Lamar and Whitten

[2018] FCCA 1451

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMAR & WHITTEN [2018] FCCA 1451

Catchwords:
FAMILY LAW – Parenting – relocation – child welfare concerns.

Legislation:

Family Law Act 1975, ss.65DAA, 61DA, 60CG, 60CC

Applicant: MR LAMAR

Respondent: MS WHITTEN

File Number: DNC 33 of 2016

Judgment of: Judge Young

Hearing dates: 28 & 29 November 2017

Date of Last Submission: 29 November 2017

Delivered at: Darwin

Delivered on: 5 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Wynd

Solicitors for the Respondent: Infinity Lawyers

Counsel for the Independent Children's Lawyer: Ms Holtham

Solicitors for the Independent Children's Lawyer: Story & Associates

ORDERS

1. That the parents have equal shared parental responsibility for the children [W] born 2000, [X] born 2003, [Y] born 2008 and [Z] born 2011.

2. That the child [W] live with, spend time with and communicate with each of her parents as she desires.

3. That the child [X] live with, spend time with and communicate with each of her parents as she desires.

4. That the children [Y] and [Z] live with the mother in the greater Region 1 region.

5. That the children [Y] and [Z] spend time with the father as follows:

   (i)For the whole of the Queensland mid year school holidays each year;

   (ii)For the first 4 weeks of the Queensland Christmas school holidays in odd numbered years and for the last 4 weeks of such holidays in even numbered years;

   (iii)At any other time when the father may be visiting the greater Region 1 region during school terms, for up to 14 days on each occasion, provided the father gives the mother written notice of his intention to visit at least 14 days prior to arrival, and he shall ensure that the children attend school each school day;

   (iv)For the whole of the Queensland school holidays following First school term and for the whole of the school holidays following Third school term if the father can afford to pay for return airfares; and

   (v)At any other time which may be mutually agreed in writing between the parents from time to time

6. That for the purpose of the father spending time with the children in accordance with order 5 above:

   (i)The mother shall be responsible for transporting the children to the Brisbane Domestic Airport in sufficient time to board the plane for travel to the father;

   (ii)The mother shall be responsible for collecting the children from the Brisbane airport at the conclusion of the children’s time with their father;

   (iii)If the children are travelling unaccompanied, the father shall be responsible for collection of the children from their flight from Brisbane;

   (iv)If the father is travelling with the children, then he shall collect the children at the commencement of his time with them, from the mother at the Brisbane Domestic Airport;

   (v)The father shall be responsible for ensuring that the children are delivered to the Adelaide airport at the conclusion of their time with him, in sufficient time to board their flight back to Brisbane;

   (vi)The father shall be responsible for payment of the children’s return air travel between Brisbane and Adelaide airports when the children are spending time with him in accordance with order 5(iv) above, and he shall provide the mother with a copy of the children’s travel itinerary at least 28 days prior to departure from Brisbane;

   (vii)For the purpose of the children spending time with the father in accordance with order 5(i) and 5(ii) above, the father shall book and pay for the children’s airfares from Brisbane to Adelaide, and the mother shall book and pay for the children’s return airfares from Adelaide to Brisbane and each parent shall provide a copy of the children’s travel itinerary to the other at least 28 days prior to the commencement of time being spent; and

   (viii)In the event that the father is posted to another State, then for the purpose of travel, the Adelaide airport shall be substituted with the airport of the capital city in the State where the father is living

7. That for the purpose of school holidays, they are deemed to commence on the day immediately following the last school day and are deemed to conclude on the Saturday immediately prior to the commencement of the new school term.

8. That the children [Y] and [Z] communicate with the parent they are not living with by skype/Facetime or similar each Tuesday and Sunday at 6.30pm (local time to the children), with the parent who is not living with the children to instigate the call, and the other parent shall ensure that the children are available to communicate with the calling parent.

9. That during communication between the children and their parent in accordance with order 8 above, the other parent shall ensure that the children have complete privacy in their conversations.

