Lamb and Hancock

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMB & HANCOCK

[2013] FCCA 726

Catchwords:
FAMILY LAW – Parenting – whether a child aged 9 should remain living with her mother in (omitted) or commence living with her father and brother aged 12 in (omitted) – where the father has denigrated the mother to the children in a vile fashion since separation – where the father has blatantly breached court orders and unilaterally relocated on two occasions – whether the benefits of a change of residence are sufficient to outweigh the risk that the child’s relationship with the mother will suffer because of the father’s attitude and behaviour.

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

Lamb & Lamb [2012] FMCAfam 737

Applicant:

MR LAMB

Respondent:

MS HANCOCK

File Number:

NCC 1451 of 2008

Judgment of:

Judge Terry

Hearing dates:

27 & 28 February, 1 March and 22, 23 & 24 May 2013

Date of Last Submission:

30 July 2013

Delivered at:

Newcastle

Delivered on:

15 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Higgins & Dix

Counsel for the Respondent:

Mr Davies

Solicitors for the Respondent:

Rice More & Gibson Solicitors

Solicitor advocate for the Independent Children's Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer

Legal Aid NSW

ORDERS

All previous parenting orders concerning X born (omitted) 2001 and Y born (omitted) 2004 are discharged.
The children shall live with the father.
The father shall have sole parental responsibility for decisions concerning the children’s education and medical or dental treatment.
The father shall notify the mother in writing promptly upon making any major long term decision in relation to the children’s education or medical or dental treatment including but not limited to advising her about any change of school and any appointments for the children to see a medical specialist, psychologist, psychiatrist, counsellor or therapist or to have medical or dental treatment at a hospital.
Each parent may attend any such appointments subject to the discretion of the treating health professional or counsellor or therapist and each parent is entitled to receive a copy of any reports prepared by any such treating health professional or counsellor or therapist.
The father and mother shall otherwise have equal shared parental responsibility for the children.
For the avoidance of doubt the father is restrained and an injunction is granted restraining him from relocating the children’s place of residence from (omitted) without an order of the court or the consent in writing of the mother.
Y shall spend time with the mother as follows:
(a)for one half of each school holiday period being the first half in even numbered years and the second half in odd numbered years.
(b)In Term 2 and 3 each year every fourth weekend during school terms in (omitted) from 6.00 pm on Friday until 3.00 pm on Sunday commencing on 23 August 2013 and thereafter commencing on the first weekend of each school term if Y has spent the first half of the preceding school holidays with the mother and the second weekend of each school term if Y has spent the second half of the preceding school holidays with the mother.
(c)In Term 2 and 3 each year every fourth weekend during school terms from 3.00pm on Friday until 3.00pm on Sunday in (omitted) commencing on 6 September 2013 and thereafter commencing on the third weekend of each school term if Y has spent the first half of the preceding school holidays with the mother and the fourth weekend of the school term if Y has spent the second half of the school holidays with the mother.
(d)In Term 1 and 4 each year every second weekend during school terms in (omitted) from 8.30 pm on Friday until 3.00 pm on Sunday commencing on the first weekend of the school term if Y has spent the first half of the preceding school holidays with the mother and the second weekend of each school term if Y has spent the second half of the preceding school holidays with the mother.
(e)At such additional or alternate times as may be agreed between the parties.
X shall spend time with the mother as follows:
(a)Until the commencement of Term 4 2013 every fourth weekend during school terms during the changeover for Y at (omitted) McDonalds for 30 minutes on Friday and 30 minutes on Sunday.
(b)Until the commencement of Term 4 2013 every fourth weekend during school terms on the weekend the mother is spending with Y in (omitted) from 9.00 am until 3.00 pm on Saturday and from 9.00 am until 3.00 pm on Sunday.
(c)Thereafter in Terms 1 and 4 each year every alternate weekend during school terms in (omitted) from 9.00 am until 3.00 pm on Saturday and from 9.00 am until 3.00 pm on Sunday.
(d)In Terms 2 and 3 each year every fourth weekend during school terms in (omitted) to coincide with the weekend the mother is spending with Y from 9.00 am until 3.00 pm on Saturday and from 9.00 am until 3.00 pm on Sunday.
(e)In Term 2 and 3 each year every fourth weekend during school terms in (omitted) from 9.00 am until 3.00 pm on Saturday and from 9.00 am until 3.00 pm on Sunday.
(f)At such additional or alternate times as may be agreed between the parties.
From the date of these orders until the end of Term 3 2013 the father will for the purposes of orders 8(c) and 9(b) pay the reasonable cost of hotel accommodation in (omitted) for the mother on the Friday and the Saturday nights.
Changeovers:
(a)For the purposes of orders 8(a),8(b) and 9(e) shall take place at (omitted) McDonalds.
(b)For the purposes of orders 8(d) and 8(c) at (omitted) McDonalds.
(c)For the purposes of orders 8(c), 9(b) and 9(d) shall take place at (omitted) or other hotel or place in (omitted) at which the mother is staying or as otherwise agreed between the parties.
The mother shall have telephone communication with the children:
(a)each Sunday the children are not with her between 6.00pm and 6.30pm with the mother to make the call and the father to make the children available to receive the call; and
(b)at such additional or alternate times as may be agreed between the parties or reasonably requested by the children.
Neither party shall physically discipline the children.
Each parent shall promptly advise the other should the children or either of them while in their care be diagnosed as suffering from a serious medical condition, be involved in an accident requiring attendance at hospital or be the subject of a medical emergency requiring attendance at hospital and each parent may visit the children in hospital and obtain from the hospital or treating medical practitioner any relevant medical information concerning or reports prepared about the children.
Each parent may obtain from the children’s schools newsletters, notices, school reports, school photograph order forms and any other information or documents normally provided to parents.
Each parent is entitled to attend all events involving the children including:
(a)Sporting fixtures;
(b)Extra curricula activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
Each parent is to keep the other informed of their current residential address, postal address, landline (if they have one) and mobile telephone number and shall advise the other parent within 24 hours of any changes to any of these details.
During the time the children are with either parent that parent shall:
(a)Not question the children about the personal life of the other parent;
(b)Speak respectfully of the other parent;
(c)Not denigrate, insult or threaten the other parent and use their best endeavours to ensure that others do not denigrate or insult the other parent in the presence or hearing of the children.
Each parent must behave respectfully and civilly to the other at any changeover of the children and each parent is restrained and an injunction is granted restraining them from assaulting, molesting, harassing, threatening or engaging in any conduct which intimidates the other parent.
Neither parent is to discuss these or any other court matters involving the parents with the children nor show the children any documents relating to any such proceedings.

NOTATION

It is noted that Dr R recommended that the father continue to obtain regular parenting counselling for at least the next two years and the father gave evidence that he had commenced counselling with Mr M in February 2013 and would continue to engage in it for the next two years.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT NEWCASTLE

NCC 1451 of 2008

MR LAMB

Applicant

And

MS HANCOCK

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting arrangements for X, 12 and Y, 9.
To distinguish him from his father the parents call X “X” and others call him X. I will refer to him as X in this judgment.
Y’s name is spelled a number of different ways in affidavits, court orders, medical reports and school records, Y and Y being the most common. It is spelled Y throughout the affidavit the father filed on 4 February 2013 but Y throughout the affidavit he filed on 18 February 2013. It is mainly but not exclusively spelled Y in the mother’s affidavit.
Dr R, who prepared an expert’s report, said that she believed that the name was spelled Y on the child’s birth certificate but that the child changed the spelling to Y when it was written down and commented that her parents each spelled it differently.
Dr R adopted the spelling Y in her report and I will use that spelling in this judgment.
The parents separated in March 2008. Between January 2009 and February 2012 the children lived in a week about shared care arrangement but currently X is living with the father in (omitted) and Y is living with the mother in (omitted). The two locations are over 4 ½ hours driving distance apart.
At the commencement of the hearing both parents were seeking orders that both children live with them. During the hearing it became clear that it would not be in X’s best interests to change his residence and to her great credit at the end of the hearing the mother conceded this.
The primary issue in dispute then became whether Y should remain living with the mother in (omitted) or should commence living with the father and X in (omitted).
The solicitor for the Independent Children’s Lawyer supported both children living with the father.
Both parties and the solicitor for the Independent Children’s Lawyer proposed an order for equal shared parental responsibility.
In the course of preparing this judgment I became concerned about whether this was appropriate. I relisted the matter on 30 July 2013 and informed the parties’ counsel and the solicitor for the Independent Children’s Lawyer that I was considering making an order about parental responsibility different to that proposed and gave each of them the opportunity to make further submissions about the issue.

