Kex and Harper

FAMILY COURT OF AUSTRALIA

KEX & HARPER

[2009] FamCA 1365

FAMILY LAW – CHILDREN – With whom children live

APPLICANT:

Ms Kex

RESPONDENT:

Mr Harper

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

CAC

1667

2007

DATE DELIVERED:

30 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

STEVENSON J

HEARING DATE:

17, 18, 19 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dina Lioumis

Orders

That all previous parenting orders in relation to the children:
J born … April 2000 (9), and
E born … December 2003 (5) (‘the children’)
be discharged.

Pending further order:

That the children live with the mother.
That the children spend time with the father as follows:
3.1Each alternate weekend from approximately 5:00pm on Friday until approximately 5:00pm on Sunday during school terms, commencing on 23 October 2009
3.2 from 12:00noon on 9 October until 3:00pm on 11 October 2009
3.3for the first half of each of the school holiday periods at the end of Terms 1,2 and 3, with the exception of the October 2009 vacation
3.4for the first half of the school holidays at the end of Term 4 in even numbered years and the second half in odd numbered years
3.5at such other times as agreed between the parties
3.6for the purposes of implementation of these orders, the parties will meet at a public place in G, to be nominated by the Independent Children’s Lawyer, at the commencement and conclusion of all periods of time which the children spend with the father.
That the mother shall notify the father in writing of any change in either of the children’s schools.
That the mother forthwith do all acts and things necessary to authorise any school attended by either of the children from time to time, to provide directly to the father copies of the children’s school reports, school photographs and any other information which he may request in relation to their progress and school events.
That both parents shall be at liberty to attend any school, sporting or extra-curricular activities or events involving either of the children.
That each parent shall notify the other as soon as practicable if either of the children suffers a significant injury or illness, or is hospitalised, whilst in that parent’s care.
That each parent shall be at liberty to obtain information regarding the children’s health care from any medical practitioner providing treatment to either of the children from time to time.
That each parent shall keep the other informed of their landline and mobile telephone numbers and email addresses, and shall notify the other parent within 24 hours of any change.
That each parent be and hereby is restrained from denigrating the other parent or any member of the other parent’s family to or in the presence or hearing of the children.
That each parent shall use their best endeavours to ensure that no other person denigrates the other parent or any member of the other parent’s family to or in the presence or hearing of the children.
That each parent be and hereby is restrained from discussing these proceedings with either of the children or in their presence or hearing, and is further restrained from showing any documents relating to these proceedings to either of the children.
That within 14 days, each parent do all acts and things necessary to enrol in a parenting orders program recommended by the Independent Children’s Lawyer in consultation with the Family Consultant, Ms L, for the purposes of addressing the parental conflict and improving parental communication and each parent will complete that course.
14.1 That the appointment of the Independent Children’s Lawyer continue for a further 12 months for the purposes of monitoring and facilitating the implementation of these orders.
14.2 That the Independent Children’s Lawyer cause the proceedings to be relisted before the Docket Registrar in approximately 12 months or at an earlier time if she considers it necessary, for mention and further directions.
That compliance with these orders be supervised by a Family Consultant, if possible being Ms L, for a period of 12 months.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1667 of 2007

MS KEX

Applicant

And

MR HARPER

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Harper and Ms Kex are the parents of two children:
J born in April 2000 (9) and
E born in December 2003 (5).
This litigation is to determine where the children will live and the amount of time which they spend with each of their parents.
The applicant, the mother, sought orders that the children live with her and spend supervised time with their father for two hours each fortnight, at a contact centre in A. In a case outline filed on 11 August 2009 she stated that she sought an order that “the father have no legal requirements”, which I interpreted as an application for sole parental responsibility.
The respondent, the father, sought a series of alternative orders. His first preference was that the children live with him and spend 3 weekends per month with their mother. They would spend equal time with each of their parents during school holidays.
The father’s next preference was that the children live with their mother and spend alternate weekends and half of all school holidays with him. His last option was that the children spend supervised time with him at a Contact Centre in Canberra.
The Independent Children’s Lawyer (‘the ICL’) sought orders to the effect that the children live with their father and spend time with their mother for 3 out of 4 weekends during school terms and for half of all holidays. Changeovers would occur at the A Contact Centre unless otherwise agreed by the parties. The ICL also sought an order that the father and the mother attend a parenting program, as recommended by her and the Family Consultant, to “address the parental conflict and improve parental communication”. Further, the ICL sought an order that the father and the children engage in family therapy or counselling to assist them to adjust to the change in circumstances.