10. That in addition to the communication provided for above, the children shall communicate with the parent they are not living with on special occasions, at times agreed between the parents, and in default of agreement as follows:

    (i)At 9am on Christmas Day;

    (ii)At 9am on Easter Sunday;

    (iii)At 9am on Father’s Day;

    (iv)At 5pm on each of the children’s birthdays; and

    (v)At 5pm on each of the parent’s birthdays

11. That the parents shall communicate with each other by text or email and for that purpose each of them shall keep the other informed as to their email address and mobile telephone number and advise of any change within 24 hours.

12. That the children are permitted to communicate with the parent and/or sibling they are not living with by post or email (if available) or text message (if available) at all reasonable times.

13. That each of the parents keep the other informed as to their residential and postal address and advise of any change within 48 hours.

14. That each parent shall keep the other informed as to the details of any medical or health professionals attended by the children, and keep the other parent up to date with any testing required or results obtained in relation to health issues.

15. That each of the parents shall promptly notify the other in the event that any of the children are hospitalised or suffer a serious injury or illness, and each parent is at liberty to visit any hospitalised child daily during the period of hospitalisation.

16. That each parent is at liberty to attend at the children’s schools for activities, events and functions routinely attended by parents.

17. That each parent is at liberty to spectate at extracurricular activities the children may be participating in from time to time, and the mother shall keep the father informed as to all extracurricular activities the children are participating in and further keep the father informed as to any special events coming up in relation to those activities.

18. That the mother shall ensure that the children attend each school day unless they are sick, and in that event, she shall notify the father of their non-attendance.

19. That the mother is restrained and an injunction is granted restraining the mother from allowing or causing the child [X] to be the primary person in her household who performs homemaking tasks, such as cooking and cleaning and washing.

20. If necessary to do so, each parent shall provide all required authorities to any health professional involved with the children, to discuss the children’s health and wellbeing with the other parent, and to provide copies of any reports or other writings requested by the other parent.

21. That if necessary to do so, the mother shall provide the children’s schools with authority to provide all information to the father which he may request, including but not limited to, school reports, school photo order forms and newsletters.

22. In the event that either parent wishes to travel overseas with any of the children during any period in which the children are in their care pursuant to these orders, that parent shall provide the other parent with the following at least 4 weeks prior to departure:

    (i)A copy of the children’s return travel itinerary;

    (ii)A copy of the children and parent’s travel insurance (which shall include unlimited medical coverage);

    (iii)The name and contact details of where they will be staying whilst on holiday; and

    (iv)If the other parent holds the children’s passports, they shall provide them to the holidaying parent upon receipt of the above documents/information

23. Each party shall sign and return to the requesting party any passport application or passport renewal for the children within 14 days from receipt of the document, and the parent who pays for the children’s passports shall be entitled to hold them.

24. That each party shall notify the other within 24 hours of the following:

    (i)If that parent or a child receives a mental health diagnosis or commences or concludes attending upon a mental health practitioner;

    (ii)The details (including name, age and relationship to parent or child) of any person who is living with the children in that parent’s home; and

    (iii)If the parent who has the care of any of the children is unable to care for them temporarily, due to illness or injury or some other reason, that parent shall notify the other parent and shall provide them with details of the person who will be caring for the children (including full name, address, contact phone number and email address, age and relationship to the child or parent) pending that parent’s ability to resume care of the children

25. That each of the parents are restrained and injunctions are granted restraining each of them from:

    (i)Denigrating the other parent or that parent’s partner or family, to or in the presence of the children;

    (ii)Allowing the children to remain in the presence or hearing of any other person who may be denigrating the other parent or that parent’s partner or family;

    (iii)Discussing these proceedings with the children;

    (iv)Permitting or facilitating the children to view any documents filed in these proceedings;

    (v)Physically disciplining the children, or permitting another to physically discipline the children;

