McGibbon and Paisley

FAMILY COURT OF AUSTRALIA

MCGIBBON & PAISLEY

[2014] FamCA 24

FAMILY LAW – CHILDREN – Residence – spend time arrangements – parental responsibility – best interests – children’s views – three teenage children – family violence and alcohol abuse issues raised – issue concerning paternity of the youngest child – oldest child’s relationship with the father broken down – oldest child’s health and school attendance an issue – strengths of the parties parenting capacity are dissimilar – high conflict between parents – no unacceptable risk in either household – current parenting arrangements to continue with limited changes – mother to have more parental responsibility for the oldest child – changeover arrangements to be altered to reduce conflict

Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA

APPLICANT:

Mr McGibbon

RESPONDENT:

Ms Paisley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2008

DATE DELIVERED:

24 January 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

2, 3, 4,5 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Murray

SOLICITOR FOR THE APPLICANT:

Hallam & Littlewood

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Fielden & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales (Mr Squires)

Orders

That all prior parenting orders made in this Court and the Federal Circuit Court (previously known as the Federal Magistrates Court) in relation to parenting arrangements for the children E born … October 1997; L born … January 2000 and P born … April 2002 are hereby discharged.
That each parent have parental responsibility for E with the mother to make all necessary decisions about E save for major medical issues.
That the parties have equal shared parental responsibility for L and P.
That E live with the Mother.
That L and P live with the Father.
That L and P shall spend time with the Mother as agreed between the parents but failing agreement:
(a) During school terms:
(i)each alternate weekend (and on the weekend of Mother’s Day) from end of school Friday (or Thursday if the Friday is a public holiday or pupil free day) to before school Monday (Tuesday if the Monday is a public holiday or pupil free day) commencing on the first Friday of each school term.
(b)During each school holiday period from the conclusion of school on the last day children are required to attend school to 5.00 pm on the mid-point day in odd numbered years and from 5.00 pm on the mid-point day to back to school on the first day children are required to attend school in even numbered years.
(c)
In even numbered years from 5.00 pm Christmas Day to 5.00 pm on

26 December.
That L and P spend time with the Mother is suspended as follows:
(a)in odd numbered years from 5.00 pm on Christmas Day to 5.00 pm on 26 December; and
(b)on the entire Father’s Day weekend.
Changeovers on the mid-point of school holidays and for Christmas are to be implemented by the parent who is to spend time with L and P collecting them from the home of the other parent.
Each parent is to keep the other informed of their residential address, landline and mobile telephone numbers.
Each parent is restrained from denigrating the other parent and members of that parent’s household to the children (including by electronic means) and in the presence of the children and shall forthwith remove the children from the presence of any other person so doing.
Each parent shall provide full contact details for that parent and the other to Town Z High School and shall authorise the school to provide to both parents copies of all documents relating to the welfare and progress of L and P and of events to which parents are invited.
Each parent shall authorise any treating medical practitioner the children attend to provide copies of all reports or information, normally provided to parents, to both parties.
Each parent is to permit and facilitate telephone calls by L and P to the other parent and to E at any reasonable time and not less than on each Wednesday between 7.00 pm and 8.00 pm.
That the Mother be restrained in all circumstances from using or allowing the children to use a surname for the children other than McGibbon.
That the parents arrange for all three children to meet with the Independent Children’s Lawyer to have these Orders explained and any questions answered.
The parents are each restrained from changing the enrolment of L and P from Town Z High School without the written consent of the other.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

THE COURT NOTES:

(A)The Father is hopeful of restoring his relationship with E.
(B)In the event that E chooses to make contact with the Father, arrangements to spend time and/or communicate may be made directly between them.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC27 of 2008

