KANDA & KANDA

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANDA & KANDA

[2020] FCCA 736

Catchwords:
FAMILY LAW – Parenting – best interests of the child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D

Applicant:

MS KANDA

Respondent:

MR KANDA

File Number:

PAC 547 of 2018

Judgment of:

Judge Newbrun

Hearing dates:

5, 6 & 7 February 2020

Date of Last Submission:

13 March 2020

Delivered at:

Parramatta

Delivered on:

3 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitors for the Applicant:

Mr Prasad

Counsel for the Respondent:

Ms Friedlander

Solicitors for the Respondent:

Mr Haddad

Counsel for the Independent Children's Lawyer:

Ms McConaghy

Solicitors for the Independent Children's Lawyer:

Ms Curran

ORDERS

The parties shall have equal shared parental responsibility for the children X ("X") born in 2006, Y ("Y") and Z ("Z") born in 2008 except for decisions relating to the children's education for which the Mother shall have sole parental responsibility.
That the children live with the Mother.
That the Mother make arrangements within 14 days of the children coming into the mother’s care for Y:
(a)To be assessed by an educational psychologist for learning difficulties; and
(b)Ensure that any required psychological assistance be provided without delay.
That within two (2) months of X relocating to live with the mother, the mother shall engage the services of a Family Therapist to work with her, X and any other family member the Family Therapist requests for the purposes of Family Therapy in an attempt to improve their relationship.
That the Mother be permitted to provide a copy of the Family Report prepared by Dr A dated 28 October 2019 to any service assisting X with respect to the issues identified by the Family Report writer.
That the Mother make arrangements forthwith for X to be assessed and supported with respect to:
(a)Identified anger management and mental health concerns;
(b)Possible need for tutoring in mathematics; and
(c)Ensure that any such difficulties be addressed professionally.

Spending Time Arrangements

That for the first three (3) months of the children relocating into the primary care of the mother in Melbourne, the children will spend no time and will not communicate by any mode with the father, to enable them to transition and settle into the primary care of the mother.
Subject to Order 7, the children shall thereafter spend time with the father as follows:
(a)For half of the first term/Autumn, third term/Spring and fourth term/Summer holidays as agreed between the parties and failing agreement, the father shall have the first half of such holidays in even years and the second half of such holidays in odd years and each alternate year thereafter;
(b)For 10 days in the mid-term/Winter holidays as agreed between the parties and failing agreement from 3:00pm on the first Sunday of the school holidays until 3:00pm on the second Wednesday of the holidays;
(c)For such other times as the parties may agree.
The changeover location shall be as agreed between the parties and failing agreement, shall occur at Sydney or Melbourne Airport (as applicable) or McDonalds at Suburb B (NSW) and KFC at Suburb C (VIC).
The costs associated with travel to facilitate the spending time arrangements shall be equally shared between the parties.
Subject to Order 7, each party is at liberty to communicate with the child or children at all reasonable times.
To facilitate the above order:
(a)The party, who is caring for the child or children, shall make the child or children available to receive the telephone/Skype/Face Time call; and
(b)The party, who is not caring for the child or children, shall initiate the telephone call.
Subject to Order 7, the child or children shall be at liberty to call either parent and the mother or father who has the care of that child (as applicable) shall assist them to make any calls that are reasonably requested.
Each party shall inform the other party as soon as reasonably practicable of any medical, significant health issue or illness suffered by any of the children and, by this Order, any treating medical practitioner is hereby authorised to provide each party with such information as he/she is lawfully able to provide about the child.
Each party shall keep the other party informed of any extra-curricular activity that the child or children participate in.
All educational institutions and extra-curricular providers are authorised to provide to each party such information as it is lawfully able to provide about any of the children, and their attendance and progress.
Each party shall ensure that the other party is nominated as an emergency contact with any school, medical practitioner or extra-curricular service the child or children attend.
That each party advise the other of any change of telephone number or residential address within 24 hours of any such change occurring.
Each party is restrained from criticising or denigrating the other party or the other party's family in the presence of, or within the hearing of, the children.
Each party is restrained from physically disciplining the children or allowing any third person to do so.
That the parties shall encourage each child's relationship with the other party.
Subject to Order 7, that in the event the father relocates to live in Melbourne area, the children shall thereafter commence spending additional time with him during school terms in a two week cycle as follows:
(a)Week One: From 5:00pm on Friday until 5:00pm on Sunday;
(b)Week Two: From 5:00pm on Wednesday until 7:30pm.

NOTATION:

The ICL and the Family Consultant shall meet together with the children to explain the Orders made by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 547 of 2018

MS KANDA

Applicant

And

MR KANDA

Respondent

REASONS FOR JUDGMENT

Introduction

This final parenting hearing relates to the children X born in 2006, and Y and Z, twins, born in 2008 (the children).
The mother lives in Melbourne with her new partner Mr D and their newborn child E, aged about six months.
The father lives in Suburb F, NSW, with the children.

Proposals

At the commencement of the hearing, leave was sought and obtained from the Court by the mother to amend her Amended Initiating Application seeking final parenting orders; she sought orders, inter alia, that she have sole parental responsibility for all the children, that the children live with her, and that the children spend time with the father. Her final proposed parenting orders were set out in Exhibit E.
The father in his Amended Response filed 20 January 2020 sought final parenting orders, inter alia, that he have sole parental responsibility for the children; that the children live with him; and that the mother spend time with Y and Z during the first half of all school holiday periods in even-numbered years, and during the second half of all school holiday periods in odd-numbered years, and such other times as the parties may agree.
The ICL sought final parenting orders, inter alia, that the parties have equal shared parental responsibility for the children except for decisions relating to their education for which the mother shall have sole parental responsibility; that the children live with the mother; that for the first 6 months of the children relocating into the primary care of the mother in Melbourne, the children spend no time and not communicate by any mode with the father, to enable them to transition and settle into the primary care of the mother; the children shall thereafter spend time with the father during half of the school holidays; that in the event the father relocates to live in Melbourne, the children shall thereafter commence spending additional time with the father. The ICL proposed a notation that the ICL and the family consultant meet together with the children to explain the orders made by the Court.

Material relied upon

The mother relied upon the following documents:
a)Amended Initiating Application filed 20 January 2020;
b)Affidavit of the Mother filed 17 January 2020 ;
c)Affidavit of Mr G filed 24 January 2020;
d)Case outline filed 29 January 2020.
The father relied upon the following documents:
a)Amended Response filed 20 January 2020;
b)Affidavit of the father filed 20 January 2020.
c)Case outline filed 29 January 2020.
The following exhibits were relied upon by the parties and ICL:
a)Exhibit A: Family Report dated 28 October 2019 and Child Inclusive Conference Memorandum dated 21 January 2019;
b)Exhibit B: Screen shots of telephone messages – various;
c)Exhibit C:
a.L School – report of X and Sleeve 9 tagged ICL green tags (various)
b.F School – Sleeve 2 & Sleeve 8 tagged ICL green tags (various)
c.New South Wales Police – sleeve 7 tagged ICL green tags (various)
d.Victoria Police– sleeve 5 tagged ICL 8 & 9
e.H Counselling – Sleeve 4 tagged ICL green tags (various)
f.Department of Community And Justice – Sleeve 1 tagged ICL green tags (various)
g.Ms J – Sleeve 10 tagged ICL green tags (various)
d)Exhibit D:
a.Victoria Police – Sleeve 5 tagged 9
b.H Counselling – Sleeve 4 tagged Respondent Father blue tag (various )
c.New South Wales Police – Sleeve 7 tagged Respondent Father blue tags (various)
e)Exhibit E: Proposed Minute of Order of Mother
f)Exhibit F: Proposed Minute of Order of ICL.
The Court has had regard to all of the evidentiary material relied upon, including the documentary exhibits, and the oral evidence taken. The Court has also considered the submissions set out in the case outline documents and oral and written submissions.

