Masterson and Braxton

[2019] FamCA 387

FAMILY COURT OF AUSTRALIA

MASTERSON & BRAXTON [2019] FamCA 387

FAMILY LAW – CHILDREN – residence – where the children will remain living with the father and continue to spend regular time with the mother – where previous proceedings between the parties in relation to the eldest child settled by consent –  where the second child was born following the conclusion of the first court proceedings - where the father recommenced proceedings seeking a recovery order for both children - where the matter was transferred from the Federal Circuit Court – where it would be de-stabilising and not in the best interests of the children to change their residence and living patterns – where there is no reason to disturb the long standing status quo of the children – where both parties have children from prior relationships – where the children have consistent and positive relationships with both parents - where the children have a good relationship with their paternal and maternal half-siblings – where the mother may have been focused on discrediting the father in order for the residence of the children to be changed – where the parties’ relationship was volatile and mutually controlling – where the focus of the parents now should be on the welfare, stability and safety of the children at home and school.
FAMILY LAW – CHILDREN – parental responsibility – where the father has sole parental responsibility – where the parent with whom the children primarily live should logically be the primary decision maker and the one responsible for initiating consultation with the mother - where both parents are competitive with each other in relation to the children – where sole parental responsibility with an obligation to consult in a structured way appears to be the best available method of avoiding hostility and hurt feelings arising from conflicting ideas.

Family Law Act 1975 (Cth)

APPLICANT: Mr Masterson

RESPONDENT: Ms Braxton

INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates

FILE NUMBER: NCC 3339 of 2012

DATE DELIVERED: 19 June 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 4 & 5 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murray

SOLICITOR FOR THE APPLICANT: Intercept Family Law

COUNSEL FOR THE RESPONDENT: Mr Wilkinson

SOLICITOR FOR THE RESPONDENT: Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Fielden & Associates

Orders

1. That all prior orders made in this Court and in the Federal Circuit Court with respect to X born … 2012 and Y born … 2014 (“the children”) are discharged.

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

3. In the event a decision is to be made  involving a long term issue for a child the father shall:

   (a)Advise the mother in writing of the matter which requires a decision and of the proposal of the father in that regard;

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

   (c)Genuinely consider the response of the mother and take her views and proposals, if any, into account before coming to a decision; and

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

4. That the children live with the father.

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

   5.1During school terms:

   5.1.1Each alternate weekend from after school Friday until before school Monday (extending to Tuesday if Monday is a public holiday) with the mother or her nominee to collect the children from, and return the children to, school.

   5.2During school holidays:

   5.2.1For the first half of each term holiday in even numbered years and the second half in odd numbered years.

6. That the father obtain a referral from the family general practitioner to a child psychiatrist for X with a view to:

   (a)Assessment of the child as to whether he qualifies for a diagnosis of Selective Mutism or any other disorder, and if so, recommendation for treatment by that practitioner or as referred;

   (b)To that end, the father shall advise the mother of the name and contact details of the child psychiatrist to whom referral is obtained and advise the mother of consultation dates;

   (c)Both parents attending consultations as requested by the assessing practitioner and the treating practitioner if there is one;

   (d)Treatment for the child, if considered appropriate, by that psychiatrist or another therapeutic practitioner recommended by that psychiatrist.

7. The father may provide to any such treating practitioner for X the report of the Single Expert Dr B dated 19 May 2018 and these Orders and Reasons.

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 Masterson & Braxton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3339 of 2012

Mr Masterson

Applicant

And

Ms Braxton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of two children, a boy X aged six years and a girl Y aged four years respectively at date of trial.

2. The applicant Mr Masterson is the father of the children. The respondent Ms Braxton is the mother of the children.

3. The relationship between the parties began in 2011. The elder child X was conceived soon after the parties met and was subsequently born in 2012.

4. The parties agree that they separated in December 2012 when X was six months old.

5. Thereafter the parties did not live together in the same house again, but did spend time with each other in the separate households.

