Maher and Mills (No 2)

FAMILY COURT OF AUSTRALIA

MAHER & MILLS (NO 2)

[2015] FamCA 1158

FAMILY LAW – CHILDREN – competing proposals for final parenting orders for two children of a defacto relationship aged seven and five – with whom the children should live – whether the mother will promote and facilitate a meaningful relationship between the father and the children if the children remain living with her – the extent of detachment distress on the children if residency transferred from mother to the father – spend time arrangements – whether the father should have sole parental responsibility for educational matters if the children live with him – presumption of equal shared parental responsibility not rebutted – satisfied the mother has capacity to provide for the psychological and emotional needs of the children – children to reside with the mother and spend significant and substantial time with the father – the mother be restrained from attending Dr I for counselling with the children

Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B, 61DA, 65DAA(1), 65DAA(2), 69ZT Family Law Rules 2004 (Cth), r 15.41
APPLICANT:	Mr Maher

RESPONDENT:

Ms Mills

INDEPENDENT CHILDREN’S LAWYER:

Barbayannis Lawyers

FILE NUMBER:

MLC

3562

2013

DATE DELIVERED:

21 December 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

9, 10, 13, 14, 15 and 17 July 2015

Written submissions received 20, 28 July, 12 and 27 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lane

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr O'Connell

SOLICITOR FOR THE RESPONDENT:

Schetzer Constantinou

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbayannis Lawyers

Orders

The parents have equal shared parental responsibility for the children B born … 2008 and C born … 2010 (“the children”).
Unless otherwise agreed between the parties in writing, the children live with and spend time and communicate with the parents as follows:
(a)during the 2016 school term:
(i)until the commencement of Term 2 in 2016:
A.each alternate week with the father from the conclusion of school and daycare or kindergarten (or 3.30 pm if it is a non-school/daycare/kindergarten day) on Friday until the commencement of school or daycare or kindergarten (or 9.00 am if it is a non-school/daycare/kindergarten) on Tuesday;
B.with the mother at all other times;
(ii)from the commencement of Term 2 in 2016:
A.each alternate week with the father from the conclusion of school and daycare or kindergarten (or 3.30 pm if it is a non-school/daycare/kindergarten day) on Friday until the commencement of school or daycare or kindergarten (or 9.00 am if it is a non-school/daycare/kindergarten day) on Wednesday and
B.with the mother at all other times;
(b)during the school term holidays:
(i)the first half of the school holiday period with the mother, from the conclusion of school on the last day of term until 4.00 pm on the middle day of that school holiday period; and
(ii)the second half of the school holiday period with the father, from 4.00 pm on the middle day of that school holiday period until the commencement of school on the first day of the following term;
(c) during the Christmas period:
(i)in 2015 and each alternate year thereafter:
A.with the mother from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day; and
B.with the father from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day;
(ii)in 2016 and each alternate year thereafter:
A.with the father from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day; and
B.with the mother from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day;
(d)during the long summer holidays:
(i)with each parent on a week about basis, from the conclusion of school on the last day of Term 4 until the commencement of school on the first day of Term 1 the following year:
A.with the father to have the first week in the 2015/2016 summer holidays and each alternate summer holiday thereafter; and
B.the mother to have the first week in the 2016/2017 summer holidays and each alternate summer holiday thereafter;
with changeovers to occur at 4.00 pm;
(e)on the following special occasions:
(i)on the children’s birthdays:
the children spend time with the parent with whom they are not otherwise spending time pursuant to these Orders, from the conclusion of school or daycare or kindergarten until 7.00 pm when such occasions fall on a school/daycare/kindergarten day and from 10.00 am until 3.00 pm when such occasions fall on a non-school/daycare/kindergarten day;
(ii)on the mother’s birthday:
with the mother from the conclusion of school or daycare or kindergarten until 7.00 pm when such occasions fall on a school/daycare/kindergarten day and from 10.00 am until 3.00 pm when such occasions fall on a non-school/daycare/kindergarten day
(iii)on the father’s birthday:
with the father from the conclusion of school or daycare or kindergarten until 7.00 pm when such occasions fall on a school/daycare/kindergarten day and from 10.00 am until 3.00 pm when such occasions fall on a non-school/daycare/kindergarten day
(iv)on Mother’s Day:
with the mother from 10.00 am until 4.00 pm;
(v)on Father’s Day:
with the father from 10.00 am until 4.00 pm;
(f)by telephone, with the parent with whom the children are not otherwise spending time and that parent be at liberty to telephone the children each Monday and Wednesday between 6.00 pm and 7.00 pm.
For the purposes of changeovers:
(a)wherever possible, changeovers shall take place at the children’s school or daycare or kindergarten but in the event the children are not otherwise attending school or daycare or kindergarten on that day, changeover shall take place as agreed by the parents or failing agreement, at the front entrance of the Coles Supermarket, Suburb G;
(b)where changeovers do not occur at the children’s school or daycare or kindergarten, the father shall be at liberty to nominate Ms K to facilitate changeover with the mother and, in the event that Ms K is unavailable, the father may nominate another person who is known to the children to facilitate changeover and shall inform the mother of his nominee by text message as soon as reasonably practicable.
For the purposes of paragraph (2)(b) of these Orders, in the event that calculating ‘half of the school holiday period’ provides for uneven days, then the father shall have the benefit of one extra day.
The time that the children spend with the parents pursuant to paragraph (2)(a) of these Orders will recommence as if uninterrupted by the school holidays.
The mother and the father shall do all things necessary to engage a family therapist for ongoing therapeutic counselling and participate in such counselling.
The mother is restrained, and by her servants and agents from having either or both of the children participating in any counselling/therapy (including but not limited to engaging Dr I) without the prior consent of the father.
Both parties be at liberty to attend the children’s school for all activities and events ordinarily attended by parents of students and all extra-curricular activities attended by parents of students.
The children remain enrolled at and continue to attend Q School.
Both parties are to advise the other of the following:
(a)any change to the contact telephone number or email address of the other party within 24 hours of such change occurring; and
(b)any injury or illness suffered by the children whilst in their care.
The mother shall do all things necessary on direction from the family therapist to attend upon and engage in personal therapy with a therapist approved by the Family Consultant.
The family therapist shall be at liberty to liaise with and receive feedback from the mother’s therapist.
The children shall engage in therapy as recommended by the Family Consultant.
The family consultant be provided with copies of the following documents and be at liberty to provide them to the parties’ therapist and the children’s therapist:
(a)       the reasons for judgment;
(b)       the family reports of Dr D and Mr M;
(c)       the psychiatric assessment of Dr E
The Independent Children’s Lawyer provide copies of the documents referred to in paragraph (14) of these Orders to the Department of Health and Human Services, Victoria Police SOCIT unit and the children’s medical practitioners.
The appointment of the Independent Children’s Lawyer be discharged.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of 30 days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maher & Mills (No 2) 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 MELBOURNE

FILE NUMBER: MLC 3562 of 2013

Mr Maher

Applicant

And

Ms Mills

Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding concerns competing proposals for final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for two children of a de facto relationship of about 10 years. The children are B aged seven and C aged five. B is in Year 1 at primary school and C attends daycare and kindergarten but is enrolled to commence at the same school in 2016.
Competing proposals for final property orders were ultimately resolved between the parties during the trial by way of minutes of consent orders.
An Independent Children’s Lawyer represented the children’s interests. The proceeding was transferred from the Federal Circuit Court to this Court by her Honour Judge Small on 9 October 2014.
Central to the issues in the trial was with whom the children should live and whether the mother would promote and facilitate a meaningful relationship between the children and the father if the children continue to live with her. Included in the issues for determination was whether the residency of the children should be transferred from the mother to the father. It was the father’s case ultimately supported by the Independent Children’s Lawyer that a change of residence was in the best interests of the children having regard to the mother’s lack of capacity to provide for the psychological and emotional needs of the children.
The mother sought that the children continue to live with her and that the interim arrangements for the father to spend time with the children should continue. She also proposed that the parents spend equal time with the children during school holidays.
The mother sought orders for equal shared parental responsibility for the children and this was supported by the Independent Children’s Lawyer at the conclusion of the trial.
Further issues identified by the parties and the Independent Children’s Lawyer at the outset of the trial were the extent of any detachment distress on the children if an order were made to transfer residency, the spend time arrangements for the non-resident parent, and whether the father should have sole parental responsibility for educational matters if the children live with him were also issues
Ultimately, in written closing submissions, the father sought orders for sole parental responsibility for the children for a period of three years with certain conditions.
At the commencement of the trial the parties also sought a determination as to the arrangements for the children’s passports and whether there should be any restraint on removing the children from the Commonwealth of Australia. On 11 June 2013, Judge Small made interim orders in the Federal Circuit Court restraining both parents from removing the children from the Commonwealth of Australia and placing the names of the children on the Watch List for a period of two years. On 14 April 2015, I made interim orders extending the Watch List order to provide for the children’s names to be maintained on the Watch List until 30 July 2015. Ultimately during the course of the trial the parties indicated that there was no application for those orders to be extended.
Interim orders had been made by Judge Small providing for B to attend upon a psychologist Dr I for “individual psychological therapy”. The continuation of this counselling was not in issue because ultimately the mother agreed that she would not continue counselling for the children with Dr I. The father sought an order that the mother be restrained from having “either or both of the children participate in any counselling/therapeutic work (including but not limited to engaging Dr I) without the prior consent of the father.”
Both parties agreed during the trial that they should consult Ms N for ongoing family therapy. This had previously been agreed during interim hearings but the mother had become ambivalent about attending because the children were unsettled when she vacated the former matrimonial home in circumstances where she could not pay the mortgage. However at the time of the trial, the mother pressed for this to occur and the father agreed. This was also recommended by the family consultants.
In cross-examination the mother said that she preferred someone “closer to her than Ms N” but said she would be happy to accept a recommendation from her.

