Lovell and Doolan

[2015] FamCA 836

FAMILY COURT OF AUSTRALIA

LOVELL & DOOLAN [2015] FamCA 836

FAMILY LAW – CHILDREN – Best interests – Where there are two children aged 12 and 8 – Where the children live primarily with the father and spend five nights per fortnight with the mother –Where the father and ICL sought that the mother’s time be reduced to each alternate weekend – Where the mother sought that the children live with her and spend every alternate weekend with the father – Where the mother made several allegations of violence against the father – Where there is no evidence to support the mother’s allegations – Where on the second day of the final hearing the mother withdrew her application and the matter proceeded on an undefended basis – Where the children have meaningful relationships with both parents – Where there is a high level of conflict between the parents  – Where the mother conceded that it would not be in the children’s interests for the parents to share parental responsibility – Orders made in the terms sought by the father and ICL.

Family Law Act 1975 (Cth) – Part VII, ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA

APPLICANT: Ms Lovell

RESPONDENT: Mr Doolan

INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

FILE NUMBER: SYC 513 of 2010

DATE DELIVERED: 29 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 28 and 29 September 2015

REPRESENTATION

FOR THE APPLICANT: Ms Lovell in person

COUNSEL FOR THE RESPONDENT: Mr Dura

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

Orders

1. That it is noted that the mother concedes that the father have sole parental responsibility for the children.

1. That the mother is given leave to withdraw her Initiating Application filed on 23 November 2012 amended by orders as set out on pages 2 and 3 of her case outline document dated 16 September 2015 and such application stands withdrawn, is dismissed and is removed from the court’s list of active cases.

1. That the father is given leave for his Response filed on 13 February 2013 to be heard as an undefended proceedings.

1. That orders are made in accordance with paragraphs 1 – 3 and 5 – 12 as amended of the orders sought by the father at Section G of the father’s case outline for hearing filed in Court on 28 September 2015 as set out hereunder:-

1.That the Orders of the Federal Magistrates Court dated 12 April 2011 (“the Orders”) be discharged.

2.That the Father have sole parental responsibility for the children [B] born … 2003 and [C] (known as [C]) born … 2007 (hereinafter collectively referred to as “the children”).

3.That the children live with the Father at all times other than when they are spending time with the Mother in accordance with these Orders.

4.[Deleted]

5.That in the alternative to Order 4 above, the children spend time with the Mother as follows:-

a.Each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday;

b.From 4pm on Christmas Day until 4.00 pm on Boxing Day in 2015 and each alternate year thereafter;

c.From 10am on the Saturday prior to Mother’s Day to 5.00 pm on Mother’s Day; and

d.On each child’s birthday from 5pm to 7pm (if a school day) and from 10.00 am to 2.00 pm if the children are not otherwise in the Mother’s care on a non-school day.

6.That the Mother’s time as provided for in Order 5 above shall be suspended at the following times:-

a.From 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in 2016 and each alternate year thereafter; and

b.From 10.00 am on the Saturday prior to Father’s Day to 5.00 pm on Father’s Day.

7.That the Mother be prevented and restrained from attending the school attended by the children and/or any extra curricular activity participated in by the children, or either of them, on any occasion when the children are not spending time with her in accordance with these Orders.

8.That each of the parties are restrained from abusing, denigrating or criticising the other parent in the presence and/or hearing of the children, or either of them, or allowing any other person to do so.

9.That the Father be at liberty to make application to the Family Court for the release of the children’s passports by the Registry and shall thereafter retain possession of the children’s passports.

10.That the Father be permitted to travel with the children outside the Commonwealth of Australia provided that:-

a.The travel is for a period not exceeding four (4) weeks;

b.The Father provides to the Mother a copy of the flight itinerary/travel details identifying the children’s return flight dates/times and destination not later than 28 days prior to the intended date of departure; and

c.The Father provide to the Mother a telephone contact number that is available for the children to communicate with the Mother and for the Mother to communicate with the children during the period of their travel; and

d.In the event that the period of travel coincides with the time the children are to spend with the Mother, the Father is to nominate “make-up” periods for the children to spend with the Mother either prior to their travel or upon their return for the equivalent amount of time missed.

11.That the Father shall do all things necessary to authorise any school attended by the children, or either of them, to forward to the Mother copies of all documents relating to the children’s education including but not limited to school reports, school photos and newsletters.

