JEVONS & JEVONS

FAMILY COURT OF AUSTRALIA

JEVONS & JEVONS

[2014] FamCA 220

FAMILY LAW – CHILDREN – Best interests – children’s views – with whom the children shall live and spend time - applications centre around the youngest of three children – two eldest children will live, spend time and communicate with each parent in accordance with their wishes – youngest child has lived with the father for some time while the eldest children have lived with the mother – sibling separation – children heavily involved in parental conflict and adult issues – father historically non-compliant with orders – father failed to pay child support since separation – father not supportive of the children’s relationship with their mother – children at risk of emotional harm by the father – youngest child to live with the mother – change of residence – restoration of sibling relationships

FAMILY LAW – CHILDREN – Parental responsibility – poor parental communication and continuing conflict between parents – parents have been separated for nine years – mother to have sole parental responsibility for all of the children

Family Law Act 1975 (Cth) ss 60CC, 64B
APPLICANT:	Ms Jevons

RESPONDENT:

Mr Jevons

FILE NUMBER:

NCC

321

2013

DATE DELIVERED:

4 April 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

19, 20 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rugendyke

SOLICITOR FOR THE APPLICANT:

Boyd Olsen

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

(Mr Scally)

Orders

That all prior parenting orders in relation to:
(a)       G born … 1997;
(b)       S born … 1998; and
(c)       H born … 2000
(the children) are discharged.
That the mother shall have sole parental responsibility for the children.

BY CONSENT IT IS ORDERED:

That G and S shall live with, spend time with and communicate with each parent in accordance with their own views.

IT IS FURTHER ORDERED:

That H shall live with the mother.
The mother shall arrange for H to attend on the Independent Children’s Lawyer for the Orders to be explained.
The father shall spend time with H as follows:
(a)For the first half of the school term holidays in 2014 commencing Saturday, 12 April 2014 at 10.00 am and thereafter for the first half of all school term holidays in even numbered years and the second half in odd numbered years.
(b)Unless otherwise agreed:
(i)for three weeks in each Christmas school holiday period, being the first three weeks in even numbered years commencing in 2014 on the first Saturday after the last day of term; and
(ii)the last three weeks in odd numbered years commencing in 2016 from the Saturday three weeks before school term commences and concluding at 10.00 am on the Saturday before school term commences.
(c)During school terms, commencing with the first weekend of the second term of school in 2014:
(i)each alternate weekend from after school Friday to before school Monday (extending to before school Tuesday if Monday is a public holiday).
(d)On the weekend of Father’s Day from 5.00 pm Saturday evening before Father’s Day until the commencement of school on Monday after it AND suspended on Mother’s Day from 5.00 pm Saturday prior to Mother’s Day for the balance of the period.
The parties must not denigrate the other party or members of the other party’s family to or within the hearing of the children and must not allow other persons to do so.
The parties must keep each other provided with up-to-date details of their address and contact telephone numbers.
The parties must notify the other party as soon as practicable (and no later than 4 hours) of any serious medical matter involving the children when the children are in their care.
The parties must:
(a)Within 14 days from the date of these Orders, contact Unifam Counselling and Mediation to arrange for the parties and children to engage with the Keeping in Contact Program;
(b)Attend and arrange for the children to attend the Keeping in Contact Program as and when the program co-ordinator directs.

THE COURT NOTES:

(A)These Orders are sufficient authority for the parties to obtain (at their cost) information in respect of the children from the children’s treating medical practitioners.
(B)These Orders are sufficient authority for the parties to obtain (at their cost) information (including notices, newsletters, reports and the like) in respect of the children from the children’s schools.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC321 of 2013

Ms Jevons

Applicant

And

Mr Jevons

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in relation to one child H aged 13years 6 months.
The applicant is the mother Ms Jevons. She is 41 years of age and employed full time as a healthcare worker.
Until November 2013, she had been in a de facto relationship for 7 years with Mr A. That relationship has ended. Her household now consists of herself and the parties’ two older daughters, G aged 17 and S aged almost 16. H spends time in the household on alternate weekends from Thursday after school until the following Monday morning and for half school holidays.
The application of the mother is that she have sole parental responsibility for all three children, but that G and S live with, spend time with and communicate with each parent in accordance with their own views.
In respect of H, the mother seeks an order that H live with her and have defined time with his father on alternate weekends from 9.00 am Saturday until 5.00 pm Sunday and extended alternate weekends through school holidays periods. Orders in respect of other specific issues are also sought.
In the alternative, the mother expressed willingness, during re-examination to return to original consent orders where H lives with her and spends alternate weekends and half school holidays with his father. This was in the context of an acknowledgment that H enjoyed time with his father and in the event that the mother could be confident that the father would cease saying negative things.
The respondent is the father Mr Jevons, he is aged 47 years and is a self-employed labourer by occupation. He has lived in a de facto relationship with Ms B. That relationship continues on a restricted basis. Ms B moves out of the home when any of the children are present.
H has been living with the father since May 2012, after which H did not return to his mother’s home. For almost a year, he did not see his mother at all. Since Orders were made in April 2013, H has been spending alternate weekends from Thursday to Monday and half school holidays with his mother and sisters.
The application of the father is in accord with the mother that G and S spend time and communicate with each parent in accordance with their own views.
The father wants H to live with him and continue to spend time with the mother in the current pattern that is, extended alternate weekends and half school holidays. Orders for some other specific issues are also sought.

