c.       For the purpose of these orders, travel to the father for the purpose of the children spending time with the father may take place with the children being accompanied on the travel by one of their parents, or by the children travelling as unaccompanied minors as supervised by their travel carrier.
d.      For Greek Easter, from 5.00pm on the commencing day to 5.00pm on the concluding day.
e.      In the Christmas school holidays by agreement between the parties, and failing agreement as follows:
i.The children to spend time with the father from 3 January 2009 to the third last day of the school holidays and in the following year from 23 December 2009 to 14 January 2010, with this pattern to be repeated over a two year cycle, with the intention that each parent spends the first half of the Christmas school holidays and Christmas Day with the children in alternate years. The parent who does not have care of the children on Christmas Day is to have telephone contact with the children on Christmas Day at a reasonable time, with such telephone contact not to be withheld by the parent with care.
ii.For such extra time as the father wishes to spend with the children by visiting Brisbane during school term, for periods of up to one week on each occasion, provided that he give the mother the address and telephone details of the residence of the children during that period of time, and provided that the father gives the mother at least two weeks notice of such proposed time with the children. For the purposes of this order, the father will be responsible for ensuring that the children attend school as required and also attend any extra curricular activities in which they may be engaged.
iii.For the purposes of the above orders the father is to be solely responsible for the cost of the children’s travel to and from Sydney and for the costs of any accommodation or other costs when the children are in his care.
5.In the event that the father relocates to live in Brisbane, the father will spend time with the children as follows:
a.      from after school on every second Thursday to the commencement of school on every second Monday.
6.On other significant family occasions, such as the children's birthdays, or the parent's birthdays, the non-resident parent will be able to spend three hours with the children on those occasions, if practical, at a time to be agreed between the parties, or failing agreement between 4.00pm and 7.00pm; or if such contact is not practical will have telephone contact with the children, such telephone contact not to be unreasonably withheld by the resident parent, and to occur between 6.30pm and 7.00pm on the relevant day.
7.The non resident parent will have liberal telephone contact with the children at such times when the children are not in their care, and in particular the resident parent will ensure that the children are available to speak to the non resident parent on each Sunday evening between 6.00pm and 7.00pm.
8.Neither party is to denigrate the other, or permit any other person to denigrate, the other parent, in the presence of the children.
9.The mother will support the children’s knowledge and understanding of their Greek cultural heritage and for this purpose will enrol the children in Greek language lessons as soon as possible after relocation to Brisbane, which lessons are to be paid for equally by both parties.
10.Any of the immediate paternal relatives, in particular the paternal grandparents and including the paternal aunt and uncle and cousins may spend time with the children in Brisbane on request, with two weeks notice to be provided to the mother. For the purposes of this order, the time will not include overnight time, but will include reasonable daytime contact with the children able to be in the care of their paternal grandparents or paternal aunt or uncle or cousins for that time, and with consent to such a request not to be unreasonably withheld by the mother. Liberal telephone contact may occur between the paternal relatives set out in this order, and the children, with no notice necessary and consent to such telephone contact not to be unreasonably withheld by the mother.
11.The parties are to give written notice of any proposed new address of the party at least 14 days before any proposed change in the residence for the children.
12.The parties are to keep the other informed in writing at all times of his/her residential telephone number and mobile telephone number.
13.In the event that the mother is not permitted by the court to relocate the children’s residence with her to Brisbane, the children will live with the mother in the Sydney metropolitan area and will spend time with the father as follows:
a.      from after school on every second Thursday to the commencement of school on the following Monday
b.     during school holidays other than the Christmas holidays for one half of the holidays, with the commencement and conclusion of such time to be agreed between the parties, or failing agreement, the father will collect the children from school on the last day of the school term and will have care of the children for seven days thereafter, and will deliver the children to the mother’s residence on 6.00pm of the seventh day.
c.     during the Christmas holidays as set out in order 4.5 above.
14.The father is restrained from approaching the mother’s residence or place of work, except for the delivery and collection of children as agreed between the parties, and is restrained at all times from entering the mother’s residence or place of work.
15.Both parties are restrained from consuming alcohol or other drugs in the presence of the children, or while the children are in their care and control apart
The Mother proposes to reside in Brisbane with the children as and from the beginning of the 2009 Queensland school year. She gave evidence explaining why this was her proposal.

Orders sought by the Father

The Father seeks the following:
1Discharge the Consent Orders made 26 July 2007.
2Dismiss the application of the applicant to relocate.
Parental Responsibility
3That the Applicant and the Respondent have equal shared parental responsibility for the 2 children of the marriage, [Y], born […] July 2000 and [L], born […] December 2001 (“the children”) and that such parental responsibility is to include but is not limited to:
3.1    the children’s education including decisions as to which school the children are to be enrolled and after school care (if any) that the children are to attend and other child care arrangements (if any);
3.2    the children’s religious and cultural upbringing;
3.3    matters relating to the children’s health;
3.4    the children’s names; and
3.5    all or any changes to the living arrangements of the children that make it more difficult for the children to spend time with either parent.
Equal time
4That the children spend equal time with their respective parents and that they live with each parent for alternate one week periods and that both parties do all acts and things to give effect to these orders.
School Holidays
5Either party may give not less that 28 days notice in writing to the other parent to enable that parent to take the children on a holiday out of Sydney and within Australia during NSW gazetted school holiday periods provided that the children are to then spend an equivalent period of time with the other parent during school holiday periods.
Commencement of Shared Time
6That the period when the children are to live with one parent, during school term, is to commence at the conclusion of school on a Friday (or Thursday if Friday is a holiday) and to conclude at the commencement of school on the following Friday and in the event that Friday is a holiday, at 9:00 am Friday provided that unless one parent has given the other parent notice as provided in order 5 above, that that parent wishes to spend time during the school holiday period with the children, then during the school holiday period, the periods of time when the children are to live with one parent to commence at 5:00 pm on a Friday and conclude at 5:00 pm on the following Friday.
7That these orders take effect forthwith and that the children commence to live with the Respondent, pursuant to these orders on the next Friday after these orders are made.
Matters to occur during time with parent
8Whilst the children are living with one parent during school term or school holidays:
8.1    that parent is to do all reasonable acts and things to encourage the children to communicate with the other parent by telephone or email;
8.2    that each party is to immediately notify the other if either of the children is seriously ill or is admitted to hospital at such time as the children are living with that parent and to advise the other of the names and addresses of the children’s treating doctors and dentists;
8.3    the parent with whom the children are living:
8.3.1is to be responsible for day to day decisions concerning the care, welfare and development of the children;
8.3.2is to take the children to their respective sporting activities and to and from other extra-curricular activities or social activities as agreed to between the parties; and
8.3.3is to do all reasonable acts and things to enable the children to spend time with the other parent on the occasions of the birthday of the other parent or the birthday of either child.
Clothing
9Each parent is to maintain a separate wardrobe of clothing for the children at the home of that parent, such clothing to include school uniforms and sports uniforms and equipment and that when that clothing is worn by the children to the home of the other parent, then that parent is to ensure that the clothing is returned, washed and ironed to the other parent as soon as practical and/or that clothing is worn by the children at the time of the changeover to these arrangements.
Holidays
10In addition to provisions of order 5 above, in the event that either party proposes to take the children for a holiday at another place, whether within the State of New South Wales or otherwise:
10.1    that parent provide the other parent with not less than 28 days notice of such intention and provide the other parent with an itinerary and in particular include details where the children or children may be contacted during this time; and
10.2    ensure that the children contact the other parent during this time and ensure that the other parent is able to contact the children during this time in addition to the above.
Shared Time – Further Orders
11That neither party is to be deemed to be in breach of order 4 if either or both of the children seek to and do spend time with the other parent (but not time overnight) whilst that child is living with the other parent, pursuant to Order in 4.
Injunction
12That both parties be restrained from:
12.1   discussing these proceedings and any of the allegations made during the proceedings with the children or in the presence of the children;
12.2   denigrating the other party in the presence of or within the hearing of the children;
12.3   attending or going near the place of residence of the other parent (unless invited to do so by the other parent) other than for the purpose of compliance with these orders, and in the case of the Respondent, for the purpose of his business activities;
12.4   questioning the children about activities occurring at the home of the other parent;
AND that these orders is made without admissions and without prejudice.
Christmas Day
13Unless the parties are unable to agree otherwise, the children are to spend alternate Christmas Eve and part of Christmas Day with one parent commencing at 5:00 pm on Christmas Eve and concluding at about 5:00 pm on Christmas Day and that, so as to give effect to this order:
13.1    for Christmas 2008 the children are to spend this time with the Respondent;
13.2    the parent with whom the children are to spend time with pursuant to these orders is to collect the children from the other parent (if the children are already with that parent, pursuant to these orders) and the parent with whom the children spend time with during this time is to then deliver the children to the other parent at the conclusion of this time if the children, pursuant to these orders, are to then spend time with that other parent.
Parenting Programme
14That the parties attend a parenting programme at dates and times to be arranged by the Independent Child Lawyer and as recommend by the Independent Child Lawyer to enable them to better communicate in relation to parenting issues.
IN THE EVENT OF AN ORDER FOR RELOCATION:
15In the alternative and in the event the Applicant is permitted to relocate to Brisbane, that the parties have joint parental responsibility as provided for in order 3, for the children and that the children spend time with the Respondent.
15.1   on one weekend during school term in Sydney and at the home of the Respondent and that so far as possible that weekend be a long weekend if it occurs during the school term;
15.2   for the whole of each of Easter, Winter and Spring school holidays;
15.3   for one half of the Christmas school holidays, commencing in 2008 on 23 December and concluding 3 weeks thereafter and in 2009 commencing 26 December and concluding 3 weeks thereafter and that these arrangements continue to alternate each year thereafter.
16In order to give effect to order 15 above:
16.1   subject to such arrangements being permitted by the relevant airline that the children travel by air from Brisbane Airport to Sydney Airport as unaccompanied children and that until such arrangement is permitted by the relevant airline, that the Applicant (at her own expense) accompany the children when travelling between Brisbane and Sydney pursuant to these orders;
16.2   the Applicant be responsible for an arrange for the children to travel from her residence to Brisbane Airport at the commencement of the time that the children are to spend with the Respondent and that she collect the children from Brisbane Airport at the conclusion of such time unless she is accompanying the children when travelling pursuant to these orders;
16.3   that the Respondent collect the children from Sydney Airport at the commencement of the period of time that the children are to spend time with him and return the children to Sydney Airport at the conclusion of the period of time that the children are to spend time with him and arrange for the children to board the return flight to Brisbane; and
16.4   that the Applicant be responsible for the payment of the cost of the return airfare between Brisbane and Sydney and that she be responsible to arrange the flight and to send or cause to be sent the airline ticket to the Respondent for the return travel to Brisbane.