ISSUES

The Independent Children’s Lawyer and the parties’ counsel settled on the following issues for determination in the trial:
·With whom the children live;
·Whether the mother will promote and facilitate a meaningful relationship between the father and the children if the children live with her;
·The extent of any detachment distress on the children if an order is made to transfer residency from the mother to the father;
·The spend time arrangements for the other parent;
·Whether the father should have sole parental responsibility for educational matters if the children live with him;
·Whether the mother should be restrained from attending Dr I for counselling with the children; (This was ultimately not opposed by the mother)
·Capacity of the mother to provide for the psychological and emotional needs of the children;
·The arrangements for the children’s passports. There were ultimately no submissions or evidence about this and accordingly no finding or determination is made on this issue.

Background

The following background is uncontroversial but it can be assumed that where there are any minor differences on the facts between the parties I have made findings. The father is aged 47 years and is employed as a senior business analyst. The mother is 42 years and is employed as a customer services specialist. She works until 2:30pm and is available to collect the children after school and daycare. The parties are both Country J citizens and moved permanently to Australia in February 2004. The parties commenced a relationship in or around 2002 when the mother was about 29 years of age and the father was 34. B was born in 2008 and C was born in 2010. The parents separated on 26 January 2013 and five months later the father commenced proceedings in the Federal Circuit Court seeking final parenting and property orders.
The father has two children from a previous relationship. His previous partner lives in Country J. His daughter from that relationship lives in Country J. His son Mr O from that relationship is nineteen and lives with the father. Mr O came to Australia in December 2012 when he was aged 17 and began living with the parents and children. This was a precipitating event to the separation. The mother was unhappy with this arrangement and wanted him to return to Country J. The parties argued about this on the morning of 26 January 2013 when the mother was preparing to leave for work. An incident occurred outside the home when the parties were arguing. This resulted in the mother attending at the home of neighbours and the police arriving at the family home. The father concedes that during this altercation he hit the mother’s arm causing her phone to fall to the ground and that this was witnessed by the children.
On the same day a family violence safety notice was issued by the police against the father excluding him from the family home. The reason for the notice being issued was “a verbal argument” between the parents about the father’s son Mr O. It records that the parents walked outside the house and the father pushed the mother and then grabbed her by the arm and squeezed it. The mother walked over to her neighbour’s house and called the police.[1]
[1] Annexure RM1 to the father's trial affidavit filed 9 June 2015
A final intervention order was made against the father at the Suburb P Magistrates’ Court on 29 January 2013 in favour of the mother. This application was initiated by a member of the police force and the father consented to the order without admission of the allegations in the complaint and was present at the hearing.[2]
[2] Annexure RM 3 to the father's trial affidavit filed 9 June 2015
The parties attended an unsuccessful mediation on 11 April 2013 at the Family Relationship Centre in Suburb P. The mother had been driving the family car after separation and the father had the use of a motorcycle which he used to travel to work. On 12 April 2013 the father unilaterally removed the family car from the railway station where it was parked whilst the mother was at work.
On 23 April 2013 the father, through solicitors, made a written request of the mother for him to spend time with the children.
The father commenced proceedings in the Federal Circuit Court on 6 May 2013. On 11 June 2013 orders were made providing for the children to spend time with the father each week increasing incrementally to each Thursday from 3 pm until Saturday at 5 pm.
After the preparation of a family report by Dr D, interim orders were made on 16 December 2013 providing that the children spend time with the father on each alternate weekend from 5 pm on Friday until 5 pm on Sunday until the end of the first school term in 2014 and thereafter from after school or childcare on Friday until the commencement of school or childcare on Monday. The children were also to spend time with the father each Wednesday from after school or childcare until 7 pm until the end of the school term in 2014 and thereafter from after school or childcare each Wednesday until before school or childcare on Thursday.
The mother withheld the children from spending time with the father at the end of January 2014, because B complained about the father hitting him and this was being investigated by the Department of Health and Human Services (“DHHS”).
On 27 March 2014 at the Suburb P Children’s Court a member of the police force obtained an interim intervention order against the father in favour of the child B. The order notes that the father was present at the hearing and did not agree to the order being made.[3]
[3] Annexure RM7 to the father's trial affidavit filed 9 June 2015
The father was interviewed by police but not charged with any offence. He made a no comment Record of Interview.
The application made by the police on behalf of B for a final intervention order against the father was determined on 6 June 2014 in the Magistrates’ Court after a five-day contested hearing. Magistrate Radford determined that the father did not hit B, that an act of violence was not likely to continue into the future and dismissed the application for intervention order. However the father concedes the Magistrate’s finding that on the day of separation he “snapped, hitting the mother’s arm resulting in the mother’s phone falling to the ground.” He concedes this was witnessed by the children. The Magistrate found this was an act of violence against the mother and children in the sense that they witnessed an act of violence by the father against the mother.[4]
[4] Annexure RM8 to the father's trial affidavit filed 9 June 2015; paragraph 52 of father’s written final submissions

On 9 October 2014, in the Federal Circuit Court, her Honour Judge Small transferred the proceedings to this Court and made interim parenting orders after a contested hearing having the benefit of two family reports of Dr D. This was after investigations by DHHS resulted in no further action being taken. That hearing included consideration of B’s anxiety and behavioural problems.
Those interim orders provided for the children to live with the mother and for the father to spend specified increasing time with them both during the week, on weekends, on special occasions and during school term holidays and the long summer school holidays.
Paragraph 7 of those orders, which was made by consent, is relevant to this case. It provided as follows:
The parties shall facilitate the child [B] attending upon [Dr I] for psychological therapy in relation to his anxiety and behavioural problem and the management of the difficult family circumstances, and that:
(a)Both parties be authorised to discuss [B’s] therapy with [Dr I], obtain reports from [Dr I] regarding [B’s] therapy, and, at the total discretion of [Dr I], attend [B’s] appointments with [Dr I]; and
(b)Each of the parties shall provide to [Dr I] copies of:
(i)these Orders;
(ii)the two family reports of [Dr D];
(iii)the judgment of Magistrate Radford from the 2014 Intervention Order proceedings; and
(iv)if requested by [Dr I], a full copy of the transcript of those proceedings;
and each shall inform Dr I that these documents are to be treated confidentially and that it is in breach of s.121 of the Family Law Act 1975 [(Cth)] for him to publish or distribute them to any third parties or to use them other than in his treatment of [B].
At a hearing in this Court in the Judicial Duty List on 4 March 2015 where procedural orders were made, the parents agreed to participate in family therapy at the father’s expense and to attend for a psychiatric assessment before the matter proceeded to trial. Consent orders were entered into by the parties to give effect to this agreement.
On 5 March 2015, two days after that interim hearing the mother again withheld the children from spending time with the father. She notified the solicitors for the husband that she was “terminating the access.” The mother filed a Notice of Risk of Child Abuse, Family Violence, or Risk of Family Violence on 16 March 2015.
The mother made the following claims in that document:
·both children witnessed the father threatened to stab the mother with a ‘large kitchen knive[sic]’;
·eldest child reports physical assault by the father to his carer and the police take up the prosecution;
·eldest child alleges he has been told by the father to hurt mum and take out his anger on the home;
·both children have alleged that they are afraid of their father;
·both children have reported to other parties their fears about having to spend time with the father;
·the eldest child has exhibited escalating behavioural problems since contact has resumed with the father. He has physically destroyed property, been violent towards the mother and his sister and has shown extreme emotional swings.
The response from the Department of Health and Human Services dated 13 April 2015 (“the DHHS response”) refers to matters which were investigated by DHHS in early 2014 before the interim parenting orders were made by Judge Small. It would appear that four reports were made between January and February 2014 and that the fourth report was a repetition of matters which had already been reported.
In summary, the DHHS response indicates that child protection conducted interviews with “the respondent” and the children after reports were received in January and February 2014. The response notes that there was an anticipated hearing in the Federal Circuit Court in October 2014 and that the Suburb G police contacted child protection on 13 January 2014 “ to state that the mother is refusing to hand over the children to the father”. It is also recorded that the day carer noted that the mother was intending to breach the court orders due to her fear about the children’s well-being in the care of the father. The report states:
It was assessed that the probability of future harm is low given this [sic] the concerns regarding the father could not be substantiated in this instance, and this matter would be more appropriately dealt with in the FLC.[5]
[5] Response from the Department of Health and Human Services dated 13 April 2015 at page 2
The DHHS response refers to “disclosures” made by the children when interviewed by protective workers as follows:
[B] disclosed to protective workers that he:
·His Father hurts him; he was hit by him in the face twice and punched him in the tummy 3 times.
·His father pushed him on the trampoline and jumped on his face and made him bleed.
·His father punched him because he was opening [C’s] presents, they were fighting so his father hit both of them in the face. It happened on a weekend.
·He last saw his father in [C’s] bedroom a long time ago because hurts (sic) his father hurts him.
·He stated that he was scared of his father.
·He stated that his father has also hurt [C], he has hit her two times.
·He stated there were no good things about his father.
·He stated that he did not want to see his father because he is hurt by him.
·He feels safe at home.
·He stated that he never wants to see his father again.
In relation to remembering things between his mother and father he stated that he remembered bad stuff, his father smashed his mother’s phone. He also recalls his father punching his mother in the face and the police taking his father away. He said that his father came back and stole the passports.
[C] disclosed to protective workers that she:
·She does not see her father and he “whack us.” This happened on the trampoline and in her bedroom, because she disobeyed her father.
·What makes her happy is playing with her friends.
·What makes her sad is she is a little bit sad from her father. She misses him and would like to see him again.
·However she is not allowed to see her father as he “whacks” [B] and “whacks” her on the arm.
·Sometimes her father scares her.[6]
[6] Response from the Department of Health and Human Services dated 13 April 2015 at page 4.
The DHHS response records that the father was interviewed on 10 April 2015 by telephone after receiving a letter from the DHHS. The father denied all allegations and referred to a Family Court report supporting the positive attachment and bond between himself and the children. He denied assaulting his son and stated that the police had been involved and that he had not been prosecuted. In response to an allegation that he had threatened the mother with a knife in the presence of the children, he stated that this was a story made up by the mother and was an incident which never occurred.
The conclusion of DHHS was that it was unnecessary to take any further action. DHHS after investigating did not see fit to participate in the trial.
In relation to family therapy at an interim hearing before me on 14 April 2015, where the mother was self-represented, she indicated that she was ambivalent about attending because the children were unsettled and she had just moved house. The property proceedings were on foot. Counsel for the father and the Independent Children’s Lawyer submitted that the family therapy which had formerly been agreed upon no longer seemed appropriate because of the mother’s change in attitude. Counsel for the father and Independent Children’s Lawyer sought that the matter be listed for trial and procedural orders were made fixing the trial date.
At the time of the interim hearing on 14 April 2015 the mother had been unable to meet the mortgage payments and without notifying the father in advance had vacated the former matrimonial home with the children.
At that hearing I made interim parenting orders increasing the father’s time with the children and providing generally for the children to be collected from school and daycare. The reasons for judgment were delivered on 8 May 2015.
Notwithstanding her ongoing concerns about B’s relationship with his father, the mother complied with those orders and both parties gave evidence in the trial that the interim arrangements and in particular the changeovers were working well. The children have been spending four nights per fortnight with the father, being each alternate weekend from the conclusion of school and daycare on Friday until the commencement of school and daycare on Monday and in the alternate week from the conclusion of school and daycare on Thursday until the commencement of school and daycare on Friday.
The mother’s case at trial was that she did not seek any finding that the father was a risk to the children but she relied upon the background of the relationship and advice she was given by B’s counsellor Dr I. She relied on this for her state of mind, attitude and her conduct in withholding the children prior to the making of the interim orders of 14 April 2015.
The father and the Independent Children’s Lawyer relied on the mother’s conduct leading up to those interim orders as evidence of the mother’s intractable attitude towards the father and her failure to facilitate a relationship for the children with the father. For this they relied heavily on the cross-examination of the family consultant. They also relied on this attitude for the proposition that the mother did not have the capacity to provide for the psychological and emotional needs of the children. Counsel for the father raises the “capacity of the mother to provide for the psychological and emotional needs of the children, to facilitate ‘and promote’ the father’s relationship” as an issue.