Evidence

Throughout these reasons (including the Court’s discussions under s.60CC of the Family Law Act 1975) the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is aged 46 years, and the mother is aged 41 years.
The parties were married in 2004. They finally physically separated in about late October 2016.
Following the parties’ separation the mother went with the children to Town K, Western Australia. About a week later the mother returned to Sydney with the children. The mother then returned to Town K alone. The mother took the children with her to Town K in about mid December 2016.
In about late February 2017 the children were returned to the father’s primary care in Perth. The father then returned with the children to Sydney.
During the above period when the children were spending time with the mother in Town K, there was an incident involving the mother’s new partner Mr D pushing the child X on the side of his head resulting in that child falling on his bed, and hitting the back of his head on the bed.
Thereafter, the father did not allow the children to travel to Town K to spend time with the mother as he was concerned that the children would not be returned by the mother.
Exhibit C, Tab ICL 2, F School, an entry for 2 November 2016, refers to the child X stating that he is concerned that the father’s family will harm the mother if they find out where she is living. It also states that X spoke to the mother 2 days previously and the father hung up the phone.
The mother did spend time with the children in Sydney. She spent two weeks with the children in about March 2017. On this visit, the mother stayed in the father’s residence for a few days before staying in a hotel.
In about May 2017 the mother left Town K with Mr D and went to Melbourne to live. The mother had a cousin and sister-in-law in Melbourne and Mr D had cousins and uncles there.
She spent time with the children on 2 June 2017. She spent five days with the children from 3 July 2017.
Exhibit C, Tab ICL 6, NSW Police, referred to an incident on 28 September 2017, when the mother arrived at the father’s residence from Victoria to take the children. The father told the police that he did not want the mother to take the children because a few weeks prior the mother attended the location and took the children without his consent. The police spoke to the children who stated they would like to see the mother. With the father’s permission the children were escorted to the mother who spoke to them for a few minutes. After about 10 minutes the children returned inside the house. The parties agreed to meet at a local park so that the mother could spend more time with the children.
Exhibit C, Tab ICL 5, NSW Police, referred to an incident on 12 April 2018, when the mother arrived at the father’s residence from Victoria to take the children for the school holidays. The entry states that the mother had driven from Victoria to see the children but the father was stopping her from entering the house and seeing the children. The entry states that the children told the police, “in relation to the custody”, that they did not want to go with the mother. The entry states that the police explained this to the mother and asked her to leave the location.
On 26 June 2018, the Court made interim parenting orders, by consent, that the children spend time with the mother, inter alia, on one weekend in each two month period, as agreed between the parties; and for one half of the school holidays, failing agreement for the first half.
Exhibit D, Tab RF 5, NSW police, an entry for 30 September 2018 referred to the parents attending a police station. They required advice concerning the child X, and custody arrangements. At this police station the parents became argumentative with each other. The entry states that the parties had agreed that X would accompany the mother on a plane and fly to Victoria where the mother lives, for the school holidays. The entry stated that X did not want to go with the mother to Victoria and had become upset due to this. The police spoke with X who stated that the mother and Mr D were strict with him and did not like him talking to them about the father. X stated that he wished to stay with the father as he felt more comfortable with him. The entry states that the parties have an upcoming court date to discuss custody arrangements, and police have advised the parents that in the interests of the child that he should not be forced to make the trip until any relevant court determination takes place. (The Court observes that previous orders by consent had already been made on 26 June 2018 relating to the children spending time with the mother during the school holidays).
On 22 December 2018 the mother took the children to spend time with her over the school holiday period until 12 January 2019.
At a Child Inclusive Conference on 19 January 2019, the mother informed the family consultant that she would not be returning the children, particularly the twins, to the father because they did not want to go to him. A Registrar of the Court, on referral from the family consultant, advised that there did not appear to be any specific orders made in relation to the children and thus the children might be best to remain in the care of whoever brought them to the registry on 19 January 2019, which was the mother.
The child X was returned back into the father’s care on 22 January 2019 and the twins remained in the mother’s care. The child X had told the mother that he wanted to see his friends in Sydney.
Without the father’s knowledge, the mother enrolled the twins in schools in Melbourne. By order of this Court on 12 March 2019 the twins were returned back into the father’s care.
On 5 March 2019 and 17 April 2019 the mother caused the twins to have counselling.
On 27 September 2019 the mother took the twins to spend the holiday period with her until 6 October 2019. The child X did not go with the twins to spend time with the mother. The mother kept the twins in her care until the family report interviews on 11 October 2019 despite Court orders only providing for half of the school holiday period. The twins had told the father, by text message on 5 October 2019 that they wanted to stay longer with the mother. The father had, by text messages to the mother, insisted that the twins be returned to his care on 6 October 2019. The mother did not comply with the father’s requests, telling the father by text messages that she did not want to force the twins to return to Sydney. In this context, the mother stated to the father that the father had previously not forced X to spend time with the mother in Melbourne.
Exhibit C, Tab ICL 35, L School, refers to X; on 18 September 2019 his teacher had phoned the father stating that X had been taking at least 1 to 2 days off each week this term. The father stated that X has been suffering from headaches a lot and hence not coming to school.
Exhibit C, Tab ICL 33, Ms J, mental health practitioner, M Medical Centre, is a copy letter from N Medical Centre dated 30 October 2019 to Headspace Suburb M referring to X’s on and off low moods and anxiety due to “the divorce”.
Exhibit C, Tab ICL 32, Ms J, mental health practitioner, M Medical Centre, is a copy letter from Ms J to Dr O dated 11 November 2019, referring to a psychological assessment and treatment of X.
The copy letter states, inter alia, that X’s diagnosis depression/generalised anxiety/panic attacks/PTSD/adjustment disorder symptoms/grief/loss/separation (DSM 5). Reference is made to the first session with X and his father attending. Inter alia, the letter states that X is confused about the parent’s separation and divorce. The plan goal is to provide ongoing support with CBT/DBT counselling and being focused.
Exhibit C, Tab ICL 31, Ms J, mental health practitioner, M Medical Centre, is a copy letter from Ms J to X dated 16 December 2019 stating that he had failed to attend the appointment today at M Medical Centre.
On 16 December 2019 the mother took all three children to spend half the school holidays with her. The mother stayed overnight in Suburb P before travelling to Melbourne. The child X was picked up by the father from a hotel in Suburb P as he was requesting to come home with the father. X had told the mother that he wanted to be in contact with his friends during the holidays, and that if he had spent time with the mother in Melbourne he would not be able to contact them by reason of having been provided with an old laptop by the father which did not contain his friends contact details. ~~(F denies)~~
The child X had 3 consultations at M Medical Centre with Ms J from about late 2019.
The father is employed as a labourer on a casual basis.
The mother is not presently in employment. She has the care of a newborn male child named E, aged about six months. This child’s father is Mr G, the mother’s new partner with whom she lives.
After the family report interviews, the mother and her partner Mr G spent about three days looking at houses in Sydney. They determined that the houses were too expensive to rent or buy. In Melbourne, the mother has the support of her partner’s relatives in Melbourne, and she also has a cousin and sister-in-law in Melbourne to provide support.
The mother gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The mother stated that she did not know until she was told “last Monday” that X had been recently attending upon Ms J.
The mother stated that she lived in Melbourne in the suburb of Suburb C, being about a 20 minute drive from the city.
The mother stated that she had paid no child support to the father until August 2019. Since that time she has paid the father child support of about $36 per month.