The Husband has assistance to care for the children from his parents, the paternal grandfather, born in May 1933 and the paternal grandmother, born in February 1940.

Orders sought by the Independent Children’s Lawyer

An Independent Children’s Lawyer was appointed and at the hearing was represented by counsel.
The Independent Children’s Lawyer sought the following orders:
1.That all previous parenting orders be and hereby are discharged.
2.That the mother have sole parental responsibility for the children, [Y], born […] July 2000, and [L], born […] December 2001 (“the children”).
3.That each party shall have responsibility for the day-to-day care, welfare and development of the children while the children are in their care.
4.That the children live with the mother and in that regard the mother may establish a residence for the children in the metropolitan area of Brisbane, Queensland.
5.That the children spend time with the father as follows:
5.1.   At any time when both parties are living in the same city, whether Sydney or Brisbane, and within 15 kilometres of the children’s school(s):
5.1.1.       In each alternate week, from after school on Thursday until before school on Monday.
5.1.2.For one half of each school term holiday period other than the Christmas holidays being the first half in odd numbered years and the second half in even numbered years.
5.1.3.For two weeks in the Christmas school holiday period being the first two weeks in odd numbered years commencing on the last day of term and the last two weeks in even numbered years concluding on the last Sunday of the holiday period.
5.1.4.For the Greek Orthodox Easter period from after school on the commencing day until 5.00 pm on the concluding day.
5.2.   At any time when the mother is living in Brisbane and the father is living in Sydney:
5.2.1.In the first and third school term holidays for ten consecutive days and failing agreement for the ten days concluding on the last Saturday of the holiday period as the tenth day.
5.2.2.For the Greek Orthodox Easter period from 5.00 pm on the commencing day until 5.00 pm on the concluding day.
5.2.3.For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years.
5.2.4.For such additional time as the father wishes to spend with the children in Brisbane for up to one week during each school term PROVIDED THAT the father gives 14 days notice in writing to the mother of the proposed period and the mother responds in writing within 48 hours confirming or advising of commitments of the children during the proposed period which cannot be changed AND for the purposes of this order the father shall be responsible for ensuring that the children attend school as required and also attend any extra-curricular activities in which they are normally engaged.
5.2.5.For one weekend during each school term in Sydney PROVIDED THAT the father gives the mother not less than 14 days notice in writing of the proposed weekend and the mother confirms in writing within 48 hours.
5.3.   That for the purposes of Orders 5.2.1 – 5.2.4, the children shall travel between Brisbane and Sydney by air and the father shall be responsible for booking and paying for flights from Brisbane to Sydney and the mother shall be responsible for booking and paying for flights from Sydney to Brisbane.
5.4.   The father shall notify the mother in writing of the flight details for any trip by the children from Brisbane to Sydney pursuant to these Orders as soon as tickets are paid for but in any event not less than 28 days before the date of travel, and the mother shall within 14 days of receiving flight details from the father notify the father in writing of the flight details for the return trip by the children from Sydney to Brisbane.
5.5.   The parties or either of them may accompany the children on any flight at his or her own expense.
6.That the children have liberal telephone communication with the father.
7.The father shall ensure that the children have telephone communication with the mother on at least two occasions during each school holiday period when they are with him.
8.That each party shall keep the other advised of their current residential address, contact telephone number(s) and email address.
9.The mother shall keep the father advised of the school(s) which the children are attending and shall authorise such school(s) to forward to the father copies of the children’s school reports, order forms for school photos and other information concerning significant events in relation to the children’s education and welfare.
10.Each party shall immediately advise the other of any medical emergency, significant illness or hospitalisation involving either of the children.
11.That each party be and hereby is restrained from the following
11.1. Denigrating the other party or speaking about the other party in a critical or derogatory manner to the children or in their presence or hearing, or allowing any other person to do so.
11.2. Discussing these proceedings or any of the allegations raised in these proceedings with the children or in their presence or hearing.
12.That within 21 days, the father shall pay to the Legal Aid Commission of NSW the total sum of $8,298.40 being the costs of the Independent Children’s Lawyer in the amount of $7,198.40 and the father’s share of Dr [W’s] court attendance fees in the amount of $1,100.00.
13.That within 21 days the mother shall pay to the Legal Aid Commission of NSW the sum of $1,100.00 being her share of Dr [W’s] court attendance fees.
In final submissions counsel for the Mother informed me that the Mother agreed with all of the orders sought by the Independent Children’s Lawyer.

Issues

The issues are parental responsibility, residence, relocation by the Mother with the children to Queensland and parenting arrangements in terms of time spent.
There are allegations by the Mother of serious abusive conduct by the Father of both the Mother and the children.
There are allegations by the Father of neglect by the Mother of the children and behaviour by her which could represent a risk to their health and safety.
I had the benefit of a Family Report and the Family Consultant said that the issues identified during the assessment were:
·No parental communication, the hostile parental relationship and the impact of this on the children;
·The Father’s ability to support and facilitate the children’s ongoing relationship with the Mother and maternal family;
·The risk, if any, posed to the Mother and the children by the Father;
·Possible mental health concerns of the Father;
·Possible relocation of the Mother and the children to Brisbane.
The possible outcomes include:
1.The children reside with the Mother in Sydney and spend time with the Father in Sydney.
2.The children reside with the Mother in Brisbane and spend time with the Father in Brisbane.
3.The children reside with the Mother in Brisbane and spend time with the Father in Sydney.
4.The children reside with the Father in Sydney and spend time with the Mother in Brisbane.
The case was largely conducted on the basis that I had to deal with possible outcomes one and three. However, the possible outcome two was also addressed.

