LUCAS & LUCAS

[2019] FamCA 254

FAMILY COURT OF AUSTRALIA

LUCAS & LUCAS [2019] FamCA 254

FAMILY LAW – CHILDREN – With whom a child lives – where the children live with the mother – where the children spend time with the father alternate weekends and school holidays – where both parents are able to travel internationally with the children – where the mother is a Country B citizen – where upon separation the mother travelled with the children to Country B – where the children were ordered to return to Australia after the father commenced proceedings under the Hague Convention – where the children and mother suffered emotional distress due to the Hague Convention proceedings – where there is a history of family violence in the matter – where there is a current Apprehended Domestic Violence Order in place in protection of the mother – where the mother has supported the relationships of the children with the father – where ultimately the love and affection the children have for both parents is extremely strong – where both parents have the capacity to meet the needs of the children.
FAMILY LAW – CHILDREN – Parental Responsibility – where the mother will have sole parental responsibility – where the mother is capable of informing the father of the decisions that she has made - where the Family Consultant recommended that the mother have sole parental responsibility unless the father could demonstrate that he would communicate with the mother in a child-focused and appropriate manner – where the Family Consultant made a number of recommendations to assist this to occur – where the father has not filed any evidence to demonstrate any steps he has taken in relation to those recommendations – where the Court is unable to make that finding.
FAMILY LAW – PRACTICE AND PROCEDURE – where the matter was set down as a defended hearing – where the matter proceeded as an undefended hearing – where the father did not file a trial affidavit or attend the hearing – where the father attempted to file his trial material after the hearing had concluded – where the applicant father attended Court on the day and time that had been appointed for the delivery of orders and ex-tempore judgment – where the father did not make a formal application to re-open the evidence however his appearance at Court was treated as giving rise to that application – where the application is opposed by the mother and Independent Children’s Lawyer – where the father was aware of the trial dates and had been legally represented while the filing deadline for trial material passed – where the parties have been involved in extensive litigation in Australia and in Europe – where there needs to be finality of the proceedings – where sufficient court resources and time have been exhausted – where affidavit material filed by the father after the conclusion of the trial is not accepted and the evidence is not re-opened.
FAMILY LAW – PRACTICE AND PROCEDURE – Change of Venue – where proceedings were originally commenced in the Federal Circuit Court of Australia and were discontinued by the parties – where the father recommenced proceedings in the Family Court of Australia.

Family Law Act 1975 (Cth)

APPLICANT: Mr Lucas

RESPONDENT: Ms Lucas

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

FILE NUMBER: NCC 2525 of 2015

DATE DELIVERED: 27 March 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 26-27 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Mr Sundstrom

SOLICITOR FOR THE RESPONDENT: NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

1. That all prior parenting orders in relation to X born … 2011 and Y born … 2013 (“the children”) are discharged.

2. That the mother have sole parental responsibility for the children.

3. In the event of a decision in relation to a long term issue arising (including but not limited to enrolment at school, specialist medical treatment and religious instruction) then the mother shall:

   (a)Advise the father in writing (which includes electronic writing such as text and email) of the matter which requires a decision and of the proposal of the mother in that regard;

   (b)Invite the written response of the father within a nominated period of time to be reasonable in the circumstances;

   (c)Genuinely consider any response of the father if received in a timely way and take his views and proposals if any into account before coming to a decision; and

   (d)       Promptly advise the father in writing of the decision taken.

4. That the children live with the mother.

5. That the children spend time with the father as follows:

   (a)During the school term, each alternate weekend from 3.00 pm Friday or the conclusion of school, until 9.00 am Monday or the commencement of school, or 9.00 am Tuesday if Monday is a public holiday.

   (b)       During school holidays after Terms 1, 2 and 3:

   (i)In odd numbered years from the conclusion of school or 3.00 pm on the last day of the school term until 5.00 pm on the middle day of the school holiday period; and

   (ii)In even numbered years from 5.00 pm on the middle day of the school holiday period until return to school on the first day of the following term.

   (c)       In Christmas holiday periods:

   Until the younger child has completed Year Four of her primary education:

   (i)From the conclusion of school or 3.00 pm on the last day of Term 4 for a period of seven days and then on an alternating week about basis with the mother until the commencement of school the following term; and thereafter

   From the time the younger child starts Year Five:

   (ii)For one half of the Christmas school holiday period from 3.00 pm on the last day of Term 4 until 5.00 pm on the middle day of the holiday period in Christmas holiday periods which commence in odd numbered years; and

   (iii)From 5.00 pm on the middle day of the holiday period until return to school on the first day of the new school year in Christmas holiday periods which commence in even numbered years.

