MARTIN & PAYNE

[2017] FamCA 1041

FAMILY COURT OF AUSTRALIA

MARTIN & PAYNE [2017] FamCA 1041

FAMILY LAW – CHILDREN – Residence – Where mother seeks children to live with her and spend weekend and holiday time with the father – Where existing consent orders provide for this arrangement – Where father seeks children to move primarily into his care and spend weekend and holiday time with mother – Where mother has made past allegations against father in relation to sexual and physical harm towards the children – Where mother’s allegations were found unsubstantiated – Where father alleges mother poses a risk of emotional harm to the children by obstructing or failing to facilitate relationship between father and children – Where the Court is satisfied that the mother’s allegations against the father were to restrict the children’s time with the father – Where the mother’s conduct is found to comprise family violence – Where risk of future harm by mother is less than more probable than not – Where a change in the children’s primary carer would be detrimental to them – Where children are to live with mother and spend alternate weekend time and substantial holiday time with father – Where both parties seek an order for equal shared parental responsibility – Where equal shared parental responsibility found to be in children’s best interests.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) s 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768

APPLICANT: Ms Martin

RESPONDENT: Mr Payne

INDEPENDENT CHILDREN’S LAWYER: Ms McGreggor

FILE NUMBER: LEC 456 of 2010

DATE DELIVERED: 18 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Brisbane and Cairns (via video link)

JUDGMENT OF: Tree J

HEARING DATE: 1, 4, 5, 6 and 7 July 2016 and 27, 28, 29 and 30 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDiarmid

SOLICITORS FOR THE APPLICANT: GJ Legal Solicitors

COUNSEL FOR THE RESPONDENT: Mr Priestly SC

SOLICITORS FOR THE RESPONDENT: Jensens Solicitors & Attorneys

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Mason

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Port Macquarie

Orders

PRIOR ORDERS

1. All previous parenting orders forthwith stand discharged.

PARENTAL RESPONSIBILITY

1. The parents have equal shared parental responsibility for the children B and C born … 2009.

2. The children shall remain enrolled in and attend D School for as long as the parents can afford for them to attend.

LIVING ARRANGEMENTS

1. That the children live with the Mother.

TIME ARRANGEMENTS

1. That unless otherwise agreed in writing between the parties the children spend time with the Father as follows:

   (a)       During NSW school terms from school at the conclusion of school Friday until 6 pm NSW time on Sunday each alternate weekend with this time to be extended to 6 pm on Monday NSW time if this is a non-school day;

   (b)       In the event that the Father relocates to be within 45 minutes’ drive of the children’s school he shall spend time with the children from the conclusion of school on Thursday until the commencement of school Monday each alternate week with this time to be extended to the commencement of school on Tuesday if Monday is a non-school day;

   (c)       For the whole of the winter holiday (or other holiday agreed between the parties in writing) and in the autumn and spring and summer holiday the first half in odd numbered years and the second half in even numbered years;

   (d)       At other times as may be agreed between the parties.

2. The children shall have Phone, Skype or FaceTime or other agreed visual internet communication with the Father at least once a week on Wednesday between 5:00pm and 6:00pm or at another time and day as agreed between the parties and the Mother shall allow them privacy.

3. To facilitate Order 6 unless otherwise agreed in writing the Father shall place the call to the children and the Mother shall ensure the children are available, keep the mobile phone charged and ensure it has credit.

SPECIAL OCCASIONS

1. In the event that Mother's Day falls within the Father’s time with the children that the children spend time with the Mother on the Mother’s Day weekend and the Mother shall forgo her next scheduled weekend for time with the children.

2. In the event that Father's Day falls within the Mother’s time with the children that the children spend time with the Father on the Father’s Day weekend and the Father shall forgo the next scheduled weekend time with the children.

3. On 25 September the parent whom the children are not living or spending time with shall spend time with the children from the conclusion of school until 6pm if this is a school day and for a three hour period as agreed between the parents if this date is a non-school day.

CHANGEOVERS

1. For the purpose of Order 5(a) (school term) the Father shall collect the children from the school and return the children to the Mother at the BP Service Centre, E Town or other public location as agreed between the parents.

2. For the purposes of Order 5(b) the Father shall collect the children from the school and return the children to the Mother at the MacDonald’s Restaurant located at F Town or other public location as agreed between the parents.

3. For the purposes of Orders 5(c) (school holidays) and 8 through to 10 (special days), the Father shall collect the children from the school at the commencement of his time with the children if it is a school day or the Father shall collect and return the children to and from the Mother at the BP Service Centre, E Town or other public location as agreed between the parents.

4. The parties are permitted to send an agent for changeovers with this agent being an adult member of their household or family member known to the children.

OVERSEAS TRAVEL

1. The both parties be at liberty to take the children outside Australia to any destination that the Department of Foreign Affairs travel advisory website lists as “exercise normal safety precautions” at date of booking for up to 4 weeks once every second year.

2. The party wishing to travel with the children shall provide to the other parent 1 month before booking a copy of the proposed itinerary, details of accommodation and contact details for the children while they are overseas.

3. During the periods in which the children are travelling overseas, the parent with whom the children are not travelling with will communicate with the children via phone, skype, facetime or other similar application twice a week with the parent with whom the children are travelling with to facilitate the call to the other parent.

4. The Father shall retain the children’s passports but will provide them to the Mother 14 days prior to any trip scheduled to occur in accordance with order 15 and the Mother shall return the passports to the Father within 48 hours of her return to Australia.

SPECIFIC ISSUES

1. Both parents are restrained from changing the children’s names.

2. Both parents are entitled by these orders to obtain school reports, newsletters and other correspondence from the school and attend the school for all activities and events to which parents are usually invited to attend including but not limited to parent/teacher meetings, performances, assemblies and awards nights.