The evidence

The father relied on his Amended Response filed on 25 February 2013 and his affidavits filed on 4 & 18 February 2013.
Part way through cross examination of the father it became apparent, as a result of him being asked to look at documents, that he could barely read if he could read at all. There was nothing in the jurats at the end of the father’s affidavits to indicate that his affidavits had been read to him.
On 1 March 2013 the father’s counsel obtained leave to file in court an affidavit of the father’s solicitor Ms Flynn. Ms Flynn said that she was aware of the father’s difficulty and had painstakingly read his first affidavit (his primary trial affidavit) to him and made corrections before he signed it.
The mother relied on her Amended Initiating Application filed on 6 February 2013, her affidavit filed on 30 January 2013 and the affidavit of her adult daughter Ms P also filed on 30 January 2013.
Dr R, who practices in the area of child and family psychiatry, prepared an expert’s report which was released to the parties on 18 October 2012.
Also in evidence were a Child and Parents Issues Assessment prepared by Family Consultant Ms T on 12 January 2009, a Family Report prepared by Family Consultant Ms C on 1 June 2010 and a Memorandum to the Court prepared by Ms C after she conducted a child inclusive child dispute conference on 5 March 2012.
The father, mother, Ms P and Dr R were cross examined. Ms T and Ms C were not required and it is important to note that there was no challenge to the accuracy of the information in their reports about what the parents or children had said to them or about what they had gleaned from subpoena material available at the time.
On 26 July 2013 a further affidavit was e-filed by the father’s solicitor. When the matter came before me on 30 July 2013 I inquired of the parties counsel and the solicitor for the Independent Children’s Lawyer whether they wished me to read it and all said that they did.
The affidavit had attached to it a copy of a final ADVO made by the Local Court at Inverell on 28 June 2013 in which the mother and Y are named as protected persons and the father as the defendant.

The parents as witnesses

The father was a superficially pleasant and responsive witness but he was overall an unreliable witness.
A major issue in the case was whether the father had denigrated the mother after separation by calling her names such as “slut” “whore” and “town bike.” During cross-examination the father initially denied that he had used such words and said that all he had done was call the mother a bad person and say that she got around. This seemed most unlikely and the father later admitted that he had referred to the mother as a slut and a bitch when talking to friends.
The account the father gave in his affidavit about his relocation to (omitted) with the children in 2010 was conspicuously inaccurate as to timing. It was clearly designed to conceal the fact that the father acted opportunistically and spirited the children away to (omitted) after the mother had to rush to Sydney to be with her older daughter Z who had been critically injured in a car accident.
The father was at pains to present himself as the more responsible parent and he omitted from his affidavit anything which might suggest otherwise. In particular he failed to refer to an incident which occurred on 17 December 2011.
Late that night the father was travelling between (omitted) and (omitted) with the children in convoy with a second vehicle driven by a disqualified driver. He allowed X to travel in the second vehicle and at about 11.30pm the driver ran off the road and hit a tree before decamping. Fortunately X was not injured.
Whenever the father’s past actions were criticised, such as keeping the children from the mother after separation in 2008, agreeing to equal time in June 2010 despite the fact that his living circumstances made it problematic and unilaterally relocating in 2010, the father sought to lay the blame for what happened on others: variously the police, workers from the Department of Community Services, a psychologist and his solicitors.
Dr R in her report referred to the father as:
an assertive, opinionated, obese 47 year old who was rather lose [sic] with his facts, providing details to place himself in a positive light for his own self esteem as well as for the benefits in these proceedings.[1]
[1] Dr R’s report page
This entirely accords with my own assessment of the father.
The mother was also an unreliable witness.
The mother gave conflicting and unconvincing answers when cross examined by the father’s counsel about her evidence concerning an ADVO application and the father’s possession of guns in late 2007.
In her affidavit the mother said that for the majority of the relationship the father was a heavy rum and beer drinker who drank on a daily basis often to excess, but she told Dr R that the father was a heavy user of alcohol when they met but did not drink much during the relationship. When asked about this discrepancy during cross-examination the mother responded:
I said obviously [to Dr R] that he wasn’t drinking much during the relationship but it wasn’t what I meant to say.
The mother was evasive about her move to (omitted) in 2012 and the explanation she gave for why she signed a 12 month lease on a house in (omitted) if she did not intend to stay there was not credible.
The above are only some examples of the unsatisfactory evidence given by both parents and I will need to carefully assess the evidence on each issue in dispute before making findings.

Background

The mother is 43 and the father 48. They commenced a relationship in 2000, married on (omitted) 2005 and separated on 31 March 2008.
They have two children: X born on (omitted) 2001 and Y born on (omitted) 2004.
The mother has two older children, Ms P born on (omitted) 1986 and Z born on (omitted) 1990. Ms P lived with the parties until 2004 and Z until 2006.
The parties lived in (omitted) throughout the relationship save for the period between 2005 and 2007 when they lived in (omitted).
The mother was the children’s primary carer.
In his trial affidavit the father attempted to gloss over this, maintaining that he had a significant role in caring for the children and that the mother’s family and day care took up the slack. I do not accept that this is true. The father operated a (business omitted) for most of the relationship and he also had a (business omitted) at (omitted). He admitted during cross-examination that he worked 5 ½ to 6 days a week in the business and often went to the (business omitted) on Sundays. He had little opportunity to provide hands on care for the children and his refusal to acknowledge the role the mother played is an example of his dismissive attitude toward her.
The father got into financial difficulties in 2006 and lost the (business omitted) and became bankrupt. In his affidavit he blamed the mother’s brother for this financial misfortune; during cross-examination he told several different stories about why he got into financial difficulties, shifting to a new story each time scepticism was expressed about the earlier one.

Events between separation and the final parenting orders made on 26 June 2010

Much was in dispute about what occurred on 31 March 2008, which turned out to be the day of separation, but it was common ground that the parties had a heated argument after the mother tried to obtain $20.00 from the father to buy petrol.
The children were in the mother’s car during the argument. The father alleged that the mother assaulted him and tried to run him over five times and then drove off at high speed before abandoning the car and hiding out at her daughter Ms P’s home in (omitted). The mother denied attempting to run the father over but agreed that she and the children went to stay with Ms P after the incident.
The father made a complaint to the police and the mother was charged with several criminal offences.
On 17 April 2008 an ex parte Interim Apprehended Domestic Violence Order (ADVO) was made naming the father and children as protected persons and on 6 May 2008 the father collected the children from school and refused to return them to the mother. He said that he did so because the police and the Department of Community Services (DOCS) told him to and he went as far as to say that because of the ADVO the children were ordered to live with him. I do not accept that any of this is true.
On 15 May 2008 the ADVO was varied by consent to remove the children as protected persons and immediately this was done the mother went to the school and collected the children and retained them.

On 19 May 2008 the father applied for and obtained an ex parte recovery order from the Local Court at Inverell and the children, then 7 & 4, were taken from the mother by the police and given to the father.
The Local Court at Inverell transferred the parenting proceedings to the Federal Magistrates Court at Newcastle after making the recovery order.
Both parents told Ms C in May 2010 that the children spent no time with the mother between May 2008 and November 2008 when orders were made in the Federal Magistrates Court, and in his trial affidavit the father said the same thing.[2] This is probably not correct. Elsewhere in her report Ms C mentioned that the children commenced spending day only time with the mother about four months after they came into the father’s care, and the father said during cross-examination that this was what occurred.
[2] Father’s affidavit filed 4 February 2013, paragraph 26.
On 10 July 2008 the mother was convicted of common assault arising out of the events of 31 March 2008 and was placed on an s.9 Bond for six months. All other charges against her were dropped. It was the mother’s evidence that she was convicted because the father’s arm was scratched during the altercation on 31 March 2008.
On 14 November 2008 the matter came before FM Lapthorn as he then was. He made an interim order providing for the children to spend time with the mother each alternate weekend and in the other week from Wednesday to Friday. He also appointed an Independent Children’s Lawyer, requested the Department of Community Services intervene (an invitation never taken up) and transferred the matter to the Family Court.
On 12 January 2009 Ms T saw the family for the purposes of preparing a Children and Parents Issues Assessment. Both parents made complaints to Ms T about the other being violent and abusing alcohol and the children told Ms T that the father had been denigrating the mother.
Ms T reported that:
Neither parent demonstrated an ability to appreciate new and different information regarding their children as evidenced by their continuing to deny any accountability for the family violence, alcohol abuse and denigration of the other and the impacts on the children during the feedback session.[3]
[3] CAPIA prepared by Ms T paragraph page
On 19 January 2009 Judicial Registrar Johnston as he then was made an interim order by consent for the children to live in a week about shared care arrangement.
In May 2010 Ms C saw the family for the purposes of preparing a Family Report and the themes which have consistently run through this matter are referred to by Ms C in her report. These include allegations by each party that the other had been violent, an allegation by the father that the mother had an alcohol problem and an allegation by the mother that the father had seriously denigrated her to the children since separation.
Ms C examined documents produced on subpoena and reported that the police had attended at the parties’ home on 11 occasions during their relationship and had reported that each party had made allegations about the other being violent. The accuracy of this account by Ms C was not challenged at the hearing before me.
Ms C referred to the fact that the father had been convicted of an assault in the 1980’s, that a report had been made to DOCS by Z’s school in 2004 that the mother had assaulted Z and that the mother had been charged in 2007 with assaulting a 14 year old boy.
Ms C spoke to someone from the children’s school who told her that X was presenting as a sad and anxious child, that both children were struggling academically and that homework was never done.
X told Ms C that he was happy with the week about arrangement and thought it was fair and Y said that she considered the amount of time she was spending with each parent was good. However both parents told Ms C that they did not want equal time to continue and Ms C did not support it. She said as follows:
It is recommended that the children live primarily with the parent with whom the Court finds is most able to provide them with a safe environment free from family violence and/or physical violence, who is able to facilitate a meaningful relationship for the children with the other parent and who is able to most appropriately cater for the emotional and cognitive needs of the children.[4]
[4] Ms C's Report, paragraph 98.
Ms C was concerned about both parents and said as follows:
The primary limitation in the mother’s household would appear to be the past history of physical assault on children and the father and the potential future risk of physical harm this may create for the children.
The primary limitation in the father’s household would appear to be his ability to prioritise the emotional and cognitive needs of the children and his ability and willingness to facilitate a meaningful relationship for the children with the mother.[5]
[5] Ms C's Report, paragraphs 95 & 96.
Notwithstanding Ms C’s opinion that equal time was not appropriate and notwithstanding that each party told Ms C they did not want it to continue the parties agreed shortly after the report was released to settle the matter on the basis that the week about arrangement continue.
Final consent orders were made to this effect on 29 June 2010. It was noted on the orders that the parties and the Independent Children’s Lawyer submitted to the court that there were no allegations of either physical abuse or sexual abuse of the children.

