MADDIGAN & GEARY

FAMILY COURT OF AUSTRALIA

MADDIGAN & GEARY

[2016] FamCA 279

FAMILY LAW – CHILDREN – Best Interests – Where two prior sets of final parenting orders were made between the parties with their consent – Where the children have meaningful relationships with both parents – Where the children do not require protection against any risk of harm through their exposure or subjection to family violence, sexual abuse or physical abuse – Where the only risk of harm confronting the children is the threat to their emotional security posed by their exposure to incessant parental conflict – Where the mother has little insight into how her anxiety adversely affects the children and compromises their relationships with the father – Where the mother failed to comply with court orders by withholding the children from the father on numerous occasions – Where if the children remain living with the mother they are in grave danger of losing their valuable relationships with the father – Where orders for the children to live with the mother and spend substantial and significant time with the father would probably fail, given that regime has failed twice already – Children to live with the father – Where, after an initial short embargo period, the children are to spend substantial and significant time with the mother

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because the evidence proved both parties engaged in family violence at times in the past – Where neither the children nor the parties would be well served by such an order – Where the only feasible option is to allocate parental responsibility exclusively to the party with whom the children shall primarily live – Father to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B, 114AB

APPLICANT:

Ms Maddigan

RESPONDENT:

Mr Geary

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess, Legal Aid ACT

FILE NUMBER:

CAC

2054

2010

DATE DELIVERED:

28 April 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Canberra

JUDGMENT OF:

Austin J

HEARING DATE:

5, 6, 7 & 8 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Haughton

SOLICITOR FOR THE APPLICANT:

Mazengarb Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gill

SOLICITOR FOR THE RESPONDENT:

Barker & Barker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess, Legal Aid ACT

Orders

All former orders in respect of the following children (“the children”) are discharged:
(a)B, born … 2004;
(b)C, born … 2006; and
(c)D, born … 2009.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
Pursuant to s 68B of the Family Law Act, until Thursday 23 June 2016, the mother is restrained from entering upon or approaching within 100 metres of:
(a)The father’s residence; and
(b)Any school attended by the children.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother as follows, or as otherwise agreed, commencing not earlier than Friday 24 June 2016:
(a)During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is not a school day), commencing on the first Friday of each term;
(b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year and for the second half of such holidays in every odd numbered year; and
(c)During the Summer school holidays, for the first half of the holidays in the years when the holidays commence in an even numbered year and for the second half of the holidays in the years when the holidays commence in an odd numbered year.
For the purposes of implementation of Order 5 hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the new term, and the mid-point is midday on the day halfway between those first and last days.
Order 5 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time 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 on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
For the purposes of implementing Orders 3, 5 and 7 hereof, the parties shall respectively ensure the children’s:
(a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
(b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise
(c)Collection from and return to the foyer of the E Hotel, Canberra, ACT.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The mother each Wednesday at 6.00 pm, when the children are living with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
(b)The father each Wednesday at 6.00 pm, when the children are spending time with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(c)The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.
The father is restrained from changing the children’s current schools until the conclusion of the 2016 academic year.
The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
In the event of either party notifying either the police or a prescribed child welfare authority that any of the children have been or are the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a)A copy of these orders;
(b)A copy of these reasons for judgment; and
(c)A copy of the single expert report of Dr G dated 19 August 2015.
Within seven days hereof the father shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders and, if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maddigan & Geary 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 CANBERRA

FILE NUMBER: CAC 2054 of 2010

Ms Maddigan

Applicant

And

Mr Geary

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings, which concern the three children of the applicant mother and respondent father, represent the third attempt by the parties to secure final and lasting parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
For reasons that still remain unclear, the parties are now even less co-operative than ever before. The two former orthodox parenting regimes upon which they agreed, under which the children lived with the mother and spent substantial amounts of time with the father, broke down and so it would be futile to

impose a similar regime for a third time. A third failure would be intolerable.
As was recognised by the parties and the Independent Children’s Lawyer, something quite different was required to stifle the parties’ interminable quarrel, though they each had very different solutions to the problem. The mother proposed substantial constriction of the children’s time with the father, the father proposed reversal of the existing residential regime, and the Independent Children’s Lawyer opted to propose an “equal time” residential arrangement as a compromise.
On balance, the evidence favoured adoption of the father’s solution.

BACKGROUND

The parties began their cohabitation in either 2002 or 2003 and the relationship ended in late 2010.[1]
[1] Single expert report, paras 53, 140, 226; Mother’s affidavit, para 5; Father’s affidavit, para 2
The children were born in 2004, 2006, and 2009. They are now aged twelve, nine, and seven years respectively.
The first set of parenting proceedings between the parties were instituted by the father almost immediately after the parties separated in late 2010. Those proceedings were concluded by orders made in November 2011, with the parties’ consent, which provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend substantial amounts of time with the father.
Those orders held the family in check for less than a year before the father brought fresh proceedings against the mother alleging her contravention of the existing orders without reasonable excuse. The contravention proceedings culminated in a second set of agreed final parenting orders, made in February 2014, obviating the need to determine the pending contravention proceedings, which were then withdrawn and dismissed.
The fresh orders discharged the orders made in November 2011, but made relatively few changes. Relevantly, the fresh orders still vested the parties with equal shared parental responsibility for the children and still provided for the children to live with the mother, but instead provided for the children to spend more time with the father than before.
Similarly, those orders only successfully governed the family for less than a year before the parties separately and contemporaneously commenced further proceedings in January 2015. The father filed another contravention application against the mother and the mother filed an application to change the parenting orders. The father later discontinued his contravention application, after which time the proceedings concerned only the need for revision of the parenting orders made in February 2014. Both parties wanted the orders changed so there was no preliminary dispute over whether the Court should entertain their applications for amendment to the orders.
To that point in time, all proceedings between the parties had been heard and determined before the Federal Circuit Court (or the Federal Magistrates Court, as it was formerly known), but in March 2015 the proceedings were transferred to this Court.
Pending final hearing, several sets of interim orders were made between the parties by this Court during 2015. The most recent of those orders, made in December 2015, provided for the children to spend time with the father for half of the imminent Christmas school holidays and on alternate weekends during school terms upon the resumption of school in 2016, which mirrored the arrangement that applied throughout 2015.[2]
[2] Single expert report, para 154

Proposals

The mother pressed for the orders set out in her Amended Initiating Application filed on 21 January 2016. Essentially, she proposed that she have sole parental responsibility for the children, that the children live with her, and that the children spend very limited time with the father.
Aside from visits on special occasions, which were largely uncontroversial, the mother wanted the children’s visits with the father limited to a period of 24 hours each fortnight during school terms, to only three consecutive days in each school holiday period, and to an additional seven consecutive days during the Christmas school holiday period.
The father pressed for the orders set out in his Amended Response filed on