12.That each of the parties shall advise the other of their current mobile telephone number and shall ensure that any change is notified to the other party within 24 hours of such change.

13.That for the purposes of these Orders the Father shall cause the children to be delivered to the Mother, or her nominee, at the commencement of her time with the children at McDonald’s [Suburb D], located at [E Plaza], [F Street, Suburb G] and the Mother shall cause the children to be returned to the Father, or his nominee, at the same location at the conclusion of her time with the children.

1. That the Independent Children’s Lawyer forward a copy of these orders to the mother as soon as possible and to provide to B’s counsellor a copy of the reports of Dr H and Ms I and this Court’s Reasons for Judgment dated 29 September 2015.

1. That 30 September and 1 October 2015 are vacated.

1. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet [attached to the engrossed orders] and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 513 of 2010

Ms Lovell

Applicant

And

Mr Doolan

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parenting arrangements of the children B, who was born in 2003, and B, who was born in 2007.  Unfortunately their parents have been engaged in litigation concerning such arrangements for the last five years or so.  Their parents are Ms Lovell and Mr Doolan.  For convenience I shall refer to them as “the mother and the father”. 

2. Final parenting orders were made on 12 April 2011 by the then Federal Magistrates Court, but the arrangements under those orders have broken down.  The parents have asked this Court to determine new parenting arrangements in the interests of the children. 

The Hearing

1. The proceedings commenced before me as a defended hearing, and cross-examination of the mother as applicant commenced on the first day of the hearing and resumed on the second day.  After perhaps an hour or so of cross-examination on the second day, the mother informed the Court that she had “had enough” and no longer pressed her application.  I gave her leave to withdraw her application.  The consequence is that in my view the matter could then only proceed on an undefended basis.  The mother remained at court for a short time then left during submissions by learned counsel for the children’s father.  Mr Weaver represents the Independent Children’s Lawyer (“ICL”). 

The Applications

1. The orders sought by the father are as set out in section G from page 8 of his case outline documents, and in summary they are as follows: 

   ·That orders of the Federal Magistrates Court dated 12 April 2011 be discharged;

   ·That the father have sole parental responsibility for the children;

   ·That the children live with the father at all times, other than when they are spending time with their mother in accordance with these orders;

   ·That the children spend time with their mother:

   (a)each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday;

   (b)from 4.00 pm on Christmas Day until 4.00 pm Boxing Day in 2015 and each alternate year thereafter;

   (c)from the conclusion of school on the Friday prior to Mother’s Day or 3.00 pm in the event of a non-school day until commencement of school on the Monday after Mother’s Day or 3.00 pm in the event of a non-school day;

   (d)on each child’s birthday again from conclusion of school until 6.00 pm - so presumably that’s going to be changed also

   ·Various machinery orders;

   ·Various orders for restraints;

   ·Orders in relation to school; and

   ·Orders to enable the father to make application for release of the children’s passports by the registry of this Court, so that the father would retain possession of the passports, and orders to permit the children to travel with their father outside Australia. 

2. Those orders sought by the father are supported by the ICL. 

Background

1. The father was born in 1978.  The mother was born in Country J in 1971.  The parties commenced cohabiting in 2002, and they separated finally in April 2007. 

2. The father has a child from an earlier relationship, Ms K, who was born on 1 May 1997 and who is currently 18 years of age.  Ms K has lived primarily with the father since she was approximately one year old.  Recently she left home and is living independently. 

3. In 2003 B was born.  She is currently 12 years of age.  At the time of separation B was living primarily with her mother.  As I have said above, C was born in 2007.

4. On 4 December 2008 final orders were made by Federal Magistrate Kelly after a defended hearing, which in effect provided for the children to live with their mother and spend increasing time with their father. 

5. On 27 July 2010 C was admitted to hospital with a viral upper respiratory tract infection and acute asthma.  An acute asthma discharge plan was provided upon his discharge from hospital. 

6. On 12 April 2011 Federal Magistrate Altobelli, as his Honour then was, made orders after a further defended hearing that lasted two days.  His Honour ordered that the parties have equal shared parental responsibility and that the children live with their father and spend time with their mother six nights per fortnight, in effect a reversal of the orders made on 4 December 2008.  The children came into the care of their father in approximately 19 April 2011. 