Events after 29 June 2010

It emerged after the matter revived itself in 2012 that the father had commenced living each alternate week in (omitted) in 2009 and that when Ms C saw the parties in May 2010 and when the final orders were made on 29 June 2010 he was primarily living in (omitted). He was renting a home in (omitted) so that he could take the children to school in (omitted) during his week with them but was not living in (omitted) for a minute longer than he had to.
Every alternate weekend the father was driving the children 4 ½ hours to (omitted) on Friday and then driving the children 4 ½ hours back either on Sunday or later in the following week.
The father said that the mother knew about his living arrangements when the consent orders were made. This may be so, certainly the mother did not deny it, but it is clear that nobody told Ms C or the Family Court about it.
The orders only operated uneventfully for a very short period after 29 June 2010.
On 31 August 2010 the mother was informed that Z had been seriously injured in a car accident and was in hospital in Sydney in a critical condition. The mother went to Sydney to be with Z and asked the maternal grandmother to collect the children from school on 3 September 2010 which was the commencement of her next week with the children.
When the maternal grandmother went to the school however she was informed that the children were not there and that the father had collected them on the Wednesday and relocated them to (omitted).
The mother contacted the father who said that he would not return the children and she filed an application in the Federal Magistrates Court for a recovery order.
On 5 October 2010 the mother’s application came before Lapthorn FM. He ordered that the children be returned to (omitted) and that the 29 June 2010 orders be complied with. He also made an order that neither party relocate the children’s residence more than 50 kilometres from (omitted).
After this hiccup the week about arrangement continued until 17 February 2012, with the father continuing to take the children to (omitted) every alternate weekend.
On 17 February 2012 the mother went to school to collect the children and found that they were not there. She discovered that the father had once again relocated them to (omitted) and she promptly filed an application seeking the children’s return.[6]
[6] The father is the applicant in the current proceedings because the mother filed an application in a case seeking only a recovery order while the father in his response sought final orders varying the 29 June 2010 orders to allow him to live in (omitted) with the children.
At the first mention of the mother’s application on 26 March 2012 an order was made adjourning the matter to 8 June 2012 for an interim hearing and an order was also made for Y to spend every second weekend and half the school holidays with the mother. No order was made for X to spend time with the mother because the father was making serious allegations about X’s mental health and his poor relationship with the mother.
On 8 June 2012 I conducted an interim hearing. I was extremely concerned about the fact that the father had breached the court orders for the second time and about what this might mean for the children’s relationship with the mother in the future when combined with the father’s history of denigrating the mother.
I ordered that Y live with the mother and spend time with the father every second weekend and for half of the school holidays. I felt constrained against making such an order in relation to X however because of the concerns, verified by a psychologist, about his mental health and the state of his relationship with the mother. I ordered that X live with the father and that the family commence therapeutic counselling with a psychologist in (omitted).
The father’s solicitor submitted during the interim hearing that the disclosures made by X to the father on 17 February 2012 meant that the father had no option but to take the action he did in retaining the children in (omitted). I did not accept that then and I do not accept it now. The father did not have to relocate 4 ½ hours away from (omitted) in order to deal with X’s difficulties. He could have dealt with them by withholding X if he felt he had grounds to do so while maintaining X’s residence in (omitted). The relocation was an opportunistic act by the father which suited him and showed absolutely no regard for the emotional well-being of the children.[7]
[7] Lamb & Lamb [2012] FMCAfam737
Shortly after the interim orders were made the father filed an application in a case and a supporting affidavit. He alleged that the mother had relocated to (omitted) with Y and he sought an order that Y be returned to (omitted). I will refer to this again later but when the application came before me the mother denied she had relocated and said she had only been visiting and that she was back in (omitted) and would stay there.
Y has spent time uneventfully with the father in accordance with the interim orders since June 2012.
In July 2012 the family commenced therapeutic counselling in (omitted) with Ms R, a Clinical Psychologist. X has seen the mother at this counselling and he has also seen her for short periods at changeovers at McDonalds in (omitted) at the beginning and end of Y’s time with the father but his time with her has not progressed beyond this.
X and the father suggested to the mother late in 2012 that she come to (omitted) and spend time with X there and attend his football games and the father offered to pay for overnight accommodation for the mother in (omitted). The mother has never taken up that offer and claimed that she could not afford to do so.
In February 2013 Y complained to the father during a visit that she had a toothache. The father took her to a dentist who found that she had a decayed tooth which needed extraction. The dentist tried to extract the tooth but Y would not tolerate the procedure. She was sent away with a prescription although whether it was for pain killers or antibiotic medication I am not sure.
The father sent the prescription home with Y and in a telephone conversation with the mother exhorted her to get the prescription filled at once. When the mother refused to go instantly to the chemist the father became angry and upset.
The mother alleged that the father threatened that if she did not do as he wanted he would come and get Y and would kill her if she got in the way.
The mother rang the police who immediately made a provisional ADVO for the protection of the mother and Y.
The father denied making the threat but on the balance of probabilities I am satisfied that he did so. On his own admission he was agitated and upset during the conversation and this, together with the fact that it seems to me unlikely that the mother would have rung the police immediately after the phone call and made a completely fictitious claim, inclines me to accept the mother’s evidence.
I consider it likely that the father made the threat to emphasise his anger and upset and to try to intimidate the mother into doing what he wanted rather than with any intention of carrying it out, but this in no way excuses his behaviour.
The ADVO application was dealt with in the Inverell Local Court on 28 June 2013 and a final order was made for 6 months with the mother and Y named as protected persons. The father represented himself and there is nothing in the affidavit his solicitor filed on 26 July 2013 or on the face of the ADVO to shed light on whether a hearing occurred.

The parties’ current circumstances

When asked for his occupation the father described himself as a (omitted). He said that the (omitted) business involved (omitted). He talked about having a big mortgage and about there being a company which had a bought the house in which he lived but he did not make his financial position at all clear.
At one time after separation the father travelled extensively up and down the (location omitted), (activity omitted) and it may well be that he continues to do this. I am unclear about the extent if any to which the father’s work now takes him from home and he gave no evidence about who cared for X if he was working or away on trips (activity omitted). He brought someone called “(omitted)” to the interviews with Dr R who he said helped him to look after the children when needed.
X attended (omitted) Primary School throughout 2012 and he attended regularly. He was identified as having significant difficulties both socially and with literacy and in late 2012 he spent two weeks at (omitted) in (omitted) to assist him with self-esteem and health issues. He enjoyed his time there.
I accept that throughout 2012 the father made an effort to ensure that X did his homework.
X commenced at (omitted) High School in 2013. The father said that he had him on a waiting list to attend (omitted) College which the father considered a school which got good results. Whether X is realistically likely to get a place at this school or whether this falls into the category of unreliable evidence the father gave such as claiming that he was once a millionaire is impossible to know.
X has had counselling in (omitted) which appears to have benefited him and he is a keen football player.
If Y is ordered to live with the father she will attend (omitted) Primary School. The father said that Y did extra-curricular activities such as ballet while in (omitted) between February 2012 and June 2012 and implied that he would reengage her in these activities if she returned to live with him.
The father said that the children had some cousins in (omitted) but there was no evidence that they had much interaction with family in this area. The paternal grandmother lives in (omitted).
The mother lives in rented accommodation in (omitted) with Y and her youngest daughter W born (omitted) 2009. The mother was questioned during the hearing about people who attended at her home but there was no evidence that she was in a new relationship. She had a brief relationship with W’s father which ended before W’s birth and he has no part in either the mother’s or W’s life.
The mother is in receipt of Centrelink benefits.
Y attends (omitted) Public School in (omitted) and is in year 3. She has always struggled academically and is at the bottom of her class.
The solicitor for the Independent Children’s Lawyer tendered records from the school which suggested that Y had a lot of absences in 2012 and 2013 but it was apparent from the records that the school marks a child absent if they are late rather than recording this as a late attendance so these records are of little assistance.
The mother has lived in (omitted) for a good part of her life and the maternal grandmother, at least one of the mother’s sisters and one of her brothers all live in (omitted). The children have many cousins in the area ranging in age from young children to adults in their twenties.
Ms P, the mother’s oldest daughter, lives in Brisbane with her three children. Z lives at (omitted) about 30 kilometres from (omitted) and has a son who attends the same school as Y.
The mother was questioned at considerable length about whether she was in (omitted) at present for appearances sake only and really intended to move to (omitted) as soon as the proceedings were finished.
The mother spent time in (omitted) after the father retained the children in (omitted) in February 2012. She took out a twelve month lease on a house and investigated an employment opportunity doing (omitted) work and Y was enrolled at school in (omitted).
The mother insisted during cross-examination that she only went to (omitted) for a few weeks to care for Ms P’s children while Ms P and her husband were on a driving holiday in (omitted). She said that she felt more comfortable caring for the children in (omitted) than in Brisbane.
The mother’s evidence about this whole issue was very unconvincing. The mother is in a poor financial situation and it is difficult to accept that she would have signed a twelve month lease on a house in (omitted) if she merely intended to stay there for a few weeks.
The mother returned to (omitted) in July 2012 and gave up the lease in (omitted) in September 2012. She has not applied to relocate and she denied that she intended to return to (omitted) in the future although the father remains convinced that this will occur.