Evidence

The amount of evidence I had was voluminous. The Mother’s affidavit comprised 202 pages and the Father’s affidavit comprised 173 pages. In her affidavit of 20 June 2008 the Mother referred to affidavits she affirmed on 16 June 2007, 30 June 2007, 7 July 2007, 21 May 2008 and 27 May 2008, although when I identified these during the hearing I was told they were not read. I had not made an order for the filing of affidavits because unfortunately, through no fault of the parties, I was unavailable after the Family Report was prepared. The matter then came before Moore J who took the view that the conclusion of the hearing should be expedited. Notwithstanding the provisions of Div 12A of Pt VII of the Family Law Act 1975 (Cth) a very significant portion of the evidence of each of the Father and the Mother, particularly that of the Father was inadmissible. The Father’s affidavit of evidence in chief, prime facie, appeared to be significantly based on type written notes which he provided to the Family Consultant (Exhibit O).
I also had a number of affidavits from lay witnesses which I will identify.
The Family Report was released initially to the Independent Children’s Lawyer only but on 5 May 2008 Moore J released the report to the parties and ordered a psychiatric assessment of each of them.
I also had the benefit of other expert evidence. I had the records of Dr R, Psychiatrist, whom the Father has consulted since January 2007. I had a report by Associate Professor Q, commissioned by the Mother with regard to her own mental health. I had reports in respect of both parties by Dr W, Psychiatrist.

PARENTING-RELEVANT PRINCIPLES

General

For a discussion of the relevant provisions of Pt VII of the Family Law Act see Goode and Goode (2006) FLC 93-286.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Good and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child. First, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-755. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Courts should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski v Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.

In conclusion, as Brown J said in Mazorski v Albright (supra) at 523 the Act places far more emphasis on the importance of substantial parental involvement in their children’s lives. Her Honour said, with which I agree, at 524:
[15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

Relocation

There is a great deal of case law dealing with the approach to be taken in cases when one of the proposals for the parenting of children is that the primary residence of the children be changed: AMS v AIF: AIF v AMS (1999) FLC 92-852; A v A: Relocation Approach (2000) FLC 93-035; H v L (2000) FLC 93-036; U v U (2002) FLC 93-112 and Bolitho v Cohen (2005) FLC 93-224. These are called relocation cases and have proven to be very difficult to deal with. The change of residence proposed may be intrastate, interstate or overseas.
One commentator has suggested that since the commencement of the Family Law (Shared Parental Responsibility) Act 2006 (Cth) the approach to such cases may have to be updated because of the changes made to the legislation: see CCH Australian Family Law and Practice Vol 3 at [80-300].
The issue was dealt with by Dessau J in M and S (2007) FLC 93-313 and her Honour concluded that it was appropriate to follow the pathway as outlined in Goode and Goode (supra) and that there is nothing in the legislation which explicitly alters the previous approach except that there is a legislative intent in favour of substantial involvement of both parents. In Godfrey and Sanders [2007] FamCA 102 Kay J adopted what was said by Dessau J in M and S.
In Bale v Jenkins [2007] FamCA 809 (Full Court), which was a relocation case where the relevant orders were made after the commencement of the amendments made by the Family Law (Shared Parental Responsibility) Act, Finn J said that the appeal was not a suitable vehicle for any significant statement of principle from the Full Court. Then in Taylor and Barker (2007) 37 Fam LR 461 (Full Court) Bryant CJ and Finn J said that there was considerable discussion as to the appropriate order in which the relevant provisions of Pt VII namely s 60CC and s 65DAA should be considered in determining a case where there was a relocation proposal. However for my part I cannot discern from my reading of the judgment any significant statement of principle.
In my opinion the principles that I should continue to apply are set out in CCH Australian Family Law and Practice at [16-595] as follows:
1.The best interests of the child are the paramount but not sole consideration.
2The party seeking to move the residence of the child is not required to demonstrate compelling reasons for the proposed relocation.
3 I must evaluate the competing proposals of the parties.
4 I am not bound by the proposals of the parties.
5I cannot determine the issues in a way that separates the issue of relocation from that of the best interests of the child. There is not a separate issue as to whether the relocation should be permitted.
6In evaluating the proposals I must weigh the evidence and submissions as to how each proposal would be in the best interests of the child.
7I must follow the legislative directions in s 60CA and 60CC.
8The object and principles of s 60B provide guidance to my obligation to consider the matters in s 60CC.
9I should also take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
There may then be issues as to the appropriate order in which the relevant provisions of Pt VII are considered in determining a case where there is a relocation proposal. As the majority pointed out in Taylor and Barker (supra) the legislation gives no express direction or guidance. In that case the learned magistrate whose decision was the subject of the appeal appears to have dealt with the advantages and disadvantages of the various proposals when considering the matters in s 65DAA and the majority suggested that this was an “entirely appropriate approach”. For my part I have some difficulty with this.
In any event, obviously the various proposals should be considered when dealing with each of the primary and additional considerations set out in s 60CC having regard to the objects of Pt VII and principles underlying the objects. Then having dealt with the relevant considerations in s 60CC a determination is made as to which proposal is in the best interests of the child. It is at this point that it may be determined that the relocation proposal is in the best interests of the child. Then it is necessary to consider what parenting order to make and it is at this point that consideration has to be given to whether the presumption of equal shared parental responsibility applies or has been rebutted. If the presumption of equal shared parental responsibility does apply then consideration has to be given to the equal or substantial and significant time provisions in s 65DAA. In other words it is at the point of dealing with the matters in s 60CC that the advantages and disadvantages of the various proposals are dealt with and a decision then made as to what is in the best interests of the child.
However it may be that there is another approach. In Taylor and Barker (supra) Bryant CJ and Finn J said at pa 62:
[60] …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
…
[62] …However, given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (“primary consideration”) and subs (3) (“additional considerations”) of that section it would seem only logical that the Court make findings regarding the matters contained in those sub sections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
It may be that what is being suggested is that the Court must consider the primary and additional considerations and make findings regarding those matters in the context of consideration and evaluation of the proposals including the relocation proposal. However the Court should not then make a finding as to what proposal is in the best interests of the child until after consideration of the presumption of equal shared parental responsibility and depending on this finding until after consideration of the equal or substantial and significant time provisions.

