Jenas and Lehmann

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENAS & LEHMANN

[2018] FCCA 1919

Catchwords:
FAMILY LAW – Parenting – unilateral relocation by the mother with the children – parental alienation – change of residence despite clear views of the children.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(2A), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 61DAC

Applicant:

MR JENAS

Respondent:

MS LEHMANN

File Number:

SYC 7679 of 2014

Judgment of:

Judge Hughes

Hearing dates:

10, 11 & 12 July 2018

Date of Last Submission:

12 July 2018

Delivered at:

Canberra

Delivered on:

20 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Kearney SC

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Ms Vogel

Solicitors for the Respondent:

Sam Mason Legal

Counsel for the Independent Children's Lawyer:

Ms Hiles

Solicitors for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

All previous parenting orders in relation to the children [X] born 2003, [Y] born 2006 and [Z] born 2010 are hereby discharged.
The father shall have sole parental responsibility for the children but before making any decision about a major long term issue concerning any of the children he shall inform the mother of the decision to be made, seek her input and consider that input before making his decision.
Commencing immediately the children shall live with their father in Canberra.
The mother shall take all reasonable steps to actively support and encourage the children to accept this decision and, in the event the mother becomes aware the children have run away, she shall immediately take all steps necessary for the children to return to the father’s care.
The children shall have no face to face time with their mother until the end of Term 3 in 2018.
The children shall spend time with their mother for the first half of the school holidays at the end of Term 3 in 2018.
From the commencement of Term 4 in 2018 the children shall spend time with their mother during school term as follows:
(a)in the event the mother lives within 70 kilometres of the Canberra CBD, every second weekend from after school on Friday until the commencement of school on Monday;
(b)in the event the mother lives beyond a radius of 70 kilometres from the Canberra CBD, for one period of ten consecutive nights during each school term as agreed between the parties but failing agreement commencing at 5pm on the Friday of week 5 of the school term and concluding at 9am on the Monday ten days later with such time to occur in the ACT and the children to attend school during that period; and
(c)such additional or alternative times as agreed between the parties.
From the commencement of Term 4 in 2018 the children shall spend school holidays with their parents as follows:
(a)for school holiday periods commencing in even numbered years:
(i)for all of Term 1 and Term 3 school holiday periods with the mother;
(ii)for all of Term 2 school holidays with the father;
(iii)for the first half of Christmas school holidays with their father; and
(iv)for the second half of the Christmas school holidays with their mother.
(b)for school holiday periods commencing in odd numbered years:
(i)for all of the Term 1 and Term 3 school holiday periods with the father;
(ii)for all of Term 2 school holidays with the mother;
(iii)for the first half of Christmas school holidays with their mother; and
(iv)for the second half of the Christmas school holidays with their father.
For the purpose of these orders school holiday periods are defined to commence at 3pm on the Friday which is or first follows the last day of the school term and will conclude at 3pm on the last Friday of the school holiday period with the mid-point being at 3pm on the middle Friday if there are an even number of weeks or 3pm on the middle Tuesday if there is an odd number of weeks in the holiday period.
Whenever handover of the children does not occur at school the parent due to have the children shall collect the children from the other parent’s home at the commencement of the relevant period unless otherwise agreed.
Commencing on Thursday, 19 July 2018 the parent with the care of the children shall facilitate the children speaking with the other parent on Tuesdays and Thursdays at 6pm and any other reasonable time in accordance with the children’s wishes.
The father is permitted to take all steps necessary to facilitate the enrolment of the children in a school of his choice and to take [X] to an enrolment interview at School B on Monday, 16 July 2018.
By consent the father is authorised to arrange for [Z] to attend upon Dr W on Tuesday, 17 July 2018 for dental treatment.
Each parent is free to be fully involved in the school, sporting and extracurricular life of the children and may obtain school reports, newsletters and the like and attend all events and functions to which parents are invited.
Each parent shall inform the other as soon as practicable of any major social, school or extracurricular event involving the children so as to give the other parent the opportunity to participate.
Each parent shall inform the other as soon as practicable in the event of any serious illness or injury suffered by the children and shall provide sufficient information and any authorisations necessary to enable the other parent to obtain full information from any treating medical practitioner.
Each parent is hereby restrained from making any derogatory comments about the other parent or any members of their family to or in the presence of the children or allowing anyone else to do so.
Each parent shall keep the other advised of their residential address, email address, landline telephone number and mobile telephone number by forthwith providing those details and advising of any change to them within 24 hours of the change.
The mother shall within 28 days take steps to arrange personal counselling to assist her to deal with:
(a)any issues arising from the breakdown of the parental relationship;
(b)any issues arising from these orders; and
(c)to assist her to support the children’s transition to their father’s care.
The father shall forthwith take steps to arrange for the children to receive counselling or other therapeutic support to assist them to manage the transition to his care and to deal with any associated issues, such counselling to continue until the therapist recommends otherwise.
Each parent shall make themselves available to meet with the children’s therapist if requested.
Each party may provide to their own or the children’s counsellor or therapist or any other professional person providing assistance to the children or the family, a copy of these orders and reasons for decision and a copy of the report of Mr V dated 29 June 2018.
Each party shall facilitate the children attending upon the independent children’s lawyer and Ms F, senior family consultant at the Canberra Registry of the Federal Circuit Court in the afternoon of 13 July 2018 for the purpose of advising the children of the orders made today and the reasons for the decision and to assist the children to begin the transition to their father’s care.
The mother shall leave the Court precincts within 15 minutes of the Court adjourning today and not return or attempt in any way to make contact with the children thereafter until Thursday, 19 July 2018.
Further orders are made by consent in accordance with the minute of orders dated 13 July 2018, placed on the Court file and annexed hereto.
The independent children’s lawyer shall email a typed copy of the minute in Word format to my Associate within 7 days.
The appointment of the independent children’s lawyer is discharged 14 days from today.
Otherwise all extant applications are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

SYC 7679 of 2014

MR JENAS

Applicant

And

MS LEHMANN

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in relation to three children aged 14, 12 and 8 years.
The father seeks orders for the children to live with him because of what he said was alienation of the children from him by their mother. The mother denied alienating the children and argued their difficulties with their father arose from their own experience of him. She sought orders supporting the current arrangements in which the children live with her and spend holidays and some weekend time with their father.
The father lives in Canberra. In December 2017 the mother unilaterally relocated with the children from Sydney to Town 1, NSW, about six hours drive from Canberra. It was this move that prompted the father’s application to this Court.
The hearing occurred over three days from 10 to 12 July 2018. On 13 July 2018 orders were made and an oral outline of these reasons for decision was given. The parties were advised written reasons for decision would be available shortly. These are those reasons.