29 January 2016. Essentially, he wanted the children to live with him instead of the mother and for him to have sole parental responsibility for them. He expected the children to spend substantial amounts of time with the mother, comprising each alternate weekend during school terms and half of school holiday periods. His proposal was effectively the reverse of the existing residential regime.
The Independent Children’s Lawyer did not begin revealing her proposals until just before the cross-examination of the single expert commenced, when a draft minute of proposed orders was tendered.[3] It was incomplete because she remained undecided about the children’s living arrangements and was replaced by a revised minute of orders tendered before final submissions were commenced.[4] The Independent Children’s Lawyer’s ultimate proposal was for the parties to have equal shared parental responsibility for the children, subject to a retinue of mandatory and restrictive injunctions about how such responsibility should be exercised, and for the children to live with the parties for equal time.
[3] Exhibit ICL1
[4] Exhibit ICL2

Evidence

The mother relied upon her affidavit filed on 4 March 2016. She did not avail herself of the leave granted to rely upon evidence from another witness.[5]
[5] Order 6(b) made on 18 December 2015
The father also chose not to avail himself of the leave granted to rely upon evidence from one witness,[6] but relied upon:
(a)His affidavit filed on 19 February 2016;
(b)The affidavit of his partner, Ms H, filed on 19 February 2016; and
(c)The affidavit of his sister, Ms I, filed on 19 February 2016 (the annexures to which were omitted and were therefore tendered as an exhibit[7]).
[6] Order 7(d) made on 18 December 2015
[7] Exhibit F1
Both parties and the Independent Children’s Lawyer relied upon the report of the single expert psychologist, Dr G, dated 19 August 2015.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests – primary considerations (s 60CC(2))

Section 60CC(2)(a)

There was never any doubt about the great benefit the children derive from their relationships with the mother. That will not change, regardless of whether the children continue to live with her or, instead, live with the father and spend substantial and significant time with her.
Although the evidence tended to suggest the children have slightly stronger relationships with the mother, she knows the children enjoy spending time with the father.[8] The mother conceded they still have meaningful relationships with the father from which they derive great benefit and that they should continue to do so, but it is difficult to see how those concessions were reflected in the orders she proposed, which would greatly curtail the father’s involvement in the children’s lives.
[8] Single expert report, paras 76, 77,
When the single expert conferred with the children in August 2015, they expressed different views about, and exhibited different demeanour towards, the father. The eldest child was effusive about him and wanted to spend as much time with him as with the mother.[9] The middle child wanted to remain living with the mother, but still wanted to see the father, even though he thought the father loved his brothers more than him.[10] The youngest child said he liked the father, wanted to see him, and did not want anything to change.[11]
[9] Single expert report, paras 181-184
[10] Single expert report, paras 190, 191, 195, 196
[11] Single expert report, paras 204, 205

The middle child’s attitude towards the father was not then as positive as the other children’s attitudes. During 2015, the middle child was very unsettled. He was suspended from school on 11 separate occasions and his behaviour was “extremely dysregulated”.[12] The single expert said in cross-examination that the middle child seemed “primed” to convince her he should remain living with the mother and was very distressed during the interviews. Whatever may have then been troubling him, the problem has since abated. Both parties expressed satisfaction with his behaviour over the last few months, which the mother even described as “fantastic”.
[12] Mother’s affidavit, para 85; Single expert report, paras 65-67
At the time of her report in August 2015, the single expert described the children’s attachments to the mother as stronger than their attachments to the father,[13] but during cross-examination at trial in April 2016, she agreed the children’s attachments with the father were strong enough to support an “equal time” living regime, though she recommended against that outcome for other reasons. The single expert also conceded that the middle child’s criticisms of the father in August 2015 seemed to reflect the mother’s anxieties about the father, so it was difficult to tell whether they were really the child’s or rather the mother’s criticisms of him.
[13] Single expert report, paras 230, 237
The single expert considered the slight degradation of the children’s relationships with the father was most likely attributable to the mother’s anxiety about the father, to which anxiety the children are reactive. The mother’s anxiety caused her to withhold the children from the father on numerous occasions for weeks or months at a time, which in turn caused the children to feel the need to demonstrate allegiance to her. The mother’s evidence in cross-examination gave cause for concern about her willingness to again withhold the children from the father in contravention of court orders whenever she unilaterally decides it is warranted. Such evidence will be analysed in greater detail under s 60CC(3) in relation to the mother’s parenting capacity, but at this juncture it is sufficient to record the real prospect of the children eventually losing their valuable relationships with the father if they remain living with the mother, particularly if she is vested with sole parental responsibility for them, as she desired.
For the reasons which follow, the need to retain and promote the children’s meaningful relationships with the father is the only “primary consideration” of relevance in these proceedings under s 60CC(2) of the Act.

Section 60CC(2)(b)

The father did not suggest the children were exposed to any risk of harm by reason of their exposure or subjection to family violence, abuse, or neglect while in the care of the mother.
Conversely, the mother adduced abundant evidence and argued endlessly about multiple risks of harm to which she perceived the children were exposed by the father’s conduct, but none was vindicated.

Risk of exposure to family violence

The mother adduced evidence about the father’s allegedly violent conduct towards her “during [their] relationship” and later in 2013,[14] which the father blandly denied,[15] but I pay that evidence little heed for several reasons.
[14] Mother’s affidavit, paras 17-23
[15] Father’s affidavit, paras 121, 150
First, the evidence persuasively established that both parties behaved aggressively towards the other on occasions in the past[16] and so it served no useful purpose to now try and retrospectively assign more blame to one party than the other. In unrelated past family law proceedings, the mother admitted in an affidavit to having “physically attacked” the father without him retaliating.[17] She also admitted in cross-examination to having occasionally been the aggressor against the father. She also admitted alleging to police in 2003 that she was assaulted by the father before then retracting the allegation and admitting she was the protagonist, though she said the retraction rather than the original allegation was untruthful. Whether the mother lied on that occasion to the police initially or subsequently, her evidence only served to demonstrate that, at least in respect of the subject of family violence, she has been prepared to be deceitful when it suits her purpose. The father admitted in cross-examination he did slap the mother on that occasion in 2003, but he asserted only self-defensively to stop her from repeatedly punching him.
[16] Single expert report, paras 54-56, 140
[17] Father’s affidavit, para 155
Secondly, most of the mother’s evidence related to alleged events before the parties reached agreement about final parenting orders in November 2011 and, significantly, all of her evidence related to alleged events before the parties reached agreement about final parenting orders for a second time in February 2014 when the children’s visits to the father were expanded. Both parties were legally represented on both occasions the final parenting orders were made. Such orders could not have been made by the Court without the parties’ express, or at least implied, acknowledgement the orders were reflective of the children’s best interests and reasonably practicable to implement. Regardless of what hostility may have occurred between the parties in the past, they were both content on two occasions to agree they were competent parents and the children were not at unacceptable risk of harm through exposure to family violence between them.
Thirdly, even now, both parties still propose that the children should regularly spend unsupervised time in the care of the other. They would not have maintained such proposals unless satisfied the children were not thereby exposed to the risk of harm through witnessing the occurrence of family violence between them. Despite the parties’ apparent hatred of one another, there is no tangible risk of any violence between them in the future. The allegations made by the mother against the father in these proceedings about events years ago were probably only for perceived forensic advantage.
The children do not require any protection against any risk of harm through their exposure to family violence while in the care of the father.