BACKGROUND FACTS

At the outset I record that overall where there is a conflict between the evidence of the Mother and that of the Father, I prefer the evidence of the Mother.
The Father was born in Greece and the Mother was born in Australia. The Mother lived in Brisbane.
In 1986 the Mother commenced to live Sydney. The Mother was 17 years old.
In 1992 the Father returned to Australia after having lived for three years in Greece, including serving several months in the Greek Army.
In January 1993 the parties met.
When the parties first met the Father was living with his parents in a two bedroom house in M. The Father did not have any assets or savings as he had recently returned from living overseas.
Very early in the relationship the Father questioned the Mother about how many men she had slept with and he explained to her that she needed to tell him everything about herself so that the parties could have a “truly special relationship”. The Mother believed the Father was genuine and that she attempted to answer his questions as honestly as she could. However the Father exhibited other behaviour towards the Mother early in the relationship which became habitual on his part and thereafter continued throughout the marriage. This pattern of behaviour by the Father included exhibiting unfounded jealously and mistrust which resulted in the Father levelling accusations at the Mother about attempting to attract other men or flirting with other men. The Mother thought the Father’s behaviour and attitude would cease once he realised that the Mother was not interested in any other men and that he could trust her. The Mother gave other evidence in relation to the attitude of the Father which I need not repeat.
The Father provided the Family Consultant with a typed document (Exhibit O) and it is instructive to read this document. I will come back to this document, however the Father admitted that it was prepared as part of what was described as a “dirt finding” exercise. The document is titled “How Life Unfolds” and at the beginning it commences “When I met [the mother] she was a hussy from Kings Cross…” and so it goes on.
In the document referred to in the preceding paragraph the Father also stated the following:
Her flippant ways and flirtatious attitude attracted much attention. Being more mature, more experienced and certainly more respected; I undertook the task to mentor [the mother] to dignity; respect and subject of admiration. To think about her flirtatious attitude; to consider not wearing, revealing clothing in a corporate environment. I was correct, she achieved all that plus more, or did she? (I can say that now since I now have the witnesses to elaborate on her disgraceful behaviour in public and in private life).
The Mother contends that in 1993 the Father exhibited violent tendencies. On one occasion the Father slapped the Mother with an open hand across the ear. The parties had an argument about what the Mother described as a baseless accusation of the Father and it was during the argument that he assaulted her. The Mother again thought the Father’s behaviour would change once he realised that his fears about the Mother were groundless.
The Mother recalled another occasion when the parties had an argument. During a conversation the Father demanded to know very personal details about men the Mother had previous relationships with and he threatened that he could easily break her arm. On one occasion he told the Mother that he had broken his last girlfriends arm after an argument. On another occasion he told the Mother that he had an air rifle at his parent’s house and that at one time he pointed it at his girlfriends face.
Another incident occurred when the Mother returned to her apartment and the Father was waiting for her holding one of her personal diaries. The Father appeared angry and confessed that he had read a few of the diaries. The Mother kept the diaries in a suitcase under her bed.
In August 1993 the parties commenced living together in N.
In about April 1994 the Mother obtained employment as a secretary at a business in a suburb of Sydney which later relocated to the central business district of Sydney.
In August 1994 the parties were married.
In 1995 the parties moved to K in southern Sydney.
On 3 June 1996 the Mother commenced paid employment as a secretary for an insurance company in Sydney.
The Mother contends that in about mid-1996 the Father commenced employment with Telstra as a contractor.
In September 1996 the parties purchased a property in M for a price of $215,000 and commenced to live in this property. The parties subsequently carried out extensive renovations to the home in M. The Father undertook considerable physical work associated with the renovations.
In July/August 1998 the parties had a holiday in Greece.
On 26 June 2000 the Mother commenced 12 months maternity leave.
In July 2000 the child Y was born.
On 19 March 2001 the Mother returned to work part-time for three days per week for the insurance company.
In December 2001 the Mother took maternity leave from the insurance company.
The Mother admitted that during her pregnancy with the child L she was suffering from depression.
Associate Professor Q gave evidence that the Mother reported that she suffered some form of depression after the birth of both children, particularly after the birth of the second child and in or around 2004 she went to see Dr S due to depression she was experiencing. She stated that Dr S may have prescribed Xanax but the Mother was not sure about this.
In December 2001 the child L was born.
In July 2002 the Mother returned to paid employment with the insurance company part-time for three days per week. The paternal grandmother looked after both children for two days per week and the child L for the third day whilst the child Y attended pre-school in Sydney for one day. It was nearby to where the Mother worked in Sydney.
In October 2002 the child Y commenced to attend pre-school for two days a week.
In January 2003 the Mother increased her employment with the insurance company to four days per week. The paternal grandmother cared for both children for two days a week and the child L on her own for another two full days.
In October 2003 the Mother decreased her employment with the insurance company to three days per week.
In February 2005 the Mother increased her employment with the insurance company to four days per week. The children attended pre-school three days per week and were looked after by the paternal grandmother for one day per week.
In October 2005 the Father accused the Mother of having an affair with her employer. The Father tried to choke the Mother. This was the first incident of physical assault by the Father of the Mother after the marriage. The assault took place in the presence of the child L.
In November 2005 the Mother’s salary from her employment with the insurance company increased and as well she received a bonus. The Mother contends that the Father became increasingly suspicious whenever she received a pay rise or a bonus. The Mother gave evidence about an occasion when the parties had an argument after the Mother received a pay rise from her employment and the Father stated that the Mother must be sleeping “with your boss”. The Father suggested that the Mother only received a pay rise or bonus from her employment “in return for sexual favours”.
In February 2006 the Mother commenced full-time employment with the insurance company.
In early 2006 the child Y commenced attending kindergarten at F Public School. The child L was at pre-school for three days per week and cared for by the paternal grandmother for two days per week.
The child Y attended before school care each day and after school care on Wednesday, Thursdays and Fridays. On Mondays she was collected by the paternal grandmother and on Tuesdays by the Mother. The child L was attending a pre-school called M Preschool on Wednesdays, Thursdays and Fridays and was cared for by the paternal grandmother on Monday and Tuesday. The Mother would usually drop the child L off at M Preschool and then the child Y at F School Before School Care. The Mother was working from 9:00 am to 5:00 pm at the insurance company except on Tuesday. In the afternoon the Mother collected both children on Mondays and Tuesdays from the home of the paternal grandparents and on the other days directly from school. The Father was working at Telstra and his hours of work were from 7:00 am to 4:00 pm, although he had a rostered day off work every second Friday. During the school holidays the child Y mainly attended holiday care.
On 13 April 2006 the Father was made redundant from his employment at Telstra. Thereafter the Father remained unemployed for six months. In May 2006 he received a redundancy payout of $60,998.
An incident occurred on 31 August 2006 when the Mother attended the insurance company’s annual awards night. It was around this time that the Mother started to resent what she described as the control the Father seemed to inflict on her. She recalls that she felt that she was tired of being scrutinised, that her every conversation was dissected, that she was asked why she wore her hair different one day and too much blush the next. She gave other evidence which I need not repeat. The Father started to accuse the Mother of having a mid-life crisis and started researching this on the internet. It was around mid-2006 that the Mother started to contemplate a divorce from the Father.
On 20 September 2006 the Mother attended a conference on the Gold Coast associated with her employment with the insurance company. The Father and the children accompanied the Mother. The Mother gave extensive evidence about what happened at the conference which I need not repeat. The Father also gave extensive evidence about what he contends happened.
On 21 September 2006 after an argument with the Father, he slapped the Mother on the face with an open hand.The Father flew back to Sydney leaving the Mother and the children on the Gold Coast. The Mother’s employer told her the Father had called him accusing him for the deterioration of his marriage. The Father denied that he assaulted the Mother.
The Mother and the children returned to Sydney on Sunday 24 September 2006. The Mother then prepared a document which she left for the Father to read. She said she knew the Father would be devastated and did not want to be in the home when he read the document. The Father telephoned the Mother and he was crying and wanted to discuss it.
At some point during 2006 the Father was suffering from depression. He was prescribed Coversyl and Aurorix for depression and Stilnox for insomnia.
On 25 September 2006 the Mother told the Father that she wanted to separate.
The Mother gave evidence, which I need not repeat in this judgment, about an incident that occurred in either October or November 2006.
In October 2006 the Mother received a letter from the Father titled “through my eyes” a copy of which she annexed to her affidavit. After reading the letter the Mother decided that she would try and give the marriage another go.
On 6 November 2006 O Pty Ltd was registered. The Father uses this company to conduct his business.
On 7 November 2006 the Mother attended a musical concert arranged through her employment with the insurance company. When she returned home the Father accused her of having an affair. The parties had “terrible arguments” about her attending the concert and the Mother recalls an incident one evening before the concert when the Father was able to access her work emails from the computer at home. The Mother then arranged for the information technology department of the insurance company to reset her password. The Father told the Mother that he only looked at her emails because he wanted to see what was sent regarding the concert.