Background

The father, who is now 41, and the mother, who is now 39, began to live together in 1993 or 1994. They married in 1996, according to a certificate contained in the court file.
The parties separated for approximately 18 months between September 2001 and early 2003. It is clear that they had a very volatile relationship, during which the father inflicted violence on the mother. They separated again in 2004 and the father left the former matrimonial home on 1 January 2005.
At the time of the first separation the father remained in the parties’ home in regional New South Wales and the mother lived in Sydney, where she attended university. The father worked on a night shift at a hotel in regional New South Wales.
In 2003 the parties moved to V. The father continued with his previous employment and, in May 2004, the mother commenced work with the State public services.
In 2004 the father was charged with an assault of the mother and breach of an apprehended violence order. He was refused bail and spent two months in prison on remand. He pleaded guilty to these charges late in 2004 and was sentenced to 125 hours community service. He was also placed on a 6 month good behaviour bond.
Early in 2005 the mother commenced a relationship with her current partner, Mr DA. They have a child, KA, who was born in December 2005 and is now 3 years old. Mr DA has a son, WA, who is about 7 years old. WA lives with his mother in V. Mr DA does not see his son, as he and the mother made a joint decision in 2006 that he would withdraw his application to spend time with him.
In mid-2005 the father began a relationship with his current partner, Ms SM. She has a daughter, HM, who is about 13 years old. HM lives with her mother and Mr Harper. Apparently she has no relationship with her father, as she told the Family Consultant in July 2009: “I don’t know my real dad – [Mr Harper] is Dad”.
On 21 December 2005 interim orders were made by consent, which provided that the children live with their mother and spend time with their father from 10:30am each Sunday until the commencement of school on the following Monday. These orders also provided that the children would spend half of all school holidays with each of their parents. The father was able to spend time only with J pursuant to these orders.
Further interim orders were made by consent on 22 May 2006. These orders provided that the children spend time with their father for two hours per week at a contact centre at Sydney.
The mother changed the location of this time to the Centre at Canberra late in 2006. In 2007 she again changed the venue to a contact centre in A. She did not seek the father’s or the ICL’s consent or an order of the court before she made these unilateral changes.
On 28 May 2007 final orders were made by consent. Essentially these orders provided that the children live with their mother and spend graduated time with their father, leading to alternate weekends and half of all school holidays. The changeover point was the Contact Centre in Canberra.
At some unspecified time the mother changed the children’s place of residence from V to U. She did not obtain the father’s or the ICL’s consent or an order of the court before this unilateral relocation.
On 13 August 2007 the mother suspended the children’s time with their father. They did not see him again until 1 December 2007, when they spent two hours with him under supervision at the Contact Centre in Canberra.
On 18 December 2007 interim orders were made by a Judicial Registrar. The effect of these orders was that alternate weekend time was suspended for two months and, in substitution, the children were to spend 4 day periods with their father during January 2008.
On 20 December 2007 the mother wrote to the ICL and stated that she would not travel to Canberra for changeovers. She was prepared to drive to a contact centre at A as an alternative venue. The father has since been making a 7½ hour round trip from his home to A, when he has been permitted by the mother to see the children. She is required to travel for approximately 30 or 40 minutes between U and A.
On 28 December 2007 J commenced counselling with Ms B at the U Community Health Centre. The referral form stated: “[J] presenting with anxiety and distress regarding court-ordered contact with her father”. The last counselling appointment took place on 18 March 2008.
E spent time with her father on 3 occasions during January 2008, in accordance with the orders of 18 December 2007. J attended none of these visits. On 26 January 2008 the mother cancelled the scheduled time.
In February 2008 Mr DA was charged with an assault occasioning actual bodily harm upon the mother. He was subsequently placed on a 12 month good behaviour bond.
On 18 February 2008 interim orders were made by a Judicial Registrar, which provided that J spend supervised time with her father at the A Contact Centre. These orders continued the arrangement for E to spend unsupervised time with her father on alternate weekends and during school holidays.
The children spent time with their father in accordance with these orders on 30 March 2008 and 13 April 2008. On 17 April 2008 the mother suspended E’s unsupervised time with her father.
Between 17 April 2008 and 20 July 2008 both children spent supervised time with their father, for 2 hours each alternate Sunday, at the contact centre in A. On 21 July 2008 the parties attended mediation and agreed that the children would spend unsupervised time with their father in A, each alternate Sunday between 10:30am and 4:30pm, commencing on 3 August 2008.
E attended only one such visit, on 13 August 2008, before the mother suspended time with her father. J spent unsupervised time with her father in accordance with this agreement between 13 August 2008 and 15 June 2009.
On 3 May 2009 and 24 May 2009 E spent supervised time with her father at the contact centre in A. On 15 June 2009 the mother suspended all of the children’s time with their father.