Risk of subjection to sexual abuse

Despite the mother’s discussion of the children’s sexualised behaviour with the single expert[18] and giving evidence about it in her affidavit,[19] she announced at the commencement of the trial she was not seeking any factual finding that the father sexually abused any of the children or that there was any risk he would do so in the future. The concession was justified, albeit belated.
[18] Single expert report, paras 72, 125
[19] Mother’s affidavit, paras 102-117
The father admitted indulging in some penile puppetry for the boys’ amusement, which in all probability happened on more than the one occasion he admitted, but he staunchly denied any sexually improper conduct with them or in their presence,[20] which was corroborated by the eldest child to the single expert.[21]
[20] Single expert report, paras 133, 134, 158; Father’s affidavit, para 120
[21] Single expert report, para 187
In fact, the evidence revealed some incidents of concern in the mother’s home. The mother was impelled to concede in cross-examination that she caught the eldest child viewing pornography on his iPod at her home, which he admitted to her he learned to do during a sleep-over at a friend’s house. The mother also once found the eldest child with his flaccid penis in the youngest child’s mouth when they were together in the bathroom at her home.[22]
[22] Mother’s affidavit, paras 107-109
In the face of such evidence, it was impossible to attribute blame to the father for any aspect of the children’s conduct that the mother perceived to be sexually improper, as distinct from merely puerile. Eventually, the mother’s grievance distilled to her dissatisfaction over the father’s failure to maintain the high standards of probity she expected of the children, which merely exposed a contrast in the parties’ parenting styles.
The single expert concluded:
…there are no identified specific sexual risk concerns in the history.[23]
and
…Much of this alleged [sexual] behaviour [of the children] is seemingly normal within the context of developmentally appropriate behaviour, especially if [the father] has been modelling “penis tricks”, even on one occasion…As such, [the father]…does not present with specific risks in relation to sexual abuse.[24]
[23] Single expert report, para 168
[24] Single expert report, para 231
The children do not require any protection against any risk of harm through their exposure or subjection to sexual abuse while in the care of the father.