7. Those orders also provided for the children to live with their mother at specified times, and this was: during school term, in week one of each two-week cycle from 9.00 am Thursday or conclusion of school, Thursday, or 3.00 pm in the event of a non-school day, whichever was appropriate, until 3.00 pm Friday or the conclusion of school, Friday, or 3.00 pm in the event of a non-school day. And then in week two of each two-week cycle from 9.00 am Thursday or the conclusion of school, Thursday, or 3.00 pm, event of a non-school day until 3.00 pm Monday or the conclusion of school, Monday, or 3.00 pm in the event of non-school day.  And then there was some provision for the children to live with their mother for what break down as half of each school holiday period and defined times at Christmas.  And there were orders for change-over, certain restraints and provisions in relation to interstate and overseas travel. 

8. After the children spent time with their mother on 15 September 2011 the mother retained them and made several child abuse allegations against the father.  She returned B four days later, and the father commenced proceedings seeking that C be returned to his care. 

9. On 9 November 2011 Federal Magistrate Altobelli made orders that the mother return the children to the father and that the mother’s time with the children pursuant to the orders, the substantive orders, be suspended. 

10. On 22 December 2011 the parties entered into consent orders providing for the mother’s time with the children to be re-instated and for the father to travel with the children to the Country L.  In January 2012 the children travelled with their father to the Country L. 

11. In late January 2012 the mother made a report to the Department of Family and Community Services (“DFACS”) relating to alleged self-harm threats made by B.  In August 2012 the father indicated to the mother through his legal counsel that he was considering relocating to the Country L.  On 23 November 2012 mother filed an Initiating Application, which is this application, seeking discharge of the substantive orders and seeking different orders, and it is that application in its amended form which has been withdrawn by the mother today. 

12. The father commenced a relationship with Ms M in approximately December 2012.  Ms M has three children from a previous relationship, N, who is aged approximately six, O, who is seven, and P, who is about 13, and a step-daughter, Q, aged 17 years, all of whom live in the family home. 

13. On 4 February 2013 the parties entered into consent orders providing for the re-appointment of an ICL, that the father be restrained from relocating the children from the Commonwealth of Australia and that both parties be prevented from moving the children from Australia.  Orders were made for the proceedings to be transferred to this Court, apparently due to what was described as “the international relocation aspect”.  On 13 February 2013 the father filed a Response. 

14. On 21 March 2013 the mother retained the children after she noticed a bruise on Cs leg.  That caused involvement of the police.  The mother reported it to the DFACS.  And then the children did not spend time with their father until 27 April 2013, that time for a period being supervised. 

15. On 24 March 2013 the mother and C attended Suburb R Police Station.  The police issued the father with a provisional apprehended domestic violence order for the protection of C and B.  The police subsequently charged the father with assaulting C.  The father denied any instances of child abuse. 

16. On 26 April 2013 orders were made by consent providing for the father to spend supervised time with the children.  He spent time with the children on 27 April 2013, supervised by the mother.  But he said the mother cut his time short on that occasion. 

17. On 28 April 2013 the father was spending time with the children at McDonald’s supervised by the mother.  His partner, Ms M, also attended with her children.  And then the father claimed that the mother came towards them and said to Ms M, “You go.  You are interfering.  You’re not supposed to be there”.  And my recollection of the mother’s evidence is that she conceded that she had done that.  Anyway, the upshot of that was that the mother called the police, and she left with the children. 

18. On 9 May 2013 the father attended Suburb S Local Court in relation to the apprehended domestic violence order application and the assault charge.  The mother, the father and each of the children gave evidence, and ultimately the proceedings against the father were dismissed. 

19. As I say, in May 2013 Ms K left the father’s home. 

20. On 17 June 2013 Loughnan J made interim orders that the orders of 26 April 2013 be vacated and that the substantive orders be restored, in effect, the children live with father and spend time with mother on the weekends.  The children returned to the care of their father that evening.  The matter subsequently came before his Honour for a first day LAT. 

21. On 29 July 2014 the family report prepared by family consultant Ms Ms I was released.  In October 2014 the father and his partner, Ms M, commenced living together. 

22. In August 2015 I think the mother alleged that B had made threats of self-harm, and the police conducted a welfare check.  It is clear that there had been many complaints to the police by the children’s mother and many occasions on which the police attended at the father’s home and checked on the children, and on each and every one of those occasions, certainly as the evidence is before this Court at the present time, the police reported that there was nothing untoward to the children and the children were fine.  A recurring unfortunate theme about these proceedings is the mother’s ongoing allegations about alleged risk to these children constituted by their father, and I will in due course come to those matters. 