X and Y’s best interests

Any orders I make about X and Y must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act set out the matters to which I must have regard in order to determine their best interests.
This case commenced prior to 7 June 2012 so the version of s.60CC (2) and (3) which was in force prior to that date applies.
The primary considerations in s.60CC(2) are:
i) The benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii) The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The parents both have their limitations but there can be no doubt that the children will benefit from having a meaningful relationship with both of them.
X does not have a meaningful relationship with the mother at the moment and whether a meaningful relationship between them will ever be restored is open to question. Ordering that X live with the mother rather than the father however would only lead to a further deterioration in the relationship and not to an improvement in it.
Both parents have a meaningful relationship with Y.
If Y continues to live with the mother she will continue to have a meaningful relationship with both her parents. It was the mother’s case however that the father’s attitude toward her and his denigration of her was such that if Y lived with the father her relationship with the mother would rapidly deteriorate and perhaps even be lost. Whether this is true is one of the central issues in this case and I will need to consider it further after making findings about the s.60CC (3) matters.
The mother did not claim that the children were likely to be physically abused or harshly physically disciplined by the father but she did hint in her affidavit at the possibility that Y might be exposed to unacceptable sexual conduct perpetrated by the father.
This was not pursued by the mother’s counsel during final submissions but as it was raised in the mother’s case I consider that I should address it.

The mother said as follows in her affidavit:
I have still some reservations about the welfare of my children as Y had informed me when I collected her from pre-school on 15 May 2008 that; “Daddy sleeps with me without his undies, he plays a game with me, I put my cars up my skirt and daddy gets them out.” I informed the (omitted) police of the above when they picked up the children from home on 19 May 2008. The male officer informed me that; “I will make a report to DOCS.”[8]
[8] Mother’s affidavit paragraph 58.
The mother said that Y had not reported any similar incidents since.
Ms P gave evidence that when she was living with the parties the father took a photograph of her when she was on the toilet. A copy of this alleged photograph was attached to Ms P’s affidavit and it shows Ms P in a small room with her head visible next to a door.
The mother said that Z had told her while the mother and father were living together the father had walked in on her in the bathroom and stood there for several minutes despite Z’s discomfort.
The father vehemently denied any wrongdoing in regard to Y, said that Ms P was lying and that no weight could be placed on the mother’s evidence about what Z had allegedly said because Z did not give evidence despite being available to do so.
I found Ms P a generally satisfactory witness and I have no reason to believe that she made up the story about the father photographing her, but the photo was produced and by itself it would not lead to a finding that Y, or indeed any other person, was likely to be sexually abused or exposed to sexually inappropriate conduct by the father.
I agree that I cannot place weight on what Z allegedly said when Z did not give evidence and it is of concern to me that the mother recycled the 2008 allegation concerning Y.
This allegation was made soon after separation and at a time when the parties were involved in a battle for possession of the children. This alone gives rise to suspicion that the allegation might have been fabricated, and when the consent orders were made in 2010 the mother assured the court that she was satisfied that the allegation of risk of sexual abuse had been satisfactorily dealt with by way of order 2.15 which provided that each of the parents would ensure that the children each had their own bedroom.
I am not satisfied that the father behaved to Y as described and am not satisfied that there is any risk to Y being sexually abused or exposed to sexually inappropriate conduct by the father.
Given the history between the parties (violence perpetrated by both during the relationship, the mother’s assault on the father on 31 March 2008 and the father’s threat to the mother in February 2013) there is a risk of the children being exposed to family violence between the parents in the future. There is an ADVO in place until 28 December 2013 to protect the mother and I intend to make an order for the personal protection of both parties in the longer term.
It was the father’s case that there was an unacceptable risk of the children being abused by the mother. He alleged that X had complained of the mother sitting on him and hitting him around the head and shoulders “with her hands and anything she can get hold of” either during the relationship or during the period shared care was in operation and he particularly referred to the evidence about the incident between the mother and X in February 2012.
X told the father and also Dr R that during a dispute with his mother in February 2012 the mother hit a plate of food he was carrying onto the ground and that he threw food at her. He alleged that the mother threw food back at him before pushing him outside and locking the doors and windows.
X claimed that he was effectively locked outside for two days and survived on chewing gum and coke. He said that he was severely bitten by mosquitoes while sleeping outside on the beer lounge.
X said that as a result of what happened he felt like killing himself and put a coat hanger around his neck, pulling it tighter and tighter until his face went dark purple.
The way the mother described the incident, it was a short lived flare up by X which was easily resolved after X calmed down and did not involve anyone throwing food or hitting plates to the ground. The mother vehemently denied that X had placed a coat hanger around his neck.
It seems highly unlikely that the incident occurred exactly as X described it. The father conceded that when he picked X up two days after the incident X had no marks on his neck at all and Dr R said that if X had done what he claimed with the coat hanger he would inevitably have had marks on his neck.
Dr R considered that X might well have been exaggerating when describing the incident to her in order to achieve a purpose that is to ensure that he continued to live with the father.
If that incident stood on its own I would not be inclined to find that the mother was likely to abuse X or Y, as abuse was then defined in the Family Law Act if they spent unsupervised time with her, although how she handled the incident with X will be relevant in another context.
However the incident does not stand alone. The father pointed to two other matters which he said gave rise to a concern that the mother might behave violently toward children.
First, in 2004 Z, who would have been about 14 or 15, told someone at school that the mother had hit her with a jug cord. Welts were noted on her leg and arm and the school reported the matter to the Department of Community Services. The mother was interviewed but no further action was taken by the Department.
The mother admitted during cross-examination that she had struck Z. She said she only struck her once but there is a real possibility that she minimised what occurred.
Second, in April 2007 the mother was charged with assaulting a 14 year old boy causing actual bodily harm.
The mother left home in anger after being told something by one of her nephews. She went to a place where a group of boys were congregating and assaulted a 14 year old boy. The mother said in her affidavit that at the time she thought that the boy was 18 but why she considered that made a difference escapes me.
The mother said that she slapped the boy but the facts the police put up to the court when the mother pleaded guilty indicated a more serious assault (a punch to the face not a slap) and the mother gave an unconvincing explanation for why she pleaded to the more serious facts if they were untrue.
The incidents with Z and the 14 year old boy both happened prior to 29 June 2010 and the father agreed to a notation being placed on the 2010 orders to the effect that he did not consider that the children were at risk of physical harm from the mother in the future but in the light of this evidence I incline to the view that perhaps the father should have been more cautious before agreeing to this notation.
The mother has long struggled to manage X’s behaviour effectively when he acts out and I consider that there is a risk that the mother might react physically to X in the future if she found his behaviour challenging.
The father nevertheless proposed that X have day visits with the mother in the future and day visits with the father nearby might well be sufficient to contain the risk.
There was no evidence that the mother was likely to physically harm Y at present. There was an allegation that Y had been harmed by the mother throwing a dart which lodged in her foot but I am not satisfied that the mother deliberately harmed Y in this way if indeed the incident occurred at all.
However what happened to Z and the 14 year old boy suggests that the mother has a propensity to lose control and lash out physically and these incidents, together with my general concern about the mother’s credit, suggest that X’s account of the mother hitting a plate of food to the ground and throwing food might have substance. They also lead me to consider that there is a risk of Y being physically harmed by the mother in the future if she becomes confrontational when she gets older.
The mother has not tangled with Y in this way to date. Y is some years from being a teenager and the father did not suggest that Y should be prevented from spending weekend and holiday time with the mother and I am not convinced that there is an unacceptable risk of Y being abused by the mother in the immediate future if she lives with or spends time with the mother.
The father complained about the mother’s alcohol consumption and day to day care of Y but these complaints are better dealt with in the context of considering the mother’s parenting capacity than by trying to assess whether there is any risk of the mother neglecting Y (or X if he spends unsupervised time with her).
The first of the s.60CC(3) considerations is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
The parents were not reliable witnesses and I would not be prepared to place weight on anything they said about the children’s views. I can however place weight on what is contained in Dr R’s report.
X expressed two very clear views to Dr R, namely that he would only live with the father and that Y ought to live with him and the father.
Dr R considered that weight should be placed on X’s views about where he should live as he:
… clearly feels most secure being parented by[the father].[9]
[9] Dr R's Report, page 20 paragraph 3.
Y’s views were less clear and Dr R said as follows:
To an enquiry what you would like to have happen [Y] indicated she would like to live with Dad and spend time with her Mother in the same way she is seeing Dad now.
However she continued to say things which left me feeling confused about what she meant. The situation was no clearer when I attempted to get her to think about how many sleeps she would like each week with Mum. After having to be told there are seven days in a week Y said she wanted six sleeps at Mums. To my questioning look she quickly changed this to three and then two before saying she did not understand what I meant and I probably should ask “X” – he would understand and she would “stick with what he says”.
Later in her report Dr R also said:
Y seems to want to please and was anxious talking about her wishes. I have no doubt she misses her father and brother but would miss her mother and sister if she resided separately from them (as was noted by the Family Consultant Ms C in March 2012).[10]
[10] Dr R's Report, page 20 last paragraph.
Y told Ms R on 18 June 2012 that she:
Tells Mum that she wants to live with her, to make her happy, and tells Dad she wants to live with him to make him happy[11]
[11] Exhibit L
Weight must be accorded to X’s views because of his age, the length of time he has now been living with his father and the difficulties the mother has had in managing his behaviour in recent times. Y is several years younger and her views are somewhat ambivalent. It is relevant to note however that while Y’s preference was less than clear it was clear that if she was ordered to live with her father this outcome would not distress her.
I must have regard to the nature of the relationship of the children with each of their parents and any other persons including any grandparents or other relative of the children.
Dr R did not observe anything of concern in the interaction between the mother and Y or the father and Y on the day she saw the family and neither parent suggested that Y had a poor relationship with the other parent.
X has a good relationship with the father but a very limited relationship with the mother.
The counselling that the parties and children attended with Ms R was followed by some softening of X’s attitude to the mother and in recent times he has talked to her on the telephone occasionally and the father commented that he rang her to thank her for a gift. X sometimes hugs the mother during their brief interactions at McDonalds at the beginning and end of Y’s time with the father, but he has not spent any time alone with her for 12 months.
The father suggested to the mother last year that she come to (omitted) and see X there and attend his football games. X would like it if this happened and Ms R said that she considered it a good idea but the mother has never done it
The mother told Ms R that she could not afford to travel to (omitted) just then but she would see what she could do in the future and see if she could make a weekend of it with her girlfriends. Too much may have been made of this comment, and in her affidavit and during cross-examination the mother said that the issue was that she could not afford to travel to (omitted) even if the father paid for her accommodation because he was unable to assist her with the $150.00 for petrol costs.
The mother has also not availed herself of the opportunity to communicate with X by Skype. She does not have an internet connection and she said during cross-examination that she was uncertain about when she would be able to afford one.
The mother is in receipt of Centrelink benefits. She has been in arrears with her rent at times over the last 12 months and I accept that it would not be easy for her to afford to travel to (omitted) regularly and that affording internet access could be an issue for her.
However while I accept that the mother has financial difficulties and may be discouraged by the way things have played out with X over the last 12 months, her behaviour in failing to take up the suggestion of time in (omitted) even once and failing to make an effort to have some Skype communication with X, perhaps by going to the home of somebody else who has the internet connected, must be suggesting to X that the mother does not have a strong desire to reconnect with him.
Absent the period from June 2012 to the present time, X and Y have always lived together and they took part jointly in interviews with Family Consultants in 2009 and 2010. It was common ground that they had a close sibling relationship.
Y also has a close relationship with her younger sister W who is 3. The mother gave evidence which illustrated this and Dr R observed Y to have a good relationship with W.
No mention was made of X having a relationship with W.
Y has a good relationship with Ms P and Z and Ms P has shown a keen interest in maintaining a connection with X.
I must consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
There was no evidence that the mother lacked this willingness and ability. She has never breached court orders concerning the children spending time with the father and there was no evidence that she persistently or pervasively denigrated the father in the presence or hearing of the children. She admitted calling him “fat” on one or two occasions but the evidence suggested that these were isolated insults which escaped the mother at a time of stress.
I do not accept that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother.
The father vilely denigrated the mother to the children after separation. In her report dated 12 January 2009 Ms T said as follows:
X reported being upset when his father “blames Mum all the time” and when his father spoke badly of his mother. He gave as examples, “Dad said Mum just has to grow up and that she drinks too much alcohol but Dad does too and Dad says Mum’s got another new boyfriend and that she has a lot of boyfriends but I only know (omitted).”[12]
[12] Ms T's Report, pages 3 & 4.
Ms T also said as follows:
X’s concerns were reported as “being picked on at school” on occasions either about his weight or in regard to his mother. X appeared very sad when he reported that some of the older boys at school call his mother a “slut” and the “h word” (clarified as meaning “whore.”)
The father’s counsel submitted that there was no direct evidence that the father had made comments in the (omitted) community about the mother in the terms relayed to X at school but I consider that it can reasonably be inferred that he did. It would be an incredible coincidence if the father was saying these things in private and other unrelated individuals were making similar comments in the community.
In the Family Report released in May 2010 Ms C said as follows:
Y reported that the father has previously referred to the mother as a “slut” and “bitch”. X confirmed this and that people were teasing the mother at the behest of the father (note previous comments by X in the Children and Parents Issues Assessment that children at school referred to the mother as a whore and a slut). X stated that he asked the father to “stop doing it” and inquired of the father as to how he would feel if he was the subject of the behaviour.[13]
[13] Ms C's Report, paragraph 32.
The father told Ms C that he had long stopped denigrating the mother and he insisted during cross-examination that he had ceased doing so after seeing a movie at the Family Court very early in the proceedings about the damage such denigration did to children. There is ample evidence however that this is simply not true and that the father has never stopped denigrating the mother.
The mother said that the children had told her in the not too distant past that “Daddy said she was the town bike” and that X had called her a “slut” and a “bitch” which were the same words that the father used.
In her Memorandum to the Court dated 5 March 2012 Ms C said as follows:
….it is of concern that the father has not historically supported the children’s relationship with the mother as is evidenced by his failure to provide time for the children with the mother in the interim …(particularly for Y (sic)), his past denigration of the mother and Y’s statement that this continues to occur “he calls her the town bike, do you know what that is?” She said that he says that directly to them.[14]
[14] Ms C’s memorandum to the court page 3 paragraph 4
X recycled some of the allegations the father had historically made about the mother to Dr R in August 2012 and Y said things about the mother to Dr R which she either stated she had been told about by the father or which mimicked the father’s claims about the mother.[15]
[15] Dr R’s report, page 8 paragraph 1.
I cannot accept that if the father had said nothing denigratory to the children about the mother since early 2009, the children would have recycled the old abusive words to Ms C and Dr R in 2012.
The father’s dismissive attitude to the mother runs deep. He still believes that she is violent and has an alcohol problem and in paragraphs 39 to 47 of his trial affidavit he recycled all the old allegations about her going out partying and bringing various men home.
I am not convinced that the father can be trusted to present a positive or even a neutral picture of the mother to the children in the future let alone refrain from denigrating her and he does not have a history of ensuring that the children uneventfully spend time with the mother.
The father made absolutely no effort to arrange for the children to spend time with the mother in the four months between May and September 2008.
After the father unilaterally relocated to (omitted) in February 2012 Y did not spend time with the mother until the father was ordered to facilitate it after the mother’s application in a case came before the court.
I consider that the following observation by Dr R is the best that could be said for the father:
Provided the children, especially X, are willing to see their mother and not reporting negative incidents with her, Mr Lamb is likely to facilitate them spending time with her if he has an order for their residency.[16]
[16] Dr R’s report, page 21 second last paragraph.
There is a considerable risk that the father, who has an entirely negative view of the mother, may too readily believe any complaints by the children about the mother and not stop to ask himself whether the children are trying to please him and bond with him or are giving him an exaggerated version of events to gain sympathy as children sometimes do.