Risk of subjection to physical abuse

In alleging the children had been physically abused by the father in the past and remain at risk of more abuse in the future, the mother relied upon three things: first, what she observed when living with the father before 2010; second, what she observed at later exchanges of the children; and third, what the children have intermittently reported to her.
Dealing with the mother’s own observations, in cross-examination she said she saw instances of physical aggression by the father towards the eldest child and her own older daughter (April) during their relationship. The mother said she observed the father to once slap April on the head, to once kick April on the bottom, and to once throw the eldest child onto a staircase and punch him. She adduced no evidence-in-chief to that effect but did mention it to the single expert in August 2015.[25] At that time, the mother described the father’s conduct as “low line abuse” and it did not affect her willingness to allow the children to spend substantial amounts of unsupervised time in his care pursuant to the orders made with her consent in both November 2011 and February 2014. It was illogical to now rely upon those alleged incidents to justify curtailment of the children’s time with the father when they were not regarded as sufficiently serious to warrant such a response in 2011 or 2014. The incidents, even if they occurred, could not have been that serious.
[25] Single expert report, paras 56, 58
The mother did depose that, on a number of occasions at changeovers (which were obviously after they separated), she saw the father and youngest child kick one another.[26] The evidence was unspecific as to when those incidents occurred, but it is unlikely the incidents were anything other than innocent horseplay. It is quite improbable the father would have physically abused the youngest child, who is still only now seven years of age, in the mother’s plain sight at a public venue when he was well aware of the mother’s propensity to summon police intervention when she perceived the need. If she really did consider the father was then assaulting the youngest child she would likely have done something about it at the time, but she did not.
[26] Mother’s affidavit, para 119
The vast bulk of the evidence adduced by the mother about the father’s alleged physical abuse of the children was confined to what the children reported to her upon their return from visits to the father.[27] She said in cross-examination she could never approach the father to ask for his version of the allegedly abusive events reported to her by the children because their relationship is too fractured.
[27] Mother’s affidavit, paras 118, 120-140, 145-149, 154-161, 183-184
Before dealing with the various reports made to the mother by the children, some context is required. It was common ground the children were and still are aware of the high level of conflict and distrust that exists between the parties. In such circumstances, the children are attuned to criticisms of one party being welcomed, or at least willingly received, by the other party. They are each old enough to perceive some advantage in demonstrating allegiance to the parent in whose care they happen to be.
With that in mind, during cross-examination, the mother was impelled to make concessions to the following effect:
I know children are capable of exaggerated and untruthful statements.
I guess I do give the children reason to think I am eager or willing to hear bad things about their father.
It is impossible to know if the children’s reports are true.
All children make things up sometimes.
Notwithstanding such concessions, she also maintained her reliance on the literal truth of the children’s reports by saying words to the effect:
I have no reason to doubt what the children say.
I can only judge from what the boys have told me.
The absurdity of the mother’s insistent belief in the literal truth of the children’s reports was exposed by her inconsistent rejection of the truth of statements made by the children about her to the father. If the mother’s evidence about the children’s statements was truthful and accurate (as I accept it was) then it necessarily follows, assuming acceptance of the father’s evidence about the children’s statements to him (which I also accept), that their reports to the father about her were false. For example:
(a)She admitted she once heard the middle child yell out to the father that she was abducting him, which the mother said was false because she was not abducting the middle child.
(b)The mother denied she told the eldest child to hide in the bush to avoid having to visit the father on an occasion in November 2014, as the eldest child reported to the father she did.[28]
(c)The mother denied telling the middle child the father wanted to kill him by feeding him a gluten diet, as both the middle child and eldest child reported to the father she did from June 2014 onwards.[29]
(d)The mother denied telling the eldest child the father was going to kill him by feeding him nuts, as the eldest child reported to the father she did.[30]
(e)The mother denied telling the middle child to not divulge to the father any information about his treating medical practitioners, which the father said the middle child reported to him she did in December 2014.[31]
(f) When the mother recorded her conversation with the children in January 2016, the middle child made allegations to her about the father’s immature behaviour, which allegations were denied by both the eldest child and youngest child. The eldest child was even moved to respond “You’re liars, oh my god”,[32] but the mother preferred to accept the word of the middle child over the word of the other two children.
[28] Father’s affidavit, para 68
[29] Father’s affidavit, para 88-89, 92, 94
[30] Father’s affidavit, para 107
[31] Father’s affidavit, para 61
[32] Mother’s affidavit, para 110, Annexure O (page 49)
The mother did not, because she could not, ever rationalise how the children’s statements made about her to the father were false, but the statements they made about the father to her were true. The sad reality is that the children are prone to make false reports about one parent to the other and considerable caution must attend acceptance of any such statements made by them to either of the parties. Unless independently corroborated by other evidence, such statements are liable to carry little, if any, weight. With that caveat in mind, the evidence by the mother about the father’s alleged physical abuse of the children was as follows.
The mother did not adduce direct evidence-in-chief about it, but in cross-examination the father admitted having slapped the middle child over the back of the head once in either 2013 or 2014 as an escalated response to his gross misbehaviour. He said he was later contacted by the child welfare authority about the incident and admitted he did so, but that was the end of the matter. He said he sincerely regretted it.
In July 2014, the eldest child told the mother the father had punched him several times on the arm and chest. The mother alleged she observed two small bruises on the child’s body – one on the arm and the other on his chest – later that night, which she afterwards described in an email to the father as “slight bruising”.[33] In cross-examination, the mother said the bruising had disappeared by the following morning and she did nothing more about it. During his cross-examination, the father denied he ever seriously punched the eldest child, but admitted he sometimes struck him softly with feigned punches during rugged horseplay that he believed the eldest child enjoyed.
[33] Mother’s affidavit, paras 121-125
In October 2014, the eldest child told the mother the father kicked him “in the bum” and slapped him on the head.[34] The father denied such conduct in cross-examination. He explained the eldest child fought with one of his brothers on a camping trip and, as punishment, he instructed the eldest child to spend some time away from the camp alone on his bicycle.
[34] Mother’s affidavit, para 129
In August 2015, the middle child and eldest child both told the mother the father kicked the middle child during a visit the preceding weekend.[35] The father denied in cross-examination having kicked the middle child.
[35] Mother’s affidavit, paras 134-135
In September 2015, the eldest child and middle child both told the mother the father kicked the middle child “in the bottom” during a visit the preceding weekend.[36] Again, in cross-examination, the father denied kicking the middle child.
[36] Mother’s affidavit, paras 137-138
In respect of each of those incidents, the allegations about the father striking either the eldest child or middle child arose in the context of the children’s naughtiness and their need for discipline. It was common ground between the parties that they both used corporal punishment to manage the children’s behaviour in the past, though in fairness, the father probably did so more readily than the mother. The difference of opinion between the parties, therefore, was not the use of corporal punishment, but rather its proportionality. The mother contended, inferentially if not expressly, that the severity of the punishment administered by the father transcended the boundary of legitimate discipline and became gratuitous physical abuse. The father denied it.
Significantly, the children gave much more benign accounts of their corporal punishment by the father to the single expert than they did to the mother. The eldest child told the single expert the father had never hurt him and, although he had seen the father hit the middle child with his hand, he did not feel unsafe in the father’s care.[37] The middle child told the single expert the father hurt him (and his brother/s) when he was angry and, in his case, that occurred when the father “whack[ed]” him on the back of the head,[38] which was conceivably a reference to the incident the father admitted occurred in either 2013 or 2014. The youngest child reported to the single expert that both parties smack him on the bottom when he is naughty, but the father had never hurt him or made him feel uncomfortable.[39]
[37] Single expert report, paras 183, 186
[38] Single expert report, paras 190-191
[39] Single expert report, para 204
In December 2015, an incident occurred that certainly warranted strong disciplinary measures and not even the mother was prepared to criticise the father for his response. For a prolonged period, the middle child’s behaviour was extraordinarily uncontained and his management presented a difficult challenge to both parties and his school teachers. While the children were with the father for several weeks during the most recent Summer school holiday period, the middle child hit the youngest child on the head with a hammer, apparently deliberately.
The father informed the mother by text message that he disciplined the middle child by smacking him “on the bum” and by “put[ting] him in time out”,[40] which was corroborated by his partner.[41] However, the middle child told the mother the father “kicked [him] six times” during a telephone conversation,[42] which the father’s partner overheard.[43] The mother interrogated the children upon their return to her and, while the middle child repeated the allegation of being kicked by the father in response to the mother’s leading questions, the eldest child told her the middle child was “probably over exaggerating”.[44]
[40] Mother’s affidavit, para 154; Father’s affidavit, para 145
[41] Affidavit of Ms H, para 28
[42] Mother’s affidavit, para 147
[43] Affidavit of Ms H, para 29
[44] Mother’s affidavit, paras182-184, Annexure Q