Short history

The parties met and formed a relationship in 1986, when the mother was 14 and the father 19. They began living together three years later.
In December 1994 they were married and the three children were born quite close together between February 1997 and September 2000.
On 26 January 2005 the parties separated and were divorced in March 2007.
In the nine years since separation, a bitter struggle has gone on between the parents and continued through the course of this hearing.
Superficially the Court record indicates otherwise.
On 27 June 2006 final parenting orders were made by consent. Those orders provided for the children to live with their mother and have contact with their father on alternate weekends from Friday to Monday, every Wednesday night and for half school holidays. The parents were to share parental responsibility. Orders for provision of information and restraint on denigration were made.
On 24 July 2006 final orders were made for the distribution of the parties’ property, again by consent.
Despite his consent to Orders which apparently resolved all issues in dispute the father was profoundly aggrieved by the outcome in two respects. He was, and still is, resentful of the division of property which saw a higher percentage of property distributed to the mother. From the outset he has felt deeply dissatisfied with an arrangement that saw him having less than equal shared time with the children.
That bitter resentment of the father, and the reaction of the mother to it, has been destructive of family relationships. On his own admission the father has been scathingly critical of the mother, openly before the children. On her own admission the mother has confided in the children the intimate details of the parties’ marriage and its breakdown.
On 5 May 2008 the parties attended mediation, but no agreement for a change to the parenting arrangements was reached.
On 6 September 2009 S began attending upon a psychologist at C Practice. This is the beginning of what has proven to be episodic bouts of distress, anxiety and unhappiness for S, who in the past year has self-harmed and appears to be vulnerable to mental illness.
In 2010 the parties agreed to vary the parenting orders to change the week night that the children spent with their father each week. This is a rare piece of evidence of mutual co-operation.
In June 2011 S moved to live with her father and two or three months later, returned to live with her mother. Towards the end of that period G spent a week in her father’s home. G had become distressed about information that she said her father had given her about very personal issues for her mother arising out of her relationship with Mr A. G was clearly out of her depth and upset.
In September 2011 G began living with her father. This appears to have been at least in part a protest by G about delay for her in seeing an optometrist to obtain new glasses. G has been short-sighted since she was in year five at primary school.[1]
[1]Affidavit of Mother filed 24/01/2014, Annexure ‘C’
G took a somewhat threatening tone with her mother about the glasses and outstanding bills at school and a hair-cut. This is the first of many episodes where G was unknowingly caught in the financial aspect of parental conflict. Perhaps the mother could not give financial priority to glasses. It is more certain that the father could have earned the money to pay for G’s glasses and given it to the mother if he had chosen to do so. It is my impression that he took some pleasure in not doing that. G’s change of household required a change of school.
In March 2012 G returned to live with her mother, having seen very little of her in the six month period when she lived with her father.
Within two months on 2 May 2012, H is said to have decided that he would not return to his mother’s household. He remained living with his father. The father did not insist on H’s return. H did not see his mother for almost a year.
I accept given that both G and S were able to return to live with their mother when they chose to do so, the father probably did not prevent H from returning to live with his mother. However the father did not comply with the orders nor did he make any application to vary them.
Most concerningly, H spent no time with his mother in the same way that his older sisters had spent no time with their mother when each of them lived with the father.
In September 2012 the father scheduled an appointment with a general practitioner (GP) for S. The father did so having read S’s diary which caused him some concern; in particular, the revelation that S had been cutting herself on the upper thigh over the past few weeks. The father phoned the mother to tell her about having made the appointment and that he was worried having read S’s diary. Unfortunately he also went on to tell the mother, “It’s all because of your abuse and neglect”.
On 7 September 2012 there was a painful episode for S at the doctor’s surgery. The mother and S arrived and the father was already present. The father invited S to sit with him and the mother reports that he said to her,
Baby girl I need you to tell [Dr D] (the GP) you have been so depressed because of no after school activities with your mother
and that S replied:
That’s got nothing to do with why I’m upset. You don’t understand.
S then returned to sit with her mother and began crying. It was on that day that the mother discovered that S had been cutting herself with a razor on her upper thigh a number of times over a period of weeks. The GP referred S to a psychologist.
Also in September 2012 the father and his then partner Ms B were said to have ended their relationship, although both of them continued to live in the same house. The house was owned by Ms B’s uncle. The father continues to live there and pay rent. Ms B comes to the house when the children are not there. There is no evidence about this relationship other than the Father’s statements:
She (Ms [B]) thinks we are an item. I don’t think we are.
For fear of having to move I don’t take steps to separate.
In November 2012 the mother’s then partner Mr A sent the father a number of messages asking him to facilitate counselling between the mother and H to restore their relationship. The father responded by saying that H did not want to do that and as he was 12 years of age, it was his decision.
The texts became insulting and hectoring, but I note that the father said this:
I have asked [H] to ring her for Mother’s Day and her birthday and other times and he wouldn’t. I rang [the maternal grandmother] to tell her he wouldn’t and can she advise [the mother] (I figured she would rather hear it from [the maternal grandmother] than me). [H] grabbed the phone off me after 20 minutes and said ‘I’m not ringing her, I’m not going back, I’m staying here at dad’s’.
[H] has now told [Mr F], [the maternal grandmother], [the mother] and the Principal. I can’t do any more in this matter. l I have asked him to make some approach, asked if he wanted to go back for one night a week (but he saw the hours of lectures and guilt trips that [the mother] does when [S] and [G] have left and there is no way he will put himself in that position). [The mother] and [the maternal grandmother] can deny [the mother] does this, but it is to the detriment of the kids. Another reason why the kids have problems connected with [the mother], she doesn’t listen if it isn’t what she wants to hear.
I infer from this passage that the father made no active attempt to reassure H and comply with the orders and had every intention of allowing H to remain living with him and even more significantly, not to be having contact or communication of any kind with his mother.[2]
[2]Affidavit of Mr A filed 28/01/2014, Annexure ‘E’, p 24
In December 2012 the mother moved to her current residence at Suburb I.
In January 2013 there was an episode involving S and the family of one of her school friends which has caused her the utmost ongoing distress. It reflects quite badly on all of the adults involved.
S was staying at the home of her friend E in the days leading up to the long weekend at the end of January 2013. There had been an earlier telephone conversation where the mother told S that she was to be home by the Australia Day weekend, but S had wanted to stay longer.
On 23 January 2013 the father had sent his daughter a message by text, including these words:
Hi baby more fun from the … devil? [ the mother]. U do wat u want. I think her bullshit has gone on 2 long n mayb u should stay at [E’s] fulltime (or me in a new house) (no [Ms B]). [Ms J] [the friend’s mother] n I can sort that out ,n u can stay happy as [H] is here. It’s not wrong 2 feel that would be strange, but u need to reduce the stress.
On 24 January 2013 the mother received a phone call from Ms J, E’s mother. I accept that the mother thought that this was to be a discussion about S spending more time. In fact it was an assertion by Ms J that S wanted to live with her and that she “had looked up [S’s] rights and she can stay where she wants to live.” The mother reacted with fear and some confusion that a school friend’s parent had taken such a stance. The mother then received a text message from the father as follows:
You were told you were not treating the kids right. Eight years of hell. They all wanted to leave for years. You nasty selfish bitch one child to go.
The mother says and I accept, that she then realised the father had been in prior contact with Ms J.
The mother went to the police station to obtain advice and thereafter to Ms J’s home. Her step-father Mr K accompanied her. There was a terrible scene at Ms J’s home. E’s mother was not home. E’s father became quite distressed about what he should do and was on the phone to his absent wife, who was apparently directing him not to let S leave the house. S and Ms J’s children began crying and panicking.
I accept the evidence of the mother and her step-father Mr K that they had simply gone to the house to ensure that S came home. It was hardly inappropriate. S did leave Ms J’s home and returned home in the car with her mother and step-grandfather.
Information about this incident was spread at the children’s school. S fell out with her friend E and became increasingly distressed about the number of children who had learned about the incident.
Subsequently she changed schools and has lost that friendship with her former friend and Ms J’s family with whom she had been very close.
When asked whether he was pleased at the thought of S going to live in Ms J’s house, the father said that he had felt “ecstatic, she’d be somewhere where she was happy”.
Accepting this at face value, the available inference would be that the father believed that S could not be happy with him or her mother.
In fact I do not accept the statement at face value. The text message, especially the words “one child to go” strongly suggests that this was malicious mischief engineered by the father to punish the mother.
However I do not consider that it was the intention of the father to distress S and to cause her ongoing upset. His focus was on the mother and he simply failed to turn his mind to the possible consequences for his daughter. To the extent that he did not consider the likely outcome or the likely impact on S, I conclude that his capacity as a parent is limited in respect of his ability to meet the emotional needs of his children.
In February 2013 S ceased communicating with her father and at date of hearing that was still the position.
Since February 2013 there has been more than one incident of self-harm for S and to the extent that she could, she hid that from both her parents. It is quite inevitable in this matter that all three children have learned that what they say and do will end up in an affidavit used as a weapon by one parent against another. It is hardly surprising that they try to keep information important to them away from their parents.
On 25 February 2013 G needed her glasses and could not make contact with her father. She went into the father’s house through a window and retrieved her glasses and some other items. The father reported the matter to the police as a break and enter and had the matter investigated.
The father also posted a statement on Facebook that G was never to enter his house again. G read the message and felt publicly disowned.

