KYLE & VANDERS

[2012] FamCA 599

FAMILY COURT OF AUSTRALIA

KYLE & VANDERS [2012] FamCA 599

FAMILY LAW – CHILDREN – Orders by Consent – Orders by determination - With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of violence.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A)

McCall & Clark (2009) FLC 93-405

APPLICANT: Mr Kyle

RESPONDENT: Ms Vanders

FILE NUMBER: CSC 37 of 2011

DATE DELIVERED: 30 July 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 22, 23, 24, 25, 28 & 29 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Worsley

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mrs Patricia Cope

Orders

FINAL ORDERS BY CONSENT

1. The child P born October 1995 shall live with the mother.

2. The mother shall have the sole parental responsibility in respect of the child P on the condition that she keeps the father informed of any significant events which impact on this child’s life.

3. The child R born December 1996 shall live with the father.

4. The father shall have the sole parental responsibility in respect of the child R on the condition that he keeps the mother informed of any significant events which impact on this child’s life.

5. The child S born October 1998 shall live with the mother.

6. The mother shall the sole parental responsibility in respect of the child S on the condition that she keeps the father informed of any significant events which impact on this child’s life

7. The child B born June 2001 shall live with the mother.

INTERIM ORDERS MADE BY DETERMINATION

1. The mother shall have the parental responsibility in respect of J born October 1999 on the condition that she keeps the father informed of any significant events which impact on this child’s life.

2. J shall live with the mother.

3. For a period of six (6) months from the date of these orders J shall spend time with the father each alternate weekend of every month from 9.00am Saturday until 6.00pm on Sunday (not being the weekend when R spends time with the mother and being the time B spends time with the father) AND for the purposes of handovers the father shall collect the children at the commencement of his time and shall return them to the mother’s residence at the conclusion of his time.

4. At the conclusion of the six month period, referred to above, J shall spend time with the father (being the same time the father spends with S and B) each alternate weekend from 9.00am Saturday until 3.00pm on Sunday.  The father shall collect the children from their home in C and at the conclusion of the father’s time with the children the changeover shall occur at the E Roadhouse unless otherwise agreed in writing between the parties

5. As and from the December 2012 J shall spend one half of the school holidays with the father being the second half in odd numbered years and the first half in even years.

FINAL ORDERS MADE BY DETERMINATION

1. The mother and father shall equally share parental responsibility in respect of the child B.

2. The child R shall spend time with the mother in C:-

   (a)on the first weekend of each month from 9am Saturday to 5pm Sunday.

   (b)for one half of the school holidays being the first half in odd numbered years and the second half in even numbered years.

   (c)all changeovers are to take place at the E Roadhouse.

   (d)R may choose to change or reduce the time he spends time with his mother by contacting his mother directly in advance of the scheduled time.  

3. For a period of six (6) months the child B shall spend time with the father each alternate weekend of every month from 9.00am Saturday until 6.00pm on Sunday (not being the weekend when R spends time with the mother but being the weekend the father spends with J) AND for the purposes of these handovers the father shall collect the children at the commencement of his time and shall return them to the mother’s residence in C at the conclusion of his time.

4. For a period of three (3) months the child S shall spend time with the father each alternate Sunday from 3.00pm until 6.00pm with such time to be on the weekends when J and B spend time with the father AND for the purposes or changeovers the father shall collect S from and shall return her to the mother’s residence in C.

5. For a period of three (3) months the child S shall spend time with the father each alternate Sunday from 12.00noon until 6.00pm with such time to be on the weekends when J and B spend time with the father. The father shall collect S from and shall return her to the mother’s residence in C.

6. At the conclusion of the six month period, referred to above, S and B shall spend time with the father each alternate weekend from 9.00am Saturday until 3.00pm on Sunday, being the same weekend that J spends with the father.  The father to collect the children from their home in C and at the conclusion of the father’s time with the children the changeover shall occur at the E Roadhouse unless otherwise agreed in writing between the parties.

7. As of Easter 2013 S will spend one half of the school holidays with the father being the second half in odd numbered years and the first half in even years.

8. As and from the December 2012 B shall spend one half of the school holidays with the father being the second half in odd numbered years and the first half in even years.

9. Notwithstanding any other provision of these orders, each parent has parental responsibility such as they may enquire and obtain information from any health care provider of any of the children, or any teacher or education institution in respect of any of the children to keep themselves informed as to the child’s health and academic progress, such authority includes authority to attend at schools (subject to the Rules of any Department of Education, school) and speak with teachers and obtain information about the child or children.

10. Both parents shall do all acts and things necessary to put in place all facilities to enable P and R to have easy and effective communication with one another by way of mobile telephones, email (including the establishment and provision of email addresses), the exchange of telephone numbers (including mobile telephones) and regular face to face visits between these siblings.

11. The mother shall do all acts and things necessary to put in place all facilities to enable J, S and B to have separate internet addresses so that they can communicate by email with their siblings and their father.

12. As to the electronic communication:-

    (a)within thirty (30) days from the date of these Orders the father shall purchase and provide to the children, J, S and B a mobile telephone to enable these children to telephone him AND to enable the father to telephone these children AND for the purposes of facilitating such communication between the children and their father the mother shall ensure that the mobile telephone is charged at all times.

    (b)each parent shall take all reasonable steps to install Skype on their home computers and to encourage and facilitate the children communicating with the other parent by that means at all reasonable times.

    (c)the mother will contact the children/child in the father’s care on their mobile telephone or the father’s landline at 4.30pm each Wednesday (or such other time as is agreed in writing) and the father will ensure that the child/children are available to take that call in privacy and their mobile telephone is switched on and charged.

    (d)the father will contact the children in the mother’s care on their mobile phones or the mother’s landline at 3.00pm each Tuesday and the mother will ensure that each child is available to take that call in privacy and their mobile phones are switched on and charged.

    (e)each parent provide to the other parent in writing (and shall in future keep the other parent informed within reasonable time) details of the mobile telephone numbers for each child, email address for each child and Facebook address for each child (where they exist).

    (f)each parent will have telephone communication with the children at all reasonable times and the parent who has the care of the children will ensure.

    (g)the children are permitted and enabled to take any calls and receive any electronic phone or postal communications in privacy.

    (h)for the purposes of these orders, the father shall be at liberty to contact the children’s school to make enquiries about the children having access to that mobile telephone before and after school.

13. The mother shall encourage the children to write to their father and to R, either in English or in the parents’ first language, on a regular basis, i.e. once a week in addition to the regular electronic communication

14. Each of the children’s respective schools shall be authorised by each parent to provide to the other parent copies of all reports, school photos (at that parent’s expense), news letters and other information regarding the children’s educational progress and development and both parents shall be authorised (subject to the schools permission) to attend all school functions and events and activities which involve parents.

15. Both parents shall forthwith provide, to the respective children’s school Principal, a copy of these Orders and shall ensure that each of the parents names are noted on the enrolment records of the school.

16. Each of the parents shall encourage and facilitate each of the children spending time with the other parent.

17. Each parent is restrained from relocating the principle residence of children from the Cairns/Atherton Tablelands area without an order of the Court or the written consent of the other parent.

18. The father is restrained from allowing S, J and B to sleep overnight at the home of the paternal grandparents.

19. The father is restrained from permitting S, J and B to be left alone or in the unsupervised care of the paternal grandfather (Mr Kyle (senior)) during the children’s time with the father.

20. The father is restrained from permitting S, J and B to be brought into contact with the paternal grandfather if he has been consuming alcohol or is affected by alcohol.

21. Each of the parents shall be restrained from physically disciplining the children or allowing any other person to do so.

22. Neither parent shall denigrate nor permit any other person to denigrate the other parent or members of the other parent’s family within the presence or hearing of the children.

23. Neither parent shall provide or allow others to provide alcohol to the children.

24. Each of the parents shall keep the other informed of their residential address and telephone contact number at all times.

25. BY CONSENT and within fourteen (14) days of the date of this order the mother will attend upon her general medical practitioner and will do acts and things necessary to obtain a Mental Health Care Plan for a referral to a psychologist and shall attend upon a psychologist and continue to attend upon a psychologist as recommended by that psychologist.  Provided always that the father and the Independent Children's Lawyer are restrained from issuing a subpoena or notice to produce for any notes and records of such mental health professional without the leave of this Court.  The Independent Children's Lawyer and/or Family Consultant are entitled to obtain confirmation from the mother’s general medical practitioner and the mental health professional that the mother has complied with this Order.

26. The appointment of the Independent Children's Lawyer continue for a period of twelve (12) months from the date of this order, or such alternate period as is otherwise ordered by this Court.

27. Pursuant to s 65L of the Family Law Act 1975 (Cth), a Family Consultant nominated by the Manager of Child Dispute Services of the Cairns Registry of the Family Court be appointed for a period of twelve (12) months from the date of this Order to supervise the parties’ compliance with these Orders and to assist, as is reasonably requested, in relation to compliance with, and the carrying out of, these parenting orders.

28. The mother takes steps, as soon as is practicable, to have P assessed by the Child & Youth Mental Health in C and attend such interventions as indicated by the Mental Health team at Child & Youth Mental Health.

29. Within fourteen (14) days of appointment of the s 65L Family Consultant contacting them, the parents and consultant will implement methods to enable the children contact each other and the other parent by telephone in accordance with these orders.

30. The mother will attend upon and complete the Focus on Kids course within six months of the date of this order and provide a certificate of completion to the s 65L Family Consultant.

31. The Independent Children’s Lawyer and Ms W shall as soon as practicable make arrangements to meet with and speak with of the children, in the absence of their parents, to inform them of the Orders.

32. There be liberty to apply for a period of twelve (12) months to apply to have the matter re-listed before His Honour Justice Benjamin (or if he not reasonably available another Justice of the Family Court) to determine whether there should be a change to J’s parenting arrangements. NOTING THAT non-compliance with any part of these orders may be a basis for a change of the parenting arrangements.

33. If after twelve (12) months from the date of these orders, this matter has not been relisted, then:

    (a)the interim parenting orders are to become final orders;

    (b)the appointment of the Independent Children’s Lawyer be discharged; and

    (c)the orders in respect of J shall become final orders.

34. 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.

35. This matter be removed from the list of cases requiring determination.

36. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC37/2011

Mr Kyle

Applicant

And

Ms Vanders

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Kyle (‘the father’) and Ms Vanders (‘the mother’) are involved in litigation in relation to their five children namely:-

   §P (aged 16 almost 17);

   §R (aged 15);

   §S (aged 13½ );

   §J (aged 12½ ); and

   §B (aged 10 almost 11).

2. Unfortunately for these children, their parents have and are engaging in an emotional war of attrition, with the children being used as a method by which each parent inflicts emotional pain the other parent. The children are collateral damage in this conflict.  The abuse has been ongoing since 2004.  The heat of the battle waxes and wains depending on events surrounding the developmental milestones of the children.  These parents have successfully imposed the pain of that war on their children and there is no sign of the hostility abating.