Background

The parties began living together in about 1997. They married in 2007 and separated in May 2013. They were divorced on 18 March 2015.
During their relationship the parties lived in Sydney. The father worked as a (occupation omitted) and the mother was a fulltime parent. For the last 12 months or so of the relationship the father worked as a (occupation omitted) in Canberra during the week and returned to Sydney each weekend. When the parties separated the father moved permanently to Canberra but travelled to Sydney every second weekend to spend time with the children. This generally occurred from Thursday to Monday which allowed the father to be involved in the children’s schooling. The children also spent half of school holidays with their father.
At separation the mother and the children remained living in the parties’ Suburb J apartment until it was sold in 2014. They then moved to a rented home in Suburb K, close to the children’s schools. The father entered into the tenancy with the mother and paid the rent on the property which was $5,200 per month.
After a lengthy process the parties entered into final property and parenting orders by consent on 19 May 2015. The parenting orders provided for the parties to have equal shared parental responsibility for the children, for the children to live with their mother and to spend time with their father for four days every second week and half of all school holidays. Until late 2015 the father stayed with the children in hotels in Sydney but from that date he took out a lease on a property in which he and the children stayed in Sydney every second weekend and during holidays. He was initially unable to afford to lease the property and the paternal grandfather paid the rent for the first 12 months.
Also on 19 May 2015 the parties entered into a Limited Child Support Agreement. It required the father to pay to the mother $2,667 per child per month (a total of $8,001 per month) from the date of the agreement for a period of 12 months. Thereafter, his only obligation was to pay child support in accordance with any administrative assessment.
Although his legal obligation to pay the mother $8,000 a month ended in April 2016, the father continued to pay that sum to the mother up to and including November 2016. Instead of then reducing the payments to the amount required by the child support assessment which was $2,800 a month, he paid her $5,000 a month for a year from December 2016 to November 2017. He gave the mother notice in October 2017 that he was about to reduce the payments to what was required by the administrative assessment but after she requested he pay for one month he made two further payments. He then began paying what was required by the assessment. In early 2018 the mother asked the Child Support Agency to collect the payments rather than the father paying her directly. There was some issue about the commencement date and whether the father was in arrears of child support but both parties agreed he was up to date prior to the commencement of the hearing and had not otherwise been in arrears.
Despite the parties’ clear agreement in May 2015 and the father paying well over his legal obligation for 19 months, the mother characterised each change in the payments as the father maliciously cutting off financial support to her and the children. She shared this opinion with the children.
In addition to the monthly payments, the father paid for all of the children’s school fees, school uniforms, most of their non-school clothing, their computers, mobile telephones, telephone plans, an iPad for their use and their health insurance. He also paid for the mother’s car to be serviced and for her car insurance and registration. Post-separation he paid for the children and the mother to have a holiday in (country omitted) and paid for an operation for the mother’s dog. Sometime after the consent orders in May 2015 the mother told the father that she owed a “kneecapping type” debt collector $15,000. He immediately borrowed that sum and gave it to her.
The mother said she was placed under enormous pressure immediately prior to the signing of the property, parenting and child support agreements in May 2015. She said the father had stopped making payments to her several months prior to the signing. She said she could not afford legal advice and felt compelled to sign in order to have funds to support herself and the children. She said she had been served with an eviction notice and feared she and the children were about to become homeless. The father conceded there had been problems with him meeting the rent payments in late 2014 because his expenditure was far more than his income at that time. However, he borrowed money to pay the arrears before the eviction date in January 2015 and, as far as he was aware, there were no further difficulties and no threat of eviction around the time of the signing of the orders. That was ultimately conceded by the mother who accepted she was wrong about the date of the eviction notice and its connection to the signing of the orders. The father said in cross-examination that he did stop paying the mother for one or two months prior to the signing of the orders because he could not afford to continue making the payments and, on legal advice, stopped doing so. He said he later made up those payments. It is not clear to me whether he, like the mother, confused that evidence with the time he stopped making rent payments in late 2014 because subsequent evidence revealed the father made the following payments to the mother leading up to the signing of the consent orders on 15 May 2015:
20 April 2015    $ 8,000
12 May 2015     $11,000
18 May 2015     $ 8,000[1]
[1] Exhibit F7
From the time the parties entered into the parenting, property and child support agreements in May 2015, their co-parenting relationship began to deteriorate. It appears from the evidence that the mother was deeply hurt by the parties’ separation and over time this grew into bitterness. She blamed the father for all the difficulties that flowed from the separation. She accused him of breaking his promise to her that she would never have to work because he would support her to stay home with the children. She made no allowance for the change in circumstances resulting from the marriage breakdown. She had no sympathy or empathy for any difficulties of the father, believing he had brought them on himself by leaving her.

The father said that over the next two years a series of problems arose including the following:
a)The parties had always decided together what schools the children would attend. Within one or two months of the financial settlement in May 2015, the mother and children moved from the Suburb K property to Suburb L. The father was not critical of the mother for moving to more affordable accommodation. However, although the orders provided for the parties to have equal shared parental responsibility, the mother unilaterally changed the children’s schools. The father said he did not have the financial or emotional resources to commence proceedings and, following his own enquiries about the school in which the mother had enrolled the children, he was satisfied it would meet the children’s needs. That school was School C in Suburb L. The child [X] was in Year 6. The mother told the father she had decided to send [X] to School D in Suburb M for high school. The father said he thought that school in particular was a good school and accordingly accepted the mother’s decision. He did however express his displeasure about [X]’s school being changed half way through Year 6.
b)Over the December 2015/January 2016 school holidays [X] told her father she was going to School E in Suburb N for high school. She said she and her mother had made that decision. The father asked the mother what was going on. He said the mother became angry and told him not to question her decisions about her children. Again the father did not commence legal proceedings. The mother accepted she likely said what the father alleged. She said she felt that, as she was parenting the children alone, she alone should make the major decisions about them.
c)The mother obtained paid employment in December 2016. The father was pleased about that but became concerned about the arrangements for the care and supervision of the children. He said for instance, he formed the view that [Y] and [Z] walked to and from school alone. He said [Y], who was aged 11 at the time, can be quite distracted and he did not think it was safe for him to supervise [Z], aged six, across busy roads. He also formed the view from statements made by the children that they were left home alone in the evenings.
d)The father said the mother did not permit him to have the children for half of school holidays as provided in the orders. She also misled him by saying she had taken leave to spend time with the children when they were in fact being cared for by the maternal grandfather or other relatives. During her evidence the mother conceded this. She also agreed she had enlisted the children and members of the extended maternal family to lie to the father about where the children were and who was caring for them.
e)The father experienced difficulty speaking to the children on the telephone. He said he called three or four times a week and the calls were rarely answered.
f)The children and [X] in particular began making comments to the father which suggested the mother was telling them inappropriate things about him such as that he had cut off their rent and that he had been charged with rape. The mother agreed she told the children that the father had reduced his financial support to the family. She said she became aware at least in March 2018 that [X] believed the father had been charged with rape. She knew this was false but took no steps to correct [X]’s view.
g)The father became aware of active denigration of him and his partner by the mother. The mother agreed in these proceedings that she changed the father’s name in her mobile phone to “Cunt face” and that she engaged in text message exchanges with [X] in which she criticised the father’s partner as having no style and calling her “a cunt”. The father’s evidence is that he has been meticulous in speaking only positively about the mother and about her then partner, Mr V.
h)The father alleged the children frequently came to him with inadequate clothing and equipment for school and extracurricular activities. He said the clothing he bought for the children was never returned and that expensive items he bought for the children such as shoes, iPhones, an iPad and headphones were deliberately damaged. That was denied by the mother but the evidence about it was compelling and I accept the mother deliberately damaged or caused or permitted the items to be damaged.