There is a considerable risk that if Y is placed with the father her time with her mother will not occur smoothly and uneventfully.
I must next consider the likely effect of any change in the children’s circumstances including the likely effect of any separation from a parent, any other child, or other person with whom he or she has been living.
A change of residence for X would have entirely negative consequences.
X has lived with the father since February 2012 and the father has provided him with a good level of day to day care. He is playing football which he enjoys, is involved in other sporting activities through his school and has a strong wish to remain with the father in (omitted). He has unhappy memories of the (omitted) community and his school life there.
X would rebel if required to live with the mother again and as Dr R correctly observed, the mother has shown no capacity to de-escalate conflict with X in the past.
If X remains with the father, his poor and inaccurate view of the mother will remain uncorrected and he may never have a close relationship with her, but ordering him to live with the mother would not achieve the desired outcome of restoring their relationship either.
To her credit the mother at the end of the hearing recognised the reality of X’s situation and the issue then became one of whether there should be a change of residence for Y.
The father proposed that this occur and Y would not be opposed to it. She has a good relationship with the father and with X and while she would miss her mother she might well adapt to this change.
The father said that it would be a beneficial change because it would remove Y from a situation in which she was receiving substandard day to day care and where her education was being neglected and place her in a situation where she would receive good day to day care and where attention would be paid to her education.
I will assess the father’s claims about the relative ability of each parent to provide day to day care later on but there is some merit in the father’s claim that he is the parent who is more likely to attend to Y’s educational needs.
X and Y have both struggled academically all their life. It is not possible to be sure of the reason for this; Ms C suggested that the turbulent pre and post separation relationship of the parents might be part of it and X hearing his mother denigrated at school would not have helped. The parents both historically neglected the children’s homework and some of the problem could lie in the innate abilities of the children.
Neither parent did much if anything to help the children while the week about arrangement was in place, and the father’s decision to subject the children to a nine or ten hour round trip each alternate weekend, together with his personal dissatisfaction about living in (omitted) may well have been an unsettling factor for the children.
However since the father has got his way about living in (omitted) he has been attending well to X’s educational needs and he said that he would do the same for Y if she came to live with him.
It is impossible to be sure about what the father will do once he is no longer under the eye of the court, but he has at least made an effort for X while under that eye. There was no evidence that the mother had done anything similar in regard to Y and Y’s situation at school now is no better than it has been in the past. She continues to struggle along at the bottom of her class without being the focus of any targeted interventions or any special effort by the mother.
Y needs someone to take a close interest in her education and I have greater faith that the father will do that in the future.
A change of residence for Y would mean that she would spend more frequent time with X, but this has both its pluses and minuses.
The pluses are that it would reunite the siblings and both siblings would be happy about that but a significant minus is that X has a poor attitude to the mother. He repeated vile allegations about her to Dr R, and Ms R reported that during one of the children’s sessions with her Y became distressed because X kept making negative comments about the mother. Ms R reported that one of the things that Y said she wanted to happen in the future was that:
X not say anything bad [to her] about their mother[17]
[17] Exhibit L
It is possible that with time and distance X’s negative attitude toward the mother could influence Y against the mother because Y defers to X. Dr R said as follows about what occurred during her interview with Y:
After having to be told that there were seven days in a week, Y said she wanted “six” sleeps at Mum’s. To my questioning look, she quickly changed this to “three” and then “two” before saying she did not understand what I meant and I probably should ask “X” – he would understand and she would “stick with what he says.” [18]
[18] Dr R’s report page 5 paragraph 4
It concerns me that X might influence Y against the mother if he becomes personally upset with the mother and that he may, like the father and because he has a not dissimilar attitude to the mother, too readily place credence on things Y says about the mother which are not entirely true and are said only to please her father and brother.
Another detriment of a change of residence for Y is that the father conspicuously lacks the willingness and ability to facilitate and encourage a close and continuing relationship between Y and the mother and he could subtly or overtly influence Y against the mother or stop time on some inadequate ground.
Another detriment is that Y’s relationship with her sister W will be different and less close in the future.
Ms P and Z are adults with children of their own and neither lives in the same town as Y. Y would be able to maintain a not dissimilar relationship with these siblings whether she lived in (omitted) with the father or in (omitted) with the mother.
I must have regard to the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parents live over 350 kilometres and at least 4 ½ hours driving distance apart and the distance and the cost of travel are relevant issues.
The cost is an issue because the mother is on Centrelink benefits and can ill afford the cost of travel between the two locations. The father has been bearing most of the cost of travel to date. He maintained that in January 2013 he earned little although he did nothing to make his overall financial position clear.
The distance is an issue because it is open to question whether it is desirable for the children to be doing this much travelling each alternate week, and there is a safety issue. Dr R said as follows:
[X] described how when Dad is driving with the children he watches and checks if Dad is awake – he massages his shoulders, gives him water or turns on the radio.[19]
[19] Dr R’s report, page 8 second last paragraph.
These issues will simply have to be taken into account when drafting orders however because I cannot do anything about the fact that the parents live so far apart.
There was no suggestion that either parent should consider moving closer to the other. The father has lived in (omitted) since 2009 and his business is based there. It would not be feasible for him to move back to (omitted). The mother has never lived in (omitted) and has no connection with that place. Her older daughters and almost all her family members live either in or near (omitted) or in south east Queensland and it is natural that she would not want to move further away from them and to a place where she knows no-one.
I must have regard to capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.
No issue was taken with the father’s current capacity to provide for the children’s day to day needs or their educational needs, but he has a stunted capacity to provide for their emotional needs.
The father made no arrangements for the mother to see the children between May 2008 and September 2008 and this caused distress and confusion for the children. Ms T said as follows in January 2009:
Both X and Y reported missing their mother significantly when they first left her care with Y crying sometimes.
The father has never acknowledged that the children missed their mother indeed Ms C reported the father as telling her that the children were ‘bonzer’ and happy and like normal kids again during the period when they did not see their mother.[20]
[20] Ms C’s 2010 Family Report paragraph 10
The father vilely denigrated the mother to the children after separation. He said that he stopped doing so in early 2009 but I do not accept this.
The father displayed no insight into the children’s emotional needs when he consented to the final orders on 29 June 2010 knowing that his residence in (omitted) rather than (omitted) would make the week about arrangement problematic.
The father showed no capacity to provide for the children’s emotional needs when he rang the police to complain when they were not made available for telephone communication during the mother’s week with them, resulting in the police going around to the mother’s home to do a welfare check.
The father twice unilaterally relocated the children in circumstances where the only ends served were his own and by removing X from (omitted) in February 2012, he arguably made it more difficult for X to recover a relationship with his mother.
Dr R expressed the view during cross-examination that of the two parents it was the father who seemed to her to have grown up a little bit and to have developed some capacity to reflect on the past and see that he had not always behaved in a child focussed fashion. There are glimmers of this in Ms R’s notes but they are at best faint glimmers.
There are no such glimmers in the father’s affidavit and in February 2013 he lost control and threatened the mother during an argument over the filling of a prescription for Y. This was not the behaviour of someone who has grown up and can be relied on to behave in a child focused fashion in the future.
Dr R considered it essential that the father attend regular parenting counselling for the next two years. The father said in his 18 February 2013 affidavit that he had attended appointments with Mr M on 11 & 18 February 2013 in order to assist him with his parenting skills and that his next appointment was on 4 March 2013. He said that he would continue seeing Mr M every Monday for the next two years.
It was the father’s case that the mother lacked the capacity to provide for the children’s day to day needs, intellectual needs and emotional needs.
I will touch only briefly on the issue of the mother’s capacity to parent X because the mother conceded in the end that she would not press for an order that X return to her care.
For some time prior to the father retaining X, the mother sometimes found him difficult to manage. She said during cross-examination that X had a blow up about once a month and that he would refuse to do chores, get into a rage, go into his room and slam the door. She said that she sometimes had to physically restrain him when he was in a rage.
Dr R considered it likely that X had embellished what happened in February 2012 but she commented that what stood out to her was the mother’s inability to de-escalate conflict with X.
There was no evidence that any similar issues ever existed or exist now in relation to Y.
The father alleged that the mother failed to properly provide for Y’s day to day needs.
He complained first of all that she sometimes sent Y to him with dreadlocks and head lice, but this was not explored during cross-examination and I do not accept that the mother has neglected Y’s care in this way.
The father complained about the mother’s attention to Y’s dental needs as a result of the state of one of her teeth in February 2012 but the mother’s counsel tendered records from (omitted) Health which confirmed that Y had received dental treatment on a number of occasions between 2008 and 2010 and that both parents took her on different occasions.
On 20 October 2008 the dentist discussed Y’s diet with the father and there is reference to her drinking sweet drinks frequently. On 7 November 2008 it was recommended that Y take fluoride tablets. On 22 May 2009 the mother took Y to the dentist and received certain advice. At the mother’s request the dentist rang the father to discuss the situation.[21]
[21] Exhibit K
There was no evidence that the problems with Y’s teeth stemmed from neglect by the mother during the last twelve months and in any event the father had been seeing Y every weekend and for half of the school holidays since June 2012. He obviously did not notice anything amiss with her teeth either until the weekend just before the hearing, and the parents both struck the same problem with dental treatment in February 2013 – Y was so agitated that the dentist would not proceed with the extraction under a local anaesthetic.
The mother said during cross-examination that Y had been placed on a waiting list at the local hospital and that it might be a year before the procedure could be carried out.
The father claimed that the mother neglected Y’s educational needs by allowing her to miss too much school. The mother denied this and the records from (omitted) Public School do not assist me to determine whether there has been a pervasive problem with Y’s attendance at school recently.
It is fair to say however that the mother has not made the same effort with Y’s education in the last twelve months as the father has made with X’s.
The father has consistently claimed that the mother drinks alcohol to an extent which leads her to neglect the children and expose them to unsavoury behaviour. He claimed that since separation the children had been exposed to sexually inappropriate behaviour by the mother and by men visiting her home and he alleged that alcohol caused the mother to lose control and lash out (at the 14 year old and at the father on 31 March 2008 - the father alleged that the mother had been drinking prior to both those events).
The father has been making allegations about the mother’s alcohol consumption since 2008 and Ms T, Ms C and Dr R all commented that it was difficult to get to the bottom of whether the mother’s drinking was an issue of concern.
It is similarly difficult for me.
The father was not a reliable witness and I cannot place weight on his allegations about the mother’s alcohol consumption.
As time has passed the children have started saying that the mother drinks too much but that was not always what they said.
In January 2009 Ms T reported X as saying in January 2009 that:
Dad said Mum just has to grow up and that she drinks too much alcohol but Dad does too.
Ms C said as follows in her May 2010 Family Report:
X said that he didn’t like alcohol because “too much of it makes you go crazy, disasters happen and the cops might get you”. He was asked who he knows who drinks alcohol and he stated “dad has two each year, mum she just drinks alcohol when she’s stressed”. He said that he doesn’t notice a change in the mother’s behaviour when she drinks alcohol. He was asked whether the mother or the father had ever “gone crazy, with disasters happening” and he stated “nah, it hasn’t happened”.[22]
[22] Ms C’s report, paragraph 42.
In 2012 the children told Dr R that the mother drank too much and they said the same to Ms R.
The mother has never denied that she drinks alcohol on occasions but has consistently denied that she has an alcohol problem. She said that because the issue of her alcohol consumption had been raised so often in the past she consulted a drug and alcohol counsellor in 2012. She said that she had been told that she did not have a problem, although she provided no documentary corroboration of this.
There were no independent indicia to suggest that the mother had an alcohol problem.
The mother has never been arrested for drink driving and there was no suggestion in police reports of the police being suspicious that she had been drinking when they attended at any incidents involving her. In one police report there is a reference to the mother seeming disoriented but there is also a mention of the fact that she did not seem to have been consuming alcohol and there was no allegation anywhere in the material that the mother used drugs.
Some evidence touching on the mother’s alcohol consumption does raise a concern.
First, the mother gave conflicting evidence on the topic of how much and how often she drank. She said in her affidavit that she very rarely consumed alcohol and usually only when she attended birthday or Christmas parties or occasionally when out with the girls but never to excess. On other occasions however she has said that she drinks beer or spirits regularly each week.
Second, the mother sought to create the impression in her affidavit that she did not usually drink at home but during cross-examination she agreed that a man called (omitted) regularly visited her home and drank and that she had a drink with him.
Third, the mother was cross-examined about the entries in some bank statements produced in answer to subpoena which suggested that she had spent more money at liquor outlets and hotels than was consistent with evidence she gave about her drinking. I have to be cautious of course about the conclusions I draw from this. People can make cash withdrawals with purchases which are not always separately identified on bank statements and it also does not follow that all of the alcohol purchased was consumed by the one person.
Fourth, Ms P was asked about the mother’s alcohol consumption and she denied that the mother drank too much but this was the one time I found Ms P a less than satisfactory witness. She turned her head away when answering questions on this topic, in contrast to the forthright and confident manner in which she answered other questions.
However it is all suspicion and conjecture and I cannot do any better than Ms T, Ms C and Dr R with the issue.
I have the father’s allegations, but he was not a reliable witness; I have comments made by the children, but the risk of contamination as a result of hearing their father’s views is too high to allow me to place weight on them.
I have the mother’s denials and some variable evidence about the extent of her alcohol consumption and the places she drinks which raises a suspicion but not the extent of my being able to find that the mother has a drinking problem, and there were no external indicia that the mother’s alcohol consumption had got her into trouble.
The mother, like the father, has a very limited capacity to provide for the children’s emotional needs and she lacks insight into the needs of the children.
The mother opposed X attending (omitted) in (omitted) in 2012 when the school suggested it, indeed according to Ms R she became somewhat angry over this issue. Ms R said as follows:
Ms Hancock stated she does not believe that X needs to attend (omitted) as she does not believe he has a problem with his confidence and social skills. She stated that she believed Y has far more problems with confidence and social skills. This statement is in contradiction to my own observations of X & Y.[23]
[23] Exhibit L
It is difficult to understand why the mother was so opposed to X attending a short residential program which had been recommended by his school and which he was keen to attend.
The mother has made no effort to go the extra mile with X since he relocated to (omitted) by visiting him there and it needs to be kept carefully in mind that X is the child and the mother the adult. I also find her failure to make any effort to have Skype communication with him inexplicable.
After Dr R’s report was released in November 2012 the mother was distressed by the recommendation that X and Y both live with the father and she not only made no effort to hide her distress from Y, she acted in a way which placed a great burden on the child.