3. Both parents are entitled to obtain any information as permitted by law including reports or verbal updates from any medical practitioners, health care providers or specialists that the children may see from time to time.

4. Each party shall notify the other of all specialist medical appointments that the children have within 24 hours of becoming aware of the appointment and the other shall be at liberty to attend. 

5. Within 7 days of the making of these orders the Mother shall contact Mr G and re-engage with him (or other psychologist nominated by him) as soon as practicable for the purpose of consulting on her acceptance of the final orders and continuation of counselling and shall notify the ICL of the appointment and authorise the ICL to communicate Mr G to confirm the appointment.

6. The Independent Children’s Lawyer be discharged after explaining these orders to the children or after the Mother gives notice of her appointment with Mr G in accordance with the previous order.

7. That both parties are restrained from denigrating the other parent in the presence or the hearing of the children and must remove both children from the hearing of any third party denigrating the other parent. 

8. That each party will notify the other of any changes in writing to their address, email and Skype addresses and phone numbers no later than 7 days from the date of change.

9. That both parents notify the other as soon as practicable of any medical condition requiring admission of either child to hospital or any invasive procedure and each party shall be at liberty to visit the child subject to the direction of hospital and nursing staff.

10. Each party is restrained and an injunction issues restraining them from taking photographs of the children at the time that the children come into their care and instead each party shall raise any concerns of neglect or abuse as soon as practicable with the other parent and notify  the relevant child protection authority.

11. In the event that there is a dispute between the parents, the parents will seek assistance to resolve this dispute by way of family dispute resolution at the Family Relationship Centre H Town or at another location as agreed between the parties.

12. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE & CAIRNS

FILE NUMBER: LEC456/2010

Ms Martin

Applicant

And

Mr Payne

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings involve the appropriate parenting orders for the parties’ twin daughters, C, and B, born in 2009 and therefore presently eight years of age (“the children”).  Although she is nominally the applicant, for her part, Ms Martin (“the mother”) seeks no substantial change to the existing orders (made by consent in 2011) which see the children live with her, and spend weekend and holiday time with Mr Payne (“the father”).  In essence she justifies that on the basis that the present orders are working, and that the children do have a meaningful relationship with the father, which is likely to continue.

2. For his part, the father seeks orders that the children move primarily into his care, but spend regular weekend and holiday time with the mother.  In substance, he justifies that change on the basis that that is the only way in which the children will likely continue to have a meaningful relationship with him.

3. The Independent Children's Lawyer supports the position of the mother.

4. The trial had a long and an unfortunate history.  It first ran for five days commencing 1 July 2016, although it was never going to be able to then conclude, as the Family Report writer was suffering poor health, and the parties agreed that this was a case where it was appropriate for the Family Report writer to give evidence last.  In fact it proved impossible to even conclude the other evidence within five days for a number of reasons, and the matter then went part heard.  Although it was scheduled for trial to resume later in that year, the Family Report writer continued to suffer ill health, and further, the mother had become pregnant, and available dates for trial were too close to the date of the birth of her subsequent child.  Ultimately the matter resumed again in late June 2017, when it was able to conclude within a further four days.

BACKGROUND FACTS

The father

1. The father was born in 1968 and hence is presently 48 years of age.  He grew up in Sydney, and after completing secondary school, worked in a variety of positions.  When he was 19 years of age, his mother committed suicide, seemingly as a means to escape from what the father believes to have been domestic violence at the hands of his own father.

2. In 1990 the father entered the public service, in which employment he remained at the time of the trial.  He first married when he was 24 years of age, but separated from his then wife when he was 27.  There were no children to that relationship.

3. At about that time the parties first met, when the mother, who was still at high school, undertook some work experience at father’s workplace. Some two years later, in 1996, when the father was about 28, the parties’ relationship commenced.

The mother

1. The mother was born in New South Wales in 1977, and hence is presently 39 years of age.  She completed schooling to year 12, and then worked in hospitality.  It appears to be that at this stage of her life that she commenced a relationship with the father, when she was 19 years of age. 

The relationship

1. In the early stages of the relationship, the mother continued to work in hospitality, but then moved onto various occupations.  The father continued to progress in his career in the public service. For that period, the parties co-habited in Sydney.

2. In June 2001 the father was transferred to H Town upon his promotion.  The parties then moved to J Town in order that he could take up that position. Initially the mother obtained a laboratory traineeship in the public service, however she later obtained work as a medical professional at H Town Hospital. 

3. However in 2007 the father again obtained a promotion, albeit in Sydney, and moved back to live there during his work time, but commuted to H Town, where the mother remained living, for his days off.  It does not appear controversial that the parties thereafter only spent about two or three days together every two or three weeks. It was during this period that the children were born in 2009, at which time the father took three months off work, but then resumed his commuting arrangements.

4. I will need to consider in greater detail an event which occurred on 7 December 2009, not long after the children’s birth, in consequence of which the mother and children moved out of the former matrimonial home for six nights, initially staying with a neighbour, but then at a residential facility.

5. After that separation, the parties’ relationship resumed, however they permanently separated in July 2010.

Post-separation

1. At the time of separation the mother remained living in northern New South Wales, and the father in Sydney (albeit still commuting to northern New South Wales for his days off).

2. The maternal grandparents had moved in to live with the mother just prior to final separation, and the maternal grandmother remained living with her for some time thereafter.

3. Immediately after separation, the children’s time with the father was restricted to two hourly visits, initially supervised by the maternal grandmother, but later at the H Town Children’s Contact Centre.  That continued until February 2011 when, pursuant to orders made 4 February, the father commenced to spend five and a half hours of unsupervised time per fortnight with the children, with changeovers occurring at the Contact Centre. 