In late 2017 the father instructed lawyers who had acted for him in relation to commercial matters to write to the mother to begin a conversation with her about a range of issues including those set out above. The letter is set at annexure “H” to the father’s trial affidavit filed on 12 June 2018. The letter is a gentle invitation to discuss matters and is entirely non-offensive. After setting out what the father saw as the problems, his lawyers suggested a way forward. That part of the letter reads as follows:
In an attempt to improve the relationships between everybody, Mr Jenas asks the following of you (he also asks the same of Mr V insofar as he influences the children):
1. Key decisions about the children should be made by the both of you – especially as they relate to the children’s health, schooling, holidays and living arrangements.
2. Both of you should avoid and refrain from discussing the financial arrangements with the children. This is a matter for the parents.
3. That you do not speak ill of Mr Jenas or encourage [X] in particular to act as your mouth piece. Mr Jenas is worried that many of your comments are damaging his relationship with [X]. He loves her, as do you. There is really no situation where your facilitating adverse and untruthful comments about Mr Jenas and encouraging her to have a poor relationship with her Dad benefits [X] or your other children.
4. Open and truthful communication about the children’s whereabouts.
5. You help the children be careful with their phones so they are not lost and ensure that Mr Jenas’ number is not blocked on the children’s phones (which Mr Jenas says has occurred on a number of occasions).
6. Mr Jenas would like to spend more time with the children.
7. Mr Jenas would like to have the children for Christmas this year, and then year about thereafter.
8. School holiday time is important ‘down’ and ‘fun time’ for the children and should be shared equally – any time spent with your extended family should come from your time with the children, not Mr Jenas’.
9. Any interstate travel to be notified to Mr Jenas.
Mr Jenas is committed to speaking respectfully about you and your partner with the children and seeks that you refrain from calling Ms A or him derogatory names and also speak respectfully about him and Ms A in front of the children. He believes that the children will benefit greatly from their parents acting in this way.[2]
[2] Father’s affidavit filed 12 June 2018 at Annexure H, pages 99 to 100
The mother instructed lawyers to respond with a wholehearted rejection of the tone and content of the father’s letter. Part of that letter reads as follows:
Our client is very conscious of the obligation that falls to both of our respective clients with respect to cooperative parenting. Sadly, your client’s approach to the issue leaves a lot to be desired, based on the instructions we have received. The level of antagonism which your client has directed towards our client is, on our instructions, such that our client simply cannot have a cooperative relationship with your client. The reality is your client has elected to leave Sydney and pursue his life in Canberra. At the time of the parties’ separation, your client left our client in parlous economic situation, resulting in the eviction of her and the children from the premises they then occupied. As a consequence, our client was forced to obtain more affordable accommodation, and this required a consequential change of schools for the children. Your client’s assertions about the children being left alone without adult supervision are, in our client’s view specious at best and simply malicious at worst.[3]
[3] Ibid at page 102
The father engaged family law solicitors who wrote to the mother on 19 January 2018. They asked the mother to confirm the children had not changed address or schools. They also asked the mother to make the children available to spend time with the father for nine days that month as they had only spent 13 days with him during those holidays. The mother’s solicitors replied on 25 January 2018 to say their client could not afford to retain them any longer and all future communication should be sent directly to the mother. However they confirmed the children remained enrolled in their schools and were living at their usual address. By that time the children were in fact living in Town 1. This was a deliberate lie to the father on the part of the mother. The father found through the children’s schools where the children had gone. He commenced proceedings on 6 February 2018.

The move to Town 1

The mother’s evidence is that during 2017 the father pressured her in an effort to get her to move to Canberra with the children. She said that when he realised she was not going to “obey his commands” he unilaterally reduced his payments of child support to the amount assessed by the Child Support Agency and this meant she could not afford to live in the house in which she was living. She said this reminded her of how bad she felt when evicted from the house in Suburb K after begging the father not to reduce his payments to her. She said she came to the decision she would have to move to more affordable accommodation to avoid the father controlling whether or not she and the children had a roof over their heads.
This narrative was explored in cross-examination. The father did send the mother some emails encouraging her to move to Canberra. He highlighted the benefits of living in a smaller city and set out the cost and nature of the housing that was affordable in Canberra as compared to Sydney. However, I do not accept he was controlling. He was making suggestions and clearly recognised the mother was able to determine where she lived.
One letter sent by the father to the mother on 25 July 2017 set out an idea he had about how he could help the mother obtain an unencumbered house in Canberra by 2020. Far from being controlling, he acknowledged the mother was in a difficult financial position and set out what he thought was a realistic plan to help her. In text messages around the same time the father fully acknowledged the mother’s desire to live in Sydney. Her interpretation of the father’s actions as bullying and controlling and of punishing her when she refused to comply with his demands is ridiculous in light of this evidence.
The mother was never evicted from any premises. The father’s payment of child support in accordance with the formula was agreed between the parties in 2015 and implemented by the father 17 months later than agreed.
The mother said she had always wanted to live in the country and recalled visiting Town 1 as a child. She travelled to Town 1 in mid-December 2017 when the children were with their father. While there she applied for housing and applied for the children to attend School A. She took relevant documents with her to support those applications. The mother said, despite that, she had not made a clear determination at that point to move to Town 1. However she said she was reminded on that trip of what a beautiful town Town 1 was. It also had the benefit of being closer to her parents and sisters. Her mother lives in Town 3 NSW, a little over one hour’s drive east of Town 1 and her father lives in Town 2, approximately two hours east of Town 1. Her sisters live about one and a half hours to the north and east respectively.
The mother made no investigation of other locations closer to Canberra which would have allowed her to live in a rural environment and still be closer to her family but not so far from the children’s father as Town 1.
The mother did not give consistent evidence about precisely when she decided to move to Town 1. She was asked in cross-examination whether it was as early as October 2017. She said it could have been. She said it was definitely late in the year and may have been in November when the father began paying child support in accordance with the administrative formula. She said she told the children at that stage that they would be changing schools and they would see their father only during school holidays. Later in the trial the mother said she did not make a final decision to move until after she had been to Town 1 and applied for housing and for acceptance of the children into the School A. She confirmed that she told [X] by telephone while the children were with their father in December 2017 that they were definitely moving to Town 1.
The father had 13 days with the children during December 2017 and sought further time in January 2018. The mother told him she had taken time off work to spend with the children and so they would not be available. The mother had not taken time off work. The children were moved to Town 1 by their grandmother and she and the children’s grandfather cared for them while the mother remained working in Sydney. This was deliberate deceit of the father by the mother. The children and maternal grandparents also lied to the father about who the children were being cared for during the holidays. The mother was apparently comfortable with getting her parents and the children to deliberately lie to the father. That behaviour was designed to prevent the father finding out where the children were for as long as possible which would make it harder for him to rectify.
The mother gave inconsistent evidence about her attitude to the children’s relationship with their father at the time of the move. She said at one point in her evidence that she reassured the children they would continue to have a relationship with their father and see him on a regular basis. At another point she said the children were resistant to spending time with their father and she did not want to force them against their will.
The children had no face to face contact with their father from 27 December 2017 until late February 2018. Their time with him only resumed after orders were made by this Court.
The most alarming aspect of the mother’s behaviour was the extent to which she openly and deliberately involved the children in her hostility towards the father. She told the children to keep the first change of schools in 2015 a secret from the father. [Z] became distressed when she accidentally let it slip to her father and was chastised by her siblings. The children were placed under enormous stress during the two weeks with their father in December 2017 knowing they were moving and changing schools but having been instructed by their mother to keep it a secret from him. This gave the children a clear message that it was reasonable to exclude their father from important decisions and keep secrets from their parents, contrary to basic child safety principles. When these matters were put to the mother she said she had not thought about those aspects previously but could see them now. She said she had clearly made an error of judgement.
The mother had developed a narrative which she seemed to genuinely believe and in which the husband was a bully who sought to control every aspect of her life and who was brutal in his treatment of her. She was asked more than once to give an example of his brutal treatment but was unable to provide one. I am persuaded on the evidence that the mother’s narrative is utterly wrong and borders on delusional. It is the mother who was controlling of the father and his relationship with the children and who was brutal in her dealings with him.