The mother reported the incident to the child welfare authority,[45] but when the middle child was subsequently interviewed and asked where the father had kicked him he replied “I can’t remember”.[46] It is more than curious he could not honestly remember the facts he recited in great detail to the mother shortly beforehand. His protestation of lack of memory was most likely false. More likely, he was just reluctant to say more about it, but whether that was because he was merely shy or because he did not want to compound an original lie, it is impossible to say. Regardless, falsely asserting he could not remember an event when he probably could recall only serves to demonstrate he was prepared to be untruthful about that very incident to independent authorities. The middle child had no visible injuries and so no further action was apparently taken by the child welfare authority.[47]
[45] Mother’s affidavit, paras 160-161
[46] Mother’s affidavit, para 192
[47] Mother’s affidavit, para 193
The mother also reported the matter to police, but the middle child was reluctant to speak with the police.[48] Nonetheless, the police interviewed the father’s partner and one of her children about the incident and, following their corroboration of the father, she was led to understand the investigation was terminated without further action.[49] The father was not contacted by police and has not been charged.[50] He did not seek to preserve his privilege against self-incrimination, notwithstanding the mother’s apparent belief the incident is still under investigation.[51] During cross-examination, the father credibly denied kicking the middle child and his partner credibly corroborated his version of the event. They firmly, but temperately, repudiated any contrary version.
[48] Mother’s affidavit, paras 194-196
[49] Affidavit of Ms H, para 30
[50] Father’s affidavit, paras 147-149
[51] Mother’s affidavit, paras 195-196
On that particular occasion, the middle child’s misbehaviour was undoubtedly serious. When the children were returned to the mother several weeks later she was so worried she sought medical advice and was told the youngest child would need an x-ray to rule out any possible cranial fracture.[52] When the mother was asked directly in cross-examination about the appropriateness of the father’s response to the middle child’s gross misbehaviour, she said she would not have smacked him in the same circumstances, but she could understand the father’s reaction and was not prepared to say he over-reacted by smacking him on the bottom. She made that concession in full knowledge that, only weeks before, an interim order was made with their consent restraining their use of physical discipline on the children.[53]
[52] Mother’s affidavit, paras 189, 197
[53] Order 5 made on 9 December 2015
The father denied any violent or abusive behaviour towards the children or the mother’s older child, either during their relationship or since.[54] Both the mother and single expert agreed in cross-examination that the children’s relationships with the father are not characterised by any fear of him.
[54] Father’s affidavit, paras 121-122
The evidence does not permit any finding, on the balance of probability, that the father ever assaulted any of the children. Save for the slight and transient bruising the mother witnessed on the eldest child’s body on one occasion in June 2014, which was plausibly caused by rough play rather than discipline, none of the children have ever presented with injuries attributable to their alleged physical mistreatment by the father.
Both parties practice corporal punishment on the children, though the father more regularly than the mother. Although community standards may now deem punishment in that form to be obsolete, it is still not necessarily “abuse” as defined in the Act (s 4). It is only abusive if it is disproportionate to the misbehaviour sought to be corrected, but the evidence did not establish that has ever been the case for this family. It would be preferable if the parties’ both moderated their disciplinary practices, particularly in the context of their grave distrust of one another and their willingness to think the worst of the other, but the evidence is not strong enough to justify a finding that the children require protection against the risk of harm through their exposure or subjection to physical “abuse” while in the care of the father.
Eventually, in final submissions, the mother conceded such conclusions.

Conclusion

The only risk of harm threatening the children is one germane to s 60CC(3) rather than s 60CC(2) of the Act. It is the threat posed to their emotional security by exposure to incessant parental conflict. As the single expert said, adopting as correct the view formerly expressed by a Family Consultant in earlier litigation between the parties:[55]
[The father] and [the mother] both appear to love their children and want the best for them. The difficulty is that each perceives their children’s interests in very different ways. [The mother] is consumed with insuring [sic] that most aspects of the boys’ lives are highly regulated, she leaves little to chance. [The father] has a tendency to be more organic in the way he parents the boys, responding in an ad hoc manner to their needs. Their styles are polar opposites.
The greatest risk to the boys at this stage is the highly conflicted relationship between the parents. The lack of respect and regard that they display towards each other is affecting [the children’s] emotional development and ultimately their view of themselves.
[55] Single expert report, para 224
The parties have failed to absorb such advice despite experiencing more than five years of litigation since their final separation. In all probability, they never will. The single expert opined neither party is motivated to accept therapeutic education[56] and, in her view, they would remain:[57]
…two very different people, who have polar opposite parenting styles and considerable levels of acrimony and animosity towards the other.
[56] Single expert report, paras 84, 122
[57] Single expert report, para 231

Best interests – additional considerations (s 60CC(3))

