MATTSON & THEISS
[2019] FCCA 1924
•12 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATTSON & THEISS | [2019] FCCA 1924 |
| Catchwords: FAMILY LAW – Parenting – whether each parent is capable of providing a stable home life – whether mother neglectful and abusive – whether father committed acts of family violence – whether each parent is capable of promoting a meaningful relationship with the other parent – where father unilaterally took children or withheld children on two occasions – where Court subsequently granted father interim orders that children live with him in NSW – where father unilaterally moved with children to Queensland without notice 4 months prior to fixed Hearing date – whether equal shared parental responsibility practical: Held: Children to live with mother in NSW – spend time with father during holidays and regular weekends in Queensland – equal shared parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 65AA, 60CC(2), 60CC(3),61DA |
| Cases cited: Carlson & Fluvium [2012] FamCA 32 |
| Applicant: | MS MATTSON |
| Respondent: | MR THEISS |
| File Number: | WOC 230 of 2016 |
| Judgment of: | Judge Bruce Smith |
| Hearing dates: | 20 September 2018 and 21 September 2018 |
| Date of Last Submission: | 21 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Access Law Group |
| Counsel for the Respondent: | Mr Boncardo |
| Solicitors for the Respondent: | Neil Jones Solicitors |
FINAL ORDERS
All extant Orders be discharged.
That Ms Mattson born … 1982 (“the mother”) and Mr Theiss born … 1969 (“the father”) have equal shared parental responsibility for the children [X] born … 2010 and [Y] born … 2011 (jointly “the children”) in relation to the care, welfare and development and major long term issues including but not limited to:
(a)the child's education (both current and future);
(b)the child's religious and cultural upbringing;
(c)the child's health;
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
That the children live with the mother forthwith and from no later than 5pm Thursday 18 July 2019.
That the children spend time with the father:
(a)For one half of each school holiday period as agreed and in default of agreement, for the first half in odd numbered years and the second half in even numbered years;
(b)For one half of the Christmas school holiday period as agreed and in default of agreement, for the first half in odd numbered years and the second half in even numbered years, and Christmas day shall be spent with the parent who the children are with on that day; and
(c)For two weekends each school terms as agreed, and in default of agreement on the 3rd and 7th weekend of each school term.
That each parent shall have responsibility for the day to day decision making for the children when the children are in their care.
That each parent have liberal electronic communication with the children when they are in the care of the other parent. Preferably both audio and visual. Failing agreement that is to be three times per week for at least 15 minutes with each child on a Monday, Wednesday and Friday between 6:30pm and 7:30pm.
That each child shall have telephone contact with the parent they are not with on the child’s birthday, and on the then non-resident parent’s birthday, as agreed, and failing agreement by telephone for at least 15 minutes between 6:30pm and 7:30pm.
That for the purposes of Order 4 the father may elect to have the children spend time with him on the Region A, to rent accommodation in the Town B area, or in the Sydney area or Town F area including staying with his parents.
That for the purposes of Order 4, if the father elects to have the children spend time with him on the Region A:
(a)When the children are travelling from Town B to the Region A: the mother or her agent shall transport the children to the Region A Airport and the father shall collect the children from the Region A Airport;
(b)When the children are travelling from the Region A to Town B: the father or his agent shall transport the children to Sydney Airport and the mother shall collect the children from the Sydney Airport;
(c)Each party shall pay half of the total air-travel costs of the children and accompanying adult for each trip in respect of Orders 4(a) and 4(b), but shall bear their own expenses of getting to and from their respective local airport.
(d)The father shall pay the entire air-travel costs of the children and accompanying adult for each trip in respect of Order 4(c).
That for the purposes of Order 4:
(a)The father will notify the mother by text one month prior to each occasion where he wishes to spend time with the children.
(b)The father will notify the mother by text one month prior to each occasion whether he wishes the children to spend time with him for the purposes of order 4(c).
(c)If the father elects to have the children spend time with him in Town B, then the mother or her agent will transport the children to the father at the start of time and he will transport the children to the mother at the end of time to an agreed place, or failing agreement the change-over will occur at Town B Train Station.
(d)If the father elects to have the children spend time with him in Sydney or Town F, then the mother or her agent will transport the children to the father at the start of time and he will transport the children to the mother at the end of time to an agreed place, or failing agreement the change-over will occur at Sydney Train Station:
Each parent is restrained from using any prohibited drugs in the presence of the children or for 24 hours before spending time with the children.
Each parent shall keep the other parent informed at all times of the name and address of any treating medical practitioner or other health professional who treats either child and is to authorise each treating medical practitioner and health professional treating the child to provide the other parent with all information that they are lawfully able to provide about the child.
Each parent shall inform the other parent as soon as it is reasonably practical if the child is hospitalised at any time or is required to attend with a medical professional to seek emergency medical treatment.
The mother shall keep the father informed at all times of the names and addresses and contact details of each educational institution the children attend, and each parent is authorised by this Order to receive directly from the child's places of education a copy of all reports for the child, photos for the child (at the cost of the parent requesting the photos), newsletters and other documents or information normally provided to parents.
Each parent may attend school functions normally attended by parents and the father shall provide 2 days clear notice to the mother of his intention to attend any such function.
Each parent is restrained by injunction from denigrating, belittling, and/or insulting the other parent, or a person with whom the other parent is in a domestic relationship, or any members of the other parent's family, in the presence or hearing of either child.
That until further order, each party, Ms Mattson born … 1982 and Mr Theiss born … 1969, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Children, [X] born … 2010 (female) and [Y] born … 2011 (female), from the Commonwealth of Australia until further order of this Court;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said Children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watchlist until the Court orders its removal.
IT IS NOTED that publication of this judgment under the pseudonym Mattson & Theiss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 230 of 2016
| MS MATTSON |
Applicant
And
| MR THEISS |
Respondent
REASONS FOR JUDGMENT
A: Introduction and overview
These are parenting proceedings in respect of [X] (“[X]”) aged 9 and [Y] (‘[Y]”) aged 7 (“the children”).
At separation in 2013 the family lived in Town B. Post separation the children initially lived with the applicant, Ms Mattson (“the mother”), in Town B. The mother still lives there.
They lived with the respondent, Mr Theiss (“the father”), in Town F from early 2017. They currently live with the father on the Region A, where he unilaterally moved with them 4 months before the Hearing.
The father’s case is that the mother has very poor parenting skills amounting to neglect, and verbally abused and hit the children. In contrast he said his “parenting of the children has been without fault”. On that basis his case is that the children should live with him, and spend half school holidays and some weekend time with the mother, with equal shared parental responsibility. He says that he will promote the children’s relationship with the mother.
The mother’s case is that she is a competent mother. She accepts the father is a highly capable parent. Indeed, she advised the Family Consultant that prior to the father unilaterally moving the children away to the Region A she was considering agreeing to them living with him, in part because of the stability he had provided them.
However, her case was that the father has a very poor opinion of her and therefore has not facilitated and will not facilitate, much less promote, a meaningful relationship between the children and the mother. On the other hand her case is that when the children were living with her she did, and in future will continue to, promote their relationship with him. On that basis she submitted the children should now return to her. She seeks sole parental responsibility due to the practical communication difficulties in exercising shared parental responsibility given the father’s poor opinion of her.
For reasons set out in below, I find that whilst the father may provide a more orderly, structured and stable environment, both parents are sufficiently competent and able to provide a safe and satisfactory environment for the children.
I find that the father’s very poor opinion of the mother has caused him to seek to limit the children’s time with and communication with the mother when they have been living with him, and that if the children continue to live with the father the likelihood is that this conduct would continue so that the children are unlikely to have a meaningful relationship with the mother, whereas the mother has shown she will promote the children’s relationship with the father despite their differences so that if they live with her they are likely to have a meaningful relationship with both parents. The importance of this primary factor meant that none of the additional factors played a sufficient to play a role in the decision.
On that basis I find that the children’s best interests require them to return to live with the mother, and to spend half school holidays and some weekend time with the father, and to communicate with the father on a regular basis.
The Court’s expert strongly expressed opinion was that, despite the difficulties the parties have had with communication, the protective benefits of equal shared parental responsibility were important for the children in this matter. I agree with that view and find that there should be equal shared parental responsibility.
B: The parties and other people
i. The mother and her extended family
The mother is 37. She is employed as a tradesperson from 6am to 5pm Monday to Friday earning approximately $1,000 or sometimes more per week. She leases a house in the Town B area at $500 per week.
The mother lives with two of her three children from a previous relationship. Mr K aged 18 and [L] aged 17 (“the half-brothers”). The half-brothers have no contact with their father. The half-brothers are both working approximately 25 hours per week as training customer service officers.
The third of the mother’s children from a previous relationship is [M] aged 14. [M] now lives in the Region G with her father. It is not clear from the evidence precisely when [M] moved, but it was in or after 2016. [M] spends time with the mother on a flexible basis, primarily during holidays and on some weekends because of the distance from the Region G. Mr K, [L] and [M] are the children’s half-siblings (“the half-siblings”). The children have good relationships with the half-siblings.