The proceedings

The father commenced proceedings on 6 February 2018. Given he was unaware of the whereabouts of the mother and children he sought an order for substituted service. That order was granted that day. He was permitted to serve the proceedings on the mother by service upon the maternal grandfather. The proceedings were adjourned to 13 February 2018.
On 13 February 2018 the mother attended Court accompanied by [X]. Orders were made by consent for the children to spend time with their father from the end of school on Friday 23 February until the commencement of school on Monday 5 March 2018. The time was to occur in Town 1 so that the children could continue to attend school. The mother was required to provide all school uniforms and other material required by the children that week and she was restrained from attending the school during that period. Orders were also were made for the children to have telephone communication with their father every second day. Both parties were restrained from discussing the proceedings or any aspect of them with the children or in their presence and from denigrating the other parent. The mother agreed during the hearing that she had told the children about the proceedings and had shown the Court documents to [X] and discussed their contents. She said this occurred prior to the first Court date and not subsequently.
The proceedings were adjourned to 8 March 2018.
On 8 March 2018 further interim orders were made for the children to spend time with their father for 17 days in the Term 1 holidays, for ten days during Term 2, for two long weekends in June and for two weeks in the Term 2 school holidays. The children were due to return to their father on 13 July 2018 but orders were made at the end of the trial on 12 July 2018 postponing their return until further order as this judgment was listed for release the following day.

The father’s proposals

The father lives with his fiancée Ms A in an apartment in Suburb O, ACT. The apartment has three bedrooms and a garden. [X] has her own bedroom and the younger children share a bedroom.
The father and Ms A began a relationship in 2015. They will be married in 2018.
The father proposed the children live with him and Ms A in Canberra. He proposed that if the mother lived sufficiently close to Canberra, the children spend time with her every second weekend and half of each school holiday period. If the mother continued to live a significant distance from Canberra, he proposed the children spend time with her for a ten day block during each school term with the children attending school during those periods.
In addition, the father proposed the children spend all of the Term 1 and Term 3 holidays with their mother and all of the Term 2 holidays with him in even numbered years and the reverse in odd numbered years. For 2018 only however, he proposed the Term 3 holidays should be shared with the children spending the first half with their mother and the second half with him to enable the children to get settled again after spending time with their mother before returning to school. He proposed the children spend half of each Christmas school holiday period with each parent, alternating between first and second halves.
The father proposed that handovers of the children occur at the children’s school and otherwise with the parent due to have the children collecting them from the other parent’s home. He proposed telephone contact between the children and the parent with whom they are not living each Tuesday and Thursday at 6pm and otherwise in accordance with the children’s wishes. He proposed a series of other orders to support both parents having full information and involvement in the children’s lives.
In the event a change of residence was ordered, the father sought the children have no face to face contact with their mother until the end of Term 3 in order to help them settle in his household and help protect them from exposure to the mother’s distress at the outcome. That proposal was supported by Mr V, psychologist and family report writer, in the event of a change of residence.
The father proposed that all three children attend School B which is relatively close to his home. It is a co-educational school that all three children can attend until the end of Year 12. A place is available for both [X] and [Z] commencing at the beginning of Term 3 in 2018. [Z] attended her school interview and a holding deposit for her enrolment was paid. [X] will not be accepted into the school until she has attended an interview. Although she did not cooperate with two previous interviews, she apparently agreed to attend one on Monday 16 July if orders were made for the children to live with their father.
The father had been unable to secure a place for [Y] at School B School by the time of the trial. He said the school staff undertook to do what they could to offer him a place immediately if there is a change of residence but that is not certain. Accordingly, with a change of residence, [Y] may have to attend a different school for terms 3 and 4 of 2018 and move to School B at the commencement of Year 7 in 2019.
I am satisfied on the father’s evidence that he has investigated the curriculum and sporting and extracurricular program at School B and that the school would meet the needs of each of the children. Both parties agreed that [Y] in particular is a gifted student who excelled at school when at School F in Sydney. The father’s evidence is that [Y] was under-stimulated and bored at School C to which his mother moved him in 2017. He said he spoke to [Y]’s teacher who said [Y] was very bright but the school was not equipped to provide for his special needs. According to his semester 1 school report, at School A [Y] has achieved results at or about the level required but his homework is rarely or inconsistently done and in some classes his work ethic and effort is rated as inconsistent. The father’s evidence, which I accept, is that School B has an advanced stream which can better cater for [Y]’s needs.
The father has some flexibility in his work hours because he is a Director of his own company and his office is in the same building as his apartment. He said he can make himself available at short notice if the children need it. His partner is a (occupation omitted) and is not otherwise engaged in paid employment. She is available to assist with the care of the children and with their transport for school and other extracurricular activities.
I am satisfied on the evidence of the father and Ms A that the children have a loving relationship with Ms A and enjoy her company. Ms A and [Y] had a brief falling out recently when [Y] persisted in making racist jokes about (race omitted). Ms A’s father is a (race omitted) and Ms A eventually raised her voice and said her something to the effect of “Just fucking stop it” or “It’s not fucking fair” or something similar. She then went to the bedroom and shut the door. She found [Y]’s baseball mitt on the bed and threw it onto the lounge before returning to the bedroom. She and the father both said that later that day both she and [Y] apologised to each other and their normal harmonious relationship was resumed. I accept that evidence.
The father proposes to enrol the children in appropriate sports and extracurricular activities either at school or outside of school. He has made an arrangement with Ms W, a psychologist, to provide advice to him and Ms A about assisting the children with the transition to their care, to help them deal with any negative reaction on the part of the children and to help the children deal with any sense of loss they feel from being separated from their mother.

The mother’s proposals

The mother filed a response on 6 March 2018 in which she sought orders for the children to live with her and to spend time with the father as agreed between the parties or as ordered by the Court. She agreed during cross-examination that she also intended any time to be subject to the children’s wishes so that if they chose not to spend time with their father they would not have to do so.
An outline of case document was filed on behalf of the mother on 10 July 2018 in which she sought orders for the children to live with her and to spend time with their father every second weekend from after school on Friday until the commencement of school on Monday, for half of all school holiday periods and on special occasions such as birthdays and Father’s Day. She proposed the children continue to attend School A.