On 8 November 2006 the Mother submitted an after school care form to change the before and after school care arrangements for the children to five days a week. She then applied to take some leave from her employment and have some time to think about the marriage. Between 9 and 15 November 2006 the Mother took leave from her employment.
On 10 November 2006, at the request of the Father, the parties attended a tattooist together. The Mother gave evidence explaining why she accompanied the Father to see a tattooist. Despite her reservations about whether the marriage could continue the Mother made a booking for the parties to see a marriage counsellor.
On 11 November 2006 the Father severely physically assaulted the Mother in the presence of the children, by continually punching her. The Mother gave extensive evidence about what happened on 11 November 2006.
The assault was witnessed by Ms SY, a neighbour, and the Father said words to the effect “I’ll fucking kill her if she leaves me”. Ms SY called the police and ambulance. The Mother was treated by an ambulance officer on the scene but did not attend hospital. The Police took the Mother and the children to M Police Station to make a statement. The Father was arrested and charged with assault occasioning actual bodily harm and common assault. The paternal aunt stayed with the Mother and the children that night in the matrimonial home.
On 11 November 2006, immediately after the assault of the Mother, two reports were made to the Department of Community Services, including one by the Ambulance Service of New South Wales due to concerns that the child L was hit on the head by the Father during his assault of the Mother. The matter was not investigated.
The Family Consultant said:
[The father] vehemently denies the mother’s allegations of emotional and psychological abuse throughout the marriage. [The father] described the assault on 11 November 2006 as a “one off”. He explained that it came about because the mother “provoked” him and intentionally “set [him] up”. (emphasis mine) According to him, his actions at the time were “defensive” and an attempt to stop her placing herself or the children in harms way. Despite believing that [the children] would have found witnessing this incident “traumatic”, [the father] does not believe that there will be any long term effects on them. (emphasis mine)
I am not going to include in this judgment what is in the record of interview the Father gave to the Police. After consideration of all the evidence before me I have no doubt that the behaviour of the Father was not provoked by the Mother. It was a vicious and unprovoked assault. The Father pleaded guilty to a serious charge of assault occasioning bodily harm.
What also concerns me is that the Father appears to always blame someone else for his difficulties and when he gets into trouble. As seen, the Father contends that his assault of the Mother was provoked by her. The Father contends that his preparation of the “dirt” material was the fault of his then lawyers. The Father wrote a very abusive letter to the Independent Child Lawyer. There are other examples that I need not repeat.
On more than one occasion during cross-examination in relation to the events of 11 November 2006 the Father referred to having “stood his ground”. In his dirt finding notes (Exhibit O) he recorded the following:
On the night in question due to growing uncertainty in the future, in my drunkenness I found the courage to stand my ground refusing to be pushed around anymore and demanded to know where I stood. In her brazen drunkenness, she tried to push me away as in her usual manner at which I did not budge (my first mistake). She automatically went on an attack at which I tried to defend myself. Conceding defeat in a hysterical state, she ran out of the house I tried to stop her from leading the children into harms way. I desperately wanted to stop her not the children from leaving because there love and concern for their mother would distraught them further (my second mistake). When the next door neighbours showed up my resentment for them (the neighbours) as [the mother] and I had a long running history of resentment for them to the point of selling the house and moving away, I used resentful language aimed towards them and certainly not towards the mother of my children (my third and biggest mistake).
The Father appears to have resentment towards a number of persons including his own brother who he currently has no contact with. I understand the relationship between the Father and his brother ceased because after separation the Mother maintained an association with the Father’s brother and his family and she did so for reasons which included that the close relationship between the children and their cousins.
On 12 November 2006 the maternal grandmother arrived from Queensland.
On 12 November 2006 the Mother attended a Medical Centre in M for treatment.
On 13 November 2006 an apprehended violence order was made in the Local Court at Newton for the protection of the Mother for a period of 12 months.
Following the separation, the Father resided with his parents in their home in M. He moved back into the matrimonial home in November 2007 upon the Mother and the children vacating the property. The Family Consultant said that the Father indicated that he would like to remain living in the former matrimonial home, although he said that this is entirely dependent on the financial and property settlement. The Family Consultant said the Father presented as hopeful that he would be able to remain living in Sydney and in close proximity to his own family, nevertheless, on the day of family report interviews, he was unable to guarantee this.
On 20 November 2006 the Mother attended upon a Domestic Violence Specialist Counsellor.
The child Y’s school teacher informed the Mother that at school the child had talked about the assault and became upset. The Mother made arrangements for the child Y to see the School Counsellor and on 23 November 2006 the child Y saw the School Counsellor. The School Counsellor informed the Mother that the child Y was frightened the Father would assault the Mother again and was interested in hearing about her parents not living together.
On 27 November 2006 the Mother returned to work.
On 5 December 2006 the Father informed the Mother he did not want too look after the children on a regular basis as he was busy working and his mother was busy.
The Mother arranged for the paternal grandparents at their residence to see the children on 23 December 2006. Whilst there the Mother saw the Father and noticed that his hands were trembling. He said that he had just got home. She also noticed a bag with white substance in it lying on the floor. During cross examination, in a different context, the Father when explaining how he felt said something about his hands trembling and being unable to hold anything.
The Mother spent Christmas with the children at her parents’ home in Queensland.
The Father purchased mobile phones for each child as Christmas presents. The Father buys presents for the children, notwithstanding that he contends that he is in a difficult financial position. In fact in cross-examination he admitted that he may have been over indulgent.
On 1 January 2007 the Mother returned from Queensland.
In January 2007 the Father told the Mother to put the N Police number on her speed dial in her mobile telephone and further that she had to be careful about “…putting all those details on the internet. I’ve seen your page on ‘Red Hot Pie’”. The Mother did not know what the Father was talking about and the Father said that the Mother had to be very careful about meeting people on the internet and the Mother said that she has never done so. The Mother denies she was internet dating. The Mother has never posted a personal profile on the internet and has never met any person via the internet and does not think that this is an appropriate method of meeting people.
On 9 January 2007 the Father first attended upon Dr R, Psychiatrist who prepared a report dated 17 January 2007. The report was undertaken in response to a request by the Father’s lawyers acting for him in the assault matter, in advance of the sentencing hearing in the Local Court on 20 March 2007. The Father attended upon Dr R on 9 January 2007.
The Father stated to Dr R that he understood the purpose of his visit. He also said he was feeling unwell because he was “not medicated’ but that he did not want to be medicated because he had been addicted “to that stuff” before. The Father also commented on the presence of depression, which he characterised as feeling helpless, lost and experiencing “total confusion” and having trouble concentrating. He stated this mood would come and go but that it might last between 15 minutes to one hour and that he worked seven days per week to avoid depression. Dr R noted that there had been a history of use of anti-depressants with no effect.
The Father stated to Dr R that he had problems with feeling nervous, tense, anxious and depressed and stated that he would characterise himself as someone suffering from depression. The Father told Dr R that he had not ever attended upon any medical practitioner or otherwise in relation to treatment of any nervous condition. He reported taking antidepressants in the past and being on an anti hypertensive, Coversyl, 5 mg per day.
The Father told Dr R that he smoked up to 50 cigarettes per day and described minimal alcohol consumption, involving up to two wines or one beer per week as his usual consumption.
Dr R was interested to find out if the Father suffered from reactive neurosis and heightened inappropriate anxiety as part of a reactive state. The Father reported symptoms in relation to this being difficulty with memory and concentration; anxiety attacks involving either a need for air or hyperventilation; cardiac symptoms and a degree of introspection in regard to cardiac function and awareness of the heartbeat and some weight loss. Due to these symptoms Dr R assessed the Father as suffering from heightened anxiety.