The maternal grandfather and the maternal grandmother and the maternal stepfather have all been involved in the children’s lives and the children have good relationships with them.
ii. The father and his extended family and friend
The father is 49. He currently lives on the Region A in rented accommodation with the children. At the time of Hearing he was not employed having recently moved to the Region A with the girls from Town F after the sale of the business which he operated, and on some evidence owned, with the paternal grandparents. At the date of Hearing he was planning to study an online course from home but had not started the course. The paternal grandparents had been involved in the children’s lives.
Ms H is a friend and former employee of the father and paternal grandparents. She lives with her husband and children near the father on the Region A, having moved there not long prior to the father.
iii. Geographical locations and travel times
At the date of the Hearing: the mother lived in the Town B area with Mr K and [L]; [M] lived in the Region G with her father; the father and the children lived on the Region A; the maternal grandfather lived in Town N (west of Town O) and the maternal grandmother and stepfather lived near Town P in western Sydney. The paternal grandmother lived primarily in Town F, and the paternal grandfather primarily in Suburb Q with visits to Town F. Ms H and her family lived on the Region A.
There was varying evidence about travel times. That included evidence that travel times from Town B were; by car 5 to 6 hours to Town F and by public transport 7 to 8 hours to Town F; by car 2 ½ hours to Town N; by car about an hour to Sydney airport plus an hour air travel time to the Region A plus an hour at other end to reach the father’s home or 3 hours. It was agreed that it would take less time to get to the Region A than to Town F. There was also evidence that by car from Town N to Town F was from 1 to 2 hours.
A complicating factor for travel has been that the mother does not drive and did not and does not have a car for someone else to drive, and nor does the maternal grandmother drive.
C: Witnesses and evidence
Affidavits and/or Reports as evidence in chief were received from the mother, the father, the Court’s expert family consultant Ms J, and Ms H. Oral evidence in cross examination was taken from the mother, the father and Ms J. Ms H was not required for cross examination.
The parties also tendered documents, primarily from subpoenas.
In some cases I set out the factual findings when dealing with the evidence on a topic, in other cases I deal with the findings at the end. However, even when I deal with findings sequentially I note that I have considered all of the factual disputes and findings as a whole before making any given finding.
D: Co-habitation till separation in October 2013
The mother’s evidence was that the relationship commenced in 2005 and that co-habitation started within 2 to 3 months. The father’s evidence was that the relationship commenced in 2008 and cohabitation commenced in … 2008 and included the half-siblings. Nothing was said about this substantial discrepancy so I make no finding on this issue.
Both parties evidence as to the family’s residential and work histories prior to separation lacked significant detail.
In brief it appears the family lived in Town F in 2009 to 2010 when the mother was pregnant with [X]. The father worked with the paternal grandparents at the business. The parties moved to Town D, just south of Town B, in late 2010 or 2011. The mother was pregnant with [Y]. They may still have been there when [Y] was born on … 2011.
The parties moved to Town B where they lived until they finally separated in September-October 2013. The father then moved to his parents’ house in Sydney for about a month and then moved back to Town F to work in the business. The mother stayed in the Town B area.
The parties agreed the mother was the primary carer for the children from birth till December 2016.
The only factual issues raised in this period were: whether the father committed acts of family violence; the nature and extent of his cannabis and alcohol use; the mother’s parenting capacity. These are dealt with below.
E: Father’s parenting capacity
i. Family violence and cannabis and alcohol use - mother’s evidence
The mother’s evidence was that there was family violence directed at her throughout the relationship, including physical assaults, verbal abuse and controlling behaviour and that the constant family violence was the main reason they separated. The mother did not allege any family violence specifically directed at the children by the father, however, they may have been subjected to it as witnesses or in utero.
There were a range of specific allegations. She said that when pregnant with [X] the father stopped her from working, meaning that she was living a socially isolated life in Town F, called her names on a daily basis, said things such as “you look disgusting”, and committed physical assaults against her such as grabbing handfuls of her hair and on one occasion by pushing her out of bed whilst pregnant because she had turned on the light and woke him up.
Around 2011, while pregnant with [Y] and living in Town D, she worked night shifts at a local business as the father was unemployed. The father did not like having to care for [X] during the night and he “slapped my face, and pushed me, and I fell down 6 to 8 steps” and she “suffered from bruising and grazing to [her] body and a red slap mark on [her] face”. She resigned from her job that night as she could not work at the business as it made the father angry.
The mother filed a Notice of Risk on 10 March 2016 with her Initiating Application. The Notice of Risk included some, but not all, of the allegations set out in her Trial Affidavit. It also raised allegations of risk because of the father’s alleged history of being a heavy cannabis user. Her evidence in chief was also that he would spend $30-$50 per day on cannabis.
She was cross examined on the Notice of Risk. It was put to her that the reason all of the incidents recorded in her affidavit were not particularised in that document were that they were made up.
The mother’s evidence was that she did not put every incident in due to the urgency of the filing and the length that would have made the document.
It is relevant to note here that the mother filed her Initiating Application with her Notice of Risk on 10 March 2016 seeking, inter alia, orders for the return of the children who the father had not returned after removing them from the mother without notice on 3 March 2016, which is discussed further below.
It was put to the mother that her failure to report the alleged incidents to police was also evidence of subsequent fabrication on the basis that if they were serious incidents then she would have reported that they had happened. Her evidence was that on one occasion she was too scared and generally that in terms of reporting to the police “Not everybody does, no.” In response to the suggestion that she was fabricating the allegations she said “No. I would have tried a lot harder if I was making it up.”
ii. Family violence - father’s evidence
The father’s evidence was that he denied that he had “ever slapped, pushed, hit or grabbed [the mother’s] hair”. He denied the specific events as alleged. He said that they had had fights but there was no violence and that he would never call her names. His evidence was that they “separated because [the mother] kept going out and leaving [him] with the children.” He gave an example where he said the mother lied to him about where she was going. In effect he could not cope with what he saw as the mother’s disorganised and disruptive approach to life which lacked both structure and routine, which is also the complaint he makes about her parenting capacity.
The father told the expert that he “has not consumed cannabis for approximately five years and that his drinking was only problematic for a short period during the relationship with the mother when he was unhappy and “depressed””. He accepted the allegations of drug use, but not that it was as problematic as the mother alleged or a current problem.
In oral evidence the father consistently denied any acts of violence, whether physical, by way of verbal abuse or through controlling behaviour.
iii. Evidence of father’s police history
In support of her allegations of family violence the mother gave evidence that she became aware of subsequent incidents of violence the father had been involved in when in Town F in 2016. This evidence was also said to go to the mother’s concerns about the children being exposed to conflict when in the father’s care. The evidence was limited to documents provided on subpoena by NSW Police.
In oral evidence the father said that he was being bullied by a man who kept parking in front of his business. They had a dispute. The other person went into a rage and then got back into his car. The father kneed the man’s car door. He went to the police station and made a full admission. He was given a section 10A. The other person was also charged with assaulting him. Mutual AVOs were put in place. The father described these events as the “most stupid thing that I ever did”. His description is not inconsistent with the documentary evidence.
iv. Father’s view of his own parenting capacity
In the father’s written submissions the statement was made that “The father’s parenting of the children has been without fault”. In re-examination the father explained his understanding of the concept as being “it’s about being a parent-it’s about being a parent to your kids, caring and without fault to your kids”.
The father agreed, at the start of cross examination, that this written submission represented his own view of his parenting. Counsel for the mother returned to this proposition a number of times throughout cross examination, and on each occasion the father confirmed that it remained his position that his parenting had been without fault.
He maintained that position even in the context of having just admitted that he regretted the decision not to allow the children to see their mother for half of the April 2017 school-holidays because they were looking forward to a birthday party, considered further below.
I find that this evidence reflected the father’s genuine overall view of his parenting, and was not a mere refusal to make a concession in cross examination. Even in the context of having admitted to regretting a clearly wrong decision, his perception of himself was that he was without fault as a parent.
I find that the father’s view of himself as a parent without (or almost without) fault, compared with his view of the mother’s parenting as disorganised and disruptive, considered below, is likely to be the motivating factor behind the father’s conduct with regards to the children considered below.
v. Mother’s view of father’s parenting capacity
The expert noted that the mother “acknowledged that [the father] has a good relationship with the girls and provides financially for them” and that she “said she does not believe that [the father] would deliberately harm the children but has concerns that they may be exposed to negative situations with him”, referring to the police material set out above.
To her credit and with a clear child focus, despite all of her concerns, at the interviews for the Family Report in May 2018 the mother told the expert that prior to the interviews she had:
“weighed up agreeing for the girls to remain with their father in Town F, given that they have been settled in school there and been residing in that geographical area for some time.”
She changed her mind because the father had moved the children to the Region A without notice in the days before the Family Report interviews.
The mother’s evidence, which was also effectively her submission, was that:
I am concerned that Mr Theiss does not have any respect for my role as the children’s mother. Mr Theiss’s unilateral decision to move to Queensland without consultation shows that he thinks long term decisions for the children can be made without my consultation or input. I am concerned about the impact on the children of the relocation to Queensland and their ability to continue a close relationship with me, their brothers and my extended family. I am concerned that Mr Theiss’s reasons for relocating to Queensland are not child focused, nor in the best interest of the children.