6. On 12 December 2012 proceedings in this Court were commenced by the mother for parenting orders about the child X which were resolved after six months by final consent orders (the 2013 Orders). The agreement was for the child to live with the father and spend time with the mother as agreed. The parties had equal shared parental responsibility.[1]

   [1] Family Court of Australia Order dated 4/05/2013

7. The parties agree that a sociable and sometimes intimate relationship between them continued after those orders were made.

8. Confirming evidence of that agreed fact is that towards the end of 2013 the second subject child Y was conceived and subsequently born in 2014.

9. Both parties claim to have been the main carer for Y. What seems more probable is that within a few months from her birth the child was spending increasing amounts of time with her father.

10. For a period of months in the second half of 2015 the mother cared for both children exclusively. The father asserts that he asked the mother to take on full time care of the children during this period while he was working away. The mother asserts that the father was “off on a drug bender.” The father denies he was. There is insufficient evidence to support a finding either way.

11. In November 2015 the parties separated again. This represented a breakdown of the personal relationship between the parties.

12. The subject children both thereafter lived with the father. A pattern developed of time with the mother on alternate weekends and Wednesdays overnight. That arrangement continued by agreement for a little over a year.

13. In January 2017 the mother declined to return the children to the father.

History of Relevant Events Since Final Separation

Application for Recovery Order and Parenting Orders

1. In January 2017 the father commenced proceedings in the Federal Circuit Court (“FCC”), in the context of the mother retaining both children.

Interim orders by consent – 1 February 2017

1. Two weeks later, on 1 February 2017, interim orders were made by consent providing for both children to live with the father and to spend defined time with the mother. Equal shared parental responsibility was again agreed on.[2]

   [2] Family Court of Australia Order dated 1/02/2017

Historical risks alleged by mother

1. On 20 April 2017, the mother filed a Response proposing sole parental responsibility and residence for herself, and for the children to have daytime visits only with the father.

2. Accompanying the Response of the mother was a Notice of Risk raising a raft of allegations: neglect, physical and emotional abuse of the children by the father, verbal and physical abuse of herself by the father and drug abuse and attempted suicide by the father.

3. All of the allegations predated the interim orders of February 2017, made by consent less than three months before the filing of those documents.

4. The explanation the mother provided for the inconsistency between the 2017 orders consented to on an interim basis and the allegations about historical events raised soon after those orders were made, is as follows:[3]

   [31]The matter came before the Court for first return on 1 February 2017. On that day I was self-represented.

   [32]On the day a document was put to me by the father’s solicitor which I understand to be the Consent Orders dated 1 February 2017.

   [33]I did not have the benefit of legal advice that day and I did not understand that I had the option not to sign the document. The process was overwhelming and I did not know that I could have an interim hearing and that a judge could make a decision as to the arrangements for the children that was different to those contained in the Consent Orders.

   [34]I was out of my depth that day and I signed the Consent Orders not understanding the alternatives available to me at the time.

   [3] Affidavit of Ms Braxton filed 27/01/2019, pars 31-34

5. I am unable for several reasons to accept what the mother says as a truthful explanation.

6. First, when proceedings about the elder child X were before the Court in 2012/2013 the mother filed a Notice of Discontinuance of her own Initiating Application.[4]

   [4] Notice of Discontinuance filed by Ms Braxton 13/02/2013

7. On 5 April 2013 the mother did not attend for a Court event. She was contacted by the Court by telephone. The notation to the orders, made that day for the allocation of a date for an undefended hearing, states:

   [A]That the mother was not present at Court today, was contacted by telephone and indicated that at this time she does not intend to participate in the proceedings about the parties’ child X.

8. On 7 May 2013 the mother chose to attend Court for the undefended hearing. The parties negotiated a set of final orders (“the 2013 orders”) which were made by consent. The handwritten notation to the orders reflects the full engagement of the mother in the process.