The mother stated that she has a newborn baby and that she has no family support in Sydney. In this context, the mother stated that Mr G is a fly in fly out worker and that when she is by herself she needs support.
The mother stated that presently there is not good communication between the twins and X. The mother stated that this was the reason why she wanted X to have counselling and get his anger issues resolved.
The mother was asked if she would stay in Melbourne if the Court ordered that the twins live with the father in Sydney unless the mother moved to Sydney. The mother stated that she would have no choice but to be with the twins and she would have to take steps to move to Sydney. She reiterated that she would prefer to live in Melbourne with the children with family support.
The mother stated that Mr G, her partner, was Indian.
The ICL asked the mother about aspects of the report of Ms J. The mother was informed that this doctor described X as anxious, stressed, worried, in particular with Mr G. The mother responded by referring to the first incident (in about February 2017) when she and Mr G yelled at him. The mother stated that the father reminds X of this incident. She stated that later Mr G and X got on well.
In the context of X possibly living with the mother, the mother stated that she would seek to restrict his time on computers and have him do activities outside the home. The mother stated that this child has freedom in relation to his computer time living with the father.
It was put to the mother that X wanted to stay in Sydney and go to school with his friends there. In this context, the mother stated that at his age she tells him that he can make new friends at school in Melbourne and keep contact with his old friends in Sydney. She stated that he was a smart boy, and confirmed that he was very quiet compared to the twins.
The mother confirmed that X was a very troubled teenage boy with psychological problems. Nevertheless, she stated that if X was living with her she could give him the care he needs; in this context she stated that after a few days of X spending time with her he settles down, he is approachable and talks, and becomes calm and relaxed.
The mother confirmed that X was very attached to the father however this child does not have rules to follow living with the father.
The mother stated that she was concerned that X was spending a lot of time alone in the father’s home. The mother confirmed that the twins had told her that X had been absent from school for 23 days in semester 2, 2019.
The mother stated that if X was living with her in Melbourne, and X made friends in Melbourne, she could have X focus at school and get back to his old self.
The mother stated that she understood the importance of the child Y attending upon an educational psychologist.
The mother stated that she would participate in family therapy with X if the Court made an order to that effect.
As to parental responsibility, the mother stated that she had only just learned of X’s recent school reports. She stated, in this context, that when she tried to get in contact with the father, she obtained no response from him and that was why she sought sole parental responsibility for the children. She stated that when the father drops the twins off (to spend time with the mother) the father gives no explanation to the mother as to why X was not there.
The mother stated she was willing to undertake parenting courses.
The mother stated that her current household with Mr G in Melbourne was conflict free. The mother stated that until the present time, she has not seen anything of concern in relation to Mr G’s conduct; Mr G had been good to herself and the children.
As to the incident between Mr G and X in February 2017, the mother stated that Mr G had tapped the side of X’s shoulder to have him sit down. At this time there had been an argument with X yelling at the mother. Mr G had told X not to speak like that to the mother.
The mother stated that if Mr G was physically violent to the children she would leave him.
The mother stated that it is a one minute walk from her home to what would be the twin’s school in Melbourne and that X’s high school (if living with the mother in Melbourne) is right next to the mother’s home.
The mother stated that she had lived with Mr G from about the end of 2016 to the present time. She stated that Mr G had begun work as a fly in fly out worker from about mid-2018. She stated that presently Mr G spends two weeks living with the mother and two weeks working each month.
Mr G gave oral evidence. The Court does not propose to set out the entirety of his oral evidence.
He stated that he inspected some rental properties in Sydney recently (in about the $400 per week range) and considered that their state was not satisfactory for a seven-month-old baby. He stated that he and the mother then considered the purchase of properties in Sydney in the $800,000 range and they were not satisfactory. In the $1,000,000 range, he stated that he fell short of obtaining enough money to purchase such a property.
Mr G stated that he earns $170,000 per annum presently working as a tradesman. He stated that he has a mortgage debt in relation to the Melbourne home in which he currently lives at $470,000 and that he has other debt of $50,000.
Mr G reiterated that he could not afford to live comfortably in Sydney.
He stated that the twins were very keen to move to Melbourne.
Mr G was questioned about a criminal conviction against him in relation to an incident involving his former partner in about 2009. He stated he pleaded guilty to the criminal charge (recklessly cause injury). He stated that following being charged and prior to pleading guilty, he attended and participated in a Men’s Behaviour Change course having attended between 9 and 13 sessions.
He stated that he had a good relationship with X. He stated that when X was with him he was like a normal child and he “hung out” with him. However when he saw X at changeovers, X would avoid him. Further, when X was not with him, X would say things (about him).
He agreed that he and X had more work to do to make X more comfortable in the Melbourne household. He would talk more with X. He commented that whenever X cries, he comes to him. He stated that he was affectionate with X.
He stated that physical punishment of children was unacceptable. He stated that he would not punish the children physically. He agreed that a conflict free home was important. He stated that presently there was no conflict between himself and the mother. He stated that if there was conflict (between the mother and X) he would walk away and let the mother deal with it.
He stated that if the Court ordered that the children reside in Sydney but that they could live with the mother, he could not presently afford to move to Sydney. He could not afford to pay the mortgage, rental, and the cost of transfer to Sydney. In this context he stated that he had no family in Sydney. He stated that if he brought the mother and newborn child to live in Sydney he would be taking this child away from his family (in Melbourne). As to his family in Melbourne, he stated that he has cousins there, he has a big network of friends in Melbourne, and that the mother has her brother and sister-in-law, and the children’s high school is at their back fence.
The father gave oral evidence. The Court does not propose to set out the entirety of his oral evidence.
The father stated that he had discussed aspects of the family report with the twins.
He stated that he had asked the twins where they want to live and they had stated it was Sydney to be with their friends, and they wanted to finish their education in Sydney.
The father was asked about his own mental health, and he stated, “I’m alright”. He stated that the contents of paragraph 35 of the family report (inter alia, stating that the father presented as quite stressed; X was very worried about the father’s emotional state; and that the father has to lie down to calm himself) did not cause him to obtain any (mental health) professional assistance. He denied suffering any form of stress, however referred to “a pressure” and that everything he did was done for the children.
When asked whether he had initiated any telephone contact between X and the mother, the father stated, “Not really, no”.
The father stated that he took X for mental health treatment after he returned from Town K, WA (in about 2017). He stated that X (and the twins) were depressed having returned. He took X and the twins to school counselling at F School. He went to the school on 3 occasions in this context.
The father referred to a (recent) mental health care plan for X which described depression and mental health issues.
The father stated that (following the family report interview on 11 October 2019) he had first taken X to the doctor on 30 October 2019 stating that he had had to prepare things for the twins.
The father stated he was aware that X had failed to attend school for 23 days in the second semester 2019, stating that overall he had been depressed and he gets sick.
The father stated that the twins go to a day-care centre before school in the morning. In the afternoon he finishes work at about 3:30 PM and the twins go to after school care and he picks them up at 5 PM. He stated that when he finishes work he goes home directly to see X, to check he is safe, sets up a routine, and picks up the twins at 5 PM. In re-examination, the father stated that he leaves the twins at after-school care because they want to play with their friends.
The father agreed that as a result of X not attending school regularly he was not progressing as well as he might.
The father stated that the annual school fees if all three children attended the L School would be $15,000. He stated that if he had a partner he could afford to pay the $15,000. He stated that such a partner could care for the children and he could increase his work hours.
The father stated that the family home in Suburb F is worth $680,000 with a mortgage to the ANZ of $460,000. He had a $10,000 credit card debt. He had a debt owing to his family for $15,000.
The father stated his previous employments included working for Employer Q for 9.5 years as a tradesman and factory work. He stated his present work involved labouring work at Employer R.
The father stated his present income is about $1,000 per week, comprised of $700 per week work income and $300 per week government assistance. His present monthly mortgage repayment is $2,122. He agreed that things are presently tight financially in his household.
The last two sentences of paragraph 122 of the family report were read to the father. He stated that he did not understand what had been stated.
The father stated he presently works four or sometimes five days each week and sometimes he gets a call from his employer the night before. He agreed that there was not great security in his present employment as he had to take care of the children.
The father stated that the only professional care that had been arranged prospectively to treat X’s depression was what the M Medical Centre had stated. The father had met with Ms J in relation to X. X had seen Ms J on 3 occasions. He confirmed that X was not presently seeing a GP and he was not ingesting any prescribed medications.
The father stated that as to the psychological needs of X no one was presently attending to his needs.
The father agreed that he had not yet arranged anyone to assist X with his learning needs.
The father stated that when he goes to work late he gives the children breakfast. If he goes to work early the twins have breakfast at before school care.
The father stated that it was his preference to call upon his sister to deal with the issue of the twins’ periods. In this context, the father also stated that the twins can learn at school in relation to their periods, and once they are told he can talk openly as a friend.
It was put to the father that if he wanted he could move to Melbourne. The father stated that he has his family in Sydney and the children have to go to school in Sydney. He stated that in his present employment he has an appropriate timetable for work (7:30 AM to 3:30 PM). (In re-examination, the father stated that this timetable allows him to take the children to and from school).
The father stated that if the Court made orders for the three children to live with the mother, and they proceeded to live with the mother, he would not move to Melbourne because his whole family is in Sydney.
The father was questioned as to his statement in paragraph 17 of his trial affidavit that all three children were in good health. He was asked whether they were all in good mental health. He stated that due to the marriage breakup the children miss a lot of things and he referred to depression.
The father stated that ongoing counselling for X was not needed at the moment, having regard to the way X is in the home, he not being like he was before when he was angry, and most of the time he has calmed down. He stated that X was not presently having counselling.
The father stated that he has spoken with the children about Court dates. He stated that when the children ask him where he is going he states that he is going to Court due to the separation. He stated that he explains to the children the Court conflict.
The father stated that when he learned that X had had 23 absent school days in semester 2, 2019, he told X that he had to go to school every day and study hard. He did not have any conversations with the school or X’s teachers about his absences. The father stated that he leaves for work at 7:30 PM and X leaves for school at about 7:45 AM/8.00 AM.
The father stated that X had missed one day of school this year. The father had taken him to hospital with a stomach ache.
It was suggested to the father that the child X tries to help the father not become stressed. The father stated that this child wants him to be always happy.
The father stated that he had attended the Anchor program and did a three-hour program (after 18 December 2019), however he had not been told whether X was on a waitlist to commence the Anchor program.
The father was asked whether he could have done anything better so that X was not experiencing mental health issues. He stated that he could have taken him to mental health practitioners sooner.
The father stated that he was concerned about Y who was a little down. He confirmed the twins were in year 6 in 2020.
The father was asked what he had done after having read the family report relating to the recommendation that Y be assessed by an educational psychologist. He stated that he had gone to the F School and was told that they did not have an education program. He stated that Y was not getting any extra learning support at the F School because they don’t have such support.