3. The mother, and now with her new husband, do all they can to discourage the children from having a relationship with the father and are likely to continue to do so.  The mother has a deep and abiding dislike, if not hatred, of the paternal grandfather and to a lesser extent the paternal grandmother.  The mother manipulates the emotions of the children to give effect to the outcome she desires.

4. The father has chosen to live in poor circumstances on a remote property.  He has undertaken very few steps to provide adequate accommodation for the children at his home.  He is content to leave the children, for significant periods of time, in the care of the paternal grandmother and grandfather, instead of enabling the children to spend time with him.

5. The father is aware that the children object to this arrangement but the father will not listen to the children’s views, he is insensitive to their concerns.  There have been numerous opportunities for him to adopt the role of a carer at his home rather than to leave the children with his parents and he has failed to take those opportunities.

6. There is no doubt that all of the children (with the exception of R at this stage) do not want the type of relationship the father proposes they have with their paternal grandparents, particularly their grandfather.  Whether this arises as a consequence of the attitude of the mother or the attitudes and approach of the paternal grandparents and/or the father, I cannot determine (the paternal grandfather did not attend on Ms W for the interviews undertaken in the preparation of her report and neither of the paternal grandparents gave evidence in these proceedings).

7. Irrespective of the cause, the result is the same and the father’s blindness and deafness to those concerns, as far as the children are concerned, is extraordinary and obtuse.

8. There is little that the Family Court can do in these circumstances except to put in place orders that will reduce the damage that these two parents will inevitably inflict upon their children.

9. If and when these children suffer further emotional and psychological difficulties into the future; these parents should each look to himself or herself as a significant cause.  Having seen and heard both of these parents, I am confident that they will eschew self blame and continue to lay fault at the feet of the other parent.

10. These parents should hang their heads in shame, such is their self-focus and their failure to meet the emotional and psychological need of these children. They can only be described as poor parents.   

THE ISSUES

The child P

1. P lives with the mother and is estranged from the father.  He is at an age where his views must be given significant weight (he attains the age of 17 in September 2012).

2. Consent orders were made at the commencement of the proceedings that P should continue to live with the mother and that she have sole parental responsibility for him but should keep the father informed of any significant events impacting on P’s life.

The child R

1. R is aged 15 and turns 16 in December 2012.  R has decided to live with his father since January 2011.  There is a factual issue as to the reason for the child changing his living arrangements.  I accept that the mother has, on at least one occasion in September 2003, shunned R for making this move and has endeavoured to isolate him from his siblings.

2. A consent order was made at the commencement of the proceedings that R live with the father and that the father have sole parental responsibility and that the father should keep the mother advised as to any significant events impacting on R’s life.

3. The issues to which I have to determine in respect of R are whether I ought to make an order requiring the mother to spend time with him (and his siblings) on the basis of once per month and the availability of telephone contact between R and his siblings.  I will be making these orders.

The child S

1. S is aged 13 and turns 14 in October 2012.  There is no issue that S should live with the mother.  A consent order was made to that end.

2. The issues in relation to S are the times that she spends with the father, R and J (if I determine that J should live primarily with the father).

The child J

1. J is aged 12 and turns 13 in October 2012.  The evidence is that J is a very sensitive introspective child upon whom the parental conflict has weighed heavily.

1. The evidence of the Ms W is that the conflict between the parents has, and is continuing to have, a profound effect on this child.  There was an issue as to whether J is clinically depressed and whether he should live primarily with the father or the mother; either outcome will have a significant adverse impact on J in the absence of the parents forming some sort of parental alliance to manage the well-being of this child.

2. I need to determine where J primarily lives and having done so, determine the time and communication between J and his other siblings and parent.  The father’s case was badly prepared as neither his mother nor his father gave evidence and neither of his parents attended the hearing.  It is clear that the father would leave most of the parenting to his parents.  

The child B

1. B turned 11 in June 2012.  From the evidence of Ms W she is the most emotionally robust member of the family.  How long that can be sustained in this parent-driven cesspool of conflict is anyone’s guess.  It was agreed between the parents and the Independent Children’s Lawyer that B should live primarily with the mother and consent orders were made in this regard. 

2. The issues to be determined in respect of B were the time she spends with her father, her siblings and the question of parental responsibility.

3. There were two other issues to be determined with regard to the children, one of which is the children’s interaction with their paternal grandfather.  The second is the nature of telephone communication between the children and their parents and the children and their siblings.

BACKGROUND

1. Soon after the commencement of the hearing the mother sought an adjournment of the proceedings and relied upon some medical evidence.  That application was dismissed.

2. However, to enable the mother to manage (the mother being self-represented) I facilitated her present husband, Mr Vanders, to sit in court with her.  I did this with the consent of the Independent Children’s Lawyer and the father.

3. The mother is aged 42 and the father 43.  Apparently the father moved to Australia from Central Europe and went back to that country in the early 1990’s where he met the mother.

4. The parties married in October 1994.

5. They lived in Z which is a remote community in the Atherton Tablelands.  They have five children to whom I have referred to earlier.  The parties separated in January 2004 and were divorced in May 2005.

6. In March 2006 the parties resolved parenting matters by way of consent orders which were made by Carmody J.

7. This followed the commencement of litigation in February 2004.  Those consent orders provided that the parents have joint parental responsibility for the children and that they live with the mother.

8. The orders also provided that the children spend time with the father as agreed or each alternate weekend, half of the school holidays and other significant occasions.  The order provided for telephone communication between the children and the father and the provision of school reports and photos.

9. There were also a series of restraints which included restraining the parties from physically disciplining the children or denigrating or other persons denigrate any other members of the party or any of those person’s family, restraining the parties from allowing medical examinations or counselling in relation to sexual, physical or emotional abuse without first undertaking some steps.  The parties were also ordered to undertake post-separation counselling, that the time the children spent with the paternal grandfather be supervised and there be no overnight stay with the paternal grandfather and that no alcohol be provided to the children.

10. In 2007 the mother married Mr Vanders and there are two children of that marriage, namely A, almost four years old, and K, who is two years old. 

11. In January 2011 R commenced living full time with the father.  There was subsequent mediation.

12. In January 2011 the father commenced proceedings for final orders that R live with him.  The mother filed a response and the matter was listed in the Federal Magistrates Court where a number of procedural orders were made.

13. Those orders included the appointment of an Independent Children’s Lawyer and in March/April 2011 an order was made that there be telephone communication between the mother and R and a Case Assessment Report was prepared.

14. On 24 May 2011 interim orders were made that R live with the father and spend time with the mother on a monthly basis.  The orders further provided that the children P, S, J and B live with the mother and S, J and B spent time with the father at least for the third weekend of each month from 9.00am Saturday to 5.00pm Sunday and further directions were made.

15. A family report was prepared by Ms W. When that report issued, Ms W recommended:-

    (a)the children P, S, J and B live with the mother, that

    (b)J and B spend fortnightly time with the father,

    (c)time with the paternal grandparents be limited to meal times including preparation; and

    (d)R live with the father. 

    There were a series of other recommendations.

16. The proceedings were transferred to the Family Court for hearing.

17. The Independent Children’s Lawyer prepared a bundle of documents[1] which was tendered at the commencement of trial and to which reference has been made.  I invited the parties, who were unrepresented, to reflect on that bundle of documents and make submissions as to whether any parts or part of it ought to be excluded.  No submissions were made.

    [1] Exhibit ICL1.

18. Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary is clear from the context of these reasons.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The provisions in the Family Law Act1975 (Cth) (“the Family Law Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Family Law Act, which provides:-

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Family Law Act.

3. There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.  

4. If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

THE EVIDENCE

Ms W

1. Mrs W relied on her affidavit filed 4 October 2011 which was read into evidence.  Attached to her affidavit was her Family Report dated 4 October 2011.

2. The Independent Children’s Lawyer or the father raised no issue as to her qualifications.  The mother had concerns about the ability of the Family Consultant to make the assessments set out in her report. The mother contended that Ms W’s report was impeached by reason of the relatively short time taken conducting the interviews with the children and that Ms W had not interviewed the paternal grandfather.  The mother clearly did not like the comments and recommendations contained in the report.

3. Attached to the report of Ms W was her curriculum vitae, which shows extensive practical and academic experience.  I am satisfied that Ms W has the requisite qualifications to enable her to express the opinions contained in the report.  

4. Ms W interviewed the children, the paternal grandmother, Mrs Kyle, and the mother on 23 September 2011.  She interviewed Mr Vanders, the mother’s present husband, on 23 September 2011 at his home.  She interviewed the father, at her offices on 24 September 2011 and the mother at her office on 28 September 2011.

5. Ms W conducted telephone interviews with the father and the child R on 3 October 2011.  She had before her the case chronology, information from Child Youth Mental Health Service, State school reports and a report by Ms Y.  She had also available to her extensive court material that is set out in her report.

6. Her recommendations were:-[2]

   [2] At paragraph 127 of Ms W’s Family Report dated 4 October 2011.

   a)The children P, B, J and S reside with the mother.

   b)J and B, to spend fortnightly weekends with the father at the father’s house, with changeovers to continue at the E Roadhouse;

   c)Time spent with the paternal grandparents be limited to meal times (both preparation and partaking of meals), with J and B spending the majority of the time, at least 80 per cent,  in the company of the father;

   d)The child R, to reside with the father;

   e)R to spend overnight once a month with the mother.  While it is acknowledged that R would like to make the decision regarding the date of the overnight stay, however as such a stay requires co-ordination of schedules on several family members part, a set date, i.e. third Saturday of the month, would be beneficial to all parties.

   f)All adults, i.e. mother, father, step-father, paternal grandparents, refrain from questioning any of the children in regard to where they want to reside and to refrain from making statements that denigrate any other party.

   g)The child J, attend counseling at Child & Youth Mental Health in C, including the father and paternal grandfather in sessions as indicated by the Mental Health team at Child & Youth Mental Health.

   h)The child S, be reviewed by the Child & Youth Mental Health in C and attend such interventions as indicated by the Mental Health team at Child & Youth Mental Health.

   i)The child P, be assessed by the Child & Youth Mental Health in C and attend such interventions as indicated by the Mental Health team at Child & Youth Mental Health.

   j)The Mother, avail herself of frequent counseling in regard to the diagnosis of Post Traumatic Stress Disorder as diagnosed by Dr T.

   k)The Children to be encourage to write to their Father and to R, either in English or in the parents’ first language, on a regular basis, i.e. once a week; and that the Children have a mobile phone so that they can contact the Father and R outside of the Mother’s home.

7. When giving evidence there seemed to be a change in Ms W’s view in a number of areas. 

8. One of those areas was in relation to the child J.  Ms W deposed that J was struggling in the home of the mother and that he may [emphasis added] have a better opportunity of flourishing if he were to live with the father.