6. Order 5 be suspended to enable the children to spend time with both parents on the following occasions:

   (a)On each of the children’s birthday, they are to spend time with the parent they are not normally spending time with:

   i.On a non-school day from 9.00 am until 2.00 pm;

   ii.On a school day from the conclusion of school or 3.00 pm until 5.00 pm;

   (b)On Father’s Day, should the father not already be spending time with the children, from 9.00 am until 5.00 pm;

   (c)On Mother’s Day, should the mother not already be spending time with the children, from 9.00 am until 5.00 pm;

   (d)       Over Christmas, the children will spend time with each parent as follows:

   ii)In odd numbered years, with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the father from 3.00 pm Christmas Day until 3.00 pm on Boxing Day;

   iii)In even numbered years, with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm Christmas Day until 3.00 pm on Boxing Day.

7. That for the purposes of implementing the above orders, changeover occur as follows:

   (a)On a school day, the father or a nominee of the father known to the children will collect the children from school at the commencement of the father’s time and deliver the children to school at the conclusion of his time;

   (b)On a non-school day, the father or a nominee of the father known to the children shall collect and return the children to the mother, or a nominee of the mother known to the children, at Suburb A McDonalds.

8. The father is restrained from consuming alcohol for 12 hours prior to and during the time the children are in his care.

9. During the time the children spend with the father during the school holidays, the mother is at liberty to telephone the children on two occasions between 5.00 – 6.00 pm, with the mother to initiate the telephone call.

10. That the children attend C School, at the father’s expense.

11. Should the father fail to meet the fees associated with C School, the mother is at liberty to select a school closest to her home.

12. The mother and father are restrained from denigrating the other parent, or causing another person to denigrate the other parent, in the presence or hearing of the children.

13. The mother is at liberty to travel internationally with the children for a period of up to four weeks in each two year period providing that the following occurs:

    (a)That the mother provides the father with six weeks’ notice of intention of overseas travel in writing or by email;

    (b)That on or before four weeks prior to travel, a copy of the children’s return tickets and itinerary is provided to the father which includes the departure and return dates, the country or countries the mother and children will be travelling to, the dates on which the children will arrive and depart each country and a contact and telephone number and address at which the children can be contacted in each country.

14. During the period which the children and mother are overseas, the father is at liberty to contact the children on two occasions each week via telephone, social media or other mobile application.

15. Commencing after June 2023 the father is at liberty to travel internationally with the children or a period of up to four weeks in each two year period providing that the following occurs:

    (a)That the father provides the mother with six weeks’ notice of intention of overseas travel in writing or by email;

    (b)That on or before four weeks prior to travel, a copy of the children’s return tickets and itinerary is provided to the mother which includes the departure and return dates, the country or countries the father and children will be travelling to, the dates on which the children will arrive and depart each country and a contact and telephone number and address at which the children can be contacted in each country.

16. During the period which the children and father are overseas, the mother is at liberty to contact the children on two occasions each week via telephone, social media or other mobile application.

17. That the non-travelling parent will not seek an order for the immediate return of the children in the event that the children’s departure from a country outside of Australia is delayed for a reasonable period by unforeseen circumstances beyond the control of the travelling parent, such as airline strikes, adverse weather conditions or serious illness that prevents a person travelling on an airplane.

18. That the children’s passports shall be returned by the father to the mother within 7 days of the date of these orders and shall remain with her other than for periods when the father travels overseas with the children pursuant to these orders.

19. The order made on 13 March 2018 placing the children’s names on the Airport Watch List is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2525 of 2015

Mr Lucas

Applicant

And

Ms Lucas

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

Application to Re-Open Evidence

1. Today, the applicant father in these proceedings has appeared at Court on the day and time which had been appointed for the delivery of orders and ex-tempore reasons on a final basis arising from a trial, which was conducted yesterday.  Although there is no formal application before me to re-open the evidence, I interpret the presence of the applicant father here today as being, effectively, such an application.  The application is opposed by both the other parties.

2. On behalf of the mother it is said that the father should have filed his affidavits by 7 December 2018, and did not file any material until 3.45 pm yesterday, 26 March 2019.  His explanation for that is that he “had a lot on”, but I must take into account that the father was legally represented prior to that time and until a Notice of Ceasing to Act was filed on 8 February 2019.  I am entitled to assume that legal advice was given and discussions took place about the significance of complying with that direction.  Further, there was no application for extension of time, to vacate the dates, or of any other kind.