4. The mother says that around this time the children became very distressed and unsettled when the father spent time with them. There is a dispute between the parties as to whether, in consequence, the father’s time then reverted to being supervised, but nothing turns on that, since whatever be the position, on 2 November 2011, the parties entered into final consent orders in relation to both property and children’s matters.  The parenting orders provided that the children live with the mother, but spend alternate weekends and half of school holidays with the father, together with time on special days.

5. In December 2011, the father commenced a relationship with his current partner, Ms K.  They commenced to cohabit in Sydney in June 2012.

6. At a date in 2012 which the agreed chronology does not specify, the maternal grandmother ceased living at the mother’s house.

7. In 2012, the children’s half-brother, L, was born to the mother.  His father was an anonymous IVF sperm donor.

8. In 2013 the mother began to report concerns in relation to sexualised behaviours and utterances by the children.  By at least May 2013, the Department of Family and Community Services (“the Department”) had become involved.  Then, in November 2013, an allegation that the father had allegedly strangled C arose.  Again the Department were involved. Further notifications about the children continued to be made to the Department in the succeeding months about a range of concerns, including scratches on the vagina of one of the girls, and the children inserting items into their bottoms.

9. On 22 November 2013, pursuant to the 2 November 2011 consent orders, the father attended the H Town Children’s Contact Centre to collect the children, however the changeover did not occur, apparently because the children did not wish to go into his care.

10. On 9 January 2014 the mother commenced these proceedings by filing an Initiating Application, which sought that the father’s time be restricted to two hours of supervised time each alternate weekend.  In conjunction with that application she filed a Notice of Risk.  Four days later, on 13 January 2014, the father filed a Contravention Application.

11. On 27 January 2014, an old friend of the mother’s, Ms M, took C to the H Town hospital. C presented with red genitals and bottom, according to the hospital records. It seems that a further notification to the Department then ensued.

12. Next, on 29 January 2014, Ms M made a complaint to N Town police that the father had been sexually and physically abusing the children. She also advised that the father had improperly retained sensitive documents at his home which the mother then had in her possession. Seemingly unhappy with how the officer she spoke to responded to her complaint, on 2 February 2014 Ms M  then contacted another NSW police officer with whom she had previously dealt, and repeated her concerns about the father. An investigation was considered, and in due course, commenced, by police.

13. On 24 February 2014 Judge Howard found the father’s contravention application to be proven, and that the mother had no reasonable excuse for withholding the children from him. His Honour ordered make up time (although the mother later successfully appealed those orders.)

14. On 25 February 2014, the mother sent a long email to NSW police in relation to the father. In it she alleged a number of serious matters, including that the father had improperly retained sensitive documents at the parties’ home, had a passbook with large deposits recorded in it, had improperly influenced a police investigation involving a member of the mother’s family, had falsely sworn affidavits in the earlier family law proceedings, had a brother with links to outlaw motor cycle gangs, and had confessed to being, or at least was, a drug dealer.

15. In that email the mother said:-

    I have wanted to hand this information into police for a while, but I am extremely concerned that if this material proves serious enough to have a negative effect on [the father’s] career, that he will come after the children and myself in a violent manner (as he promised he would do if I called the police on him after domestic altercations whilst we were married). I am asking you to take this material and assure me that I will be safe…

    …

    I have decided after this time that I must stop being afraid of [the father] and that I want the right thing done.

    (Original emphasis)

1. It seems clear that the mother was, at least to some extent, and perhaps significantly, influenced and assisted in making this complaint by Ms M.

2. A few days later, on 28 February, the mother handed the retained documents to the police. Unsurprisingly, an extensive investigation into the father then commenced. It appears as though in fact two investigations were conducted in parallel; one related to the sexual abuse allegations, whereas the other related to all the remaining alleged offences.  Inevitably the father was unaware of any investigation for quite some time.

3. In May 2014 family report interviews were undertaken to assist the court in resolving the outstanding parenting applications.  The subsequent report considered the various allegations, and recommended that the children live with the father, and spend time with the mother.

4. On 28 May 2014 the father filed an Application in a Case, seeking interim orders that he have sole parental responsibility for the children, who would live with him, but spend time with the mother.

5. On 7 August 2014 the Federal Circuit Court permitted the children to travel with the father to the United States, for a little in excess of three weeks, in the forthcoming school holidays. The matter was also transferred to the Family Court of Australia. Whilst in the USA, one of the children experienced constipation, in consequence of which the father administered enemas to her.

6. On 29 August 2014, the mother sent the father an email, which in the trial, was referred to as “the peace email.”  It expressed regret for the parental hostility, apologised for any appearance of hostility on the mother’s part, and articulated a desire for a peaceful way forward.  It neglected to advise the father that, at that very time, a potentially career ending police investigation was under way into him, largely at the mother’s instigation.

7. In September 2014, the mother commenced a relationship with her current partner, Mr O.

8. On October 2014 the mother’s appeal from the orders of Judge Howard was allowed by consent, and there was an order that the father’s Contravention Application be reheard by another judge, although in fact that did not occur because the father withdrew his Application.

9. In November 2014 both parents attended Dr P, for psychiatric assessments.  

10. On 25 February 2015, the father was interviewed by the police.  I infer it was around that time he first became aware of the investigations into his alleged misconduct.  In the interview he denied any wrongdoing.

11. On 2 April 2015, the father’s Application in a Case filed 28 May 2014 was dismissed, and a further family report was ordered.

12. In June 2015, the mother filed an Amended Initiating Application, in which she sought to reinstate the previous final consent orders made in November 2011.