9. J has, as at December 2011 and January 2012, declined to spend time with the father and was not informed that the father was seeking orders that J to live with him.  The mother has now informed J of that circumstance.

10. The mother asserts that this is J’s decision of his own will.  The father says that he has been pressured into making that decision.

11. Ms W was somewhat ambivalent about what approach was best.  J has a close relationship with his siblings (including his siblings from the mother’s second marriage) and his education seems to be improving this year.

12. A change for J would mean uprooting him from his school, his friends, his siblings, his mother and his step-father.

13. Ms W said the school which J would need move to, near the father’s home, is a nurturing school.

14. The changeover is likely to be traumatic and it is not clear how it will work.  There as an initial diagnosis by Child Youth and Mental Health Service in 2002 that J was clinically depressed.  That diagnosis has been subsequently reviewed by that organisation.

15. Ms W believed that in September 2011 J was depressed and said:-[3]

    [J] is too depressed to indicate where his attachment lies, and may in fact be currently unattached to anyone, as is common with children who are depressed.

    [3] Ibid at paragraph 126.

16. Ms W expressed a preference that J should move and live with the father, but her view in this respect was given with some trepidation and was highly qualified.  Ms W observed that when J was with his mother he was overtly closed and depressed but brightened when he saw his father.  She described J as a quiet child who doesn’t talk much and would be upset if he was separated from B.

17. If orders were put in place, regardless of whichever parent J was living with, he would need to spend fortnightly weekends with the other parent and his other sibling or siblings.

18. J is likely to be compliant with orders provided that both parents support him.  And again the mother would need to support the time that J spends with the father.

19. Ms W said that J moving in with the father may be beneficial for him as his grades may improve (they have been improving throughout the first part of 2012) and R may be able to assist him.  Having regard to the number of children in the care of the mother, the father’s house may be a less stressful environment and the outdoor lifestyle might be more suited to J’s needs.

20. In cross-examination by the father Ms W confirmed that the child J was ‘slumped’ in the presence of the mother, and observed that:-'[4]

    [J] presented as a physically healthy lad of stocky build.  [J] presented as well-dressed, tearful, depressed and exhausted, and primarily held a slumped position while observed with the Mother and the family, although [J] did not slump in the presence of his Father and grandmother, nor for the latter time when being interviewed.

    [4] Ibid at paragraph 59.

21. Ms W confirmed that J was the most vulnerable of the children.  Further, he had pleasant memories of his time with the father.

22. Ms W said, and I accept, that the children were not attached to the paternal grandparents or step-father but said if they were attached it was to their parents.

23. Ms W provided some evidence that the mother and the step-father are taking steps to impose stress on the children if they have a relationship with the father. She overheard a conversation between the mother and the step-father where the mother said ‘if you are not for me you are against me’.  It is possible, although unlikely, that Ms W misinterpreted this statement.

24. Ms W said the non-denigration order is important as the mother has, on the observation of Ms W, given the children too much information of her negative feelings towards the father.

25. At some levels Ms W’s evidence is that the children are enmeshed in the conflict.  Ms W’s evidence was it is unlikely the mother will facilitate time and communication in the absence of orders although the father is likely to do so. 

26. Ms W’s opinion was; that the father was more likely to encourage a relationship between the children and the mother but that the mother may not do so. 

27. One of the sad and troubling aspects of the mother’s approach to the conflict is reflected in paragraphs 82 to 84 of Ms W’s report which stated:-

    82.  During observation of [R] attending on the Mother and his siblings and step-father, it is noted that [R] entered the room with his head held erect and calmly walked from one end of the room to the other where [P] was playing on a laptop computer.  Not one family member were not heard or seen to greet or acknowledge [R].  The Mother turned away as [R] walked near her.  [R] began softly talking to [P] and the game he was playing.  [P] replied and a conversation between the brothers ensued with some laughter.  The Mother was heard to ask [R] if he had brought any of his delicious pumpkins with him.

    83.  [R] moved around the room saying a cheerful ‘hi’ to each of the siblings, and making physical contact with each of the siblings [footnote omitted] tickling the girls and giving [J] a little friendly shoulder shove.  [R] crouched down to the floor where his sisters were watching a DVD.  [R] chatted softly with both girls; they laughed together.   Eventually [R] came to his Mother, who put her arms around him and hugged him.  They talked softly together and laughed about how much he had grown.

    84.  The observation of [R] re-entering contact with his family members lasted approximately 20 to 30 minutes, where after this Family Consultant invited the Young Persons and Children to spend a few minutes with the Father and grandmother.  [R] said goodbye collectively to everyone, hugged his Mother and left the room.

28. The mother’s explanation about turning her back was a reconstruction and I do not believe her. I find that the mother turned away from R as he walked near her and I accept that none of his siblings initially acknowledged him.  It was up to R to undertake that task.  The description of this interaction does great credit to R but little credit to the mother.

29. It was significant that R initially did not wish to see his mother but was encouraged at least to do so by the father and now enjoys the monthly visits.

30. The mother is sometimes insensitive in terms of R and there are two occasions this year where she has cancelled the time that R was to spend with her (for what may be central reasons) but for which are not in the child’s interests.

31. Ms W said that ‘grief and distrust has prevented the parties from seeing what is best for the children’.  Both parents need to be supported by a family consultant into the future’.  It is my view that the parents ought to be informed in a robust way about their respect approaches to their role as parents, and I have done so.

32. One of the interesting interactions which assisted me in assessing the evidence of Ms W was an interaction between the mother and the father at the end of the second day of trial.

33. The father was being cross-examined and some issues arose as to communication.  There was an exchange between the mother and father in a pleasant, effective and constructive way where they were smiling at each other.  It struck me, with that exchange, that this couple were capable, in certain circumstances, of reason and reasonable communication.

1. Ms W was not overly concerned about the paternal grandfather (albeit that she had not spoken with him) because she formed the view that the father was protective.

2. She formed a view that the mother probably needed ongoing psychological treatment and that it was less likely for the father.

3. Ms W said the father is likely to emotionally support the children although he might put his opinion of the mother to the children.  As to the mother, Ms W said, she is loving and will support the children so long as they do what she wants.

4. There is limited capacity for either parent to protect the children from the conflict.  Ms W opined that when the children are staying with the father they should live primarily at the father’s home and that the father should understand the need for the children to spend time with him, especially before they go to sleep as this is a vulnerable time for children, and they should be in his house in their own rooms.  I accept that evidence and I have made orders to give effect to same.

5. I accept Ms W’s expertise.  I accept that she is a frank and an independent witness.  I generally accept her observations and her conclusions, albeit her conclusions are from work undertaken in September 2011.

6. Ms W said the children were likely to conform, for the time being, to the mother’s view of the father which was generally poor.

7. Ms W said that J needs more parenting and that the mother may not be able to provide this.

8. Ms W observed that the Child Youth and Mental Health Team advised that the child J have an intervention involving joint counselling with the father and the paternal grandfather.  The mother would not agree to the intervention involving the father and the paternal grandfather and Ms W was of the view that it was unlikely that the mother would be able to meet J’s emotional needs at that time.[5]

The father

[5] Ibid at paragraph 123.

1. The father gave evidence in accordance with his five affidavits filed 24 January 2011, 24 June 2011, 30 August 2011, 12 September 2011 and 23 April 2012.  He also relied upon an affidavit of Ms N filed 4 July 2011.

2. Those affidavits were read into evidence.

3. The father gave evidence in a subjective way.  His evidence was that the children seemed to echo the ‘with us or against us’ approach adopted by the mother and step-father.

4. There was evidence from the father in relation to driving the children all the way to the mother’s home and all the way back.  It is about a two to three hour return trip and the father has some shoulder problems.  However, I am satisfied he is able to drive that distance and having regard to the other duties of the mother and the father’s unwillingness to provided adequate financial support for the children, he should generally do so.

5. The father agreed that whoever had the primary care of J should have parental responsibility for him and that the children generally have a good relationship with each other, including R at present.

6. The area where the father lives at Z has limited mobile telephone coverage but he has a land line telephone.

7. The father endeavoured to give some evidence of something R had said that J had told him.  Having regard to this being ‘hearsay’ on ‘hearsay’ I give that evidence no weight.

8. The father was not aware that J had been diagnosed with possible clinical depression until mid March 2011.

9. The father initially came across as frank, plain and impressive.  However, with his cross-examination, particularly after the mother’s cross examination of him, that initial impression appeared to be somewhat of a veneer. 

10. When the father was challenged about the involvement of his father, irrespective of the background, the father’s reaction was to be defensive and was insensitive to the concerns of the children.  This is particularly troubling bearing in mind the issues raised by the teachers and others and in particular regarding J.  The father said that he complied with the spirit of the orders of Carmody J and yet some years ago he drove to Brisbane with R and was away for about five days, leaving the other children in the sole care of the paternal grandparents.  This, despite the clear orders made in 2006 by consent in the Family Court.

11. The father gave evidence as to giving presents in the form of money to the children rather than material presents.  He said he would normally put money aside for S but did not do so in 2011.  I was initially inclined to believe this evidence.  However, when the father was pressed about the amount of money that was held in the children’s money boxes at his home and in bank trust accounts, it was clear that there was limited money remaining.  When cross-examined by the mother it is clear that the children had at one stage, in various accounts in their names, about seven or eight thousand dollars.  The father used those monies to purchase a car for himself.

12. It took much cross-examination by the mother to have the father concede this circumstance and I am satisfied that he was obfuscating in terms of this evidence.

13. The mother complained, and I accept, that the father did not treat the children as effectively as he might otherwise have done so in respect of the minor burns, boils and other aspects of their health.  On the surface that was not a problem however, when pressed about an asthma problem in respect of P the father prevaricated.

14. I am concerned as to the quality of the father’s evidence.

15. I am also concerned that the father is not as protective of the children when they are left in the care of the paternal grandparents (in particular the paternal grandfather) as was assessed by Ms W.

16. When questioned about the paternal grandfather’s mental health, the father asserted that the paternal grandfather had no mental health difficulties.  However, when shown some material from Centrelink dating back to May 2005 it is clear that the paternal grandfather had some personality issues of which the father was aware and which he had endeavoured to suppress.

17. The father was shown and accepted photographs of a neat cottage in which the mother, step-father and the majority of children live and was also shown photographs of the home[6] in which he lived which is somewhat ‘rustic’.

    [6] Exhibit M4.

18. That home has some beds but the father is content for R to eventually move into a caravan near the home.  It is clear that much of the children’s accommodation is at the paternal grandparents home some nine kilometres away.  Again the father’s evidence in relation to the amount of time the children spent with the paternal grandparents was problematic.