Mr McGibbon

Applicant

And

Ms Paisley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing parenting applications for three children, E aged 16, L aged 14 and P aged 11. The applicant is the father, Mr McGibbon aged 40. The respondent is the mother, Ms Paisley aged 36.
The parties began living together in January 1996 when the mother was 18 and the father 22. They married in 1997 and separated 10 years later in November 2007.
Three children were born during the course of the marriage. The third child P is not the biological child of the father, but has always been treated by him as his own child. It is likely, but not certain, that she is the child of the father’s brother, Mr B.
Immediately after separation all three children lived with the father in the family home. Within a short time and over the following years from late 2007 until May 2010, the children spent equal time with each parent.
In May 2010 E returned to his mother’s home and refused to return to his father’s home. He has continued to refuse and has undoubtedly been supported by the mother in his refusal. L and P have continued to spend time with each parent pursuant to the orders.
The applications now before the Court are for the two girls to live with one parent and spend weekend time, holidays and special occasions with the other.
The mother’s case was presented on the basis that she had been a victim over a long period of time of domestic violence prior to separation and that although the children were not at risk of physical violence in the father’s home; they were at risk of emotional abuse arising from having been in a violent marriage. This is hard to reconcile with multiple consent orders for equal time and for the current arrangement.
That there were loud angry confrontations between the parties is conceded by both of them. There is no agreement about who was the aggressor and who was defending him or herself against the other.
There are no allegations of exposure to violence in the home of each parent with their current partners.