The mother’s counsel also said that it was still the mother’s case that the court should make an order for equal shared parental responsibility. He said that X was currently largely estranged from the mother and submitted that for the mother not to have parental responsibility for X would seal the estrangement in a psychological sense. He said that the mother was still keen to have an involvement in X’s life.
The mother’s counsel endorsed the comments by the solicitor for the Independent Children’s Lawyer that there was reason to hope that once the litigation ended the parties would behave better to each other and their communication would improve.
I am unconvinced however that a blanket order for equal shared parental responsibility would be in the children’s best interests.
As I pointed out to the father’s counsel during submissions if I cannot be satisfied that this order would be in the children’s best interests then I should not make it despite the parents agreement and this is particularly so in a case where the parents have previously agreed to quite unsuitable orders.
There are numerous examples of the parties being unable to cooperate effectively when decisions have been required about the children.
In 2010 the father had X assessed by a paediatrician (without attempting to involve the mother prior) and X was prescribed medication. When the father told the mother about it she refused to administer the medication. The mother said that she did not accept the diagnosis or that medication was necessary.
What matters is not whether the actions of either parent were right or wrong but that the parents were unable to cooperate effectively for X’s benefit and the possibility that he might have a medical issue was never properly investigated.
The mother complained bitterly, and rightly so, about the two occasions on which the father unilaterally relocated, but she failed to consult the father before enrolling Y in school in (omitted) and she has shown no greater capacity than the father to involve the other parent before making major long term decisions.
Another concerning piece of evidence related to the issue of X attending (omitted). X’s school recommended it and it was raised with the mother by Ms R. The mother expressed suspicion about the proposal and anger that she had not been consulted earlier. It was suggested she make some inquiries about (omitted) but she did not do so and remained opposed to X attending.
X went to (omitted) regardless but this is yet another example of the parties being unable to productively discuss matters and there is always the risk in this scenario that if no agreement can be reached that nothing will be done.
A flare up occurred recently over Y’s dental treatment. The father’s attempt to discuss the issue with the mother ended with the father feeling frustrated and upset about what he considered was the mother’s lack of responsiveness to Y’s needs and threatening the mother and the mother making a complaint to police.
A further issue of concern is that X no longer has a meaningful relationship with the mother and she does not have the knowledge of him which would assist her to make good long term decisions for him.
In respect of X, I consider that it would be in X’s best interests that the father have sole parental responsibility for decisions concerning his education and medical and dental treatment. This will ensure that these essential matters are not held up by the parents’ lack of agreement or alternatively that the parents do not come into conflict trying to discuss options.
However I am not enthusiastic about the idea of giving the father unfettered sole parental responsibility in light of his propensity for breaching court orders and his poor attitude to the mother and also because I am conscious of the fact that the mother is not an uninterested parent. I therefore intend to order that the parents otherwise have equal shared parental responsibility for X.
It will be necessary to make a similar order in regard to Y, with the parent with whom she is to live having sole parental responsibility for decisions concerning her education and medical and dental treatment.