19. The father said, and I accept, that he only discovered J was diagnosed with clinical depression in March 2011 (when there was a diagnosis in March 2010) and he discovered in September 2011 that the mother had refused therapy which involved the father and the grandfather.

20. The father gave evidence that R remains close to P and may communicate with him, although the father did not provide P’s email address to R or vice versa.

21. The father gave vivid evidence of the changeovers in November 2011 and December 2011 where J was reluctant to attend.  The father’s evidence was of J getting into the car.

22. At the first incident at changeover, the father said that the step-father had been yelling at him.  I am satisfied this is a subjective approach and that there is some element of exaggeration.

23. The father gave evidence that in December 2011 he needed to use ‘parental authority’ to persuade J to enter the car which involved putting an arm around J’s shoulder and moving him towards the car.  I am satisfied that there was no physical abuse of J but he clearly did not want to attend and the father was not prepared to accept the child’s view in that regard.

24. A loud and verbal, and at some low levels, physical altercation arose between the father and step-father to which both J and his younger sibling were exposed.

25. There had been a previous incident in 2010 which was as a consequence of miscommunication and in circumstances where both the father and step-father engaged in aggressive conduct in the presence of the children. 

26. The father said he was reluctant to telephone the children on the landline at the mother’s home as he feels the calls are being monitored.  There is some basis to that complaint although the father endeavoured to ‘secretly’ have a letter forwarded to J by R when he visited.  That was an unfortunate use of R at a time when he should have been engaging with his mother and siblings.

27. There is some evidence of text messages probably from J in 2011 although it is not clear whether they were from J.  I accept that J loves his father and wants a relationship with him but is concerned about the involvement of the paternal grandfather. 

28. There is some evidence that when R was initially reluctant to visit his mother in early 2011 the father persuaded him to do so in a sensible way and that contact did occur.

29. The father gave evidence that the mother has called R a ‘traitor’ and he was blamed with ‘siding with the father’.  I accept the father’s evidence in that regard albeit his views of what the child said may or may not be exaggerated.

30. The father gave evidence that R complained he was held to the ground by the step-father and that was reported to the guidance officer.  The second incident was not reported as R was too afraid to report this.

31. There is a level of antagonism, distrust and aggression between the father and step-father.  The father said he is prepared to try to arrange to have horses on the property if and when S visits (she has a love of horses), and says that the arrangement for returning the children on a Sunday afternoon might enable him to facilitate some time with S rather than have her visit the property.

32. The father said that J did not seem stressed when spending time with him although that is different from the evidence of the mother and, objectively, the evidence from the teachers.

33. The communications between the parties are appalling.  In 2008 or 2009 there was an intake at Lifeline.  The father said that he undertook the intake and said he would get feedback.  He said he was comfortable with that approach but when he went to get feedback that was rejected.  As a consequence he terminated some child counselling.  There was no explanation as to why the father would not have contacted the mother or worked out a sensible approach.

34. The father endeavoured to ascertain some information from J’s doctor but was informed this could not be done by telephone; he would need to be present. The father chose not to adopt that course.

35. The child J had counselling arranged for him at Uniting Care in November 2011.  The father said he was only aware of the reports although when presented with some letters,[7] he conceded that he may have been aware of other appointments.

    [7] Exhibits M7 and M8.

36. The father says that he has arranged for R to see a counsellor, Mr H, in 2011 and that counselling did not need to continue.  This seems to be in accordance with the business records of that organisation.[8]

    [8] Exhibit ICL1 at page 279.

37. The father attended the Parenting after Separation Course and said that he received a lot from it and learnt a lot from it.

Evidence Dr G

1. Dr G has been the children’s general practitioner since mid 2006.  He has seen all five children from time to time.  Dr G was taken to his report of 5 September 2011.  That report was prepared for the mother at her request and is to some extent a ‘character reference’.[9]  Dr G has had little involvement with the father.  On one occasion the doctor had referred to the Department of Child Safety (as he is obliged to do if he has a concern) and to which there is and ought to be no criticism.

   [9] Annexure AV19 to mother’s affidavit filed 12 September 2012.

2. In October 2010 Dr G referred J to the Child and Youth Mental Health Unit.

3. Dr G said some of the complaints of the children were such that they ought to have received medical treatment and they did not do so.  These were, however, of a minor nature.

4. His concerns in that respect were the subject of a notification by him in late 2006/early 2007.  

5. Dr G also cares for the mother and says that she suffers from anxiety and at times depression. 

6. I am satisfied that many of the issues in relation to the children’s  treatment for minor ails and illnesses and need for and use of medication relate to different lifestyles,  the mother a suburban lifestyle, the father a country lifestyle.

Mr D

1. Mr D is the Principal of V School.  He provided a report to the Independent Children’s Lawyer that R has settled into school well.  That was not seriously challenged; in fact R did well in 2011.  The mother’s cross-examination of Mr D was somewhat aggressive as she had complained the school did not provide information over the telephone to her before they had met her.

2. The principal’s response was balanced and settled and I accept him to a witness of truth.

The mother

1. The mother relied upon her affidavits filed 3 March 2011, 30 August 2011 and 12 September 2011.  She also relied on the affidavits of her husband, Mr Vanders, filed the 3 March 2011 and the 4 April 2012. 

2. The mother gave evidence and was cross-examined, the veracity and quality of her evidence was significantly challenged.  At times the mother made statements which were appropriate in terms of the involvement of the father giving the child space etcetera.

3. In terms of involvement of the father, I find that the mother takes every opportunity to limit the children’s involvement with him. 

4. An example of this was when one of the children was given a mobile telephone by the father and communicated with him on the way home from school with his siblings.  The mother was told about this by J and her immediate response was words to the effect ‘what was that about?’ and ‘why does he not ring here?’  In terms of telephone communication the mother was asked about particular times and gave reasons why no times could be available for the children to speak with their father but said she would try at 4.00pm on some afternoons but it was highly conditional.

5. Another example was where the mother objected to the father sending a letter to the child S via the child R.  Whilst I am mildly critical of the father from using R for this purpose, the mother’s reaction was an overreaction.  The letter itself was a lovely letter as one would have hoped for between the father and a daughter where there was some stress.  Yet the mother was clearly incensed that this letter was sent and it was not referred to S by her.

6. The mother’s evidence is littered with examples of her preventing or restricting the time the children spend with their father.  This has occurred at least since the orders of 2006 and has been constant.

7. The mother consented to the orders in 2006 but says that the children thought they were unfair.  It is clear that it was the mother who thought the orders were unfair.

8. An example of the mother’s approach was where she said that she loved R and would give him space  When pressed about R wanting to see her on a monthly basis she was ambivalent in her reply.  She did not want to give R space, it is clear that she wishes to restrict his involvement with her and her family.  It is possible for the mother to ring R on Thursday.  However, she does not do so and her excuses are without substance.

9. When asked about turning her back on R at the meeting with Ms W, the mother made an excuse and said Ms W clearly did not see that she was turning to attend to another child.  I do not believe her evidence in this regard.  The mother turned her back on R and the reaction of the other children was a mirror of the mother’s response.  The mother gave evidence that R and his siblings are now no longer as close.  I am satisfied that the mother has, to a significant extent, brought about this change.  She did not send him a birthday present or a Christmas present.

10. The mother was cross-examined about the relationship between S and the father.  Again her evidence was ambivalent.  I am not satisfied, having seen her demeanour and listened to her answers, that she will do anything to encourage the relationship between S and the father.  The mother makes up excuses why this should not occur.

11. Ms W saw the child S and said at paragraph 72:-

    Previously on that day, [S] had stated to the Family Consultant that she did not want to spend time with her Father because “I’m uncomfortable with grandpa and Dad…Grandpa smacked me on the ass and smiled…Grandma doesn’t speak English, only [parents’ first language] and it’s too hard, it’s confusing…I’m uncomfortable with most men…I don’t know what makes me uncomfortable…I don’t know what Mum thinks of Dad.  Dad doesn’t like Mum and tries to say stuff in his letters.”  When asked how she knew this, [S] stated ‘Mum read some to us and he said we didn’t want to talk to Mum when we were staying at Dad’s.”  [S] added, “I don’t like anything about Dad.  I don’t want to stay in contact with Dad, only sometimes if I really want to.”

12. The mother has not supported S in her relationship with the father and has involved the children in the detail of the family law proceeding. S indicated to Ms W that the mother had read material to them.  Yet S is still open to seeing her father and I will endeavour to put in orders which may give effect to that.

13. The mother asserted that she had been told by teachers in early 2011 that J had threatened to hang himself.  If accurate, this is a serious and significant issue.  The mother says that there were four people present but cannot recall who made the statement.  This evidence was not contained in the evidence from the teachers at J’s school including the guidance officer and there is no evidence of that statement on the school file.

14. I am satisfied that if a teacher, principal, guidance officer or school otherwise became aware that a child had threatened to hang himself there would be some record kept of that.  This is part of the approach adopted by the mother following R’s departure from the family and part of a new surge on the mother’s part to ensure that S and J spent no meaningful time with the father.  She was successful on this through 2011.

15. I am satisfied that it is likely to arise with the child B in due course.

16. My concerns about the mother are reflected in the report of Ms W where the father says, and I accept, that he has heard the youngest children arguing and one said to the other ‘I am going to tell mum that you love dad’.  I am confident that that is accurate evidence of the father.

17. The mother did not see R on two occasions in 2012 and her explanations were unconvincing.  She was not giving R space; she was sending a clear message to him that she did not want to see him on those weekends.  Alternate arrangements could have been easily made. For instance the mother could have asked the father to drive R to her home or closer to Cairns, the mother said the second visit was such that she was preparing for an operation and that R would be too disruptive.  However, in her earlier evidence she said R spent most of the weekend on the X-Box.  She cannot have it both ways.

18. It is significant to consider some of the events in 2011.  Ms W issued her report in early October 2011 and on 7 October 2011, as a consequence the father amended his application seeking orders that J live with him.  At the next visit J told the father he did not want to stay with him.  At the next visit there were difficulties getting J into the car.  These events were clearly distressing for both J and B.  The father has not seen J since that time.  This was no coincidence.

19. One of the complaints made by P at one stage in 2011 was that the paternal grandfather had said the world was going to come to an end in 2012 and that the paternal grandfather would kill the family.  The mother says these were threats that were made many times although it is troubling that this assertion came from P when he had not seen the father or paternal grandfather for about two years.

20. Despite the mother’s criticisms of the paternal grandparents, in her affidavit filed 12 September 2011, she says:-[10]

    I do not oppose the children spending time with the paternal grandparents.  I oppose the failure of the children’s father and paternal grandfather to comply with the current orders which is impracticable on the childrens’ wellbeing.  I also wish to incorporate the wishes of the children.

    [10] At paragraph 58.

1. That is in some ways typical of the ambivalent nature of the mother’s evidence where she makes statements which on the surface appear reasonable but when pressed, it is clear that she does not support the children’s relationship with the father.