The mother was cross-examined about how practical it was for the children to spend every second weekend with their father when they live more than six hours driving time apart. The mother was unmoved by the practical difficulty of her proposals. She said that if the father has the flexibility he claims, he can easily drive to and from Town 1 to spend time with the children. I reject that. I accept the father has flexibility in his work arrangements but he works fulltime and the suggestion that he can spend two days a fortnight travelling to and from Town 1 to spend time with the children is unrealistic. The mother’s proposal that the father have the children for three hours on his and each of the children’s birthdays was ridiculous in the circumstances.
The mother relies on her parents to assist with the care of the children at times including during school holidays when she has to work. Those arrangements are perfectly appropriate.
Both parties sought an order for sole parental responsibility on the basis that the relationship between the parties was fraught and they were unable to work together to reach joint decisions about major long term issues concerning the children.

Credibility

The father was an impressive witness. His affidavit evidence was detailed and compelling and did not change as the result of cross-examination. During cross-examination he was thoughtful and reflective and conceded reasonably on a range of issues. He readily agreed that during the relationship his wife was a good mother. He agreed the children loved her and want to live with her.
The father’s partner, Ms A, was also a credible witness. Her evidence was brief but she gave it in a straight forward manner. She conceded the unpleasant incident between her and the child [Y] in which she used offensive language.
The mother was an unimpressive witness. She frequently gave inconsistent answers, sometimes less than a minute apart. Some examples of evidence which undermined her credibility are as follows:
a)The mother said she signed the set of consent orders in May 2015 under duress arising from financial pressure applied by the father and under the specific threat of eviction. That was shown to be wrong. There was no threat of eviction around the time of the signing of the orders and bank statements showed the father had paid the mother a total of $27,000 in the month prior to the orders being made.
b)The mother said the lawyers who witnessed her signature on the orders were arranged by the father, implying they were acting in his interests. During cross-examination she agreed she consulted the lawyers, that they gave her advice about the orders and explained her rights and obligations under them. She said they advised her not to sign the orders and to think more carefully about them. Clearly, if that is so, they were not acting on behalf of the father. The mother signed the orders despite the advice she said she received. I reject her suggestion that she was under duress from the husband at that time.
c)The mother instructed lawyers in January 2018 to write to the father giving deliberately false information about the children’s residence and schools. She also personally lied to him and caused the children and maternal grandparents to do the same.
d)When the children commenced school in Town 1 at the beginning of 2018 the mother purchased school uniforms and equipment for them. The children wrote their names on those items using the surname Lehmann rather than the correct surname of Jenas-Lehmann. The mother said she was unaware of that. This was not credible as [Z]’s school bag has her name written in a diagonal stripe across the front of it. In 2018 there was an article about an (sports) game in which [Y] played. He was named as [Y] in the article. I do not accept the mother’s evidence that she was unaware the children were using the name Lehmann. I find she sanctioned that occurring.
e)The father arranged interviews at School B for the children in the event orders were made for them to live with him in Canberra at the end of the proceedings. Although [X] initially refused to attend her interview on 3 April 2018, Ms A was able to cajole her into cooperating. [X] subsequently spoke to her mother before announcing that she was not going to go to the interview, that she was not going to go to that school and that the father was trying to steal her from her mother. When the father tried to reassure her she became distressed and the father told her she did not have to go to the interview. The father managed to obtain another interview appointment for [X] on 6 July 2018. His solicitors wrote to the mother and the independent children’s lawyer asking the mother to encourage [X] to attend the interview because it would be for her benefit in the event she was required to live in Canberra. The independent children’s lawyer joined in that request. On 3 July 2018 the mother’s solicitors wrote to the father’s to say the mother consented to the interview and would encourage [X] to be positive and open-minded about it. Despite this the mother conceded she spoke to the child the evening prior to the interview and told her she did not have to go to the interview if she did not want to. [X] refused to attend.
f)The mother failed to disclose relevant information to the Court and to the father such as [X] having twice being suspended from School C. The father only became aware of it through subpoenaed material. Similarly, the mother repeatedly asserted the children were happy and well settled in Town 1 and that the transition to their new living arrangements had been smooth. It came out in evidence that all three children have been distressed and that school staff recommended counselling for them. The mother had taken the children to see a psychologist in the month prior to the hearing. The mother revealed none of that until late in the cross-examination by the independent children’s lawyer. The mother asserted the children’s distress was entirely related to the Court proceedings. That may be so but her failure to disclose such relevant information until asked a direct question gave no opportunity for further enquiry. I have no confidence that all relevant information has, even now, been provided.