In the interview with Dr R the Father described the Mother as alcoholic and having suffered from post-natal depression after the birth of the children. He commented that she was having a ‘mid-life crisis’ and was becoming involved in clothes, exercise machines, botox injections and teeth whitening.
In the interview with Dr R the Father referred to the Mother opening a secret bank account and also threatening to leave him on a number of occasions. He spoke about sadness at loosing a pet and also described times when he was depressed, hiding under the house where the dog used to live and crying and that the children heard him and went in search for him. He also mentioned that he had told the children he was depressed.
In the interview with Dr R the Father also made some comments as to the cultural differences between himself and the Mother, stating that he wanted to be with his family whereas she wanted to socialise. The Father spoke of the Mother “dumping” the children.
Dr R suggested an MRI of the brain in relation to the Father’s reports of mood fluctuations and this was undertaken in early January 2007. Dr R noted there was a minor degree of atrophy and some loss of brain substance in the subsequent report. He stated that the cause was obscure and that further investigations were required, and pathology testing to ensure there was no early onset of dementia. Dr R considered that a trial of lithium would be appropriate in light of the Father’s rapidly changing moods. Dr R reported that the MRI showed cerebral atrophy that may be connected with poor impulse control and that a neurological review was recommended. He also stated that the possibility of a bipolar disorder would need to be considered as a differential diagnosis.
In summary, Dr R noted that the physical assault of the Mother was an episode of poor impulse control possibly compounded by mild alcohol consumption and due to the MRI there may be a physical organic basis for this loss of control. He stated that a definitive diagnosis could not be made but that cerebral atrophy “in conjunction with, on the grounds of probability, a mood disorder compounded by a degree of alcohol ingestion, combined to produce a circumstance of poor impulse control, resulting in the offences for which the Father faced Court”.
Dr R also stated that it would be his hope that with appropriate management and investigations, the Father’s mood would be able to be controlled and his propensity to react in a violent manner would be substantially reduced.
On 23 January 2007 the hearing in the Local Court at Newtown was adjourned on the application of the Father’s lawyer. When the Mother ascertained that the hearing was adjourned she telephoned the Father and they had a conversation. The Father said words to the effect that the Mother had attacked him first, that he was only trying to defend himself and he could have easily killed her if he had wanted to. The Father also told the Mother that he was very angry with a person called D for looking after the children without asking him and that he disowned her and she was not his niece any more and that a person called V was no longer welcome in his home.
In January 2007 the Mother instituted informal contact visits between the paternal grandparents and the children. At the time the Father was living with his parents.
On 27 January 2007 the Mother took the children to visit the paternal grandparents at their home and she saw the Father and they had a conversation. The Father told the Mother that he was not sure whether he proposed to continue staying with his parents because he had met a girl and might be moving in with her. He also said that she was a “good girl” and had only “slept with four men”. A few days later the child Y spoke to the Mother and said that the Father said that he was going to get married and have a baby.
During the conversation the parties had on 27 January 2007 the Father also asked the Mother if she had been visited by the Police in order to review her police statement and that she should think very carefully about what happened and alter the statement. The Mother said that later on 30 January 2007 the Police came to her home at M unannounced and asked her to review the statements and showed her an amended version of the statement of the Father which he would not sign.
The Mother gave evidence about a telephone conversation she overheard the Father have with the child Y on 30 January 2007 and the Father asked the child where she had been the previous night. The child said she could not remember. The Father asked the child why she could not remember and the child said she did not know. The Father then asked the child whether the Mother was letting her say where she was and that she was to ring him back when she could remember.
In about February 2007 the Father asked the Mother whether he could have the computer hard drives which he needed to back up for his work. The Mother was content with this as she was using a laptop computer given to her by her employer. It took the Mother some time to save all the documents and photographs off the hard drive onto disks and she took particular care to delete photographs she had taken of herself after the assault. Sometime after that the child L without warning said to the Mother that the Father had shown her photographs of the Mother “standing in the little toilet with a black eye”. The Mother was concerned about what the child said for a number of reasons including how the Father was able to locate the photograph given that she had deleted it with other photographs from the hard drive of the computer.
The child L commenced to attend F Public School on 2 February 2007. The Mother asked the paternal grandmother if she would like to accompany the Mother and the child on the first day of school and the Mother collected the paternal grandmother from her home and they drove to the school.
The Mother gave evidence about an incident that occurred on 3 and 4 February 2007 in a telephone conversation the Father had with the child Y. I am not going to repeat all of what the Mother said, however she then had a telephone conversation with the Father and told him that he was to stop “grilling” the children. The Mother told the children that she was going to take their mobile phones and she did not want the children to use them anymore and the child Y became upset and said “Daddy only asks us questions because he cares”.
On 7 February 2007 the Father sent a text message to the Mother on her mobile phone and among other things told her that she could have the children.
The Mother gave evidence about a conversation which she overheard on 7 February 2007 between the Father and the child Y during which the Father asked the child if she had told the Mother “our secret” and the child said “no”. The Father said “good work” and further “so you still want to live with Daddy?” and the child said “yes”.
On 19 February 2007 the Mother arranged a meeting with the Principal of the F Public School for the purposes of seeking advice about the possibility of relocating to Brisbane and whether there were any forms or interviews that she needed to attend to if she did move.
For a period of several weeks in February 2007 after the Mother ceased the ad hoc arrangements with the paternal grandparents and stopped the children from using their mobile telephones, she did not hear from the Father.
On 3 March 2007 the parties entered into an informal agreement whereby the children had contact with the Father every third Saturday and Sunday from 11:00 am to 7:00 pm. The Mother delivered the children to the home of the paternal grandparents at the commencement of each visit and the paternal grandparents delivered the children to the matrimonial home at the conclusion of each visit. The Mother also agreed for telephone contact between the Father and the children each Wednesday evening between 6:30 pm and 7:30 pm for a maximum of twenty minutes with the Father initiating the contact. Further the Mother also agreed to return the mobile telephones to the children as they were a gift from the Father.
There was put in evidence documents produced by the Local Court of New South Wales at Newtown in relation to the charges brought against the Father in the matter of Police v [the father] and also the apprehended domestic violence order proceedings against the Father in relation to the same incident, which lists the Mother as the relevant protected person.
The agreed-to facts state that the Father punched the Mother in the head repeatedly whilst she was sitting at the computer desk. Outside the front of the premises, a further struggle ensued between the Mother and Father and two witnesses come to the scene and aided the Mother. Police were then called who placed the Father under arrest and cautioned him. The Mother sustained heavy bruising to the left hand side of her head, lumps to the head and a blood filled right eye and scratches to the neck, face, head and upper palate.
In her own report to the Police, the Mother gave a further account of the Father at one point hitting the child L, who the Mother was holding whilst the Father was punching the Mother. The Father also attempted to hold the Mother in a headlock once outside the house, and grabbed her by her upper palette, putting his hand in her mouth and attempting to restrain her.
On 20 March 2007, before the Local Court at Newtown, the charge of common assault was dismissed against the Father and he pleaded guilty to the charge of assault occasioning bodily harm. He was sentenced on that day and given a good behaviour bond for 12 months for the charge of assault occasioning bodily harm. A condition of that bond was that the Father accept the supervision and guidance of the New South Wales Probation Service for such period as that service deemed sufficient and obey all reasonable directions for counselling, education development and drug and alcohol rehabilitation.