Evidence

The documents relied upon by each party and the Independent Children’s Lawyer and the exhibits tendered are listed in Annexure A. The father, the mother, and the family consultant Mr M were cross-examined. The expertise of Mr. M was not challenged.

Procedure

At the conclusion of the trial the parents and Independent Children’s Lawyer submitted written final submissions.

Standard of proof

There was no application made under s 69ZT(3) of the Act to exclude the operation of s 69ZT(1) of the Act and there were no exceptional circumstances for excluding the operation of that section.
In determining what final orders the Court should make, I have applied the relevant standard of proof which is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[7]
[7] Evidence Act 1995 (Cth) s 140.

The Relevant Law

In making any parenting order, the children’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the children must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the children’s best interests

Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

The primary considerations

The primary considerations in s 60CC(2) of the Act are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[8] I have accordingly taken this into account in determining the best interests of the children.
[8] Family Law Act 1975 (Cth) s 60CC(2A).
In this case there is a background of the mother and B making allegations against the father about incidents which the mother and police claimed involved family violence. The police application for an intervention order against the father on behalf of B in the Magistrates’ Court was unsuccessful. With the exception of the father’s concession that he hit the arm of the mother causing her mobile phone to fall to the ground which was witnessed by the children, at the time of separation, none of these allegations have been proven. The father has consistently denied all the allegations with the exception of the incident involving the mother’s mobile phone.
Investigations by DHHS about complaints in 2014 and 2015 were concluded without any further action being taken. The father has not been charged with any criminal offence.
The allegations of family violence are relevant to the credibility of the mother and her continuing attitude of suspicion towards the father. The mother’s credibility is relevant to the issue of whether she will promote and facilitate a meaningful relationship between the children and the father if the children continue to live with her. It is also relevant to her capacity to provide for the psychological and emotional needs of the children.
Although allegations of family violence have been relevant to the history of the parties there was no argument in the trial that the children will be exposed to family violence in the care of either parent.
There was no dispute between the parties that the children will benefit from a meaningful relationship with both parents.
The additional considerations are listed in s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. The relevant additional considerations are discussed at paragraph 332 and following.

Evidence of the father

The father denied any family violence towards the mother and the children. He relied upon the findings of the Magistrate on 6 June 2014, that he did not hit B and that an act of violence was not likely to continue into the future. He conceded that the Magistrate had found that the incident where he knocked the mother’s mobile telephone out of her hand on the date of separation on 26 January 2013 had constituted an act of violence.
Regarding B’s complaint that the father had hit him in January 2014 the father deposes:
84.I returned the children to [Ms Mills] on 19 January 2014 at 5pm in accordance with the orders. After a few minutes she called my mobile and said that I had “hit [B].” I paused to think and said “no, I haven’t hit [B].” I then said words to the effect: “I did see [B] bump into a gate when he was playing on his skateboard but he wasn’t hurt. I didn’t hit him. Despite my denial, [Ms Mills] continued to accuse me of “hitting” [B]. She then hung up the phone.
85.At 5.25pm that day [Ms Mills] sent me a text message which said: “[Mr Maher] [B] is positive you whacked him in the face hard when [C] and him were fighting and [C] has confirmed you did as well children don’t lie about these things [Mr Maher] [B] has confirmed your story about the fence also keep your hands off the children [Mr Maher] seriously [B] already has violent tempers your not helping him.” I did not reply.
86.I spent time with the children on 22 January 2014 in accordance with the orders dated 16 December 2013. I collected them from school and daycare and returned them to [Ms Mills] at 7pm.
87.On 28 January 2014 I was advised by telephone that the Victoria Police had filed an application for an intervention order against me, made on 22 January 2014, naming both children as the Affected Family Members. The return date was on 3 February 2014.
88.I spent time with the children on 29 January 2014 in accordance with parenting orders. Later that evening, [Ms Mills] sent me a text message, part of which stated: “B is very clear that he does not want to spend time with you and does not want to be made to how do you want to handle this I’m not making him do anything he’s pretty clear.” I did not reply.
89.On 30 January 2014, [Ms Mills] sent me a further text message which stated: “[Mr Maher] [B] had his appointment tonight and he has expressed to the psychologist in his one on one that he does not want to spend time with you at the moment he is very upset at the moment need to set some other things up so that the children feel ok and pending outcome of court on Monday it is appropriate that children remain home this weekend and ask that you respect the children’s wishes.” I did not reply. I didn’t think that replying would help the situation.[9]
[9] Father’s trial affidavit filed 9 June 2015 at paragraphs 84-89.
In cross-examination he recalled that when the mother called him about B’s injury she was very upset and was absolutely certain he had hit B and repeated the allegation over and over. The father conceded that he did not reply to the mother’s second text. He stated that he did not reply to the text because he didn’t hit his son. When asked why he didn’t explain to the mother that he had applied ice to B’s face and that B was crying as he deposed, he responded: “What the mother asserted didn’t match, she said I hit [B] and I didn’t. I was being investigated by police for assault and I didn’t need to engage with the mother about explanations.”
He conceded that he did not provide that explanation to the mother until much later because he claimed that communication was not flowing at that time – he had been accused of assaulting his son and was undergoing intervention order proceedings and police investigations. He had been the subject of many allegations and considered that this was another allegation within that framework.
He conceded that the mother was not told about the explanation he gave in his trial affidavit until his lawyers wrote to her solicitors on 3 April 2014, some three months after the incident.
He agreed that the mother offered for him to spend time with the children in February 2014 but that he did not take her up on that offer because of concerns about the allegations. When asked if he was not really pressing to see the children, he stated that the mother had made it clear that he would not see the children, “enough was happening, so I didn’t press because it was not in the interests of the children.” He conceded that he accepted that the mother would collect the children early when he was supposed to spend time with them because he had to deal with the processes in the Magistrates’ Court.
The father conceded that he was reluctant to respond to the mother’s overtures to attend a mediation because he was being investigated for assault and responding to a reassessment of his liability for child support and dealing with the processes. He conceded that he did not respond to correspondence initiated by the mother through Lifeworks dated 20 February and 17 March 2014. The father deposes that this was because he was under the impression that the mother was not willing to engage in mediation.[10] The father deposes that his lawyers wrote to the mother proposing a lawyer assisted mediation and received no response.
[10] Father’s trial affidavit filed 9 June 2015 at paragraphs 112-113.
The father deposes to a number of occasions in February 2014 when the mother picked the children up early from day care and prevented him from spending time with the children.
The father deposes that the first time he spent time with the children again was 21 September 2014, after Dr D’s intervention.

Father’s evidence of alcoholism

The father conceded that he had a history of alcoholism, but that he stopped drinking on 17 February 2006 and has remained sober ever since. This was before the birth of the children. The mother’s evidence was that she suspected that the father resumed drinking in 2010.[11] The father conceded that the mother reintroduced him to Alcoholics Anonymous (“AA”) and supported him until he was three years sober but he stated that she then complained that the meetings took him away from the family and he then re-arranged the meeting venues.
[11] Mother's trial affidavit filed 29 June 2015 at paragraph 34
He conceded that he currently attends AA meetings about four times a week in the evenings and that some of these meetings involve travel time of about 45 minutes from home.
The father was prepared to concede that his alcoholism historically involved “blackouts” where he had no memory of his behaviour or conduct. He conceded that he did not have control of himself when he was drunk. He conceded that the mother had to deal with his behaviour at the time of the blackouts and his alcoholism. He was prepared to concede that he was grateful to the mother for helping him to overcome his addiction. He also conceded that the mother’s experience and perception of him because of his alcoholism could have had a major impact on her.
The relevance of this evidence is to place into historical context the mother’s continuing lack of trust in the relationship. The evidence also explains the father’s continuing commitment to AA.