Dr R’s recommendations

Dr R was critical of both parents. She made the following comments about the father:
In general, Mr Lamb is currently parenting X well, having provided good stability and full time care for this year. He is protective of his children being harmed by others but, psychologically unsophisticated and unreflective, did not seem overly aware or concerned about how his negative comments about the children’s mother would be harming for them, undermining their relationship with her, as have his two moves away from (omitted) with them.
His separation of the children from their mother in both 2010 and 2012 deserves the critical responses documented by F.M. Terry in her June Interim Judgement and in the Family Consultants two reports. I have no doubt Mr Lamb’s move to (omitted) was motivated by self interest, without prioritising the children’s relationship with their mother. I am concerned he has misquoted counsellors, saying they advise him to take the steps he does.[26]
[26] Dr R's Report, page 21.
Dr R said as follows about the mother:
Of concern in Ms Lamb’s parenting are:
i) X and Y’s reports their mother has been inappropriate with them
ii)The DHS file on Z
iii) Ms Hancock expressed concerns to police in 2008 the father could molest the children without apparently being protective of them in her own home, should the allegations of alcohol excess and disinhibited men visiting the home have veracity
iv) Her relocation to (omitted) this year with Y: I am not convinced she has completely settled back in (omitted)
v) Her failure to form stable relationships before having children with four different men
vi) Her minimisation of difficulties with her son, indicating lack of insight into her problems with him
vii) Her allegations of significant abuse by Mr Lamb without gaining any psychological assistance for herself: such an abuse history can be detrimental to a person’s parenting.[27]
[27] Dr R's Report, page 22.
Dr R went on to say as follows:
If the children reside with their mother, it is highly likely the disruptive, distressing events of the past four years will continue, resulting in the children’s development being further compromised. Of course, being separated from her will also adversely impact on their emotional development.[28]
[28] Dr R's Report, page 21.
Dr R’s opinion, and I agree whole heartedly with this, was that X would not settle back in (omitted). She recommended that X continue to live with the father and she went on to say as follows:
As I do not believe it is in Y’s interest to be separate from X, I recommend both children live with Mr Lamb provided
i) The allegations of sexual, physical and psychological violence by him to their mother are not substantiated
ii) Mr Lamb continues to obtain regular parenting counselling from Mr M for at least the next two years
iii) Mr Lamb ensures the children spend time with their mother fortnightly while she lives in (omitted) and every holidays if she relocates to (omitted)[29]
[29] Dr R's Report, page 23.
Dr R was asked during cross examination about the issue of sibling separation and about why the relationship between X and Y should be prioritised over the relationship Y had with her younger sister W and her older siblings.
Dr R said that it was relevant that X and Y were relatively close in age, had a common parent and had a long shared history of living together in the same household. She considered that on balance it was more important to maintain this shared history between X and Y than it was for Y to continue to live in the same household as W and in a situation where she might have more frequent contact with her adult siblings.
Dr R was very much attuned to the issue of the damage which could be done to Y’s relationship with the mother as a result of exposure to the father’s beliefs about the mother and his denigration of the mother. It was for this reason that she recommended that if the children lived with the father he continued to attend parenting counselling.
Dr R commented during cross examination, and this was echoed somewhat in her report, that neither parent shone in the parenting stakes and that the court needed to give preference to the parent who could better alleviate the harm done to the children by the family up until now.