   It is noted that the parents have been able to negotiate a co-operative child focused parenting arrangement whereby the child has regular face to face contact with his mother and maternal siblings and it is anticipated that this will continue into the future.[5]

   [5] Family Court of Australia Order dated 4/05/2013 Notation A

9. That experience provided the mother with information about court procedures and the significance of negotiating and consenting to parenting orders.

10. Second, the mother thereafter maintained a domestic relationship with the father although not living with him in a common household. Within months of the 2013 orders being made the parties conceived the second subject child. The parties maintained their personal relationship for a further two years, until November 2015.

11. That pattern of conduct implicitly reflects confidence and trust by the mother in the father and also by the father in the mother.

12. I am confirmed in that conclusion by the fact that the parties enjoyed a period of shared care of the two children for a further 14 months after their personal relationship broke down (November 2015 to January 2017). The children spent five nights per fortnight with the mother.

13. The third and final reason is this. The mother filed an affidavit, days before this trial in 2019, proposing that the children spend alternate weekends with the father from Friday to Monday. By doing so she stepped away from her formal proposal of one period of daytime per fortnight for the children with the father. She made that concession, before her allegations about the capacity of the father were tested.

14. That is not a criticism of the mother. Whether or not as a result of legal advice, it represented an acceptance of the reality of the history of parental care; where the children had lived and how they had spent time with each parent.

15. What seems most probable is that although the mother may have regretted her decision to consent to the 2017 interim orders, she knew what she had agreed to, and entered into that agreement because she was confident that the children would be sufficiently well cared for by the father at the very least until there was a final determination of the dispute.

Transfer from Federal Circuit Court to this Court - July 2017

1. In July 2017 the proceedings were transferred from the FCC to this Court. A report by a Single Expert was discussed but not commissioned for another eight months.

2. A registrar of this Court invited the Department of Family and Community Services to intervene in the proceedings.[6] That invitation was later declined.

   [6] Family Court of Australia Order dated 30/08/2017 O 4

3. On 30 August 2017 the parties again negotiated and reached agreement on some specific issues such as assessment of X’s school readiness and a holiday for the children with the extended maternal family.

4. In October 2017 the parties consented to further orders as to the school where X would attend, starting Kindergarten in 2018.

5. In January 2018 the mother moved from Town G to Suburb C. This was a move further away by about 30 kilometres from the school at which X would be starting the following month.

Father injured in bike accident - March 2018

1. In March 2018 the father had a serious motor bike accident. He suffered injuries to his neck, back and knee.

2. After a period in hospital he returned home with family support and nursing care in place for himself and the children.

3. By that stage neither party had complied with orders made four months prior.[7]

   [7] Family Court of Australia Order dated 22/11/2017

4. On 23 April 2018 the parties and children were interviewed by the Single Expert.

Release of Report of Single Expert - May 2018

1. On 19 May 2018 the report was released.

2. The report provided useful insights and observations. The Single Expert, a clinical psychologist, expressed himself as “not confident that either party suffers from a psychiatric disorder or a psychological condition despite some worrying and odd traits from each.”[8]

   [8] Single Expert Report of Dr B dated 19/05/2018 par 132

3. The Single Expert went on to say that both had difficulty managing respectful relationships but the behaviour did not represent a psychological condition.

4. I infer that each of the parents is therefore capable of ceasing that undermining behaviour and choosing instead to support and encourage the children. Each could do this by acknowledging to the children, the good things about the other parent.

5. The Single Expert attributed the older child’s vulnerability and anxiety to the undermining behaviour of the parents. I infer that X is being ever increasingly hurt by the competition between his parents for himself and the younger child.

6. I have no reason to reject or disregard the evidence of the Single Expert that if the parents continue the behaviour it will “continue to cause problems for X’s behaviour and adjustment.”[9]

   [9] Single Expert Report of Dr B dated 19/05/2018 par 132

The trial

1. The father was legally represented and had briefed counsel.

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

3. The matter was allocated two days hearing time commencing 4 February 2019 and was concluded within that time.

4. Judgment was thereafter reserved.

The Parties

The Applicant Father – Mr Masterson

1. The father is aged 42. He lives in Region D of New South Wales. His household consists of himself, the two subject children and his two older children from a prior relationship with Ms E. They are a boy H aged 13 and a girl J aged 10 years. The two older children spend time regularly with their own mother. The father receives a Supporting Parent Benefit.