3. On behalf of the mother, it is raised that Exhibit 3 in these proceedings is constituted by an exchange of emails between the solicitor for the mother and the father.  The solicitor for the mother reminding the father of the dates for trial and that it would be a necessity for him to be present on those dates, if he wished to participate.  The father responded, advising that he would be filing an affidavit on the afternoon of Monday 25 March, the day before the trial.  He was swiftly advised that there would be opposition to such late filing.

4. On behalf of the Independent Children's Lawyer (“ICL”) there is opposition to the late filing of this affidavit.  Opposition, that is, to its use in any continuing hearing of the matter.  It is submitted, and I accept, that simply “having a lot on”, to use the father’s words, cannot be sufficient to justify both the filing when it happened and the failure to attend without notice on the day. 

5. In respect of what is said about the balance for the children of what to do, in these circumstances, where the father missed the trial, there is, in this particular case, a weighty consideration, which I accept on behalf of the ICL. 

6. The two parties have been engaged in litigation both in this country and in Country B extensively and the children themselves were very clearly affected by that conflict.  It is clear in the contrast between their presentation at the Children and Parents Issues Assessment with their presentation at the Family Report just how stressed they were by events that took place around the Hague proceedings.

7. In the event that an affidavit was accepted now and read there would have to be a further trial.  The mother would have to have the opportunity to put on further evidence.  The family consultant, who had been put on notice that he would need to be available for cross-examination, has been released.  He would have to be available at a different time.  Three days were allocated.  And there is insufficient time for any of those things to occur.

8. I accept from the father because there is no reason not to that he has been busy at work. As part of the evidence I am conscious that his mother, who played a significant role in the lives of the children, died in late 2018; and that he would have been engaged with her in her care in the last phase of her life is something that is obviously an important matter for the father.  But there has been no application to the Court for extension of time, for change of trial dates or notice of any difficulty in complying with what the mother has complied with in order to bring this matter to conclusion.  On that basis I am not prepared to accept an affidavit filed after the conduct of the trial, nor to consider re-opening the evidence.

Application for Final Parenting Orders

Introduction

1. These are competing applications for parenting orders in respect of two girls, X, aged seven, and Y, aged five.

2. On 13 March 2018 property proceedings between the parties were settled by consent.

Brief History

1. The parties met in 2007 and were married in 2009.  The parties first separated in September 2015, followed by a brief period of reconciliation before final separation in June 2016.

2. The mother was born in Country B.  The parties met in Country D in March 2007 while the father was on holidays there.  After his return to Australia the parties stayed in contact.

3. In June 2007 the mother travelled to Australia to visit the father and stayed with him in the home of the late paternal grandmother.

4. In 2008 the mother returned to Country B and stayed in contact with the father.

5. Later, she returned on a working holiday visa, and they lived together in Western Australia.

6. The parties were married there in 2009.  Shortly after they relocated to this area, Newcastle.

7. In January 2010 the parties moved to Country B to live with the maternal family, living there for approximately seven months until they returned, again, living with the paternal grandmother.

8. Late in that year, 2010, the parties obtained their own accommodation in Suburb E.

9. In early 2011 the mother learned that she was pregnant with the first subject child, X.  The mother described herself as “incredibly nervous” about the pregnancy, due, she said, to the father’s drinking and aggressive behaviour.[1]

   [1] Affidavit of the mother filed 25/01/19, pars 42 & 43

10. The mother alleges that prior to X’s birth, the parties got into an argument about the father’s drinking, resulting in the father becoming aggressive and verbally abusive.  The mother stated that she spent the night in the hospital reluctant to go home.  She stated that when she did return home, the father had taken her passport and threatened to remove the child from her once that child was born. 

11. In 2011 the first subject child was born.  The parties appear to have reconciled their differences at that stage. 

12. In early 2012 the parties and their child travelled to Country B to visit the maternal family.  They then returned to Australia and again moved to live with the paternal grandmother. 

13. In August 2012 the parties purchased a property in Suburb F, although it did not ever become the family home, which was probably intended. 

14. In October 2012 the mother and the parties’ child travelled to Country B for a holiday for four months, and while she was overseas the mother learned that she was pregnant with the parties’ second child. 

15. Y was born in 2013.

16. In February 2014, in the pattern of their marriage, the mother and the children travelled to Country B to spend time with the maternal family, the father subsequently joining them.  They spent five months altogether. 