I am concerned that, if the girls are to continue to reside with their father, that he will withhold them from spending time with myself and other family members. The father has had a history of doing so in these proceedings in the past. I am concerned that Mr Theiss does not respect my role as a mother and has not and does not actively promote a relationship with the girls. If the girls were to live primarily with Mr Theiss, I am concerned he would not promote the girls spending time with me in person or by telephone.
vi. Expert’s comments
The expert said of the father in oral evidence:
“I think he’s a very conscientious parent. My impression was he’s very motivated. I mean, the – the mother even in her interview with me spoke about his strengths and – and what he brings to – to parenting. So I think he’s very motivated. He provides for the children. ...”
The expert considered the father’s criminal history including Stealing, Drive with suspended license, Destroy Damage property and Contravene AVO, as well as an interim AVO in place from … 2017 to … 2018 in respect of which the father was both a protected party and defendant. The expert did not appear to place any weight on this material in the context of the father’s parenting capacity or risk to the children.
The expert stated in oral evidence that if the mother’s account of the family violence is accepted it was a situation where there was a power differential and the father had “a low frustration-tolerance” and there “would be questions about his capacity to manage frustration”, however, she confirmed that the children never referred to any family violence during the conversations with her.
In response to a question about what it would say about the mother if she had fabricated allegations of family violence the expert said:
“I think parents’ perceptions of – of situations can differ. So – so I think one parent’s experience of a situation can be different to – to another person’s recollection or experience in that – in that time. So I suppose I would be cautious about them having completely fabricated or whether it was their – whether it was their perspective differed or whether there was – whether that was the case. If the court found that there was a deliberate making up of – of a situation that that person invented and didn’t – didn’t experience and it was a tactical thing, then, certainly, that would raise concerns about that person’s ability to – what their motivation was in terms of valuing the other parent, yes. But I would be cautious about – about whether a parent – how often that
happens that someone completely fabricates a situation or whether it’s a – a context of them coming at – at it from a different perspective or their experience being different to – to the other person or a situation being – yes…”
vii. Family violence - finding
The mother’s evidence in chief on the question of family violence was, unlike much of the evidence, reasonably specific.
I am not satisfied that failing to identify every incident of subsequently alleged family violence in the Notice of Risk was evidence of subsequent fabrication. Nor am I persuaded that the mother’s failure to report family violence at the time is inconsistent with it having occurred nor evidence of fabrication. Family violence is often a complex factual issue.
Many victims of family violence are, by reason of the violence, too scared to report it. Some are worried about the social stigma associated with being a victim. Others are hopeful that things will improve and that the relationship and family unit will survive, and yet others are worried about the risk of homelessness and poverty. Other are just overwhelmed and paralysed into inaction.
Having said that, in the absence of any contemporaneous report or potentially corroborative evidence of physical injury from, for example, a treating doctor or hospital records (whatever explanation was given for the injuries at the time), or of any witnesses including neighbours, and as the young children did not report it to the expert, it is a difficult issue to determine since the Court is left with “he said” and “she said” evidence in high conflict litigation. That dispute would fall to be determined on the civil standard, however, taking into account the significant gravity of the conduct alleged.
In this case, given the view I have formed as to parental responsibility (discussed further below) giving weight to the expert’s opinion, and given the fact that the mother did not submit that the children were at an unacceptable risk from or should not spend unsupervised time with the father, and noting that a Trial Judge is not required to decide issues of fact that are not necessary to determine the outcome, and in particular given in Family Law proceedings unlike in other litigation these parties will need to maintain a civil working relationship for the next decade or more, I have in mind the oft cited words of Kent J at [168] in Carlson & Fluvium [2012] FamCA 32 that:
“...These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.”
Accordingly, as the issue does not need to be determined, it seems preferable to me in this context that I should make no findings on this issue.
F: Mother’s parenting capacity
i. Neglect and abuse - father’s evidence
The father’s oral evidence was that the mother “doesn’t like kids” and “lacked affection and nurturing with the children” and that the children were at risk of physical assault and serious psychological harm or abuse from the mother, as well as from the maternal grandmother on the basis that she is an alcoholic.
He said that he did want the children to have a healthy relationship with the mother but he did “not feel confident” because of the risk of abuse. He said that “My main concern is that – you know – just getting physically abuse – if – if my girls weren’t doing the right thing by her.”
[X] told the expert that “when she was living with her mother [the mother] would yell and become angry at times.” The father in oral evidence, when asked about the above disclosure, said that the mother “would yell and become angry at times”. He said “there’s yelling and there is discipline. Now, this was just out-of-hand yelling.”
The father described the mother as engaging in “disruptive parenting”. He said that he did not think his parenting had been “in any way disruptive” for the children. By way of contrast the father said, in the context of being asked whether he never yelled at the children “No. There is no need to. …Never … Discipline, yes, but not – never yell.”
While the father described yelling and verbal abuse and disruptive, disorganised, unstructured and what would amount to neglectful parenting, he did not in his affidavit or oral evidence give any direct evidence of witnessing, or having reports of, physical abuse of the children by anyone. However, he did rely on evidence of physical abuse between Mr K and the mother and the mother and [M].
ii. Family and Community Services Records
The father relied upon records produced on subpoena by The Department of Family And Community Services (FACS) to support his claims of neglect and abuse.
A mandatory report was made in July 2016 around inadequate nutrition as the children attended school saying they had not had any breakfast and on 2 occasions no lunch was provided. The mother denied that had occurred. She said that [X] liked food and would eat breakfast and eat her lunch on the way to school.
It was recorded that the school had tried to contact the mother on numerous occasions over an 8 week period without success and without a call back from the mother.
Concerns were also raised that the children were being left in the care of their, then 15 year old, half-brother Mr K for long periods of time on the weekends. On 9 June 2016 there was a report that [X] had turned up to school with a lump on her head as she “had fallen over after mother had gone to work.”
Another complaint was made, apparently by [M], in 2016 when she was then 11, that the mother and Mr K had “big fights” that scared her; that the mother went out at night and came home “really early in the morning” or sometimes just in time to get them ready for school; and that dinner most nights was 2 minute noodles and that her lunch was a sandwich she made for herself. She complained that the mother swore and yelled at her and told her she [the mother] hated [M] and her brothers and sisters and that the mother hit her.
That report also referred to a record on 19 August 2014 which was screened out due to a lack of detail but which raised concerns about whether the children, then aged 1 and 2, were being left alone without an adult present while the mother worked.
[M] now lives with her father. She did not participate in the Family Report or proceedings.
The father’s evidence was that post separation the mother called on numerous occasions to say “Mr K punched me” or “Mr K hit me”. However, he accepted in oral evidence that to the best of his knowledge there had been no altercations between the mother and Mr K since he was about 14.
It was put to the mother that she would allow Mr K and [L] to care for the children when she was out socialising. She denied she was out socialising at night leaving the children in Mr K and [L]’s care and only coming home early in the morning.
She said she would not say she was “snapping” but conceded she could find parenting stressful and get angry at the children but “no more so than any mother”.
Her evidence was also that when Mr K was being bullied and was 14 or 15 there was a difficult time but she did not accept they were shouting. The mother denied that Mr K was showing signs of sexualised behaviour towards the children, and said that no action was taken by FACS.
The expert recorded that the half-brothers advised they would help by “assisting with [the children’s] care if their mother was working or out socially” and that the mother “is strict at times but consider that she is appropriate in her parenting style, stating that occasionally become stressed and snaps at the children, which Mr K suggested was typical of parents.”
iii. Father’s view of the mother’s parenting capacity
The father was asked, “Can you say anything positive about [the mother] as a mother to your children, other than the fact that she is the mother of your children?”
The father, after some time, was unable to identify any positive thing about the mother. He said instead that “Whatever my beliefs are about [the mother], all right, it has got no impact, or no influence, to my kids.” He also said that he wanted the children “to find out … later in life what [the mother] is all about…… That’s entirely at my kids. I’m not going to point out, and I don’t want to.”
The inability to identify anything positive about the mother confirmed his very negative view of the mother.
This evidence also indicated the father’s failure to either consider or understand how attuned children are to the feelings of the adults who care for them. The idea that he could hold the mother in such low esteem and that this would not be communicated to the children, and that they would later form their own unprejudiced views, was either very naïve or wilfully blind. For present purposes it does not matter which.
iv. Expert’s comments
The expert report noted the father’s concerns that the mother: “lacks structure and routine while he is motivated to ensure opportunity for the children, giving an example of organising private education for the girls”, and, “that he struggled with [the mother’s] lack of order and routine and said that there was conflict at times about this”, and that he, “described himself as a “neat freak” and said he did not agree with the way [the mother] organised the household, giving an example of washing being unfolded and unsorted”, and his beliefs about their “different values and approaches to parenting”.
The expert in her report stated her understanding that: “[n]either parent has raised any significant child protection concerns”.
The father in oral evidence stated that he did not agree with that statement. He said that the issues he had raised meant the children were at risk if in the mother’s care.
The expert summarised her understanding of the father’s view of the mother in oral evidence as follows:
“there was a sense that – from his perspective, that life was fairly chaotic with the mother, in the sense that – financially, in that she would incur debts or be irresponsible with her spending and things, that she would go out, leave the children with the older children to care for and wasn’t – didn’t have much forethought or fore-planning, in terms of things that might come up - in life.”
G: Expert’s opinion on parental capacity
The experts conclusion about parental capacity in her report, excluding the capacity to foster a meaningful relationship with the other parent, was that:
Both parents, despite their misgivings about the other, appear to be good enough parents who are able to attend to, support and care for their children. They both appear motivated to ensure that the children are happy and well cared for, and in each household there do not appear to be significant child protection concerns.