The child inclusive conference held on 21 January 2019

Ms S, family consultant, conducted this conference.
Both parents reported that they had little capacity to communicate or cooperate about the children and their needs.
The child X told the family consultant, inter alia, that he wanted to see both parents regularly. He said that, while a part of him wants to live with the mother, he slightly more wants to live with the father. He stated this because he would be able to go to school with his friends, he likes the paternal family and his father is nice to him. He stated he was not fearful of either parent. He stated that the mother’s partner does not tell the children not to speak about the father. He stated that the twins want to live with the mother. He stated that he feels close to the twins.
The child Z stated to the family consultant that she wanted to live with the mother and spend time with the father in the school holidays. She stated she was not fearful of either parent. She stated that if the mother moved to Sydney, she wanted to live primarily with the mother but would like to spend regular weekend time with the father, as well as school holiday time.
The child Y told the family consultant that her preferences were to live with the mother. She stated that she loves the father and wants to be able to see him in school holiday time. She stated she would find it easier if the parents lived in the same city so that she could see the father regularly. If this occurred, she would be open to living in an equal time arrangement.

The Family Report

Dr A, family consultant, prepared a family report. She interviewed the parties, the mother’s partner Mr D, and the children, principally on 11 October 2019.
The family report writer stated that the parties are of Indian background. They were both born in India and came to Australia as young adults. Both parties have some extended family members in Australia, but neither have parents living here.
The child X told the family report writer that he is very worried about the father’s emotional state. He said that the father has to lie down to calm himself.
The mother told the family report writer that her new partner was currently working in Employer T and he was at home with her and their newborn child for one week in three.
The father presented to the family report writer as very anxious until he settled into the interview.
The father told the family report writer that he works from 7:30 AM until 3:30 PM four or five days a week generally. He has been doing this work for 18 months. Prior to that period, for 18 months, he asserted he was a full-time carer of the children.
The father told the family report writer that in 2017 he was very worried about the child X because he was clearly depressed. He stated that he took this child to a medical centre, and they wrote a report there, but he has never seen the report.
The father told the family report writer that X misses the mother, but does not wish to talk to her on the phone. He stated that the twins talk to the mother every day on the phone.
The mother’s partner, Mr G, told the family report writer that there had been a minor incident between himself and X, in which this child was talking back to the mother. Mr G did not admit to hitting or pushing X, but recalled that there had been upset and X had started crying.
The father told the family report writer that he had been responsible for the children for the last three years and felt no need to involve the mother in any decision-making in relation to the children.
The family report writer stated that the parents do not speak directly to one another and exchange brief text messages. She stated that from all accounts, there were considerable tensions in the relationship. The mother was reportedly often upset at the father’s demanding tone in text messages.
The child X told the family report writer, inter alia, that he was in Year 7. He had not seen or spoken with the mother since the Child Inclusive Conference meeting in January 2019. He stated that he stopped talking to the mother because she was recording what he said over the phone, and he feared that the father would get arrested for no reason, as a consequence.
X stated that he did not spend any of the school holidays with the mother because he felt scared of meeting everyone. He explained that he felt scared to get hit or pushed. He referred to an incident involving Mr G in 2016 when Mr G had given him “a kind of hard push” on the side of his head and he had fallen on the bed, hitting the back of his head on the bed. He said that this was a really long time ago. He stated that he feels mad because the mother left the father for somebody else. He perceives that the father is sad but does not want to be sad in front of him.
X told the family report writer that the father does not wish to see the mother because she left him. When asked if he thinks it upsets the father if he spends time with the mother, he replied, “Yes, I just feel bad.” He then put his head in his hands and started weeping. He explained that he does not want the father to be lonely.