17. In August 2014, after the parties had returned to Australia, the younger child Y became extremely ill.  There was a dispute between the parties about whether or not she needed to be transferred from F Hospital to G Hospital via ambulance.  Ultimately the child’s doctor persuaded the father that it was necessary. 

18. On 3 September 2014 the parties had their first separation.  The mother contacted the police, who attended the property.  Subsequently the mother left the property with the children and went to stay with a friend.  There was a dispute between the parties and ultimately the mother returned home with the children, perhaps reluctantly. 

19. On 25 September 2015 the mother commenced proceedings in the Federal Circuit Court of Australia seeking, among other orders, a recovery order for the return of the two children.  That order was made, and the children returned to living with the mother.[2]

    [2] Federal Circuit Court of Australia Order dated 25 September 2015

20. The separation endured for a few months.

21. In February 2016 the father informed the mother that he was ill, suffering from a form of cancer.  The parties once again reconciled their differences and resumed their relationship in April 2016.  On that basis, a judge of the Federal Circuit Court dismissed the proceedings and discharged orders on the basis of the parties’ reconciliation.[3]

    [3] Federal Circuit Court of Australia Order dated 14 April 2016

1. On 22 May 2016 the pattern of travel between these parties resumed.  The mother and children travelled to Country B.  The evidence is uncontested that they were one-way tickets.  The mother stated that the father drove herself and the children to the airport telling her not to return.  The mother also alleged that prior to their departure, the father burnt some of hers and the children’s clothes and subsequently sent a photograph of the remains to her.  There is a reference in the Country B judgment annexed to the mother’s affidavit which also refers to this incident which appears to have adversely affected the children.

2. In June 2016 the father was served with documents filed by the mother in a court in Country B, namely applications for divorce and custody.  That represented the final separation of the parties.

3. In July 2016 the mother said she contacted a solicitor in Country B and told him about the father’s behaviour.  The father was clearly very distressed about not seeing the children and was talking to them in an adult way about how their parents had come to separate. 

4. On 9 August 2016 the Children’s Court in Country B made orders providing for the children and the mother to live in Country B and giving the mother sole custody of the two girls.  The father shortly after submitted an application for the suspension of proceedings before the Court of Country B until a decision was taken in respect of his application to invoke the Hague Convention for return of the children to Australia.  There is no exact date available, but it appears in November 2016 or thereabouts the father applied for action to be taken pursuant to the Convention.

5. Early in 2017, the father travelled to Country B and went to the home of the maternal grandparents.  There was a scene where the father was determined to see the children in the home.  Police were called.  Arrangements were subsequently made for the father to spend time with the children.

6. On 1 March 2017 the Country B Children’s Court ordered that the proceedings between the parties should be determined in Australia, and the mother and children were ordered to return no later than 28 April 2017.  The mother did return with the children in March.  She also, at that time, requested that the Country B proceedings be discontinued.

7. On 10 April 2017 the father commenced these proceedings in the Family Court of Australia seeking parenting orders. 

8. On 11 May 2017 the police took out an interim Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother.  Feelings were running very high between the parties at this time. 

9. On 25 August 2017 interim parenting orders were made by a judge of this Court that enabled the children to spend time with the father on alternate weekends from Friday afternoon to Monday morning and in the other week from 5.00 pm Sunday to 9.00 am Tuesday.[4]

   [4] Family Court of Australia Order dated 25 August 2017

10. On 1 September 2017 an ADVO was made on a final basis for the protection of the mother.

11. In September 2017 also, the mother lodged an appeal to the Supreme Court of Country B to overturn the original decision in the Children’s Court of Country B. 

12. In March 2018 the parties settled by consent their property applications, leaving only the issue of parenting.  The parties also adjusted the parenting orders on an interim basis.

13. The father then was served with a Notice of Appeal in relation to the Country B proceedings after a Conciliation Conference, and no doubt there was a further spike in ill feeling between the parties.

14. The mother states that on 20 March 2018 she wrote to her solicitor in Country B to withdraw her appeal. 

15. In May 2018 the mother reported threatening text messages she received from the father to police and provided a statement.  The father was charged with breaching the ADVO. 

16. On 20 June 2018 the parties, the children and the paternal grandmother were interviewed for a Family Report.

17. On 12 July, an application to vary or revoke the ADVO was made by police in order to extend it for a further two years as the original order was due to expire in September last year.

18. In late 2018 the paternal grandmother died.  Her death is both a direct loss for the children of their grandmother and the indirect loss of her assistance in effecting changeovers between the parents.