Her opinion on this issue did not change substantially in oral evidence.
H: October 2013 to 3 March 2016: Post separation
The mother continued to live in the Town B-Town D area with the children and their half-siblings and the father lived in Town F and worked in the business.
i. Father’s time with children
The mother’s evidence in chief was that they agreed that the children would live with her and spend time with the father in school holidays but that following separation the father spent minimal time with the children. The mother claimed that she offered the father time with the children on weekends and Father’s Day to promote a meaningful relationship between them, but that he did not liaise with her to arrange this.
The father said, to the contrary, that the children in fact “spent most of the school holidays” with him. He said that the children were with him for 8 weeks between December 2015 and the end of January 2016, and that he offered to the mother to drop them home before school started but was told that he could “just keep them and drop them to school”.
The father alleges that the mother restricted his telephone contact with the children, and “would often demand money be deposited into her bank account before she would let me speak to the girls”.
ii. Child Support and financial support
The mother’s evidence was that during this period she received child support when working “only when [she] asked”. Eventually she sought a child support assessment and she received child support, although she said it was based “on false income”.
The father agreed in oral evidence that his assessed child support for the two children was $7.65 per week for the period 28 December 2014 to 30 October 2015. The Court was not informed what stated income this was based upon.
The father’s evidence was that the parties had a private arrangement for child support when the children were living with the mother, and that he remained willing to pay more money to help her care for the children and to cover school fees at Town D School and the Learning Centre.
The evidence establishes that child support payments were made by the father to the mother whilst the children were with her and it appears he was subsequently paying something in the vicinity of $30 per fortnight. The father also provided other intermittent financial support to the mother at different times in response to her requests.
Absent other financial information there is insufficient evidence to allow any finding as whether or not there was a full declaration of income by the father or under-reporting as alleged by the mother. As the mother bears the evidentiary onus and absent such evidence there is no basis on which to find that the father did not pay child support and comply with his obligations to support the children when they were in the mother’s care.
The mother agreed that she did not offer any financial assistance to the father in transporting the children from Town F to Town B to see her as she said the father agreed it would be at his cost after he moved away.
As at August 2018 the parties were still in dispute over child support. There was not sufficient evidence before the Court to make any findings about that issue.
I: 3 March 2016: Father unilaterally removes children
The mother was living in a four bedroom rental property in the Town D area with the children, who were then 4 and 5 years old, and the three half-siblings. There were a number of problems with the property and she decided to move.
In early March 2016 she arranged to move to a three-bedroom house. The father helped with the move and slept on the couch. The father asked to stay an extra night to take the children and [M] to school. The children were attending Town D School, with [Y] in prep school for two days per week and also attending Learning Centre three days per week.
i. Mother’s evidence
The mother said that she discovered that the father had dropped the children at school and then picked them up an hour later, and driven to Town F. She then had no contact with the children for over a week as the father would not answer her telephone calls, text messages and emails. The father attempted to cancel the children’s enrolment at Town D School and sought their documents from that school and tried to enrol them into Town F School and “Learning Ladder” at Town F without her consent.
She then had a telephone call with the father in which he said words to the effect of “I have taken the children. They are with me in Town F… Don’t get angry. They are better here.” The mother said that she replied “what about school?” and that the father then said “I will take care of school”.
The mother also said that as a result of this [X] missed a specialist appointment on 10 March 2016 with her paediatric ophthalmologist, who she had been seeing since she was twelve months old, regarding potential eye surgery. She said that, when contacted about this, the father stated “I sought a second opinion from an Optometrist. They reckon surgery is too drastic so will try glasses and see how that goes. I have postponed her appointment.”
He would not return the children. The mother commenced these proceedings to recover them.
ii. Father’s evidence
The father’s evidence in chief was that when he went to help the mother move “the house was in a shambles” and the mother kept saying to the children “fuck off, go to your room”. He “witnessed [the mother] become increasingly angry towards the children” and “arguing and abusing her older children.” She said she “might as well give [the children] to foster care”. He tried to calm the mother down but she “turned on [him]” so he just “tried to keep [Y] and [X] away from [the mother].”
He paid for a storage shed for a month in advance and paid the rental to move everything and rented and paid for a holiday house for the mother and the children for two weeks.
His oral evidence about the house was that “there was kitty litter everywhere… It was disgusting… And is nothing packed…”
He said the maternal grandmother had come to the house and taken a beer from the fridge. This was relevant, he said, because the maternal grandmother was an alcoholic and that in safety terms “Well, if she’s going to leave the girls with her mother – right – I don’t want –because I know her mother is a drunk and she – so she’s an alcoholic.”
On 3 March 2016 the mother again said to him that she “might as well put [the children] in foster care”. He offered to take them “for a few weeks until [she got] settled”.
In oral evidence the father agreed that he did not give the mother any notice that he was taking the children to Town F. He said that he was only going to take the children until the mother got settled into her house. Although he accepted that he did try to enrol them in school in Town F as it became clear it was going to be for more than one week.
His evidence in chief had been that:
I did not intend to keep the children with me but as I was leaving I realised it was such a bad place for the girls and did not want them to go back to their mum.
The father said that when driving back to Town F he stopped at a police station and was advised that he was “as much a parent as [the mother]” and to “take [the children] out of environment”. In oral evidence he said this was to confirm that as their father he would not get in trouble taking children who were living with their mother.
The father said that he had a solicitor drafting an Application for the children to live with him when he received the mother’s Initiating Application including for a recovery order to return the children.
iii. Finding
The father took the children, then 4 and 5 years old, who had always lived with the mother as primary carer without notice to her or her agreement, and “realised it was such a bad place for the girls and did not want them to go back to their mum.”
I accept that this was an accurate statement of the father’s intentions and beliefs at that time. He may not have intended to keep the children as he took them, but he formed that intention very shortly thereafter.
I find that he did this because of his very poor opinion of the mother and her parental capacity and that it was his genuine belief that the children would be better off living with him.
I find that his decision to take the children unilaterally without notice and then to keep them is evidence of just how poor his opinion of the mother was.
J: 17 March 2016 Recovery Order – December 2016
The matter came before a Judge of this Court on 17 March 2016. Interim Orders were made that the children live with the mother, and were to be returned to her by 3pm that afternoon, spend half of the then school holidays with the father, with the father to pick up and return the children from the mother’s residence. The parents were given liberty to communicate with the children when they were in the care of the other parent but no more than once a day.
Note C to those orders read:
The father has provided an undertaking that he will not again remove or take possession of the children from their school or from their mother other than in agreement with her.
Consequential orders were made for the service of documents and for the parties to attend a Child Dispute Conference on 30 May 2016 with the matter adjourned for interim hearing on 3 June 2016 at which time consent orders were entered into.
The children continued to live with the mother in Town B until December 2016.
K: December 2016 – March 2017: Children live with father
i. Mother’s evidence
The mother’s evidence was as follows: She had been employed on a fixed term contract. Her weekly income was exhausted by outgoings for herself and the children. In about … 2016 she was made redundant when her contract was not renewed. She could not afford her rent and moved with the children and the half-brothers to live with a friend who owned a 3 bedroom townhouse. In summary she was unemployed and living in someone else’s house with six other people.
Approximately one week after the school holidays started she had a telephone conversation with the father about her financial difficulties. The father allegedly said:
I can help out for a few weeks because we are going away anyway and I can take the girls and they can come up to Town F.
The mother says that the agreement was that the children would live with the father in Town F until she could secure alternate accommodation and full-time work.
After discussions about the children staying in Town F for Christmas, the father was then said to have confirmed:
I’ll make sure that when the girls are with me they stay in regular telephone contact with you and that we’ll get them home after Christmas so that they can be with you.
On 7 January 2017 the mother, father, children and 3 half-siblings all attended a theme park in Sydney. The father paid for the tickets.
The week before the 2017 school term started the father drove the children to Town B, and they discussed the children remaining in Town F until the mother was able to secure accommodation.
The father said to her that he was “happy for the girls to come and stay with [him]” until the mother was able to get “back on [her] feet”. Her evidence was that she said:
I need them to understand that this is only temporary, and that they won’t be staying with you forever. It is just until I can get somewhere which is more comfortable for us to live and I can get some work, and then we should be okay.
To this, the father was said to have replied:
No problem. We will sort something out and I will make sure that the girls talk with you.
While the children were in Town F she says that she tried to speak with him every day, but that the father would either not answer the telephone or tell her that he was not with the children. Consequently she only spoke to the children once a week, and for short periods of time as the father would terminate the calls. Her evidence was that the children had iPads and that the intention was that they would be able to FaceTime her whilst they were in Town F, but that this did not happen as (the children told her) they were told by the father they were not allowed to play with their iPads during the week.
In February 2017 she was advised by Centrelink that the father had contacted Centrelink to cancel her parenting payments and that he had made an application for a child support assessment.
In March 2017 the mother was approved for a new property in Town B. As she was short of bond money she asked the father for assistance and he agreed to provide it.
The mother gave evidence that she continued to agree to the children living with the father in Town F during February and March 2017 while she was obtaining suitable employment as this was in their best interests at that time given her circumstances.