The Applicable Law

1. The manner in which the statutory provisions which guide the Court in its consideration and determination of parenting proceedings is set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). When considering making a parenting order, the Court is to bear in the mind the objects of the legislation.

2. The principles underlying the objects are set out in s 60B of the Act. I will not refer to those, but I note the objects and the principles.

3. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. That is set out in section 60CA and section 65AA. Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

Parental Responsibility

1. Section 61C of the Act provides to the effect that each of the child’s parents has parental responsibility in such time as the child obtains the age of 18 years, unless the Court makes an order for joint parental responsibility. Parental responsibility is defined by section 61B of the Act to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children.

2. Section 61DA(1) provides that when making a parenting order in relation to a child the Court must apply a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  Sub-section (2) of that provision provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parent of the child is engaged in abuse of the child or another child member of the parent’s family or family violence. 

3. It is probably the case in this case that the mother’s behaviour towards the children on the basis of both the psychological report prepared by Dr H now some years ago and the more recent observations by a family consultant, Ms I, would lead to the view that in fact the mother’s behaviour towards the children constitutes emotional and psychological abuse or harm of the children, and in that respect the presumption probably does not apply.  But in any event, it is my clear view that the presumption would not apply, because it is not in the best interests of the children for their parents to have equal shared parental responsibility. 

1. In any event, the mother clearly indicated during the course of her cross-examination that she and the father have a dreadful relationship, that they have great difficulty communicating, that their only medium of communication has been by text messages.  And certainly from what I have seen of those matters, much of that texting has been unable to be done without insult and rudeness and inflammatory remarks in general, negative tones.  The mother conceded that it would not be in the children’s interests for the parents to share parental responsibility. 

2. In any event, the father has made an application for sole parental responsibility.  The mother conceded that position, and she made it clear when she withdrew her application that she knew that that would be amongst the order which the Court would make, so my clear view is that parental responsibility will by order be placed in the children’s father. 

3. So that takes me to consideration of best interests. How the Court goes determining what’s in a child’s best interests, as I say, is set out in ss 60CC (2) and (3) of the Act.

4. The primary considerations are set out in s 60CC(2). These are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. And subsection 60CC(2A) of the Act requires the Court in applying such considerations to give greater weight to the latter consideration. That’s the protective one.

5. Having noted these primary considerations at this point, I will return to discuss them below, and I direct my attention immediately to the additional considerations. As I say, these are set out in s 60CC(3).

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

1. In this regard I note that Ms I made certain observations about views. 

2. She said B informed her that she would like to spend more time with her mother and that she misses her mother and their dog, she said that she wished that none of this had happened and that the parents would not fight and that she would like the parents to talk nicely to each other, she said that it is not possible for her mother and father to be in the one place together, she said that she wishes that she could live with her mother and that she could be happy, she said that she’s happy sometimes and that at the time of the interview she was mostly happy. 

3. Ms I says C told her that he would like “heaps of days with Mum and with Dad”.  She said C said that he wished that “my mum and dad never be angry together”, he said that he misses everybody the same, including his maternal grandmother.  Now, in respect of those views which B expressed to Ms I, Ms I also made the observations, given the complexity of this matter and the difficulties in terms of the mother’s behaviour vis-à-vis the father and the children, she thought that it would be inappropriate for the Court to place very much weight on the children’s views, and I accept that professional opinion. 

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. It would appear that the children have perhaps what I would describe as a rather complicated relationship with their father.  They are only too aware that their mother hates their father and that she has a very poor view of his partner, Ms M.  The children understand that because of this their mother expects them to act in her presence in a manner in which they do not show any approval or affection for their father or his partner. 

2. For example, Ms I said at paragraph 57 that whilst sitting with their mother in the court waiting area prior to being interviewed by her, both children appeared reserved towards their father on his arrival.  But she said during the observations of both B and C – she said they appeared very happy to see their father.  She said that her observations of the children with their father indicated warm, relaxed relationships.  She said that C and his father were physically affectionate towards each other and they appeared to have a close relationship.  She said that similarly B was pleased to see her father and she and her father appeared very comfortable together.  She said that the father was responsive towards the children and that this appeared to her to be their usual way of relating. 