13. On 10 August 2015, NSW Police finalised its investigations into the father’s alleged misconduct, concluding that no offences had been committed. They wrote to both Ms M and the mother advising them of that outcome. The records in relation to the investigation involving the sexual abuse allegations noted that, whilst Ms M was satisfied with the outcome, the mother “did not want to be drawn if she were satisfied or otherwise” in relation to her complaint.

14. On 25 September 2015, the parenting proceedings matter was listed for a 5-6 day trial which, in light of the Report Writer’s ill-health, in fact did not proceed, but ultimately commenced on 1 July 2016, and then went part-heard, not resuming again until 27 June 2017. By then, two further developments had occurred. Firstly, in early 2017, the mother had given birth to her fourth child, Q. Secondly, in early 2017, the father and his partner had relocated from Sydney to Suburb R in Brisbane, however he did not advise the mother of this until the trial resumed in June 2017.

Current situation

1. As at the time of the conclusion of the trial, the mother remained living in the former matrimonial home with her partner, Mr O, the children and their two half siblings, being L, then aged 5, and Q, then aged 5 months.  She was not in employment, nor was Mr O, although it was anticipated that he would shortly obtain some contractual employment operating heavy machinery on road construction projects in northern New South Wales.  The children remain attending a private school and, at least according to their recent reports, are doing well. Although the Family Report did not explore the children’s attachments with their siblings, it may be assumed that they are close, including with their newborn brother.

2. For his part, the father now permanently resides near Brisbane, in order for his partner to conduct a franchise business in the city of S.  Her business is something in the order of 20 to 30 minutes’ drive from the father’s home, in which he resides with her.  There are no children to their relationship.

3. The father indicated that, although he is presently using his extensive leave entitlements from the public service, once they are expired, he does not intend to return to that employment. 

THE ISSUES

1. With the assistance of the parties, during the course of the trial, I identified that the following are the issues in these proceedings, in that their determination is likely to substantially inform its outcome.

   1.What is the nature of the relationship between the children and each parent.

   2.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   3.What, if any, risks to each of the children, does each parent and their household pose, and what role does any historic family violence have in the assessment of such risks.

   4.What are the respective parenting capacities of each party, and what is their ability to meet the needs of the children.

   5.If the children were living primarily with them, would each parent facilitate a meaningful relationship between the children and the other parent.

   6.What would be the effect on the mother of the children moving to live primarily with the father (and therefore relocating away from the F Town area).

   7.What would be the effect on the children, and their relationships with each parent and with L, of:

   (a)Continuing to live, spend time and communicate with each parent under the current orders;

   (b)Moving to live primarily with the father (and therefore relocating away from the F Town area).

   8.Would the parties’ communication be sufficient to support equal shared parental responsibility, or an obligation to consult with the other parent as part of any orders for sole parental responsibility.

2. Once I have discussed the relevant statutory provisions and legal principles, but in advance of a traverse of any additional relevant s 60CC considerations, I shall address those issues and then move to consider the appropriate orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal.  Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases.  

4. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

NATURE OF RELATIONSHIP BETWEEN CHILDREN AND EACH PARENT

1. It was conceded by the father that the children have a good and close relationship with the mother.  It was likewise conceded by the mother that the children have a good and close relationship with the father.

2. The Family Report writer’s observations confirmed both of those concessions as appropriate.  For instance in her report of 7 April 2016 at [54], she noted “[b]oth girls related enthusiastically to their father with whom they had spent the weekend prior to these interviews.”

3. That said, it is likely that the children’s primary attachment is with the mother; after all, they have lived with her virtually all of their lives.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH EACH PARENT AND BEST MEANS OF FACILITATION

1. Again, this matter was not controversial between the parties.  That is to say that the father conceded that the children would benefit from a meaningful relationship with the mother, and likewise, the mother conceded the converse.

2. Again, those concessions are soundly based.  Both parents have much to offer these children, and both have been involved in virtually all aspects of their lives since birth.

RISKS POSED TO CHILDREN BY EACH PARENT AND HOUSEHOLD, AND ROLE OF HISTORIC FAMILY VIOLENCE

Overview

1. As has been seen when discussing the relevant legal principles, the role of family violence in parenting proceedings is most frequently twofold: firstly, it displaces the presumption of equal shared parental responsibility; secondly the need to protect the children from the risk of harm from being exposed to family violence (amongst other things) is to be given greater weight than the benefit to them of having a meaningful relationship with both parents.

2. In this case, neither party contended that the historical allegations of family violence which they raise against the other, should displace equal shared parental responsibility.  That was reasonable, because it is plain that the parties have, in recent years at least, been able to well discharge their obligations for equal shared parental responsibility.  Moreover, neither party sought to argue that the risk of harm which the other posed to the children by virtue of any propensity for family violence, was an unacceptable one, such that it would justify either the complete cessation of contact, or require any time with the children to be supervised.  Again, the parties’ positions were soundly based, in that there is no reasonable basis to argue that the allegations of historical family violence, even if established, are of a kind that mandate either consequence.

3. Rather the role of family violence in each of the parties’ cases was, in effect, to found their argument that the other’s history of, or propensity for, family violence, simply informed the court as to which of the competing households was likely to be the better for the children to live in. 

4. As to the contended risks, the father asserted that the mother poses a risk of psychological harm to the children, by virtue of her failure to properly facilitate a relationship between himself and them, or alternatively, actively seeking to obstruct such a relationship.  He says that such conduct comprises either abuse or family violence as defined, and that the risk of harm mandates a change in primary care.

5. For her part, the mother says that the father is a controlling and coercive man, and that, in part, should inform the exercise of the discretion to order that the children continue to live with her.