The father said in his oral evidence that he now realises that he should have made it clear that he meant G should not enter the house without his knowledge. This represents some insight by the father but much more is needed. That he did not speak or write directly to his daughter about entering his home in his absence, but chose to announce his reaction using social media is an indication of a limited capacity to meet the needs of his adolescent daughter.
On 26 February 2013 G ceased communicating with her father and at date of hearing that was still the position. Because G told her father she didn’t want communication with him the father has made no contact with her at all and did not acknowledge her birthday last year or this. He took her statements at face value.
In his oral evidence the father said he now realised that he should have sent a card even if it didn’t reach her (which he feared) or if it did and she destroyed it. This represents an insight by the father that he has an obligation as a parent to do what is right and take responsibility for his decisions. However G’s 17^th birthday was very shortly before the hearing commenced so that insight had just arisen.
There is now a settled pattern in the mother’s household of the two girls spending no time and barely communicating with their father, and H regularly spending time in the household.

The issues

The issues in this matter are:
a)The capacity of each parent to meet the physical, emotional, financial and educational needs of the children.
b)The steps that each parent has taken to learn to communicate and cooperate with the other parent.
c)The willingness of each parent to support a relationship for H with his other parent.
d)The extent to which each parent is overtly critical of the other parent and household.
e)The significance of the separation of the siblings from each other.
f)The willingness of each parent to comply with orders.

The evidence

The parties relied upon the following documents:
a)Amended Initiating Application filed by the mother on 23/09/2013;
b)Affidavit of mother filed 24/01/2014;
c)Affidavit of Mr K (maternal step-grandfather) filed 24/01/2014;
d)Affidavit of Mr A (mother’s ex-partner) filed 28/01/2014;
e)Amended Response filed by the father on 03/02/2014;
f)Affidavit of father filed 03/02/2014;
g)Affidavit of father filed 19/03/2013;
h)Family Report dated 23/07/2014;
i)Children and Parents Issues Assessment dated 25/03/2013.