Short history

In November 2007 the parties separated after several years of marital discord. The mother concedes that she had developed dependence on alcohol and also was using a weight loss drug containing amphetamine which should not have been combined with alcohol. Her behaviour became erratic. The mother alleges that the father became violent towards her. The father denies this.
At the time of separation the mother left the home. She alleges that the father was violent towards her at the time of separation and that in particular, he made a threat towards her, “You will be gone by 3.00 pm tomorrow or else you will pay.” The mother further alleges that the father picked her up by the arm and leg and dragged her across the floor to the front door. This was on an occasion when the children were in the home in the swimming pool. The father concedes that at one point he threw the mother’s mobile telephone onto the roof of the home so that she would not ring the police. He later retrieved the phone and indeed the mother did call the police. It was not unusual for the police to be called by these parties.
I am unable to find that there was direct violence visited by the father on the mother. I am certainly not able to find, as was suggested at the commencement of the proceedings, that the father has been emotionally abusive towards the children as a result of their observing family violence during the marriage. It is the case that E continues to suffer from dwelling on the circumstances of his parent’s separation. I am unable to determine what E actually witnessed.
On 19 December 2007 orders were made in the Local Court that the children live with the father and spend time with the mother on three week nights each week and on holidays and other special times. The matter was then transferred to the Federal Magistrates Court.
On 18 February 2008 final orders were made by consent. Property matters were finalised and in terms of the children, the following orders were made:
a)Parents to have equal shared parental responsibility.
b)Children to live with the father and the mother in a pattern of two days, five days, five days, two days, which equated to equal time.
c)Specific issues orders about telephone contact and which school the children were to attend.
In March 2008 the mother entered a de facto relationship with her new partner Mr C and in December of that year the father began to live with his now wife, Ms D. The relationship between the mother and Mr C ended after 12 months.
In April 2009 the parties were divorced. In that same month the mother commenced a relationship with Mr F and in October of that year, the father married his partner Ms D.
In March 2010 the mother gave birth to a child to her relationship with Mr F. G is now aged three; he has global developmental delay and traits of autism. Two months after G’s birth the relationship between the mother and Mr F ended.
The father alleges that soon after ending the relationship with Mr F, the mother commenced another de facto relationship with a man named Mr H. The mother asserts that the relationship did not have that character and was merely a friendship. It is not significant whether the relationship was an intimate one or not. The significance is that the children have been introduced to a series of new partners for the mother in the years since their parents separated.
On 25 May 2010 E, after spending time with his father in his home assembling a new bike together, rode to his mother’s house and has not returned to the father’s home since.[1]
[1]Affidavit of Father filed 08/11/2013, pars 30, 31
On 11 June 2010 the father filed in the Federal Magistrates Court an application for recovery of E.
In mid June 2010 E spoke to the school counsellor extensively.[2]
[2]Exhibit 8
On 30 June 2010 the father filed an Amended Application seeking a variation to the final orders made on 18 February 2008.
On 12 July 2010 the proceedings were transferred from the Federal Magistrates Court to this Court.
On 6 October 2010 orders were made for E to have therapeutic counselling, a limited issues report to be prepared, the suspension of E’s time with his father, interim orders for E’s time with his father and other minor variations.
On 19 November 2010 the father filed a Contravention Application alleging that the mother had withheld E from him without reasonable excuse since 10 October 2010. In fact, the father had not seen E since May 2010.
On 17 December 2010 a Federal Magistrate adjourned the matter noting that a warrant would issue for the mother’s arrest if she failed to appear in Court on the next occasion.
On that next occasion, 21 February 2011, an order was made for all applications and documents to be served on Mr B. Mr B is the father’s brother and may be the biological father of the parties’ youngest child P.
Orders were also made for L and P to have therapeutic counselling at Unifam with Ms J and both parents were directed to complete a Keeping in Contact program.
On 28 March 2011 interim orders were made by consent as follows:
a)The final orders from 18 February 2008 were suspended.
b)L and P to live with the mother and father in a week about arrangement with additional orders for phone contact and special occasions.
c)The father was declared not to be the natural father of P.
d)Provision was made for E to spend time with his father and otherwise to live with his mother and to have ongoing health and psychological interventions.
In the second half of 2011, Mr B, the father’s brother, was joined as the Second Respondent. On 11 October 2011 the father filed an Amended Initiating Application seeking that the children live with him and spend time with their mother on alternate weekends and school holidays.
In February 2012 the mother moved into her parent’s home in Town K after moving out of the home she resided in with Mr F.
In April 2012 the second respondent, Mr B filed an Application in a Case seeking that he be removed as a party to the proceedings. Since that time it has been clear that Mr B does not seek any orders in respect of P.
On 24 April 2012 interim orders were made by consent that:
a)L and P live with the father.
b)The girls spend time with the mother on alternate weekends, half school holidays and on special occasions.
c)Orders in relation to schools attended and telephone contact.
On 4 June 2012 the mother commenced a relationship with Mr N. The mother then moved out of her parent’s home and moved into Mr N’s mother’s home in Town M.
Mr N has four children from two previous relationships; O 11, Q nine; R four and S two. Mr N is the psychological but not the biological father of R. That may also be the case with S although the issue of S’s paternity is undetermined.
On 20 July 2012 orders were made removing Mr B as a party to the proceedings, with the Court noting that at that time E was failing to attend school frequently.
On 28 November 2012 E attended the first of six appointments with a Clinical Psychologist at I Community Health Service. Over the time since separation, E’s health had been deteriorating in that he gained weight extensively to the point of being diagnosed as obese.
In December 2012 the mother moved out of Mr N’s mother’s home and into her own rental accommodation. Her partner, Mr N, continued to divide his time between his mother’s home and his step-father’s home.
On 9 May 2013 a child was born to the mother and Mr N, T, aged seven months at date of hearing.
On 5 August 2013 the proceedings were transferred to this Court.
When the hearing commenced, the two households were as follows:
a)The father’s household in Town Z comprises himself, his wife Ms D, her child V (8) and L and P.
b)The mother’s household in Town A consists of herself, the parties’ son E, G (aged three), T aged seven months, and on a part-time basis, Mr N.

The evidence

The parties relied upon the following documents:
(i)Minute of proposed Orders sought by father filed 10/09/2013;
(ii)Amended Response filed by the mother on 11/10/2013;
(iii)Affidavit of father filed 08/11/2013;
(iv)Affidavit of Ms D (father’s wife) filed 08/11/2013;
(v)Affidavit of mother filed 04/11/2013;
(vi)Affidavit of Ms N (mother’s partner) filed 04/11/ 2013; and
(vii)Four family reports dated 10/12/2010; 19/12/2011; 5/11/2012 and 14/11/2013 by Family Consultant Mr U.