The Respondent Mother – Ms Braxton

1. The mother is aged 42. She lives in the Town F area. Her household consists of herself and two of her three older children from her marriage to Mr A. The two children are girls, K aged 13 and L aged 10. The eldest of the three children, a boy M aged 15, has significant behavioural issues and severe autism. By family arrangement M moved to live with his maternal grandparents in 2017.

2. The mother receives a Supporting Parent Benefit and also child support from her former husband, for the three children.

3. The two households are about 25 kilometres apart, a 30 minute car trip. There are no practical difficulties with travel between households.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father

   (a)Amended Initiating Application filed 13/12/2018;

   (b)Affidavit of Mr Masterson filed 18/12/2018;

   (c)Notice of Risk filed 16/01/2017;

   The Respondent Mother

   (d)Response filed 20/04/2017;

   (e)Affidavit of Ms Braxton filed 27/01/2019;

   Reports

   (f)Single Expert Report – Dr B dated 28/05/2018.

APPLICATIONS

1. By commencement of trial the parties sought mirror orders. Each parent sought an order for sole parental responsibility and residence for himself and herself. Each proposed alternate weekends, school to school, and half school holidays for the other parent.

2. By doing so each parent, inferentially if not actually, acknowledged that the other parent was sufficiently competent to meet the needs of the children.

3. The Independent Children’s Lawyer (“ICL”) did not have a preliminary position but ultimately supported the proposal of the mother.[10]

   [10] Exhibit 7

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility and Residence

1. Each of the parents now seeks sole parental responsibility for the children. They have twice consented to equal shared parental responsibility in the past, but have apparently both concluded that they cannot make that arrangement work.

2. Accordingly, one parent must be the primary decision maker but will also be responsible for initiating structured consultation before a final decision is made.

3. The parent with whom the children primarily live should logically take on the role of decision maker and be the party with sole parental responsibility.

4. The children have lived mostly with the father. The Single Expert expressed a tentative opinion, “I suspect that the children are quite happy in the current status quo.”[11] In my view the evidence bears that out. The children are happy with the father and have close relationships with their older half brother and sister, aged 13 and 10 at date of trial. The four children have grown up together as a group of siblings.

   [11] Single Expert Report of Dr B dated 28/05/2018 par 124

5. The Single Expert also expressed the unqualified view in his oral evidence that any substantial change to the current status quo is likely to have an impact on the children.” To change patterns is to de-stabilise. There would be difficulties in particular for X.”

6. I accept the opinion of the Single Expert in that regard. In this matter the Court cannot be satisfied that the best interests of the children would be met by changing the children’s residence thus disrupting a settled arrangement at home and school.

7. That is not to say that the children do not enjoy a good relationship with the mother and their two half-sisters in the home of the mother. They do. The difference being that they have not all lived together on a full time basis, other than for three or four months in mid-2015, in the same way as the subject children  have with the father and his two older children.

8. That difference together with the consideration of the relevant mandatory factors which follows, has lead me to the conclusion that the children should remain living with the father.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The mother was generally critical of the father, of the food provided to the children, his methods of discipline and his perceived unwillingness to support the relationship between the children and herself.

2. The father was not so critical of the mother but did express frustration that she refused to acknowledge his role and the stability of the children in his household.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. Both children were observed by the Single Expert to be clearly comfortable with both parents.[12]

   [12] Single Expert Report of Dr B dated 19/05/2018 par 62

2. X aged six, was unable to be interviewed, to identify a view, or at all. This was partly because he was engaged by a movie playing and also because he is a child who chooses not to speak in unfamiliar settings.