2. When the mother learnt that J was sending text messages to the father late at night on his mobile telephone two things occurred, firstly J was punished (with the excuse given by the mother that it was late at night) and the mobile telephone contact ceased.  This is again no co-incidence.

3. The mother was cross-examined in respect of the relationship between the child P and the paternal grandparents and she prevaricated in her answers. 

4. The mother was cross-examined in relation to attending Ms N’s place of work.  The mother said she just happened to be there.

5. In regard to the concerns I had about the mother’s evidence and her frankness I have difficulty believing her.  The mother did take photographs of the number plate of Ms N’s car and it is indicative of the level of anxiety and hostility that occurs between the parties.

6. The mother was cross-examined in respect of her assertion that the father and Ms N were committing social security fraud.  The mother said the children did not know about this.  However, having regard to the mother’s evidence and the mother’s involvement of the children in these proceedings I am not confident that she has not shared that information with the children.

7. At one stage the mother was cross-examined in respect of the text message which J sent to the father on 18 March 2011.[11]  Her initial explanation was that the child would be too tired as he had to go to school the next day.

   [11] Exhibit ICL5.

8. When being informed that 18 March was a Friday night she prevaricated in respect of her evidence.  I am satisfied that the mother positively discourages the children from spending time with their father.

9. In October 2010 J attended at the Youth Mental Health Service at the request of his school guidance officer who felt out of his depth.  At that time J was diagnosed with a ‘major depressive episode’ in October 2010.  This was a significant diagnosis. The mother initially asserted that she did not know of J’s diagnosis that he was clinically depressed until 20 January 2011.  When I asked her about that diagnosis she eventually conceded that in October/November 2010 she was informed of the possibility of a major depressive episode in terms of J.

10. The mother asserted that she notified the father.[12]  She says in her email on 14 October 2010:-

    [P] and [J] received a referral from Dr [O] to Mental Health Care [C].  The reason referral are some problems at school and [J] and [P’s] ADHD and allergies.  When you need more info – contact Dr [G] or … Mental Health Care.

    [12] Exhibit M10.

11. The father responded by rightly observing that these may be potentially significant health issues. He reminded the mother that she had an obligation to keep him informed and sought information. The mother replied on 21 October as follows (in so far as J was concerned):-[13]

    [J’s] appointments to mental health are to prevent his problems becoming serious in the future.

    [13] Ibid.

12. The mother then went on to add importantly:-[14]

    [P], [J] and [S’s] problems all relate to school and school work.

    [14] Ibid.

13. The mother saw the psychiatrist on 20 January 2011 and it was recommended that J have counselling with the father and paternal grandfather.  The mother refused that form of treatment.  Her evidence around this area of cross-examination involved high levels of obfuscation on her part and it was at times mendacious.  I am satisfied that she did not inform the father of the possible serious diagnosis, the diagnosis or the refusal.  This is extraordinarily concerning having regard to the mother knowing of the possible diagnosis and yet the child spent weeks with the father and paternal grandfather over the Christmas period.  It is indicative of the mother’s self focused approach.

14. It was the mother who informed J of the father’s intention to seek orders that he live with the father.  On 21 November 2011 the mother sent an email to the Independent Children’s Lawyer.[15]  In that letter the mother said, amongst other things:-

    My husband and I have now told [J] that his father has now applied to the court for [J] to reside with them as we thought he should probably know this, considering he is in high school next year.  I don’t believe that it is realistic that I keep something like that from him then say after court ‘by the way the court has ordered that you go and live with your dad’.

    [15] Affidavit of father filed 23 April 2012 Exhibit PKK2 email 21 November 2011

15. This has been seen in the light of the comments by Ms W in her report released shortly before this discussion between the mother and J took place.  Ms W observed that J was too depressed to indicate where his attachment lies and may in fact be un-attached to anyone.  Ms W recommended the parties refrain from questioning of the children or young persons in regard to where they wish to reside and refrain from making statements to them denigrating the other party.

16. The mother informed the Independent Children’s Lawyer of what she had done rather than seeking the views of the Independent Children’s Lawyer, and more importantly the father, as to how this ought to be approached.  It is therefore unsurprising that J became reluctant to spend time with his father and he was again thrown into the conflict between his parents.

17. What is of concern is whether the mother has little insight into the impact on the children, particularly J, or worse whether she has insight and adopted that view in any event.

18. One of the issues was that the father arranged some years ago to see J on a Thursday afternoon.  At paragraph 14 of the father’s affidavit filed 30 August 2011, he says:-

    In 2007 all of our children undergone counselling by [Ms M].  It was recommended that I see [J], as he was emotionally disturbed, also after school, for example for an ice cream or a walk in the park.  The mother agreed to this arrangement.  I picked up [J] and [S] after school on 17 May 2007 and we had ice cream at Hungry Jacks.  The following week, 24^th May, I wanted to do the same but [the mother] did not allow it any more.

19. The mother’s evidence is problematic and I have treated it very carefully.

Mr Vanders

1. Mr Vanders is the mother’s present husband and is the children’s step-father.  He relied on his affidavits filed 12 April 2012 and 3 March 2011.  He was not an impressive witness.  Much of his evidence was self-serving and it is clear that he was a significant figure in terms of the arrangements.  Much of his evidence in his affidavit of 12 April 2012 was by way of conclusion and submission.

2. There was an issue about an altercation between Mr Vanders and R some years ago.  It is clear something happened at that time[16] and the father refers to it in his affidavit.  It is not a matter in the ordinary course of events that cause major problems however, in this highly conflicted family it has, of course, become a serious issue.

   [16] At page 46 of counsel for the Independent Children’s Lawyer’s tender bundle, referred to in his discussions with Ms W – paragraph 78 of Ms W’s report

3. Mr Vanders conceded that R was likely to go and live with his father and was very critical of him for not telling him mother ‘face to face’.

4. The step-father and the mother have little insight into their role as parents and the difficulties of a child in adopting that course.

5. Their approach in that respect is reflected in what had happened with J.  When the father sought that J live with him the step-father and mother took it upon themselves to inform the child and he became reluctant to spend time with his father.  The evidence of Mr Vanders was that J was required to go and tell the father that he did not wish to see him.  It is clear that Mr Vanders and the mother did not encourage J to go.  There are many sensible steps they could have taken including involving the Independent Children’s Lawyer, having soft drinks and perhaps a smack at the changeover point, telling J that there would be no changeover at least in the medium term, but instead J was left to sit in the car for between one to two hours worried about what he was going to say to his father or the expectation that this would go on for the foreseeable future.  It would have been a terrible time for that child and for the younger child.

6. The mother and the step-father knew that J was required to go and spend time with the father by an order which had been made only months before and yet they encouraged and supported J in not complying with the order.

7. It is clear there is now enormous anxiety around change-over.  It is also clear that there was physical confrontation between the father and the step-father between the December 2011 and January 2012 changeover. The step-father’s solution was that the mother ought to come along.  Having regard to the evidence of the mother that would already inflame an already difficult issue.

8. I have concerns about the quality of the evidence of the step-father and his frankness.  He endeavoured to justify the explanation of J to the father’s application and was far from convincing.

9. The step-father gave evidence that he has been encouraging the children to see the father.  His evidence in that regard was ambivalent to say the least.  There is no evidence of any real pro-active steps.  I am satisfied that the step-father does not encourage the relationship.

10. The relationship between the step-father and the father is generally polite but not in any way warm.  There had been a number of issues where there has been conflict in the presence of the children to which both the step-father and father have participated. The step-father has acknowledged to some limited extent (and somewhat begrudgingly) his involvement in that conflict.

11. The step-father says, and in respect of this area I accept his evidence, that the father does not listen to the children.  The step-father set out a way in which P’s relationship with the father could be restored but it is clear that there was no effort on the step-father’s part to put in place that proposal.

12. The step-father sent an email to the father in May 2012 which was likely to inflame the father using words such as ‘lovely court case’.  The step-father was concerned about the affect of the litigation on J, although that must be seen in the light of the step-father and mother informing J of the nature of the father’s proceedings.

13. The step-father does not encourage a relationship between the children and the father and the impact of the grandparents is significant as is the father’s failure to provide financially for the children.

Family Consultant – Ms Y

1. In April 2011 a family consultant, Ms Y, prepared a short report after an interview with the five children and parents.  That report was tendered in evidence.[17]  There were a number of significant aspects to that report including comments by R such as:-[18]

   [R] clearly stated that “I want to live with my dad” and that “I want this to go nicely with my mum, but she won’t let it”.  He reported that his mother did not like his father, and that “I have been planning this for some time”.  He said that he had not told the mother previously because he wished to avoid arguments and pressure from her.

   [17] Exhibit ICL8.

   [18] Ibid.

2. It is clear that the mother was upset that R left and it is clear, even from the evidence of the step-father, that R had been planning this for some time.  I accept R’s evidence in that regard.

3. I also accept his evidence that:-[19]

   He recalled that, “several years ago, mum said I could decide when I was 14”, but that he had felt pressured to chose between his parents for some time.  He recalled that she intimidated that “if you’re not going to do this for me, I’ll call you a traitor or a spy even”.

   [19] Ibid.

4. This has echoes of the conversation with which Ms W overheard from the mother and step-father.  I am satisfied that it is the type of language that is used.

5. Ms Y was unwell at the time of the trial and questions were sent by the mother and father to which she responded in writing.  I have had regard to the circumstances that Ms Y was not available for cross-examination and I have not had the opportunity of seeing her give evidence.

6. Notwithstanding I am satisfied with some of her conclusions.  These include:-[20]

   ·R presents as a thoughtful mature child who is conflicted between spending time with his mother, his siblings and his father.

   ·P, S and B provide information consistent with historic allegations which suggest that they were struggling to have thoughts and feelings about their father different from their mother.

   ·Ms Y was concerned about J and this reflects in many ways the medical evidence and the evidence of Ms W.

   ·P and R appear to have made decisions on where to live consistent with family expectations and requirements to do so.

   ·That S and B appear to form a negative view of the father but that it was no doubt expressing the fear and anxiety that the mother reported that they have experienced.

   [20] Ibid.

Teachers at X High School

1. The Independent Children’s Lawyer obtained a note of the assessment of children from the teachers and principals of X High School.  There was some issue from the parties as to the accuracy of that material.

2. Accordingly the teachers gave evidence during the course of the hearing, namely Mr F (the Principal), Ms U (a teacher), Ms A (a teacher) and Mr I (a guidance officer).  All three were sworn in and confirmed the note which comprised Exhibit ICL 2 subject to some amendments.

3. The evidence of the teachers was that when J returned to school after visiting the father he would be unsettled.  Having regard to the then conflict between his parents, that outcome is not surprising. 