Father’s evidence about the children’s school

In cross-examination the father had no concrete proposals about the children’s schooling but maintained that he had not been consulted by the mother about the choice of Q School where B has attended since Grade Prep.
The father relied on Exhibit B as evidence that the mother did not support his relationship with the children. This was an enrolment record completed by the mother for C’s enrolment at Suburb G Family Daycare. The father complains that this document did not record him as an emergency contact or as a parent. This application was completed by the mother on 14 February 2013 which was about 16 days after the parties separated and the father had been issued with a family violence safety notice. The mother and children were named as protected persons in that notice. The final intervention order where the father consented without admission to an intervention order in favour of the mother had not been determined at that time and was not finalised until 29 January 2013. The enrolment record was not completed by the mother for the second parent. The enrolment must be seen in this context where there had been an acrimonious separation and the involvement of police.
Cross-examined by counsel for the Independent Children’s Lawyer, the father conceded that B was doing well educationally at Q School and that he had no complaint about the school’s response to him. He conceded there were no difficulties with the location of the school and that the school was “receptive, cordial, polite and understanding” regarding his circumstances.
The father could not provide a satisfactory explanation for making no arrangements to discuss B’s progress with his class teacher since court orders were made for him to spend time with the children in September 2014. He stated that he had discussions with the principal and deputy principal and spoke with B’s class teacher on occasions when he took him to school and collected him from school.
The father’s evidence was that he did not have the financial resources to support a private school education for the children until they were 18 years of age. Apart from this issue he could not offer any reasonable explanation for why he should have sole parental responsibility for decisions regarding the children’s education.

Father’s evidence about removing the mother’s car

The father took possession of the 4WD motor vehicle which the mother had been driving since separation. He removed it from the mother’s local railway station car park without advance notice to her. The mother used that vehicle to drive to the station to get to work. This occurred on 12 April 2013 which was the day after a failed mediation.
I accept the evidence of the mother that she received a text message from the father stating:
I have picked up the car and let the police know it is not stolen. It is 3,000 km overdue for service and I will be getting it valued. Will also cost repair to broken DVD for settlement process children’s car seats, pushchair and tennis Gear were dropped off at house by someone else I am unable to indicate how long that will take and I appreciate you will need to make alternative arrangements for the children regards [the father].[12]
[12] Mother's trial affidavit filed 29 June 2015 at paragraph 67
Cross-examined by counsel for the mother and counsel for the Independent Children’s Lawyer, the father was not prepared to concede that his removal of the 4WD vehicle amounted to a spiteful reaction. He accepted that the mother used that vehicle to drive to the station in order to travel to work and transport the children. He conceded that he had a motorbike and did not need the 4WD vehicle for transport. He insisted that his motive in removing the car without notifying the mother was to have the brakes made safe. He conceded that after having the car repaired he did not return it to the mother but maintained that this was because she told him that she had purchased another car. Counsel for the Independent Children’s Lawyer suggested that he did this as an act of spite. The father responded: “It would appear that way. I didn’t take the car to hurt anybody…. I drove the vehicle before making the decision and it was 3,000 K over service”. He maintained that spite was not his motivation and not his experience.
After proffering many excuses the father was ultimately prepared to concede that it was not his “proudest moment”.
In written submissions, counsel for the father submitted that the father took the family car on 12 April 2013 because :
·he told the mother that the brakes needed to be replaced on the car at separation and the mother agreed;
·on 12 April 2013 the father inspected the vehicle and noticed it had not yet been serviced and was 3000km overdue and was concerned about the safety of the mother and children;
·the father sent the mother a text after he took the car and there was no threat to keep the car because he returned the car seats;
·the father serviced the car on 17 April 2013 and intended to return it to the mother then, but discovered that she had already purchased a new car; and
·the father denies the allegation that taking the car was punishment for a failed mediation and maintains that he had safety concerns.
I do not accept that submission or interpretation of the evidence. On the evidence of the father and his own admission he was aware of the inconvenience to the mother and children and his removal of the car was without notice. The return of the children’s car seats did not support the proposition that the father intended to return the car to the mother.
Counsel for the father submitted in the alternative that the father’s behaviour can be explained on the basis that this conduct occurred soon after separation where emotions were running high. This is the more likely motivation of the father on the balance of probabilities but his actions impacted the children immediately and had little regard for their needs.
Counsel for the father also relied on the evidence of the family consultant M that the car incident did not justify the mother restricting her offer to the father to spend only supervised time with the children, notwithstanding that the father held the children’s passports.
Counsel for the father argued that the fact that the father took the family car does not suggest that he would “overhold” the children. This argument overlooks the context and timing of this incident. The incident occurred the day after an unsuccessful mediation and had an immediate consequence for the children. The mother’s response and attitude towards the father was impacted by his conduct which did nothing to assuage any concerns that she had about his lack of child focus. The family consultant’s evidence was that this conduct of the father was “appalling”, and lacked child focus and child sensitivity.
I accept this evidence of Mr M and regard this example of the father’s conduct towards the mother and children to be controlling and his excuse that the car needed servicing to be disingenuous.

Evidence of the Father’s girlfriend

Ms K, described in these proceedings as the girlfriend of the father, swore an affidavit on 8 June 2015 in support of the father’s application. She was not cross-examined and her evidence is unchallenged. I accept the unchallenged evidence of Ms K concerning her direct observations of the children and the father. I do not accept that she is qualified to give any expert opinion.
Ms K has two children of a previous relationship, R aged 14 and S aged 13. She deposes that R and S have a close relationship with the father. Ms K deposes to commencing her relationship with the father in August 2013, and plans to live with the father in the future, although they do not currently live together. She deposes that the father has been honest about his history of alcohol consumption and his involvement in Alcoholics Anonymous.
She refers to the father’s pet name for B and C, being “cherubs”, and quotes his statements to her about them.
Ms K describes observing a positive relationship between the father and the children since the time she first met them on 23 August 2013, deposing that the father reads them a bedtime story. She deposes to having spent time with them on many occasions since then, that the father has never been violent or abusive towards them, and that she has never seen the children fearful of him.
Ms K deposes that she was aware of the father’s time with the children being interrupted between January and September 2014, and that the father was distressed about the children during this time. She also deposes to being present at the Magistrates’ Court proceedings in June 2014 regarding the Intervention Order Application made on behalf of B. She deposes to hearing the mother say to the police prosecutor that “[r]egardless of the outcome I won’t release the children to him”. She deposes to recording those words in writing within about 15 seconds of hearing them. I do not place any weight on this evidence about a private conversation which was overheard in part only, as the context of the conversation is unknown. However, it is clear on the mother’s own evidence that she did not accept the outcome of the proceedings in the Magistrates’ Court and there is uncontested evidence that the mother’s conduct resulted in the father not spending time with the children.
Ms K describes facilitating the first changeover which took place after what would appear to be the mediation of Dr D. She deposes to a happy reunion between the father and the children and that they were excited to see him. Ms K also deposes to facilitating the changeovers on 12 October 2014 which went smoothly, but reports that at the changeover on 19 October 2014 the mother warned her that the father was not allowed to attend at handovers and that she would file a contravention order if he attended again. Mr K deposes to seeing security guards on either side of the mother at subsequent changeovers in 2014.
Ms K essentially describes a happy and loving relationship between the father and Mr O, B, and C, and describes his parenting routines with respect to the children and their chores as appropriate. She describes him as “inspiring, encouraging, loving, kind and caring.” She describes herself as taking a supporting role.

Evidence of Ms T

Ms T is the father’s former de facto partner and they have two children together, the elder of whom is Mr O. They separated in 2001. Ms T resides in Country J and was not cross-examined in the trial. She swore an affidavit in the Federal Circuit Court proceedings which the father relied on in this trial. The father sought to rely on her evidence as to the attitude of the mother toward his relationship with the children. The relevant part of her affidavit is a letter which she received from the mother in July 2014. She extracted parts of the letter at paragraph 17 of her affidavit, denying the premise of all of those parts:
a)…“I can only imagine the hell he and his family have put you through...”…
b)…“[Mr Maher] is a very sick person and as you have stated in the past which I can now see, accepts no responsibility for his actions/decisions”…
c)…“I can now see that the reasons for you asking [Mr Maher] to leave your family home had nothing to do with the fact that you could earn more money on the benefit, but because [Mr Maher] was obviously physically and emotionally (at the very least) abusive towards you and no doubt, this too was escalated when you had your children”…
The mother did not deny that she had sent the letter and conceded in cross-examination that she did this “out of anger and frustration”. She stated:
…and it’s something that I’ve already said I’ve regretted.
When asked if her sentiment at the time was that she preferred that he had nothing to do with the children for the rest of their lives, she responded:
Yes, I was angry... yes, but that was then, that was past. That doesn’t mean that it’s my position forever.

Evidence of the paternal grandmother

Ms U Maher is the paternal grandmother of the children. She also resides in Country J and swore an affidavit (filed 10 June 2015) which the father relied upon at trial. She was not cross-examined in the trial.
In her affidavit, Ms Maher details the time that she has spent with the children from 2009. The paternal grandmother deposes that she visited Melbourne for the birth of the children and states that when she visited after the birth of C, she supported the mother as best she could by caring for B, assisting with household chores and preparing meals. The paternal grandmother also states that she saw the children three or four times whilst the mother and the children were in City V during their trip to Country J in October/November 2011 and again in December 2011 when the mother, father and the children stayed with her for 4 weeks until January 2012. The paternal grandmother deposes that after the mother and father separated, she visited the mother twice in March/April 2013 in order to see the children and on those occasions, she cared for the children whilst the mother went shopping. The paternal grandmother deposes that she stayed with the father during the intervention order proceedings in April 2013 to support him following the parties’ separation and stayed with the father again from September to December 2013 and October to mid-November 2014. During these times, Ms Maher deposes that she spent time with the children when they were with the father.
I accept the unchallenged evidence of the paternal grandmother concerning the time she has spent with the children. However, I am cautious to accept any statements made by her in her affidavit which pertain to her conversations with the children, given her alliance with the father.