    (vi)Consuming alcohol to excess (greater than a blood alcohol level of 0.05%) or consuming illicit substances 12 hours prior to or at any time whilst the children are in their care; and

    (vii)Exposing the children to family violence

26. That the appointment of the Independent Children’s Lawyer be discharged.

27. That all extant applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 33 of 2016

MR LAMAR

Applicant

And

MS WHITTEN

Respondent

REASONS FOR JUDGMENT

1. This is parenting case. There are 4 children of the relationship: [W], 17 years old, [X], 14 years old, [Y], 9 years old, and [Z], 7 years old. The parties have agreed that they will not seek orders about [W], who is living independently, and [X], who lives with the mother and is alienated from her father and refuses to spend time with him. The only orders sought are about [Y] and [Z].

2. After moving from Queensland in 2014 the parties lived in Darwin where the father was based with the (employer omitted). In early 2016 the mother unilaterally relocated to Town B, near Region 1 in Queensland with [W], [Y] and [Z]. [X] remained living with the father in Darwin. Subsequently [W] returned to Darwin and is presently living with her boyfriend in Darwin. She does not wish to live with either parent. She is estranged from her mother. Unfortunately, she has experienced some mental health issues.

3. [X] subsequently became estranged from her father and relocated to live with her mother, [Y] and [Z] in Town B. The reason for [X]’s hostility to the father was not directly explored in evidence but the family report dated 12 September 2016 indicated that the father’s drinking and violent tendencies were an issue.  [X] was also fed up with multiple moves associated with the father’s repostings.

4. The father, who married Ms C in 2017, moved to Town A in 2018 where he is based with the (employer omitted). He lives there with Ms C and her daughter, [A], who is 10 years old. He proposes the children live with him and spend school holiday time with the mother.

5. The mother’s proposal is that the children continue to live with her and spend school holiday time with father.  She proposes that the children spend the entire midyear holiday with the father and half the Christmas holidays and, if the father travels to Town B, for up to 14 nights.  She proposes that the father pay for transport from Town A to Brisbane and return and that she pay for transport from Town B to Brisbane and return.

6. The independent children’s lawyer supported the mother’s proposal for the children to live with her if it were demonstrated that the mother would support the children’s relationship with father.

   Background

7. The family has a troubled history. There is evidence of family violence and substance abuse. The father has a history of alcohol abuse and the mother has been a long-term heavy cannabis user. There was involvement by the Queensland child welfare authorities with the family in 2004, 2005, 2011 and 2012. In 2004 there were concerns about the parents seeking delayed medical attention for [W] who had injured her hand in a door. In 2005 there were child protection concerns regarding the father’s excessive corporal punishment of [W] (who was then about five years old). In 2013 there was further child welfare involvement with the family in Queensland after concerns about the welfare of [W] and [X] and reports of the parents not being protective. A visit to the home revealed rubbish and empty alcohol containers strewn on the floor.

8. In early 2015 the family moved to Darwin from Queensland and separated in late 2015. In January 2016 the mother unilaterally relocated to Queensland with [W], [Y] and [Z]. [X] remained living with her father in Darwin. In February 2016 an order was made for the return of the children to Darwin. Soon after [X] moved from the father’s house to live with the mother. In May 2016 [W] left the mother’s house to live with the father.

9. In February 2017 consent orders were made permitting the mother to relocate to Town B with [Y] and [Z] and, if she wished, [X]. Orders were made for the children to spend holiday time with father in Darwin, including from 1 April 2017 to 15 April 2017 and, if he travelled to Town B, for up to 14 consecutive nights providing the father notified the mother in advance. The orders were that the mother deliver the children to Brisbane and the father collect them there.