Family report by Mr V

Mr V, clinical psychologist, prepared a family report in these proceedings on 29 June 2018. He read relevant Court documents and material produced under subpoena and interviewed each of the parents and the children. He said the father presented as “as an articulate, polite and reflective man who conveyed a sense of exasperation at the circumstances that have befallen him and the children”.[4]
[4] Report of Mr V, 29 June 2018 at paragraph 8
Mr V described the mother’s presentation as follows:
Ms Lehmann presented as a tense, stressed woman, who conveyed a restrained and somewhat blunted effect. There was little variation in her outward mood, as she conveyed a somewhat monotone style. The only point that she showed any deviation from this mood was when she was talking about the possibility of losing her children, when she was distressed; she conveyed a restricted emotional range.[5]
[5] Ibid at paragraph 23
Mr V described each party’s perspective on the dispute. He said the mother denied any attempt to undermine the children’s relationship with their father and said the inappropriate text messaging had been taken out of context. Mr V said “She tended to rationalise her actions, explaining that whilst what she has said and what she has done cannot be taken back, that at the time, she was angry and frustrated, as justification for what she did, explaining that, “it has felt like a never-ending saga for us;” notably, she included the children in this explanation.”[6]
[6] Ibid at paragraph 28
Mr V said the mother did not differentiate her own emotional experiences from those of the children. She described the harm she asserted the father had caused her as also having been visited upon the children. Similar to her presentation in this case she described the father as a bully who threatened to withdraw financial support if she disagreed with him about anything.
The mother told Mr V that the move to Town 1 had been unequivocally positive and that the children were well settled at home and at school.
Mr V described the child [X] as being staunchly aligned to her mother, attributing the difficulties in the parental relationship to his actions and expressing concern about the impact of them on her mother. She knew of the issues in the proceedings and told Mr V that she would not cooperate with any order made that she live in Canberra with their father. Mr V reported [X]’s position as follows:
37.    [X] currently understands that her father is seeking that she and her siblings reside with him, but she defiantly told me that if a decision was made that she had to live in Canberra that she would run away, that she would catch the train, and that she would not stay with him. She told me that her mother has been the single constant in her life, that she depends and relies on her mother, and that her mother shares everything with her, as compared to her father who refuses to discuss the past, will not answer her questions, or help her to understand what happened. According to [X], “there is no reason to cheat on a person’s wife or partner”, that it is not the right thing to do, that, that she cannot understand her father’s actions, and that consequently, he was not deserving of her understanding.
38.    A significant theme to emerge through my discussions with [X] was her frustration at her father for not giving to her an explanation in order to help understand what transpired. She described their issues as “being unresolved”, and that the lack of communication and discussion has had a significant and negative impact on their relationship. [X] however, has also created a paradox for her father, firstly, that the origin of their problems is in the past and so, by definition there is nothing that can be done to change it, and secondly that, even if he chose to do so, that it would not make anything different. [X] has invested significantly into maintaining her anger at her father and justifying her stance in relation to him. She does not consider her father to be empathic, but rather rejecting of her and her feelings, explaining that if he really accepted her feelings and wishes, and acted in a manner in accordance with her wishes, that this might be a significant step towards resolving their problems; she cautioned that if he continues to ignore her wishes and proceeds with his application to have live with him, that he will do irreparable damage.
39.    From [X]’s perspective, the decisions made should be about her, her siblings and based on what they want. She was critical of her father not having engaged with her in a discussion about her wishes, and how she would feel if a decision was made so contrary to what she wants. In contrast, she described her mother as offering support for whatever decision was made, including in the event that [X] wanted to reside in Canberra. She further suggested that any decision made should be about them, that their input should be considered, that they should be asked, and that certainly she was old enough to express a view.
… … …
42.    The most obvious theme to emerge from [X]’s presentation is that her mother could do no wrong. She was unequivocally aligned to her mother, defended her mother’s actions, and made excuses and rationalizations for the choices made. She could see no problem associated with having left Sydney without having told her father, and even though she proclaimed to have an understanding of the Court Orders, that these were dismissed in favour of her wanting to move to the country anyway, and that her mother’s wishes and rights to do so should be respected. She certainly emphasised the importance of having a relationship with extended family, and that the presence of grandparents, aunts and cousins was an enormous bonus, describing them as people who have always been there for her.
… … ...
45.    [X] wants to remain in Town 1, explaining that her home is where her mother lives. She told me that her mother is the person upon whom she relies on, the parent with whom she is most close, the person whom she trusts in the world, and the parent who has been honest with her. She wants to have an open and honest conversation with her father, to understand his point of view, but she also foreshadowed that she would not forgive him. The paradox in this stance seemed lost to her. Even though angry with her father, she foreshadowed that she would continue to see him, that they have a bond, and that even though their relationship had been damaged, that he was still a person that he [sic] she loves, but feels that he is not acting in her best interests. She was critical of his inability to reflect upon things from her side, suggesting that if he was able to see the world through her eyes, that he would make different decisions and support her relationship with her mother rather than undermine it. She concluded by telling me that “… I’ve been dealing with everything for the last five or six years, since the day they separated. For once, I would just like it all to stop. I just want to live with my mum in Town 1 and I don’t want to have to deal with all of this stuff anymore. I worry about living with my dad in Canberra every night and I can’t sleep. I just want to be able to live with mum and be left alone.”
Mr V described [X] as pseudo-mature in that she presented as a mature, articulate young person but, typical of a 14 year old, she rationalised and justified her position on the basis of adverse actions of her father and minimised any responsibility for her own actions. Her presentation lacked a sense of balance and her position was one of advocacy and emotional support for her mother whom she viewed as faultless and her father as completely to blame for the family’s problems. He said this lack of ambivalence laid the foundation for significant problems in [X]’s future interpersonal relationships unless it was addressed.
[Y] was described by Mr V as being polite, articulate and reserved but discomforted by the interview and the discussion about his parents. He displayed a conspicuous level of anxiety during the interview. Like [X] he described his mother in unequivocally positive terms and his father in unequivocally negative terms and adopted his mother’s narrative as if it was his own. He was staunchly defensive of his mother and felt his father should be respectful of his views and not undermine his new life in Town 1.
[Z] was described as being friendly, engaging and talkative with a more matter of fact attitude in relation to her parents. Mr V said she lacked the sophistication of her older siblings but she, too, had clearly aligned herself with her mother. She expressed a view that her father was trying to hurt her mother by taking her and her siblings away. She described her mother in unequivocally positive terms and her father in unequivocally negative terms. She said she wanted to live with her mother and that she does not like her father’s partner, his house, Sydney, her previous school or her old friends.
Mr V said that all three children had adopted an unhealthy world view, beginning to see things in binary terms of black and white; good and bad. He said a healthier outlook would involve a good deal of ambivalence and a recognition that all people have good and bad attributes.
Mr V said the meeting between the children and their father and Ms A was awkward because the children were uncomfortable and reluctant to talk with the father about his proposals. He said [X] became the spokesperson for the children. Mr V said the father managed the difficult meeting well. He remained calm and acknowledged the children’s feelings and different points of view.
Mr V said that during the meeting between the children and their mother, all three children were very aware of their mother’s anxiety and preoccupied with reassuring her through comforting words and physical affection while vigorously defending her position to him.
Mr V said he was not in a position to make a determination of the competing facts. He said however, that there were a number of prominent features of the case which were obvious regardless of those facts. He said the children had obviously become involved in the conflict between the parents and all showed early signs of alienation from their father. This was evidenced by their unequivocal alliance with their mother and rejection of their father, their shared narrative with their mother and the recounting of stories of parental relations as if they had experienced them first-hand. He said all of the children were re-writing history to suit the position they had adopted. They claimed Town 1 was far better than Sydney, their current school was better than previous schools and their new friends were better than their old friends. All of them regarded any adverse behaviour by the mother as completely justified by their father’s actions.
Mr V said it was important to distinguish between objectively ascertainable facts and emotional facts. He said an example of an emotional fact adopted by the children was that their father cannot be trusted. He said it was common for actions to be justified on the basis of emotional facts but, in determining what is in the best interests of the children, it is important to look at objective facts. He said, for instance, that it was able to be ascertained objectively that the father had no contact with the children from December 2017 until March 2018.[7]
[7] Mr V was told the father did not see the children until March 2018 but in fact it was late February 2018.
Mr V said the issue of a change of residence was very challenging because of the children’s affection for and alliance with the mother. He said a change in residence may ultimately be a pyrrhic victory for the father in that the costs may outweigh the benefits because the children will be very upset with him and see him as causing their mother great pain. However, he also said that, despite the discomfort and anxiety he observed between the children and their father, he also saw evidence of warmth and affection. He also thought it likely that the father’s description of a softening in the children’s attitude to him when away from independent observation was likely to be accurate.
Ultimately Mr V recommended that findings be made on the contested facts and that the Court make a decision that would best support the children maintaining a meaningful relationship with both parents. He said that if the mother can be trusted to maintain and promote the children’s relationship with their father despite her previous behaviour, having the children live with her would be the course of least resistance and disruption. However if the Court was persuaded that the only way the children could have a secure relationship with both parents was by living with the father, that would be the appropriate course to take.
Mr V gave evidence on 12 July 2018 and was cross-examined by Counsel for each party and the independent children’s lawyer. The import of his evidence did not change. He emphasised the risks to the children if their alignment with their mother continued unchecked. He said all three children were caught in the middle ground between their parents. They could see both sides but were unable to manage the dissonance and so elected to align with their mother in order to cope.
Mr V was asked whether, if the children’s residence was changed, it would be helpful for the children to have a period in which they did not see their mother in order to become more settled in their father’s care. Mr V said that was a sensible approach and supported by the literature and other experts in the field of parental alienation. He said the period recommended is often between two and six weeks. However, when asked he said the children having the whole of Term 3 with their father without face to face contact with their mother would be appropriate in the circumstances.