The mother harboured doubts about the father’s capacity to properly provide for the children on numerous fronts. She doubted his ability to support them financially and his willingness and ability to manage their medical conditions and dietary requirements.
The father had no satisfactory explanation for why he has failed to maintain regular child support payments. Most probably it was because he was angry about the mother withholding the children from him and it was an act of revenge – just another example of their unrelenting conflict. The child support arrears now approximate $3,200 and the father last made a payment in 2014.
The father is a self-employed builder/plasterer and, even though his current income may be paltry due to the paucity of his work, there is no real doubt about his ability to financially support the children. The mother is currently only working part-time too,[58] but she manages to provide the children with adequate financial support. Even unemployed parents are able to financially provide for their children by reliance upon social security. The father has not yet needed to rely upon social security, but it is always an option.
[58] Mother’s affidavit, paras 235-236
The father’s work commitments would not preclude his ability to primarily care for the children as he is self-employed and flexible.[59] In any event, he has his partner and other adult members of the paternal family to fall back on for day-to-day help if needed.[60]
[59] Father’s affidavit, paras 31-33
[60] Single expert report, paras 98, 99, 138, 139; Father’s affidavit, paras 12, 24
Really, the mother was much more concerned about the children’s medical conditions and their dietary requirements, though the evidence demonstrated that neither warranted the level of her concern.
The eldest child has a cashew nut allergy. The mother continually asserted the allergy was serious and liable to induce anaphylactic reaction, but her fear was not borne out by the expert medical evidence. The eldest child’s treating medical specialist last advised in December 2015 that:[61]
…[he] has a history of non-dangerous allergic reactions to cashews.
I recommend avoidance of cashew and cross-reactive pistachio nut, and EpiPen because of intermittent asthma even though he had not had a dangerous reaction to date.
Reactions have been uncomfortable rather than dangerous in the past.
[61] Mother’s affidavit, para 35, Annexure F
It was common ground the father has conferred with the specialist, who reported:
Dad has been advised of the potential sources of accidental exposure to their food allergen, and of an appropriate action plan.
The youngest child also has a peanut allergy,[62] but it is apparently not as serious as the eldest child’s cashew allergy.
[62] Mother’s affidavit, paras 55-56
The father was not challenged about the accuracy of his evidence that he now never has any nuts or nut products in his house, does not allow nuts near the children, and keeps an EpiPen for emergency use.[63] He also willingly submits to the eldest child’s school action plan.[64] Given such evidence, the father’s obdurate refusal to discuss the matter with the mother is just more evidence of their conflict[65] and probably only serves to elevate the mother’s concern.
[63] Father’s affidavit, paras 102, 110, 114, 115
[64] Exhibit M10
[65] Mother’s affidavit, para 36
There is always a possibility of the children’s accidental exposure to nuts which will induce an allergic reaction, but even the most vigilant supervision cannot eradicate all risk. The eldest child was even accidentally exposed to nuts while in the mother’s care and was taken to hospital as a precautionary measure.[66]
[66] Father’s affidavit, paras 111-113; Mother’s affidavit, paras 29-30
The middle child does not have coeliac disease, but does have a coeliac gene. As a consequence, the mother has fed him a gluten-free diet since early 2014. The mother alleged the middle child requested her to continue his gluten-free diet despite him not having coeliac disease, which request she accommodates,[67] but his request for the continuation of such a diet probably arises out of the paranoia the mother induced in him in the past about the need for adherence to such a strict diet.[68] The mother was motivated to do so because she honestly perceived a correlation between his ingestion of gluten and his past misbehaviour.[69] Regardless of whether she did or still does believe in such a correlation, the father saw no evidence of it and there is no medical evidence to support the connection.[70] The mother deposed the youngest child also has the coeliac gene but, curiously, she does not feed him a gluten-free diet.[71]
[67] Mother’s affidavit, paras 38, 47
[68] Father’s affidavit, paras 88-95
[69] Mother’s affidavit, para 48; Single expert report, para 69
[70] Father’s affidavit, paras 83-84, Annexure G
[71] Mother’s affidavit, para 57
The father feeds the middle child a normal diet, though he sometimes provides gluten-free foods to abate the child’s anxiety about gluten consumption. The child has experienced no ill-effects as a consequence,[72] so the mother now accepts the father will feed gluten products to the middle child and it will not compromise his health.
[72] Father’s affidavit, paras 100-101
It may be the father returned the children to the mother suffering some illness after several weeks with him during the 2015/2016 Summer holidays,[73] but that is not probative of him being an incapable parent.
[73] Mother’s affidavit, para 197
The single expert correctly observed:[74]
It does appear that [the mother] is highly sensitive to health concerns and this triggers her anxiety for the children, in relation to which she is probably over-reactive.
[74] Single expert report, para 231
The father’s appraisal was more succinct. He said he thought the mother made mountains out of molehills.
The parties have very different perspectives about the existence and severity of the children’s medical conditions. The mother believes they are serious and is aggravated by the father’s more desultory attitude towards them. On the other hand, the father regards the mother as hyper-sensitive and objects to her subornation about the manner in which he should handle the situation. Both parties refuse to submit to the will of the other and both deserve censure for their intransigence. In truth, the conditions are not as serious as the mother contends, but they warrant more diligent management than the father has historically offered.
In summary, the father’s parenting capacity is quite adequate. He acknowledged he sometimes acted immaturely, but that hardly renders him an incompetent parent.[75] The mother may have a superior capacity to provide for the children’s physical needs, but that does not mean the father’s capacity is stunted. In fact, as the Independent Children’s Lawyer submitted, the children may benefit from the father’s more relaxed parenting style because, presently, they are unduly reactive to the mother’s high level of anxiety. The single expert said the children “pick up” on the mother’s anxiety and it affects their perception of the father. As the single expert said in both her report[76] and in cross-examination, the mother has little insight into how her anxious behaviour adversely affects the children.
[75] Single expert report, paras 76, 149, 169
[76] Single expert report, para 90
It was uncontroversial that the mother has no recognised psychological or psychiatric disorder, though she does suffer from anxiety. The mother admitted consulting with a psychologist for many years, but still reported experiencing “episodes of panic” since 2013.[77] Previous claims by the father about the mother suffering a personality disorder[78] were not baseless vilification, but rather arose from him reading medical notes to that effect in the historical files of the mother’s psychologist.
[77] Single expert report, paras 45, 47, 88, 231, 237
[78] Single expert report, para 141
Regrettably, the mother’s anxiety compromises the children’s relationships with the father, even though that effect may be subconscious rather than deliberate. The mother withheld one or all of the children from the father on many occasions. It occurred:
(a)Following the parties’ separation in late 2010, for a period of months, which the mother attributed to the father’s “anger and aggression” and the “potential risk to the children in the context of the acute trauma of separation”;[79]
(b)During mid-2011, which the mother attributed to the eldest child’s refusal to see the father and her willingness to support the child’s decision because of her perception about his maturity;[80]
(c)During July and August 2013, for a period of weeks, which the mother attributed to her “safety concerns”,[81] following the eldest child falling and injuring himself when in the father’s care;[82]
(d)During April 2014, for a short period, which the mother said was due to her concern the father was not properly restraining the children when being driven in his car, which allegation he denied;[83]
(e)During the 2013/2014 Summer school holidays, for which the mother gave no satisfactory explanation;[84] and
(f)From November 2014 until March 2015,[85] which the mother said she did in accordance with advice from two psychologists to whom she took the children, without first consulting the father. Significantly, the provision of psychological advice in those terms was not independently verified, but even if such advice was proffered to the mother, those psychologists only had information provided by her and at least one later withdrew her services when she came to doubt the efficacy of her instructions.[86]
[79] Single expert report, para 73
[80] Single expert report, para 75
[81] Single expert report, p.75; Mother’s affidavit, p.22; Father’s affidavit, p. 130, 134, 136
[82] Exhibits M4, M5; Father’s affidavit, paras 123-128
[83] Father’s affidavit, paras 143-144
[84] Father’s affidavit, para 160
[85] Father’s affidavit, paras 61, 62, 67, 68, 74, 77-80, 82, 161
[86] Father’s affidavit, para 63, Annexure F
In order to ensure her decisions to withhold the children from the father were not frustrated, the mother either kept the children from school or collected them early. The mother asserted the children’s school absences were for other reasons,[87] but her explanations only explained a small proportion of the absences. The school principal notified the parties of her concerns about the children’s inconsistent school attendance[88] and the mother conceded in cross-examination she defied the principal’s directions to ensure the children’s regular school attendance. During 2015, an interim order was needed to restrict the mother’s attendance at the children’s school.[89]
[87] Single expert report, para 61
[88] Father’s affidavit, para 49.6
[89] Father’s affidavit, paras 36-40
The occasions on which the mother withheld the children from the father, from at least 2013 onwards, constituted plain contraventions of the final parenting orders made in both November 2011 and February 2014. She had no reasonable excuse to do so. The single expert said in cross-examination she considered it was not objectively reasonable for the mother to withhold the children from the father, though the mother honestly believed it was justified.
Unfortunately, the mother’s disdainful attitude regarding her entitlement to make unilateral decisions about when the children see the father remains as fixed as it ever was. She said in cross-examination she would only support the children spending time with the father whilst ever she considered they were enjoying and benefitting from such visits. She said she would again contravene orders providing for the children to see the father if she considered they were exposed to some risk of harm, and furthermore, she admitted her reservations about whether the children should spend as much time with the father as occurs currently.
The mother sent a text message to the father more than a year ago saying she believed the eldest child, then barely 10 years of age, was old enough to make up his own mind about whether or not he sees the father.[90] Even if, as the mother said in cross-examination, she tried everything to convince the eldest child to see the father when he refused, her persuasion was not enough at times. If, in the future, for some reason, the children oppose visits to the father there is a real chance the mother will be unable to persuade them to go and she may then accede to their demands not to go. In cross-examination the mother obfuscated and sought to avoid answering a direct and simple question about whether she still considers the eldest child is mature enough to make his own decision about whether he visits the father.
[90] Father’s affidavit, para 74
The mother was conscious of the father’s allegation that she alienates the children from him, though she denied the accusation.[91] In August 2015, the single expert saw no evidence of the children actively rejecting the father,[92] though she acknowledged the children’s attachments to the father had degraded to some extent, which she attributed in cross-examination to the multiple interruptions to their relationships, which interruptions had their origins in the mother’s anxiety.
[91] Single expert report, paras 78
[92] Single expert report, para 231
During her cross-examination at trial, the single expert’s attention was drawn to transcripts of conversations the mother recorded with the children on two occasions in January 2016,[93] and she agreed:
(a)The mother’s conduct during those conversations exemplified her subtle manipulation of the children by placing an “emotional load” upon them to make adverse comments to her about the father;
(b)The children’s answers demonstrated their awareness of the mother’s manipulation;
(c)The dynamic between the mother and children had the potential to cause the children to fabricate reports of misconduct by the father; and
(d)The mother’s interaction with the children tended to alienate the children from the father, even if only subconsciously.
[93] Mother’s affidavit, Annexures O, Q