10. On 25 March 2017 the father advised the mother that he would be arriving in Brisbane on 1 April and asked for change over to take place at 6 PM. The mother replied with a belligerent e-mail taking exception to the time proposed by the father. Eventually the father’s solicitor, the mother’s solicitor and the independent children’s lawyer were forced to join in the correspondence. On 30 March 2017 the mother e-mailed saying that there was a cyclone affecting Region 1 and she was unable to get the children to Brisbane airport because road, rail and air transport was cancelled. The mother sent a copy of a newspaper article apparently substantiating her claim that the Region 1 airport was closed. It transpired that this article was from 2010. On 2 April 2017 the father travelled by road to Town B. He said the road was not closed and he had no difficulty getting to the mother’s house. He asked the mother again to deliver the children to him while he waited outside her home. The mother refused and the father returned without the children.

11. The mother was cross-examined about this incident. She maintained that flooding prevented the children travelling. I find that her evidence about this was untrue. She also said that the provision of the 2010 newspaper article was an inadvertent mistake. I do not accept that and I am satisfied that the newspaper article was provided in a deliberate attempt to deceive. I find that the mother’s conduct was immature, irresponsible and reflective of her hostility towards the father. Her conduct was not in the best interests of the children and was a deliberate breach of a court order.

12. It is against this background that the concern raised by the independent children’s lawyer about whether the mother is willing to support the children’s relationship with the father is to be considered. There is other evidence of the mother’s frank hostility to the father. Her e-mail correspondence with him and with the lawyers involved gives him the e-mail nickname “the sperm donor”. Her willingness to publicly disparage him in this way raises real questions about the mother’s insight into the effects of parental conflict. I am satisfied it is limited. I have little doubt that the mother has done nothing to assuage [X]’s hostility to the father. 

13. On the other hand the children’s time with their father in the September 2017 school holidays apparently took place in conformity with orders and no issues have been raised over school holiday time to the time of judgment.

14. As mentioned, the father has a history of alcohol abuse. He told the family consultant in September 2016 that he had not consumed alcohol since March 2016. He also told the family consultant that he had experienced depression and anxiety which he said he had successfully managed through counselling. This was not challenged.

15. The mother has a history of illicit drug use.  She told the family consultant that she had used cannabis since the age of 11.  The mother also claims to suffer from chronic back pain which apparently limits her mobility.  Some evidence suggested that her cannabis use was a form of self-medication.  The mother’s apparent limited mobility was also said by her to affect her ability to undertake domestic tasks.  There was evidence that [X] undertook many domestic tasks in the mother’s household, including a significant amount of cleaning and cooking.  This evidence was corroborated by [W] telling the family consultant that she was concerned that responsibility for domestic chores would fall on [X].  There was also evidence of poor school attendance by [X]. The mother asserted that this was the result of illness and there was evidence of medical attendances. I was left in degree of uncertainty about this issue and I consider that the reason for [X]’s poor attendance is not entirely clear. I am concerned about the mother’s commitment to ensuring [X] attends school. This, in turn, raises concerns about the mother’s response should the younger children become resistant to attending school as they grow older. 

16. At the request of the independent children’s lawyer, a psychological assessment of both parties was carried out with their consent in September 2016.  The assessment noted that the father had elevated scores for depression and anxiety but concluded that he “does not display a clinically significant disorder in his psychological adjustment or functioning”.

17. The mother was observed to display no perceptual disturbance but her speech was rambling.  She told the psychologist that she had been “in and out of foster care” as a child.  She had begun to use alcohol and cannabis at an early age.  She told the psychologist that she had given up cannabis in March 2016.  She had a past history of depression.  She was observed to rank highly on the Paranoid Ideation subscale but there were no other clinically significant abnormalities.  Her Depression score was elevated but was not clinically significant.  Her Suicidal Ideation score was also elevated.  The psychologist expressed the opinion that the mother displayed no psychological disorder but he observed that due to significant adversity in her life she remained an “emotionally and psychologically vulnerable individual”.