4. The teachers’ evidence was that S was a polite student who was struggling with her work. S was invited to undertake learning support but the mother did not support her in that regard.  The mother was otherwise involved and engaged with the school.

5. In terms of J, the evidence seemed to be that he was happy to see his father but was reluctant to be involved with his paternal grandfather.

6. There was some evidence, from the note, that J was likely to engage in self harm.  The evidence was that he was taking pencil sharpeners but there was no indication that he was endeavouring self harm or expression of self harm.  Having regard to the evidence of J’s interests in mechanical items and putting them back together and taking them apart this may be an instance of mis-communication or misunderstanding.

7. From the principal’s point of view he is content for the father to be listed as a person who can contact and speak with the teachers and be involved with the school.  The father can access the school newsletter through their web site.  The school would help facilitate the children going into the care of the father on a Friday afternoon on arrangements to collect them.

8. I accept the evidence of these four teachers.

Ms N (the father’s partner)

1. Ms N is a close intimate friend of the father although she does not live with him.  They have had a relationship for about five to five and a half years.  Her evidence was contained in her affidavit sworn 4 July 2011.

2. This was the first time the mother and Ms N had been introduced.  Ms N had a particularly close relationship with the girls and a good relationship with the father.  Ms N confirmed that the children engage well with the father and that significant time was spent at the paternal grandparent’s home.  She said she had not seen the paternal grandfather consume alcohol for the last three years. Ms N said that J admired the father and seemed to look up to him. 

3. Ms N was present at the difficult changeover in 2010 where there was a mis-communication.  On her evidence it appears that both the father and step-father engaged in aggressive activities.  Neither the father nor step-father can take any credit from that engagement. 

4. She says, from her observations, that J had a good relationship with his grandfather.

5. I accept her evidence, albeit that it is subjective

The paternal grandparents

1. One of the mother’s complaints is that the children do not interact well with their paternal grandfather.  The affidavits of the mother are full of comments about the children and their paternal grandfather.  At some level this is supported by the evidence provided by the school teachers.  It is clear that the paternal grandfather has some sort of psychological or psychiatric issues[21] to which the father has given little or no regard.  It is clear, from the father’s evidence, that the paternal grandfather can be somewhat ‘short in conversation’ and ‘grumpy’.  The father has not complied with the spirit of the orders of Carmody J and the children have spent significant time at the paternal grandparent’s home.  I do not accept the evidence that the paternal grandfather sleeps in the shed when the two children are present.

   [21] Exhibit M6.

2. The father has little insight into the impact of the paternal grandfather on the children.  There is no reason why the children cannot have a relationship with their grandparents, however it must be done under the supervision of the father and he cannot ‘pretend’ to comply with the spirit of the order then not do so.

3. The paternal grandmother was interviewed by Ms W who noted the father admitted that the children sleep and spend the majority of their time at his parents’ home although he seemed to resile from that in terms of his evidence.

4. Ms W recommended that the interaction between the children and the father should be primarily at his home.

5. Neither of the children’s paternal grandparents gave evidence and I am satisfied that this evidence would not have assisted the father.

6. The father’s lack of insight into the impact of his close relationship with his parents and the impact of his father, in particular with the children, is of concern.  I am not satisfied that if J were to live with the father that he  would not find himself living most of the time with his paternal grandfather and paternal grandmother in a circumstance which he has clearly rejected.  Accordingly, I do not intend to make that order.

7. These children are caught in a terrible predicament.  Both of these parents have significant issues to deal with.  The mother does all that she can do to alienate these children from the father and his family.  She is not in any way constrained to tell the truth to the Court and will say whatever she believes the Court wants to hear to give effect to the results she seeks to achieve.

8. I have no confidence that she will encourage a relationship, on the contrary she will discourage any relationship between the children and their father with the consequent damage that this will cause.

9. The father on the other hand knows the children want to see him and have concerns about his parents (the paternal grandparents) yet he takes no steps to set up his home as a home for these children.  He continues to have them live with the paternal grandparents and at significant times be absent from him.

10. He gives the children’s views with regard to the paternal grandparents little or no weight and he gives the mother’s concerns about the paternal grandparents no weight.  This has impacted upon his relationship with all of the children, but unsurprisingly he blames it all on the mother.

11. The father’s care of the children is not as particular as that of the mother and in many ways he seeks an order that his mother parent the children rather than the mother.  He has some strong points but I am not convinced, particularly in respect of the younger children, that the father’s home presents a significant improvement of that of the mother.

Judge informing the children of the orders

1. At one stage there was evidence from Ms W that the Judge informing the children of the orders may be of some assistance and may persuade the children to spend time with the father.  The mother, father and Independent Children’s Lawyer all initially supported that view.

1. However, on reflecting on what I regard as the constant manipulation of these children such as their statements to a counsellor about their paternal grandfather, the complaints to child protection authorities following R remaining at the father’s home in early 2011, that the children were likely to be influenced by the mother or the step-father to express the mother’s views to me.  As such I informed the parties that I did not think it appropriate in this case for me to inform the children of the orders.  I will leave that to the Independent Children’s Lawyer.

2. The mother says that she supports the involvement of J with the father but I do not believe her. The mother says that J has friends at school and the change from school would be significant.  Whilst I have doubts about the mother’s evidence I accept that in so far as that aspect of her evidence.

3. The mother was cross-examined in relation to the time B spent with the father particularly school holidays and it was clear from her evidence that she would not encourage any time between B and the father.

4. R recalled that the mother would ‘use mean, crude words, like that … sometimes she would be happy and fine, and when she would switch it was really scary’.  He said that she was ‘always asking’, ‘where are you going to live’, ‘[C] is the safest, imagine what would happen if you were in [Z]!’  She tried to scare me like that’.

5. It is significant that this is in many ways supported by the child P (who is to all intents and purposes estranged from his father) who said in the same report the following:-[22]

   [P] said his mother would say about his father that “she is angry at him for doing this to her.  She is angry at him for child support.  He never gives her money and buys motor bikes on a credit card.  She hasn’t really got a grudge against dad, its grandad.  He tells dad what to do”. 

   [22] Ibid.

6. I am satisfied that the mother is abusive and demeaning of the father at her home and with little regard to the impact of that on the children.

7. Further comments from R were contained in paragraph 79 of Ms W’s report as follows:-

   [R] continued to state his reasons for wanting to reside with his Father, “there were emotional times between me and Mum.  For example, she got an e-mail once, I think it was about Child Support – she wanted more money.  [The step-father] said ‘maybe this is all he [Dad] could pay’.  Mum got extremely angry at me.  I told her, ‘it’s not my fight’.  Then Mum said, “I hate your Father so much if I had a gun I would kill him.”

SECTION 60CC FACTORS

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

1. The Full Court in McCall & Clark (2009) FLC 93-405 set out the law in respect of a meaningful relationship and said:-

   119We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.

   120We reject the interpretation in sub-paragraph (b).  In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

   121In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski.  Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.

   122In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

   223.There is no doubt there is a significant benefit in the children having a meaningful relationship with both parents.  R is desperate to have a relationship with the mother and his siblings.  The mother has rejected R since he chose to live with the father.  She turned her back on him at the time of the preparation of the report by Ms W, she arbitrarily cancelled two visits in 2012 when alternate arrangements could have easily been made.  The mother did not send R a Christmas or birthday present and does not encourage telephone calls with him or between he and his siblings.

   224.As to P, he made a decision some years ago not to have an ongoing relationship with his father.  Having regard to his age and maturity the father has accepted that view but he likewise does what he can to ‘add fuel to the fire’.  The father does not send birthday or Christmas presents and has spent money put aside for P to in part provide himself (the father) with a car.

   225.As to S, she has been alienated (in the practical sense, not in any psychological sense) from the father by the actions of the mother and in part by the actions of the father in sub-contracting his parenting and responsibilities to his mother and by exposing S to the paternal grandfather. I accept the evidence of Ms W that there is a possibility that this relationship can be restored if done carefully.

   226.The conflict between J’s parents has had a significant detrimental effect on him.  It is likely with support from the mother (and I have no confidence that the mother will provide such support) and sensible and sensitive parenting from the father (and I am not confident the father can adopt that course) that this relationship can be restored. 

   227.As to B, she is still seeing the father and is the most robust (emotionally) of all the children. She is likely to see the father into the future but until such time as there is conflict between the parties it will mean that she will decide either not to see the father or to move in with the father.  Either way that will no doubt bring forth another set of litigation between the parents who will continue to repeat the same thoughts that they have engaged in over the last eight years.  This will be despite efforts of this Court, the Independent Children’s Lawyer, counsellors, family consultants, psychiatrists, teachers and guidance officers.

   228.I accept the submission of Counsel for the Independent Children’s Lawyer that a meaningful relationship between the children and each of the parents would benefit the children with the exception of P and he will need to work out a relationship with his father in due course.

   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.

229.There is a need to protect these children from psychological harm.  That is the harm that arises from the conflict which the parents have imposed upon these children.

230.Ms W formed the view, and I accept, that the children have been exposed to conflict on an ongoing basis and that this has had an adverse impact on them.  This has had a particular impact on J and S and they have needed the attention of the Child and Youth Mental Health Service.[23]

[23] Exhibit ICL3 – report 14 March 2012

231.Ms W also formed the view that neither of the paternal grandparents poses a risk to the children.  With respect to the report writer, I do not agree with her in so far as the paternal grandfather is concerned.  He has not been interviewed; he did not give evidence and the children (excluding R) express concern about him. 

232.The father was not frank to the Court in relation to the paternal grandfather’s mental health and neither the paternal grandfather nor paternal grandmother provided evidence to the Court so that there could be an assessment of them.  The paternal grandfather did not attend at the meeting with Ms W although, the paternal grandmother did.

233.I accept the view that the children were expressing views not to spend time with the father in order to reduce their mother’s stress, although I do not accept that they were coached.  I am satisfied that the mother expresses her derogatory views of the father and his parents to the children in blunt and unambiguous terms.  The mother’s reactions to the children receiving telephone calls coming home from school and an iniquitous letter from the father to S are indicative of the mother’s strong views in that regard. Similarly the reaction of the children following R’s decision to live with his father, particularly the termination of the visits by S and J are indicative of the mother encouraging the children not to have a relationship with the father.

234.The father does not give any weight to the children’s concerns about his parents.  He is, to say the least, oblivious to those concerns and in many ways uncaring about their expressions of concern about the paternal grandfather. I do not accept that it is blindness that does that because the father could have called his parents to give evidence but chose not to do so.  It was made clear to him during the trial that there could be adverse comments made in that regard.  Still there was no sign of the father’s parents despite a hearing that ran for almost two weeks.

235.The children are at risk of emotional damage as a consequence of their parents’ unwavering conflict.

ADDITIONAL CONISERATIONS

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

236.The child P has expressed a view that he does not wish to spend time with or communicate with the father.  Having regard to his reaction to the question of Ms W, consent orders were made giving effect to those views.