The mother

Overview

1. The father says that the mother has long actively sought to impinge upon his relationship with the children, including:

   ·Falsely making or promoting allegations that he has, in some way, sexually misconducted himself with the children;

   ·Falsely making or promoting claims that he choked C;

   ·Raising allegations of misconduct with New South Wales Police in relation to the matters referred to in paragraph 27 of these reasons.

1. His argument is that the mother’s conduct is now of such longevity and persistence, it is therefore likely to continue, and that the purpose of it was to obstruct the relationship between him and the children.

2. For her part, the mother says that she has never intended her actions to interfere with the relationship between the father and the children, but rather that her conduct was borne of her anxiety, coupled with her experience of family violence at the hands of the father.

The sexual misconduct allegations

1. In May 2013, after the children had spent a weekend with the father, the mother says C made a disclosure to her that her bottom was sore and made the statement “they kept putting leaves up my bottom”. When the mother asked who did this, C said “the naughty man”. The mother alleges C first said the naughty man was her father, but then later said it was a bad dream. The mother reported C’s statement and the children’s sexualised behaviours to the Department. At this time, the mother also disclosed to the Department her concerns that something sexual occurred to the children when they were 12 months old, as the children screamed and stiffened when their nappies were being changed.

2. In August 2013, the mother reported to the Department that C returned from spending time with her father with two deep scratches on either side of her vagina. When the mother asked the child what happened, C replied “[T] had done it”. When asked again, she said “the naughty man”. The mother declined to take the child to the sexual assault clinic in H Town. She says she did not do so because that clinic had accused her in the past of trying to build a case against the father.

3. In February 2014, Ms M, the mother’s friend, made reports to police about the children’s sexualised behaviour and allegations of them sticking objects in their bottoms, as discussed at [25]. The mother was advised by Police that the outcome of the investigation regarding the sexual abuse allegations were not substantiated, but as I have earlier recounted, it was noted that she “did not want to be drawn if she was satisfied or otherwise”.

4. The mother subsequently discovered that the father had been administering enemas to the girls to relieve constipation during a holiday in the USA in 2014, and a few times in September 2013. The mother considered that, in hindsight, the father administering enemas on the girls had explained some of the children’s behaviour.

5. Under cross examination, the mother apologised for being so sensitive and for not looking at things as part of a bigger picture. She accepted she quite possibly has misinterpreted the children’s behaviour in relation to alleged sexual abuse.

The choking allegations

1. The mother claims that C has disclosed to her that the father allegedly choked her. The mother says that the child said that “Dad put his hands around my throat and squeezed my throat and then I coughed and vomited”. When the mother asked the child why the father would do such a thing, the child said to the mother “I was being naughty when he did it. I bashed him and screamed in his ear”. When the mother asked why, the child said “because he did something really mean and naughty to me first”. The same events were disclosed to the maternal grandmother by the other child, B. The children also repeated the same statements to two of the mother’s friends, and to the director of their child care centre, Ms U. A notification to the Department was made by the child care centre.

2. The father denies this allegation and says that the events in question have been misconstrued.  He says that what occurred was that C was vomiting, and he cupped his hand near her face to try and stop the vomit going everywhere, and that it was simply a natural reaction to what was occurring.

3. There was no medical evidence that could support the choking allegation, and the Department’s investigation found it to be unsubstantiated. It is noted that the mother never went to the police to report the allegation. The mother no longer pressed the choking allegation at trial.

The father’s police misconduct allegations

1. Too coincidentally, as has been seen, on the very next day after Judge Howard had found that the mother had contravened the 2011 consent orders, she made a complaint to the New South Wales Police, alleging misconduct by the father in the course of his career. The detail of the misconduct was sent in an email from the mother to the commission of inquiry.  The first complaint was an allegation that the father interfered with a car accident investigation in which the mother’s uncle was involved. She said that the father had influenced the issuing officer to change an un-roadworthy vehicle charge, to a negligent driving offence, to better the uncle in pursuing an insurance claim, as the car had bald tyres. The officer who issued the infringement, Mr W, was unable to state whether he was influenced by the father in issuing a negligent driving infringement. Although the father admitted he spoke to the uncle and the issuing police officer on the day of the accident, the finding of this complaint was that there was insufficient evidence to show that the father had interfered with the investigation.

2. The mother also alleged that the father had retained sensitive documents during the course of the relationship and that they were left at her house after separation. The mother says of this particular complaint that she was not the initial complainant (Ms M was) and that the police had phoned her to advise that they knew she had a box of sensitive documents, and that she must return it. She did so.

3. In her complaint email to police, the mother stated that when she realised the documents were in her possession, which was a long period of time before writing the email, she wanted to hand the information over to police, but she was concerned that if it implicated the father in his career, the father would come after her and the children.

4. It is unnecessary to further traverse the detail of the remaining allegations; suffice to say that ultimately, in both of the major police investigations into the father, all matters of complaint were found to be unsubstantiated. 

Does the mother’s conduct comprise abuse or family violence

1. The mother’s behaviour towards the father, including the complaints to various government agencies implicating the father, were of long duration, only stopping in approximately about 2015. The conduct of the mother resulted in restraints on the time the children spent with the father.  

2. The mother’s conduct, particularly given that the allegations she made from time to time were of such a serious nature, can be seen as a concerted campaign. I am satisfied that its purpose was, at least in part, to impede the father’s relationship with the children.

3. Whilst the mother accepted, under cross examination, that her behaviour towards the father between 2011 to 2014 put the children’s relationship with him at risk, she denied that it was intended to jeopardise the father’s relationship with the children.  I do not accept that evidence. I am satisfied that her likely motivation in doing so was substantially to, if not wholly remove the father from the children’s lives, then to at least have the control over the times and circumstances in which he would spend time with them.  However the mother went on to say that she allowed her own experiences with the father to cloud her judgement, without looking at matters purely from the children’s perspective.  I accept that evidence.   