1. An updated family report was completed in October 2017.  The writer observed that there had been “negligible” complaints of violence or family abuse since the last family report.  That was consistent with the evidence.  The writer observed that both parties had undergone random drug tests at the request of the independent children’s lawyer.  The father provided negative tests but the mother had provided a positive result for amphetamine on one occasion.  She attributed this to the use of weight-loss medication.  Neither the father nor the independent children’s lawyer pursued this issue at trial. The family consultant said that the mother’s appearance had improved since “ceasing her drug use” and she looked “more alert and available” to the children.

2. The family consultant interviewed each of the children.  [W] said that she believed the mother’s claim of increased family support in Town B was overstated.  As noted, she was concerned that the burden of domestic chores would fall on [X].  [X] expressed her hostility to the father.  She told the family consultant that the maternal grandmother no longer lived in the home because she smoked and she also picked on [Z] for minor misdemeanours.

3. [Y] told the family consultant that he enjoyed living in Queensland and was doing well at school.  His only complaint was that he rarely played outside and there was “nothing to do”.  He said that much of his play was electronic and, in the words of the family consultant, “in his mother’s bedroom given her issues with mobility”.  He confirmed that [X] did significant amounts of cooking and cleaning and he helped with the cleaning but not the cooking.

4. [Y] said he loves his father but was scared of him due to past instances of yelling and some hitting.  He said the yelling was ongoing although the hitting stopped some years ago.  He said he would be willing to live with his father and visit his mother but only if there was no yelling.  He was not confident his father had changed in this regard.  He was presently happy to visit his father only on school holidays.

5. He said his mother monitors his telephone calls with the father.  He said he was unable to stand up to his mother about this and he wished the judge could do something about it.

6. [Z] said she enjoyed living in Queensland and was making friends at her new school.  She also said that play activities were primarily in the mother’s bedroom because of the mother’s bad back.  She also said that [X] did the majority of the cooking and cleaning. 

7. She said that her telephone calls with the father were very brief because there was nothing to say.  She denied that the mother monitored the calls but the family consultant did not find this credible.  [Z] had no position about living with the father and was avoidant on the issue.  She said the father yells at her and the mother which frightened her.  She wished for her parents to reconcile but most of all that they would not yell at each other or the children.

8. The family consultant said that both [Y] and [Z] reported feeling settled in Queensland and wanted to have time with the father during school holidays.  All children reported that their relationship with the father had diminished because of his past and ongoing yelling at them.

9. The family consultant observed an interaction between the father, [W], [Y], [Z], Ms C and [A].  [X] refused to participate.  The family consultant said the observation was characterised by age-appropriate free-flowing interactions.  The father was child focused and divided his time well, with natural encouragement of all children.  [Z] and [Y] engaged well and the children appeared to accept the presence of Ms C and [A].  [Z], who had not seen her mother and [X] over the preceding holiday period, was excited about seeing her mother and [X].

10. The interaction between the mother, [W], [X], [Y] and [Z] was positive and more cohesive than with the father.  The mother was attentive, bright and alert.  The siblings were cohesive without rivalry.  The mother was confident and emotionally attuned to all of the children.  [W] and [X] interacted well and were attentive to [Y] and [Z].  All interactions were of a high quality with no concerns apparent to the family consultant.

11. The family consultant also interviewed Ms C.  She and the father had commenced a relationship in 2016 and married in 2017.  She had known the father from high school.  Ms C accepted that under the father’s proposal she would be the primary caregiver for [Y], [Z] while he worked.  She acknowledged that she did not know the children well and that she considered the relationship to be, in the family consultant’s words, “positive, albeit embryonic”.  Ms C said she had some mental health history relating to depression and had been admitted to hospital for two short periods when she was 18 and 19 years old.  She said she had been taking antidepressant medication since then.  At age 28 she was assessed as having bipolar disorder, primarily with depression.  She said her condition was successfully managed by her GP. 

12. Ms C was cross-examined and appeared to be a pleasant, mature and mentally healthy person.  She readily acknowledged that the father’s proposal may involve some challenges and expressed a realistic appreciation of those.