3. Y, age four, was too young to be interviewed.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The Single Expert was confident that the children both had consistent and positive relationships with each parent.[13]

   [13] Single Expert Report of Dr B dated 19/05/2018 par 121

2. Both children apparently have reasonable relationships, with some clashes, with half siblings. The Single Expert expressed the view that the children “don’t understand and don’t know how to communicate with M.” Given their age and the severe disability of M there is nothing to be learned about either parent from that situation.

3. The children enjoy a relationship with all grandparents.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The parties have been competitive with each other over the children. Each knows best in his and her own view.

2. The most concerning aspect of the mother’s parenting is her tendency to undermine the relationship of the children with the father. At the same time the mother can become angry with the children if they do not approve of her. She was observed by the Single Expert to have “inflated self-esteem and dependency needs”.[14]

   [14] Single Expert Report of Dr B dated 19/05/2018 par 128

3. The father rebuffs the mother’s criticisms. He was observed to be somewhat “entitled and controlling” by the Single Expert, so likely to readily reject proposals of the mother.[15] However he was also assessed to care reasonably well for the children.

   [15] Single Expert Report of Dr B dated 19/05/2018 par 110

4. I infer that each parent is readily offended by the other and this is unlikely to change. Sole parental responsibility with an obligation to consult in a structured way appears to be the best available method of avoiding hostility and hurt feelings arising from conflicting ideas.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The mother does not pay child support. She is not in paid employment. She receives a Commonwealth benefit and child support from her former husband for the three children of that marriage.

2. The father receives a Commonwealth benefit. He is not in paid employment. He does not receive child support from the mother or from the mother of his older children. He is solely responsible for Y’s child care fees and is struggling with arrears. His financial position will likely improve when Y starts school in 2020.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. Given the good relationship both children have with their parents there is no reason to disturb a long standing status quo of the children living primarily with the father.

2. Both children, but particularly X, would likely be adversely affected by a change of familiar patterns.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The Single Expert assessed the strengths and weaknesses of the parties’ capacity as parents as follows:[16]

   Mr [Masterson] presents as a man who is somewhat entitled and is self-important in regards to his role as a father. He clearly perceives that this is his major task in life, despite being somewhat anxious and at times insecure in his role as a father and on the history had periods of substantial difficulty in discharging his role appropriately. He appears to be in general a reasonable parent to his children and certainly has a good relationship with [X] and [Y] and I am unable to evaluate the claims made by Ms [Braxton] that he is a demeaning and controlling parent although it is likely he is quite controlling. The problem for me is that Ms [Braxton] presents as a rather vexatious and histrionic complainant, and it is hard to separate out what might be genuine concerns from those designed to destroy Mr [Masterson’s] reputation.

   [16] Single Expert Report of Dr B dated 19/05/2018 par 110

2. One example of this is the mother emailing the Single Expert on the topic of the father’s bike accident to “imply that this was likely a suicide attempt”. The basis for this view was that she had “heard from people” that was likely what it was.

3. The Single Expert considered it “most unlikely” that the accident was a suicide attempt. He interpreted the mother’s statement as “innuendo and an attempt to reputation destruction.”

4. The mother may have been focused on discrediting the father in order to achieve her goal of having the children come to live with her.

5. The consequence of saying such things, entertaining social media gossip is that children can hear it and be hurt by it.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. X is a six and a half year old boy just starting Year One. He is small and slight. The Single Expert assessed him as anxious and probably a selective mute.

2. In my view X will benefit from an assessment by a psychiatrist undertaken exclusively for his future interest and not in the context of a dispute between his parents over him.

3. An order for that to happen is made. There is provision for involvement by both parents directed by the psychiatrist who is consulted and for provision of the Single Expert Report and these Orders and Reasons for Judgment to that psychiatrist.

4. Y is a four and a half year old girl; happy, affectionate and extroverted.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. There was extensive cross-examination of the father by counsel for the mother and again by counsel for the ICL on his history of drug use by the father from age 20. This was apparently with a view to identifying that there was a risk of dependence on and over-use of the drugs the father was given after his bike accident in 2018.