4. I am well satisfied that there was malice in the mother’s allegations in relation to the father. Particularly, the timing of the “peace email,” when there were extant police allegations in relation to the father, and given her recent loss in the contravention proceedings, leave little room for doubt that the mother was being strategic and disingenuous in her actions.

5. I am further satisfied that the mother’s conduct in seeking to restrict the children’s relationship with the father, is family violence as that term is defined in s 4AB of the Act, as it was likely to prevent the father from keeping connections with the children, perhaps even severing the relationship altogether. Further, the desire to circumscribe that relationship does carry with it a risk of emotional harm which, albeit somewhat circularly, is itself abuse as that term is used in s 60CC(2)(b), albeit that the harm and the abuse are the one and the same.

6. I am therefore satisfied that the mother’s conduct comprises abuse and family violence.

Future risk

1. However it is quite another matter to say that, merely because the mother has engaged in such conduct in the past, even over several years, that there remains a significant risk that she will do so again. 

2. The evidence which suggests that there is such an ongoing risk is as follows:

   ·Dr P was of the view that such past historical conduct indicated a risk of future conduct;

   ·Likewise Ms V similarly expressed such a view;

   ·It may be fairly taken that past conduct is a reliable indicator of potential future conduct.

3. On the other hand, the following points tell against such a conclusion being so readily drawn in this case:

   ·The mother has now not generated any new allegations since about mid 2014 (although she has repeated them in her later affidavits from time to time);

   ·It appears as though the mother’s relationship with Ms M has abated to an extent, in consequence of which the prospect of her acting again, seemingly at Ms M’s direction, must be taken to be commensurately reduced;

   ·The evidence from the mother’s psychologist, Mr G, indicated the mother is making efforts to change how she thinks about the father’s actions, and that she is moving ahead.

   ·Under cross examination, and in the mother’s trial affidavit, the mother was apologetic towards the father, and sought a fresh start in parenting the children.

   ·The mother has complied with orders, and has facilitated a relationship between the children and the father, since 2015.

4. Ultimately I conclude that there is some risk that the mother will again act as she has in the past, again with a view to seeking to curtail the father’s relationship with the children, but I cannot assess that the prospect of it occurring as more likely than not.  It is something beyond a remote possibility, and yet is less than more probable than not.

The father

Overview

1. The mother contends that the father has a long history of controlling and coercive behaviour.  However she does not say that he therefore poses an unacceptable risk of harm to the children, nor even that his time with the children should be supervised.  Plainly any such argument would be doomed to fail, given the success of the father spending time with the children over the last few years.  Nonetheless, she says it makes her the better parent, or at least does not provide any justification for the change which the father proposes, particularly given the likely consequences of such a change upon the children.

2. However, as I indicated to the mother during the course of the hearing, it really matters little whether the father’s conduct is characterised as family violence or not. Given the way she presses her case, she does not obtain any particular forensic benefit from its characterisation as such; rather it is the conduct itself which needs to be considered.

Physical violence

1. The mother deposed to an incident which resulted in her leaving the family home on 8 December 2009, just after the birth of the children. She says that after an argument ensued between her and the father, the father yelled at her to “get out” of the house and to “take what you can carry”. The mother says the children were screaming as a result of the father shouting at her. This continued until the mother left the home with the children. The mother reported the incident to the F Town Community Centre on 10 December 2009. The records in relation to this incident noted that the father was said to have been verbally abusive and physically intimidating towards the mother, getting up close to her face with his hands, while the children were present.

2. The mother deposed to another incident on 26 April 2010, when the father got angry and yelled at her. She said that the father blocked her way into the kitchen to get to the phone, and shoved his finger in her face as he yelled “Don’t you dare bloody ring anybody or it will be the last thing you do.”

3. The father denied any violence. He claimed that he never became verbally abusive, and denied he ever swore at the mother in a loud, aggressive, tone of voice, or stood over her with his hands in her face. He also denied that any violence occurred in the presence of the children. 

4. The mother also deposed to physical incidents which occurred between the father and the children when they were babies. The mother alleged an incident in which the father dropped B in the bathtub sink while bathing her, causing her face to be submerged. The father says that the incident was an accident.  The mother further says the father then yelled at the child for this. The father denies yelling at the child.

5. Another incident the mother deposed to was, when the children were babies, the father had hit one of the children’s heads into a wall, leaving an imprint of his watch on the wall. The mother could see a red mark on the child’s head after this.  The father denies this occurred.

6. In relation to the allegations of family violence, I generally prefer the father’s evidence. However, although I am not satisfied that the events of alleged physical violence occurred, I am satisfied that the parties’ heatedly argued on occasion, including the father gesticulating forcefully towards the mother.

Financial coercion

1. The mother says that during her pregnancy, after she stopped working, the father would allow her some money from an investment account.  After the children were born, the mother says she started receiving the baby bonus, and that the father thereafter stopped allowing her any other money. The mother reported to the Department, at various times after separation, that the father was exerting financial control over her, including him monitoring her phone calls and bank accounts.  I am satisfied that the father, being nine years older than the mother, did exert some control over the mother in relation to financial matters. However I am not satisfied that he did so in a way which unreasonably denied the mother financial autonomy, or which was an unreasonable withholding of financial support, and hence was not family violence.