13. [A] was also interviewed by the family consultant and said that she had no significant relationship with the subject children because there had been a lack of opportunity due to little contact.  She said there had been no conflict with them.  She said that Mr Lamar had not yelled at her or, in her experience, the children.

14. In his evaluation the family consultant concluded that the children had successfully made a transition to living in Queensland.  He expressed concern about the children playing in the mother’s bedroom due to her restricted mobility and the evidence that [X] had responsibility for a high level of domestic chores.  While the father saw this as evidence of neglectful parenting, the family consultant concluded that [X] was ready and willing to do these chores.  The children also expressed some concern about the father and Ms C marrying after a relatively short time.  The family consultant said that it remained to be seen whether the relationship withstands the test of time.

15. The children reported a concern that the father causes them distress by yelling at them and, although the father minimised this, the family consultant thought that their concerns appeared credible.

16. Although both parents appeared child focused and available to the children and both children appeared to have good relationships with each parent, the family consultant expressed the opinion that they appeared happier and more spontaneous with the mother.

17. The family consultant noted that the father’s proposal involved a further change of location to a remote post in South Australia.  In addition his proposal involved Ms C co-parenting in circumstances where the children know little of her and do not have a developed relationship with her.

18. The family consultant concluded by expressing the opinion that he thought, on the balance of probabilities, that the best interests of the children were met by the mother’s proposal that the children remained living with her in Queensland and spending holiday time with the father. 

19. Largely, I accept that the issues identified by the family consultant are the relevant ones.  I accept that there was evidence to support each of the opinions expressed.  The family consultant, however, did not identify the question of whether or not the mother would support the relationship of the children with father as an important issue.  I agree with the submission of the independent children’s lawyer that this is significant and there is evidence to raise real concerns about the mother’s willingness to support the children’s relationship with the father.  

20. The independent children’s lawyer submitted that this ought to be the determinative factor. However, this is a case where both parties have agreed to relocate away from Darwin. The competing proposals are that the children live with mother in Queensland or with the father in Town A. It is not a relocation case in the ordinary sense where a fundamental issue is often whether the relationship of the child or children will survive the proposed relocation by one parent away from the other parent. Here both parents have agreed to relocate. It appears to me that the factor identified by the independent children’s lawyer as determinative is only one of the factors that must be taken into account under the Family Law Act.

21. In this case there is evidence that the parenting capacity of both parents is less than satisfactory.  I accept the opinion of the family consultant that the children wish to remain living with their mother and with their older sister [X], with whom they have a close relationship, in Town B.  However, given the mother’s demonstrated hostility to the father and her poor behaviour in April 2017, there is a real question about whether the mother will support the relationship of the children with her father and, further, whether she will comply with court orders.

22. On the other hand, the father’s proposal involves a further change of residence to a remote community, a separation not only from their mother but from their older sister [X] and the forging of a new relationship not only with Ms C, who will co-parent them with the father, but with a step sibling, [A], with whom they presently have little relationship. 

23. In my view, both proposals are less than completely satisfactory.  Both involve very significant uncertainty about future developments and future relationships.

24. The resolution of a parenting dispute under the Family Law Act (“the Act”) requires adherence to the legislative pathway set out in Part VII of the Act.

25. In determining what is in the best interests of the child the court must consider the matters in subsections (2) and (3) of section 60CC.

26. The primary considerations in subsection (2) are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence with the latter factor to be given greater weight.

27. I am satisfied the children have been subjected to and exposed to abuse, neglect and family violence in the past.  There is no recent evidence and no evidence since the parties’ separation that this is a continuing problem.  Nevertheless, I consider that some orders are necessary, particularly in relation to corporal punishment, to address these historical concerns.

28. I am satisfied that the children will benefit from a relationship with both parents and that relationship will be meaningful notwithstanding that the parents live far from each other.