Ms Jevons, applicant mother

The mother presented as an articulate, calm and softly spoken person. However the evidence suggests that she is someone who reacts with considerable emotional intensity to matters that are upsetting to her. She concedes that about herself. The atmosphere in her household is regularly dramatic, with extended family members present and discussing past and present events arising from the parties’ marriage in the presence of the children and sometimes directly to them.
The mother also conceded that there have been difficulties in her household over the past seven years for the children. None of them formed a particularly close relationship with Mr A. They perceived him as interfering in their relationship with their mother by shutting down arguments and discussions. They were not upset when told by their mother in November 2013 of her separation from him. S and H apparently appeared to be pleased. Their attitude is not without some justification.
S in particular has wanted her mother to be more physically and emotionally available to her and has felt disappointed about her mother working night shifts. The father took up her complaints and routinely criticised the mother’s actions in leaving Mr A in charge of the children over-night and of not providing stimulating extra-curricular activities.
To his credit the father said in his oral evidence that having read the reports of S’s therapist, he now understands that he had made “a big mistake” with his open criticism. He reflected further, accurately in my view, that he should have “shut up and listened” to the children instead of joining in with his own negative statements.
However, especially in S’s case, the damage has been done and she has become uncertain about whether her mother’s absence from the home for work is a reflection of a lack of affection for her. In short, she has doubted her mother’s love. In my view this is a direct result of the bitter campaign that the father has run of direct criticism of the mother as a parent.
The mother described S as still having emotional outbursts and needing a lot of care and guidance. She has become jealous of her brother. Perhaps because of the long period of time when H was not spending any time in the household, there has probably been a degree of celebration in the weekend time and the holiday time that H now spends with them.
To the extent that there is a rift between S and her brother, that also arises from the father’s attitude and behaviour with the children.
There have been times when the children, especially S, have stayed with family members, particularly with an aunt when they are not getting along with their mother. The mother has clearly been hurt by the complaints of the children, especially S; that she has not been as physically and emotionally available to the children as they would like.
I formed the impression that she felt that way at times herself, but that is the circumstance she has sometimes found herself in, in relation to their support. She works to support the children
None of the children are independent yet and cannot be expected to understand the conflict for the mother between her obligation to support them financially and her obligation to support them emotionally.
The father acknowledges that he has been relentlessly critical of the mother to the children. He routinely referred to her as “the bitch” and “the … devil” and this has been harmful. Unfortunately the mother has also been critical of the father to the children in a different way. She has focused, particularly with the two girls, on the reasons for the breakdown of the marriage, telling the children about their father buying pornography during the marriage and speaking to them about affairs that he had had during the marriage which she learned about after separation.
The mother conceded that she had been attempting to justify the separation to her daughters and perhaps to vindicate herself in their eyes. It was immature conduct on her part and has left them burdened about the reasons for their parents’ separation.
G came home to the mother with a story about their father and five women who had become pregnant to him. The father confirmed this story during cross examination whilst correcting the number to four women. It was information which G should not have been told by the father, true or not. The mother said she heard G tell her sister S about this. The situation was not well contained. S became so upset that she told her therapist she found the whole thing disgusting and did not want the father as her father any more.
I am satisfied that the mother has allowed free ranging discussion of the reasons for separation and the father’s perceived deficiencies within the extended family and including the two girls. I do not consider that she intended to do them harm, or even upset them, but simply overestimated their maturity and failed to recognise that the circumstances of the breakdown of the marriage should have been kept private between the parties.
I concluded that the mother does understand the terrible impact on her children of the conflict, but has felt powerless. Attempts at addressing the situation with the father were invariably met with at best sardonic humour and at worst, vitriolic abuse.
Further I conclude that the mother has for her part tried to comply with Court orders at least until 2012. She also showed a considerable degree of flexibility when H refused to return to live with her, waiting for several months before filing the application for his return which gave rise to these proceedings.

Mr K, the maternal grandfather

Mr K is the mother’s step-father. He met her mother, the maternal grandmother when the mother was 15. He has willingly taken an active part in her life and the lives of her children. He is their “pop” and his evidence of the extensive times spent by the children with their grandparents is unchallenged.
Mr K presented in a calm confident manner, which also reflected genuine affection and concern for his grandchildren.
In April 2005 the mother and children were living in the home of her mother and Mr K. She received a call from the father and spoke to Mr K about it:
[The father] just called to say he is not going to return [H] to me.
Mr K accompanied the mother to the father’s home. The father told him that he had spoken to a Government department and had been advised:
I am allowed to keep [H]. You can come inside and speak to someone from that Government department.
Mr K went inside. He saw H asleep in a bedroom and whilst the father was on the phone, advised the mother to get H out of bed and leave the house with him. She did so.
Mr K then spoke to the father and had a phone conversation with an officer from the Government department that had been contacted (perhaps DoCS). Mr K asked the officer whether the father had told her that H was only four years old and the answer was “no.” Just before Mr K left the father’s home, the father said to him:
I want to have equal custody of the children to make [the mother] pay me one-half of her single parents pension. I’ve got my driver’s licence back so I can earn enough money to hire a hot shot lawyer so I can beat [the mother].
The open, decisive way that Mr K handled this incident in 2005 with H is very similar to the way he handled the incident in 2013 with S and Ms J’s family. I am confident that Mr K plays a supportive and effective fatherly role with the mother and a loving and supportive grandfatherly role with the three children.
Time in the home of their grandparents represented an easy, enjoyable and fun-filled opportunity to play cricket and enjoy other outdoor activities, which are not always so readily available in the mother’s home and which the father is concerned to ensure that the children have. There is clearly a benefit to the children in maintaining this close family relationship with the maternal grandparents.

Mr A, mother’s former de facto partner

Mr A is 43. He lived with the mother from mid-2006 until November 2013. Just as the mother was, he is confident and certain that the relationship between them has now ended, although they continue on good terms. There was no evidence nor did there need to be about the cause of the breakdown of the relationship. However the ending of the relationship has had a significant impact and in my view a restoration of that relationship would now represent a change of circumstance for the children.
To his discredit, Mr A took the children’s birthday and Christmas money without their knowledge or permission, at least twice, for his own purposes. There were often arguments between the mother and Mr A about money, particularly when he was unemployed.
Mr A was not a particularly impressive witness. In relation to the taking of the children’s money, he was unable to say how much had been taken, although he asserted that it had been very recently repaid. He conceded that there had been strain in the relationship with the mother, particularly when he was out of work and conflict in front of the children which had affected them. He also agreed that he found it uncomfortable to be present when there were arguments between the children and their mother and that he intervened if he formed the view they had become disrespectful. Whilst this is understandable so is the resentment of the children that Mr A “shut down” disputes between themselves and their mother.