Other conduct

1. The mother says that, prior to separation, the father became highly controlling. For example, he wrote a list of chores for the mother to do, and noted how long the jobs would take, and how often they should be undertaken. The father would also re-write the shopping list for the mother (Exhibit 6). The mother alleges that the father would try and influence who she saw socially.  I am satisfied that the father did have a controlling aspect to his interaction with the mother, however I am not satisfied that it comprised family violence as that term is used in the Act.

Evaluation

1. I am satisfied that the mother and father have quite different personalities, and that there was, and indeed is, if only by virtue of the fact that the relationship commenced when the mother was only 19 years of age and the father 28, there was a species of power imbalance between them.  Moreover, the father has, since their relationship commenced, had a highly successful career in the public service, whereas the mother has focussed more upon her role as a parent. Their social and economic circumstances are now in considerable contrast; their personalities still remain in marked contrast.

2. I am satisfied that the mother likely perceives the father through the prism of that power imbalance, and that much of his conduct in the past has been so evaluated by her.  For instance, I have little doubt that the father was finding it very difficult to cope after the birth of the children, particularly given the mother’s post-natal depression, and was embarrassed about the involvement of the Department in the family’s lives. The mother likely experienced his response to those matters as an attempt to control her.

3. That said, I am satisfied that the father has, on occasion, behaved in a way in which he sought to influence the mother’s behaviour.  I have little doubt that he has done so by, for instance, the use of lists and directions, albeit such conduct does not justify the epithet of family violence being applied to it.  Even if it is family violence, it is very much on the lesser end of the spectrum.

Future risk

1. Notwithstanding being satisfied that, in the course of their relationship, the father sought to control the mother, I am far from satisfied that he therefore poses a risk of family violence of any kind being perpetrated in the children’s presence, if they were to either live with him or spend time with him.  Indeed so much is conceded by the mother by the orders which she seeks.

2. The father poses no appreciable risk of harm to the children by virtue of exposure to family violence whilst in his care.

Conclusion

1. It can therefore be seen that I am not satisfied that the mother is more likely than not to act in a way that would likely expose the children to any risk of harm from abuse or family violence, nor is the father likely to so behave.

PARTIES’ RESPECTIVE PARENTING CAPACITIES

1. Ultimately it was not in dispute that both parties have the requisite capacity to parent these children. 

RESIDENCE PARENT’S FACILITATION OF MEANINGFUL RELATIONSHIP BETWEEN CHILDREN AND OTHER PARENT

1. This was a primary focus of the parties’ dispute, although I have substantially discussed it in considering the risks which each party poses to the children.  Ultimately I am satisfied that, within the limits of her personality and anxiety, it is not more probable than not that the mother will in the future seek to obstruct the relationship between the children and the father. That said, she may not actively facilitate it, as on the evidence, there is no instance of her doing so, for instance, seeking to engage the children with the father beyond that allowed for in the orders that have existed from time to time.

2. On the other hand, the father is an untested figure as to his capacity to foster a relationship between the children and the mother.  Again, it does not appear as though there is any example in the evidence of the father actively seeking to facilitate the children’s relationship with the mother, for instance, by spontaneously suggesting that the children contact her whilst they are in his care, so as to involve her in some important aspect of their activities with him.

3. It may fairly be said that both of these parties are highly suspicious of the other, and seek to quarantine the children from the other parent whilst they are in their care.  On the other hand, within those confines, I am not satisfied that either parent would seek to deliberately obstruct the relationship between the children and the other, although as I have indicated earlier in these reasons, the fact that the mother has done so in the past, necessarily means that there is some risk she may do so again.

EFFECT ON MOTHER OF CHILDREN MOVING TO LIVE WITH FATHER

1. Ultimately there was no dispute in relation to this.  Mr G, the mother’s therapist, opined that the mother would be simply devastated by the children being removed from her care, and going into the father’s care.  That was not necessarily because she perceived them thereby being at any risk, but rather because she has always been their primary carer, and that is an important part of her identity.  I accept that evidence.  I am well satisfied that the effect of the children going into the father’s care would be one which would impinge upon the mother’s self-esteem and her ability to cope, and may well again make her significantly hypervigilant.

1. This evidence was supported by Ms V, who likewise opined that the effect on the mother of a change in primary carer, would be one of enormous consequence.

2. I am well satisfied that in the event that the children were removed from the mother to live with the father, the effect on the mother would be approaching catastrophic, and certainly be devastating for her.

EFFECT ON CHILDREN OF PARTIES’ PROPOSALS

The mother’s proposal

1. There is no suggestion that the children would be in any way physically or sexually harmed, by continuing to live with the mother.  The only risk of emotional harm to them is that postulated by the father, namely that his relationship with them may be again obstructed by the mother seeking to introduce some allegation against him, with a view to restricting his time with the children.  However assuming that such did not occur, then there is no reason to think that the children’s experience of continuing to live under the current arrangements would not be similar to that which presently prevails.

2. As to the risk to the children’s relationship with the father, should the current orders continue to prevail, I have already noted that I evaluate the risk that the mother would seek to again obstruct their relationship with the father to be more than remote, but less than probable.  In the event that risk were to eventuate, then it is likely that there would be some impediment to the children’s experience of their relationship with their father, but beyond that prediction, it is impossible to determine exactly what that impact may be.  Suffice to say that they may be inclined to view their father in a less than wholesome light, or in some way seek to themselves restrict their relationship with him.  That may carry with it some risk of emotional harm to them, but it is somewhat amorphous.

Father’s proposal

1. The father’s proposal would see the children leave the mother that they have lived with all of their eight years, and separate them from their brothers, L and Q.  Whilst the Family Report did not investigate it, there is no reason to think that the children’s relationship with L is not a typical sibling one, which affords benefit to both them and L.  It is unlikely that the children see him, or indeed Q, in a different light, merely because of the different genetics: it is reasonable to expect that they regard them both as their brothers.  In that regard I do not overlook that, for all of L’s life, the children have spent time with the father, whereas L has not, but there is no reason to think that has in some way restricted their experience of their sibling relationship with him.