The legal principles

Whenever the Court makes a parenting order the Court is required to regard the best interests of the child as the paramount consideration.[8] However the child’s best interests are not the only consideration. Other considerations such as a parent’s freedom of movement and right to live in a place of their choosing are also important considerations but they must give way if they directly conflict with the best interests of the child.
[8] Family Law Act 1975, section 60CA
In determining what is in the child’s best interests the Court must have regard to the primary considerations set out in section 60CC(2) of the Act which are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is required to give greater weight to the need to protect the children from harm.[9]
[9] Section 60CC(2A)
Section 60CC(2)(b) refers to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Senior Counsel for the father argued that the mother’s behaviour came within the definition of family violence because it coerced and controlled the children. That is an interesting proposition but one which I will not address in the context of this case. It may be with further consideration I would be persuaded about that but the matter was listed for judgment quickly given the circumstances and more time would be required to properly consider that issue. Accordingly, for current purposes I am not persuaded the children need to be protected from harm arising from abuse, neglect or family violence. The primary consideration therefore remains the benefit to the children of a meaningful relationship with both parents.
The central question in these proceedings is whether the children can maintain a meaningful relationship with both parents if they continue to live with their mother.
The Court is required to consider the additional considerations set out in section 60CC(3) of the Act. The first of these is any views expressed by the children and any factors the Court thinks are relevant to the weight it should give the children’s views. The children’s views are clear and unequivocal. All three want to live with their mother in Town 1. The issue is how much weight should be given to those views in the circumstances.
[X] is an intelligent and an articulate young person who will be 15 in less than three months. It is unusual for a Court not to give very significant weight to the clearly expressed views of a child of that age. However there is no doubt [X]’s views have been influenced by her mother. There is ample evidence of [X] expressing anger to her father about his poor treatment of her mother. She emphasised the impact of his behaviour on her mother and her desire to protect her mother. In a document entitled “Law case dot points”[10] [X] prepared a list of her father’s misdeeds. Some of them are terrible, completely false and known to be false by the mother. Despite this, at the time of the trial [X]’s misunderstanding had not been corrected by the mother.
[10] Father’s affidavit filed 12 June 2018 at annexure N
Mr V said a healthy family hierarchy is absent in the mother’s household because the mother and [X] operate as friends and seamlessly share information and decision making. He said that in a healthier arrangement the mother would make adult decisions and advise [X] of the outcome. [X]’s views are undoubtedly an important part of the evidence but must be weighed against all of the other evidence. In light of the evidence as a whole I am persuaded that their weight is significantly less than would otherwise be the case.
[Y] is also old enough to have significant weight attributed to his views but, for similar reasons, I am satisfied that his views ought to be given less weight than might otherwise be expected. He is clearly a young person under great stress and is clearly expressing views in the context of his desire to protect his mother and guard her interests.
[Z] at age eight is entitled to have some weight placed on her views. However I am persuaded she is very much influenced by her mother and her older sister. The weight to be attributed to her views, therefore, is low.
The next consideration is the nature of the children’s relationships with each parent and other people, including grandparents. I am satisfied the children have a close, loving and affectionate relationship with their mother. She has been their primary caregiver throughout their lives and the children derive a high level of comfort living with her. I am also satisfied on the evidence that the relationship between the children and their mother is not entirely healthy. The mother has failed to maintain an appropriate adult/child boundary. She has exposed the children to her antagonism towards the father and encouraged the children to become aligned with her against him. The result is the children have developed an unhealthy view of both parents – seeing the mother as all good and the father as all bad. I accept Mr V’s evidence that a healthy outlook would involve the children having a level of ambivalence about both parents and seeing each of them as having positive and negative qualities.
The children have a close and affectionate relationship with their maternal grandparents. Unfortunately the grandparents have joined in the deception of the father and encouraged and supported the children to do so which is antithetical to the children’s interests.
I find the children have a loving relationship with their father in spite of their mother’s actions. Their relationship with him is at times problematic because the children side with their mother whenever there is conflict between the parents. The father said that the children’s behaviour and attitude towards him has been very difficult at times such as when he took them to meet with the independent children’s lawyer and during the interviews with Mr V when they played their roles effectively to indicate they were very unhappy and wanted to live with their mother. However the father also gave compelling evidence that away from interviews and assessments connected with the proceedings, the children have settled happily and have, for the most part, been relaxed and happy with him. I accept that.
I am satisfied the children have a developing and affectionate relationship with Ms A.
The next consideration is the extent to which each parent has taken the opportunity to participate in decision making about long term issues, to spend time with the children and to communicate with them. Both parents have taken the opportunities available to engage with the children. The opportunities available to the father have been limited by his exclusion from decision making and communication with the children, and to a lesser extent from spending time with them. The father has gone to some lengths to maintain his relationship with the children, driving between Canberra and Sydney to save the children the burden of that travel between the parties’ separation in May 2013 and the move to Town 1 at the end of 2017. He has demonstrated a clear commitment to maintaining his relationship with the children.
The next consideration is the extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children. I am satisfied both parents have fulfilled their obligations in this regard.
The next consideration is a weighty one in these proceedings. It involves the likely effect of any changes in the children’s circumstances including the effect of any separation from either parent or another person with whom they have been living. The children have a strong desire to live with their mother and hope this is the outcome from these proceedings. If the Court orders that they remain living with their father in Canberra, it is likely the children will be significantly distressed. They would also be very worried about the impact of the decision on their mother. They may take matters into their own hands and carry out their threats to run away. The risk of this is reduced if the mother encourages the children to accept the outcome and reassures them about it. Although this would be difficult for her, she said in evidence that she understands how important that would be and that she would do it.
The father has taken steps to prepare for the children moving to live with him. He and Ms A have engaged the services of a psychologist to help them and the children deal with any distress felt by the children and the transition to the new arrangements. The father said he believes that although the children would initially be distressed, they would also accept the outcome and would settle in a reasonable period. He said for example that when [X] twice refused to attend the interview at School B, the father asked whether she would agree in the event she was ordered to remain in Canberra and she said she would. Of course it may be that [X] felt confident in giving that undertaking because she is confident the Court would not make orders contrary to her clearly stated views.
The next consideration is the practical difficulty and expense of the children spending time and communicating with a parent. If the mother remains living in Town 1 there will continue to be a practical difficulty in the children spending regular time during school term with their non-residential parent. The distance between the parties’ homes means such time will generally be spent during school holidays.
The next consideration is the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs. This is the most significant consideration in my determination. I am satisfied the father has a high level capacity to provide for the full range of needs of the children. He is an intuitive and reflective parent who understands the needs of each of the children and has the capacity to put those needs above his own. He has demonstrated this over the years by shouldering the burden of travel to see the children rather than requiring the children to travel and by providing practical and financial support to the mother and children. He has also approached the mother in a kind and open manner in an effort to improve the parental relationship. The father has detailed knowledge of the children’s individual personalities, strengths, weaknesses and educational needs. I am confident he will work to properly meet those needs.
I have much less confidence in the mother’s capacity to meet the needs of the children. There is ample evidence of her promoting her own emotional needs above the needs of the children. A stark example of this was the mother engaging in text message exchanges with [X] in which she said disparaging and hurtful things about the father’s partner, Ms A. It became clear as a result of subpoenaed material that [X] was suspended from School C in October 2016 for breach of the school’s policy about appropriate use of technology. It is not clear on the evidence whether the suspension happened before or after the mother engaging in the text message communication with [X] but it is likely to be around the same time because the father did not introduce the children to Ms A until early 2016 and some of the offending messages came after [X] sent her mother a photograph of Ms A early in the relationship. The mother said that, until specific questions were put to her in cross-examination, she had not thought about the double-standards and inappropriate messages she was giving to [X]. Besides the lack of respect and dignity she was according the father and his partner, she was modelling appalling behaviour for which [X] had already been suspended or for which she would later be suspended. Either way this shows a lack of capacity to understand and provide for [X]’s needs.
When asked why she spoke so viciously about the father’s partner the mother said she was upset when she saw a photo of Ms A wearing an engagement ring. Although this was many years after separation and the mother had also re-partnered, the engagement clearly had an emotional impact on her. I assume she felt so bitter about the father that she did not want him to be happy. Her actions in disparaging Ms A to [X] satisfied the mother’s emotions at the expense of [X]’s.
The mother conceded the children knew when she was upset. This was obvious during the interviews for the family report prepared by Mr V when the children were seen to physically comfort her. They were aware this would be a difficult time for her and were attending to her emotional needs. The mother ought to have been reassuring the children about the process.
On the third day of the proceedings the mother became distressed when pressed during cross-examination about her actions. She said the proceedings had been “a huge learning curve” for her and that she could now see her behaviour more objectively and understand its potential impact on the children which had not been previously occurred to her. She appeared deeply distressed and was crying. She vowed to get some counselling, change her ways and build a more cooperate relationship with the father. Although she appeared to be genuinely remorseful, I have some difficulty assessing the depth of her understanding and the strength of her commitment to behave differently. I am satisfied that until now she has profoundly lacked insight into the more nuanced aspects of children’s needs and has therefore been unable to meet them. Even if her remorse is genuine, her insight is still embryonic. I hope that with counselling and support she will significantly improve her capacity to provide for the needs of the children. For now I am satisfied the father’s capacity in that regard is far superior to hers.
The next relevant consideration is the attitude to the children and the responsibilities of parenthood demonstrated by each parent. The evidence relevant to this consideration has already been discussed in relation to parental capacity.
The next relevant consideration is whether it would be preferable to make an order that will least likely lead to the institution of further proceedings. This is difficult to assess. If the children live with their mother, given her history of disregard of Court orders, it is likely there will be further proceedings. If the children live with their father they may attempt to run away and further proceedings may be necessary. At the end of the day this particular consideration is not one which weighs heavily in my determination.
I am ultimately persuaded on the evidence that it is in the children’s best interests to live with their father. I am satisfied he has the insight and capacity to provide for the needs of the children and, importantly, he will actively support, encourage and protect the children’s relationship with their mother. If the children live with him they will have the opportunity to have a full and meaningful relationship with both parents. By contrast the mother lacks the capacity to provide for the full needs of the children. Not only has she failed to promote and protect the children’s relationship with their father, she has consciously and deliberately acted to undermine it.
The mother will no doubt be very distressed at this decision. However it is her behaviour and attitude which have necessitated the change in residence to enable the children to have the benefit of a meaningful relationship with both parents.
Although the mother’s expression of remorse for her behaviour may have been prompted by an increasing realisation of the likely outcome of these proceedings, I accept she loves the children and would not have deliberately caused them harm. She expressed late in cross-examination a strong intention to change her ways and to work with the father on building a stronger co-parenting relationship. I accept her intention in that moment was genuine. Whether she has the capacity to do so with the extra burden of this adverse decision is unknown. She said she would undergo counselling to help her deal with any residual issues she has relating to the marriage and its breakdown and to help her work towards a healthier co-parenting relationship with the father. I intend to make orders requiring her to undergo that counselling.
Both parties agreed to implement any therapy necessary for the children’s emotional support and each was prepared to make themselves available to the children’s therapist if requested.
The mother was initially staunchly opposed to moving to Canberra. However she said that if the father was successful in his application she will consider moving closer. There was discussion during submissions about how close the mother should live in order for the children to spend time with her every second weekend. The father initially sought orders for that to occur if she lived within a 25 kilometre radius of Suburb O, ACT. Through his counsel, however, he conceded that the distance could be significantly greater. I am mindful that the children spent every second weekend with their father when the distance between their homes in Canberra and Sydney was more than 200 kilometres. However the father did the travelling and the children have never had the experience of having to travel fortnightly to see the other parent. The older two children are of an age at which they are likely to be increasingly reluctant to leave their friends and social engagements on the weekend. If the mother lived within a radius of 70 kilometres from the Canberra CBD, she would in my view be close enough to spend time with the children every second weekend while allowing the children to still participate in sporting, social and other extracurricular activities. If the mother lived further away but closer than Town 1, I am satisfied the father would participate in genuine negotiations to work out a reasonable arrangement. If such an issue was unable to be resolved either party could return to Court in relation to that particular issue, although any further proceedings are of course, undesirable.

Parental responsibility

When making parenting orders the Court is required to apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility.[11]
[11] Section 61DA(1) Family Law Act 1975
Equal shared parental responsibility requires the parents to consult each other and make a genuine effort to make a joint decision about any major long term issues concerning the children.[12] The presumption does not apply if the Court is satisfied there has been child abuse or family violence[13] and may be rebutted by evidence that such an order would not be in the child’s best interests.[14]
[12] Section 65DAC
[13] Section 61DA(2)
[14] Section61DA(4)
In this case I have made no finding of child abuse or family violence and the presumption therefore applies. The question is whether it is in the children’s best interests to share parental responsibility.
The 2015 parenting orders made by consent provide the parties with equal shared parental responsibility. Despite this the mother has made decisions in relation to major long term issues concerning the children without any consultation whatsoever with the father. In addition to changes of schools and residence, on 4 May 2018 the father found out from [Z] that she was going to have a general anaesthetic to have a tooth removed. The father had not been consulted by the mother about that. In her evidence the mother said she took [Z] for a dental check-up and was told her tooth would need work because of decay. She said she took [Z] for a second opinion which was the same as the first dentist. During cross-examination subpoenaed material was put to the mother and she conceded it was the maternal grandmother who had taken [Z] for the first dental check-up.

The mother did not initially respond to the father’s request for information about the proposed procedure. The issue was ultimately resolved on the basis that the child would undergo dental work in Canberra on 17 July 2018.
Initially both parties sought sole parental responsibility for the children on the basis that the relationship between them is so poor they are unable to effectively make joint decisions in relation to major long term issues. When the mother came to the realisation that the Court may well order the children live with the father, she changed her position and sought equal shared parental responsibility on the basis that she would want to be involved in any decision making concerning the children. She also said that if the children were living with her she would now genuinely include the father in all relevant long term decision making.
The father maintained his position of seeking sole parental responsibility. However that was tempered by another order he sought which would require him to consult the mother about any major long term issue and consider her views before making the decision. In my view the father can be trusted to consult the mother about such issues as the evidence suggests that is his natural inclination. He has also expressed respect for the mother’s point of view given her knowledge of the children as a result of being their primary carer until now. The benefit to the children of the father ultimately having sole parental responsibility is that if the mother becomes uncooperative for any reason, he can make a decision without protracted negotiations or having to bring further proceedings. In my view that course will meet the children’s best interests.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 20 July 2018

[2018] FCCA 1919

20 July 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Procedural Fairness