The mother saw the children on 20 March 2017 at a medical appointment for [X] with the ophthalmic surgeon in Sydney. The father would not allow the children to have afternoon tea with the mother following the appointment and immediately left with them.
Her evidence was that she was unaware of the issues in the ongoing Court proceedings, detailed further below.
The mother said that the father’s restriction of communications during this period and his actions on 20 March 2017 was evidence of the father’s continued view that the children were better off not having contact with her, and that if the children live with the father he will not facilitate a relationship with her.
ii. Father’s evidence
The father’s evidence about this period was as follows: On … 2017 the mother said she had “got a job with the [R]” and asked if the children could stay with him for a period.
When he drove the children back to the mother’s house in Town B on … 2017 the mother said to him “I can’t take [the children] back. I can’t afford them.” and “I don’t have a house to live in. There are 6 people living in a 2 bedroom apartment” to which he replied “I can take the girls back to Town F and enrol them at a school”. He said the mother agreed to this.
In cross-examination he denied that the mother only said to him words to the effect that the children should stay with him until she found secure accommodation and got back on her feet.
The father maintained that his honest belief was that the mother was agreeing to the children living with him indefinitely, and not merely until she re-established herself.
He enrolled the children in Town E Primary School from 31 January 2017. The children settled in well, made good stable friends and attended hobby classes.
On 8 February 2017 he had a discussion with the mother after she wrote him a text about him advising the Child Support Agency that the children were now living with him. In this conversation he said that the mother was “very abusive, screaming at [him] over the phone. All she seemed concerned about was not receiving her money and she was saying “I want my fucking kids. I want my money””. The father deposited $2,000 in her bank account to help her out. The father’s oral evidence was to the effect that the mother was primarily interested in the money. “She was happy to take the money for at least a month or two and-and before she started complaining about more money.”
The father said that on 20 March 2017 [X] had an appointment in Suburb S, and that he let the mother know and brought both children to Sydney so they could see her. He did not address the mother’s complaint that he would not let them spend additional time with him.
L: April - June 2017: Children continue living with father:
The children continued living with the father in Town F in this period. There is a dispute as to whether or not the mother agreed to that.
The matter had been proceeding in Court without the mother taking an active part. The mother’s evidence was that the father said words to the effect of “we don’t need solicitors to decide what we are going to do”. She said that she was not aware the matter was listed before the Court on 24 March 2017 as she had not been in contact with her former lawyers. She eventually became aware the matter was proceeding in May 2017.
i. April 2017 - school holidays
An agreement was reached through text messages that the children would stay with the mother during the second half of the school holidays, as she had moved into a new rental property and settled in. There was room for the children. The mother considered this to be a suitable property in which to live so that the children could return to her for the holidays, and then go back to their old school.
The last day of school was 7 April and the first day of the new term on 26 April.
The father did not return the children for the holidays. The father notified the mother by text that the children did not return to Town B because the children had a party to attend in Town F on 15 April 2017.
The father initially stated in oral evidence he did not know why no other arrangements were made for the children to spend time with the mother and later said that “the girls really wanted to go (sic) this party. They really wanted to.” He acknowledged that he knew “it’s very important to see the mother as well” and that he did regret this decision. It was in the context, as well as others, that he confirmed his parenting was without fault.
No reason was given in evidence or submissions as to either why attending a party was more important than the children spending time with the mother, nor why the children could not have gone to Town B the day after the party and spent the remainder of the holidays from 16 to 25 April with the mother.
The father did not make any arrangements until May 2017 for the children to have any in-person contact with the mother, a period of well over three months.
The Mother points to these as examples of the very low priority placed by the father on their relationship with the mother and his unwillingness to foster a meaningful relationship between them.
I find that the father’s decision to prioritise a birthday party over time with the mother, who the children had not seen in months, and the decision to use this one part day event as an excuse to not let them have any time at all with the mother despite there being another 10 days of the holidays available, is evidence of the father’s view that not only should the children live with him but that they should not spend time with or have a relationship with the mother.
ii. … 2017 - [X]’s eye surgery
The mother’s evidence was that she was notified on the afternoon of … 2017 that [X] had eye surgery in Sydney the following day and was not able to get time off work to attend. It was not put to her that this was not the case.
The father’s evidence in chief on this issue was that “I let [the mother] know when the operation was going to be so that she could come to the hospital. The mother did not attend though she texted me about the operation”. The father did not specify in chief when he let her know, despite it clearly being a fact in issue.
The father’s oral evidence was that the operation had been organised for a later date and that he had told the mother of that later date, but that he then got notice of the cancellation which brought the date forward. He says he “probably” got notified the day he let the mother know.
There is no evidence of when the father was notified of the appointment date and in those circumstances no findings can be made on this issue.
iii. 21 May 2017 – mother’s time with children
The mother’s evidence about this day was that she and the father arranged for the children to spend time with her on 21 May 2017 from 11am until the father picked them up again, which occurred at 1:40pm.
She said that when the children arrived they had not eaten breakfast and were both hungry, but were well dressed and their hair was braided, but, she saw lice in [Y]’s hair and spent the time removing lice from the children’s hair. The mother said that she did not think having lice was serious, as children get them “all the time” but the fact they were not treated suggested they were not being “cleansed properly”. She denied fabricating this evidence.
Apart from establishing the length of time for which the children had not seen the mother this evidence does not assist in establishing any fact in issue.
M: 1 June 2017 Interim Orders - children to live with father
On 29 May 2017 there was a contested interim hearing in which the mother sought to have the children returned to her full-time care.
Interim orders were made on 1 June 2017 that the children live with the father, and spend time with the mother one half of each school holidays, and the third and seventh weekend of each school term.
The Judgment was, as this Court’s workload requires, an oral decision extempore.
N: Did the mother agree for the children to live permanently with the father from January 2017?
The father says that the mother agreed that the children should live with him and then changed her mind. The mother denies that.
The fact that the father brought the children back on 22 January 2017 is consistent with the mother’s version of events that they were originally to spend holiday time only with the father.
It is also more consistent, in my view, with the mother’s evidence that when she agreed to the children going with the father for a further period on 25 January 2017 she intended, and the parties had agreed, that the children would only continue to live with the father until she was able to provide stable accommodation for them again.
The father’s evidence requires a finding that the mother had fundamentally changed her position that the children should live with her, which had caused her to seek a recovery of the children resulting in the Orders of 17 March 2016.
Whilst I take into account that the mother in May 2018 indicated that at that time she was considering agreeing to the children living permanently with the father, which might support the father’s submission that the mother’s view had been changeable, on balance given the events up to that time and the fact that the mother again sought the return of the children in June 2017, I prefer the mother’s version of events in respect of the agreement between the parties on about 25 January 2017 over the father’s.
I find that the father kept the children unilaterally and despite being aware that this was not what the mother agreed to. He did this because of his continuing belief that she was a poor mother and that they were better off living with him.
I find that the failure to facilitate the children spending half of the school holidays with the mother because of a party, which would not have in any event stopped them spending half of the school holidays with her, occurred because of the father’s belief that spending even limited time with the mother would be bad for the children.
I find it occurred despite the interim Court orders in place requiring them to spend holiday time with the mother because the strength of the father’s beliefs were such that he was willing to breach Court orders for time with the mother.
O: June 2017 – 8 May 2018: Children with father in Town F
The father’s evidence, in terms of compliance with the interim Orders and maintaining the relationship with the mother, while they were living with him in Town F in this period was that the children stayed with the mother from 7 to 28 January 2018, then at the maternal grandfather’s house during the Easter holidays from 28 March to 6 April 2018 at the mother’s request, and again with the mother between 12 and 21 April 2018.
The mother’s evidence was that while the children were living with the father in Town F she would travel to Town N, which is approximately one hour from Town F, to stay with her parents on weekends when the children were in her care. This was to minimise the children’s travel time and to facilitate the maternal grandparent’s relationship with the children. Her evidence was that on occasions her parents had arranged with the father to spend time with the children so that they could maintain a relationship, particularly as they did not live far from Town F.
i. [X]’s dental surgery … 2018
The mother’s evidence was that the father only informed her that [X] was to have dental surgery in Town T to remove 8 teeth the day before the surgery was to take place. Again, because of the late notice she was not able to attend the surgery. The maternal grandfather drove from Town N to be there on the day.
The father’s evidence in chief was merely that the dental surgery had occurred. In oral evidence the father said that, as with the eye surgery in … 2017, [X] was on a waiting list and he was only given notice “maybe two days in advance”, “say, three days beforehand”.
Absent objective evidence of when the father was informed it is not possible to make any finding about this event.
P: Early May 2018 - Father’s unilateral move to the Region A
Without notice to the mother the father unilaterally removed the children to a new home on the Region A in Queensland. His evidence varied but he eventually said that occurred on 5 or 6 May 2018.
On 7 May 2018, the day before the Family Report interviews, at which time the mother would necessarily have discovered what had occurred, the father informed the mother by text that the children had moved with him to Queensland and would be starting a new school the following Thursday.
i. Father’s evidence
The father’s evidence was as follows: In April 2018 his parents, who owned the business he ran in Town F, decide to sell the business. To their surprise the business sold very quickly and he had “very little time to make plans for the future”. His home was located above the business and so he unexpectedly found himself needing to move.
As Town F was struggling economically he believed he was going to struggle to gain employment there and so he “relocated to a metropolitan area with better employment options and so the children could attend a language school, and learn the language (sic) and know their cultural background and heritage.”