Evidence of the mother

The mother deposes to the history of the relationship and the father’s alcoholism which is not in dispute. She ultimately conceded that the father has recovered from his alcoholism and that there is no evidence to contradict his assertions that he has not consumed alcohol since 2006.
The mother deposes to historical family violence incidents during the relationship which she acknowledged the father denies. She deposes to incidents of family violence in April 2009 on the day of B’s baptism, Christmas Day December 2012 and undated episodes where the father would become angry and take the children with him for a drive in the car.
Ultimately at the commencement of the trial, she did not press these matters for the purposes of any findings in the trial. It was common ground that there had been no police attendance for any alleged incidents until the date of separation.
Counsel for the mother emphasised that the mother does not want to dwell on the past family violence except to maintain that her attitude toward the father has been clouded because of what she asserts were periods of violence over a 10 year relationship where the father was volatile, dismissive and threatening due to drinking problems and blackouts. He emphasised that the mother was not seeking a finding about the family violence because it was not her case that the father is a risk to the children.
The mother deposes to tension building in the household as a result of Mr O arriving from Country J to live with the family in December 2012. She deposes that the children were then forced to share a bedroom.
She deposes to having difficulties communicating with the father about issues with Mr O and the living arrangements. On the evening before separation, the mother committed her concerns to an email to the father. She told him about the email on the morning of separation when she was preparing to leave for work.[13] The father does not dispute the contents of this email and conceded that it was not aggressive.
[13] Annexure RM2 of the father’s trial affidavit filed 9 June 2015
The mother deposes to her version of the episode which led to the police being called to the family home on Saturday 26 January 2014, which was a workday for the mother. The mother’s version of this episode is disputed by the father but he concedes his conduct in relation to the mother’s mobile phone which is outlined earlier in these reasons for judgment.
It is common ground that the father was issued with a family violence safety notice by police which prohibited him from attending the family home.
The mother deposes to becoming concerned regarding aggressive and frustrated behaviours demonstrated by B which prompted her to obtain a referral from a general practitioner for B to see a consulting psychologist, Dr I, in May 2013. These consultations were discontinued as a result of the father obtaining an order from the Federal Circuit Court on 21 October 2013. Pursuant to this order, any consultations had to be by agreement between the parents.
The mother deposes to being very shocked when the father removed the family car from the railway station because she had no mode of transport for work or the children. She deposes that as a result, she was forced to leave her job and seek local employment. She deposes that she made several requests of the father by text message and in telephone calls to return the car but he refused and she was forced to obtain a personal loan to purchase a new vehicle in late April 2013. She deposes that she was struggling financially to pay the mortgage without child support and commenced employment with the Commonwealth Bank in Suburb G on 1 July 2013.
She deposes to the father failing to allow the children to communicate with her by telephone when they spent time with him. She deposes to the children spending time with the father from June 2013 until January 2014 after court orders were made in the Federal Circuit Court.
The mother deposes that when the children were returned to her after spending time with the father between 17 January and 19 January 2014, B told her that the father had hit him. When the mother asked him what he meant, B stated that the father had “whacked him in the face hard” when he and C were fighting. The mother deposes that C confirmed that the father had hit B and B told the mother that the father had put ice on his face and this was confirmed by C.
The mother deposes that when she telephoned the father on 19 January 2014 to discuss the complaint, he denied anything had happened and said that “all he could think was that B had hit his face on the fence whilst he was riding on his scooter.” Afterwards, the mother deposes that B was crying and told her that the father was lying. He said that he did hit his face whilst riding his scooter but that his father had also hit him.

The mother deposes to sending a further text message to the father on the evening of 19 January 2014 about B’s complaint and that the father did not respond. The mother deposes to becoming more concerned and “really confused about to do in relation to the children especially as [B] kept telling [her] that the father had hit him,”[14] however she continued to make the children available to spend time with the father until she sent a further text message to the father on 30 January 2014.
[14] Mother's trial affidavit filed 29 June 2015 at paragraph 81
The mother deposes that on 29 January 2014 when B returned to her after spending time with the father, he was distressed, angry and becoming destructive when playing with toys and told her that he did not want to see the father any more.
The mother deposes to being contacted by DHHS and police in January 2014 regarding a notification that had been made to them and the interim intervention order application. She deposes to being advised by the police that they were investigating whether to charge the father with unlawful assault.
The mother deposes to attempting to communicate with the father about spending time with the children between January and March 2014 but that the father did not respond to communications regarding mediation.
The mother deposes to consultations with the school welfare coordinator and being referred to Dr W, a doctor specialising in behavioural disorders for children. The mother deposes that on 8 September 2014, Dr W requested that Dr I again commence treating B for “anxiety and behavioural problems which I think are secondary to the difficult family circumstances and parental separation”.[15]
[15] Annexure MM –9 of the mother's trial affidavit filed 29 June 2015
The mother deposes to B recommencing therapy with Dr I following the interim orders made by Judge Small on 9 October 2014.
The mother deposes to the procedural history in this Court and concedes that she sent an email to the father’s solicitor advising that “access between the father and the children be terminated effective immediately” on 5 March 2015 pending an urgent application in the Family Court because of an investigation by DHHS.[16] The mother deposes to both children constantly telling her that they did not want to spend time with the father because he yells at them and “whacks” them. She also deposes to the escalation of B’s behavioural problems and aggression, screaming and yelling.
[16] Mother's trial affidavit filed 29 June 2015 at paragraph 113
The mother deposes to being upset, without legal representation and concerned about the children. She deposes to complying with the interim court orders since April 2015 but continuing to have concerns because of a further complaint made by B on 22 June 2015 when he told her on returning from spending time with the father that the father had “ punched him in the groin” and that his “privates were very sore”. She deposes to not seeing any marks on the child but taking him to the doctor because he was very distressed and upset. She deposes to requesting that there be no report made by the doctor to DHHS and explaining that there were ongoing proceedings.
Counsel for the father cross examined the mother about serious allegations made by the mother regarding the conduct of the father towards her during the relationship. She focused in particular upon three episodes allegedly witnessed by the children, being an incident which occurred on Christmas Day of 2012, an incident which occurred on the morning of B’s baptism, and an occasion where the mother alleged that the father had pushed B into a wall when he was aged three.
The mother conceded that the knife incident was alleged to have occurred about four weeks before separation but that it was not mentioned in her affidavit filed in August 2013 for proceedings in the Federal Circuit Court. She also conceded that there was no mention of the knife incident in the family violence safety notice. The knife incident was alleged to have occurred on 25 December 2012. She stated however that she did raise the incident with Dr D.
In cross-examination the mother was prepared to concede that the father had some positive attributes which included a sense of humour and that he was “good at making and building things”. She conceded that the father shared in B’s care for the first four weeks after his birth and when she returned to work in 2009 and she had no concerns at that time about his parenting. She also conceded that the father took five weeks leave from work when C was born to support her. She conceded that when she was working in 2012 that the children were safe in the care of the father.
In challenges to her credibility, the mother was cross-examined about inconsistencies between the historical allegations she made against the father in affidavit material and discussions with the family consultants.
Cross-examined by counsel for the Independent Children’s Lawyer, the mother conceded that she was still of the view that the father was capable of committing actual and psychological violence against the children. She conceded that Dr D and the family consultant, Mr M, did not hold that view.
She accepted that her view of the father had not deviated but disagreed that her view was “rigid” as described by Dr D.
When referred to Mr M’s description of her as reactive, lacking insight, being entrenched in her views and impervious to change such that she was unable to separate her own views from the children, the mother responded: “I hear his concerns but I have been more objective since B’s report about being punched in his “private parts”.
The mother conceded that the communication between the parents had been aggressive, abusive and insulting but maintained that she was hopeful that they could put their differences aside.
She continued to maintain that she believed B when he said that his father had harmed him and that she saw herself as a protective mother. She conceded that she had told Dr D that she totally believed B. She disagreed with Dr D’s assessment that her reliance on what the children told her is fundamentally flawed.
The mother accepted “to a certain degree” that the children were aware of her lack of confidence in the father’s parenting ability.
She accepted that she was in a heightened state of anxiety and fearful when she sent text messages to the father the week before he was about to have a block period of time with the children. She conceded that she sent a text message to the father on 17 January 2014 stating that he was “sick, perverted and mentally deranged”.
She conceded that it was naive to conclude that the children were not aware of her state at that time. She was also prepared to concede that Dr D’s reference to her having no insight into how her feelings impacted on the children might be correct. However the mother returned to her theme that despite the fact that things have settled down, B still talks about his father hurting him and this causes her concern. When she was referred to the observations of the professionals of the children with the father in positive terms, the mother responded that the fact that the children are positive about the father indicates that she has not influenced them against him. The mother conceded that the children love their father but that they have some ambivalence towards him as does she. She referred to her experience of family violence during the relationship as being the source of her ambivalence about the father’s propensity for anger.
Ultimately the mother was prepared to concede that there is clearly a pattern that B “acts differently” with her than with his father.
When asked if her experience of the father was unshaken at all, she responded “I have reservations but I have an open mind”.
When asked for examples about how her attitude had changed, the mother referred to two recent episodes where she had not overreacted in her view. This involved B complaining that his father had punched him in the “private parts” on returning from spending time with the father after a weekend. The mother took B to the doctor and asked him to tell the doctor what had happened. She stated that she did not make any complaint to DHHS about this and that she continued to abide by the orders, allowing the father to spend time with the children.
The other episode was an incident where C complained that her father had pinched her elbows and the mother stated that she did not overreact but just applied some cream to the red marks. She stated that she did not stop the father spending time with the children after this and complied with the court orders.
The mother conceded that she was so outraged in March 2015 that she sought orders that the father have no contact with the children for 12 months. However in re-examination she maintained that this was on the advice of Dr I.