The Evidence and Witnesses

The applicant, the mother, relied on affidavits which she swore on 3 December 2007, 20 July 2009 and 3 August 2009. She also relied on an affidavit of mr DA sworn on 3 August 2009. The mother and Mr DA both gave oral evidence.
The respondent, thef ather, relied on affidavits which he swore on 10 December 2007 and 27 July 2009. He also relied on an affidavit of Ms SM sworn on 27 July 2009. Both the father and Ms SM gave oral evidence.
I had the benefit of four Family Reports, two of which were prepared by Family Consultant, Ms P and dated 18 April 2006 and 23 April 2007. Family Consultant Ms L prepared reports dated 14 March 2009 and 14 August 2009. Ms L gave oral evidence by video link.

Approach to these Proceedings

The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters this statutory conferral.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4).
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2).
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. The legislation contains no temporal definition of “substantial and significant time”. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement.
If there is no order for equal or substantial and significant time, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

Section 60CC(2): The Primary Considerations

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

The mother was adamant that the children derive no benefit from a relationship with their father. During cross-examination by the ICL she said: “He is the most evil man I have ever laid eyes on and I don’t want the girls to have anything to do with him” and “I see no benefit in contact and no disadvantage of no contact”. These bold assertions followed closely on her admissions: “I am not saying that they do not enjoy seeing their father” and “[J] loves her dad but does not like some of the things he does”.
It was common ground that there is a history of violence between the father and the mother. I will refer to the evidence relevant to this consideration below in these reasons. For present purposes it is sufficient to note that I agree with the submission of the ICL that “unfortunately [the mother] has not been able to move forward and she sees everything through the lens of her past experiences of [the father]”. He, on the other hand, has been able to utilise counselling and the security of his new relationship to analyse his past behaviour and take responsibility for his violence and its consequences.
In my view the father has much to offer the children as a father. I am more than comfortably satisfied that the mother was incorrect in her assertion: “I don’t think he cares about them”. In my assessment the father loves his daughters dearly and has a strong desire for a constructive input into their lives. He has been tenacious in his pursuit of regular time with them, despite substantial obstacles placed in his way by the mother. In cross-examination by the ICL she admitted that she has “made unilateral decisions to exclude the children’s father from their lives”.
In my view the children will derive benefit from the solid, consistent presence of a loving father in their lives. He can provide the security of a paternal extended family, as well as his happy home life with Ms SM and HM.
The Family Consultant assessed that “[J] and [E’s] primary attachment is their mother given that she has been their consistent primary carer and given that she has been observed to be responsive to their developmental needs”. I accept without reservation that they derive benefit from this positive relationship with their mother.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
There is no doubt that J has witnessed her father perpetrating violence upon her mother. These experiences must have been very distressing and damaging to her. I accept, however, that the father sincerely regrets his behaviour. It seems that the children have not been exposed to violence between their parents since 2005.
The mother alleged the children have been exposed to violence between their father and his partner, Ms SM. The sole basis for this assertion was statements allegedly made to her by the children. For example, she claimed that J said:
“Dad was fighting with [SM], Dad took the keys to [SM’s] new blue car and then he twisted them and broke them…..and then threw them outside in the back yard. Me, [HM] and [SM] were up to midnight looking for the keys”.
The father and Ms SM both gave convincing evidence that J was referring to an argument which involved raised voices but no physical violence. The father denied that he twisted or threw car keys. He maintained that he said to Ms SM: “[SM] come into the bedroom, we won’t argue in front of the girls.” Ms SM said that she and the father had “a small argument about him taking my car”. She denied that keys were broken or thrown and said that everyone in the household was in bed by 9:30pm. She said, in the clearest possible terms, that the father has never hit her or grabbed or squeezed her arm, as alleged by the mother.