The mother voluntarily adduced the transcripts of those recorded conversations in evidence believing they would be helpful to her case, so she was probably oblivious to the destructive potential of her parental behaviour and surprised by the single expert’s opinions about it. Her lack of insight is compounded by her belief she is an exemplary parent. The single expert agreed with the proposition put to her in cross-examination that the mother’s deluded perception of her parenting competence causes her to think there is little or no room in the children’s lives for a weaker parent. Such an attitude does not augur well for the continuing involvement of the father in the children’s lives if they remain resident with the mother.
Like the father, the mother has day-to-day support from her family in the care and supervision of the children.[94]
[94] Single expert report, para 17
Currently, there is an interim domestic violence order in existence protecting the father from the mother.[95] The mother is apparently contesting the order, but its interim provisions are not inconsistent with the parenting orders in issue between the parties.
[95] Mother’s affidavit, para 25, Annexure A

Conclusions and orders

The presumption of equal shared parental responsibility does not apply because the evidence surely proved both parties engaged in family violence at times in the past (s 61DA(2)(b)). It would still be possible to make an order allocating equal shared parental responsibility for the children to the parties, but not unless the children’s best interests would thereby be served. Despite the Independent Children’s Lawyer’s proposal for such an order, the evidence comprehensively established that neither the children nor the parties would be well served by such an order.
The parties have no trust in one another and the children seem well aware of it. Significantly, the parties are unable to communicate respectfully and neither wants to be forced to do so. The obligation of their co-operation, if an order for equal shared parental responsibility is made, is incapable of fulfilment (s 65DAC). They each proposed the allocation of sole parental responsibility for the children, though each hoped to be the repository of such power as the primary residential parent.
The single expert also recommended strongly against the allocation of equal shared parental responsibility. She said the fewer decisions the parties have to share the better. She even said the less they had to communicate the better. When asked if she thought the parties were capable of compromise she chuckled and said not. Such comments in cross-examination only emphasised the views expressed in her report that the parties’ past “co-parenting appears to have been spectacularly unsuccessful”[96] and that “the parties cannot work together to reconcile their differences in the interests of the children”.[97]
[96] Single expert report, para 231
[97] Single expert report, para 237
The only feasible option is to allocate parental responsibility exclusively to one party and, logically, that should be the party with whom the children primarily live. Both parties have the requisite intellectual and cognitive capacity to individually exercise parental responsibility for the children.
The allocation of parental responsibility exclusively to one party must follow upon a finding that the recipient is sufficiently competent to wisely exercise it. Consequently, there is no need for a suite of supplementary orders regulating that party’s exercise of parental responsibility simply to assuage the other party’s concerns. Doing so would only expand the scope for further parental dispute. The Independent Children’s Lawyer accepted that reality, but it remained unclear whether the mother did also. The mother’s applications for orders about the children’s medications, parental communication, and the children’s safety at construction sites and while travelling in vehicles are dismissed.[98] Similarly, the Independent Children’s Lawyer’s applications for orders about the parties’ use of particular medical practitioners, mandatory acceptance of the advice of such practitioners, and engagement of the children in a mentoring program are dismissed.[99]
[98] Amended Application 21/1/16, Orders 15, 16, 19, 20
[99] Exhibit ICL2, Orders 2-8, 20-21
Since no order for equal shared parental responsibility will be made, s 65DAA of the Act is not engaged. Nonetheless, it is still necessary to consider an “equal time” living arrangement (because the Independent Children’s Lawyer proposed it) and, alternatively, a regime under which the children live primarily with one parent and spend “substantial and significant time” with the other parent (because the father proposed it).
Despite the sincerity of the Independent Children’s Lawyer’s proposal for the children to live with the parties for equal time, that is an untenable outcome. That was the unequivocal opinion of the single expert, which conclusion was clearly correct on the evidence. Even though the children’s attachments to both parties would ideally support an “equal time” residential regime, the parties’ conflict is too entrenched and their parenting styles are too disparate to enable it to succeed. The single expert had no real hope the parties could isolate their own feelings from decisions affecting the children’s best interests. Although both parties believe they put the children’s best interests ahead of their own, their animosity towards one another colours their perception. Even though the eldest child expressed the desire to live with the parties for equal time, neither party proposed orders to that effect. They appreciated the correctness of the single expert’s advice, even if the eldest child did not. The eldest child’s view was probably borne of his belief in the equity of an “equal time” regime, but such an idealised belief does not make it workable or desirable. Accordingly, neither party considered much, if any, weight should be reposed in the eldest child’s view, or for that matter, the views of the other two children.
The sole consideration of primary importance in these proceedings (s 60CC(2)) is the need for the children to continue deriving benefit from their meaningful relationships with both parties. That outcome can only be achieved if both parents remain significantly involved in the children’s lives, which objective would be scuppered if one party was either eliminated from, or marginalised in, the children’s lives in the way the mother envisaged might happen to the father. None of the additional considerations raised by the evidence (s 60CC(3)) carried sufficient weight, either individually or in aggregation, to outweigh the desirability of both parties remaining meaningfully engaged in the children’s lives.
Necessarily then, the children should live with one party, but spend substantial and significant time with the other. On balance, the children should live with the father instead of the mother. It would be a mistake to commit the parties, for a third time, to a regime under which the children live with the mother and spend substantial and significant time with the father. That regime has already failed twice, even though the parties willingly acceded to it in the past. Forcing it upon them again now, when neither party wants it this time, would be a recipe for failure and probably result in even more litigation. Significantly, the Independent Children’s Lawyer submitted for a reversal of the children’s residence if her primary proposal for an “equal time” residential regime was rejected.
Apart from avoiding the same mistake again, the factors that weighed in favour of the children’s residence with the father were:
(a)The ability of the children to maintain their meaningful relationships with both parties if they live with the father instead of the mother. If they remain living with the mother they are in grave danger of losing their valuable relationships with the father. The mother places too much pressure on them to make their own decisions about retention of their relationships with the father and they feel an unspoken expectation to forge their allegiances with the mother at the expense of their relationships with the father.
(b)The father is more likely than the mother to diligently ensure the children attend school regularly and for full days, which will enhance their peer socialisation and improve their scholastic performance.
(c)The father will satisfactorily monitor the children’s medical needs, such that their health will not be neglected or unreasonably endangered.