19. The father, it seems, failed to comply with the property orders which had been made by consent, causing the mother to file an Application in a Case on 5 October 2018 to enforce the property orders.  The father complied with the order and the application was withdrawn.

This trial

1. On 11 February 2019 there was a hearing in relation to the ADVO charges.  The ADVO was varied on a final basis, listing the mother as the person in need of protection for another period of 12 months, which will expire in February 2020.

2. On 1 August 2018 orders were made listing the matter for hearing to commence on 12 February 2019. 

3. On 6 November 2018, due to future judicial unavailability, the trial dates were varied to commence on 26 March 2019, with three days allocated. 

4. The father was legally represented throughout the proceedings until 8 February 2019.  On that date, his solicitors filed a Notice of Ceasing to Act.  The father did not file a trial affidavit and did not attend for the trial.

5. The mother was legally represented and had briefed counsel.

6. The ICL was present and represented by counsel. 

7. On the application of both those parties, the matter proceeded undefended by the father.  The Court was satisfied that the father was well aware of the trial dates and the necessity for his attendance. 

8. At about 4.00 pm on 26 March 2019, the father attended the registry to file an affidavit. 

9. The application effectively to re-open the evidence was dealt with today for the reasons given.

The parties

1. The father is 46 and is probably working full-time in a manufacturing business.  There is no evidence about his current circumstances or the state of his health.

2. The respondent mother is 37.  She has re-partnered and has a relationship with Mr H.  The mother and Mr H do not live together.  The mother spends time with Mr H at weekends when the children are with the father.  More recently Mr H has begun to stay one or two nights during the week. 

3. In December 2018, the mother completed her TAFE diploma and has commenced casual but full-time employment.

Oral evidence

1. The mother gave some brief evidence-in-chief and was cross-examined.  I conclude that although she finds the father difficult to deal with, she is respectful of the relationship between himself and the children. 

2. The ICL proposed a regime of structured communication in the event of the mother succeeding with her application for sole parental responsibility, and the mother consented to that course.

The Law

1. Turning to the law and the matters that the Court is obliged to take into account in respect of section 60CC of the Family Law Act 1975 (Cth) and other matters.

Parental Responsibility

1. The father had proposed equal shared parental responsibility and equal time week-about.  The mother proposed sole parental responsibility for herself.  The family consultant recommended, subject to the following finding being made, that the parents share equally parental responsibility, the finding being:

   That the father is able and is likely to communicate with the mother in a child-focused and appropriate manner.

2. To promote that possibility, the family consultant recommended that both parents complete a parenting after separation type program and that the father undertake supportive therapeutic counselling to understand both the impact on him of events to date, and the impact on the children of exposure to family violence.  The mother has put forward evidence of completing a program, “New Families”, which she did in November 2018, although the certificate refers to November 2019.

3. Unfortunately, the father did not participate by filing an affidavit, which might have given information about what steps, if any, he took in response to those recommendations. 

4. It is clearly not possible for the Court to assess the likelihood of the father being able to communicate with the mother, and she with him in the manner that would be required. 

Primary Considerations

1. On that basis, since the children are living with the mother, and the mother is capable of communicating with the father, sole parental responsibility with a structured method of communication is the appropriate way forward.

2. These children do have a meaningful relationship with each of their parents.  There is a history of family violence in the matter.  The children should be protected from exposure to any further incidents.  Until her death in late 2018 the paternal grandmother effected changeovers for the children between the parents.  In her oral evidence the mother agreed that she and her late mother-in-law were able to have cordial conversations and exchange information about the children.  The mother described the arrangement as working well.  The mother reported that in the six months that have followed she has spoken to the father at changeovers, but said, “I get nothing back.  Just a shrug of the shoulders”.

3. She said she also sent informative text to the father, to which he did not respond.  To her credit, the mother said she had sent such a text to the father about a birthday party when the children would be with the father – that one of the children very much wanted to attend, and, to the best of her knowledge, that child did attend.

4. Largely because of this lack of interaction the mother considers that changeovers by collection from and delivery to school will be more efficient and less emotionally charged.  Together with the fact that there is an ADVO restraining the conduct of the father towards the mother for a further 11 months, school changeovers, whenever possible, do appear to be the most protective course.

5. I take into account the views of these very young children in this way.  The children were interviewed in June 2017 for a Child and Parents Issues Assessment, and, again, 12 months later for a Family Report. 