I have referred already to the assault upon the mother by Mr DA early in 2008. In oral evidence the mother said: “[DA] hit me once before October 2006” and she agreed that there were “incidents of violence and aggression towards me by [DA] when he was drinking in 2005, 2006 and 2008”.
Police officers attended the home of the mother and Mr DA on 14 April 2006 The relevant COPS entry (exhibit 4) stated:
“The victim and the POI had been going through a rough patch lately, particularly when the POI consumes alcohol. The victim alleges that the POI becomes somewhat aggressive and argumentative with her when he has consumed alcohol to excess. The POI has done so on this date and he and the victim have argued once more about his behaviour whilst intoxicated. The victim decided to leave the premises with the children when the POI has begun to throw household items about in the rear yard of the premises.”
On 14 February 2009 Mr DA attended U Police Station and requested an extension of an apprehended violence order which had expired two days previously. The relevant COPS entry stated:
“When asked why the POI stated that he couldn’t take it any more. Further questioning found that the POI was having problems with his step kids and a lack of support from his partner. He stated that whenever he has words with a child they run to their mother and inform her of the incident. [She] then backs the POI up in front of the children but later has a go at him for telling her children what to do. He stated that he has become so frustrated that he threw his little portable wireless on the ground and that it bounced and hit a small glass window in an internal French door. As a result the window had come out and the victim had started yelling at him. When she continued to scream and carry on he packed his bags up and moved into a rear shed.”
The mother and Mr DA confirmed that the contents of this report were accurate.
I am satisfied that there has been violence between the mother and Mr DA, which has been fuelled by his excessive use of alcohol. I am inclined, however, to accept his evidence that he now manages stress by spending time with his horses rather than by drinking alcohol.
I am satisfied that there is no violence in the relationship between the father and Ms SM. I accept his evidence, which is set out below, as to how he has learned to manage stress and frustration without resort to violence.
I am thus satisfied that there is no present need to protect the children from physical or psychological harm from being exposed to abuse or family violence. It could well be that they require protection from psychological harm, in terms of their mother’s opposition to their having a meaningful relationship with their father.