29. The additional considerations are set out in subsection (3) in parts (a) to (m). 

30. In relation to (a), the children’s views, [Y] said that he loved his father but is scared of him because of his past behaviour.  He is happy to live with his mother and visit his father on school holidays.  [Z] avoided expressing any opinion on this to the family consultant but did say that her father’s yelling frightened her.

31. In relation to (b), the nature of the relationship of the children with their parents and any other persons, both [Y] and [Z] have a close relationship with each of their parents but, in the case of the father, diminished somewhat by the effect of his past conduct.  The children have a fledgling relationship with Ms C and [A].

32. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have sought to be actively involved in the children’s lives and each has attempted to remain part of the children’s lives after separation. 

33. No issue has been raised in relation to maintenance of the children under part (ca).

34. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living, a change in the children’s residence from Town B to Town A will separate the children, not only from their mother, with whom they have a close relationship, but from their sister [X] with whom they appear to also have a close relationship.  A move to Town A would see the children attending a new and, according to the evidence, small school in a remote outback community.  They would be significantly cared for by Ms C while the father was at work in circumstances where their relationships with Ms C and her daughter are undeveloped.

35. In relation to (e), the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents, it is clear that the fact that the parents reside many thousands of kilometres apart will necessarily affect the children’s relationship with the parent with whom they do not live and there will be significant expense in the children spending time with the non-residence parent. 

36. The father proposes that, if the children live with him, the children spend all of the term one, two and three school holidays and for four weeks of the Christmas school holiday with the mother, with the mother to pay for the airfares for the term one and three holidays and with him to pay for the airfares for the term two and four holidays. 

37. The proposal of the mother is that the children spend half of the Christmas and midyear holiday with the father.  She will pay for travel to and from Region 1/Town B to Brisbane and return and the father will pay for travel from Town A to Brisbane and return.  In addition, the mother proposes that the children spend up to 14 nights with him if he visits the Region 1/Town B region. 

38. The independent children’s lawyer proposes, whether the children live with the mother or with the father, that the children spend the whole of the midyear school holiday and four weeks of the Christmas school holidays with the non-residence parent. She further proposes that the children spend the whole of the term one and term three school holidays with the non-residence parent if that parent can afford the return airfares.

39. The independent children’s lawyer made complex proposals as to the sharing of the cost of the airfares.  If the children live with the mother she proposed that the mother be responsible for getting the children from Town B/Region 1 to Brisbane and return and that she be responsible for the Adelaide to Brisbane leg of the airfares and the father be responsible for the Brisbane to Adelaide leg of the airfares for the Christmas and midyear school holidays.  The father was to be responsible for getting the children from Adelaide to Town A and return.  If the father wishes to have the children spend time with him in the term one and term three school holidays he is to be responsible for the return airfares.  If the children lived with the father the mirror arrangement was to apply. There was no evidence of the cost of return airfares between Brisbane and Adelaide but I accept I accept that each leg is likely to cost some hundreds of dollars for each child.

40. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I have already referred to serious concerns about each parent including; in the case of both parents, historical involvement by the child welfare authorities over excessive punishment and protective concerns; in the case of the mother, long-term cannabis use, apparent tolerance or encouragement of [X] doing many household chores, mental health vulnerability and an instance of the mother undermining the children’s relationship with the father and, in the case of the father, historic alcohol abuse and current concerns by the children about the father’s “yelling”.

41. The independent children’s lawyer submitted that both parents have the capacity to provide for the physical needs of the children but raised question marks about the capacity of each to provide for the emotional and intellectual needs of the children.  I accept that submission.

42. In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, [W] is living independently and neither party sought any orders about her and [X] is hostile to the father and does not wish to spend any time with him. He does not seek orders about her.

43. [Y] expressed a fear of the father’s yelling.  [Y] also expressed unhappiness with the mother monitoring his calls to the father.  [Y] complained about little play outside and nothing to do at his mother’s home, apparently related to the mother’s lack of mobility.  Each of the children interviewed expressed concern about the rapid development of the father’s relationship with Ms C.  The children had spent little time with Ms C at the time of trial.