3. Ms I said that B also has a good relationship with Father’s partner, Ms M, B informed Ms I that she’s comfortable with Ms M, chats with her and sometimes has a cuddle with her, she said that C also seems happy at Ms M’s, C also told Ms I that he likes Ms M, Ms M informed Ms I that the father and both children are very affectionate towards each other and that B is very close to her father.  She said that another example was that B told her that she feels caught in the middle of her parents, she gave an example of sometimes telling her mother things that are not bad things about time at her father’s home but her mother would get very upset about this. 

4. Ms I said that her observations indicated that there’s a warm relationship between the children and their mother.  She said that at the session both children were happy to see their mother and were affectionate towards her, each of them giving her a close hug, and I do not hesitate to accept Ms I’s observation and opinion about these matters.  

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

1. There is nothing really of relevance with this. 

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. I have a similar view that there is no relevant material about that matter. 

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. The father does not propose a major change in the living arrangements.  He proposes a slight shortening of time, but he still puts himself forward as the children’s primary parent. 

2. I have also indicated, the father proposes that the children would continue to spend time regular time with their mother.  So there would not be, in my view, any major disruption of the children on the basis of the orders that the father is seeking. 

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. 

1. My understanding of the matter is that the parents live reasonably close to one another and reasonably close to the children’s school. 

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. The father has demonstrated an ongoing capacity to provide for the physical, emotional and educational needs of the children.  Ms I said that both parents appeared to be able to ensure that the children are clean, well fed and attending school.  She said that their consistent primary residence with their father appears to have benefited them, to have a degree of stability and normality, even though they remain exposed to their mother’s relentless negative feelings and her mistrust of their father.  The father has been able to facilitate the relationship between the children and the mother.  The reports by the school principal and teachers have been to the effect that they have not heard the father to speak negatively about the children’s mother. 

2. On the other hand, there are serious parenting deficiencies, in my view, on the part of the mother.  Despite having attended a parenting-after-separation program, she has been unable to stop acting towards the father in a hostile and conflictual manner.  She has been unable to protect the children from her hatred of the father.  She continues to engage in very critical and rude text messaging to him.  She continues to overreact to complaints allegedly made by the children to her about their father.  She does not hesitate to act on such criticisms by making complaints to the police about the father and involving the children in her complaints to the police. 

3. I am satisfied that the mother has made so many complaints to the Suburb R police and other police that the police have the view that the mother has been engaging in using the police in effect as a weapon to assist her in these family law proceedings. 

4. Ms I has said that this has had a damaging effect on the children’s psychological and emotional wellbeing.  One effect of this is that the children know that their mother expects them to behave in a negative way about their father when they’re spending time with her.  And I will refer to that again below. 

5. In my view, the mother has no real capacity to facilitate a relationship between the children and their father.  She has a very poor view about the father’s partner, Ms M, and this just feeds into the difficulties for the children, because they have a good relationship with Ms M, as I have said. 

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. This is a matter which is of no relevance. 

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant matter.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. In my view, the father has demonstrated an appropriate attitude to the children and to the responsibilities of parenthood.  In my view, the mother has not, because of her inability to be able to encourage the children to have a relationship with their father and as a consequence of her damaging behaviour towards them.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. As I have said, the mother has made numerous allegations of violence against the father, but there is no objective evidence to support these and, as I have also indicated, although the police issued the interim or provisional apprehended domestic violence order and made an assault charge against the father, these were ultimately dismissed, as I have said, by the local court. 

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

1. There is no current family violence order.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. I must say, this poses somewhat of a difficulty because of the longstanding litigation between the parties, but the orders that I propose to make should limit the opportunity for further applications, hopefully.

Primary Considerations

1. I return to consider the primary considerations.  I accept that these children have close and loving relationships with each of their parents.  It would be to their benefit to have opportunity for continuing meaningful relationships with each of their parents, but this has to be considered in the context of the ongoing psychological harm being perpetrated on the children by their mother’s behaviour.  Such behaviour consists of her ongoing, unfounded and false allegations against the father, which have exposed the children to further conflict and distress, for example, taking the children to the police, exposing C to being called as a witness in the local court proceedings against his father.  Also, the disruptive effect which the mother’s behaviour has had in preventing the children to be able to remain in the care of their father in accordance with the substantive orders on at least two occasions and possibly more.