The Additional Considerations

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

In July 2009 J told the Family Consultant: “I am very close to Mum – my life is with Mum. I said to my father: ‘my life is with my mum – I don’t feel safe around you’. She said also: “I really don’t want to live with him”. J was 9 years old when she expressed these views, which would thus carry significant weight unless she has been influenced by the mother or are outweighed by more important considerations relating to her best interests.
The Family Consultant assessed that J’s stated views are a product of her primary attachment to her mother and a sense of being settled and happy in U. J told MS L that she enjoys involvement with horse riding, which Mr DA has introduced to her life. E was only 5 years old at the time of the last interviews with the Family Consultant. Ms L elected not to conduct “a formal interview with her, given [her] age and shyness”
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
In the first Family Report dated 18 April 2006 Ms P wrote:
“Interview with [J] and observations with both [J] and [E] were indicative that [J] has a closer relationship with her father than [E]. [J] gave some indication of a wish to live with her father but she expressed a much greater concern about not seeing each of her parents.
In observations with her father [J] was attention-seeking and was not prepared to allow her father to focus on [E]. [J] took the initiative and [the father] followed her lead. [E] was very quiet and undemanding during observations with her father. When Ms [Sm] entered she tended to focus on [E], which allowed [J] to monopolise her father’s attention, though he attempted to give some attention to [E].
In observations with their mother, both girls were observed to be happy to interact with her. [The mother] acted as coordinator of the children’s activities and the children appeared to be happy to follow her instructions. [E] proved to be a more assertive little girl with her mother, was more verbal and clearly made her wishes known. At the same time [J] was less attention seeking with her mother and seemed more prepared to accept that she had to share parental time. Both children were observed to be happy to interact with Mr [DA] and involve him in their play.”
In 2006 Ms P had some concern as to the quality of J’s attachment to her father. She reported:
“[J] obvious attachment to her father is understandable in the context of her observing his alleged violence. If [J] has seen her mother assaulted and victimised on a number of occasions, she may have learned that it is safer, wiser and conducive to her self-preservation to side with the physically stronger party. However, this cannot be regarded as a secure, loving attachment. It is possible that [J’s] attachment to her father is based on his domination and the fear she feels if she fails to be obedient to his will. It was quite concerning that at the beginning of the morning when she first saw her father [J] froze and was not immediately overjoyed to see her father.”
Ms L expressed no such reservations, concerning the nature of J’s relationship with her father, in her report dated 24 March 2009. She also commented very favourably about the nature of E’s relationship with her father. She reported:
“Neither [J] nor [E] displayed any sign of discomfort when informed that they would be observed with their father in the playroom of the court. Both hugged their father in greeting. [E] appeared uncertain about how to react to her father. She shyly sat on his lap and, although [the father] encouraged her to engage in activities, she remained in that position throughout the observation. [E] leaned against her father. She responded to [the father’s] enquiries and comments compliantly with shy nods, smiles and giggles. On occasions she sucked on a fruit juice bottle as a means of soothing herself. Towards the end of the session [E] began to talk with her father about sharing news about her day….” and
“[J] chatted easily and confidently with her father. She completed a drawing for him and wrote ‘Dad I love you’ on the drawing.”
Ms L commented very favourably on Ms SM’s interaction with the children. She reported:
“When Ms [SM] joined the session [J] appeared delighted to see her. Ms [SM] and [J] hugged each other in greeting. [E] remained shy. The two adults and [J] continued a lively discussion. [J] included Ms [SM] in her activities. [E] remained shyly seated on her father’s lap. Both adults were appropriately attentive to the children. On leaving [J] kissed Ms [SM] goodbye. [E] hugged her father.”
J spoke positively to Ms L about the time which she spends with her father in A. She said “it has been going well” and remarked on enjoyable activities such as being in the swimming pool. She told Ms L that she enjoys HM’s company.
In her August 2009 report Ms L stated:
“[The father] was observed to be a confident and caring parent. It was observed that Ms [SM] and [HM] have a good mother/daughter relationship. The girls related to both in a relaxed manner. It would appear that [HM] and the girls have a good relationship. [The father] and [HM] related to one another in a fun loving and comfortable manner.”
With regard to the girls’ interaction with their mother, Mr DA and half brother KA, Ms L reported:
“[J] and [E] were observed to have a relaxed and comfortable relationship with their mother. [The mother] interacted with all three children in a warm and firm manner. It is apparent from the delight the three children took in each other during activities and conversation that they enjoy a close sibling bond. The girls were observed to be attentive to their younger brother.
[J] and [E], in addition to [KA], were observed to relate to Mr [DA] in a warm and fun loving manner. All three children spontaneously sought proximity with him and engaged him in their activities. The children and the adults happily engaged in conversation. It was observed that much humour was shared among the children and the adults.”
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There are serious concerns in relation to the mother, in terms of this consideration. As set out above, there have been several occasions when she unilaterally prevented the children from spending spend time with their father. As well, she made a unilateral decision to relocate with the children from V to U. It would seem that she fails to appreciate that she is not entitled to determine whether the children will have their father in their lives in a meaningful way.
As noted, in cross-examination by the ICL the mother conceded readily: “I have made unilateral decisions to exclude the children’s father from their lives”. She agreed further “I probably would not comply with orders for unsupervised time”. Extraordinarily, she seemed to be of the view that she is entitled to choose whether or not to comply with orders of the court.
It is a matter of real concern that Mr DA agrees with the mother’s opinion that the father has little or nothing to offer the children as a parent. He said: “now I share her view that the children will not benefit from a relationship with him”.
I have no similar concerns as to the willingness and ability of the father and Ms SM to facilitate and encourage the children’s relationship with their mother. The father indicated clearly that he would not take the opportunity to retaliate for the mother’s past interference with his time with the children, if they live with him. He said: “I am going to end the hostility by apologising to [the mother]”. In fact, he did so during his final submissions when he said “I take this opportunity to apologise to [the mother] for my past actions and violence. I now recognise the impact on my children”.
The father said: “I do not have any malice toward [the mother] – I would not do it”, when responding to a question about whether he would retaliate for her past obstruction of the children’s time with him. He added: “I know how much it hurts not to have an ongoing relationship with your children – I don’t want to see [the mother] hurt”.