I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of each child, including emotional and intellectual needs. This is a very important matter.
I am of the opinion that the Mother is able to adequately provide for the needs of each child, including emotional and intellectual needs. The Mother was an impressive witness. There is an abundance of evidence that demonstrates her ability to care for the children. The Mother demonstrated a very thoughtful, considerate and child focussed approach to the issues.
Notwithstanding what was in her affidavit the paternal grandmother in cross-examination readily admitted the capacity of the Mother to care for the children. Further, notwithstanding what the Father has done to the Mother, and said about her, including as recently as his June 2008 affidavit, he volunteered the following when I suggested to him that an impression that could be gained from all his material is that he has an infatuation about the Mother’s association with other men:
Not exactly your Honour, what I was concerned about was the safety of my children from what I heard from neighbours about men coming in and out of the house and there was a period of time there which absolutely destroyed me because it was just rumours at that point. Nothing came to light until I moved back into the neighbourhood and all the neighbours approached me and said hey this is happening and that’s happening and I rang up DoCS, I wanted to find out what is going on in order to investigate it, that was that period of time. Now at this point in time I was quite satisfied that, you know, my children have been safe, all my concerns have been alleviated I don’t have any issues. The children are happy in the environment of mum (emphasis added). What else can I ask for I mean she stopped drinking in front of the children, I spent hundreds of thousands of dollars maybe to do that I don’t know. But the children have benefited from that. If I have to do it again I will do it again, all I’m concerned about and was is the welfare of this children. I think we’ve come a long way your honour.
Counsel for the Independent Children’s Lawyer submitted that I could have confidence the Mother will enrol the children in a suitable program to assist them and also seek professional assistance for herself. I accept that submission.
If the Mother resided in Brisbane she would have the opportunity of support from members of the maternal family. Dr W even acknowledged that the Mother was likely to receive more psychological and probably practical support if she relocated to Queensland.
On behalf of the Independent Children’s Lawyer it was submitted that there are a number of positives for the children if they resided with the Mother in Brisbane. The Mother would have the support of members of the maternal family and other friendships. Evidence was given by the Mother’s sister-in-law and she was also cross-examined. Counsel for the Independent Children’s Lawyer described the Mother’s sister-in-law as impressive and demonstrated a genuine willingness to assist with the care of the children. I accept these submissions.
The Mother has incurred legal costs of an estimated $46,318.34 in respect of which she has paid $24,722.34. Thus she has to pay $21,596. The Mother also owes $46,714 to her parents. The Mother would like to buy accommodation and she anticipates that she could borrow about $200,000. Her current salary is $1,718 after tax per fortnight. The Mother said that with her property settlement she would have a better capacity to purchase accommodation in Brisbane than she would in Sydney and I accept her evidence. Further, the Mother does not envisage any difficulties obtaining employment and has already undertaken investigation of the opportunities.
In summary, I am of the view that the Mother’s ability to care for the needs of the children would be enhanced if she resided in Brisbane.
As to the Father, I have reservations about his capacity to provide for the physical needs of each child.
In his affidavit of evidence in chief the Father said that his taxable income for the year ended 30 June 2007 was $35,778. He also said that for the year ended 30 June 2007 O Pty Ltd had a loss of $634. I assume that the Father’s sole source of income was a salary from O Pty Ltd. The Father also said that his weekly earnings average $2,000 and $3,000 gross. The Father swore a Financial Statement on 26 July 2007 and in this statement he gave evidence that he had no salary or wage income but an income from his business of $970 per week. At the time he was living with his parents. As to his personal expenditure the Father contended it was a total of $1,750. As a result of a request I made certain documents were produced and I understand they that the Father he may have a personal taxable income of about $60,000 (being $1,259 per week) for the year ended 30 June 2008. This is calculated having regard to the gross income of O Pty Ltd and the Husband’s estimate of the percentage of such income to pay business expenses.
In his affidavit of evidence in chief, and in answer to some questions I asked, the Father gave evidence of a number of unsecured liabilities being $65,000 to Impact Capital, an ANZ Bank overdraft for $15,000, a business credit card debt of $10,000 and a personal credit card debt of $10,000. He has a personal tax debt for about $4,500 in respect of which he makes payments of $712 per month. He has outstanding legal costs of $5,984.33. I note that the Father has billed costs and disbursements of $98,923.23 which may not include the costs of the hearing before me. As well as a result of the property settlement order the Father has to pay to the Mother within 42 days from 25 July 2008 the sum of $256,290. If the amount is not paid then the former matrimonial home is to be sold and the Mother is to receive $256,290 plus one half of a price above $730,000. The Father has to assume in the event that the former matrimonial home is not sold, the sole responsibility for the mortgage debt secured on the title of the property and I was informed and accept that the debt currently secured is $224,209. In summary, the Father may have secured and unsecured debts of a total of about $600,000. I have not included any amounts owed for the costs of the Independent Children’s Lawyer.
The ability of the Father to meet all of the above debts, in my view, is remote and the former matrimonial home will probably have to be sold. The Father, according to what he told others including Dr R and Dr W, has a history of financial difficulties. After separation he was unable to pay the mortgage payments and the reduced amount of child support.
In the event that the former matrimonial home is sold then the Father will not be able to live with his parents and the two children as his parent’s home only has two bedrooms.
There are then the emotional needs of each child.
I accept that the Father has relentlessly questioned the children about the Mother, the time they spend with her and the home environment she provides for them. I have no doubt he has placed pressure on the children to answer his questions and they have become more focused on adult things instead of more age appropriate activities.
I am of the opinion that the Father has sought to denigrate and destroy the Mother’s character and also her relationship with the children.
I am of the opinion that the Father has psychologically abused the children. The children may need professional help in the future.
I am satisfied that the Father has no capacity to provide for the emotional needs of each child.
Whether the Mother resides in Brisbane and the Father in Sydney or both parents reside in Sydney, in the event that the children spend time with the Father I am satisfied that the Father will be dependent on his parents for assistance with the care of the children. The Family Consultant interviewed the paternal grandparents and reported that their expressed views and opinions were consistent with those expressed by the Father, especially with regard to the Mother’s alleged problem with alcohol. The paternal grandfather provided a litany of complaints about the Mother’s past behaviour, was critical of her parenting and of her attempts to “keep the children to herself”. Further, the paternal grandparents denied all allegations of family violence between the Mother and the Father and attributed all of the blame for the break down in the marriage to the Mother. In this regard the paternal grandparents alluded to the Mother “being [mentally] sick”. The Family Consultant said that with respect to the assault on 11 November 2006 the paternal grandfather in particular, completely minimised the Father’s responsibility and suggested that the Father’s behaviour was directly caused by the Mother provoking and physically assaulting him. The paternal grandparents also did not anticipate that there would be any impact on the children of seeing less of their mother.
I am very concerned about the attitude of the paternal grandparents towards the Mother and her relationship with the children and gave some consideration as to whether there should be no contact between the paternal grandparents and the children. However, I was ultimately persuaded by the attitude of the Mother towards the relationship of the children and the paternal grandparents and the Mother’s concern to maintain the relationship of the children and the paternal grandparents. I was also persuaded by the conclusion I reached after the cross-examination of the paternal grandmother that what is in her affidavit is not a true representation of her attitude towards, and relationship with, the Mother.
I will proceed on the basis that neither of the parental grandparents will say anything to or in the presence of the children which is in any way critical of the Mother or undermines her relationship with the children even if this brings them into conflict with the Father.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant. This is not an important matter.
However again consistent with the impression I formed of the Mother as a parent she demonstrated that she is conscious of the Greek heritage of the children and said that she proposes to enrol the children in a Greek language class.
I am required to consider the attitude to each child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated. This is an important matter.
I have no concerns about the attitude to each child and to the responsibilities of parenthood demonstrated by the Mother. In my view the Mother has fulfilled her responsibilities as a parent and fulfilled her obligation to maintain each child.
On behalf of the Father it was submitted that he has fulfilled his responsibility as a parent. It was stated that he has made mortgage repayments in respect of the former matrimonial home or paid child support as assessed. Further that it has not be asserted by the Mother that the Father has not spent time with the children as provided for in the interim consent orders. I understand that it is difficult in a case such as this to articulate submissions that support the Father. However, in my view the submissions completely ignored the evidence about the behaviour and attitude of the Father.
In my view, the Father has demonstrated an inappropriate attitude to each child and to the responsibilities of parenthood. The Father has failed to fulfil his responsibilities as a parent.
I am required to consider any family violence involving each child or a member of each child's family. I am also required to consider any family violence order that applies to each child or a member of each child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Family Law Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of each child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). This is an important matter.
There has been family violence involving each child and the Mother.
There are no current family violence orders.
I am required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to each child. This matter is relevant.
On behalf of the Independent Children’s Lawyer it was submitted that the order which would least likely lead to the institution of further proceedings would be in the event that the Mother resided in Brisbane. I accept that submission.
I am concerned that if both parents ordinarily reside nearby to each other then there may be a continuation of the type of behaviour the Father undertook during his dirt finding exercise. This may only lead to further proceedings.
It was submitted, and I accept, that I could have no confidence that the parents will be able to act together to cooperate in relation to matters in relation to the welfare of the children.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing further I wish to say at this point.
In Taylor and Barker (supra) it was suggested that it is at this point that I consider the possibility of relocation by the Father to Brisbane. I express no view about the correctness of this. The Father has indicated that in the event that the Mother did reside in Brisbane with the children then he would probably relocate to that city. However I accept that a position adopted by the Father that he not move to Brisbane could not be described as unreasonable given his employment and members of his family. However so far as the Mother is concerned it may also be relevant to consider at this point that the position adopted by her could not be described as unreasonable given, among other things, her prior residence in Brisbane and her family support.