44. The family consultant considered that, while [Y] and [Z] are close to both parents, they are likely to be happier living with their mother.  In his observation of the children with the mother he considered that the interaction was positive, more cohesive than with the father and of a high quality with no concerns.  The family consultant expressed concern about the father’s proposal because it involved another change of residence to a remote place and heavy reliance on Ms C as a co-parent.

45. In relation to (h), the children are not Aboriginal or Torres Strait Islander children.

46. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love their children but their capacity as parents suffers from the limitations described above. The independent children’s lawyer submitted that there is a doubt about whether the parents are able to consistently place the children’s needs above their own.  I accept that submission. In the case of the mother, I am satisfied that on the occasion of the father’s visit to Town B to spend time with the children, the mother’s refusal to make the children available was an instance of her placing her own needs above those of the children. There is also a concern about [X]’s school attendance in the care of the mother and her encouragement or tolerance of [X] undertaking a large amount of the household chores. In the case of the father, there is his history of excessive corporal punishment of [W] and other child protection concerns and, more recently, his yelling as described by [Y].

47. In relation to (j), any family violence involving the child or a member of the child’s family, the mother alleged that she was the victim of family violence perpetrated by the father and alleged that he sexually assaulted her during the relationship.  Her evidence on these matters lacked particularity and I am unable to make any findings.  The mother alleged that [W] had been violent to her younger siblings.  Again the evidence lacked particularity and I do not make any finding.  [Y] reported that his father used “hitting” in  the past and he is afraid of the father’s yelling.  I accept that the father has yelled at the children on occasions in a way to make them fearful.

48. In relation to (m), any other fact or circumstance that the court thinks is relevant, there have been notifications made to the Northern Territory child welfare authorities but all were assessed as not meeting the threshold to investigate or not containing sufficient information to provide to investigation.

49. Section 60CG requires the court to ensure that any order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. No family violence order applies. The principal allegations of family violence relate to the period when the parties were in a relationship and I am satisfied there is no current unacceptable risk of family violence to the parties or the children.

1. Given that I am satisfied there has been historical family violence the presumption of equal shared parental responsibility under section 61DA does not apply. Nevertheless, I am satisfied that it is appropriate that both parents should be involved in decisions concerning [Y] and [Z]. Both parents wish to remain actively involved in the children’s lives and both sought orders providing for equal shared parental responsibility.

2. The court is required by section 65DAA to consider whether the children spending equal time or substantial and significant time with each parent is in the best interests of the children. Because both parents are living many thousands of kilometres apart, I am satisfied that it is not reasonably practicable for the children to spend equal time with each parent and I am satisfied that it is not reasonably practicable for the children to spend substantial and significant time, which is defined by the Act to include weekdays, weekends and time that is not holidays, with each parent. I am satisfied that the only practicable arrangement is for the children to spend holiday time with the non-residence parent. The expense of travel will obviously be a burden for the parties but I am satisfied that both parties should contribute to the cost and the orders I make will make provision for that.

3. Taking all these matters into account, I am satisfied that the children are more likely to be happy living with the mother in Town B than with the father in Town A.  I have serious concerns about the mother’s willingness and capacity to encourage and support a relationship between the children and their father. The mother should be aware that if her obstruction and unwillingness to facilitate a relationship between the children and their father continues a court might reach the conclusion urged by the independent children’s lawyer that the children would be better off living with their father.

4. However, after weighing all these matters, I am satisfied that on the evidence to date that it is in the best interests of the children that they live with their mother. Orders will be made for the children to spend holiday time with the father. Orders will also be made for regular communication between the children and their father, along with injunctions ensuring that the children have privacy when they speak to the father. Both parties will be restrained from using corporal punishment on the children. Otherwise, I generally propose to make the orders put forward by the independent children’s lawyer. I propose to ask the independent children’s lawyer to provide a draft minute of orders reflecting these reasons.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  6 June 2018