2. As to the effect on the children of moving to live primarily with the father, again the evidence spoke with one voice: it would be a significant and highly dislocating event for them to cope with.  They would move out of the only home they have ever lived in, move away from the parent who has always been their primary carer, and thereafter only have limited time with her and with their siblings.  It may safely be said that the likely effect on the children, at least in the short term, may approach emotional devastation.  That is not to say that, in the medium to long term, they may not ultimately cope with it, but it is likely that, in the short term their dislocation – physical and emotional – would be considerable.

COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. Ultimately both parties conceded that there should be an order for equal shared parental responsibility.  That concession was soundly based, in that the parties now have a considerable history of business-like communication by email in relation to the children, culminating in them both recently attending a consultation with a specialist in relation to C’s eyes.

2. Whilst it is true that there may continue to be some power imbalance between the father and the mother, even if that be so, his different life experience brings with it not only his training, but also his experience of different situations, and people from many walks of life.

3. I am satisfied that these parties could discharge equal shared parental responsibility, should it be ordered.

SECTION 60CC FACTORS

1. I have already discussed both primary considerations, and a number of additional considerations, when dealing with the issues.  Nonetheless I make the further observations.

2. The children are too young to express any wishes that should be afforded any weight. 

3. The children have good relationships with the maternal grandparents, but do not appear to have any relationship with the paternal grandfather.

4. Perhaps a little oddly, notwithstanding his move to Suburb R at the end of last year, the father has not sought to increase the time which he spends with the children, or to otherwise further involve himself in their lives.  That said, there were no orders which would permit him to do so.

5. The father has maintained his child support commitments to the children, although he has reneged on an agreement to pay $2,000.00 towards their school fees each year.

6. The distance between the parties’ respective households means that there is a practical impediment to either orders for equal time, or substantial and significant time, but otherwise the children’s rights to maintain relationships and contact with both parents are not impeded.

7. It is said that the risk that the mother may again seek to impede the relationship between the father and children means that, if that eventuated, there would likely need to be further proceedings instituted by the father.  I take that into account.

PARENTAL RESPONSIBILITY

1. Both parties concede that there should be orders for equal shared parental responsibility.  Neither party seeks to argue that any historical family violence displaces the presumption, or even if it did, that it would not otherwise be in the children’s best interests that both parties equally shared decision making in relation to them.  I accept that indeed such an order is in the children’s best interests, and will make it.

WITH WHOM SHOULD CHILDREN LIVE

1. The following factors are in favour of the children continuing to live primarily with the mother:

   ·They have done so all of their lives;

   ·They have lived in their present house (and therefore region) all of their lives;

   ·It would enable them to maintain close sibling relationships with their two brothers;

   ·A move for the children to live with the father would likely devastate the mother, and may impact upon her capacity to not only to parent these children, but their two brothers as well;

   ·The father’s proposed move would substantially impact upon the children, and in the short term, could be emotionally devastating for them;

   ·The father is an untested primary carer of the children, over any significant length of time;

   ·The father is untested as to his capacity to facilitate a meaningful relationship between the children and the mother;

   ·Notwithstanding the mother’s past conduct, the children nonetheless presently have a meaningful relationship with the father.

2. On the other hand, the following factors weigh in favour of the orders contended for by the father:

   ·There is some risk that the mother may continue to act to impede the children’s experience of a relationship with the father, and his proposal would obviate, or at least significantly mitigate, that risk;

   ·The father is likely able to offer a superior financial situation;

   ·The children would likely have an optimal experience of their relationship with their father, if they were to live with him.

3. In my view, weighing those factors tells strongly in favour of the children continuing to live with the mother.  Particularly I place emphasis upon the fact that the children do presently have a meaningful relationship with the father, yet the cost of optimising that, or removing any risk the mother may again imperil it, is to expose them to the risk of serious, and potentially protracted, emotional harm, by virtue of the diminution of their relationship with the mother and their siblings.

4. I am satisfied that it is in the children’s best interests that they continue to live with the mother, and there will be an order to that effect.

TIME WITH THE FATHER

1. Ultimately the parties’ differences in this respect were minimal.  The father conceded that, in the event that the children continued to live with the mother, he should spend alternate weekend time with them, together with time on school holidays.  To the extent that there was a dispute between the parties, it was only as to whether or not for the winter (or other agreed) school holidays, all of the time should be spent with the father, rather than just one half of it.

2. This precipitated an interesting exchange in addresses.  When I inquired of the mother what school holiday arrangements she would seek, in the event that the children went to live with the father, she said that she would like to have the full winter holiday, rather than merely one half.  She was unable to explain why she wanted that for herself, but was not prepared to afford it to the father.  I think that is telling.  She perceives a benefit in the relationship between her and the children, should that holiday time be afforded to her, but appeared to see no such benefit flowing to the children from that time with the father.  I am well satisfied that if for one full set of two week school holidays, the children spend all their time with the father, it would be of benefit to them.  Particularly the father has the means and inclination to travel overseas with the children, and that is likely to provide an opportunity for northern hemisphere travel, especially during the winter holidays.

3. I am therefore satisfied that the children should spend time with the father on alternate weekends, during school holidays, and on special occasions, as proposed by the Independent Children's Lawyer and father, and will so order.

OTHER ORDERS

1. Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer are in the children’s best interests, and will make them, save that any application for costs can be made in the usual way.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.        

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 December 2017.

Associate: 

Date:  18 December 2017