He needed to choose “a metropolitan area with a lower cost of living than those in New South Wales, so I could provide the girls with their (sic) needs as a single income family”. He stated that the housing available in the Region A was in far better condition and in greater availability than that in Town F, and that he “did look at the possibility at looking to move to Sydney but found the rent was far more expensive than Queensland and the cheaper areas to rent offered far less opportunity for the girls than are available to them where we are now living in Queensland”.
The father stated that “in deciding where to live I was also conscious of my obligations to ensure that the girls could continue to spend time with their mother in accordance with the court orders.”
No explanation was offered in his evidence in chief as to why he did not consult with, or even inform, the mother of the intended move given its necessary impact on the children. His only explanation, in oral evidence, was that “Well, a lot of things were going on around that time.” … “Organising my stuff and where I was going to go, and it’s a really stupid mistake from me. I do apologise”.
In terms of enrolling the children in their new schools on the Region A, he said that “I did consult her after we moved not before.” However, he agreed that this “consultation” did not occur until after the decision was made and the children had been enrolled.
The father was asked whether he had considered moving to Sydney. In oral evidence he said that he had lived in Suburb U, Suburb V, Suburb Q (where his parents had and still have a house), Suburb W. Of Sydney generally he said “it’s just out of my price range.”
He said he checked around Suburb Q, because it would be “a lot cheaper and also closer to my parents”. He did not give evidence of what the rental prices around Suburb Q were compared to the Region A.
He said he did not want to live in the Town B area because he never liked Town B, nor in the northern parts of the Region Z shire at the bottom of Sydney because “I’ve just never had an interest to go there”.
When asked whether, in hindsight, it might have been in the best interests of his children to live fairly close to the mother he conceded that “it might have been a better decision, yes.” However, he maintained that in moving to the Region A he put the children first.
ii. Mother’s evidence
The mother only became aware of the possibility that the children had moved when they told her that they had been to Theme Park on the Region A in … 2018. The mother was concerned that the children may have been told to conceal the fact of the move from her although the father denied that.
The mother was not afforded an opportunity to have any input into the issue of the move or the school which the children would be attending.
iii. Expert’s comments
In the report the expert noted that:
Mr Theiss’ move to Queensland appears, on the information available, to have been ill conceived and it is difficult to understand the benefits for the children in a move away from friends, school and extended family, when they had only established themselves in Town F.
…
That Mr Theiss made such a move without notice or consultation to Ms Mattson is extremely concerning, especially given that Ms Mattson believes he is motivated to cut her out of the children’s lives.”
…
His plans also appear somewhat unformed, for example his proposal to undertake online study and become a trader. It is unclear what his supports are in Queensland and who he could call on in the case of illness or an emergency. While he argues that the move will make travel for the girls to see their mother shorter and less expensive, moving interstate is a major undertaking. It is positive that he is willing to fund travel for the girls in holidays, but the move means the maternal family may not so easily make a trip to see the girls, especially as they will not be able to stay with other family, as they reportedly did so with the maternal grandfather. …
The expert stated in oral evidence that:
“… it’s perplexing why he would make a choice like that in the midst of the court proceedings, especially where my impression was the mother was at a place where she was considering supporting the children remaining with the father, where they have that stability in Town F. So it was a confusing move to make.”
And that:
“it’s clearly a major, long-term decision to move the children away interstate and it shows – or demonstrates a degree of lack of respect or – or consultation with the other parent. So it has – it raises, for me, real concerns about him valuing her as a co-parent and being able to move forward as a co-parent with decisions. And it also impacts hugely on the children and disrupting them from, potentially, not just their relationship with her but with the other supports they had around them, as we’ve just discussed. So I think to make a move such as that shows a degree of disrespect, I suppose, for the other parent and it’s concerning to me that a parent would do that when it does impact. And it’s, I suppose, the way that it was raised to me by the mother as well – was that the children were having contact with her in that period and not being free to speak about that experience, which is also concerning if that was the case.”
Q: May 2018 to September 2018 Hearing: Region A
i. Father’s evidence and proposal
The father’s evidence about life on the Region A in this period is also effectively his proposal for the future.
a. Housing and Education
On the Region A the father and the children were living in a rented three bedroom complex. The children each had their own bedroom and there was an outside area to play in. Their two schools and the local community facilities were nearby. The children were also attending a language school and hobbies.
b. Employment and finances
In oral evidence in respect of his financial position the father said that he made $15,000 from the sale of the business. He agreed that he would need to work in the very near future for financial reasons and also to do something and be productive. He agreed that if he was working the same kind of hours he had worked in Town F he would need someone, like his parents, to assist him.
The father’s evidence in chief was that “although [his] current income is limited to a parenting payment (Single) and Family Tax Benefit” he would “continue to transport the girls to and from their time with their mother as to have a meaningful relationship”. He said that he is “looking for employment on the Region A although I am limiting myself to part time work so that I can be available for [the children]” and that he had received “a couple of job offers which [he had] turned down because the times would not suit my care for [the children].”
The father told the expert that he was “planning to undertake online studies in … and that this will hopefully enable him to work from home”. Four months later at the Hearing nothing had happened in relation to that plan.
In oral evidence the father confirmed that he had sought financial support from the mother, but had not yet received any.
c. Promoting a relationship with the mother
The father’s evidence in chief was that he did not speak negatively about the mother in the children’s presence and encouraged the relationship with the mother as much as possible. He said he encouraged them to have communication with the mother and that he has also kept the mother informed about “anything that had happened and how the girls going at school”. He said that he has continued to assist the children telephoning the mother often, at least a couple of times a week.
The father’s evidence in chief was that the mother had “missed many of her phone calls” and that the mother does not accept Face-Time phone calls when the children attempt to contact her that way. He claimed that the children often speak with the mother on speaker because otherwise they accidentally hang up, but that he gives them privacy, often taking the phone into their bedrooms.
The father’s evidence was that while the children were meant to stay with the mother from 21 June to 25 June 2018, pursuant to the interim orders, they only stayed from 22 to 24 June as the mother declined the other days.
The father said that he paid all transport costs of getting the children to the mother and back again, and that the mother did not pay child support.
The 2017 interim orders remained in place while the father was on the Region A. The father agreed in oral evidence that pursuant to those orders the children should have seen the mother for four weekends during the two school terms during which they had been on the Region A. He agreed they had only seen her on one of those four occasions. He said that in the then school term, at the time of Hearing, the children did not go to Town B firstly as he was sick, then each of the children were sick, and then there was some confusion about the weeks of the term thereafter.
d. Promoting relationship with other family members
In oral evidence the father said he wanted the children to have good relationships with their half-siblings.
In oral evidence he said they called [M] on a regular basis, maybe once or twice a month and on her birthday.
When asked about contact between the children and their half-brothers his oral evidence was:
“Their siblings never called the girls either on their iPad or on my phone. Each time I call for the girls to talk to their mum, not once has [X] and [Y] spoken to their brothers. Not once. I don’t think they’ve ever spoken over the phone with their brothers or her sister.”
When asked whether he had done anything to facilitate contact he said “I haven’t done anything.” He did not seek to explain why he took steps to actively facilitate contact with [M], living with her father, but not with the half-brothers living with the mother.
The children had also not seen the paternal grandparents in person since May 2018, although they had had electronic FaceTime with them.
e. Travel between Region A and Town B
The father’s evidence in chief was that the overall travel time for the children is less than 3 hours from the Region A compared to 6 hours from Town F and that the cost of travel was $320 for the children and him versus $200 from Town F, with advanced booking allowing discounts.
He also stated that when the children are older they will be able to travel alone by plane, although he says his concern is that the mother will fail to meet with them at the airport as she “can be unreliable in such things”. He stated that it would be easier for the mother to travel to the Region A to see the children and that it would be easier for her than travelling to Town F.
The father gave oral evidence that he was mistaken in his $320 estimate in chief, and instead estimated return travel costs for himself and the children between the Region A and Town B at about $800. When tested on that he further agreed that this was also an under estimate given it would cost $150 each way per child or $600 for the children alone.
During cross examination he said that, despite his statements to the expert that he would pay all travel costs, he did not think it fair that he should have to pay them all and that he thought it was fair that each party should pay half. In re-examination, however, he said that on further reflection his position had changed and that he would pay the whole cost of travel as long as the mother met him at Sydney airport, rather than at her house.
The father’s proposal was that his arrangement on the Region A should continue into the future, with holiday and some weekend time with the mother in Town B and regular communications.
The expert said in oral evidence that the father’s evidence (in re-examination) that he was going to fund the children to fly down to see the mother was positive because it reflected a willingness to recognise that the children’s relationship with the mother was important and that he was going to bear the cost which symbolically recognised the importance.
f. Father’s support network on the Region A
The father’s evidence in chief was that he had support where he now lived, with friends from Town F having relocated to the Region A in 2017, being Ms H’s family. Ms H was an employee at the family business. He said that the Ms H family had provided practical support during the move and “the girls have stayed with Ms H’s family when I have had to attend job interviews etc.”.
The father read a short affidavit of Ms H. She said she was a friend and work colleague from Town F who had moved to the Region A with her family. She gave evidence about the benefits she saw in moving to the Region A because of the opportunities there. She gave evidence of how good the father’s relationship with the children was.