Mr McGibbon, THE FATHER

The father is aged 40 and in fulltime work as a manager. He has one other child, Ms W, now aged 20 from a previous relationship. The father has a relationship with Ms W although he apparently saw her rarely growing up. Ms W lived predominantly with her mother, with the father at times and for a short period in year 10, with the paternal grandmother.
The father has been estranged from his parents and extended family for about the last four years. There is no evidence before me as to why that is the case.
The father has a good relationship with his step-son V. V has no contact with his own father. The McGibbon household regularly sees the parents of Ms D.
The father was a careful considered witness, who at all times maintained control over himself, despite quite confronting and intrusive questions about his family history. He strove for accuracy. The father was intensely critical of the mother in his affidavit, understandably perhaps in relation to her abuse of alcohol in the past which had an impact on her capacity to care for the children. However it was not the case that during the marriage the father chose to cease employment and take over the care of the children himself. I infer that he considered that the mother was a good enough parent to care for them.
The father concedes that he regards the mother as manipulative and perhaps mentally ill, and that she does not have the capacity to protect the children from her own need for them to be with her. In particular he is critical of the mother for making it difficult for P to changeover between the households.
The father is also resentful again perhaps understandably, that he has privately funded repeated bouts of litigation, whilst the mother has had access to legal aid.
The father was asked about an Apprehended Violence Order (AVO) in 2001. He denied ever having been served with or having seen such an order, whilst conceding that there was a reference to an order being sought in police records from that period. No order was put into evidence.
The father did not deny conflict and tension in the relationship and offered the information that the police were regularly called to the home, either because one of the parties called them or neighbours, who were disrupted by the noise of conflict in his home, called them.
The father denies physically assaulting the mother, but asserts that he regularly defended himself by violent attacks on him by the mother. He did not in my view, acknowledge the extent to which the children must have known about these incidents and were probably spectators to them more often than he was prepared to concede.
When the parties did separate on 12 November 2007 or thereabouts, there was clearly a frightening and emotional scene for the children. The mother locked herself in the granny flat and then left the home, leaving the children in the care of their father. Again, the mother asserted through her counsel, that she had been coerced into leaving; the father’s position was that the mother had made up her mind to leave in the way she did, “She’s an adult - she can make a decision for herself”.
In one incident the father locked the mother out of the home, grabbed her mobile phone and threw it on the roof, later recovering and returning it. Thereafter the mother used it to call the police. Neither party has been charged with any offence and there is no evidence of any Apprehended Violence Order being made post separation.
My strong impression is that each party took every point they could with the other party and that all the children, but most particularly E, have been exposed to their parent’s mutually harsh opinions of each other, their anger and lack of restraint.