237.The child R has expressed strong views, and I accept those views, that he wishes to live with the father and that the decision to live with the father was his.  R had been contemplating such a move for some time despite the mother’s assertions that the father had ‘manipulated [R]’.

238.The child S has expressed views not to live with the father although, on looking carefully at Ms W’s comments, it is possible that by adopting a careful and sensitive approach the relationship between S and the father could be restored.  The problem is likely to be the inability of either parent to facilitate such a change.  However, I am satisfied that if S’s views were given weight and there was a gradual build up with some interest at the father’s home (such as a horse) the relationship could be restored.

239.The child J has expressed to the father, in November 2011, December 2011 and January 2012 that he does not wish to spend time with him.  J is extremely emotionally vulnerable.  There was a diagnosis in recent times of this child suffering from clinical depression.  The timing of his change of views is significant.

240.In early October 2011 Ms W’s report was released and it was significantly critical of the mother.  As I said earlier, J’s change of attitude in spending time with the father is not coincidental.  Having regard to all of the evidence I am satisfied that the mother has exerted enormous pressure on J not to spend time with the father.  Whilst J has expressed those views, I find that those views are significantly an echo of the views of the mother and the step-father.

241.The child B is attached to both parents and enjoys all of her siblings.  As I have said elsewhere, how long this lasts, having regard to the conflict, will be problematic.  I have given significant weight to the views of all of the children.

242.P and R enjoy each other’s company and there will need to be orders put in place to ensure that each of the parents encourage and facilitate the relationship between P and R.

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);

1. It is significant that the father’s first questions were in respect of the relationship between the children and the paternal grandparents, which was indicative of the father’s focus on the relationship with the paternal grandparents and not necessarily as being a significant factor.  It is indicative of his focus on his parents and not in respect of the children.

2. Ms W said, and I accept, that P and S were strongly attached and aligned with the mother, that R was attached to his father but also enjoyed and sought interaction with his broader family and was mature and sensible in that respect. 

3. She said J was currently unattached to anyone and that B was attached to both parents and enjoyed time with all of her siblings. 

4. The mother seems a good parent but for her attitude to the father and his family.  The children clearly want a relationship with her and her present husband.  The mother’s approach to the children’s relationship with the father may fall into the realms of emotional abuse.

5. The father is a less hands on parent but has a deep love of and for the children. He lacks insight into some of their needs, such as spending time with him (rather than his parents) and he has failed to set up decent separate accommodation for the children.  He provides a different set of examples for the children with his sustainable lifestyle, use of tools etcetera.

6. One of the outcomes of these orders in this litigation is to foster and facilitate the bonds between each of the children and their siblings and try to leave in place some contact and communication between the children and each of their parents.

   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;

   249.Both the mother and father asserted their belief that the children should have a meaningful relationship with the other parent.  I do not believe either parent has done so, and I have fears that this will continue into the future.

   250.What they say and what they do and what they have done over many years is quite the contrary.  In many ways their approach is quite perverse.  From time to time during the hearing they communicated happily with each other and agreed with each other.  Yet, as I have said elsewhere in these reasons, they do not facilitate the relationship with the child or children living with them and the other parent.  Neither parent is willing to facilitate such a relationship, albeit they have an ability to do so. 

   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;

   251.There are only two aspects to which this can apply.  The first relates to J.  If J’s place of primary residence is moved to the home of the father (or more likely the home of the paternal grandparents) there will be a significant impact.  He will be protected from the pressure put on him by his mother and his step-father.  He will have a sense of peace as suggested by Ms W, the Family Consultant.

   252.On the other hand J will be brought into close contact with the paternal grandfather who he has expressed significant concerns about.  It is likely that he will be living with his paternal grandmother and not the father.

   253.J will have the advantage of living with his brother and spending time with his siblings on a fortnightly or a monthly basis.  However, he will lose contact with, and his relationship with a majority of his siblings including his younger half siblings, will be significantly affected.  He will be taken away from his school, his friends and his lifestyle.

   254.Having regard to the photographs of the respective houses it will be a profound change for him.   

   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;

   255.The mother lives in the Cairns region and the father lives in Z on the Tablelands.  They live apart by about a two and a half to three hour drive by car.

   256.The parties had arranged for hand-over at a Roadhouse about half way between their homes.  This had worked for a number of years, but as one would have suspected of these parents, this became difficult.  During a changeover there J was exposed to what must have been a very frightening adult conversation between the father and the step-father in January 2012. 

   257.The mother does not wish to move to the Tablelands and the father wishes to remain close to his parents in the Atherton Tablelands.  Accordingly, the children will need to continue to commute.

   258.The father used some trust monies that had been put aside by him for the children to buy himself a new car.  He said his older car had broken down and was not able to be repaired.  For some illogical reason, given the number of children, he bought a utility motor vehicle. I am aware of the limitations in transport asserted by the father, but I am satisfied he is able to surmount those difficulties.

   259.There is now no reason why the father cannot undertake the bulk of the driving for the purposes of spending time with the children.  The arrangements, for at least for the new six months,  are that the father collects the children (except for S for whom separate orders will be made) and return them to the mother’s home on the Sunday afternoon.

   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;

   260.I have made criticisms of each of the parents earlier in these reasons and I have reflected on these in this section.

   261.The mother is well regarded by the staff at the children’s school as an ‘enquiring effective mother’.  Similarly Dr G is supportive of the mother yet the mother is content to allow the conflict and her own intense feelings towards the father and the paternal grandparents to permeate and damage the relationship between the children and their father.

   262.The father, as I have said earlier, does not respect the views of the children in regard to his parents and is not as careful of their needs as is the mother.  The father does not treat minor injuries of cuts and bruises and boils etcetera, in an appropriate way and his response to an episode of asthma in respect of one of the children was dangerously cavalier.  Both parties expose the children to stress and adult conflict.  The father was ambivalent and in fact at times disingenuous as to where the children were sleeping and there is a concern about them sleeping at the home of the paternal grandparents rather than at the father’s home.

   263.Counsel for the Independent Children’s Lawyer submitted, and I accept, that both parents have demonstrated difficulties in their ability to meet the children’s needs.

   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;

   264.These children range in age from 10 to 16 years.  Their parents are from Central Europe.  P and R are mature young children, particularly R, having regard to the comments of Ms W.

   265.All of the children are relatively mature but the lifestyle of each of the parents is significantly different.  The family in which the mother lives is a nuclear family living in suburban Cairns.  The father is part of his broader family and it is clear that he defers to his parents, particularly the paternal grandfather.  Each of the parents has a different parenting style.  Those parenting styles have helped induce the conflict that continues with these parents.

   Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   266.I simply repeat the above material here.  

   Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

   267.Counsel for the Independent Children’s Lawyer submitted there are no current allegations of family violence.  In previous proceedings there were allegations of family violence and they were found to be unsubstantiated by the Department of Child Safety.

   268.All of the children are uncomfortable with the paternal family, particularly the paternal grandfather.  P identified a time when he was physically injured or emotionally abused by the paternal grandfather.

   269.Each of the children has seen the adults arguing and have seen confrontation between them.  There have been a number of allegations made to the Department of Child Safety which have been unsubstantiated in previous and current proceedings.

   270.R asserted that he was assaulted by the step-father on two occasions.  The mother initially denied such an altercation took place but then in evidence conceded it had taken place but not as alleged by R.  I am satisfied that there was some physical interaction between R and the step-father after R and P had been engaged in a more than boisterous disagreement.

   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;

   271.This is not a relevant consideration in these proceedings.

   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;

   272.The view of the Independent Children’s Lawyer was that final orders need to be made and having regard to the high level of conflict and the systems abuse of the children and its impact on the children, particularly J and S, I agree with him in terms of most of the children, but not in terms of J.  He is emotionally and psychologically fragile and I considered changing his place of residence.  However, on balance I have made an interim order that he continue to live with the mother and sees that father.  If that does not work out I will need to revisit that aspect of the parenting arrangements.

   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.

1. The children are in need of psychological support and they are not currently receiving any.  There has been a separation of siblings and there needs to be therapeutic support.  Counsel for the Independent Children’s Lawyer has made suggestions in that respect.

2. Virtually all of the issues I have addressed in these reasons relate to events following separation. Therefore all of the issues in relation to s 60CC(4) and (4A) have been considered. There is an underlying conflict between the parties and the financial support provided by the father.

3. The father chooses not to be in paid employment and has, in recent times, used money put aside for the children, which he held in trust for them, for his own benefit.  He does not provide any meaningful financial support for the children and this has been the source of conflict between the father, the mother and the step-father.

4. The mother bears the primary cost for the care of the children.  I have had regard to that circumstance.

5. Ms W says that R is progressing well at school and doing very well living with his father and she recommends that he stays there.  Both parties accepted that recommendation.

6. Ms W recommended that there ought to be an order in place to ensure that R has regular time at the mother’s home and with his siblings.  This should be consistent with the current order, which is once per month.  I intend to make this order.

7. The child S refuses to see the father.  Ms W says that it would be in S’s best interests to see the father but this ought to be done on a gradual basis.  Ms W suggested that the father see S for a few hours on regular occasions and said the father would need to undertake interesting things if S comes to his home.

8. It would also need the support of the mother to make it work, otherwise it would cause S stress.

9. Ms W observed the following about S in her report:-[24]

   [24] Ibid at paragraph 72.

   I don’t like anything about Dad.  I don’t want to stay in contact with Dad, only sometimes if I really want to.

10. The evidence of Ms W was that this was indicative that S was open to change using the small steps recommended by Ms W.

11. There was discussion as to how she could be informed and an authority figure may induce her to try those steps.  S has a health difficulty which was referred to in the evidence, to which I have had regard to, and she has an interest in horse riding.

12. The child B appears to be a robust child who is well connected with both parents and would easily cope with half school holidays.  Ms W described B as being the most resilient of all of the children and there should be an order for equal shared parental responsibility with regard to B.

13. As to the ability of parents to meet the children’s needs including emotional and intellectual needs, Ms W observed:-[25]

    [25] Ibid at paragraph 123.

    There is no evidence to suggest that either parent is incapable of meeting the children’s needs including their emotional and intellectual needs.  However, given the state of [J’s] depression, not only as exhibited at the observation/interviews, but also as assessed by the Child and Youth Mental Health team, that the Mother would deny [J] mental health intervention on the basis that she did not agree with the type of intervention (e.g. family counseling), could indicate that perhaps the Mother cannot meet [J’s] emotional needs at this time.

14. The father proposed an arrangement whereby R visited his mother once per month (and J, if J was living with him) and the other children visit him each alternate fortnight so that the children would be together.

15. When pressed about the approach suggested by Ms W, that is the children visit once per fortnight, the father, albeit, reluctantly agreed with that course.