Mr Jevons, respondent father

The father is 47. He is a self-employed labourer.
The father had an unusual presentation. Throughout the proceedings, he regularly and repeatedly smiled quickly in a way that could have suggested that he found the proceedings funny or less than serious. I do not think that was the case. I concluded that it was an uncontrollable nervous habit.
I found him to be a candid witness, at times very much against self-interest. He freely agreed that he had been bitterly critical of the mother, at least since the time of separation in January 2005 and had not shielded the children from his views.

Attitude to parenting responsibilities

The father agreed that he believed the property settlement in 2006 was unfair to him because the mother received a higher percentage of the equity in the family home. He took the view, from which he has not resiled to any extent, that the mother should therefore be fully financially responsible for the children and that he should not contribute.
He has acted on this view and arranged his financial affairs so that his income falls just below the threshold for Child Support: “I just keep the nice customers enough to keep afloat”.
He also acknowledged that although the parenting orders in 2006 were made by consent, he has been angry ever since about the outcome, which should have been equal time for both parents. The father has not reconciled to the reality of the orders.
There were some very puzzling aspects to his evidence. One of them was that he was particularly scathing about the mother’s failure to pay for the children to have interesting extra-curricular activities out of school, particularly sport and exercise. His other main area of criticism was the absence of the mother from the home on occasions overnight due to working shifts as a healthcare worker.
He readily described the mother as lazy and unwilling to get out of bed during the marriage and in the years post-separation. He did not appear however to see any link between his failure to make any financial contribution to the raising of the children with:
(a)The need of the mother to work to support the children;
(b)That money might be scarce with three children to raise alone so that extra-curricular activities could not be given priority over necessities; and
(c)That during the marriage, the parties had three children within three and a half years and the mother was mostly responsible for their day-to-day care, which was most likely tiring. Further that post-separation working fulltime and caring for the children, especially including rosters for night shifts, would routinely see her tired and in bed during the day.
The father apparently genuinely had not contemplated that his failure to meet his responsibilities for the financial needs of the children had a direct impact on all of the matters of which he was most critical. I wondered whether the father understood parental obligation and responsibility to any extent.

Information given to the children

In the same open way the father conceded, that he had told the children that at age 12 they would be able to make a decision where to live. He genuinely did not seem to have considered that making that statement unilaterally, that is without the consent of their mother to such a choice being given, might mean that he was setting them up for failure or conflict.
He also did not appear to understand that he was directly telling the children that they would be under pressure at age 12 to choose to come and live with him. They had lived with their mother since separation, so by raising the topic of choice, the obvious consequence was that he was advising the children that they would be able to choose to come and live with him once they were 12.
He does not appear to have considered that he had any personal obligation to be compliant with the orders that he entered into in 2006. When each of his children has at times made a statement to the effect that they want to be with him and not their mother, he has embraced the statement, allowed them to stay with him and to the extent that they have given reasons which involved criticism of the mother, readily joined in the criticism.
H is reported to have said to his father, “If they make me spend most of the time over there (at the mother’s), I’ll stay here all the time”.
On his own evidence, any positive events in the household reported by H to his father have not been referred to in the father’s affidavit. Anything that the father perceived as negative in what H told him was included in the father’s affidavit. Indeed it is composed of little else.
There was nothing to indicate that at that time the father remonstrated with H to any extent. The father did not explain that he himself had an obligation to follow the agreed orders or on the more reassuring basis, that H would undoubtedly enjoy spending time with his mother and sisters once again. I am not confident that the father has the present capacity to support H’s relationship with his mother, particularly not over stated opposition by H.
Until this hearing there has not been any sign that the father has understood the terrible impact his conduct has had on his children. I conclude that he withdrew into himself and dwelt on his feelings of disappointment and resentment over money and the arrangements for the children. It has gone on for nine years.
His actions suggest that he regarded the Court orders as guidelines at most, but that the expressed wish of a child took priority over the orders and priority over the view of the other parent.
I accept that the father was shocked when he read the material from S’s therapist about the emotional pain S experienced. He did realise that he had made a big mistake; that the pleasurable sport for him of using the children’s words to hurt their mother also hurt them. It does suggest that the father has not stepped back and looked at his own behaviour at any time until the hearing.
The father readily agreed with the proposition that he loved both his daughters. Strangely he said he did not think any of the three children loved their mother, although they all believed that she loved them. I take this to mean that the father believes that the mother does not love her children, although they think she does. It can hardly be the case that the father would have consented to orders for the children to live with their mother in 2006, if he was not confident in her competence to care for them and her willingness to do so.
In my view the father has simply not acted responsibly towards his children although he loves them. He has withheld money from their mother both to punish her and to remind her of his resentment over the property settlement. By doing so, he has hurt his children in two ways. He has deprived them of some material benefits and he has caused them to be critical of their mother for being insufficiently available to them, particularly S.
The cause of her unavailability, at least at times was her obligation to work. He has seized on statements made by the children instead of reassuring them that their complaints about their mother could be seen in a different way, he has agreed and amplified what they said.[3] The father has caused emotional harm to his children
[3]Affidavit of Mr K, filed 24/01/2014, pars 17-24