In May 2010 E went to live with his mother and would not return to spend time with his father. Thereafter, orders have not been complied with in relation to E and his father.
The father made the recovery application in June 2010.
A few days later E had sessions with the school counsellor where he reported that his father was always making threats, that his father had made his primary school teachers cry, that E had seen physical fights between his parents and that he was subjected to an unhappy marriage, “I was born into a rough situation.” E described his father as bashing his mother, bruising her and smashing things in the house.
The father denied the physical violence towards the mother and attributed E’s statements to influence from his mother at the time.
I consider that E was exaggerating. There is absolutely no evidence of the mother being “bashed”. Events from the past were kept alive for him in the mother’s home.
However E was present during scenes which frightened him in 2007 and the recovery application may have triggered unhappy memories. Apparently the mother was unable to reassure him that there could be no repetition of those scenes.
On 4 June 2010 E had been taken to Y Hospital for a mental health assessment. He is reported to have presented at the hospital as distressed, red in the face and wanting to go home stating that he had observed domestic violence all the time.
It appeared to me that E was the child most caught between the parents, loyal to his mother, wanting to protect her and stand up for his father, that his mother had confided in him at a level which she certainly should not have and that E was lost in the adult issues. He became distressed and depressed. His eating pattern changed so that he quickly put on weight and became quite seriously overweight.
In her wish to protect E the mother has aggravated his fears and angry emotions on her behalf. The father has been unable and to some extent, unwilling to engage with E’s distress as genuine. The father has been focused on the mother being the cause of E’s problems and non-compliance with orders. He has been less focused on E as an adolescent growing up with distorted ideas, that he has not attended school regularly as he should have, that his health is not good and that he is separated from his sisters and isolated from his extended family.
The focus of both parents has been on the dispute with each other to the disadvantage of E and also to the disadvantage of P.
P apparently has had no reason to doubt that the father is her biological father. She is about to start high school. Most members of her extended family know that it is likely that her uncle is her biological father, although there is no certainty about that.
In my view, both parents have shown a lack of capacity to meet P’s needs, her needs being that her parents be sensitive to her special situation, honest with her and mutually respectful of each other in explaining the situation to P in a way that she can best cope with.
L appears to be the child who has been most able to distance herself from her parents’ conflict and to focus on her own developing life, her success at school and friends and associates there show that.
I accept that the children have established Facebook pages in the name of Paisley, not through disrespect for their father or inordinate influence from their mother, but in an attempt to establish at least one area of privacy for themselves where they have some control over relationships. Unfortunately their Facebook pages were annexed to the father’s affidavit. Neither parent apparently realises that the prospect of driving their children away is a real one as they advance through their teenage years.
I also accept that the children probably do know that the father makes written record of every phone call that he has with their mother and that he records or films changeovers with his phone. All of the children appear to be typical of children their age and particularly conversant with modern technology and social media. The father is unrealistic in believing that they are unaware of such things and insensitive in not understanding that it would hurt them to see the level of mistrust between their parents.
I do think that there was strength in the relationship between the father and E before E decamped permanently to his mother’s home. The father’s willingness to take him to counselling to express some of his frustrations with the father himself supports the strength of that relationship.
Unfortunately the father I think was inclined to simply blame the mother and ignore E’s stated wishes when he expressed sadness about not seeing more of his mother and a wish to do so. In the same way the father blames the mother for P’s distress at changeovers and her statements to him that she hates him and doesn’t want to stay with him. Had the father involved himself earlier in an educational program recommended by the Family Consultant, he might well have recognised that the children’s needs were their own and not necessarily influenced by their mother.
In 2007 E barely attended school at all, on average one or two days per week over the whole of that year. Each of the parents blames each other for that situation. Again, they failed to unite and focus on E’s obvious difficulties at that time. He missed 143 days of school.
I do not doubt that the father loves his son and greatly regrets a period of three and a half years of no contact. Unfortunately he blames the mother almost entirely for that state of affairs. It may well be the case that she has encouraged E to take her side in the dispute and that is to be regretted, it’s reprehensible. However the boy himself as the oldest child of three, caught in an intolerable situation, has his own needs which could have been acknowledged by the father. The acknowledgement could have been by an honest discussion with the mother to see if more time could be arranged for E with her. The father’s evidence that the orders were such that it was too difficult to alter them, is not persuasive. I consider that the parents simply found the prospect of honest respect for conversation too difficult and preferred the conflict.
The father is concerned about the number of times the children have reported their mother as sick and in bed. He gave evidence which I accept, that those statements reminded him of the late years of the parties’ marriage, when the mother concedes that she was affected by heavy drinking. However her circumstances have changed. She now has two very young children, one of whom is disabled, which may be the explanation for the mother being in bed and the children being asked to watch at least G, for periods of time in their mother’s household.
There is benefit to the children in learning to take responsibility for their younger brother and baby sister and to assist their mother to a reasonable degree. It does seem to me that the father in his mind, turned off the possibility that the mother may have changed.
The father conceded in cross-examination that P is sad about changing over to the mother’s household and to his, but put nothing of that in his affidavit. The father appears to me to be under-estimating the extent to which his children are growing up and maturing and have very different personalities; that not everything that arises for them, arises as a result of the actions of either or both of their parents.
The father was asked by counsel for the Independent Children’s Lawyer why he failed to attend a conference organised by the Court for 3 May 2011 for both the parents to seek advice about how to discuss the paternity issue with P. Neither parent attended. The father gave us his explanation, the failure to attend or to advise that he was unable to attend was “error of my judgment.” Subsequently when the same question was asked of the mother, her answer was, “not sure, I’m sorry”.