Ms SM was clear that she would do nothing to interfere with the children’s relationship with their mother, in the event that they live with her and the father. When addressing the issue of the girls’ likely difficulty in adjusting to a change in residence she said: “I will be there for them, reassure them that we are not taking them away from their mother, that they will see her, [DA] and [KA]”.
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:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
A positive effect of a change in residence would be that the children would have a realistic prospect of a proper relationship with each of their parents. In fact, this step may be the only way the children can have that benefit, until they are old enough to override their mother’s obstruction.
The Family Consultant expressed concern in her last report as to the effect on J of a continuation of the present circumstances. She reported:
“If the hostility continues between the parents, the children will continue to observe the negative views of each parent toward the other and interpret those views in light of past experience, in this family’s case the history of violence between the parents, and in light of the parent with whom they have the strongest attachment. Any enjoyment the children might experience in moving between their parents will become increasingly overshadowed by feelings of unease and wariness. It is apparent that [J] is approaching a point where the situation will become too difficult for her to manage without it impacting on her emotional wellbeing.”
Ms L made a firm recommendation that the parties must undertake a counselling program to address these difficulties. In her report dated 24 March 2009 she said:
“Given the history and complexity of issues, the family might benefit from the professional support of a parenting orders program such as the ‘Assisting Responsible Parenting for Kids’ offered by Marymead Child and Family Centre in Canberra. The program offers a wide range of services for all family members. It provides an opportunity for parents to develop a constructive parenting relationship in light of their children’s needs and perspectives, individual counselling for family members including children and a means of monitoring the children’s progress as they move between their parents. The Child Inclusive Program offered by Relationships Australia in [A] would also be suitable. Given the problem of distance, it might be possible for the parents to take part in some aspects of either program by phone.”
In her oral evidence Ms L outlined her assessment of the impact on the children of a change in residence. She said words to the effect:
“The impact of a change of residence would be quite substantial:
·    both children are very close to their mother, especially [J]
·    she is the person they go to in times of stress
·    [J] has a sense of belonging in [U] – she may object to being taken out of that
·    it would be a huge task for her to adjust to a new school and friends
·    there is also [KA]”.
Ms L was of the firm view that “the children will pine for their mother”. She again stressed her recommendation for professional intervention in the family dynamics when she said: “my preference would be for [the mother] and [the father] to have some joint sessions to work on their relationship, because there will still be problems if they live with their father, especially on changeovers”. She said: “at present she has a very limited capacity to move forward in regard to him because she has not had the opportunity to experience him as changed – this is why I have strongly recommended intervention, so that they can meet each other as they are now. My impression is that he has moved forward”.
Ms L did not recommend a change in residence. In her last report she said: “A change in residence to their father’s care is unlikely to be a solution that will best meet these children’s needs”. As noted, she had real concerns about the effect of this change and she wondered if the father and Ms SM underestimate the impact on the girls.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a 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;
I was not provided with evidence as to the distance and driving time between the parties’ homes and the various places proposed as changeover points. I thus had recourse to the NRMA trip planner internet site to obtain this information. In my view I am entitled to take judicial notice of the results of searches carried out in this way. This information is uncontroversial and in the public domain.
The parties’ homes are approximately 243 kilometres and 3 hours driving time apart. The most recent arrangement for the children to spend time with their father has been at a contact centre in A, which required the father to make a 7½ hour round trip. An NRMA search indicated that the distance between the father’s home and A is 262 kilometres and the driving time 3 hours and 18 minutes. In contrast, the mother drove 40 kilometres in a trip of 38 minutes duration.
In the event that orders are made that the children live with him or that there is no requirement for supervision. The father proposed that changeovers occur at S. He said that S is an approximate mid-point between his home and U. That is not so in terms either of distance or driving time. The NRMA search shows that S is 83 kilometres and 1 hour 8 minutes from the father’s home and 164 kilometres and 2 hours 11 minutes from U.
The father proposed that any supervised time with the children take place at the contact centre in Canberra. He would be required to make a 90 kilometre trip of 1 hour 15 minutes duration and the mother would need to travel 224 kilometres over a period of 3 hours.
Another alternative, not suggested by the parties, would be for changeovers to take place at G. The trip for the father would be 180 kilometres and 2 hours 15 minutes and for the mother 64 kilometres and 55 minutes.
Section 60CC(3)(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);
to provide for the needs of the child, including emotional and intellectual needs;
It is obvious that I have a serious concern as to the mother’s capacity to provide for the needs of the children, in terms of her unwillingness or inability to support a proper relationship with their father. I accept entirely that her adverse views are based largely on the reality of her own experiences of violence at his hands. I accept also that her opinion of him would have been coloured by his allegation that J suffered sexual abuse by Mr DA. Further, she is more than entitled to think adversely of the father in light of his alignment with Mr DA’s ex partner and estranged sister.
Otherwise, I have no reason to doubt that the mother has the capacity to provide for all of the children’s needs. It seems that she and Mr DA have established an enjoyable, settled lifestyle for the children in U.
The father’s capacity to provide for the children’s needs on a full time basis is untested. I accept that he and Ms SM are strongly motivated to give the girls a stable home and an opportunity for a close, loving relationship with each of their parents. It seems to me that they would face a formidable task in settling the children into these new living arrangements. I share Ms L’s concern that they may have underestimated the difficulties which they would face in this regard.
Otherwise, I have no reservations at all as to the capacity of Ms SM to provide for the children’s needs. She is an experienced parent and presented as a concerned, sincere person with the girls’ best interests at heart.
Mr DA also impressed as a sincere, well-motivated person who is committed to his relationship with the mother and the children. He admitted that he has problems with the children accepting discipline from him. As noted, these problems led to his attendance at U Police Station on 14 February 2009.
Section 60CC(3)(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;