Attitude to Family Report

The father apparently was easily able to dismiss the recommendations made by Mr L in his family report.[4] Those recommendations, set out below, were particularly significant:
(a)That both parents engage with the Keeping in Contact program operated by Unifam.
(b)That both parents seek supportive therapeutic counselling from a suitably qualified and experienced health care practitioner with the assistance of their treating general practitioner, to assist them to separate their own personal feelings about the other parent from their responsibility as a parent to facilitate their children’s relationship with the other parent to the maximum extent consistent with each child’s interest.
The father said that he had not wanted to go over all that had happened over the years. It is most unfortunate that such helpful and well directed recommendations were rejected or ignored.
[4]Family Report dated 23/07/2013, pars 86-92

In the second set of interviews by the Family Consultant in July 2013, H is said to have presented as anxious and keen to avoid discussing matters regarding himself or his family.[5]
[5]Family Report dated 23/07/2013, par 63
Mr L did not press him to discuss things, given his very clear indication that he did not wish to do so and yet the evidence of the father is that when H emerged from this interview, he ran to his paternal grandfather crying. Mr L indicated that there had been no distress evident in H, other than the anxiety as stated and that nothing had happened which would have caused him to be upset in that way. I conclude that H was feeling under pressure on that day and that he was not in any sense a relaxed confident boy of almost 13, who had come along simply to express a truly held view.
I note with particular concern that the father said he did not think H was struggling to cope with the father’s criticism of his mother in the way that he said he now understood S has struggled. The father rejected the possibility that H might be struggling to cope, but not able to speak to his father about his feelings.
The father gave quite touching evidence of time that he spends with his son most afternoons after school, where there is exercise, bike riding, trampolining and more recently wrestling. The father said that he does not use the words to his son that he loves him and the boy likewise; there is no cuddling and he does not kiss his son, but he believes that his son interprets the wrestling as love. It strongly suggests that perhaps because of his age, or his personality, H does not articulate his feelings and almost certainly does not want to be disloyal to either parent. The risk of H being cut off from his mother is high if he continues in the fulltime care of his father.
H was able to say that he did not have any concerns of abuse of any kind in his mother’s household, but declined to say anything further. Strangely he said he had not missed his sisters since he ceased spending time in his mother’s household and had also told his grandparents he did not wish to see them. H explained that he had not communicated with any other maternal family because “they are all on mum’s side”.
Mr L analysed the situation as being that H viewed the ongoing conflict between his parents as:
.. a war in which everyone needs to be on one side or the other and it was not possible to be on both sides, or neither side. [H] explained that his sisters were now on his mum’s side and he was now on dad’s side.
Significantly, the father said in that interview that he would likely struggle with forcing H to spend time with his mother if H did not wish to and that he may require specific support from counsellors or similar to achieve this. There is no evidence that counsellors, or others, were approached by the father after the interviews in an attempt to ensure that H spent time with his mother. However when orders were made in response to the mother’s application about two months later, H was compliant and has spent alternate weekends and holiday time ever since. The crucial question is whether that compliance would continue if final orders were made to that effect.
Mr L advocated for strong caution in allowing the current arrangement to continue, unless the Court was satisfied that the father did have the capacity to support H’s relationship with his mother. The evidence of the father is that about a month before this hearing, the father had a conversation with H about possible outcomes. The father reports that H said to him, “If they send me over there most of the time, I’m not going at all”.
Advocate for the Independent Children’s Lawyer asked the father what would happen if H was living with him and said he no longer wanted to go to see his mother. The father said he couldn’t imagine that happening but if it did he would ask H why and if H gave no reason, he would ring the mother and keep on asking H to get a reason. The worrying aspect of that response is that no part of it involved saying to H, “this is what is happening” and ensuring compliance.
The father’s behaviour in the past has been to allow children to state what they want and go along with it. It would be unsafe to assume that that would not happen again.
The father had also spoken to H about school. H is in year eight at N High School at Suburb N. H does not want to change schools, so the father, although he has never approved of a Catholic education for the children, is content to keep him there. However he said that the responsibility for paying the school fees would remain with the mother and he would make no contribution, “She enrolled him”.
During submissions the father changed his position and said that he would pay the school fees , adding in the candid way typical of all his evidence, that his own father who was present in Court, had told him to say that.
I accept that the Independent Children’s Lawyer’s submission that the father did gain some insight during the course of the hearing, but I also accept the evidence of Mr L that after the beginnings of such insights, many more steps have to be taken.