Ms D, wife of the father

Ms D was a straightforward witness, who gave spontaneous answers that were responsive to questions. My impression is that she has been strongly supportive of the father in the care of his three children, that she was upset when E left the household in 2010 and has continued to feel upset and angry about that, largely blaming the mother.
Her reaction is partly for herself, having become fond of E, partly for her son V who enjoyed the experience of having an older brother who shared his room, and partly for her husband who wanted his family united in one household.
Ms D has very little knowledge of the mother, other than what she has learned through the father and the children. The two women were never introduced and have not had any conversations of significance. I accept the evidence from Ms D that when they do speak to each other on the telephone to make arrangements for the children, they are able to speak politely. Nevertheless there have been rude and hurtful comments made both ways during the course of this conflict.
Ms D easily conceded that the two girls love their mother, that E had always spoken of preferring his mother and that both girls, most particularly P, wanted to spend more time with their mother.
There is no doubt that in the McGibbon household Ms D is generally responsible for ensuring that the children go to school, are on time, fed, clothed and entertained appropriately. That is not to say that their father is not engaged with them, but he works long hours and Ms D has willingly stepped up and become involved in the children’s care.
Ms D described a practise when there was a telephone call between her husband and the mother, where the call would either be put onto loud speaker or the two of them would stand together to listen to what the mother was saying. Ms D would then move to straight away write down the conversation, “We have done that every time since we’ve been together”.
Ms D readily conceded that the mother did not know that that was what was happening and she would feel humiliated had she known. I accept that it was not her intention to humiliate the mother in that way. To her credit Ms D accepted that that was the likely consequence.
Ms D is strongly aligned with her husband in her view that the mother lacks capacity and is likely to have ongoing problems with drug and alcohol abuse that have affected her capacity. That knowledge is not first hand and is based in loyalty to the father.
Ms D’s own child V has no contact with his father, who plays no role in his life. She values the role played by Mr McGibbon in V’s life and also the role of his children in creating a family experience for V. I do consider that there is an element of competition in Ms D’s attitude to the children’s mother. There was material in her affidavit about L and P often coming home sick. Her explanation for including that material was that in her view, the thought that they might be sick had been introduced into their thinking by their mother. Ms D then went on to say, “They are never sick at our house.” That statement is hardly likely to be entirely accurate, but it suggests that Ms D measures the mother’s household against her own and finds it wanting.

Ms Paisley, the mother

The mother is 36 years of age. She has five children aged between 16 years and seven months. My strong impression was that the mother has felt a victim of the father’s applications to the court and has coped with six years of intermittent litigation by trying not to think about it.
I accept that she loves her children, wishes to have them with her and has done her best to cope with the litigation; however she had not read all of the documents and was regularly quite defensive in her answers.
I also have the impression that she is unable to communicate as clearly and in an articulate way as the father, which probably worked to her disadvantage during the marriage.
The mother impressed as an honest witness with the reservation that she avoided topics that were painful.
She readily conceded that she had had a problem with alcohol abuse. Liver function tests were attached to her affidavit and there was no challenge to her explanation that one abnormal liver function test related to anaemia during her pregnancy with her youngest child T.
On balance I accept that the mother has brought her use of alcohol under control.