The children are aged 9 and 5 years. J is approaching an age when she will have a particular need for a mother figure in her life. I have no doubt that Ms SM could fulfil this role most satisfactorily. The question is whether J would accept her in that capacity, when her natural mother is available.
Section 60CC(3)(h):          if the child is an Aboriginal child or a Torres Strait Islander child:
(i)       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
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
There are no relevant matters pursuant to this consideration.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has demonstrated a strong commitment to the responsibilities of parenthood by his tenacious pursuit of time with the children. He has persisted in pursuing a relationship with them despite formidable obstacles placed in his way by the mother. He is to be commended for his devotion to his daughters. I reject the mother’s suggestion that “he does not care about them” and merely uses the children to undermine her relationship with Mr DA.
As indicated already, the only question mark over the mother’s attitude to the children and the responsibilities of parenthood is her firm opposition to the involvement of their father in the lives of the children. It is my view that she requires professional assistance to overcome her difficulty.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
I have referred already to much of the evidence of violence between the mother and the father. His own admissions are sufficient to ground a finding that his past behaviour was completely unacceptable. As indicated, however, I accept that he has acknowledged the egregious nature of his conduct and accepted responsibility for his violent actions.
The father admitted that he punched holes in walls and doors, during the first 12 to 18 months of the marriage, on about 3 occasions. He also admitted that he threw cups, plates and a mobile telephone at a later stage in the relationship. He conceded that he smashed a car windscreen with the back of his hand but pointed out that it was already stone-chipped.
The father conceded that he behaved in a very disturbing way, in the presence of J, on New Years Day in 2004. The mother was holding a kitchen knife during an argument and he said “why don’t you just stab me if you hate me so much, your life would be so much easier”. J saw this incident and became very distressed.
The father admitted that the punched the mother on her cheek on one occasion, after she had insulted his mother. He also admitted to pushing her onto a bed and putting his hands around her throat.
The father readily conceded that his behaviour toward the mother was “appalling, aggressive and terrifying”. He said that he was “a very different person in 2003/2004”. He attributed this change to “counselling, talking to friends and a really great relationship”. He said that he has “learned to take a deep breath, walk outside and have a smoke, take responsibility for your actions, know there are consequences, your actions involve other people, that it is always easier to walk away than continue an argument”.
I have not analysed all of the mother’s allegations of violence directed at her by thef ather, because he readily admitted that he was seriously at fault. I agree with the Family Consultant and the ICL that he has “moved on” and that, for the sake of the children, it is necessary for the mother to do the same.
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
I am not aware of any current family violence orders.
Section 60CC(3)(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;
I have considered carefully the advantages and disadvantages of making interim as opposed to final orders. If there are final orders which involve a change in residence, I would anticipate that the children would resist leaving their mother and experience a great deal of distress. It seems probable to me that J would refuse to return to her father as soon as she went back to U to spend time with her mother. E would almost certainly follow in the footsteps of her older sister. Proceedings for a recovery order and a variation to the parenting orders could then be expected.
If I make final orders for the children to remain living with their mother and spend unsupervised time with their father, I consider it likely that the mother would make good her threat of non-compliance. There would probably follow a series of contravention applications by the father.
If I make final orders that the children continue to live with their mother and spend only supervised time with their father, there would need to be a review at some future time. Supervision could not continue indefinitely.
I agree with the expert opinion of the Family Consultant, Ms L, that the problems which confront this family can only be addressed by way of professional intervention aimed at improving the relationship between the mother and the father. It seems to me that an order to compel them to participate in appropriate therapy would best be made in the context of interim orders, so that the court retains control over the situation.
Section 60Cc(3)(m) : any other fact or circumstance that the court thinks is relevant.
No relevant considerations arise pursuant to this subsection.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