Mr L, Family Consultant

A key to Mr L’s evidence is his repeated statement that the willingness of the parents to promote relationships and not to denigrate was at the heart of what orders should be made. If the Court found that the father had discouraged and not encouraged H’s relationship with the mother, there should be no time between H and his father at all, but if it had been less extreme than that, then significant and substantial time.
I do consider that from May 2012, if not before, the father did discourage H’s relationship with his mother, on the basis of his own extremely poor opinion of the mother as a parent and that he did not encourage or insist on compliance with the orders. However I accept that there has been compliance since the orders were made in April 2013 and that both parents and all three children report a positive experience arising from those extended weekends with the mother.
To some extent Mr L was criticised for not having pressed H for the reasons why he wanted what he did and also how he would feel if he was not permitted to live with his father. I accept that H had made it clear that he did not wish to elaborate and that Mr L did not push the boy, or run him through hypothetical situations in those circumstances.
In the view of Mr L it would be extremely difficult for H to say something to his father that he thought his father would not want to hear. This is consistent with the statements of both girls that if they said something their father disagreed with, he criticised and just kept on until they gave up. Mr L identified this kind of conduct by a parent as something that primary school age children could tolerate, although they did not particularly enjoy it, but would challenge as adolescents.
There are obvious disadvantages for H’s development in never expressing different views to his father. There are also disadvantages in H being criticised until he changes his view or at least pays lip service to agreeing with his father. This would be less significant if I was confident that the relationship between the parents would allow for communication between them and management of behavioural problems as they arose. There is no basis at present for any such confidence.
I accept the evidence of Mr L that children should not be determining where they live, particularly if they are children who have been exposed to conflict and adult information. The risk is that they determine where they live based on a desire to please or support a parent. I also take into account the evidence of Mr L that the closer in this case the orders came to a shared cared arrangement, the more likely it is to fail, given the increased level of flexibility required for shared care to work. I infer from that evidence that the present arrangement of four days per fortnight is at the upper level of what is likely to be most beneficial to H, especially as it has proven to be workable with H living with his father and spending time with his mother.
There is the further issue of H’s developing identity. Mr L expressed the view that there is a huge risk to H’s self-esteem if he continues to be exposed to criticism of his mother.
I asked Mr L about the impact on H of the unusual relationship between the father and Ms B. I conclude from his response that in the event that H was not exposed to the uncertainties within that relationship, there would be no detrimental effect on him. Likewise, there would be no detrimental effect from continuing in his present school, despite his father’s views, provided his participation at the school was actively supported by the father. The evidence of the father suggests that it would be.
The father cross-examined the Family Consultant as to some minor inaccuracies in his report. There was one significant matter. Mr L had reported that the father paid minimum child support until 2008, with an additional single payment of $30. The father picked him up and challenged him on that, on the basis that he had in fact paid no child support until 2008 and that it had only been the $30 single payment and perhaps also for six ballet classes for G. It was a further corroboration of the complete failure of the father to understand the significance of his attitude to financial support.

The law

The objects of the Act in relation to parenting Orders are to ensure that :
a)     Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and
b)     To protect children from physical and psychological harm, with this consideration to be given greater weight
c)     To ensure that children receive adequate and proper parenting to help them achieve their full potential
d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to determining the best interests of these children.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

The three children do not all have a meaningful relationship with both parents. G and S are presently choosing not to spend time with or communicate with their father. There are realistic explanations for why each girl has made that choice at this time. Given the history, I consider it likely that each of them continues to hope that a relationship with their father can be restored on better terms than in the past.
H does have a meaningful relationship with both of his parents at this time. He is undoubtedly concealing some of his feelings and views to avoid the clash of loyalties which has put him under pressure.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence

There is a need to protect these children from psychological harm. They have been exposed to emotional abuse by both their parents. Most significantly, they have been exposed over most of their lives, but certainly over the last nine years to the relentless and scathing criticism of their mother by their father. All of them have been hurt by it. It appears that S has been damaged by it and may require therapeutic assistance for some time to overcome the consequences which include self-harm, anxiety and depression.
In relation to H, there is a need to protect him in the same way, although he is not showing overt signs of damage. He was four when his parents separated and would not since that time, have been present when they exchanged any pleasant word in person or through correspondence. His parents have taken no step to improve their communication, or to explore a way to parent without mutual criticism.
Fortunately the parents have agreed for the girls to live and spend time with each of their parents according to their wishes. However, although they are 17 and 16, they are not adults yet and there does need to be certainty about decision making. An order for parental responsibility is necessary. Given the extremely poor relationship between the parents and the expressed views accepted by the parents that the girls presently have chosen not to include their father in their life, it would be impracticable to make an order for shared parental responsibility. Accordingly the mother should have sole parental responsibility for G and S.
The only contested orders sought are in relation to H. The father proposes that H live with him and spend defined time with his mother and by implication his sisters.

Section 60CC(3)(a) - any views expressed by the children

H’s strongly expressed view is that he be allowed to live with his father. He has been unable to identify any fears or concerns about his mother’s household. He has had some complaints about his mother’s partner, which were somewhat justified. There is no evidence before me of why H would not have wanted to spend any time with his mother for the period of 12 months after he began living fulltime with his father in May 2012. I conclude that the father did not encourage and probably discouraged H from spending time with his mother at least by denigration of the mother.
H has for some time considered that he is a participant in a family war and has taken his father’s side. Conflict between his parents would be all that he could remember, given that he was four when they separated. He believes his sisters have taken their mother’s side. It is not an unrealistic belief given his experience of family life.
In those circumstances, where H believes it is impossible not to take a side, and that he has, I cannot give as much weight to his views as might be expected for a boy of 13 now in year eight at high school. I accept the submission on behalf of the Independent Children’s Lawyer that H is assessed as within the developmental parameters and that at his age, significant weight should be given to his wishes. However I do not agree that his expressed wish should simply be implemented.
Although there are some positive signs in what the father said during the course of these proceedings, there is no objective evidence of him having done anything to date to obtain therapeutic assistance for himself; to try to restore relationships with his daughters to any extent; to come to understand his failure to comply with orders and to support his children. There has now been an expression of an intention to do those things, including an intention to participate in the Keeping in Contact program. I must not make orders out of hopefulness that the father will change his ways.
Depending on the reaction of both parents to final orders, what was said during this hearing might represent the beginning of peace between them, or it could be a cease fire with the war to resume when final orders are delivered. There is no proper basis for me to assume that things will continue to go along well as they did pursuant to interim orders, once these Court proceedings are complete.
Accordingly I do give some weight to H’s views, but not to the extent of simply implementing them. I give them weight in this way, that it is agreed that H enjoys time with both his parents; he enjoys time with his sisters in his mother’s household. There was no difficulty for H living with his mother until May 2012. I am more confident that his mother would support his relationship with his father, than the reverse. Accordingly I conclude that his best interests are advanced by living with his mother.
The impact of his views or wishes is in how much time he spends with his father. I do consider that a bare weekend from Saturday morning until Sunday afternoon and extended weekends through school holiday periods, but not block time, would be a blow for H and would deprive him to an unreasonable extent of the activities that he enjoys with his father.
There is risk for H in his father’s household, but his views and the objective evidence encourages me to allow him substantial and significant time with his father.