X told the family report writer, when asked what he would want to do in the event that his sisters went to live with the mother, he replied that he loves his sisters, and would not know what to do.
When X was asked if he would be okay living just with the father, he replied that the twins don’t want to talk to him that much.
X denied that the father tells him to hit his sister, but said that sometimes his sister starts yelling and he tells her to stop but she won’t stop. He explained that he does not know how to react in these situations, and just hits her. He recalled that the father gets a headache “when the girls start” and asked everyone to please be quiet. He stated that the father has stress and has to lay down to calm himself. He recalled that he tells the father to “please be okay.” He stated that he tells the twins not to stress the father.
The child Y told the family report writer, inter alia, that she was in Year 5.
This child told the family report writer that the father makes her wear dirty clothes every day and does not give her breakfast in the morning, because they wake at 7 AM and don’t have time for breakfast because the father has to get to work. She stated that she really wanted to live with the mother because she had made lots of friends at school in Melbourne, and if she gets her period, the father will make her sleep at her paternal auntie’s house. She spoke critically of her auntie and started to cry. She stated that her auntie had told her she could not be a teacher because she was so dumb.
Y stated that when she is living with the mother she gets help with her homework and that the mother’s family in Melbourne is really nice.
Y stated that X hits her and the father “let’s him”, and “holds Z back”.
The child Z told the family report writer that she wants to live with the mother. She explained that she has to leave for school at 7 AM, without breakfast, and gets dropped by the father on the side of the road near the before school care centre.
She complained that whenever she telephoned the mother, the father gets mad. She recalled that the father had taken a chair outside and smashed it in the backyard because she phoned the mother.
She stated that her brother hit her when she locked the door to call the mother during the holidays. She stated that her brother always hits them. She stated that on three occasions the father had restrained her, to enable her brother to hit her.
Z stated that the mother’s partner helps her and her sister to learn, whereas the father never does that. She stated that she wants to be with her little baby brother and that she likes looking after him. She wanted to help the mother with the baby in the car.
Under the heading “Children’s relationships”, the family report writer stated that all three children have a close emotional bond with the mother.
The family report writer stated that the children do not have the father’s psychological permission to enjoy a relationship with the mother. She stated that the twins are lively and assertive girls, who have formed a strong coalition, and dare to defy the father. X, she stated, feels obligated to align with the father, and also to look after the father’s emotional well-being. She stated that all of the children love the father. She stated that while the twins are extremely critical of the father, they maintain a close emotional tie with him.
The family report writer stated that the children have a close bond with each other. She stated that the twins have similar interests. She stated that X is more solitary by nature, and also presents as depressed. She stated that the twins have formed a close relationship with the mother’s partner. She stated that despite Mr G’s assertions to the contrary, the child X is quite uncomfortable with him.
Under the heading “Evaluation”, the family report writer stated, inter alia, that all three children are troubled by loyalty conflicts since the party’s separation.
She stated that X, who feels the burden of responsibility for the father’s stress, feels he cannot enjoy a relationship with the mother, out of loyalty to the father. She stated that this child was an extremely troubled child who internalises his distress.
The family report writer stated that the twins present as more emotionally robust than their brother. They are like-minded and have each other for moral support. She stated that all three children need to have an ongoing relationship with both their parents, spending face-to-face time with each of them, and keeping in touch by telephone and Skype when physically absent from them.
The family report writer stated that if the father retains the primary care of the three children, there is a strong risk that he will fail to facilitate the children’s relationship with the mother. The family report writer stated that this assessment was based on the history that was reported, the father’s apparent mental state, and his apparent lack of commitment or understanding that it was important for the children to have a relationship with both parents.
The family report writer referred to the twin’s strong wish to live with the mother and that they had suggested compelling reasons for their wishes. The family report writer stated that neither of the twins are thriving in their current environment. She pointed to the twin’s poor Naplan scores, and Y’s in particular, which was well below average in all domains, and which pointed to the father’s unwillingness or inability to actively engage in the children’s academic achievement. The family report writer referred to the mother and her partner undertaking remedial work for the twins in the previous summer, with apparently good results.
She referred to the child Y having a very poor opinion of her own abilities, sobbing in interview because the paternal extended family allegedly called her dumb.
She stated that it was also of great concern that the twins claim they are being hit while they are living with the father. In this context, X had admitted to hitting the girls because he found their behaviour, at times, overwhelming. The mother had alleged that the father held one of the girls so that the brother could hit her. The family report writer stated that this story was corroborated by the twins. She stated that if these allegations are correct, this environment was not a safe one for the twins.
She stated that the twins were approaching puberty and feel more comfortable with the same-sex parent. She stated that the twins love their baby half-brother and want to participate in their care. She stated that the mother having the twins with her for company and to do small tasks for the baby, and play with the baby, while Mr G was away at work (two weeks out of three) would assist the mother’s well-being, and thus her parenting capacity, with flow-on benefits to the children.
The family report writer stated that the child X was an extremely burdened child, whose needs are not even acknowledged, let alone addressed. The family report writer had urged the father of the need to take X to the GP that very weekend as a matter of urgency, to get a mental health plan so that the child could have some supportive counselling she stated that two weeks later, the father had not managed to do this. (The family report writer had stated in paragraph 69 of her report that the father had told her he had been too busy “during the last two weeks to take X to the doctor, and would do so next week). She stated that her assessment indicated that the father, possibly because of his own stress levels, lacks the capacity to focus on X’s needs. Alternatively, he may not consider that this child is having difficulties. This raised the question of whether this child should remain in the father’s care.
The family report writer stated that X loves the mother, and the observations indicated that he strongly misses her nurturing. She stated that this child is not comfortable with Mr G, whom he claims had disciplined him inappropriately. The family report writer stated that this alleged event has become the centrepiece of the father’s case, and impossible for X to move on from.
The family report writer stated that most compellingly, X feels a burden of responsibility for the father, and would worry about him excessively, if he was taken out of his care.
The family report writer stated that if X lives with the father, and the twins live with the mother, the children would be separated in a day-to-day sense. However, she stated that there does appear to be conflict between X and the twins, who have different personalities, interests and allegiances, to him. She stated that there was even a possibility that conflict between the siblings could escalate, and result in inappropriate and potentially dangerous physical altercations. The family report writer stated that if the Court could be confident that the father had the capacity to address X’s psychological and learning needs, it was recommended that the child remain in the father’s care. If, on the other hand, the father shows no insight during the hearing of what was happening for his son, it was recommended that the mother resume X’s care.
As to parental responsibility, the family report writer stated that each of the parents has expressed a wish to have sole parental responsibility. She stated that currently there was a lack of cooperation between the parents. However, she stated that there did not appear to be anything in the history of the relationship that would disqualify a parent from parental responsibility. Furthermore, she stated, it was important for the parents to form a courteous and businesslike relationship going forward. The recommendation was made for there to be shared parental responsibility of all three children.
Under the heading “Recommendations”, it was recommended, inter alia, that the parents have shared parental responsibility; that X lives with the father; that the twins live with the mother; and that the children spend half of each school holidays with the non-lives-with parent, and the whole of every school holiday with each other.