As noted already, the father has taken every opportunity to participate in making decisions about long term issues in relation to the children and to spend time with them. The mother has actively taken steps to thwart his involvement in the children’s lives.

The Presumption of Equal Shared Parent Responsibility

The Minute of Orders proposed by the ICL did not support the mother’s application for sole parental responsibility. This application seems to me to be nothing more than a reflection of the mother’s determination to exclude the children’s father from their lives. In my view, there is no reason to make such an order. The father is devoted to the children and wishes to play a significant role in their lives. It can only be hoped that, with the benefit of therapy, the mother will move to a position where she is able to recognise that the children have this right and that the father has much to offer them as a father. The parents will thus have equal shared parental responsibility for the children.

Equal Time or Substantial and Significant Time

As there will be an order for equal shared parental responsibility, I am required to consider whether the children should spend equal time with each of their parents. Neither the father nor the mother sought such an order and the ICL made no such proposal, most likely for the good reason that the distance between the parties’ homes makes such an arrangement impracticable. Distance also makes impracticable orders for the children to spend substantial and significant time with each of their parents.
It seems to me that the children would have considerable difficulty in adjusting to a change in residence, to the extent that such an arrangement may well break down after a short time. With respect to the father and Ms SM, I doubt that they appreciate the full extent of the resistance and distress which they would encounter from the children, if I were to make such orders.
On the other hand, I am firmly of the view that the girls are entitled to and will benefit from a proper relationship with their father, the paternal family, Ms SM and HM. It is not for the mother to unilaterally deprive them of these relationships, as she has attempted to do in the past.
I can see no reason why the children should spend time with their father only for very limited periods in a contact centre. This arrangement is artificial, inconvenient and serves no useful purpose.
I propose to make interim orders for the children to continue to live with their mother and spend alternate weekends and half of school holidays with their father. There will be an order that the father and the mother attend a parenting program, as recommended by the Family Consultant and the ICL.
Changeovers are a problematic consideration. Until she makes some progress in counselling, I would not expect that the mother will be cooperative about the children spending unsupervised time with their father. She should clearly understand, however, that the court may very well be left with no alternative but to order a change in residence as the only way to ensure that the children have a relationship with both of their parents. I will order that changeovers take place at G, at a public place to be nominated by the ICL.
I will order that the appointment of the ICL continues and that these orders be supervised by a Family Consultant pursuant to section 65L. The father and the mother should understand that this order is intended to give them a professional person with whom they can discuss any difficulties which may arise with the implementation of the orders. It would be very helpful if Ms L could take on that role.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: September 2009

[2009] FamCA 1365

30 September 2009

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Family Law

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