Section 60CC(3)(b)- the nature of the relationship of the children with each of their parents

H has his most important relationships with his mother and his father. He has also drawn a lot of fun and support from his relationships with his sisters, his maternal grandparents and cousins.

Section 60CC(3)(c) - the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child.

At all times each parent has wanted to participate in the life of the children, to spend time with them and to communicate with them. The difficulty that they have had is in their inability to unite as parents in the interests of their children.
Theirs is an uncooperative and hostile relationship inconsistent with the consultation and compromise required for shared responsibility.

Section 60cc(3)(ca)- the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child

It has to be said that the father has completely failed to fulfil his obligation to maintain the children. He has quite resolutely refused to give the mother any money for his three now teenage children. His evidence, which I accept, is that “they did not go without” when they were with him and he certainly paid for a holiday cruise for them, which they enjoyed.
The father indulged himself by providing such a holiday while simultaneously criticising the mother for not providing interesting extra-curricular activities.
He has reduced his capacity to work to ensure that he stays below the statutory minimum of income, which would require him to pay child support. It has been irresponsible, has placed pressure on the mother and has deprived the children of some opportunities and easy enjoyment that they otherwise might have.
The father adjusts his employment to ensure that he earns just under the limit for an assessment of child support. He has made one payment of $30 by way of child support since separation. The mother has therefore been solely financially responsible for the children for the past nine years.
It is a significant matter which I take into account.

Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from a parent , child or other person

The likely effect of a change in H’s circumstances is that if he returns to live predominantly with his mother, he will have more opportunity to maintain his relationships, not only with her, but both his sisters and his maternal family. He will continue at the same school and there will be no disadvantage in that regard. He will spend less time with his father, but although his father is likely to miss him very much, there will be sufficient time for H to maintain their relationship.

Allowing H to continue with the current pattern is to run the risk of the arrangements changing after the final hearing, on the basis that H says he does not want to see his mother or the father interprets H as wanting not to see her. Twelve months of being cut off from his mother could not fail to have had an impact on H, although given his wariness in disclosing his feelings, I am uncertain of what exactly that impact was.

Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent

H will easily be able to spend time with his father, who can pick him up from school at the commencement of a period of time and drop him back, as he presently does.
All the children can communicate electronically with their father and no doubt that will continue.

Section 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Each of the parents does have a capacity to meet the children’s needs. The mother has been in a relationship which has been quite unsatisfactory for the children. Her partner apparently struggled with how to support her whilst allowing the healthy path to independence through discussion to take place for the three children. He has been self-indulgent in respect of his own needs at their expense in some respects. That relationship has ended.
However the mother has worked to support the children, she has paid fees to have them educated in a system in which she is confident they are doing well and indeed there is no complaint about their academic achievement.
The father has shown a limited capacity to understand and meet the emotional needs of the children. He began to express an understanding of the mistakes he has made in that regard during the course of this hearing.
The parents are intelligent people, who understand their children’s need for education and intellectual stimulation.
To the extent that the father has focused on the rights of parenthood and not the obligations, particularly financial support, I consider that focus to be a limit on his capacity as a parent.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and of their parents

H will be 14 in September this year. He is moving swiftly out of boyhood and into adolescence. His need to maintain close, loving, secure relationships with his parents is crucial. His self-esteem and confidence is at stake. If the father does not cease his habits of mocking and criticising the mother to the children and of criticising the children when they disagree with him, they will continue to suffer.
G is a 17 year old girl in the final year of high school; she is close to independence. She achieves well at school and is no doubt looking forward to an independent life.
S is presently struggling. At almost 16, rather than pushing for independence, at this time she is very much asking for more time and more support from both her parents and especially her mother.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

Both parents have at times shown an irresponsible attitude to the children, in that they have lost focus on their needs whilst caught up in attacking each other and in the case of the mother, defending herself against attack.
All the children have at times had their words picked up and used as a weapon against the other parent, which of course would have made them feel guilty and disloyal.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

The orders that were made in 2006 have been complied with so far as the mother’s input is concerned. In 2012 the two girls stepped back from their time with their father. Both parents have accommodated their decisions.
The father has not complied with orders at times. Either he has simply failed to understand that he had an obligation to comply with them; or he understood and chose not to.
To restore the three children as a group of siblings in the home of the mother, is to restore a pattern that has worked well in the past and brings significant benefit for H as being part of the family unit again.
To leave H in the majority care of his father is to run the risk that the regular time with the mother might fall away with contravention proceedings and further damage to his confidence. I particularly note that H’s tearfulness after interviews with the Family Consultant is a matter of concern. There is a real possibility that H is holding in the kind of painful thoughts and feelings that S has articulated.
In that regard, G expressed to Mr L that she feared that she had become unemotional and wished to be able to feel something. Each child has reacted very differently to the brutal relationship between their parents.

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

H is the third and youngest of the parties’ children. Each of the parents realises that two of the children are now almost completely grown up and to differing extents that they have grown up as children do in war torn countries; disrupted by fear and outbursts of anger.
Just as Mr L recommended, there is an urgent need for the whole family to learn a different way to communicate and to learn habits of self-respect, restraint and courtesy, so the children will be acceptable members of society and able to put their obvious intelligence to good effect in study and work.
If the parents have gained insight through these proceedings, they might conclude that what they could do for their children by way of reparation is to go through the painful process of considering what has happened and trying to change.
For all the reasons stated above and because H will be living with his mother, orders have been made for all three children to be in the sole parental responsibility of the mother, for H to live with her and to spend regular extended alternate weekends with his father and holiday time.
Orders are made accordingly.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 April 2014.

Associate: Ms

Date: 4 April 2014

[2014] FamCA 220

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