2. The seriousness of the mother’s allegations about the father being involved in the Mafia, having criminal associates, being involved in the drug underworld have been tested before Judge Altobelli and considered by Dr H and Ms I.  The findings have been consistent and these are that the mother’s allegations are not based in reality.  There was no evidence before me which would give cause to question the correctness of this, yet the mother continues, apparently, to hold this belief and this plays a part in her overreacting to things that the children say about their father, as I have observed.

3. I note Ms I says at paragraph 68 of her report:

   [B] and [C] are continually exposed to their mother finding fault with their father.  This undermines the children’s relationship with their father and exposes the children to psychological harm.  [C’s] young age and consistent exposure to this situation appear to have led to his feeling confused and he, in particular, appears to find it difficult to determine the truth of any situation.  This is likely to impact on his emotional, psychological, cognitive and moral development.

4. And going on at paragraph 69:

   [Ms Lovell] appears to readily overreact to situations which many other parents would not identify as negative, but see as part of ordinary life and different parenting styles.  She does not appear to be able to discriminate between major and minor issues of concern and raise serious abuse allegations and concerns about school lunches as if they hold the same levels of risk.  [Ms Lovell] does not appear to recognise the emotional impact on the children of her continually expressing negative views and behaviour towards the father.

5. Ms I says that the children are doing well at school and they are maintaining their warm relationships with both their father and their mother.  And she says:

   So this tends to indicate there are probably sufficient supports for the children to enable them to spend unsupervised time with their mother.

   She says, however, that:

   … continuous, concentrated exposure to this situation will inevitably impact on the children’s psychological and cognitive development. 

6. Accordingly, Ms I recommended that the children’s time with their mother should be reduced and should be taken in a block ensuring only one change-over, by which she means two change-overs, but really in respect of one period, those being at weekends.  She does recommend after school Friday to before school Monday, but in my view, this would continue to involve the mother at the children’s school. 

7. The mother’s presence at school has not been helpful for the children.  Her behaviour has been such as to cause her to complain about one of the teachers.  She spoke in a somewhat reserved, almost dismissive fashion about the principal.  My recollection was that she dismissed her as just being a relieving principal.  I understood that she has certainly a level of disrespect towards the principal and teachers at the school.  She has been involved in trouble at the school.  She speaks negatively at the school about the children’s fathers and both the principal and the teachers have remarked on that. 

8. The overall view that I have about the mother being at the children’s school is that it has been unhelpful and on the basis that her not being at school would serve, in my view, the best interests of these children. I propose making an order to restrain her from attending at the children’s school and, of course, as Mr Dura for the father said there would be considerable benefit – and this was supported by learned counsel for the independent children's lawyer – there would be a lot of sense and the best interests of the children would be supported by the mother having no involvement whatsoever at the school. 

9. Not only would she be restrained from going to the school, but she would not have the benefit of there being changeover in the care arrangements for the children in any shape or form at the school and, in my view, and I say it respectively, that reflects good sense.  So that, as was submitted, the school for these children, in this circumstances, could be seen as a safe haven where there would not be any opportunity for the mother to engage in the behaviours which I say have had negative consequences for the children. 

10. Turning back to the primary considerations, in my view, a balancing exercise needs to be undertaken between providing opportunity for the children to have meaningful relationships with their mother and, on the other hand, limited opportunity for her behaviours which have had such a negative effect on the children. 

11. I propose to accept the recommendation that the mother’s time be reduced so that there is less opportunity for those bad behaviours and that there would be, in effect, block periods of time; those would be times at weekends in accordance with the times proposed by the father and as supported by the independent children's lawyer, and on the basis that the father would have sole parental responsibility, that he would have the children primarily living with him. 

12. In my view, it would be in the children’s interest to be able to travel with the father, including travel overseas, and for those reasons I have the view that it is in the children’s interests to put in place orders which would provide passport facilities for the children to be obtained and renewed by the father and for them to be able to travel overseas with their father.

13. I have indicated that, in my view, there is good sense in not having changeover at the school, despite some initial attractiveness about that, and it is the case that, although the mother hasn’t been appraised specifically of this part of the application, Suburb G McDonalds would be reasonably readily accessible by each of the parents.  It would provide a public situation which hopefully would provide any disincentive or deterrent for any manifestations of frustration or opportunity for bad behaviour and, in my view, that changeover would also serve the best interests of the children.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 29 September 2015.

Associate: 

Date: 8 October 2015