The father’s oral evidence was that he had known Ms H since about October 2016, or just on two years at the date of hearing. Ms H affidavit also stated that the father “has a very close friendship with my husband”. However, in oral evidence the father stated that he had only known Ms H for “probably two or three weeks-yes, less.”
The father confirmed in oral evidence that these were his only friends on the Region A that he had no family living there.
It emerged during cross examination about the father’s support structures on the Region A that the children were in Sydney during the Hearing. The father had brought them down for the Hearing and had left them with his parents next door neighbours at Suburb Q “because I couldn’t get anyone to take care of the kids” including Ms H.
In oral evidence the expert expressed concerns about the fact the father lacked a support base on the Region A. She said:
“I think in context where there’s parental conflict or family difficulties, often those extended family, other supports around the child are so important. So whether that be positive family friends, positive relationship with grandparents, good peer relationships at school, a nice teacher, all those positive things are really important for children to help them develop robustly and have a good sense of themselves. So where a parent is taking a child away from those kind of other protective factors, it’s concerning, because there’s a lot of pressure – even if that parent is a great parent, there’s a lot of pressure on that parent being the sole source of that child’s needs. And I think it’s so important that the child’s – you know, that old saying of it takes a village to raise a child. I think it’s really important that a child is surrounded - - - by a lot of really good support.”
The evidence made it clear that the father did not in fact have any substantive support network on the Region A.
ii. Mother’s evidence
The mother had not seen the children since July 2018.
While the mother accepted that the time involved in travel from Town B to the Region A was less than to Town F, the difference she emphasised was that “my family can no longer drive to see them” including the half-brothers who had been catching a train to the maternal grandparents’ house and driving with the maternal grandfather to Town F which had happened twice.
The mother says the maternal family can’t afford to fly to the Region A, although there was no evidence of their financial circumstances.
The mother’s evidence was that the father was inconsistent in his offers of time, providing her with little opportunity to make arrangements to see the children, and that she believed the father was intentionally “making it very difficult for [her] to spend time with the children”.
R: Hearing: Children in Sydney – mother not informed
The father did not advise the mother that the children were in Sydney. It only came out because of cross examination about who was looking after the children during the Hearing.
The father did not make any attempt to use the opportunity to arrange time for the children to come with him to see the mother at the Hearing in Town B, or to make them available to her if she wanted to take the train or arrange other transport to Sydney. This was in circumstances where the children had not seen the mother in person for almost 4 months at that time.
The expert expressed concern in oral evidence that the father had brought the children to Sydney, but not told the mother especially as the mother hadn’t had contact for a period of time.
The father did not offer any explanation for not advising the mother of this opportunity, much less for not actively facilitating the children seeing the mother who they had not seen in almost 4 months.
Unlike the other events set out above, where there were differing versions and explanations offered to the Court, what occurred here as an ancillary aspect of the Hearing was unambiguous.
I give great weight to this event. I am satisfied that the explanation for the father’s actions was that the father did not want the mother to know the children were in Sydney so that he would not have to let them see or spend time with her.
This conduct was consistent with his stated poor views of the mother and her parenting skills and with his prior conduct in trying to minimise contact between the children and the mother. It was clear evidence that his statements that he valued and would promote the children’s time and relationship with the mother were not reliable.
S: Family Consultant - expert evidence
i. Expert report
Ms J a Family Consultant (the expert) prepared a Child Dispute Conference Memorandum dated 30 May 2016 and then a Family Report dated 30 May 2018. The expert conducted interviews on 8 May 2018 with the mother, the father, the children and the half-brothers. [M] did not take part. The expert was provided with the parties trial affidavits prior to being cross-examined by counsel for both parties.
ii. Children
The expert’s opinion was that the children were well attached to each parent and also well-adjusted and resilient to change, which has let them deal with the many changes in their living circumstances.
The expert considered that the children “interacted in a close and supportive manner with one another” and had a “close bond with one another” and had “been a constant for each other in navigating the many changes they have experienced in recent years.” Her opinion was that “[i]t would appear central that any plan for them ensures that they remain together and have consistent time with the other parent”. The expert was not cross-examined on this nor did any party make submissions that the children should not live together. I find that the children’s best interests will be served by their living together.
iii. Parental capacity – stability and support for a meaningful relationship with other parent
The expert’s report summarised the primary issues, which did not change significantly at Hearing, as follows.
In deciding where the children should primarily live, it is difficult to be reassured about the capacity of the parents to provide on-going stability for the children. …
Some of the children’s comments lend some weight to Ms Mattson’s concerns that her relationships with the children may be undermined by their father. Both girls perceive the relationship between the parents as poor … this may be a development arising from living apart and away from Ms Mattson or as a result of influence is uncertain. On the information available it seems Ms Mattson may be more able/willing to facilitate a positive relationship with the other parent, as she appears to have done when the children lived fulltime with her.
The benefits of the children remaining living with their father are that both girls are clearly close to him, he has provided for them, and they seem settled in his care. Information from Town E’s school suggests that Mr Theiss has been attentive, attuned and responsible in meeting the children’s needs. The risk is that his parenting interstate is untested, he is in the midst of change, and his move does appear to reflect poorly on his decision making and child focus. …
The benefits of the children living with their mother are that Ms Mattson was their historical carer, it would allow the girls to be raised with their half‑brothers and to return to an area where they do appear to have some connections and friends. Ms Mattson appears to have demonstrated willingness to facilitate and support the girls’ relationships with their father and to have acted in a manner which prioritises the children’s needs over her own. The concern with such a plan is that Ms Mattson has clearly experienced periods of instability and, if Mr Theiss’ account is accurate, she has been disorganised and disruptive in her parenting. There may also be some possible concerns about her ability to manage parenting stress given reference to her yelling and becoming angry in the home, although the extent to which this is an issue is unclear.
The expert summarised the key issue for consideration, subject to the statutory framework, as being that:
The significant geographic distance between the parents means that the children will need to be based with one parent and have infrequent time with the other. This is sad for the children and, as [X] commented, means that she will inevitably experience some loss and grief in the separation from either parent. The challenge for the Court will be to establish which parent is able to provide stability and security for the children in a supportive environment where they can increasingly focus on their developmental tasks, their education and making peer relationships and connections.
In oral evidence the expert agreed that these comments about stability and security were “the central issue” she expanded on that by saying there were two aspects to consider:
“I think the key thing is the parents being able to demonstrate capacity to provide that stability and security. One aspect of them being able to have a stable sense of self is clearly to be able to have a positive relationship and time with the other parent. But I think it’s also very important that each parent can demonstrate to the court what stability – how their life is stable, what they, you know, propose for the children in terms of being able to root themselves in one - - - place and not experience further disruption.”
The expert confirmed in oral evidence her view that the mother had prioritised the children’s needs over her own, including by calling on the father’s help when she was experiencing difficulties despite the issues between them, and showing a willingness to promote the children’s relationship with the father, which was one of the significant factors in determining where the children should live.
The expert stated that if there was a finding either of an unwillingness on the father’s part to support a relationship with the mother, and or that he prioritised his own needs over those of the children, that both of those things would also be significant factors, particularly in contrast to the mother’s demonstrated willingness and child focus because the parent the children live with will have more “power, potentially, in making that work”.
Regarding a stable life she noted that the father had provided a stable base for the children in Town F and it was “perplexing why he would make a choice like that” to move to the Region A as he did.
iv. Parental responsibility
At the Family Report interviews the mother sought equal shared parental responsibility and the father sought sole parental responsibility. This position was reversed at hearing.
The mother said that if given sole parental responsibility she would “probably” still consult with the father about major long term decisions and stated that she would be happy to consult so long as if there was disagreement she could make a decision, and that she would be happy to keep him informed of major issues such as illness.
The expert recommended in the report that
[d]espite the challenges and difficult history between the parents, it is recommended that the parents share parental responsibility for the children (because) [t]here is some evidence that the parents have been able to work cooperatively, and the danger of either parent having sole responsibility to the exclusion of the other is that they may act in a manner which is not promoting the children’s best interest or supporting the relationship the children have with the other parent.
The expert also recommended that regardless of which parent the children primarily reside with they spend time with the other parent for 10 days of the midyear holidays and three weeks of the Christmas holidays as well as two weekends per school term, and that they have FaceTime contact at least once per week.
The expert stated in oral evidence that “I stand by being reserved about one parent having sole decision-making” responsibility. She confirmed she believed equal shared parental responsibility would be an important protective measure for the children, regardless of which parent they live with.
In respect of the practicality of the arrangement in this matter the expert stated that although the parties had had difficulties, there had also been times when they did work cooperatively, and that generally post litigation “things … settle[d] down”.
v. Further change of living arrangements
If the children return to Town B they will have to change residences and schools again. They could not return to their prior schools as they would be out of area on their return given the mother’s current residence. They have never attended [C] Primary School where it is proposed they attend if they return to Town B. It is half a block from the mother’s house. The mother agreed in evidence that it was not necessarily a positive thing for them to change schools again.
The father submitted that a further change of schools would be highly undesirable noting they just recently changed schools again. While that is doubtlessly true, it is disingenuous given the father’s unilateral move interstate without notice 4 months prior to a fixed Hearing date.