2. The father was open and responsive about his history of using intravenous drugs and cannabis. He had been frank and open with the Single Expert about it.

3. He was steadfast in his evidence that he had not been addicted to any substance since 2007 (five years before the first child was born). There was no conflicting evidence tendered.

4. There was searching and extensive cross-examination of the father’s use of pain killing medication after his accident. The father generally answered that “whatever medication I needed I took”. The proposition was put to the father that he was using more medication than was prescribed. The father stated that his medical advice had been  “take what you need, come back if there is a problem.”

5. I consider that the Court cannot determine whether the number of scripts that the father had filled was “too many” and certainly not whether the number of drugs ingested was justified by his levels of pain.

6. I take into account that the father was able to enlist assistance for himself and the children after his accident. He had family day care five days per week and home care bringing cooked meals to the house. His focus appears to have been care for the children and recovery for himself.

7. Other than missing some days of school and being late on occasions the children could not be said to have suffered or been neglected as a result of the father’s accident.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There are allegations of abuse of herself and the children raised by the mother.

2. Incidents raised prior to final consent orders made in 2013 by consent may or may not have occurred. The significance of the orders is that each of the parents was acknowledging that the other was competent to care for X and that he was safe with each of them.

3. Some of the allegations are inferential. The mother stated in her filed material that “in 2016 I saw bruises on X and there were new bruises each month.”[17] There was no accusation that the father had deliberately or accidentally hurt the child. The only explanation for the inclusion of such statements appears to be an expectation that the Court might infer that the father was at fault.

   [17] Affidavit of Ms Braxton filed 27/01/2019 par 54

4. Some allegations were unusual, such as that the father left two year old X alone in the house with a rooster which pecked him on the head causing him to cry. That incident probably occurred. Both parents were present and observing so the child was not at risk.

5. The argument was between the parents. The mother wanted to shoo the rooster out of the house. The father did not allow her to. It is a most typical example of angry contest over minor matters.

6. The mother said she feared challenging the father in case he became aggressive.

7. The father said he became frustrated when the mother became fixated on something and would not let it go.

8. There likely were angry exchanges.

9. The Single Expert described the relationship of the parties as “volatile and mutually controlling” That is consistent with my interpretation of the evidence.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. The Single Expert makes a prediction which the parties would benefit from focusing on in an attempt to avoid what he predicts coming to pass:

   I suspect that over time with strong orders both parents will accede to orders that require for each to facilitate the contact of the children with the alternate parent but such contact will not go smoothly and there will continue to be ructions in the co-parenting arrangements. Likely this conflict will result in further involvement of FACS.[18]

   [18] Single Expert Report of Dr B dated 19/05/2018 par 123

2. The worst possible outcome for these children is that this dispute between the adults over which is the better parent continues. Each parent could cease criticising the other to third parties and especially to the children

3. The focus now should be on the welfare, safety and stability of the children at home and school.

4. Court proceedings have been finalised and orders made to ensure that the children maintain presently very good relationships with each parent.

Any other fact or circumstance that the court thinks is relevant

1. The mother has formed a friendly alliance with Ms E who is the mother of the father’s two older children. The two women had begun to arrange for the subject children to get together with the children of Ms E and the father.

2. This friendship was brought up by the mother to the Single Expert as a secret.[19] Of course the Single Expert explained to the mother that such a secret could not be kept by him.

   [19] Single Expert Report of Dr B dated 19/05/2018 par 31

3. The Single Expert also expressed the view, with which the mother disagreed, that the father would know about the get-togethers because the children would have told him.

4. That proved to be the case.

5. There is no harm and potential benefit to the children of such meetings. There is harm if the mother expects the children to keep secrets from the father.

Conclusion

1. Orders are made for the children to live with the father and to spend substantial and significant time with the mother. All periods of time are weekends or block holiday time in order to minimise changeovers and make arrangements clear for the parties and the children.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 June 2019.

Associate: 

Date:  19 June 2019