16. There was some discussion about the hand-over at the Roadhouse which has proved, in recent times, problematic, and has exposed the children to seeing conflict between the father and their step-father.

17. Ms W’s view was, and I accept, that the children should be collected from school on Friday afternoon.  She also suggested they be returned to school at the conclusion of the visit.

18. The problem with that approach would be that the children would need to be up about 5.00am and would need to undertake two and a half hours of travel to get to school.  The father suggested, and I accept, that the children should be returned on the Sunday afternoon.

19. Whilst this will impose hardship on the father it seems to be a more child focused approach, and would enable the father to spend time with S for a few hours to enable him to build up trust with her.

PARENTAL RESPONSIBILITY

1. The parents and counsel for the Independent Children’s Lawyer asserted that parental responsibility for P, R, S and J should be with the parent with whom they primarily live.

2. Having regard to the matters set out in these reasons, the submissions of counsel for the Independent Children’s Lawyer, it seems to me that it is the least worst outcome in terms of these children.

3. In terms of B, the parties and counsel for the Independent Children’s Lawyer asserted that there ought to be equal shared parental responsibility.  I have some concerns about that proposal however; I am prepared to put that order in place having regard to it being the desire of both parents and the views of the child that she wants a relationship with both parents. Accordingly I will be making those consent orders.

4. However I will also be making orders enabling each parent to have access to the children’s medical records, medical practitioners and schools so that each parent can keep himself or herself informed as to the education and welfare of the children.

5. In terms of the parental responsibility in respect of J the orders will be interim having regard to my comments elsewhere.

RESIDENCE

1. This is a matter where the presumption of equal shared parental responsibility cannot apply having regard to the allegations of violence and abuse to which each of the parties have asserted.

2. I did consider equal shared parental responsibility (other than in addition to the order I made in respect to the children other than the child B) however, having regard to the conflict, the views of the children and the views of the parties, and all of the other matters set out in these reasons, I have determined that would not be in the children’s best interests, except insofar as B is concerned.

3. The only question of residence which I need to determine is whether J continues to reside with the mother or whether I make an order that he reside with the father.  I have reflected some time in respect of this dispute.

4. Either way, J will be adversely impacted.

5. The sense of Ms W is that a move to the father’s residence may be in a solution for J.  However, I have the advantage of observing the father in the witness box and I am concerned about the lack of evidence provided by the paternal grandparents and the father’s failure to disclose some aspects about the paternal grandfather.  I have a concern that each of the children (apart from R) has expressed concern about the paternal grandfather and the father’s inability to take on board those concerns. The impact on J in changing school and being separated from his siblings will be profound.

6. It is likely that he may react very adversely to such a change and even if the change works it may mean that he is isolated from his broader family.

7. Leaving J with the mother offers me no significant comfort bearing in mind the criticisms I have made of her in these Reasons.  However, on balance I am satisfied that the least worst option for J is to remain primarily in the care of the mother, at least for the time being.

TIME

1. In terms of J there is no reason why he ought not to spend time with the father on a monthly basis as was the arrangement of the previous orders and with his sister B.  The arrangements put in place by F M Coker in May 2011 ought to continue, at least in so far as it relates to J and B (at this time).

2. However, I intend to put in place some changes.  I will be making an order restraining the father from allowing the children to sleep at the home of the paternal grandparents or being left alone or unsupervised in the care of the paternal grandfather.

3. I will direct that the Independent Children’s Lawyer inform the children of these orders and I will extend the appointment of the Independent Children’s Lawyer for a period of twelve months so that if there is an issue in that regard they can inform the Independent Children’s Lawyer.

4. In terms of S, I propose that the father spend time with S in Cairns.  This will put in place the slow build up as suggested by Ms W.

5. The mother says that S has expressed deep concerns and discomfort with regard to the paternal grandfather.  I do not know whether that is soundly based or not.  I have concerns as to the genesis of those concerns however, this child has expressed significant concerns about the paternal grandfather and ought not to be exposed to him at his home.

6. The primary relationship S seeks is with the father.  There is no reason why the paternal grandparents cannot visit the father at his home and there are significant reasons why the children should have beds in the father’s home and that this should be their primary place of residence while visiting him.

THE PATERNAL GRANDPARENTS

1. When consent orders were made in December 2006 the following orders were made with regard to the grandfather:-

   24.That the (paternal grandfather) shall have contact with the children at all reasonable times provided that:-

   (a)the contact occurs during the father’s contact as set out in these orders [orders Carmody J 28 March 2006];

   (b)the contact is supervised at all times by either the father or [AK] or [YK];

   (c)the grandfather’s contact shall not include an overnight stay with the children;

   (d)the grandfather shall be sober at the commencement of any contact period and shall be restrained from consuming alcohol during the contact as set out therein.

2. It is clear that this order has been adhered to more in breach than in compliance.  The father gave evidence that the paternal grandfather lives in a shed away from the house when the children are there.  I do not believe the father.  The father is so enmeshed with his family that his evidence in that regard cannot be treated as reliable. His failure to call his parents as witnesses and his father’s failure to engage with Ms W are troubling.

3. The children must sleep at the home of the father, beds must be provided for them and the paternal grandparents can visit.  At no time should the children be left alone or unsupervised in the care of the paternal grandfather.

4. The father says that the paternal grandfather no longer consumes alcohol.  I do not know whether that is the case or not.  However, the children clearly have significant adverse memories of their paternal grandfather and they ought to be protected from him.

TELEPHONE COMMUNICATION

1. The mother wants communication on the land-line at the father’s home.  She says this is an open and transparent process.  I do not accept her evidence in that regard; it is part of her controlling process in which she engages.  There are significant issues as to the communication between the children and the father.

2. When the mother learned that the children were having telephone communication with the father when they walked home from school, using a mobile telephone provided by the father, the mother’s reaction, in her words were, negative in terms of ‘why doesn’t he use the home phone’ or ‘why are you doing that’.  That conveyed a negative view of the father to the children.

3. When the mother found out that J had been sending text messages to the father she disciplined J, albeit under the pretence that it was late at night but it was disciplined none the less.

4. When the father endeavoured to write a pleasant letter to S the mother converted that into a serious incident.  The mother does not facilitate and is unlikely to facilitate communication.

5. However, I intend to put in place orders to enable the father to provide a mobile telephone to the children and the mother is required to keep that telephone charged.  I will be giving permission for the father to make enquiries at the local high school so that the children can have the telephone before and after school.  The mobile telephone will also allow the children to communicate with their father via text messaging.

6. There is no reason why these children cannot telephone the father or the father telephone the children (with the exception of P who can communicate in such ways as he determines from time to time).

7. There is no reason however why R cannot communicate with his siblings.

8. I will order that steps be taken by both the mother and father to provide for separate internet addresses for each of the children at the respective homes of the mother and father so that they can communicate by email with each other.

9. There were a series of other orders put in place in the orders[26] made by Carmody J, many of which I will leave in place, these include:-

   [26]  Dated 28 March 2006.

   ·each party be restrained from physical discipline of the children or allowing any other person to physically discipline the children.

   ·a non-denigration order.

   ·a requirement for each of the parties to keep the other informed as to any major medical or education issue with regard to the children.

   ·an order for family therapy.

   ·an order that neither party provide alcohol to the children.

   ·each of the parties shall keep the other informed of their residential address and telephone number.

HOLIDAYS

1. I have put in place holiday time orders in respect of S, J and B, having regard to the reasons set out earlier.

2. There is no issue in relation to where R, P, S and B live.  The issue relates to J.  At the commencement of the hearing consent orders were made that R live with the father and that P, B and S live with the mother.

3. At the commencement of the hearing there was also agreement and a request that I make final orders that the father have sole parental responsibility for R and the mother have sole parental responsibility for P and S.

4. In his submission counsel for the Independent Children’s Lawyer sought orders that the mother be present at the changeovers if the child or children are not collected from school.  I was at some levels attracted to this order however the mother is in somewhat of a fragile emotional state (counsel for the Independent Children’s Lawyers submitted that she undergo treatment in that regard and the mother consented) so I do not propose to adopt that course.

5. The mother has the care of two very young children and is nervous of meeting the father, other than in public areas.  The E Roadhouse is relatively remote but is a public place.  I intend to leave arrangement for some changeovers at the E Roadhouse. Whilst there have been some problems in recent times, that changeover location has worked adequately in the past.

6. There was some debate during the course of the hearing, to which I have alluded to earlier, about the children being informed of the orders by me.  As I have also referred to above, I am concerned that this would put enormous pressure on the children to express a view and as such I will not adopt that course.

7. Counsel for the Independent Children’s Lawyer submitted that that without an s 65L order there is no hope of ensuring compliance with court orders, given their past history of the parties.

8. Having considered and accepted that a family consultant ought to be appointed under s 65L and knowing of the availability of Ms W, it seems to me the appropriate way for the children to be informed of the orders is by way of a family consultant and Ms W. I propose to adopt that course.

9. In regard to all of the factors referred to above, I accept the recommendation of Ms W that S’s time with the father should be built up.  Counsel for the Independent Children’s Lawyer submitted that there should be a build up of time over a period of six months, I have generally adopted that approach.

10. I make it clear that this is to be the same weekend that J and B are spending time with the father.  It should be up to the father as to whether the three children remain together for that afternoon or day or whether one or other of J or B be returned to the mother.  It is also open for the father to arrange for R to attend.

11. Counsel for the Independent Children’s Lawyer submitted that there ought to be a notation that the children be encouraged to spend time with the other parent.  It seems to me, having regard to the significant conflict in the past, that there ought to be orders. 

12. The Independent Children’s Lawyer, through counsel, requested that the father, again undertake, the Focus on Kids Course.  The father gave evidence that he had completed the course and taken much from it. I will not be requiring him to attend again.

13. The mother is in the process of completing that course and it has taken her further time, bearing in mind the number of children in her care, which is understandable.

14. The Independent Children’s Lawyer sought injunctions restraining the mother from discussing the living arrangements with the children.  This will be the subject of inevitable discussion on a week to week basis in an appropriate sense.  It is the inappropriate discussion which is the concern. It is unlikely that any order can effectively change that except a non-denigration order which I have put in place. 

15. Each parent denied talking to the children throughout the proceedings but it is clear that there has been ongoing talk over the years.  Counsel for the Independent Children’s Lawyer observed that ‘each parent advocates any responsibility for control over their children about time’.  It is clear that they insist upon their time but do not press the time on the other parent.

16. The mother has not made any meaningful willingness to comply with the Court orders as it seems the approach with regard to J and S since the orders was made in mid 2011 by FM Cocker.  Counsel for the Independent Children’s Lawyer made written submissions in respect of the evidence of both of the parties and the step-father and I generally accept those submissions.

I certify that the preceding three hundred and thirty eight (338) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on Monday 30 July 2012.

Associate:     

Date:              30 July 2012