Evidence of Dr I

Dr I is the treating psychologist of the child B. On 26 June 2015 he wrote a report which was subsequently annexed to an affidavit which he filed on 8 July 2015. The mother in her case outline, also relied on his previous affidavits filed 17 October 2013 and 1 April 2015. His area of specialist research and practice is in children and adolescents with behavioural issues and Autism Spectrum Disorder or associated conditions. By order of Judge Small made on 9 October 2014, B was to be counselled by Dr I and this continued until just before the trial.
The mother did not rely on the contents of the report other than to support her evidence that she relied upon the advice of Dr I.
Counsel for the father submitted in written closing submissions that the report of Dr I was inadmissible because it was not relied upon by the mother in her case outline. This is not correct as the mother’s outline of case included the affidavits of Dr I filed in October 2013, 1 April 2015 and 8 July 2015.
On the first day of the trial, counsel for the Independent Children’s Lawyer and counsel for the father objected to the admissibility of Dr I’s report because it was uninformed by information from the father and was compromised. Both counsel relied upon comments made by Dr E about Dr I’s involvement as a therapeutic counsellor rather than a forensic psychologist. Both counsel were justifiably concerned about his independence because of his acceptance of the narrative of the mother and sought a ruling limiting the use of his report. Counsel for the Independent Children’s Lawyer also referred to the single expert rule and submitted that Dr I had lost professional impartiality in supporting the case of the mother and accepting B’s account. It was argued that there was no probative value in the evidence.
The father’s solicitors only forwarded material to Dr I on 29 April 2015. The father conceded this in his written closing submissions at paragraph 384(e).
Dr I’s report was ruled admissible as an exception to the single expert rule on the basis of rule 15.41 of the Family Law Rules 2004 (Cth) (“the Rules”) because his affidavit filed 17 October 2013 and 1 April 2015 had informed the report of Dr E and his report dated 5 September 2013 had informed the report of the family consultant, Mr M. There was no controversy that Dr I had been treating B pursuant to the order of the Federal Circuit Court on the recommendations of Dr D. The provisions of s 69ZT(1) of the Act apply to child-related proceedings.
It was admitted for a limited purpose because counsel for the mother did not purport to rely upon the contents of this report in terms of Mr. L’s opinion as being probative of any of the allegations made by the mother about the father. Counsel for the mother accepted the criticisms made by Dr E about the lack of boundaries in the counselling process and the fact that Dr I’s report had been prepared for a therapeutic rather than forensic purpose with little input from the father. By the time of trial, accepting the advice of her lawyers, the mother had developed some reservation about the guidance she had received from Dr I and was prepared to submit to another psychologist with the guidance of a family therapist to limit the possibility of counter-productive advice hindering the family therapy. The mother conceded that the opinion expressed by Dr I in his report was not impartial in that it was uninformed by the father. There was however no dispute that Dr I had been involved in counselling B and had provided information to the family consultant Mr M.
Counsel for the mother relied on this evidence as the context for the mother’s distrust and suspicion of the father because the mother’s case was that she accepted the advice of Dr I and her conduct towards the father was informed by it.
Accordingly the evidence of Mr. L was admitted into evidence for the limited purpose of explaining the mother’s conduct and state of mind in refusing to allow the children to spend time with the father after B complained of the father’s conduct. The opinion of Dr I remained inadmissible for any other purpose. It was relevant only to the bona fides of the mother.
Dr I was not cross-examined in the trial because of the limited probative value of this evidence. I indicated that it would be a matter for submissions as to what weight might be attached to that evidence having regard to the other evidence in the trial relevant to the attitude and motives of the mother.
Dr I deposes to seeing B as a client on 19 occasions since 28 May 2013, then recommencing sessions with him on 20 November 2014 following a nine-month break. His diagnosis of B is of reactive anxiety, depression, and significant behavioural issues, which he attributed to the acrimonious relationship between his parents as well as to the impact of the father’s parenting style upon him.
Dr I described using a combination of Cognitive Behaviour Therapy, ego-strengthening and resilience strategies and reality control therapy, as well as positive psychological interventions and empathic support. He deposed that B has reacted well to these interventions.
Dr I has seen C twice since 7 April 2015. He deposes that he uses age-appropriate strategies for C similar to those which he uses for B.
Dr I’s evidence was not tested and must be assessed on the basis that his opinion has not been informed by any material from the father. His evidence must be viewed through the lens of the mother and children.
Dr I deposes that he has been open to seeing the parties together and has expressed this to the father’s lawyers, but he has not seen the father.
Dr I is not supportive of the proposal that B reside with his father and spend time with his mother on alternate weekends. He referred to this proposal as “counterproductive in the extreme”.[17] It is his opinion that B and C would struggle with living virtually full-time with the father, particularly given that he believes the relationship between the mother and the children is a “very positive, secure, loving and strong one” whereas he does not make the same observation with regard to the father. [18]
[17] Annexure JAB-1 of the affidavit of Dr I filed 8 July 2015 at page 2
[18] Annexure JAB-1 of the affidavit of Dr I filed 8 July 2015 at page 2
Dr I also notes that B has reported that he does not wish to go to his father’s house and that there have been violent incidents between him and his father. He accepts B’s views at face value as a therapist.
Dr I describes the mother as “calm, positive[,] consistent and coherent” in safe environments. He also disagrees with the impression which the mother made upon the family report writer in the context of what he describes as “an extremely difficult, acrimonious and complex separation and legal process, psychologically and emotionally”, particularly at times when she was not represented in Court.[19]
[19] Ibid at page 3
In light of his observations, Dr I recommends the following:
a)that the children live with the mother and spend time with the father in accordance with the current arrangements;
b)that any further violent or abusive incidents be reported to the appropriate authorities; and
c)that he be allowed to continue assisting B and C for as long as is required.
This extract from Dr I’s report is included for the sole and exclusive reason that it is relevant only as to the context in which the mother formed her views. For the sake of complete clarity I place no weight on any opinions or recommendations he made for the ongoing relationship between the father and the children.
I accept the evidence of consultant psychiatrist Dr E that “the therapeutic boundaries around Dr I’s role appear to be poorly defined, as it would not be usual practice to conduct therapy with a parent and child in parallel.”[20] This criticism was echoed by the family consultant, Mr M in his evidence. Dr E also pointed out that it appeared that the father was not initially invited to attend the assessment sessions regarding B and that the father did not appear to have sought any contact with Dr I to provide relevant contextual information to enhance an objective appraisal of B’s purported emotional and behavioural problems.
[20] Report of Dr E dated 1 July 2015 at page 11
Dr I deposes in his affidavit at page 4 of his report:
In terms of [the father], in the Updated Family Report [the mother] states that “I did ask him ([Mr Maher]) to come to a psychologist appointment to help us to get strategies to help us as a family” (UFR 25). I believe this to be a result of the discussion I had with [the mother] early in [B’s] therapy process. [The father] did not act personally on this. In response to correspondence from [the father’s] solicitor to me on 29^th April, 2015, I replied on 13^th May 2015, stating that [the father] was free to contact or to come and see me at any time regarding [B’s] treatment and that this has always been the case. He has never done so.
The father concedes that he did not contact Dr I.
Dr I’s report is not relevant for the purpose of proving any of the complaints made by B or the mother about the conduct of the father. However it is relevant for the purpose of explaining the reasons for the mother’s conduct in her approach to the father post separation and to her concern to protect the children from what she perceived as the risks posed by the father. Dr I’s report informed the reports of the family consultant and Dr E.
The content of Dr I’s report is also illuminating because it tends to corroborate the mother’s evidence that her concerns for the children were confirmed by Dr I. This is unsurprising having regard to the flavour of Dr I’s report.
In that report, Dr I expressed the following opinion at page 3 of his report:
While I realise that [B] is a young child whose mood and behaviour can be quite labile, especially where anxiety and stress are involved, I nonetheless am concerned that the consistency of [B’s] reporting of negative and violent incidents between him and his father over a long period indicates a worrying pattern. In the past I have sadly had to be involved in the aftermath of situations where a young person was not listened to but whose claims were subsequently proven to be correct. In these cases the impact on the young person concerned was inevitably disastrous and long lasting. I would be saddened if this were to happen to B and C. For this reason I tend to the view that it is better to take seriously what the child says until and if such time as evidence to the contrary is produced.
The evidence of Dr I’s involvement with the mother and children provides a reasonable explanation for the mother’s concern for the welfare of the children and her conduct towards the father. This also lends weight to the credibility of the mother.

Father’s evidence about Dr I

In cross-examination by counsel for the mother, the father could not provide any explanation for his delay in making contact with Dr I. He stated that he didn’t know how to deal with Dr I because Dr I thought he was “a child abuser”. He conceded that Dr D had recommended that B receive psychological counselling from Dr I and that this had the imprimatur of court order made by Judge Small on 9 October 2014.

I do not share the opinion of the family consultant that a change of residence would reduce the prospect of further proceedings and further assessments of the children. The reality is that a change of residence is likely to result in further litigation having regard to the level of mistrust of the mother.

Parental Responsibility

Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61DA of the Act is a mandatory presumption that it is in the best interests of the children that the parties have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
The father proposed that the parents have equal shared parental responsibility for the children, save that he have sole parental responsibility for decisions as to which school the children attend.[34] His case outline is relied upon in final written submissions. However relying on the evidence of Mr M, at paragraphs 360 onwards of the father’s closing written submissions, counsel for the father proposes that in respect of any major long-term decision, an order be made that the father exercise sole parental responsibility as follows:
a.     That the court appoints a family therapist and part of the role of the family therapist will be to assist the parties making joint decisions on major long-term issues.
b.    In the case that the parties are not able to make a joint decision, the father proposes the following step as the exercise of sole parental responsibility for major long-term decisions:
i.    The father will contact the mother in writing and provide his views about any such issue and invite her response and her views within seven days;
ii.   The father and mother will make a genuine effort to come to a joint decision about any such issue; and
iii. if no agreement is reached between the parties, then within 14 days of the father contacting the mother in writing, the father shall make the final decision and advise the mother in writing of the decision about any such issue.[35]
The father proposes that his granting of sole parental responsibility remain in effect for three years, after which time the mother have liberty to apply to vary this order to equal shared parental responsibility in the event the father does not agree.
[34] Father's outline of case filed 8 July 2015
[35] Father’s closing submissions filed 12 August 2015, paragraph 365
This last proposal of the father seems to be predicated on a change of residency for the children which I have not accepted. I do not accept that this proposal is practical or appropriate having regard to the presumption of equal shared parental responsibility.
I am not satisfied that the presumption of equal shared parental responsibility has been rebutted on the evidence.
I agree with the submissions of counsel for the Independent Children’s Lawyer and counsel for the mother that equal shared parental responsibility is appropriate and that the children should continue to attend Q School as the argument for change proffered by the father lacked any merit or substance.
Having regard to the limited evidence provided by the father about his proposal for the children’s education, and the evidence of Mr M that the children should remain enrolled at their current school, I am not satisfied that a change of schools would be in the best interests of the children. All the evidence points to B progressing well at his current school and this is conceded by the father. There are no reasons consistent with the best interests of the children for B to be moved to a different school and C to be enrolled at a different school.