Conclusion

For the reasons given earlier I am unconvinced, despite the parents both wanting it, that an unqualified order for equal shared parental responsibility would be in the children’s best interests. I do not intend to make one and I am not therefore required to follow the path through s.65DAA of the Family Law Act and consider whether the children spending equal time or substantial and significant time with each parent is in their best interests and reasonably practicable.
Even if I was required to consider those options, I would readily find that neither was reasonably practicable. The parents live nearly five hours driving distance apart and each has good reason for being in their current location.
A decision must be made about where the children should primarily live and in respect of X that decision is easy. X would not tolerate a return to the mother’s care and it would be wholly destructive for him if I ordered that this occur.
At the end of the hearing the mother, to her credit, agreed that there was no alternative but for X to remain with the father.
The issue then is whether Y should remain with the mother or commence living with the father and X in (omitted).
Dr R said that findings about the family violence might have a bearing on the outcome but the findings I have been able to make about this issue do not assist me. While I am satisfied that the father committed some acts of family violence and minimised his responsibility for the fighting and dysfunction that occurred in the family prior to separation, I cannot find that he committed the serious acts of violence the mother alleged or that the mother was nothing but a victim and was not also a perpetrator..
Dr R supported Y living with the father in (omitted) if findings about this issue did not tell against it and there are things to be said in favour of this outcome.
First, there is a greater chance that something will be done about Y’s education if she lives with the father.
It is clear from all the material that for whatever reason, whether their innate abilities or exposure to parental conflict both before and after separation or for some other reason, both children have struggled at school over the last five years.
While both parents lived in (omitted) neither did anything to help the children; neither properly attended to their homework and apart from one isolated instance where the father took X to a doctor, neither arranged for the children to be assessed or to have any remedial assistance.
However since X has been living with the father in (omitted), in other words since the father has got his way about where he lives, the father has been making a real effort to do something about X’s difficulties.
During the same period, even though under the eye of the court, the mother has not made any effort in (omitted) to do anything proactive for Y.
Second, Y will be reunited with X, whereas if she remains with the mother she will spend limited time with him for the remainder of her childhood and adolescence.
Third, Y is certainly not opposed to living with her brother and father and would very likely adapt to the change.
My concern about making this change however is that it may mean that one of the primary considerations, that of Y having a meaningful relationship with both of her parents, is not met and that Y’s relationship with her mother is lost.
History is against the father as a person who shows by his actions that he values the other parent. After separation he retained the children in his care for four months without facilitating them seeing the mother and seemed to regard it as a little moment whether they spent time with the mother or not, which was reprehensible given the fact that up till that point the mother had been their primary carer. The father has never shown any recognition of the emotional harm this inflicted on the children.
The father seriously harmed the children by exposing them to vile abuse of the mother after separation. X was teased at school as a result of his mother being called names, something for which I consider the father must accept responsibility.
The father’s behaviour has slowly but surely affected the children’s attitude to the mother. It is possible, as the mother’s counsel submitted, to chart a progression through the various reports from where X was originally quite protective of the mother and critical of the father for his verbal abuse of her to the point where X now echoes his father’s criticisms of the mother.
The father said that he had learned that making vile comments about the mother to the children was wrong and that he had stopped doing it as early as 2009 but I do not accept this and his attitude toward the mother and his beliefs about her have not changed. He repeated all the old allegations about her to Dr R and in his trial affidavit.
The father still cannot resist the odd snipe at the mother, and an example is contained in his affidavit filed on 18 February 2013 where he made reference to the mother’s failure to come to (omitted) to see X and added the comment that she had passed up a free holiday in (omitted).[30]
[30] Father’s affidavit filed 18 February 2013 paragraph 10
The father’s attitude to the mother has resulted in him being only too willing over the years to accept anything negative the children say to him about her as the truth, without ever pausing to reflect on whether the children might be exaggerating in order to bond with him or might be saying things which are untrue because they know it will please him. He also has a propensity to hear what he wants to hear from experts, to refer only to the parts of their reports which favour his position and align with his beliefs and even to misread reports.
The father has shown absolutely no compunction in the past about breaching court orders to try to obtain his own ends.
I am also concerned about the message which will be sent to the children if the father prevails in these proceedings.
The father has got his own way about living in (omitted) with X without ever openly admitting his wish to do so and allowing a court to make a determination about whether this was in X’s best interests. He has prevailed by denigrating the mother to the point where the children’s relationship with her has been eroded, keeping the children from her and breaching court orders.
The message this may send to the children is that the father is more powerful than the mother and that bad behaviour if persisted in long enough will ultimately be rewarded.
In addition, as the mother’s counsel eloquently put it, if all the power is put in the hands of the most powerful person being a person who does not value the mother, there is a considerable risk that time between the mother and the children will dwindle away.
This is a most difficult and finely balanced matter. I remain deeply concerned that the attitude of both the father and X to the mother will infect Y and damage her relationship with the mother and I am deeply concerned that the father may not comply with court orders about time. I do however intend to order that Y lives with the father in (omitted).
I have some misgivings about Y’s future with the mother given the assaults the mother committed on Z, the 14 year old boy and the father at separation, and given her demonstrated lack of insight into the needs of the children and there are advantages for Y in terms of her education and her relationship with her brother if the change occurs.
Finally, Dr R, who provided a thorough and insightful report and who was alive to the all the problems in the case and to the deficiencies of the father as well as the mother, recommended this outcome and I must give her expert opinion weight.
I do not do make this decision with any pleasure and it prioritises Y’s relation with X over her relationship with W but Dr R gave cogent reasons why this was appropriate.
It follows that I must make an order that the father have sole parental responsibility for decisions concerning Y’s education and her medical and dental treatment as well as X’s.
I can only hope that if there is a breach of any of the orders concerning Y spending time or communicating with the mother that the mother acts promptly to bring a contravention application. She does not need to be legally represented to do this. If she acts promptly the court will be able to do something but if she fails to act promptly her relationship with Y could be under threat.
I then need to consider the orders to be made about Y’s time with the mother.
Both parents proposed that in this eventuality Y should spend each alternate weekend with the mother. The father proposed that this should occur by means of him bringing Y to (omitted) once per month and the mother coming to (omitted) once per month during X’s football season and that from October to March Y and X spend time with the mother each alternate weekend in (omitted). In respect of X however the time would be during the day only. The father would have to stay in (omitted) so that this time could occur.
The mother proposed that Y should be brought to (omitted) once per fortnight.
I have concerns about ordering that Y and X spend time with the mother each alternate weekend in (omitted). If it interferes with X’s football he might well resist coming, and the travel time between (omitted) and (omitted) is close on five hours each way.
This is a huge travelling burden to place on children once per fortnight. The mother has no capacity to contribute to the costs of travel and while the father did not make his financial position very clear and it is almost certainly much better than the mother’s, he will not be receiving any assistance from the mother to financially support the children.
Dr R recommended that the children spend time with the mother fortnightly but she did not outright stipulate that this always had to be in (omitted).
However if I order that Y spend time with the mother in (omitted) once per month and in (omitted) once per month, which alleviates the cost and burden of travel, the mother may well not go to (omitted) and the time may only occur once per month.
I do consider however that balancing all the competing considerations I cannot make any other order at least for part of each year.
I intend to order different arrangements during Term 1 and 4 and Term 2 and 3 respectively. This will allow both children reasonable freedom to engage in a winter sport and make the travelling burden for them less for 2 terms out of 4. It is not a perfect solution and the parents are free to change it if they can agree on a change but if they cannot, the orders will need to be complied with.
The father proposed that changeover occur at (omitted) to cut down the driving for him and place some of the burden on the mother but I intend to order that the father deliver the children to and collect them from (omitted) when the time is once every four weeks and in (omitted) when it is once a fortnight, as the father will have to stay in (omitted) anyway.
In Terms 2 and 3 he will only need to do this once a month. In Terms 1 & 4 he will need to do it once a fortnight but in those terms he will need to stay in (omitted) so that X can spend the night with him.
Dr R supported an order that the father do the bulk of the driving to (omitted) and pointed out that it was the father who had relocated and that he needed to make an extra effort to make sure that the children spent time regularly with the mother.

I intend to make orders about X spending time with the mother as the father proposed. It is a huge leap forward for X’s time with the mother but as the father proposed it and therefore presumably will promote it to X, I will make those orders.
I intend to order that the father not relocate the children’s place of residence from (omitted) without either an order of the court or the agreement of the mother. He would be prevented from doing so by the default order for equal shared parental responsibility but it needs to be clearly spelled out.
The mother insisted that she did not intend to move to (omitted) and I cannot in those circumstances make orders to cover that eventuality nor is it appropriate that I make an order restraining her from doing so when the children will not be primarily residing with her.
If the mother does move to (omitted) or to any place further away from (omitted) than (omitted) the children will only be able to spend time with her during school holidays and the parties may need to negotiate and agree on an alternative changeover location and time for the mother to spend with X.
Dr R said that her recommendation that the children live with the father was conditional on him continuing regular parenting counselling with Mr M for at least two years. The father said that he had commenced seeing Mr M and would continue doing so for two years.
I intend to include a notation on the orders in respect of this so that if the matter comes back before the court for any reason, the father’s adherence to his promise can be investigated.
For all of the above reasons the orders of the court are as set out at the beginning of this judgment.

I certify that the preceding three-hundred and ninety-eight (398) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 15 August 2013

[2013] FCCA 726

15 August 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies