Longer and Longer
[2013] FMCAfam 257
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LONGER & LONGER | [2013] FMCAfam 257 |
| FAMILY LAW – Parenting – children aged 6 and 4 – where the mother unilaterally relocated from [M] to Newcastle with the children after separation more than two years ago – where the father has remained in the [M] area – where each parent refuses to consider moving closer to the other parent – whether the mother should be required to re-establish the children’s residence in [M] – whether the children should live primarily with the mother or in a week about arrangement – whether if the children live with the mother in Newcastle the father should be able to spend overnight time with them and take them to [M] – where the mother contends that the father is a coercive and controlling man who fails to supervise the children properly, has no empathy with them and may pose a risk to their safety – where the father is critical of the mother’s day to day care of the children and would rather give the mother bags of healthy groceries than pay child support. |
| Family Law Act 1975 (Cth),ss.60CC, 61DA, 65DAC |
| Collu & Rinaldo [2010] FamCAFC 53 Gravis & Major [2010] FamCAFC 239 Mazorski & Albright (2007) 37 Fam LR 518 Sampson & Hartnett (No.10) (2007) 38 FamLR 15 |
| Applicant: | MS LONGER |
| Respondent: | MR LONGER |
| File Number: | NCC 731 of 2011 |
| Judgment of: | Terry FM |
| Hearing dates: | 9 & 10 February 2012, 7 & 8 June 2012 and 24 July 2012 & 27 February 2013 |
| Date of Last Submission: | 27 February 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 02 April 2013 |
REPRESENTATION
| Counsel for the Applicant (Direct Brief) | Mr Boyd |
| The Respondent: | In Person |
ORDERS
Subject to order (2) the mother shall have sole parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2008.
The mother is not permitted to:
(i)change the children’s names;
(ii)relocate the children’s place of residence to a place at a greater distance from the father’s residence than they are living at present;
(iii)travel internationally with the children
without the written consent of the father or an order of the court.
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)During school terms:
(i)on the last weekend of each month from 9.00am on Saturday until 4.00pm on Sunday until the commencement of Term 4 2013 and thereafter from 5.30pm on Friday until 4.00pm on Sunday save that the father may at his election (to be notified to the mother by email not less than 72 hours prior to the commencement of time on the last weekend in August) forgo time with the children on the last weekend in August each year and spend time with the children on the Father’s Day weekend in September.
(ii)from 10.00am until 5.00pm on the second Sunday of each month PROVIDED THAT the father has given the mother at least 72 hours notice by email of his intention to exercise this time and that the time takes place in the Newcastle area.
(b)During school holidays:
(i)for five consecutive days in the Term 3 school holidays in 2013 from 9.00am on the first Saturday of the holidays until 4.00pm on the first Wednesday of the holidays.
(ii)for two five day blocks in the Christmas school holidays which commence in 2013 on dates to be agreed between the parties and failing agreement from 9.00am on the first Saturday of the holidays to 4.00pm on the following Wednesday and from 9.00am on 4 January 2014 to 4.00pm on 8 January 2014.
(iii)for one half of the Term 1, 2 and 3 school holidays each year commencing with the Term 1 school holidays in 2014 being the second half in odd numbered years and the first half in even numbered years.
(iv)for two non-consecutive one week blocks in the Christmas school holidays commencing in 2014 and unless otherwise agreed between the parties from 9.00am on the second Saturday of the holidays to 4.00pm on the following Friday and from 9.00am on the second Saturday in January 2015 to 4.00pm on the following Friday.
(v)for half of the Christmas school holidays in 2015 and each year thereafter being the first half of the holidays which commence in odd numbered years and the second half of the holidays which commence in even numbered years.
(vi)at such additional or alternate times as may be agreed between the parties.
For the purposes of orders 4(b)(iii) school holiday time shall be deemed to commence at 9.00am on the Saturday following the last Friday of the NSW public school term or at 9.00am on the following Saturday as the case may be and end at 4.00pm on either the middle or the last Saturday of the NSW public school holidays as the case may be.
For the purposes of order 4(b)(v) the Christmas school holidays shall be deemed to commence at 9.00am on the first Saturday following the last Friday of the NSW public school term and end at 4.00pm on the last Saturday prior to the children commencing school in the new school year. Changeover during these school holidays shall take place at 4.00pm on the day closest to the mid point of the school holidays and if there is an uneven number of days between the deemed start and end point of the holidays the children shall spend the extra day with the father.
Changeover for the purposes of orders 4(a)(i) and 4(b) shall unless otherwise agreed between the parties take place at [D] and changeover for the purposes of order 4(a)(ii) shall take place at [W] Park.
The mother may arrange for a nominee known to the children to pick up and drop off the children on her behalf.
The father shall have telephone and/or Skype communication with the children each Tuesday and Friday with the father to initiate the communication between 5.30pm and 6.00pm NSW time and the mother to make the children available to take part in the communication.
The father shall also have telephone and/or Skype communication with the children on the children’s birthdays and on Christmas Day if the children are not with him on these days with the father to initiate the communication between 5.30pm and 6.00pm NSW time and the mother to make the children available to take part in the communication.
The mother may have telephone and/or Skype communication with the children on the children’s birthdays and on Christmas Day if the children are with the father on these days with the mother to initiate the communication between 5.30pm and 6.00pm NSW time and the father to make the children available to take part in the communication.
The parent with whom the children are living at the time of telephone and/or Skype communication shall ensure that the children are given privacy during that communication.
Each parent shall keep the other advised of their residential address, email address and mobile and if they have one landline telephone number and shall inform the other party in writing of any change to those details within 48 hours of the change occurring.
The mother shall keep the father informed of the school(s) the children are attending and each party may obtain from the children’s school(s) copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the children’s school(s) normally attended by parents.
Each parent shall keep the other advised of the name of any medical practitioner or other health professional who treats the children and the other parent is authorised to request from that treating medical practitioner or health professional any information that person is lawfully able to provide about the children.
Each parent shall advise the other as soon as reasonably practicable if the children while in their care are involved in an accident or medical emergency resulting in attendance at hospital or are diagnosed with a serious illness and each parent shall be at liberty to visit the children in hospital.
Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any partner of the other parent to or in the presence of the children.
In addition to any communication required for the purposes of implementing these orders and in lieu of the parties exchanging a communication book the father may send one email to the mother immediately following the children’s time with him on the last weekend of each month to raise general issues concerning the children and the mother must respond to the email within 72 hours.
Each parent shall ensure that whenever the children are transported in a motor vehicle they are restrained by the child restraint applicable for their age as prescribed by the law of New South Wales.
The father is restrained and an injunction is granted restraining him from transporting the children or allowing them to be transported in a motor vehicle which is unregistered or of which he is the driver if he is unlicensed.
The father shall ensure that at all times when the children are in his home any firearms in the home are secured at all times within a locked cabinet meeting the requirements of NSW gun laws.
Each parent is restrained and an injunction is granted restraining them from physically disciplining the children.
IT IS NOTED that publication of this judgment under the pseudonym Longer & Longer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 731 of 2011
| MS LONGER |
Applicant
And
| MR LONGER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for [X], 6 and [Y], 4 ½. Dr H, who prepared the Family Report, described them as winsome children and they have no special needs.
The children live with their mother in Newcastle and have done since she unilaterally relocated there with them from [M] in February 2011.
The children spend (if he is able to get to Newcastle to exercise it) one day per week with the father pursuant to interim orders first made in May 2011.
The final orders sought by the mother were that:
a)she have sole parental responsibility for the children.
b)the children live with her in Newcastle.
c)the children spend time with the father from 9.00am to 5.00pm each alternate Sunday with changeover in Newcastle.
d)the father be restrained from taking the children away from the Newcastle area.
The mother alleged that the father had been physically violent to her during the relationship and was a coercive and controlling man who was careless of the children’s safety. The mother said that it made her nervous that the father lived in an isolated wooded area and owned guns and that she could not come to terms with the idea of the children spending time with the father at his home.
The final orders sought by the father were that:
a)the parents have equal shared parental responsibility for the children.
b)the mother be required to relocate to [M].
c)the children live with a week about arrangement once the mother completed an anger management course or anger management psychotherapy and pending this and 12 months passing the children live with the father and spend time with the mother for one night and one afternoon per week at first, progressing after 6 months to two nights and one afternoon per week.
d)if the court declined to order that the mother return to [M] and ordered that the children live with the mother in Newcastle then the children spend time with him for two nights each alternate weekend during school terms and for half of the school holidays with changeover to take place in [M] or as a fallback position in [R], half way between Newcastle and [M].[1]
[1]This is a summary of the effect of the Orders sought by the father as contained in Exhibit L
In the minute of order he handed up on 27 February 2013 the father did not suggest what should happen if the mother chose not to relocate close enough to him to make equal time practicable but in his 4 June 2012 affidavit he said that if the mother declined to move back to [M] then the children should live with him and spend as much time with the mother as possible.
The father said he had been unjustifiably marginalised in the children’s lives since the mother’s unilateral relocation. He said that the children were strongly attached to him and that while he has made some slips in the past as a parent they had only been occasional and he was a generally competent parent.
The father admitted being occasionally violent to the mother during the relationship but said that the mother had also been occasionally violent to him. He denied being a coercive and controlling person and said that it was absurd to suggest that he would deliberately harm his children.
The father alleged that the mother was neglectful of the children’s day to day care and their medical and dental needs and was ill tempered and aggressive with the children which had resulted in them sustaining minor injuries. He said that the first set of concerns made it imperative that he have at least equal care of the children on a day to day basis and the second concern was the reason he sought that the mother be required to undergo an anger management course and have restricted time with the children until the course took effect.
The father sought a number of specific orders about the way the children should be cared for and he also sought an order that he be permitted to take the children to the Czech Republic (his home country) for a holiday. The mother considered the specific orders unwarranted and opposed to the father being permitted to take the children to the Czech Republic.
The Evidence
The hearing occupied two days in February 2012, two days in June 2012 and a further day on 24 July 2012 at which point I reserved my decision.
On 5 November 2012 the father filed an application in a case which raised new issues. As a result the hearing was re-opened, further documents were filed and further evidence was taken and submissions made on 27 February 2013.
The mother relied on her amended application filed on 23 January 2012, her affidavits filed on 20 January 2012, 4 December 2012,
7 December 2012, 18 January 2013 and 12 February 2013, the evidence about family violence contained in her affidavit filed on
22 March 2011 and her financial statement filed on 18 January 2013.She also relied on the affidavits of :
·her mother Mrs C filed on 22 March 2011.
·her step-father Mr C filed on 22 March 2011, 7 October 2011 and 11 February 2013.
·her brother Mr R filed on 19 May 2011.
·her sister-in-law Ms H filed on 24 March 2011.
·her friends Mr O filed on 18 May 2011 and Ms O filed on 27 May 2011.
The mother and all of the above witnesses were cross-examined.
The mother also relied on the affidavit of Ms T filed on 22 March 2011. It was agreed during the hearing that paragraph 16 of this affidavit would be struck out and as a result the father did not require Ms T for cross-examination. Ms T is a childcare worker at [E] and gave evidence about the father removing the children from the centre on 21 March 2011.
The father relied on his affidavits filed on 24 March 2011, 28 March 2011, 10 May 2011, 24 May 2011, 25 May 2011, 7 October 2011, 20 January 2012, 4 June 2012, 29 October 2012, 9 January 2013, 24 January 2013 and 11 February 2013.
The father also relied on the affidavits of his sister Ms L filed on 11 May 2011 and his partner Ms V filed on 4 June 2012.
I did not permit the father to rely on the affidavit of his friend Mr D because Mr D could not be made available for cross-examination and I refused the father leave to rely an affidavit he sought to file in court on 27 February 2013.
The father and his available witnesses were cross-examined.
The father handed up a Minute of Orders sought on 27 February 2013.
A Family Report was prepared by Dr H, a Regulation 7 Family Consultant of considerable experience. Dr H was also cross-examined.
In preparing this judgment I have also had regard to the following:
·An email dated 7 August 2012 sent by the mother’s counsel to my Associate pursuant to order 2 of orders made on 21 July 2012 indicating acceptance by the mother that the father’s partner had indeed purchased a property near [M]. I have marked this email Exhibit K.
·A notation to orders made on 12 December 2012 setting out two changes of circumstance which occurred after 24 July 2012.
An assessment of the witnesses
The mother was cross-examined the father for the best part of two days; he traversed the evidence in her affidavits paragraph by paragraph. She made some admissions against interest about violence committed by her during the relationship and some admissions which cast some of her allegations in a somewhat different light but by and large she stuck to the story in her affidavits.
I do need to bear in mind however that the mother is determined to achieve her desired outcome of remaining in Newcastle and that this could result in evidence being tailored to or selectively emphasised.
A difficulty with the evidence of both the mother and the father was highlighted by Dr H who administered personality tests to them. She found that the results for both were problematic and said among other things as follows:
Both parents completed the Paulhus Deception Scales. In clinical interviews and questionnaires some people will answer frankly and fearlessly, others will deliberately dissemble in order to make a positive impression and others will consider they are answering honestly but in fact over-exaggerate their virtues as a result of self-deception. The Paulhus Deception Scales (PDS) are useful to inform decisions about the accuracy of self-descriptions and the validity of scores on standardised measures which lack in-built validity scales. The PDS probes both positive impression management (IM) and self-deceptive self-enhancement (SDE).
Four possible profiles on the PDS are described by the test developers. The profile of high IM and low SDE displayed by both parents is common in forensic contexts when people who are aware of their own shortcomings are presenting themselves as socially desirable due to the perceived situational demand. This is not a psychologically unhealthy profile, but given they were both at or above the cut-off for invalidity identification self-serving reports should be received sceptically when no objective verification is possible. [2]
[2] Family Report paragraphs 52 and 53
A large amount of the material in Mrs C’s 22 March 2011 affidavit was struck out because it was either a recounting of things the mother had told her or was her own personal opinion and conclusions. Mrs C remained firm about the truth of the remaining matters in her affidavit.
Mr C was a good witness. He was not successfully challenged on the accuracy of any of his evidence and he was evenhanded when giving evidence.
Mr R’s affidavit contained a large amount of opinion and conclusion and a recounting of things told to him by others. This material was not struck out but that does not mean that I can place weight on it. Mr R remained adamant about the truth of his evidence.
Ms H’s affidavit consisted partly of a recounting of things said to her by the mother (post separation and after the mother unilaterally relocated to Newcastle). Her affidavit, like Mr R’s, was prepared in support of the mother’s urgent application for a recovery order in March 2011 and I need to bear in mind the risk that the information in it is unbalanced.
Ms O became friends with the mother in 2009 when the mother and father moved to [M]. Her affidavit was not particularly helpful. She made very general statements such as the father had “shown neglect toward his children and disregard for his wife” and that she had seen him “treat them more as possessions”. She provided no foundation for these general assertions and I cannot place weight on them.
Ms O recounted the mother telling her about an occasion in November 2010 when the mother felt that the father had manipulated her into not attending a reunion with friends and she expressed the opinion (again without giving any adequate foundation) that the mother had been the children’s primary carer.
Mr O remained firm about the accuracy of his evidence concerning events he had witnessed during the parties relationship but I have some reservations about whether he did accurately remember such things as the amount of time the father was inside a supermarket or the amount of wine consumed at a dinner. The risk is high that that purported recollections of this nature have been influenced by subsequent discussions.
The father is Czech by birth and English is his second language. He speaks good although accented English. He prepared his own affidavits and cross-examined the mother thoroughly. He did not ask for nor was there any apparent necessity for him to have a Czech interpreter.
The father is very bitter about the mother’s unilateral relocation and I need to bear in mind that some of his recollections of the past and his evidence about current issues may well be coloured by that bitterness.
There were inconsistencies in the father’s evidence. He maintained for example that he could not afford to pay child support and yet said that if the children returned to live in [M] he would pay for them to attend a private Catholic school. When explaining why he refused to move closer to Newcastle he maintained that the travel distance between [M] and Newcastle was not an unbearable burden but insisted that it was a major problem on other occasions.
The father gave evasive evidence about the issue of his capacity to earn income and pay child support.
Ms V was pleasant in the witness box but was very clearly in the father’s camp. She refused to contemplate that the father could have been more sensitive in his handling of [X]’s involvement in ballet events at the end of 2011.
Ms L gave evidence through a Czech interpreter. She was a pleasant and co-operative witness.
Background
The mother is Australian and the father Czech. The father migrated to Australia in 2005 and met the mother online and then in person in Sydney in early 2006. The parties quickly formed a relationship and the mother fell pregnant soon after they met.
The parties married in 2006 and they have two children, [X], born [in] 2007 and [Y], born [in] 2008.
The father was a self-employed [omitted] and the mother an [occupation omitted] when they commenced a relationship. According to the father the parties initially lived in [omitted] and according to the mother they lived in Sydney. It was common ground however that soon after [X]’s birth they moved to Newcastle to live in a property owned by Mr & Mrs C.
After [X]’s birth both parents were at home, the mother because she gave up work to care for [X] and the father because he worked from home.
When [X] was about a year old the mother fell pregnant again and during her pregnancy she completed a bridging course designed to allow her to enrol in a [omitted] degree.
In August 2009 the parties moved to [M]. The move was in pursuit of the father’s dream to live in the country, although he did not quite achieve his dream as the parties ultimately purchased a home in [M] township.
After the move to [M] the father continued to work from home as a [omitted] and the mother commenced studying [omitted] part time and toward the end of 2010 obtained some part time work at [omitted].
On 16 January 2011 the parties separated under one roof and almost immediately the father commenced a relationship with Ms A, a woman he had met online. He took [X] away for a camping weekend with
Ms A only days after separation.Following the separation the parties discussed the future care of the children who were then aged almost 4 and a little over 2. The father made it clear that he wanted equal time, while the mother argued that the children should live primarily with her.
On 2 February 2011, while the issue of the future care of the children was still unresolved, the maternal grandfather Mr N, who did not give evidence in these proceedings, came to [M] from [O] and enticed the father from the home on a pretext. While the father was absent
Mr C collected the mother and children and drove them to Newcastle and when the father arrived home he found a note on the table from the mother telling him that she had gone away for a while. The mother contacted the father when she arrived in Newcastle to tell him where she was.The mother’s actions that day are deeply to be regretted, because nothing in the evidence establishes that it was necessary for her to act as she did, and had she been open and fair with the father from the beginning and taken legal steps instead of resorting to self help some of the subsequent events which have impacted adversely on the children might never have occurred.
The father protested to the mother about what she had done but he did not commence legal proceedings and on several occasions over the next six weeks he travelled to Newcastle and spent some short periods of time with the children in parks with the mother present.
Once she was settled in Newcastle the mother enrolled the children at [E], a day care centre, and on 21 March 2011 took them to the centre for their first day. Within hours the father swooped and removed the children and took them to Sydney.
The mother promptly filed an application for a recovery order which came before me on 24 March 2011. I made interim orders that the children be returned to the mother and that the father deliver the children to her the following day.
The order which allowed the children to remain with the father until the following day was made at the suggestion of the mother. I expressed surprise on subsequent occasions that the mother proposed this given the concerns which she raised in her affidavits about violence and gun ownership.
The children were returned to the mother as ordered.
On 29 March 2011 interim orders were made for the father to spend time with the children each alternate Monday between 3.00pm and 5.00pm supervised by Mr A, a private supervisor. The father attended on each of the next four alternate Mondays and spent time with the children in accordance with these orders.
On 26 May 2011 interim orders were made for the father to spend unsupervised time with the children from 10.00 am to 4.00pm each Friday, and on 10 October 2011 this was changed to 9.00am to 4.00pm each Sunday, later varied to be from 10.00am to 5.00pm. These orders remain in force. Orders were also made early on permitting the father to have telephone or Skype communication with the children twice each week and these orders also remain in force.
The father has travelled to Newcastle for nearly two years now in order to spend time with the children. Initially he attended each week but as time went by he found this difficult to maintain and since he lost his licence for demerit points in October 2012 he has attended far less regularly.
The nature of the parties’ relationship
The mother raised the spectre early in the proceedings of the father being a man who might potentially commit familicide. She has since tempered her position but she continues to maintain that the father is a violent and coercive and controlling man.
The father vigorously denied that he was such a man and said that the suggestion that he might commit familicide was laughable.
A starting point in assessing the mother’s claims is to consider the evidence about what happened during the parties’ relationship.
It is not uncommon in proceedings in this court for parties to focus on the faults of the other party and to give evidence only about the negatives of their past relationship and it is important to note that the parties relationship was not all doom and gloom, nor was it an isolated relationship during which either party was cut off from the outside world.
The mother never ceased to have contact with her family; members of the maternal family visited the parties in [M] and the parties visited the maternal family in Newcastle. The parties visited the father’s family in the Czech Republic in June 2007 with [X] and in December 2009 with both children and the mother commenced learning Czech.
This was also not a relationship marked by applications for Apprehended Domestic Violence Order or by visits by the police to the parties’ home.
Of course serious problems can exist in a relationship without there being much outward sign and the mother made some very concerning claims about the father’s conduct during the relationship.
The mother alleged that the father told her that he had been violent in a previous relationship and she alleged that he was physically violent to her and engaged in coercive and controlling behaviour. She alleged that:
·a few months into the relationship the father slapped her hard across the face during an argument saying that he had to do it to calm her down.
·after she threw cargo pants at him during an argument in July 2006 the father grabbed her by hair and throat and pushed her onto a bed.
·in February 2007 during an argument in a motor vehicle the father slapped her face claiming that he had to do it to prevent an accident.
·in mid-2007 the father raised his fist at her.
·in early 2008 the father slapped her during an argument causing her to fall into a screen door. The mother said that she cut her lip and the father showed remorse.
·in November 2009 the father struck her on side of head after they argued and she pushed a computer lid down on his hands. The mother said that she fell to the floor and was deaf for two days.
·on occasions (mainly mid-2008 but more recently in [M]) the father would push or try to physically restrain her and she would scratch and push him in return.
·in November 2010 during an argument over a dog the father pushed her and called her a stupid bitch and said “Do you want me to hit you?”.
The mother drew attention early in the proceedings to the fact that the father owned guns, and in July 2011 she showed Dr H a newspaper review of a book by a woman who had escaped a violent relationship with a man who went on to murder his second family. The mother created the impression during her interview with Dr H that she had fled [M] due to fears for her safety.
The mother said that the father would not let her have her name on bank accounts; would not let her drive or have access to the car; would not let her have a car key; resented her studying [omitted] and disconnected the internet when she had an assignment due; and told her that she could only study if her jobs as homemaker and parent and wage earner done first.
The mother said that the father forced her to engage in part time work when she would rather have stayed at home and studied but nevertheless insisted that the housework was women’s work and on one occasion refused to let her go to work when she was called in until she had done the dishes.
The mother said that the father hacked into her Facebook page and made it difficult for her to keep up friendships. She also said that he constantly belittled her, calling her a stupid, lazy selfish, person with no morals and put down her skills. She gave evidence of an occasion when she said that the father had kicked her out of car and she had to walk for an hour and of another occasion when she would not get in the car because she considered that the father was too drunk to drive and had to walk a long distance to get home.
The mother alleged that on one occasion the father was cruel to a puppy which he left chained up and Mr C mentioned another occasion of alleged cruelty to the dog.
The mother’s brother and sister-in-law confirmed that on one occasion they heard the father call the mother a stupid stupid women and other witnesses of the mother gave evidence of behaviour by the father which they considered was controlling and demeaning.
The father said that it was absurd to suggest that he was a violent man who might murder his children and that the mother had made these claims up to try to justify her unilateral relocation.
The father admitted having slapped the mother in November 2009. He said that he and the mother were staying at Mr & Mrs C’s home in Newcastle and that while he was working on his computer the mother asked him to keep an eye on the children while she had a shower. The father said that he demurred and the mother slammed the lid of his laptop on his fingers and held it there. He said that he instinctively lashed out and slapped the mother on the face. The father left the home after this incident and the parties separated for a short time.
The father denied that there has been any other unprovoked acts of violence by him. He said that the mother was violent to him during the relationship and that in the early years she would throw things at him (such as crockery, glass and clothes), scratch him, slap his face and hit him with closed fists. The father said that he would defend himself from the attacks and was bruised and scratched as a result.
In his affidavit filed on 20 January 2012 the father said that he had been obliged to “physically defend/cover” himself from the mother’s “fierce attacks,” and it was a consistent theme of the father’s evidence that the mother had verbally abused him and physically attacked him and thrown objects at him on various occasions during the relationship.
In his first affidavit the father described his relationship with the mother as volatile, passionate and loving. He alleged that the mother was verbally abusive to him and would call him a dickhead, prick, fuckwit and similar.
The father said that while the parties were living in [W] the mother caused three holes in the walls by throwing things which hit the wall. He said that on one occasion he went to his GP after he was struck in the face by the mother’s watch during a dispute. He produced medical records which confirmed his attendance and confirmed him telling the GP he had been struck by the mother’s watch.
The father gave evidence that the children were sometimes present during outbursts of anger by the mother.
The father said that with time he learned to control his reaction to the mother’s outbursts and to walk away but the mother never learned to moderate her behaviour. He vehemently denied having been cruel to a dog saying that he and the mother had a disagreement over how to train the dog. He also vehemently denied the mother’s allegation concerning specific acts of violence or coercive and controlling behaviour as outlined in paragraph 70 and 72 earlier, often providing an alternative explanation for events which occurred which he said cast the matters in a very different light.
The father’s sister gave evidence that when she stayed with the mother and father in [M] for a few days in January 2011 she heard and saw the mother verbally attacking and verbally abusing the father.
Getting to the bottom of this conflicting evidence is not easy and there were some inconsistencies in the father’s evidence about physical violence. He admitted during the hearing that he had told a Family Consultant at an 11F Child Dispute Conference in March 2011 that he had hit the mother several times but in his affidavit he admitted hitting her on only one occasion, namely in November 2009.
On the other hand the mother’s evidence on this topic was also unsatisfactory when taken as a whole. She made no mention of any violence or aggression by herself in any of her affidavits or in conversation with Dr H, but in an email she sent to the father after the November 2009 incident she said as follows:
When we first got together and when I was pregnant and we had those insane fights we were both crazy, and anything I ever did was fully accepted by me as my doing, in no way at all did I ever blame you for throwing stuff at you or losing my temper like a mad woman, and you should not be blaming me, regardless of whether I was trying to close your computer and raising my voice. [3]
[3] Annexure D father’s affidavit filed 28 March 2011
During cross-examination the mother admitted that on the honeymoon she threw items at the father which broke the windscreen of the parties’ campervan, commenting that “I feel terrible about that.”
She admitted throwing other things for example a pair of cargo pants “in his direction,” throwing a bowl which smashed, and slamming doors. The mother admitted that she had scratched the father and had hit him with her hands. She said that there were “regrettable incidents where the children were around.”
Some of the incidents which involved the father being violent certainly also involved the mother doing physically provocative things, for example throwing a pair of cargo pants at father’s torso or pushing the computer lid down on his fingers and what occurred as a whole has much more the appearance of being situational couple violence than coercive and controlling violence.
In her report when discussing the various types of violence Dr H said that:
In common couples conflict violence physical and psychological aggression occurs only in response to conflict does not escalate and may not always be gendered. Violence towards an intimate partner of this sort might be expressed by men who are not otherwise anti-social, are [sic] do not show personality or mental health disorders but who respond aggressively in response to conflict (e.g around the time of break-up and family separation) and negative internal cues.[4]
[4] Dr H’s report paragraph 67
A layer of complexity is added by the fact that I certainly gained the impression during the hearing that the father was a man who had very rigid views about the ways things should be done and therefore a man who might be expected to go to considerable length to ensure that things were done his way. An example of this was the evidence (admitted by the father) that he had a fixed regime in regard to where the car keys were kept – one in the bowl and one in the document folder – and refused to accept any deviation from this.
The father denied being a person of rigid ideas who was prepared to go to great lengths to try to ensure that things were done his way but some of the orders he sought (that the children not be fed fast-food meals e.g. McDonald’s, KFC) that they have a healthy diet (fruits/and or vegetables each day) and that each parent ensure for the children regular daily hygiene including oral, their hair cut, finger and toe nails trimmed as required) suggest that the father is indeed a person of rigid ways.
I gained the impression after listening to the father over a period of 6 days that he might have been a very difficult person to live with on occasions but the evidence as a whole does not support the mother’s contention that the father controlled everything and it was clear that during the relationship the mother sometimes prevailed.
The father did not want the children to go to day care but the mother was keen on it so that she could study in peace and the father eventually agreed to the children attending one day a week.
The father did not want to move to [W] at the time of [X]’s birth but he did move there and the parties remained there for 2 years.
There is a strong flavour in the evidence of the parties being very different people who each wanted to do things their own way. The mother complained that the father would not let her do the accounts for his business even through she was a [occupation omitted]. She admitted during cross-examination however that the father did initially let her do the accounts but that the father did not agree with the way she was doing them and she did not want to do the accounts his way so she ceased doing the accounts.
The father did not respond violently to the mother’s decision to separate from him and did not respond with threats to harm himself if she left the relationship. In a letter he sent her after he separated from Ms A in 2011 he proposed a reconciliation and ended the letter by saying:
Feel free not to reply to this letter – I will take silence as rejection of my offer and signal to finally move on with my life.[5]
[5] Annexure A father’s affidavit filed
In summary I am satisfied that the father did commit acts of family violence during the relationship and the mother’s slamming the computer lid on his fingers in November 2009 in no way excuses his slapping her face. However it is impossible for me to be satisfied on the state of the evidence that the father engaged in coercive or controlling violence or engaged in a reign of terror to get his own way, and the mother’s behaviour during the relationship was also far from perfect.
I have no doubt that the father’s determination to get his own way about certain things and his rigid insistence about issues such as where the car keys should be kept would have made him difficult for the mother to live with and this likely helps to explain (although in my view does not justify) the mother’s decision to unilaterally relocate rather than face an endless debate with the father about care arrangements for the children following separation. However the mother in a quieter manner also seems determined to get her own way and to be quite capable of persisting on occasions until she achieves this.
The parties’ current circumstances
The mother is 30 and is a [omitted] student. She is living in a property in [W] owned by Mr and Mrs C and has recently commenced a relationship with Mr S, an [occupation omitted], although they do not live together.
[X] is enrolled at [E] School and [Y] attends [E].
The mother will not under any circumstances consider returning to live in [M] and it is inconceivable to her that the court might order her to do so. She has no ties in [M] other than ties of friendship which she formed when she lived there with the father, whereas in Newcastle she has family support, assistance with accommodation and now a new relationship.
The mother was born in [O] and the maternal grandfather Mr N lives in [O] and the mother visits him there sometimes. [O] is about 2 ½ hours from [M] by road but [O] has no attractions for the mother either as a place to live.
The father is 34 and has permanent residency in Australia. He said that obtaining Australian citizenship was not a priority for him and that as long as he could stay in Australia that was sufficient.
The father’s only relative in Australia is his sister Ms L who has been here since January 2011 and is on a student visa which expires in March 2014. Ms L lives Sydney and when she gave evidence in July 2012 was living in a 2 bedroom apartment. She said that she had a flatmate but that the flatmate would be leaving in October 2012.
The paternal grandparents live in the Czech Republic. The paternal grandfather is in poor health and the father’s unchallenged evidence was that he was not able to travel to Australia.
During the 2012 part of the proceedings the father said that he was a [occupation omitted] who did most of his work from home and had occasional meetings in Sydney. In one of his affidavits he said that he intended to support his family in the future from [omitted] but during cross-examination in 2012 he said that he was “practically unemployed at the moment.”
In the witness box on 27 February 2013 the father described himself as [occupations omitted] and he estimated his income at about $16,000.00 per annum. The father had a declared income of over $50,000.00 per annum prior to separation but maintained that his income earning capacity had been affected by the events following separation.
The father was in a relationship with Ms A at the time of the Family Report interviews in July 2011 and Ms A told Dr H that she intended to purchase a property in [M] and live there with the father. The father and Ms A separated not long afterwards however and in September 2011 the father commenced a relationship with Ms V.
Ms V is 36 and is a [occupation omitted]. She was living in Sydney when she commenced her relationship with the father but on 11 April 2012 she purchased a property at [omitted] via [M] and she and the father live on this property.
Ms V gave birth to the parties’ child [name omitted] on [date omitted] 2012. She said that she supported the father’s application for the children either to be returned to him or to be allowed to spend time with him in [M].
The [omitted] property is located about half an hours drive from [M]. The mother’s counsel tendered a Google Earth map of the property which showed that it was partially covered by thick vegetation and was surrounded by other heavily wooded properties.
The father extolled the virtues of the property and said that it was in a picturesque valley and that he intended to purchase chickens, ducks, sheep and goats. He denied that the property was especially isolated and said that two families with young children lived nearby.
The father was adamant that he would not consider relocating closer to Newcastle. He said that he had moved to [M] in 2009 because of the lifestyle it offered and that he had “done his time” in Sydney and was not interested in moving to a larger centre. He has now achieved his dream of being able to live in the countryside and said that he would not be able to find a place in Newcastle or even in countryside near Newcastle where he could be remotely happy.
The children’s best interests
In determining appropriate parenting orders I must treat the children’s best interests as the paramount consideration and s.60CC(2) & (3) of the Family Law Act (as it stood prior to the amendments on 7 June 2012) sets out the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It is usually logical to make findings about the primary considerations in s.60CC(2) before turning to the additional considerations in s.60CC(3) but in some cases it is difficult to make findings about the primary considerations until findings have been made about the additional considerations and this is such a case.
Until findings are made about such things as the nature of the relationship of the children with each of their parents, the capacity of each parent to provide for the needs of the children and the implications of the family violence in the relationship it will not be possible for me to make findings about the primary considerations.
The Full Court in Collu & Rinaldo[6] indicated that it was acceptable to consider the s.60CC(2) and (3) matters in reverse order and I intend to do so in this case.
[6] Collu & Rinaldo [2010]FamCAFC53
The first of the additional considerations is any views expressed by the children and any factors (such as the children’s level of understanding) that the court thinks are relevant to the weight to be given to those views.
Dr H considered the children too young at the time of her report (4 & 2) to have their views canvassed, and there was no independent evidence that the children had views about any of the issues in dispute.
The father maintained that the children had both said at times that they wanted to live with him and wanted to live in [M] but I cannot place weight on this evidence. First, it coincides with the father’s own wishes and does not come from an independent source, and the father was not always a witness of credit.
Second, even if one or other of the children did say these things they are both very young and are not mature enough to understand the full ramifications of such choices. Third, I cannot exclude the possibility that the children either said those things to please the father or said them but felt differently the next moment or the next hour or upon their return to their mother.
I must consider the nature of the relationship of the children with each of their parents and any other persons (including any grandparent or other relative of the child).
I am satisfied that the children have a good relationship with the mother.
It does not follow from the fact that [X] has clung to the father on occasions after visits and has not wanted to leave him that she has a poor relationship with her mother.
Dr H who is independent in the matter said as follows:
When I observed [the children] in the playroom with maternal kin they displayed secure base behaviour towards their mother and grandparents, all of whom took their cue from the children’s play interests. As is normal for children their age, both were reserved with me (a stranger) initially but after a time [Y] acknowledged me as a friendly presence and responded to my questions and comments. [X] snubbed me throughout. [7]
[7] Dr H’s report paragraph 55
For the last two years (one third of [X]’s life and nearly half of [Y]’s) the children have lived primarily with the mother and have seen the father at best for one day each week. I am satisfied that the children have a good relationship with the mother and are primarily attached to her.
I am satisfied that the children also have a good relationship with the father.
The mother and Mr & Mrs C told Dr H that the children loved the father and looked forward to seeing him, and Dr H said as follows:
When Mum told [X] Daddy was coming [X] jumped for joy. [Y] took the announcement more calmly.
The children greeted their father very affectionately, especially [X]. Their father had brought them sweets and presents. Although I was sitting quietly observing and not participating in play [Y] came at times to show me his trucks and cars. [X] ignored me. In play interaction their father was more directive than their mother or grandparents but they seemed happy to refuse his offers and suggestions. For example he offered them All Natural Company Snakes several times. Both kids matter-of-factly said No to the repeated offer. They did not seem in awe or fear of Dad at all, and appeared confident that he would respond when they signalled their needs or wishes.[8]
[8] Family Report paragraph 55, 56
Mr C, giving evidence in June 2012 twelve months after the family report interviews, said that he attended most of the changeovers on Sundays and that the children were mostly happy to go with the father and came back happy. He said that they often also came back tired but he put that down to them being exhausted as a result of having had an active day. He said that the children were sometimes a bit withdrawn and contrary at changeover which he put down to the tension surrounding changeover.
On 27 February 2013 Mr C gave evidence consistent with this.
The father has briefly met the mother’s partner Mr S and said that he accepted that the children did not have a problem with him.
Ms V will be an important part of the children’s lives if they spend more time with the father or even live with him. The father did not know Ms V when Dr H conducted her interviews and I have no independent evidence about her relationship with the children, but the mother said that the children had mentioned Ms V and expressed no concerns about her. Ms V has met the children and spent with them on some of the father’s Sunday visits.
The children have a baby sister in the father’s household but they have at best had spent some fairly minimal time with her and there was no evidence about their relationship with her.
The children’s relationship with Mr & Mrs C was not the focus of much inquiry at the hearing. The father suggested that Mrs C had at one time said that they did not want to be required to look after the children too often, and he expressed concern about the possibility of the mother leaving the children with them too often, but neither during cross-examination or during the father’s final submissions was anything much made of this, and there was no evidence that [Mr & Mrs C] were being asked to do excessive babysitting.
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.
The father questioned whether the mother had this willingness and ability given that she had “abducted” the children after separation and in two years had never agreed to him having anything more than day time contact with them.
He maintained that the mother was hostile to him and fed lies to the children such as that he had smacked them when they were babies. The tenor of his evidence was that the mother was intent on undermining his relationship with the children.
I do not accept that this is the case. I am satisfied that the mother has a reasonable willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father. She was determined to get her own way about being the children’s primary carer and living in Newcastle after separation but she has facilitated the father spending time with the children since then, and insofar as she has proposed restricted time I accept that this has been because of genuine (although it remains to be determined whether well-founded) fears about the father’s parenting capacity.
The father has never overtly expressed a desire to exclude the mother from the children’s lives and his preferred outcome (subject to the mother overcoming her alleged anger management problem) was stated to be equal time. However he has a very poor view of the mother’s parenting capacity and harbours considerable bitterness toward her as a result of her unilateral relocation and it is open to question whether he has the capacity to refrain from criticising her to the children.
Denigration of the mother to the children could undermine the children’s relationship with her, especially if the children spent more time with the father than the mother.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of separation from:
(i)either of their parents or
(ii)any other child, or other person (including a grandparent or other relative of the children) with whom the children have been living.
The father proposed several possible changes for the children, the first being that they live primarily with him either for twelve months before moving to an equal time arrangement or indefinitely if the mother chose not to move back to [M].
It is seriously open to question whether the children would cope with a complete change of residence. No matter how good their relationship with their father, their world since 2011 has been living primarily with their mother. They would be unlikely to understand why a complete change to these arrangements had occurred, and unless the father had empathy for the children and parenting skills of the highest order it is likely that such a change would be detrimental for the children.
I will need to consider later in the judgment whether the father has that empathy and those parenting skills.
The second change proposed by the father was that the mother (and therefore the children) should be forced to return to [M].
Presuming for a moment that I have the power to engineer this outcome, the benefit to the children of returning to live in [M] would be that their father would be close at hand and they would be able to see him frequently and with little travel involved. However the mother would be forced to find new accommodation, her new relationship would be tested and the support she enjoys from Mr & Mrs C on a regular basis would be removed, and if the mother was unhappy or worse in [M] this would impact negatively on the children.
The third potential change would be the children living in a week about arrangement, and this has the potential to be detrimental for any children unless they are old enough to cope with it and unless their parents get on well and have good communication skills and similar levels of parenting ability. I will need to consider after making further findings about the s.60CC (2) matters whether these pre-conditions exist in this family.
I must have regard to the practical difficulty and expense of the children spending time with a parent and whether that practical difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
[M] is about a 4 ½ hour drive from Newcastle, and the father’s home at [omitted] is about half an hour further away again.
When the father was asked to consider this in the context of the desirability of him moving closer to Newcastle he said that the driving was “unfortunate but bearable” and he would rather do the driving than move to Newcastle.
At various other times in the proceedings however the father complained about the cost and tiring nature of the travel, and the problem of distance became exponentially worse in October 2012 when the father lost his licence for demerit points. Until May 2013 he is dependent on his partner to drive him to Newcastle and he has missed numerous visits with the children.
The father has a long history of incurring fines and demerit points for driving offences, mainly for exceeding the speed limit by up to 10kms or between 10 and 20km’s per hour. Since 2006 his licence has been suspended and/or his motor vehicle deregistered on a number of occasions as a result of non-payment of fines and he is currently paying off thousands of dollars worth of fines by instalments.
The father should regain his licence in May 2013 but given the above history the risk is high that the father will lose his licence or have his vehicle deregistered again in the future.
The father was adamant however that he would not leave the [M] area and the attractive rural lifestyle it provided, so absent me making an order that the mother relocate to [M] there is nothing I can do to alleviate the problem of distance compounded by the problem of the father’s driving history.
If the parties continue to live 4 ½ to 5 ½ hours driving distance apart the location for changeover becomes an issue. The father’s primary proposal was that changeover should take place in [M]. This was fair he said because he had been forced to do all the driving for 2 years as a result of the mother’s unilateral relocation and the mother should be required to take a turn.
The father’s secondary proposal if the court declined to order that the mother drive to [M] was that changeover take place in [R], a place located between [M] and Newcastle.
The mother was strongly opposed to being required to do any significant driving for changeover. She said that she was a student on a very limited income and that the father was paying no child support. She submitted and I accept that it would cause her some financial hardship if she had to do a return drive regularly to and from [R], let alone a 9 hour plus return drive each way to and from [M].
I will also need to take into account however in any decision about changeover location the potential risk to the children of driving with a tired parent.
I am required to consider the capacity of each parent and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including their emotional and intellectual needs.
The mother maintained that she was the children’s primary carer prior to separation. The father did not concede this and insisted that he and the mother shared the care of the children equally but the totality of the evidence supports a finding that the mother was the primary carer.
There were snippets in the father’s answers during cross-examination which suggested that he was less used than the mother to intensively caring for the children. He was asked about Ms V coming with him for visits with the children and commented “I do need help during the 7 hours, yes.”
The father was asked during cross-examination in June 2012 whether he had contacted [X]’s school since she had commenced there and he said that he had not. When asked why he said he had not thought of it and then said that he thought that if there were any issues the mother would tell him.
On any view the mother has been the children’s primary carer since separation, and the father was highly critical of her care of the children. He complained that they frequently came to him with runny noses and dirty fingernails and inappropriately dressed for the weather.
Dr H commented however that the children looked healthy and well-cared for, and the mother has appropriately enrolled them in school and day care. I do not accept that there is substance in the father’s complaints that the mother is failing to properly care for the children on a day to day basis.
The father alleged, based on his interpretation of something said to him by [X], that on one occasion the mother had allowed [X] to drink wine. The mother denied it and there was no evidence to support a finding that any such thing had occurred.
The father alleged that during the relationship the mother would scream and yell at the children and that [X] would become distressed, and he said that things [X] had said to him since separation suggested that this problem was ongoing.
He said that the children regularly complained about the mother yelling at them and hitting them and during the proceedings on 27 February 2013 he maintained that the children had unexplained scratches and bruises which he believed had been caused by the mother.
I cannot instantly dismiss the allegations about the mother yelling and screaming at the children given the mother’s admissions about her behaviour during the early years of the relationship and Ms L’s evidence about the mother yelling at the father, and Dr H did not speak separately to the children and I have no window into this issue by this means.
I cannot exclude the possibility that the mother does yell at the children on occasions. However Dr H observed a satisfactory relationship between the mother and the children and there was no independent evidence to suggest that the mother’s day to day treatment of the children over minor transgressions in the home was a problem for the children. I cannot draw the conclusion the father asked me to draw from the evidence he presented.
The father alleged that [X] had a dental problem which required immediate rectification or it would be irreversible. He said that he had offered to initiate treatment but the mother had rejected his proposals. There was no expert evidence to confirm that this problem existed and I am not prepared to make a finding that the mother has been indifferent to this aspect of [X]’s care on the basis of an allegation by the father.
The father complained that the mother exposed the children to inappropriate media content in music and on television and that the children acted aggressively as a result. I cannot make a finding that this is so because I do not have enough information about the kind of music the mother habitually listens to or the television shows to which she allegedly exposed them.
I also note that the father has maintained throughout that he is content for the children to live 50% of the time with the mother provided that she does an anger management course and this raises a real possibility that tit for tat rather than genuine concern may be behind some of the father’s allegations about the mother’s care of the children.
The father complained that the mother left the children at Mr and
Mrs C’s home weekly and that they were not properly looked after there. This was a bare assertion and there was no evidence to support this claim.I am satisfied that the mother is properly providing for the children’s day to day and intellectual needs. However she has shown a lack of insight into the children’s emotional needs on occasions, most notably when she unilaterally relocated in early February 2011, and I need to carefully consider her capacity to provide for the children’s emotional needs in the future.
Dr H administered a test to both parents to assist her to assess their ability to see things from the children’s view point. She concluded that the mother showed some capacity to think about the children as people who had thoughts and feelings of their own.
The example Dr H gave to illustrate this was a little suspect but Dr H also commented on the fact that when she asked the mother questions about the children the mother answered about the children, unlike the father who used every opportunity to launch into a criticism of the mother.
There are still occasions when the mother fails to prioritise the children’s needs over hers and her decision to serve court documents on the father at a recent changeover, provoking a reaction from the father, is an example of this, but I am satisfied in broad general terms that the mother has the capacity to provide for the children’s emotional needs in the future.
The father insisted that he contributed equally with the mother as a parent but for reasons given earlier I am satisfied that the father was far less involved with the children during the relationship than the mother. I accept however that he did have a role in their care. The children both related well him at the family report interviews which suggests that the foundation of a prior caring involvement was there.
The mother was highly critical of the father’s parenting capacity and alleged that when he did mind the children he was often neglectful of them and would leave them crying while he used the computer.
The mother gave evidence that on one occasion when she left the children with the father while she went to work and they were later seen by a neighbour wandering alone in the street, although the father appeared after a short time and retrieved them. The father admitted that this incident occurred but blamed it on a faulty side gate.
The mother gave evidence about an occasion when the father left the children unattended in a car at a supermarket while he went in to buy groceries. When he came out the children were playing with the lights blinkers and horn and people were gathered around the car. Mr & Ms O witnessed this incident and varyingly claimed that the father was inside the supermarket for twenty minutes or half an hour.
The father admitted that he left the children in the car but denied that it was for anything like twenty minutes or half an hour and said that it would have been for about five minutes. I cannot be certain that the time estimates of Mr & Ms O was correct and the father had a propensity to minimise his culpability for his actions but whether the children were left for half an hour or five minutes it should never have happened.
The mother said that on another occasion the father left [X] in the car while he had a drink. The father admitted that this occurred but said that he was standing next to the car.
The mother said that the father often did not put the children’s seatbelts on and the father admitted that the “forgot sometimes” but claimed that the mother did as well.
The mother also said that the father proposed leaving the children at home alone while the parents drank at another person’s place across the road. The father denied that this occurred.
In summary the father admitted some instances of neglectful behaviour and errors of judgment with the children but said that on each occasion he had learned his lesson and had not repeated his mistake.
Some of the father’s lapses are concerning and I have considerably less confidence in his capacity to care for the children on a day to basis for a lengthy period than I do in the mother’s but I am not persuaded that the children would be a risk of harm from sub-standard parenting if they spent longer periods of time with the father than they are doing at present. The mother did not allege that anything had gone wrong during the day periods the father has been spending with the children since May 2011.
The mother maintained that the father had an alcohol problem and she alleged that during the relationship he drank every night. She said that at least 4 times a week he drank a bottle of wine and 2 to 3 beers in a sitting. She also said that after the children were born the father would consume not less than 3 alcoholic drinks a day and quite often he would consume more.
The mother also alleged that the father had driven intoxicated on more than one occasion.
The difficulty with the mother’s evidence on this topic was that it was for the most part not sufficiently detailed to enable me to make findings. The mother alleged for example that in November 2006 the father had been drinking and the parties argued because the mother was concerned that he might be over the legal limit. The mother did not give any evidence about what alcohol had been consumed or about what it was about the father’s appearance or behaviour which led her to believe that he might be too drunk to drive, and in those circumstances it is difficult for me to find in the face of the father’s denials that this incident occurred as described by the mother.
The mother gave specific evidence about the father’s behaviour and appearance following the consumption of alcohol on only one occasion, 16 October 2010, but again her evidence does not help her. She said that she caught a cab home and the father followed in the car and that the cab driver remarked on the driving of the car behind. That is the extent of her evidence and I cannot make findings adverse to the father based on that.
Mrs C alleged that the father “would often drink drive on any occasions where we would be out for lunch or dinner” but she provided absolutely no foundation for a finding that the father had been too intoxicated to drive.
The mother agreed during cross-examination that there was an occasion when the father called her and asked her to pick him up because he had been drinking and did not want to drive.
The father denied that he had an alcohol problem and said that the mother was a light drinker and was unduly sensitive about his alcohol consumption which exceeded hers.
The mother conceded during cross-examination that when the father did get drunk he was usually a happy drunk. She also agreed that he was able to abstain from alcohol consumption on occasions and that he would have detox months for example for the charity fund raiser Dry July.
It is impossible on the state of the evidence for me to find that the father has an alcohol problem and in any event the evidence about his capacity to go without drinking at all for periods of time creates optimism that if an order was made that the father not consume alcohol to the point of intoxication while the children were with him that he would be able to comply.
The mother expressed considerable concern about the fact the father has a firearms licence and owned 5 rifles.
The father said that he enjoyed target shooting and rabbit hunting and that one rifle was for target shooting, three were different calibre rifles for hunting rabbits and goats and the fifth was bought so that his then friend Mr O could learn to shoot.
The mother agreed during cross-examination that the father had used his guns to shoot rabbits and kangaroos and for target shooting.
The father said that he would get rid of the guns if the court required it.
When asked about the father’s ownership of firearms during cross-examination Dr H was scathing about it, implying that no sane person would wish to hunt or desire to own a firearm. This is very judgmental.
Many people in the 21st century find the idea of hunting distasteful and few people in the western world need to hunt in order to obtain food (although it was different for some in the Great Depression less than a hundred years ago) but human beings have hunted for millions of years and realistically it may be some time before the desire to hunt is bred out of all of us. It is not illegal in Australia to hunt rabbits or to shoot birds in season, and target shooting is an Olympic sport.
The mother said that the father was careless with his guns during the relationship and would leave them lying around the house or propped against a cupboard. The father said that he had accidently left a bullet on the floor once but otherwise the guns were only out when he was cleaning them or had been using them for target shooting or to shoot rabbits.
I am not persuaded that the father’s ownership of firearms is a reason to severely restrict his time with the children. I am also not persuaded that there is anything sinister about the father choosing to live on a rural property outside [M].
I have concerns about the father’s capacity to provide for the children’s emotional needs.
Dr H expressed the view that the father showed no capacity to focus on the children as individuals with lives of their own or to empathise with them and some of his actions post separation confirm this.
He removed them from the day care centre in Newcastle on the first day that they were enrolled there and took them to Sydney. He did not contact the mother to tell her where the children were and he returned the children only after being ordered to do so by the court. The father refused to concede that this incident might have been distressing for the children or that either of them might have fretted for their mother.
The father’s response to the issue of [X] attending for end of year events connected with ballet showed a marked inability to prioritise [X]’s needs over his own. He rejected all the mother’s suggestions about how he could be involved in [X]’s ballet concert in December 2011, and when the mother withheld [X] on a Saturday so that she could attend the concert he promptly brought a contravention application.
The mother should not have withheld [X] but the incident says a lot about the father’s inability to empathise with the children. When pressed about the incident of the ballet concert and the ballet photos during cross-examination the father said that “to me ballet is not important; to [X] it is important on Thursdays.”
There is an element of tit for tat and lack of child focus in some of the orders sought by the father. He openly sought an order that the mother travel to [M] for changeovers for twelve months because he had been forced to travel to Newcastle for over twelve months as a result of her unilateral relocation.
Since his separation from the mother the father has had two new relationships in quick succession. He met Ms A on an online dating service in December 2010 and commenced a relationship with her days after he and the mother separated in January 2011. That relationship ended in about September 2011 and very soon after the father commenced a relationship with Ms V. He said that he “struggled with being single” and was alone in Australia. This raises some concern about how stable the father’s life will be in the future but is not necessarily a reason why he should not spend longer time with the children than he is doing at present.
I must consider the maturity sex lifestyle and background (including the lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
The children’s age is a relevant issue. [Y] is only 4 and [X] 6 and for [Y] in particular an equal time arrangement may not be appropriate as a result of his age. Dr H certainly seemed to adopt as an underlying part of her recommendation the common view that young children are better served by spending the majority of their time with one parent and regular shorter periods of time with the other parent.
The children’s background is also a relevant issue. The father is Czech and except for his sister Ms L all members of his family live in the Czech Republic.
The father is proud of his heritage and wants the children to know about it and to meet their relatives. The parties visited Czechoslovakia when they were together and the mother was learning Czech but there was no evidence that she had continued to do or that she was especially likely to keep the children in contact with their Czech heritage. The father’s parents do not speak English and the children do not speak Czech so the father is the best conduit for the children to communicate with and keep in touch with their Czech family and heritage is through the father.
On 27 February 2013 the father gave evidence that his mother had offered to pay for him and the children to travel to the Czech Republic and he asked the court to make orders for this to occur, saying that his father was ill and unable to travel and therefore his parents visiting Australia was not a feasible alternative.
I accept that there would be benefits to the children travelling to the Czech Republic and meeting their Czech relatives in their own setting, but whether this order is ultimately made will depend on a weighing of all the s60CC(2) and (3) matters.
The father is Catholic. He attends church and his faith is important to him. He would like to be able to take the children to church, although there was nothing to suggest that he was rigidly determined to ensure that they were brought up Catholic.
There was no evidence that the mother had any religious interest and it is likely that only through the father will the children be exposed to participation in a mainstream religion. The mother is not opposed to the children attending a Catholic Church.
I must consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
I am satisfied that the father genuinely desires a relationship with the children for its own sake. There was no flavour of the father seeking time with the children in order to keep tabs on the mother. He has consistently sought time with the children since the mother unilaterally relocated and he has taken every opportunity to spend time with them since, subject to the difficulties posed by the cost of travel and the loss of his licence. In that regard the father’s attitude to the children cannot be faulted.
However the father has shown a very poor attitude to his responsibility to financially support the children.
The mother applied for and obtained a child support assessment soon after separation but the father has never paid child support. He currently has arrears of $15,000.00 although he maintained in February 2013 that he was challenging the assessment which had led to this outcome.
However the primary issue is not the amount of money the father owes, it is the fact that he has never paid any child support at all and that in my view it is open to me to find that he is unlikely to do so in the in the future.
In one of his affidavits the father said as follows:
I apologised and explained to [Ms Longer] many times that I am not in a financial situation to be able to provide regular payments (I have not been able to look after my business) – however I offered her as much support as I could e.g. every visit I leave bags of healthy groceries with the children, as well as buy them clothes, shoes or toys whenever I can afford it.[9]
[9] Father’s affidavit filed 7 October 2011 paragraph 15
The father said in oral evidence that at changeover he supplied food including fresh fruit he thought they were lacking, yoghurts, juices, flour and pasta.
When pressed during cross-examination about the fact that he was not paying child support the father said that he “thought the children were being looked after well, he couldn’t see any sign of a financial struggle” and that “seeing the children are well looked after I commit my money to spend seeing them.”
The father also said during cross examination that he would pay for art classes for the children but not for their basic needs and that he would pay for the children to attend a Catholic School if they lived in [M] but could not afford to do so if they lived in Newcastle.
The father’s income has conspicuously declined since separation and there was no sign at the hearing that his income was unlikely to increase in the future. I am satisfied that the father has deliberately placed himself in this position because he disagrees with the concept of being required to pay the mother money and that as he is self-employed the mother is likely to face a long term difficulty in obtaining child support from him.
I am required to consider any family violence involving the children or a member of the children’s family.
Dr H both in her report and during cross-examination used emotive language about violence. In her report she used the term “patriarchal terrorism” and when answering a question asked by the father during cross examination she used the word “batterer.” This language does not sit comfortably with the evidence about violence in this relationship as it emerged during the hearing before me.
Dr H was not privy to the evidence which emerged during the hearing and most importantly she was not given a fair account by the mother of her own behaviour during the marriage.
The father on his own admission did commit some acts during the relationship which came within the definition of family violence in the Family Law Act prior to 7 June 2012, most notably in November 2009. The mother’s actions in throwing objects including an object which smashed a car windscreen also potentially come within that definition however.
The overall picture painted by the evidence was more of couple violence than coercive and controlling violence and I need to consider what ramifications this has for the orders I should make.
I would have to be concerned about the possibility of the father committing acts of family violence or being party to family violence in another relationship but it does not automatically follow that this would occur.
The father is a man with very rigid views who likes to dictate how things are done but there was no compelling evidence that he used violence or threats of violence to get his own way in his relationship with the mother. If he had a placid and easy going partner the risk of violence might be low. There was no evidence that there was any violence in the father’s relationship with Ms V.
I must consider whether the children themselves might be at risk of violence from the father. However for reasons to be given a little later I am not satisfied that it is open to me to find that the father has ever directly subjected the children to violence, and by the time the hearing concluded he had been spending time with the children on one day each alternate weekend for nearly two years, although very likely not, it is true, under the circumstances which sometimes stress parents therefore might and place children at risk.
I could speculate about what might happen if the children challenged the father when they reached their teenage years but this is so far away and so speculative that I cannot take it into account in making orders.
I also need to consider what might happen in the mother’s future relationships but there was no evidence which would allow me to conclude that there was currently a risk of the children being exposed to family violence in the separate care of the mother.
There have never been any family violence orders between the parties or members of their family.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The risk that further proceedings may occur is high. The father filed contravention applications on 18 July 2011, 16 January 2012 and 5 November 2012. He was persuaded to withdraw them but there is a real prospect of further contravention applications being filed. The father is a pedantic man and the mother on one occasion deliberately breached a court order and hoped that the court would later find that she had a reasonable excuse. There is zero trust and goodwill between the parties.
I do not consider however that there is much that I can do by way of making orders to prevent further proceedings occurring save for trying to word the orders as carefully as I can.
I must have regard to any other fact or circumstance which the court thinks is relevant.
The poor relationship between the parents, which has not been helped by this long running litigation, is a relevant consideration. By the end of the hearing they each were both regularly resorting to the harsh word “abduction” to describe the conduct of the other in February and March 2011 respectively.
The father complained on 27 February 2013 that the mother was ignoring his emails and the mother agreed that this sometimes happened and said that she felt overwhelmed by the emails she received.
Neither party accepts responsibility for the poor state of their relationship and there is no reason to be optimistic that anything is likely to change in the future or that their communication is likely to improve.
The relationship between the father and Mr & Mrs C is not especially good but changeovers between the father and Mr C have been satisfactory absent the odd occasion when Mr C has regrettably raised property matters at changeover.
There was a clash between the father and Mrs C caused by Mrs C unwisely insisting on an assurance from the father about the time of his return, but Mrs C is not normally involved with handovers.
The father sought an order that no member of the mother’s family be allowed to be present at changeovers but as changeovers have generally been reasonably trouble free and as the mother usually prefers not to do changeovers alone with the father I would be reluctant to make orders restricting who can attend at changeovers.
I now return to primary considerations in s.60CC (2).
The first primary consideration is the benefit to the children of having a meaningful relationship with both of their parents.
[X] and [Y] will benefit from having a meaningful relationship with both their parents. The father has rigidity to his character which likely means that other adults find him difficult to deal with on occasions but the children enjoy spending time with him and he can offer them different things to the mother, including exposure to their Czech heritage.
I do not have to order the mother back to [M] however to ensure that the father has a meaningful relationship with the children. The relationship between children and a parent living at a distance may not be the same as it would have been had the parent lived closer but it can still be meaningful in other words “significant important and valuable to the children”[10]. Nurture and guidance can still be offered, albeit less frequently.
[10] Mazorski v Albright (2007) 37 Fam LR 518
The mother proposed that the father spend only one day each fortnight with the children. This would not prevent the children having a meaningful relationship with the father but it would not provide the father with much scope to provide nurture as well as do fun activities with the children and it could only be recommended if the children were likely to be at risk of harm if they spent longer with the father.
The second primary consideration is the need to protect the children from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.
The mother told Dr H in July 2011 that she had some fear of the father committing familicide, a fear enhanced by the fact that the father had guns. However there was no evidence that such a catastrophic event was likely to occur.
There was violence in the parties’ relationship but there was no violence and no threat of violence at the time of separation and there has been none since. The father has not engaged in any obsessive behaviour post separation such as stalking or making repeated threats to the mother.
The reasons the mother gave at the end of her affidavit filed on 20 January 2012 for proposing that the father spend limited time with the children did not include a perceived risk of violence. The mother said as follows:
I do not trust [Mr Longer] with the children. I do not trust him with alcohol, his careless attitude to firearms, drinking and driving with the children and leaving the children without proper supervision. I do not trust him not to denigrate me to the children and I believe he is quite insensitive to their need for security and settled relationships. I propose that the children see the father at least fortnightly but day-only.[11]
[11] Mother’s affidavit filed 20 January 2012 paragraph 89
During cross-examination the mother that she did not consider that the father would deliberately harm the children, and I also formed that view after listening to the parties’ interaction over two days when the father cross-examined the mother.
There was no evidence that there was any violence in the father’s current relationship.
The mother alleged that the father was occasionally abusive to children during the relationship. She said that on one occasion he hit [X] with a stick and Mr C alleged that on another occasion the father pushed [X] out of way with a piece of wood which cut her.
In her affidavit filed on 22 March 2011 under the family violence heading the mother alleged that in September 2010 she saw a bruise on [X]’s bottom and said that when she asked [X] what happened [X] said that the father had hit her.
The father denied hitting [X] with a stick and denied pushing her out of the way with a piece of wood at a barbecue and injuring her. He also denied ever causing a bruise on her bottom.
Dr H did not observe any fear of the father in the children in July 2011 nor did she perceive any anxious desire by them to placate him and I cannot be satisfied on the balance of probabilities that the father has even abused or assaulted [X]. I am not satisfied that the children would be at risk of abuse in the father’s care in the future.
I have concerns about the father’s parenting capacity but I do not consider that he would pervasively neglect the children.
The father alleged that he had seen scratches and bruises on the children and had heard the mother yelling at them while he was on the phone and he put two and two together and concluded that she must be abusing the children. I am not satisfied on the balance of probabilities that this has ever occurred or is likely to occur in the future, or that the children are likely to be exposed to abuse (as defined in the Family Law Act pre-June 2012 or indeed as defined now) or neglect or family violence in the mother’s care.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act I am obliged to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the children or family violence.
The father committed an act of family violence in November 2009 and the presumption does not apply. It is still open to me however to make an order for equal shared parental responsibility if I choose to do so, and this is what the father sought.
An order for equal shared parental responsibility requires the parents to comply with s.65DAC of the Family Law Act which provides as follows:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
I am always loath to remove parental responsibility from a parent of young children who loves their children and will continue to be part of their lives. One parent is usually not the fount of all wisdom and children usually benefit from having input from both parents before major decisions are made. In addition there can be unexpected developments in children’s lives which require a major decision to be made and an order for sole parental responsibility can have unforseen consequences.
Arguments in favour of making an order for equal shared parental responsibility in this case are that and [X] and [Y] are healthy children and the number of long term decisions likely to be required for them are on current indications limited.
The parents were born in different countries but they have many things in common. They both value education and although they do not follow the same religion this is not likely to be bone of contention between them. The father values a rural lifestyle while the mother does not but this in itself would not be of any great relevance when it came to long term decision making once a decision is made about he issues now before me.
However the risks in making an order for equal shared parental responsibility if parents have a poor relationship, which these parents do, include the matter needing to come back to court so that a decision on a discrete issue can be made, one parent becoming agitated and stressed because of constant unproductive communication which the mother does and finally a decision not being made at all because agreement cannot be reached.
These parties have a demonstrated and not just a potential difficulty about reaching agreement about major long term issues. During cross-examination the father acknowledged that the mother had spoken to him about a choice of school before [X] started in 2012 and that he had replied that he would not agree to any school which was not in [M].
The mother selected a school and once that was done the father did not complain about her choice, indeed he said as follows:
I just went with her decision. I trusted her. I know she would have done the research. I know she wouldn’t send them to a bad school in the area.
There was no sign during the hearing that the parties communication or their attitude to each other was likely to change and I consider that although major decisions may not need to be made frequently it is not in the children’s best interests that when they are required they lead to stressful and unproductive discussions. This is a case in which I consider that I must make an order that one parent have sole parental responsibility, subject to some provisos so that the children names are not changed without consent, they are not relocated to an inconvenient place and that they are not able to be taken overseas without agreed or a court order.
The recommendations in the Family Report
I must now decide the issue of the children’s living arrangements but before I do so I need to consider the recommendations in the Family Report.
Dr H prepared a family report in July 2011, seven months before the hearing commenced.
She said as follows in her report:
Substantially shared cared, or even spending significant time with the non-residential parent, is not a workable arrangement for [Y] and [X] given their ages, the geographic distance between households and the high conflict between their parents.
It is my concluded opinion that it is not in the children’s best interests to reside with Mr Longer. Mr Longer does not currently appear to pose any immediate risk of harm to his children but unless the evidentiary evidence should establish that the allegations of Ms Longer, her family and friends are fabrications entirely without foundation I would not be prepared to recommend [X] and [Y] stay with Dad in [M] at this stage in their young lives. However, the children are fond of their father, enjoy spending time with him and may feel rejected bafflement if he suddenly vanished from their lives. Accordingly, I recommend:
Regular daytime visits should continue between the subject children and their father
The family should be referred to a Keeping in Touch program or equivalent program
The arrangement could be reviewed in 12-18 months with an updated Family Report. Favourable indicators would include evidence that Mr Longer has been able to act as an external stress regulator for his children during visits and at handovers, that the parents can effectively insulate their children from the ill-will between them at handovers and that both parents have been assisted in psychotherapy to become more thoughtful about how to balance emotional connection with personal sovereignty in family relationships. [12]
[12] Family Report paragraphs 78 & 79
Dr H’s report contained the following comment:
The negative impact on [X] and [Y] of circumscribed weekly contact with Dad is not likely to be serious, and as long as they are receiving normal nurturance from their mother they will be able to cope with missing him.[13]
[13] Family Report paragraph 76
During cross-examination Dr H said that she did not support the children travelling to [M] to spend time with the father until they were much older. When asked why the first reason Dr H gave was that they would need to travel there by motor vehicle.
The mother submitted that I should place considerable weight on
Dr H’s recommendations, but for the following reasons I find myself unable to do that.Dr H was not given a balanced picture of certain historical matters. She referred more than once in her report to the incident of the father removing the children from the day care centre in March 2011 but made no mention of the mother’s arbitrary removal of the children from [M] in February 2011.
There is considerable focus in Dr H’s report on the mother’s allegations of violence and the fact that the father owns guns. Dr H devoted a paragraph of the report to the fact that the mother referred her to a book called “Blood Vows” by Helen Cummins which Dr H remarked “sheds light on a particular kind of domestic despot, the middle class professional, much admired by outsiders, who treats his wife as property” and which is a book by a first wife about a familicide-suicide committed by a man who killed his second wife and children and himself.
I accept that it was necessary for Dr H to consider the issue of familicide carefully because the mother raised it early in the case and it is always a deeply troubling when such a concern is raised. However that concern has abated as time as passed and more evidence has emerged.
In the conclusion to her report Dr H said that the father did not currently appear to pose any immediate risk of harm to the children, but she responded quite aggressively to questions he asked during cross-examination in July 2012. She gave scathing and dismissive answers to his questions and used the emotive term “batterer.” She gave the impression of dealing with all suggestions put to her by the father against a background of firmly believing that he was a perpetrator of controlling and coercive violence.
Dr H did not have the opportunity to hear the evidence given at the hearing and was not aware of the more rounded evidence about the behaviour of each party which emerged as a result of cross-examination. It is not open to me to find that the father perpetrated coercive and controlling family violence during the relationship.
There is a real possibility that the shadow of the concern raised about familicide and the concern raised about whether the father was a perpetrator of coercive and controlling violence led Dr H to make somewhat unusual recommendations about the amount of time children (who were 5 ½ and 3 ¾ when Dr H was cross-examined in July 2012) should spend with their father and I consider that I need to be careful about the weight I give to her recommendations.
Conclusion
I have expressed more than once during the course of this matter my regret that it commenced with the mother unilaterally relocating from [M]. The father would inevitably have felt considerable pain and some anger about the sudden removal of his children to a place 4 ½ hours drive away and about the deception practised on him by the mother and her family in order to achieve this relocation.
However as I said during the interim proceedings I have to make the orders which I consider to be in the children’s best interests and if that means that the mother is permitted to remain in the place to which she unilaterally relocated then those are the orders which will have to be made.
The father urged me to order that the mother be made to return to [M] and in the Full Court decision of Sampson & Hartnett (No.10)[14] the majority expressed the tentative view that the court had the power to order a parent to relocate. They emphasised however that if this power existed it would only be appropriate to exercise it in the rarest of circumstances, and they also expressed concern about the enforcement problems which might follow if a parent did not relocate as ordered.
[14] Sampson & Hartnett (No.10) (2007) 38 FamLR 15
Even if I did have the power to order the mother to return to [M] and parent the children there I would not exercise it. The mother has been established in Newcastle for a little over two years now. She has family support and assistance with accommodation in Newcastle and she would not have that in [M]. She has formed a new relationship with a person who works in the Newcastle area.
The mother finds the father very difficult to deal with and placing her in close proximity to him without family support would be highly likely to result in the mother becoming stressed. There is a high likelihood that a forced return to [M] by the mother would impact adversely on the children.
It is true that it would place the children in close proximity to the father and enable the children to see him more frequently, but the same outcome could be achieved by the father relocating, something he stubbornly refuses to consider doing.
Given that I am not prepared to make the mother move and that the father will not move a decision has to be made about where the children are to primarily live.
The father proposed that the children live with him and spend limited time with the mother while she completed an anger management course and had time to absorb the lessons learned.
I accept that the children have a good relationship with the father but this outcome would be highly likely to be detrimental for them. The children would have to move to a home in which they have never lived and become used to a new family combination. They would not understand why the change was being made and would inevitably greatly miss their mother. The father does not value the mother or have much capacity to empathise with the children and would not be able to help them adjust to the change. I have reservations about the father’s capacity to provide for the children’s day to day needs on a full time basis.
The father proposed that after 12 months the children commence living in a week about arrangement. Even if this became reasonably practicable because the parties lived close together I do not consider that such an outcome would be in the children’s best interests.
The parents frequently came into conflict with each other during their relationship and they have different ways of doing things on a day to day basis. The father is not able to tolerate someone doing things differently to him, and the risks of conflict between the parents over the way each was caring for children if the children moved between households would be unacceptably high.
The only order reasonably open to me on the evidence is an order that the children live primarily with the mother. They are primarily attached to her indeed have lived almost exclusively with her for a very significant portion of their lives and I am satisfied that the mother is doing a good job of caring for them. It follows that an order should also be made that the mother have sole parental responsibility for the children subject to the provisos mentioned earlier.
Dr H did not endorse equal time because of the children’s ages and the conflict between the parents and on this part of her report I place weight.
I then have to consider the time the children should spend with the father.
The mother proposed that the children spend time with the father for one day each fortnight and that he be restrained from removing them from the Newcastle area. The mother’s case was that an accumulation of small concerns about the father (leaving the children in the car alone in a shopping centre car park, his carelessness with seat belts, his carelessness with guns, the children wandering into the street on one occasion when they were in his care) meant that it was preferable that the children spent shorter rather than longer periods with him. She submitted that the father could hold it together for shorter periods but might not be able to for longer periods.
I do not consider that such a restrictive order can be justified.
The effect of such an order would be that the children would not be able to see the father in his home or interact with their half-sibling in the comfort of that home. There is a risk that the father’s time with the children would dwindle away if he found regular visits to Newcastle, the travel for which would take longer than the time he was able to spend with them, impossible to maintain.
The children have a good relationship with the father and while he has slipped up on occasions in regard to their care I am not convinced that they would be at risk of harm if they spent longer periods with him than they do at present.
The travel distance between [M] and Newcastle and the straitened financial circumstances of the parties means that every alternate weekend in [M] would be too much but I am satisfied that it would be in the children’s best interests to spend time with the father on one weekend each month, from Saturday to Sunday initially and then from Friday to Sunday once the single overnight has had time to bed down.
I also intend to order that the father be permitted to spend time with the children on one Sunday each month in Newcastle provided that he gives the mother 72 hours notice by email of his intention to do so. The father might not exercise this time but the option will be there, and the 72 hours notice means that the mother will not be too inconvenienced if the father does not come.
There is no point my ordering that the father spend the whole of this weekend with the children in Newcastle because he is not in a strong financial position and he has no connections in Newcastle to assist with accommodation.
Now that the children are both at or near school age they also need to be able to spend whole weekends with the mother, and she will have two and sometimes three weekends a month during school terms unaffected by the need to provide the children to spend time with the father.
I am satisfied that some holiday time should be slowly introduced and I intend to start by ordering that the children spend five days with the father in the Term 3 school holidays. [Y] will by then be almost 5 and [X] will be more than 6 ½ and there is no reason why the children should not be able to manage such time.
The mother proposed as an alternative that an order be made requiring the father to spend time with the children at the home of his sister
Ms L. Ms L was asked if she would be willing to have the father stay in her flat in Sydney and she said that she would, but I do not intend to make this order. I do not consider that such a restrictive order is necessary in order to keep the children safe.Where changeover is to occur is a very difficult issue.
The mother proposed that changeovers be in Newcastle. She is a student and on a very limited income. She is receiving no child support and this is unlikely to change in the near future.
I am sympathetic to the mother and I am certainly not going to order that the mother take the children all the way to [M] as the father proposed but there is much to be said for a changeover at a mid way point.
If the father drives from [M] to Newcastle and picks up the children and then drives back to [M] he will in the end have done over 10 hours driving. I cannot be certain that his partner, the mother of a young child, will always be with him and it will be safer for the children if they drive with a parent who has only driven for half this time.
I am conscious of the financial impost of such an order on the mother but the welfare of the children must come first and I intend to order that changeovers occur at [D]. This will result in the father doing more driving than the mother and more driving then if changeover was at [R] but it was the changeover point the father originally proposed as an alternative to [M].
I am also conscious of the fact that the mother may be reluctant to go to changeovers alone but she has a supportive family and I will also order that she can arrange for a nominee to facilitate these (and indeed all) changeovers.
I expect that the mother will consider the order for changeover in [D] most unfair but to make a different order might place the children’s relationship with the father and possibly their safety at risk.
I have considered the possibility of ordering that the father pay the mother something for petrol costs but the issue was not raised during the hearing, I would have difficulty fixing an appropriate amount and implementation of such an order could simply lead to more conflict between the parties.
The mother sought an order that each parent ensure the attendance of the children at the children’s pre-arranged sporting social and cultural events while the children are in their care. I do not intend to make this order.
The mother did not attempt to define cultural or social events and the term could include birthday parties and local events which the mother considered important but the father did not. The risk of conflict occurring between the parties over the interpretation of those terms is unacceptably high and it also implies a judgment that a whole range of local social activities are more important for the children than time with their father.
The mother no doubt sought this order as a result of the debacle surrounding [X]’s attendance at her end of year ballet concert in 2012. I have been critical of the father for the way he responded to the mother’s request that he be flexible in order to allow [X] to attend, but I am also concerned about the fact that in the face of the father’s inflexibility the mother breached the orders.
Both parents need to carefully heed the following passage in the Full Court decision in Gravis & Major:
It needs to be remembered when dealing with orders involving a fixed contact regime that children are not parcels to be passed back and forth at the convenience of the parents. Children have lives and routines of their own. They do receive invitations to birthday parties of friends often at short notice. They do take part in school productions which are commonly very important to them no matter how minor their role in the production might be. These are things over which the parent with whom the child is living has not much, if any, control. In our view responsible parents will see the court orders as providing a template around which they can build their time with the child but in doing so they will adopt a flexible and common sense approach so as to promote the child’s happiness and wellbeing. Of course, if the parents are unable to reach agreement about a departure from the strict terms of the orders then the parent entitled to nominate a time with the child can insist upon a strict compliance.[15]
[15] Gravis & Major [2010] FamCAFC 239
I can only hope that once orders are in place giving the father more time with the children he will be more accommodating if asked to make changes to arrangements than he was at the time of the ballet concert, and I can only hope that the mother does not ask to change the arrangements too often, and if it repeatedly turns out that [X] has birthday party invitations and ballet events on the last weekend of each month then the father’s time with [X] will need to prevail.
The mother sought an order that each party be restrained from consuming alcohol in excess of the NSW drink driving limit whilst the children were in their care. The difficult with making such an order is that unless a parent happens to be caught drink driving it is almost impossible to enforce. The evidence about the father’s alcohol consumption is not sufficiently concerning to persuade me that I should make such an order.
The mother sought an order that the father be restrained from bringing the children into contact with or allowing them to remain in the presence of firearms. If such an order was made it would be breached if the children were in the same room as a gun cabinet.
The mother is sensitive about the risk posed by firearms and many members of the community share that sensitivity. The father did not evince any desire to take the children hunting or to engage them in target shooting and he has a choice about whether to clean the guns when the children are with him. I intend to order that the father ensure that whenever the children are in his home his firearms are secured within a gun cabinet and are not removed from the gun cabinet at any time during the children’s visit.
The father offered to get rid of the guns if the court required it but I am not persuaded that the evidence justifies me making such an order.
In light of the father’s admissions about seat belts I intend to make an order as sought by the mother that the children being secured in motor vehicles with child restraints. In the light of the evidence about the father’s driving record and his admission that he had used an unregistered motor vehicle to transport the children I intend to order that the father be restrained from transporting the children in a motor vehicle which is unregistered or in a motor vehicle driven by him if he is unlicensed.
The parties need to have a channel of communication so that they can exchange information about the children on a regular basis, if for no other reason than to avoid each party stewing on unresolved concerns about the children. I could order that they continue to use a communication book but this is the 21st century and they are computer literate adults and a preferable alternative is email communication.
If the father sends emails and the mother ignores them this is likely to hasten the return of this matter to court, and I intend to order that the father be permitted to send one email concerning the children to the mother immediately following each monthly visit and that the mother respond to that email within 72 hours. The parties will of course still need to communicate by email or text message about other small issues as they arise.
I am fearful of something going wrong but if I try to prescribe further how the communication is to occur (by for example ordering that the father keep his emails short and non-blame focused and the mother respond at a reasonable length) it will very likely only fuel further contravention applications.
The father repeatedly raised during the proceedings the issue of the mother physically disciplining the children. The mother denied that she has ever done so harshly but I intend to order that each party be restrained from physically disciplining the children. Societal norms are moving in this direction and compliance by both the parties with this order will remove a potential source of conflict.
I do not intend to make any of the orders sought by the father about the manner of the children’s day to day care as I am not persuaded that it is necessary to do so in order to ensure the children’s wellbeing.
I do not accept that there is any need for the mother to do an anger management course and I do not intend to order that she do so.
The father sought an order that Skype rather than telephone be the default method of communication between the parents and the children. I hope that Skype will be used as often as possible but I do not intend to prescribe it by order because this is likely only to lead to arguments and perhaps contravention applications. There may be occasions where the mother is not at home and does not have access to Skype at the time for telephone communication for example.
The father sought an order that he be permitted to take the children to the Czech Republic for a holiday in mid 2013. I do not intend to make this order.
The children have a good relationship with the father and it is important that they maintain a connection with their Czech heritage and their relatives in the Czech Republic. However the children have not spent any overnight time with the father since January 2011 and it would be a big stretch for them to spend several weeks with him in the near future in order to travel with him to the Czech Republic.
There is considerable merit in the submission by the mother’s counsel that it would be preferable for the father to make a discrete application about this issue at some time in the future once he had a history of spending more extensive time with the children.
Dr H recommended in her report that interim orders only be made and the matter be re-assessed and another Family Report be prepared in 12-18 months time. Neither parent sought this. They have been in the court system quite long enough. They now need to try to manage outside the court system absent some serious even which requires the matter to return here.
I hold onto the hope that once final orders are made the father will accept that he cannot change the mother’s residence in Newcastle and focus on being the best parent he can be for the children. If that does not happen and if there are continuing problems with compliance with the orders or if serious issues arise about parenting capacity or denigration then the children’s time with the father may need to be revisited.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.
I certify that the preceding three hundred and forty-four paragraphs are a true copy of the reasons for judgment of Terry FM
Associate:
Date: 02 April 2013
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