The family report writer gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
During the family report writer’s oral evidence, she changed her above recommendation that X live with the father. Giving reasons, she formed the view that, on balance, all the children should live with the mother.
The ICL questioned the family report writer. The ICL questioned her in relation to that part of her family report where she had stated that X was an extremely burdened child and this evidence was given:
What did you mean when you said he was an extremely burdened child? What is he burdened by?---I think that he’s burdened – I think the thing that burdens him most is his father’s state of mind. I – he wants – he’s also burdened by the separation and the fact that his mother left, and the circumstances, but I think he’s more burdened by his father’s reaction to it. So there was a sense in which I felt that he was slightly petrified, that he, instead of being able to be the young adolescent who was focusing on his own developmental needs, getting an education, playing sport, and just being a kid, he was always hyper-vigilant about his father’s state of mind, and you know, trying to make it okay for the father and yet not being really able to do anything except for encourage his sisters not to stress papa.
The family report writer was questioned as to X’s psychological needs being met, and the following evidence was given:
Now, when you say at paragraph 121 in relation to X being burdened:
Whose needs are not even acknowledged, let alone addressed.
What did you mean by that?---I don’t think the father, the paternal family, you know, by extension from what I understand, had any idea what was happening for X, and yet his interview with me was very powerful, of just how – you know, how he’s not even comprehending his school work. He said the other kids seem to know what’s going on, and I don’t even know what’s going on. He said, “I used to be good at school, and now I don’t even know what’s going on”. So – and you know, the way that he was putting his head in his hands and weeping and saying, “I don’t know what to do,” he’s just – no one’s understanding the impact on him.
The family report writer was questioned as to the father’s response having ascertained that X was missing school. The following evidence was given:
“When the father was asked what his reaction was to reading about the school absences, his response was – and my friends will correct me, if I’m wrong. His response was to tell X that he needed to go to school. So it would be open to the court to consider that the father’s response was somewhat limited, in terms of the strategies for getting X to school?---Well, there was no strategy. You said that it was just a state of, you know, admonishment. “You need to go to school.” Well, we all know that. But what was going to change to enable that?
And when it was put to the father, in relation to what was his response around the mathematics. I put to him that perhaps, he needed to arrange a tutor. And the father said yes, he could do that. He could arrange a tutor. But it would appear from the – and I would like your views in whether or not the father is proactive enough, in relation to X’s schooling?----Look, I think X’s general stress levels are not allowing him to learn. I don’t think it’s going to make any difference if he has a maths tutor. The child is a burdened child. He needs to be a 13 year old schoolkid who, you know, who is engaged in learning. Who knows what’s going on, instead of just feeling a sense of general confusion. He needs to get back to some sport. He would like to do sports. I don’t know if any attempts have been made this year to – I don’t know when the season starts. But you know, he used to play sports, and now he doesn’t. He spends far too much time on the – on computer games. So I guess what I’m saying is the child’s not able to learn, at the moment. There are psychological impediments to him learning. `And that’s going to affect his total development, and life chances.
The family report writer was questioned about X’s capacity to make new friendships and new peers if living with the mother in Melbourne, and the following evidence was given:
“Okay?---Well, I’ve told you he’s a quiet child. He’s an introverted child. He’s not – he didn’t impress as a sociable child. Because he’s burdened, at the moment. If the burdens were taken away, and he was able to follow his normal developmental trajectory, I imagine that he would be able to make new friends at a new school. And probably maintain contacts with his friends online. I believe that the friends online are people that – they do the same computer games. I think they compete against each other online. And I’m sure that there would be, at least, a transition phase if he was living in Melbourne, in which he maintained those contacts. Or he may maintain them in the long-term. If he joined a sports team, he would have teammates. That’s about all I can say.”
The family report writer was questioned as to the likely outcome of separation of siblings, if the twins were to live with the mother and X was to stay living with the father, and the following evidence was given:
What’s the likely outcome of separation of the siblings, if the girls live with Mum, and X stays living with the Father. What’s the likely effect of that sibling separation on their respective development and mental health?---The siblings. Look, I think the girls would be happy. But I think there’s a danger that the siblings would be brought up separately. That the spending time with arrangements would break down, and that there would be a split in the family. There would be a child who was – had allegiance to Dad, and the girls having allegiance to Mum. And essentially, they would be, from now on, brought up in different households. I think that’s a danger. Look, there’s no easy – this is what’s so frustrating and worrying about this. There are no easy answers.
The family report writer was of the view that if the children lived with the mother, she would facilitate any court orders facilitating an ongoing relationship between the children and the father.
The family report writer was of the view that if X continued to live with the father that nothing would change for X. The father would continue to complain about the mother and the impact of the separation on him and the impact of the separation on the family. At least in the short term, X would have no more counselling. He would organise himself to go to school. He would be separated from his sisters. As to school absenteeism, the family report writer was unsure that anything would be put in place to change that pattern of school attendance. The family report writer went on to state:
“I’m sorry?---If he lived with his father I think he would be discouraged from spending time with his mother. If he lived with his father, I think he would continue to try and meet the father’s psychological needs. And I think that he would be lonely and withdrawn – sorry, that he would be lonely because he would be – the girls wouldn’t be there and the father works some of the time, including in the morning. And I think there’s a danger that he would withdraw into the gaming world. It’s a big part of his life now and I see a danger of that, you know, being an increasing part of his life given, you know, given what has happening and given his personality and his – you know, the problems that he’s grappling with. I’ve also made a list of what I think is likely to occur if X lived with his mother. Am I going too fast?
No?---I think that if X was told that he had to live with his mother that he would be angry and upset. I think that he would try and contact the father to come and get him. Certainly, there’s evidence of that happening in the past, and if that was the case, I think there would need to be plan in place in advance for what should happen in that situation, because we certainly – it’s certainly not his interest that there be more – further litigation or, you know – or – yes. Okay. I think that there is a possibility of conflict with the step-father if X acts out. Although, I must say that X doesn’t appear to be an acting out sort of kid. He’s an – an internalising sort of kid. He’ a kid that gets sad and withdrawn, but there is still – there’s a possibility of conflict with the step-father. So they’re some of the potential dangers of him living with his mum. On the other hand, he would receive nurturing from his mother. I – I think he would also have a good role model from his step-father in terms of career, in terms of, you know, aspiration and education and so on. I – I think that he would probably be enrolled in a sport if he lived with his mother. I think that the mother would be able to limit his gaming activities. She would be in the house, you know, a – more than the dad, for a start. And I think that, you know, she has – she has indicated that she is committed to that – that course of action. So, you know, there’s some pros and cons that I’ve thought of X living with his mother. But I do think that if he was living with his mother that he would need a reasonably long transition period of no contact with the father. I – I know that’s a radical suggestion, but I think that he would need to settle down, settle into his school, develop some friendships, come to terms with the fact that he needs to, you know, focus on doing that and know that, maybe for six months, that he wouldn’t have any contact with his father at all. And – and I mean phone calls as well. I don’t think that’s going to help him. So I – I know, your Honour, that that’s a fairly radical suggestion, but I think that would need to be part of the plan. So, you know, it’s not clear cut at all to me. There are some pitfalls, potential dangers in both situations. But my fear is that if he stayed with his father, nothing will change.

The family report writer was of the view that from her assessment there was no evidence of coaching, by the mother of the twins, in the presentation and the narratives of the twins.
The family report writer stated that she thought the mother had a male cousin in Sydney.
As to the incident between X and Mr G in about 2016, the family report writer stated that Mr G had probably minimised that incident in self-interest.
The family report writer stated that by far the greatest factor contributing to X’s psychological problems was the ongoing unabating conflict between the parties.
Subject to the discussions below under the s60CC primary considerations, the Court accepts the evidence of the family report writer. In this context, the court should state that it does not accept the father’s submission that the family report writer was biased against the father. In the view of the court, the family report writer listened carefully to the questions posed to her and sought to give answers that were responsive to such questions. She was prepared to change her recommendations in the family report having considered the case carefully. She sought to explain the advantages and disadvantages to the children in living with one or other of the parents. And she readily stated that the parenting issues were not without some complexity.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The mother was the primary carer of the children from birth up until separation. During the parties’ relationship, the father assisted the mother with the care of the children.
The children have been in the father’s primary care since about February 2017. The children have spent time with the mother since February 2017, but more so the twin daughters compared to X. Such time has been quite limited.
X has spent virtually no time with the mother since about late January 2019, and he is probably estranged from her. Nevertheless, X has a close emotional bond with the mother, as do his twin sisters. X loves the mother, and, as observed by the family report writer, he strongly misses her nurturing. The father had told the family report writer that X misses the mother.
The parties’ twin daughters presently have a meaningful relationship with both parents and will benefit from a continuance of those relationships. X has a close relationship with the father.
Whilst X has maintained a close emotional bond with the mother, yet, as discussed by the family report writer, he feels the burden of responsibility for the father’s stress, and feels he cannot enjoy a relationship with the mother, out of loyalty to the father. X, as well as the twins, do not have the father’s psychological permission to enjoy a relationship with the mother.
The Court should state at this point that it is unable to find on the balance of probabilities that the father has, since separation, intentionally sought to alienate any of the children from the mother. Nevertheless, probably by reason of the father experiencing difficulty in adjusting to the parties’ separation, since the children have been living with him, he has failed to adequately and reliably facilitate the children’s relationship with the mother, including after Court orders were made on 26 June 2018.
In this context, the Court refers to, inter alia, difficulties the children experienced in speaking to the mother by phone post separation, and the father causing or acquiescing in the Police intervening on 30 September 2018 when the mother sought to take X from Sydney to Victoria to spend time with her during the school holidays, after Court orders had been made on 26 June 2018 providing for such time to occur.
There is a significant risk that should the children remain living in the father’s primary care, that the father will fail to facilitate the children’s relationship with the mother, and the children’s present relationships with the mother will be adversely compromised. Should the twin daughters live with the mother, with X remaining living with the father, there would remain a significant risk that the father would fail to facilitate X’s relationship with the mother.
The Court should also state that it is unable to find on the balance of probabilities that any member of the father’s extended paternal family has intentionally sought to alienate any of the children from the mother.
Should the children live with the mother, and, following a period of 3 months (during which time they shall spend no time and have no communication with the father; to allow them, but in particular the child X, to transition and settle into the primary care of the mother), spend regular holiday time with the father in accordance with the proposed orders of the ICL (see exhibit F), there is a reasonable prospect that the children’s meaningful relationship with the father can be maintained.
The Court observes that the family report writer had suggested a transition period of six months (see the paragraph above), in particular to allow the child X to transition into the mother’s primary care.
The Court’s view is that a transition period is necessary, in particular for the child X, because without such a transition period, (comprising no time and no communication between the children and the father) there is a significant risk that the father will continue to emotionally burden X with his stress (in particular stress relating to the party’s separation), leading to X seeking to return to the father. The Court would assess that were the twin daughters permitted to spend time with the father and communicate with him during this three month period, there is a real risk that X would likely have an increasing desire to do likewise and resulting in him returning to the father’s primary care.
Nevertheless, the court is of the view that a transition period of 6 months runs a real risk of X’s emotional well-being being adversely affected. The court is of the view that a transition period of 3 months would minimise this risk.
Should the parties twin daughters live with the mother in Melbourne, and with X remaining living with the father in Sydney, there is a significant risk that the children will be brought up separately, that spending time-with arrangements would break down, and there would be a split in the family; X would have an increased allegiance to the father, with the twin sisters having an allegiance to the mother. Such an eventuality would not be in the best interests of the children, particularly noting that all three children have a close bond with each other.
Should the court make the ICL’s proposed orders relating to family therapy, including the ICL’s proposed orders in relation to the mother making arrangements for X to be assessed and supported with respect to, inter alia, identified anger management and mental health concerns, there is a significant prospect that X’s relationship with the mother and her new partner Mr G can be positively developed, maintained and/or enhanced. The ICL’s proposed order that each party be restrained from physically disciplining the children or allowing any third person to do so will also likely significantly assist X adjust to living with the mother (the Court, in this context, would seek to have the ICL explained the Court’s final orders to, in particular, X.
The Court is of the view that should the children live with the mother, there is a significant prospect that the mother will facilitate the maintenance and development of the children’s meaningful relationship with the father. In this context, the Court has not overlooked that the mother failed to return the children to the father, in accordance with Court orders, on certain occasions. Nevertheless, the Court considers that the mother will likely comply with Orders providing for the children to spend time with the father, in circumstances where they are living with her, and where the parties are governed by the ICL’s proposed Orders in exhibit F (and subject to the Court’s discussion above relating to the 3 month period of no contact between the children and the father). Such Orders will significantly address the mother’s concerns in relation to the children remaining living with the father. And the children will likely want to spend time with the father in view of their relationship with him.
The evidence of the family report writer is consistent with the views expressed above.
The court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The court refers to its discussion above under the meaningful relationship primary consideration, particularly in relation to the children’s meaningful relationship with the mother being adversely compromised should they (or X alone) remain living in the father’s primary care. In such circumstances, there is a significant risk that the children’s psychological well-being will be adversely affected.
The father lacks the capacity to adequately focus and provide for X’s emotional and mental health needs.
The child X was diagnosed with, inter alia, depression, in about November 2019. The family report writer had assessed X to be an extremely troubled and burdened child who internalises his distress. The family report writer had assessed that what burdens X most is the father’s state of mind, including his father’s adverse reaction to the party’s separation.
X has had limited mental health treatment consultations since about late November 2019. The court is not satisfied that the father has adequately addressed X’s mental health treatment needs, and nor has he sought to address those needs in a timely fashion. Should X remain living in the father’s primary care, there is a significant risk that the father will fail to ensure that X’s mental health treatment needs are adequately addressed, with further detrimental consequences to X’s psychological well-being as a result.
Further, should the children (or X alone) remain living in the father’s primary care, there is a significant risk that the father will fail to address the childrens’ educational needs, including regular school attendance. The children’s educational needs would likely be significantly better addressed by the mother and by the children living with her. Inter alia, the father lacks any strategies to improve X’s educational outcomes.
Further, should the children remain living in the father’s primary care, there is a significant risk that the father will fail, in a timely fashion, to ensure that the child X not hit his twin sisters, at times of frustration. The court is of the view that the mother would likely take adequate steps in a timely manner, if the children were living with her, to ensure that X did not so hit his twin sisters. In this context, the court finds that X on occasion has hit his sisters out of frustration. The court is unable to determine on the balance of probabilities whether the father has encouraged X to hit his sisters.
The Court is unable to determine on the balance of probabilities whether the father perpetrated physical family violence upon the mother during the relationship.
The Court is of the view that the mother’s partner does not pose any significant risk of harm to the children. The twins have formed a close relationship with the mother’s partner, who has engaged in activities with them and also helps with their schoolwork. The incident relating to the partner’s former partner in about 2009 is of some antiquity. The mother’s partner had pleaded guilty to recklessly cause injury to that person, had been placed on a good behaviour bond for 12 months, and had participated in a men’s behaviour change course attending between 9 to 13 sessions. The court is satisfied that the mother’s relationship with her partner is not a relationship characterised by significant family violence. There is a reasonable prospect that the ICL’s proposed order in exhibit F for the child X to engage in family therapy will significantly assist in the child’s relationship with the mother’s partner being positively improved.
Should X live with the mother in Melbourne, with his twin sisters, there is a significant prospect that X will successfully transition to living in Melbourne, including making new friends, and maintaining meaningful contact with his friends in Sydney.
The evidence of the family report writer is consistent with the Court’s above views.
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The Court gives significant weight to the strong wishes of the twin girls to live with the mother. This is consistent with the evidence of the family report writer.
The family report writer states that X had stated that the father does not wish to see the mother, because she left the father. When asked by the family report writer if he thinks it upsets the father if he spends time with the mother, X replied, “Yes, I just feel bad.” The family report writer stated that X put his head in his hands and started weeping. He explained that he does not want the father to be lonely. When the family report writer empathised with X, the child wiped his eyes and said, “I really don’t know what to do.”
X stated to the family report writer that he would not know what to do in the event that his sisters went to live with the mother having stated that he loves his sisters. The family report writer asked X if he would be OK living just with the father and he replied that his sisters don’t want to talk to him that much. In oral evidence, the family report writer agreed that X had shown a strong wish to live with the father.
Accordingly, X’s views appear to be ambivalent as to the parent with whom he would prefer to live. In relation to X’s views in this context, the court does not give significant weight to any preference stated by X to live with the father by reason of his loyalty conflict and alignment with the father, and in this regard the court refers to its discussion above under the meaningful relationship and need to protect primary considerations.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations. The twin daughters also appear to have a positive relationship with the mother’s new partner Mr G. X, from his perspective, has a strained relationship with Mr G, significantly arising from the pushing incident in 2016. Nevertheless, there is a significant prospect, as discussed above, that this relationship between X and Mr G can be positively redeveloped through family therapy and treatment for X.

(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

The parties’, inter alia, unsatisfactory level of communication and cooperation post separation has resulted in each party, at times, being unable to take such opportunities. The father, at times, has failed to facilitate at least the twin daughters speaking to the mother on the telephone. He has failed to facilitate X spending significant time with the mother post separation.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

Both parties appear to have maintained the children whilst they were in each parties’ respective care post separation. The mother presently pays modest child support. Her partner, despite his income, has significant mortgage loan and other debt.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussions above under the primary considerations.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Should the children live with the mother in Melbourne, with the father remaining living in Sydney, there are practical difficulties as to the extent to which the children can spend time with the father. Nevertheless, the Court refers to its discussion above under the meaningful relationship primary consideration in relation to the children’s meaningful relationship with the father being maintained in these circumstances.
It will be in the best interests of the children that the parties share the costs associated with the children’s travel between Melbourne and Sydney. Should the children live with the mother, the father may well be able to increase his work hours with resulting increased income. It is also possible that the father may re-partner.

(f)The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
(iii)to provide for the needs of the child, including emotional and intellectual needs;

The mother has such capacities. The father has been able to provide for the children’s physical needs. However, as referred to under the primary considerations, inter alia, the father has failed (and will likely continue to so fail should the child X, in particular, continue to live with him) to address the educational, emotional and mental health needs of the child X. He has failed to meet the twin’s educational needs.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

In relation to the father’s maturity, in the context, in particular, of facilitating the children’s relationship with the mother, the Court refers to its discussions above under the primary considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother has demonstrated appropriate attitudes.
As to the father, the Court refers to its discussions above, in particular under the primary considerations.

(j) Any family violence involving the child or a member of the child's family

The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The final parenting orders essentially sought by the ICL, as discussed by the Court above, would be least likely to lead to the institution of further proceedings in relation to the children.

m) Any other fact or circumstance that the Court thinks is relevant

Not applicable.

Parental responsibility

It will be in the best interests of the children that the parties have equal shared parental responsibility for the children except for decisions relating to the children’s education for which the mother shall have sole parental responsibility.
The court refers to its discussions above in relation to the father’s failure to adequately meet the children’s educational needs in a timely fashion. The Court would assess that the parties’ ability to communicate, cooperate and agree in a timely fashion in relation to major decisions affecting the children’s education is unsatisfactory. Should the parties have equal shared parental responsibility for the children in relation to education there is a significant risk that there will be consequential conflict between the parties with negative adverse consequences for the children.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)    The parties shall have equal shared parental responsibility for the children X ("X") born in 2006, Y ("Y") and Z ("Z") born in 2008 except for decisions relating to the children's education for which the Mother shall have sole parental responsibility.
(2)    That the children live with the Mother.
(3)    That the Mother make arrangements within 14 days of the children coming into the mother’s care for Y:
(a)        To be assessed by an educational psychologist for learning difficulties; and
(b)    Ensure that any required psychological assistance be provided without delay.
(4)        That within two (2) months of X relocating to live with the mother, the mother shall engage the services of a Family Therapist to work with her, X and any other family member the Family Therapist requests for the purposes of Family Therapy in an attempt to improve their relationship.
(5)        That the Mother be permitted to provide a copy of the Family Report prepared by Dr A dated 28 October 2019 to any service assisting X with respect to the issues identified by the Family Report writer.
(6)        That the Mother make arrangements forthwith for X to be assessed and supported with respect to:
(a)     Identified anger management and mental health concerns;
(b)    Possible need for tutoring in mathematics; and
(c)     Ensure that any such difficulties be addressed professionally.
Spending Time Arrangements
(7)    That for the first three (3) months of the children relocating into the primary care of the mother in Melbourne, the children will spend no time and will not communicate by any mode with the father, to enable them to transition and settle into the primary care of the mother.
(8)    Subject to Order 7, the children shall thereafter spend time with the father as follows:
(a)     For half of the first term/Autumn, third term/Spring and fourth term/Summer holidays as agreed between the parties and failing agreement, the father shall have the first half of such holidays in even years and the second half of such holidays in odd years and each alternate year thereafter;
(b)    For 10 days in the mid-term/Winter holidays as agreed between the parties and failing agreement from 3:00pm on the first Sunday of the school holidays until 3:00pm on the second Wednesday of the holidays;
(c)     For such other times as the parties may agree.
(9)    The changeover location shall be as agreed between the parties and failing agreement, shall occur at Sydney or Melbourne Airport (as applicable) or McDonalds at Suburb B (NSW) and KFC at Suburb C (VIC).
(10) The costs associated with travel to facilitate the spending time arrangements shall be equally shared between the parties.
(11) Subject to Order 7, each party is at liberty to communicate with the child or children at all reasonable times.
(12) To facilitate the above order:
(a)     The party, who is caring for the child or children, shall make the child or children available to receive the telephone/Skype/Face Time call; and
(b)    The party, who is not caring for the child or children, shall initiate the telephone call.
(13) Subject to Order 7, the child or children shall be at liberty to call either parent and the mother or father who has the care of that child (as applicable) shall assist them to make any calls that are reasonably requested.
(14) Each party shall inform the other party as soon as reasonably practicable of any medical, significant health issue or illness suffered by any of the children and, by this Order, any treating medical practitioner is hereby authorised to provide each party with such information as he/she is lawfully able to provide about the child.
(15) Each party shall keep the other party informed of any extra-curricular activity that the child or children participate in.
(16) All educational institutions and extra-curricular providers are authorised to provide to each party such information as it is lawfully able to provide about any of the children, and their attendance and progress.
(17) Each party shall ensure that the other party is nominated as an emergency contact with any school, medical practitioner or extra-curricular service the child or children attend.
(18) That each party advise the other of any change of telephone number or residential address within 24 hours of any such change occurring.
(19) Each party is restrained from criticising or denigrating the other party or the other party's family in the presence of, or within the hearing of, the children.
(20) Each party is restrained from physically disciplining the children or allowing any third person to do so.
(21) That the parties shall encourage each child's relationship with the other party.
(22) Subject to Order 7, that in the event the father relocates to live in Melbourne area, the children shall thereafter commence spending additional time with him during school terms in a two week cycle as follows:
(a)     Week One: From 5:00pm on Friday until 5:00pm on Sunday;
(b)    Week Two: From 5:00pm on Wednesday until 7:30pm.

NOTATION:

The ICL and the Family Consultant shall meet together with the children to explain the Orders made by the Court.

I certify that the preceding two hundred and thirty three (233) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 3 April 2020

[2020] FCCA 736

3 April 2020

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