6. On the first occasion the mother and children had been back in Australia for about three months after an order for return had been made in the Country B Court.  X, the older child, was then aged five and a half.  She was described by the family consultant as energetic, excitable and physically restless.  She had a significant stammer, which was more pronounced when talking about negative family matters.

7. The child made a great many critical comments about the father and paternal grandmother, which she stated her mother had told her about.  She appeared to be very well aware of a family fight over herself and her sister.  One year later, aged six and a half, X was again observed to be excited and playful, but no longer burdened by the detail of the adult conflict.  There was no sign of a stutter.  She was positive about both parents and her mother’s partner, Mr H.  She did not know what her parents were proposing, and chose to express no view about living arrangements.  I take that to be evidence of her affection for both her parents.

8. Y was just four years old at the first set of interviews.  She was observed to be animated, but not as loud and energetic as her sister.  She, too, had a stammer, not so pronounced.  She revealed her knowledge of trouble about being Australian.  In answer to a question about whether her parents were friends she replied, “No, he is bad for mummy, but he likes us.”  One year later, aged five, Y, too, had lost all signs of any stutter.  She spoke positively about both parents and Mr H.  She expressed a view that she wanted parenting arrangements to stay the same.  She knew this because the mother had told the children this the night before.  The family consultant concluded that the child had heard and repeated words without knowing what they meant.

9. When observed with the father on the first occasion both children related happily and affectionately to him and the paternal grandmother.  On the second occasion, “It was common ground that the children enjoyed spending time with the father and paternal extended family, so an observation was not undertaken.” 

10. I conclude that the children were caught up in the emotional distress of the mother arising from the Hague proceedings in Country B and were encouraged to complain about the father to ensure that they remained living with their mother.  Fortunately, although they were showing signs of being under pressure in 2017, they were too young to fully understand the implications of what they were told by the mother.  The love and affection they have for both parents has not been damaged.

11. To her credit, the mother has chosen not to pursue relocation.  Despite provoking and threatening conduct by the father towards her, the mother has supported the relationships of the children with the father.

12. The likely effect of any changes in the children’s circumstances is a relevant matter here.  The father proposes equal time on a week-about basis.  For such an arrangement to be ordered the Court would need to have full confidence that each household was very well‑known to the other parent in terms of its rules and routines.  There would also need to be an excellent level of communication about day-to-day issues, such as homework, left behind items of clothing, medication and extra‑curricular activities, especially those involving equipment.

13. There would need to be respect and civility from each parent for the other, such that each household was a secure and stable home for the children.  It is no easy thing for children to move every week.  The evidence does not support such findings.  There is no evidence from the father.  The mother expressed some frustration that the father was unconcerned about homework, and that the children, “played with iPads and had fun time” on school nights with the father.  This was referred to in the context of X being behind with her literacy.

14. The mother has not allowed X to enrol in netball, because, “she might miss every second weekend.”  The risk from such a change to week-about time is of disappointment and instability for the children.  It is a high risk. 

15. The mother also proposes change.  A reduction of time from five nights per fortnight to three.  Presently, the children spend each alternate weekend and each other week from Sunday to Tuesday.  Her complaint is that she is unable to spend a whole weekend with the children, and that those two weeknights each fortnight is disruptive to the children’s pattern. 

16. I accept that now that both children are at school that is likely.  It is also the case that their relationship with each parent is sufficiently good that one extended weekend will operate as confirming the relationships between the children and the father.

17. Both these parents have the capacity to meet the needs of their children.  The girls are now seven, and almost six.  Both are at school.  They have a settled routine in the mother’s home  when she is now working, of going to school, attending out of home school care, having dinner together with the mother, a bath, going to bed, a story and sleep.  Given the time that it took for the children to settle after the return from Country B it is important that such routines continue. 

18. Family violence, of course, as I referred, is an issue here.  In paragraphs 21 to 108 of her affidavit the mother refers to abusive language directed to her by the father, and heavy drinking in the past, which aggravated belligerence and insult.

19. X, unfortunately, had a disrupted start to school, as the parents were in dispute about where she should start.  She was withheld by the father and started at one school.  Subsequently she was enrolled at another. 

20. An interim AVO was made on 11 May 2017.  A final order on 1 September 2013 for 12 months. There was then correspondence, which the mother referred to, about the father’s wish for paternity tests in respect of the younger child, and some abusive language by way of threat.  The police put on an application to vary the order, and that was done in February 2019. 

21. I make orders accordingly.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 March 2019.

Associate: 

Date:  27 March 2019