Equal time

Under section 65DAA(1) of the Act if a parenting order provides that a child’s parents are to have equal shared parental responsibility, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
I am obliged to consider whether it is in the best interests of the children and whether it is reasonably practicable to spend equal time with each parent. No such proposal was advanced during the trial by either parent or the Independent Children’s Lawyer.
The father proposed in the alternative, a week-about arrangement on the last page of his closing submissions if no change of residence was ordered.
In all the circumstances of this case, I am not satisfied that it is in the best interests of the children to spend equal time during school term with each of the parents or that it is reasonably practicable to do so. Equal time was not recommended during school term by the family consultants.

Substantial and significant time

Where the Court does not make an order for the child to spend equal time with each of the parents and a parenting order provides that the child’s parents have equal shared parental responsibility, there are mandatory factors to be considered. Under s 65DAA(2) of the Act these are as follows:
(a)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child;
(b)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am satisfied that the proposal of the mother which encompasses the interim arrangements for the children to spend time with the father is in the best interests of the children until the second school term of 2016 when the recommendations of Mr M can be given effect. Both parents conceded that the interim arrangements for the father to spend time with the children have been appropriate. It is important for those arrangements to be consolidated with the benefit of the family therapy which has been proposed by both parties.
I am not satisfied that it is in the best interests of the children that they spend equal time with each parent during school terms. I am satisfied that it is in the best interests of the children that they live with the mother and spend substantial and significant time with the father. I find that it is in the best interests of the children that there be a graduated approach to increasing the time spent by the children with the father on the evidence of Dr D and Mr M in his report. This would result in equal time during school holidays and six nights per fortnight with the father during school term.
The father in his closing submissions seeks week-about time in the event that the change of residence is not ordered. The Independent Children’s Lawyer in his closing submissions supported a change of residence and did not propose any alternative. Dr D recommended in her original report that the children should spend no more than five days in a row with the father.[36] She also said at 60 that:
… my view is that we need to either give the children more time to get used to the two nights a week (away from their primary caregiver) they already have, or reduce the number of nights temporarily until their symptoms settle, before re-introducing a second night again.[37]
Her views remained the same in her updated report. Interim orders were made since then increasing the time the children spend with the father. Mr M ultimately recommended equal time on a week about basis for the summer holidays.
[36] Family report of Dr D dated 5 December 2013, paragraph 77
[37] Family report of Dr D dated 5 December 2013, paragraph 60
I am satisfied that it is in the best interests of the children that they spend time with the father in accordance with the current interim arrangements during the first school term of 2016 but that his time be increased at the commencement of the second school term in the manner recommended by Mr M in his report as outlined in these reasons for judgment.

Conclusion

The behaviour of both parties since separation has been questionable. There is a deep distrust on the part of both parents in their post-separation relationship. Both parents acknowledged in cross-examination that they regret certain behaviour. The father acknowledges that at the time of separation he hit the arm of the mother causing her mobile phone to fall to the ground and that this was witnessed by the children. He denies any family violence during the relationship. He frankly acknowledges a serious alcohol problem from which he recovered with the help of the mother before the children were born. He also conceded that he suffered from blackouts where he could not testify to his conduct towards the mother when he was an alcoholic. The father continues to be deeply committed to Alcoholics Anonymous whom he credits with his rehabilitation.
The father’s evidence was that he has been sober since 2006. Although the mother suspected that he had resumed drinking in 2010, there was no evidence in the trial to contradict the father’s evidence. The father has remained vigilant about his recovery from alcoholism and continues to attend AA meetings up to four times per week. I accept his evidence on the balance of probabilities that he has been sober since 2006.
The father relied heavily on the findings of the Magistrate in the intervention order application where the mother’s evidence was found to be exaggerated. The application in the Magistrates’ Court was unsuccessfully prosecuted by the police and the purpose of that hearing was to determine whether an intervention order should be made in favour of B against the father and for the protection of B. The trial before me is for a very different purpose and the evidence is more extensive in terms of expert evidence.
It is inappropriate to accept any findings about the mother’s credibility in the Magistrates’ Court hearing. It is my assessment that the reasons for the mother’s actions, state of mind and attitude towards the father are not unreasonable having regard to her history, the history of the relationship and the context of the professional advice which was provided to the mother by Dr I. B’s sessions with Dr I began as a result of a mental health plan organised by the family’s general practitioner to deal with B’s behaviour after separation. B’s counselling with Dr I was sanctioned by the Court in 2014 on the recommendation of Dr D in her second report.
The mother’s concerns about what B has told her of the father hurting him were not without foundation when viewed in this context. They were reported by B to the police, Dr I and the family consultants. The mother was entitled to be concerned when the police considered the report serious enough to warrant prosecuting an intervention order against the father and interviewing him as part of an investigation about criminal charges. The father made a no comment Record of Interview.
Mr M reported what B told him in his report however in cross-examination he appeared to be firmly of the view that B’s original complaint was false. He emphasised the fact that B had been interviewed by multiple professionals. The trial was not directed towards making any finding about the truth of the allegations against the father made by B. I accept that the mother is beginning to appreciate that B said different things to different people about these episodes of which he had complained originally to her.
DHHS came to the conclusion that there was no substance in B’s allegations.
The opinion evidence of Dr I is inadmissible and is not relied upon by the mother to support any finding that the father had assaulted B. The mother relied upon his evidence as corroboration of her evidence that she had relied upon the professional advice of Dr I with the imprimatur of the court orders.
I reject any argument that the mother facilitated counselling for B with Dr I as a manipulative scheme to ensure that he had no contact with the father. There is clear evidence of B’s behavioural problems early in the post separation period and a recommendation of Dr D and Dr W for B to have counselling with Dr I. The mother cannot be criticised for pursuing the recommendation of Dr D and following the orders made in the Federal Circuit court.
Both Mr M and Dr E have raised questions about Dr I engaging in therapy with both B and the mother. Dr E in his report stated:
[The mother] has taken [B] to [Dr I] for therapy, but she also mentioned that [Dr I] has been her therapist. The therapeutic boundaries around [Dr I’s] role appear to be poorly defined, as it would not be usual practice to conduct therapy with a parent and child in parallel. It is also noteworthy that [the father] appears to have not initially been invited to attend the assessment sessions in regards to [B]. [The father] does not appear to have sought contact with [Dr I] to provide relevant contextual information to enhance an objective appraisal of [B’s] purported emotional and behavioural problems.[38]
[38] Report of Dr E dated 1 July 2015, paragraph 8
The mother now accepts the criticisms which have been levelled at Dr I in the father’s case and by the family consultant. She indicated at trial that she was prepared to cooperate with the proposal that both parents engage in family therapy with Ms N who was a trusted counsellor who had assisted them in the past. The mother indicated during the trial that she was prepared to have B counselled by any professional recommended by Ms N and to cease B’s involvement with Dr I. This was a proposal acceptable to the father. This was a reasonable concession on the part of the mother having regard to the earlier confidence which she had expressed in the counselling relationship she had with Dr I.
The father could provide no explanation for why he had failed to respond to the mother in relation to her request that he engage with Dr I after the orders were made in the Federal Circuit Court on the recommendation of Dr D.
In cross-examination the father acknowledged that the court order provided for him to facilitate counselling for B with Dr I and to provide him with further material. Despite many months of counselling for B, the father could provide no explanation for his failure to have input into the information which was to form the basis of the therapy provided by Dr I.
In closing submissions, counsel for the father noted that the father through his solicitors had made all his documents available to Dr I on 29 April 2015. I note that this was after the interim hearing in April where the father’s lack of involvement with Dr I was raised.
Whilst it is clear that the evidence of Dr I relies completely on the input from the mother, I do not accept that it is reasonable for the father to complain about Dr I’s involvement in the context of recommendations made by Dr D, invitations to the father to consult Dr I, the father’s failure to communicate with Dr I until 29 April 2015 and Federal Circuit Court orders in October 2014 for information to be provided to Dr I.
It must be made clear that these reasons for judgment in no way reflect upon the professionalism of Dr I and there are no findings made about Dr I because he was not given any opportunity to respond to any criticisms and he was not cross-examined in the trial.
At paragraph 45 of the final submissions the Independent Children’s Lawyer states: “Both parents now come before the Court and agree that these arrangements are working well for the children currently.” On the whole, both parents agreed that the current arrangement regarding the children is working well, although the continuing measure of distrust between them continues. The father is naturally anxious that the mother will withhold the children unilaterally because of previous patterns of behaviour and particularly if there are no court proceedings on foot. The family consultant also expressed the same concern should the focus of the lens of court proceedings be lifted. I accept that the mother is genuine in her evidence that she is prepared to cooperate with the father in family therapy and counselling which will ensure that she will continue to promote a meaningful relationship between the father and the children should the children continue to reside with her.
I accept that on the evidence of Dr D and the family consultant, Mr M that the children are relaxed and at ease with the father in observations. The evidence of Mr M is that there is nothing in the material, interviews or observations to indicate that the father poses a risk of physical or psychological harm to the children. He described the father as displaying a warm and intuitive parenting approach and being responsive to the children’s needs. I accept that evidence.
I accept the mother’s argument that the fact that the children have a good relationship with the father demonstrates that she has promoted their relationship with him. The mother’s distrust citing B’s concerns and the issues between B and his father is somewhat supported by the fact that B has made and continues to make complaints about his father.
Mr M referred to the fact that B presented as distracted and lacking in concentration and that at the end of the interview he became anxious and defensive. Mr M suggested that this may well be as a result of having attended multiple assessments and forensic style interviews. B also told Mr M that his father “hit him by accident”, that it was a mistake and that his father only hit him “the one time”. I refer to this evidence for the fact that B does complain to persons other than the mother and has complained to professionals. I do not make any finding that the father has hit B and this was not a matter for determination in the trial.
Mr M’s report was not informed by the psychiatric assessment of the parents made by Dr E. His report stated that the psychiatric evaluations and opinion of Dr E will be critical to the court’s determination of the mother’s mental health and capacity for change.
Subject to a testing of the evidence about historical allegations of “intimate partner violence” and a psychiatric evaluation of the mother, Mr M provided two sets of recommendations should the children live with either parent.
Significantly he stated at paragraph 43 of his report:
In conclusion, the issue of residency needs to be weighed against the competing needs of the children. While [the father] has a history of providing parenting support to [the mother] and has had a reasonable level of involvement in the children’s care, the history of the matter indicates the children’s primary attachment lies with [the mother]. A change of residency under these circumstances will result in some level of attachment distress for the children. This is weighed against the very real possibility that the children will lose their relationship with [the father] if the current arrangement continues. The potential psychological and emotional outcomes for the children in either scenario are similar and heightened anxiety, depression, behavioural disorders and relationship difficulties into adulthood are potential outcomes in both circumstances.
This conclusion exemplifies the dilemma and issue for determination in this case. On the one hand the mother is the primary attachment figure for the children but if they continue to reside with her there is a risk of a repeat of previous behaviour where the mother has unilaterally stopped the children from having contact with the father.