In terms of the father’s suggestion that it would not be in the children’s best interests to move them again, the expert did not accept that and said however she “would caution against any further changes beyond whatever decision the court makes here…”
T: Parental capacity
i. Parental capacity – stability
The expert’s conclusion about parental capacity in the report was that they were both “good enough” in terms of the issue of stability and capacity to provide a supportive environment for their children. Her opinion on this issue did not change in oral evidence.
I have arrived at the same conclusion in terms of the issue of providing a safe and stable environment in which the children can live.
Although I do not accept the father’s characterisation of himself as a parent without fault, he does appear to be a highly conscientious and diligent person with a focus on structure and orderliness and, apart from the move to the Region A, has provided a highly stable and secure environment for the children when living with him. I am satisfied that he could provide for the children’s needs.
Indeed, his capacity is evidenced by the fact that the mother gave serious consideration to agreeing to the children living with the father in Town F, until his move to the Region A convinced her that he would not support the children’s relationship with her.
I accept that the father held genuine concerns about the mother’s parenting capacity. These were raised in the FACS material and supported by the father’s evidence.
While I accept that, from the point of view of a parent with the father’s very orderly and conscientious parenting style, the mother’s parenting may have seemed disorganised and less competent and capable, when viewed objectively the expert considered that on the father’s description of the mother and these events to her “[n]either parent has raised any significant child protection concerns”.
I am satisfied that the evidence does not support a finding that the mother’s parenting was so poor as to amount to unintentional abuse or neglect.
The events giving rise to these concerns occurred when she had five children under the age of 14, a 14 year old boy acting out in response to bullying, was beset by recurrent housing and income insecurity and clearly struggled to cope.
The fact that the mother sought, and continued to seek the father’s assistance despite the issues between them and even after the events of 3 March 2016, shows that she was aware of these stability issues and prioritised the children’s well-being.
The mother appears to have now achieved a greater level of stability in housing and employment, commensurate with being in her late 30’s. The half-brothers are now being young adults, [M] is living elsewhere, so that in future she will only have two young children to care for.
I am satisfied that, although the mother’s capacity in this regard may not be equal to the father’s, she does have the parenting capacity required to meet the stability needs of the children. I am bolstered in that view by the expert reaching a similar conclusion.
In summary, I am satisfied that the children are not at risk of physical or psychological harm, abuse, neglect or family violence with either parent and that both parents have sufficient capacity to provide for their physical and emotional stability needs.
ii. Parental capacity – support for a meaningful relationship with the other parent
The mother demonstrated repeatedly that, despite the difficulties in the relationship, she was willing to call upon the father for assistance and to promote the children’s relationship with him.
The issue is whether or not the father would be willing and able to promote a meaningful relationship between the children and the mother if they lived with him on the Region A.
I refer to the above evidence and findings concerning: the father’s view of the mother and her parenting capacity; the risk he perceives the mother poses to the children; the fact that he unilaterally removed the children on 3 March 2016; the fact that he unilaterally withheld the children from the mother from April 2017 until a Court later supported his position; his failure to facilitate their spending half the school holidays with the mother in April 2017 based firstly on prioritising attendance at a children’s party over their time with her and secondly when they could still have spent substantial time with her; the fact the children only spent one of the four Court ordered weekends with the mother while living on the Region A; and, very significantly, his conduct in not telling the mother the children were in Sydney during the Hearing so that they did not have an opportunity see the mother despite not having seen her in person for some months.
The expert referred to the father’s move to the Region A as “ill conceived” and “perplexing”.
When considered together with the above evidence and findings, his move to the Region A is not perplexing. From the father’s point of view the best interests of the children were served by removing them as far away as possible from the mother in order to reduce the amount of time they would spend with her.
I am satisfied that, despite his evidence that it is easier for the children to spend time with the mother from the Region A than from Town F, consistent with his above noted view of the mother and conduct, his unilateral move to the Region A was intended to make it more difficult for the children to spend time with the mother.
Accordingly, I find that if the children live with the father he will not facilitate nor promote, but will instead probably seek to undermine, the children having a meaningful relationship with the mother.
U: Parties proposals
i. Father’s proposal
The father’s basic proposal is that he remain living on the Region A with the children with the same housing and schooling arrangements as at present, that there be equal shared parental responsibility, and that the children spend time with the mother in Town B.
ii. Mother’s proposal
The mother’s proposal is that the children live with her, that she have sole parental responsibility, and the children spend time with the father on the Region A.
At the time of her affidavit she worked from 6am to 5pm but had spoken to her employer and agreed that if the children were returned her care she could reduce her hours to 9am to 5pm to take the children to school in the morning.
She proposed to enrol the children in [C] Primary School and there were vacancies for the children. That school is close to her home. The school offers affordable after school care so that the children will be able to be cared for until she finishes work at 5pm.
V: Best interests of the children
i. Primary considerations
The primary considerations guiding the ss.60CA and 65AA Family Law Act 1975 (Cth) (the Act) determination of the paramount consideration of what is in the best interests of the children are the twin pillars in s60CC(2) of, firstly;
“the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”,
And secondly;
“the benefit to the child of having a meaningful relationship with both of the child's parents”.
For the reasons given above, I find that there are no significant child protection issues and that each parent is capable of providing a stable home in which the children are not at risk of physical or psychological harm, abuse, neglect or family violence. The first criteria is met by whichever parent the children live with.
However, while the mother will promote a meaningful relationship between the children and the father if they live with her, I have found that the father will not facilitate the children having a meaningful relationship with the mother if they live with him.
In these circumstances, the primary consideration of placing the children with the parent who will facilitate a meaningful relationship with both parents is to be given greater weight than the relative stability each parent can offer or any of the other additional considerations, which are nevertheless considered below.
ii. Additional considerations
The children are too young for their views to be given any weight, and in any event those views may have been influenced by the fact they were living with their father for an extended period.
The parents each have a good relationship with each child. The children have good relationships with other family members. These other relationships, including those with the half-siblings and all grandparents, are more likely to be maintained if the children live with the mother in Town B.
Both parents have taken the opportunity to participate in making decisions, spending time and communicating with the children when possible and have fulfilled their obligations to maintain the children.
While another change of location is not ideal, the expert considered that it would be acceptable on one further occasion.
There will be the same practical difficulty and expense involved in the children spending time with the other parent wherever they live.
I have made findings above on the parental capacity and attitude to the children and responsibilities of parenthood demonstrated by each parent, including as to the maturity, sex, lifestyles and other characteristics of them and the children to the extent they are relevant.
While the children may be less able or likely to experience their father’s heritage living with the mother, that factor cannot outweigh the primary consideration of having a meaningful relationship with both parents.
I am satisfied that an order that the children live with the mother is least likely to lead to further litigation given the findings I have made about the father’s attitude to the children spending time with the mother.
iii. Parental responsibility
The expert recommended that the Court allocate equal shared parental responsibility as a protective measure, whichever parent the children reside with, and spend half holidays and two weekends per school term with the other parent and have FaceTime contact at least once per week. Her view was that, even with the conflict between them, they would be able to co-parent.
I was persuaded by the expert’s reasoning on this issue. There is a protective advantage to equal shared parental responsibility. It seems to me that given the mother’s demonstrated willingness to facilitate a relationship between the children and the father that she is likely to be willing and able to co-parent with the father, and as the children are to live with her and given the benefit of time, it is likely to work.
There is a presumption of equal shared parental responsibility s.61DA, which would be displaced by evidence of family violence. Given that I have elected not to make findings on the allegations of family violence by the father, it is important to note that I have proceeded to consider the question of parental responsibility without reliance on the presumption.
I have considered the matter as if the presumption did not apply, but come to the view that the expert’s reasoning on this matter is impeccable and that the children’s best interests are served and protected by an allocation of equal shared parental responsibility. I also consider that this arrangement will work.
Equal time or significant and substantial time, is not feasible.
Each party had a similar proposal for time with the non-resident parent, which was not significantly different to that of the expert.
iv. Father’s possible return to NSW
At the very end of the proceedings the father sought to introduce the topic of what would occur if he was to return to New South Wales, despite that not being his proposal. The procedural unfairness and lack of any meaningful evidence meant that this issue was not explored. It is not relevant to this decision.
v. Orders
Accordingly, I will make orders as set out in this Judgment for the children to live with the mother, to spend half school holiday time with the father and to spend two weekends per term with the father, maintaining a similar regime to the present, for the children to have regular contact with the father, and consequential orders relating to communication and other matters. I make a standard order restraining the children leaving the Commonwealth of Australia and placing them on the Family Law Watchlist given the concerns the mother raised. The parties can jointly have that last order varied or lifted at any time if they see fit to do so.
While the father offered to pay all costs of travel, and would be more capable of doing so than the mother based on the historical evidence, that was on the basis the children lived with him. Although the mother objected to paying costs arising from the father’s decision to move to Queensland, I think it more appropriate that the parents share the school holiday travel costs equally. I allocate the term weekend costs to the father alone given his offer to pay the entire amount as he moved and as this expense may stretch the parties finances. In this way the father can gauge what he can afford in terms of these weekends together, including whether he prefers to travel to Town B or stay with his parents in Sydney or Town F for the weekends to reduce the costs by not having the children travel.
I certify that the preceding two hundred and ninety-five (295) paragraphs are a true copy of the reasons for judgment of Judge Bruce Smith
Date: 12 July 2019
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