Conclusion-best interests

In my opinion, in the circumstances of this case there are four possible outcomes. There are advantages and disadvantages of each of the proposals. I am also of the opinion that there will be an impact on the children whatever I do.
At this point if I adopted the first approach that I have outlined above I would make a finding as to which proposal was in the best interests of the children. However the second approach would suggest that I not do so until after consideration of the presumption of equal shared parental responsibility in s 61DA(1) and if the presumption does apply then considered pursuant to s 65DAA the issues of equal time with each parent or substantial and significant time with each parent. The first approach may make the task easier and more understandable. However it may not matter which approach is adopted. I will adopt the second approach.

PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

In all the circumstances of this case, there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence and thus the presumption of equal shared parental responsibility does not apply.
Further, I am satisfied that if the presumption did apply it would be rebutted as it would not be in the best interests of each child for the parents to have equal shared parental responsibility. I agree with the views of the Family Consultant. I accept the submissions on behalf of the Independent Children’s Lawyer.

TIME SPENT WITH EACH PARENT

As the presumption of equal shared parental responsibility does not apply I do not have to consider whether it would be in the best interests of each child to spend equal time with each parent and whether it is reasonably practicable for each child to spend equal time with each parent. Further I do not have to consider whether it would be in the best interests of each child to spend substantial and significant time with each parent and whether it is reasonably practicable for each child to spend substantial and significant time with each parent.
In cross-examination the Family Consultant said:
Certainly I’d have great concerns about recommending an equal time arrangement in this matter due to the hostile and conflicting nature of the parental relationship, the lack of communication, the fact that there is limited cooperation around parenting of the children, both households have a significantly different parenting style, some of the arrangements wouldn’t be classed as child focussed arrangements, for a shared care and equal time arrangement there needs to be a high level of commitment by all parties to make share care work, both families need to have family friendly work practices, there needs to be financial comfort a certain level of financial comfort for both parties, there needs to be shared confidence in that the other parent is a competent and able parent and certainly based on what both parents have said to me a number of those factors, if not all of those factors are not present in this case.
I accept what the Family Consultant said.

CONCLUSION

The Family Consultant said:
71.As part of this Court hearing the exact nature of father’s allegations against the mother may require further exploration. With respect to those allegations concerning [the mother’s] aberrant sexual behaviours, these would only be of significant concern in relation to the children if they occur in their presence or with their knowledge. If, however, this is not the case, there is no evidence to suggest that in and of themselves adult sexual behaviours impact on child development. Similarly, if it is demonstrated that the mother has a significant substance misuse problem then this too would represent a significant risk in relation to the children and appropriate precautions would need to be taken.
72.However, on the other hand if the father’s allegations are unsupported or are found to have been exaggerated or fabricated, then this raises concerns about his own mental health, his capacity to support and facilitate the children having an ongoing (positive) relationship with their mother or to be able to appreciate the positive long-term benefits to the children of maintaining this relationship. In this scenario there is significant cause for concern that the father appears unable to consider the negative impact of such destructive behaviours on [the children’s] long-term emotional and psychological development. If such behaviour and apparent antipathy towards the mother continues the children may be at risk of potential poor mental health outcomes. They may also experience deficits in social and cognitive competence as well as problems with their physical health. It will not benefit the development of [the children’s] sense of self worth or their ability to build and maintain a positive image of themselves, if they are continually exposed to their paternal family’s apparent prejudices and biases about their mother.
…
74.The dilemma in this matter is that the children are clearly expressing a wish to spend more time with their father, despite his disturbed presentation. This author would suggest that their attachment to their father has a significantly unhealthy component. Nevertheless, due to their attachment, they are likely, at least in the short-term to feel a sense of loss if separated from him for long periods of time. However, on the other hand as previously mentioned, continuing to spend significant amounts of time with him places them at risk of significant long-term emotional problems. Due to their family circumstances and the nature of their relationship with their father, there is also a significant risk of the children becoming alienated from their mother. They are reaching an age whereby their enhanced cognitive capacity lends itself to forming alliances, actively participating in and becoming destructively involved in the parental conflict. In many respects both the children, although particularly [Y], are already presenting with some of the characteristics typically associated with an extremely aligned child. Self evidently one of the major risks entailed in extreme alliance is the absolute rejection of a parent.
75.Therefore due to the emotionally damaging nature of the situation, it is suggested that the children’s apparent emotional needs rather than their expressed views, determine the outcome of where they live and how much time they spend with the other parent. In this respect the Court will to need balance the benefit to the children of continuing to spend time with their father in order to maintain a meaningful relationship with him against their increased need for safety and security in their relationship with their mother. Any time the children spend with the father will need to occur in a way that is safe for the children and supports their recovery needs and that restricts the father’s influence over their emotional development and over the development of their value systems.
76.[The father’s] extreme focus on the conduct and activities of his ex-wife, combined with his general lack of insight suggest that his capacity to change his behaviours and his approach to parenting is extremely limited. Given this apparent inability to change, the risk of considerable emotional damage to the children in the long-term is significant. Of additional concern is that his distorted perception of the children’s emotional needs is promoted and supported by his own parents, whom he has put forward to assist him in caring for them.
77.As a result of the father’s apparent inability to regulate his behaviour and his feelings towards to the mother, the Court may also wish to consider the possible risk to the children, and/or their mother, in the event that he perceives the Court is not taking his concerns about [the mother] seriously or he believes that his relationship with his children is in jeopardy.
78.If the Court determines that the father poses an unacceptable level of risk to the children then appropriate precautions will need to be taken. This may mean that the Court considers it to be in the children’s best interests to be able to relocate with their mother to Queensland to be closer to her family and identified support networks.
79.The mother has clearly demonstrated her capacity to promote the children’s relationship with their father. There were indications that she is likely to continue to do this to the best of her ability if she were to relocate, which would help, to some degree, to moderate the children’s sense of loss and sadness surrounding their father. She is also likely to promote a positive image of him, and the paternal family, and ensure they use alternate means to maintain those relationships e.g. phone contact. Her actions to date would appear to indicate that she would also guarantee that the children would spend time with him as per court orders.
80.On balance the advantages to the children if they were able to relocate to Queensland with the mother would include: ensuring safety and security in their relationship with their mother; the possible lessening in their exposure to the parental conflict and tension; as well as living with a mother who is in a better position, financially, physically and emotionally, and therefore happier and better able to balance her work and family commitments.
81.Neither party has made an official application for equal time, although such an arrangement would not be practical or appropriate.
82.The Family Consultant has grave reservations about the viability of equal shared parental responsibility in this matter due to the hostile parental relationship, the incidents of family violence and that the father is currently refraining from any form of communication with the mother.
I agree with what the Family Consultant said and her opinions.

This is a case where I think the outcome is, and always was, very clear. Having regard to all of the evidence and the relevant statutory considerations and authorities I am satisfied that it is in the best interests of each child that they ordinarily reside with the Mother and that she has the opportunity to reside in Brisbane.
The issue that remains is what time, if any, the Father should spend with the children. I am satisfied that the Father does pose a level of risk of harm to the children and the question is whether or not he should spend any time with the children. Notwithstanding my concerns I am going to make an order that the children spend some time with the Father. I have come to this conclusion for a number of reasons which include because it is supported by the Mother and the Independent Children’s Lawyer. However it is on the basis that the Father must cease asking the children questions about the Mother and regulate his behaviour and feelings towards to the Mother. If the Father needs professional assistance then I expect that he will seek it. If the Father’s current influence over the emotional development of the children and the development of their value systems continues then his time with the children may have to be reviewed.
I propose to make the orders sought by the Independent Children’s Lawyer. However I am only going to make an order against the Father in relation to what he may say to or in the presence of the children.
I am also going to make the orders sought by the Independent Children’s Lawyer in relations to costs and expenses.

I certify that the preceding three hundred and seventy two (372) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate:

Date: 6 August 2008

[2008] FamCA 629

6 August 2008

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