The factors that weighed in favour of the children’s residence with the mother were:
(a)The mother is more likely than the father to provide the children with a higher standard of physical care and to ensure their medical needs are vigilantly monitored.
(b)The children would be emotionally disturbed by their removal from the mother’s primary care, though that is likely to only be a short-term effect because of the depth of their bonds with the father.
(c)A move to live with the father would mean the children will need to change schools, though the father said he would delay that change until the end of the current academic year so the children are not challenged by too many changes at once. For that reason, an injunctive order is made to that effect. However, many children change schools for many different reasons, so the children’s prospective change of schools is not of itself so significant.
The single expert abandoned her original recommendation for the children to remain living with the mother and to still spend substantial time with the father.[100] She realised that regime is already a proven failure twice over and frankly admitted “the current state of play doesn’t work”. She said in cross-examination the mother’s anxiety about the children in the care of the father would exist regardless of the quantum of time they spend with him so the reduction of time spent by the children with the father, as the mother proposed, would not appreciably abate her anxiety. Acceptance of her evidence narrowed the available options to elimination of the father from the children’s lives (which would offend the findings made under s 60CC(2)(a) about the children’s best interests) or reversal of the children’s residence.
[100] Single expert report, para 238
The mother submitted that her retention of the children’s residence would represent “continuity”, but continuity is not a desirable objective if the existing regime does not serve the children’s best interests.
The orders require the children to move to live with the father immediately, as the single expert advised in cross-examination should occur if the children’s residence is to be reversed. The father is at liberty to immediately seize control of the children, though it would be preferable if the immediate transition was arranged by the parties consensually.
The driving time between the parties’ existing homes is at least 40 minutes, but no more than an hour.[101] Both parties are licensed to drive and have cars, so it is reasonably practicable to impose a residential regime under which the children live with the father and spend substantial and significant time with the mother.
[101] Single expert report, paras 22, 101
The orders provide for the children to spend time with the mother on alternate weekends during school terms, for half of all school holiday periods, and on other special occasions. However, such orders are suspended for a period of about two months to enable the children to settle into their new residence with the father without emotional interference, even if unintended, by the mother.
In order to reduce the chance of the parties needing to meet, the orders provide for changeovers to occur at the children’s school whenever possible. Otherwise, changeovers will occur in or about the foyer of the E Hotel in central Canberra, which venue has been used by the parties in the past without overt complaint. The mother sought a supplementary order about the parties’ participation in a “changeover program”,[102] but it was not the subject of any meaningful evidence or submission so no such order is made.
[102] Amended Application 21/1/16, Order 13
Both parties wanted orders providing for the children to be shared on birthdays[103] but, in the absence of any evidence or submission at all on that topic, the minor differences between their respective proposals were not justiciable issues and so the orders make no specific provision about such events. In any event, the children will see the parties frequently enough to make special arrangements on birthdays an unnecessary complication.
[103] Amended Application 21/1/16, Orders 10-11; Amended Response 29/1/16, Order 7
The orders make provision for the children to communicate by telephone with the parties once each week when in the care of the other. The mother proposed an order for such communication to occur twice each week[104] but, given her complaint about the father’s alleged disinterest in telephone communication and the past problems with its implementation,[105] once each week is enough. There is no initial embargo period on the mother’s telephone communication with the children.
[104] Amended Application 21/1/16, Order 14
[105] Mother’s affidavit, paras 212-216
The mother and Independent Children’s Lawyer sought injunctions against both parties in the nature of domestic violence orders,[106] but no such orders are made. The Act (s 114AB(2)) precludes such injunctive orders when orders of that sort made by State and Territory courts are in force, or alternatively, proceedings in respect of such orders are pending before a State or Territory court. The father currently has an application for a domestic violence order against the mother pending before the ACT Magistrates Court. In any event, further family violence between the parties is unlikely and the need for the proposed injunctions was not demonstrated.
[106] Amended Application 21/1/16, Orders 17, 21; Exhibit ICL2, Orders 12-15
The Independent Children’s Lawyer also sought other injunctive orders against the parties in respect of their dealings with the children.[107] Apart from an injunction restraining one party’s submission of the children to denigration of the other party, such injunctions are not made because the existence of such orders is only likely to lead the parties to interrogate the children about the other’s compliance. The children need to be removed from the middle of the parties’ conflict.
[107] Exhibit ICL2, Orders 16, 17, 19
The unfortunate probability is that the children will continue to be exposed to denigration of each parent in the other’s household. Both parties gave examples of the children reporting to them their denigration in the other’s household.[108] The eldest child gave the single expert a graphic example of the father’s denigration of the mother in his presence and, although the eldest child said the mother did not call the father similar derogatory names,[109] it is likely both parties will remain critical of the other around the children. An order is made to try and prevent it, but the order may not successfully serve its purpose.
[108] Mother’s affidavit, para 131; Father’s affidavit, paras 29.3, 88, 107
[109] Single expert report, para 185
The orders restrain the parties from administering corporal punishment to the children. They each agreed there is no need for it, despite their past practices, and they each agreed they would desist from it in the future.
The mother will be acutely disappointed in the outcome of the litigation. She will probably wrongly perceive the orders to be an unfair reaction to her higher parenting standards. Nonetheless, she has little capacity for introspection and will probably look for any sign the children are not as well cared for by the father. She may find reason to report to a child welfare authority some future concern she develops about the children’s safety in the care of the father. For that reason, in the event of such a future report by either party, the orders require them to furnish to the child welfare authority copies of the orders, these reasons, and the report of the single expert. That will enable the child welfare authority, when investigating any future report, to be well appraised of the Court’s factual findings about the family’s history.
The orders require the children to be presented to the Independent Children’s Lawyer shortly after the orders are pronounced and these reasons are published for an explanation about the meaning of the orders. The Independent Children’s Lawyer informed the Court she would willingly submit to such an order. It is important the children receive a balanced and fair explanation of the outcome of the litigation.
The remaining orders are self-explanatory and could not evoke rational objection.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 April 2016.

Associate:

Date: 28 April 2016

[2016] FamCA 279

28 April 2016

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