On the other hand if there is a reversal of residency for the children, this will result in some level of attachment distress in circumstances where Mr M has described B’s feelings and views about his father as ambivalent and contradictory, and indicative of the early signs of psychological splitting as his lived experience of his father clashes with his mother’s view. The mother submitted at paragraph 57 of her written closing submissions that the problems flowing on from the children suffering attachment distress would “immediately become possible” from a change of residence. At paragraph 58 she submitted that if a change of residence were not ordered, attachment distress would only come about if the children lost their relationship with the father, which had not occurred over two and a half emotionally charged years.
B and C are progressing well with their friendships at school and daycare and the father concedes that B is happy at school. There is no evidence to rebut the presumption of equal shared parental responsibility and this is supported by the Independent Children’s Lawyer. Mr M referred to the fact that the children need a cessation of the conflict between the parents and that B is suffering from repeated questioning by professionals. Mr M conceded that a change of residency is a “last resort”.
I am not satisfied that it is in the best interests of the children to implement that “last resort” option where the children are aged only seven and five and where the current arrangements for the children spending time with the father have been supporting a meaningful relationship with the father on his own evidence.
The overriding concern in this trial has been whether the rigidity of the mother’s views about the father can be restrained in the future so that she does not repeat her past behaviour of resorting to professionals on the first occasion where either of the children makes a complaint about the father after spending time with him.
I accept that the mother has a persistent distrust of the father but she is now amenable to addressing her concerns in family therapy. She expresses optimism for this course. I do not accept Mr M’s opinion that there is a well-established pattern of ceasing contact with little or no corroborating evidence of wrongdoing. The evidence of Mr M did not take account of the fact that the father had failed to communicate with Dr I despite invitations to do so and overlooks the significant influence of Dr I in advising the mother to suspend the children’s time with the father.
I accept the evidence of the mother that she is prepared to discontinue her association with Dr I and that she agrees that the children should not be counselled by him but as directed by any family therapist.
The family consultant Mr M deferred to the importance of a psychiatric assessment of the parents. The psychiatric assessments of the parents do not assist in terms of shifting the balance in favour of either parent for the residency of the children. There are concerns raised for both parents because of their “markedly mistrusting relationship” but overall Dr E’s assessment indicates that neither party has “identifiable major mental problems”. He confirms Dr D’s recommendation that family therapy with an experienced family therapist/psychologist experienced with such complex family law matters would be potentially fruitful. Both parents are prepared to embrace family therapy with Ms N and I consider this is in the best interests of the children.
In final written submissions the mother sought additional orders to give effect to her proposal to attend on a therapist on direction from the family therapist for the purposes of engaging in personal therapy. In addition to accepting recommendations by the family consultant for any therapy for the children, the mother also proposed that the Independent Children’s Lawyer provide copies of the family reports, psychiatric assessment of Dr E and the reasons for judgment to the Department of Human Services, Victoria Police SOCIT unit and the children’s medical practitioners. This proposal is also supported in the evidence in cross-examination of the family consultant, Mr M. Making orders to give effect to these proposals will give the father some comfort that the mother is no longer seeking to engage Dr I and that the mother’s attitude can be addressed in personal therapy in an independent manner through the recommendations of the family therapist. This is in the best interests of the children.
Counsel for the Independent Children’s Lawyer submitted that the children should be offered the assistance of a family therapist other than Dr I, noting that both parties now appear to have an agreed position that he would no longer be an appropriate person to offer the children assistance.
I am satisfied on all the evidence that it is appropriate and in the best interests of the children to make parenting orders in the terms sought by the mother, but with an increase of time for the father to spend with the children as recommended by Mr M in the event that the children were to reside with the mother.
In the alternative the father proposed a week about spend time arrangement but this was not explored by the father in evidence and was not recommended by the family consultants during school term. The Independent Children’s Lawyer did not put an alternative submission. Having regard to the lack of evidence regarding this proposal I consider it appropriate to adopt the graduated proposal for spending time arrangements during school term time for the non resident parent recommended by Mr M, which having regard to the ages of the children and all the other evidence is in the best interests of the children.
The family consultant, Mr M recommended in his report that if the children live with the mother, that the children spend time with the father on alternate weekends from Friday afternoon to Tuesday morning increasing to Friday afternoon to Wednesday morning after three months. He also recommended six consecutive nights over term three in 2015 holidays and half of all school holidays with time over long summer holidays on a week about basis. He recommended telephone time by agreement between the parties and I propose to adopt those recommendations. The father’s proposals for telephone contact in his amended initiating application filed 9 June 2015 were for the children to speak to the mother by telephone each Monday and each alternating Wednesday between 6 pm and 7 pm.
Mr M recommended that telephone contact with the children be by agreement between the parties. The mother’s closing submissions and her Further Amended Response to Initiating Application filed on 29 June 2015 did not address telephone contact.
I consider it necessary to make orders in default of agreement regarding telephone contact for the parent who does not have the care of the children. Accordingly I propose to make an order for telephone contact with the children for that parent each Monday and Wednesday between 6.00 pm and 7.00 pm.
Given the approach of the mother to these proceedings, her revised view of Dr I and her evidence that she does not wish to pursue counselling for either B or herself with him, it should not be an imposition on the mother if an order is made restraining her from attending Dr I for her own counselling or for counselling for the children. Given the concerns of the father and the influence that Dr I’s advice has had upon the mother, absent the information from the father, I consider it appropriate to make such a restraining order in respect of the mother, in the best interests of the children.
Providing for equal week about time with each parent in the summer holidays and term holidays and for the children to spend a period of five consecutive nights with the father each alternate weekend for the first school term of 2016 and increasing to a regime of six consecutive nights each fortnight from the second school term of 2016 as proposed by Mr M, will benefit the children in having a meaningful relationship with both parents. I am satisfied that these arrangements together with the arrangements for special days proposed by the father are in the best interests of the children.

I certify that the preceding four hundred and nineteen (419) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 21 December 2015.

Associate:

Date: 21 December 2015

Annexure A

Documents relied upon by the applicant father:

Affidavit of Ms T filed in the Federal Circuit Court 7 October 2014;
Affidavit of the father filed 9 June 2015;
Financial Statement of the father filed 9 June 2015;
Amended Initiating Application filed 9 June 2015;
Affidavit of Ms K filed 9 June 2015;
Affidavit of Ms U Maher filed 10 June 2015;
Affidavit of Mr Y filed 11 June 2015;
Affidavit of Dr D filed 23 March 2015;
Affidavit of Mr M dated 1 July 2015;
Affidavit of the father filed 7 July 2015;
Affidavit of Dr E including Psychiatric Report of both parties filed 8 July 2015;
Father’s Closing submissions filed 12 August 2015;
Exhibit A – Affidavit of Mr Maher sworn 9 June 2015 – Annexure RM- 14 coloured photographs;
Exhibit B – Child care enrolment record for B and C; and
Exhibit C – Affidavit of Ms Mills sworn 12 September 2014 – Annexure MM-19.

Documents relied upon by the respondent mother:

Affidavit of Dr I filed 17 October 2013;
Affidavit of Dr I filed 1 April 2015;
Affidavit of Dr I filed 8 July 2015;
Further Amended Response to Initiating Application filed 29 June 2015;
Financial Statement of the mother filed 29 June 2015;
Affidavit of the mother filed 29 June 2015;
Affidavit of M filed 1 July 2015;
Affidavit of Dr E including Psychiatric Report of both parties filed 8 July 2015;
Respondent’s Final Submissions filed 28 July 2015;and
Respondent’s Reply to the Applicant’s Final Submissions filed 27 August 2015.

Documents relied upon by the Independent Children’s Lawyer:

Affidavit of M filed 1 July 2015;
Affidavit of Dr D filed 23 March 2015; and
Affidavit of Dr E including Psychiatric Report of both parties filed 8 July 2015; and
Final submission filed 20 July 2015.

[2015] FamCA 1158

21 December 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Costs

Appeal