The mother and E

During the course of her cross-examination the mother revealed that she has had ongoing difficulty managing E in several ways.
There has been minimal contact between E and his father for more than three years. His mother describes him shaking and becoming physically ill as a result of speaking to his father on the phone or even contemplating phone contact. He has missed numerous days of school due to feeling sick as a result. He appears to be plagued with angry thoughts about matters from the past involving himself and his parents prior to separation. These reactions are disproportionate. If his mother has attempted to help him overcome his difficulties she has been unsuccessful. More likely she has been content to believe that the father has caused all E’s problems.
E is failing at school in terms of compliance with the work expected of him. The mother was unable to offer any explanation for why she had failed to engage with the school over this important issue. Letters sent home seeking signature and return were not responded to.[3] The mother accepted whatever explanation E offered and left the matter there.
[3]Exhibits 5, 6 and 7
E’s weight puts him at risk with his health. There is no ongoing coordinated plan with a doctor or dietitian. E told his mother that he goes to the gym at lunchtime and she has left the matter there.
E has been unwilling to really engage with counselling because he fears that any thoughts he shared would likely be a part of these proceedings. I accept E’s reservations.
The picture of E that emerged was that of a sad and rather lonely boy, so closely allied with his mother that she has lost some of her authority as a parent. The two of them look after each other and help each other. E provides assistance to his mother from time to time, particularly with G. That is not to suggest that the mother is entirely responsible for E’s physical and emotional difficulties.
Since the year of their separation E has been absent from school at an alarming rate, which explains his predicament academically. He reacted to the violent angry relationship between his parents and attempted to champion his mother. He clearly blames his father entirely for the breakdown of his parents’ marriage and for his mother’s ongoing distress. He also misses his two younger sisters, as they miss him.
It may be that he has played on his mother’s sympathy to avoid going to school. It may also be that psychologically he is in more trouble than anybody realises and is suffering from an undiagnosed illness. The mother was advised by Headspace that there was nothing wrong with E. She accepted that advice over the evidence of her own observations of him.
It may assist E once these proceedings are complete for him to have the benefit of a psychiatric assessment and the united response of his parents to any recommendation that came out of that.
Unfortunately the mother’s household is embattled. The children have used the surname Paisley on their Facebook pages. I do not consider that this is a breach of the current order that restrains the parents from changing the children’s names from McGibbon, but rather an act of rebellion on behalf of the children, designed to be supportive of their mother. It would have been entirely harmless if these two parents were not so quick to score points off each other at the expense of their children;[4] because they are, the practice needs to stop.
[4]Affidavit of Father filed 08/11/2013, Annexure ‘K’, par 72
The mother herself has been naive about her use of Facebook, expecting that the derogatory comments she made about the father and the father’s wife would not be available to them or the children. She has broadcast her unhappiness with the litigation and her complaints about the father to many friends and relatives on Facebook and it is highly likely that the children have either seen them or had information reported back to them by some of those people.
I accept the mother’s evidence that it has not been her intention to damage the relationship between the children and their father, “I never down [the father] in front of the children ever,” but she has not been cautious in protecting them from her attitude to the father. She is entitled to feel whatever she does about the father, but she has a responsibility to protect the children from negative opinions, just as the father has that responsibility in his household. I consider that both parents have shown a lack of parenting capacity on this topic. Nevertheless the two girls maintain excellent relationships with both parents.
In his oral evidence the Family Consultant identified this fact as cause for hope that the parents will try to work together in future. I agree.
E is aligned with his mother, but I accept has his own personal grievances relating to the relationship with his father, which may have arisen in any event as he moved through adolescence being the only son and eldest child of the parties.
I am quite satisfied that the mother is confident that the father has the capacity to meet the needs of the children other than their emotional needs. Her consent to orders in the Local Court in December 2007, just after separation and subsequently final orders in the Federal Magistrates Court in February 2008 which provided for equal shared care of the children, confirm that.
The mother’s position is that L and P simply want to spend more time with her and be reunited with their brother. I am not entirely persuaded by the father’s case that P’s distress on changeovers is entirely attributable to the mother. L has reacted quite differently and spoke to the Family Consultant with equanimity about living equally in both households. I do consider that the father has listened to what his daughters have had to say, but has never considered allowing more time between them and their mother. This is part of the competitive relationship between the parents.

Relationship with Mr N

The mother has an ongoing relationship with Mr N. He is the father of her youngest child T. They do not live together in the same household, although Mr N regularly stays with the mother. Effectively, Mr N stays with the mother when it suits him and she is understanding of his need to see his own children and to provide significant support to his mother, who is ill. Mr N’s mother has crises in her health from time to time where her son moves in to live with her and to nurse her for periods of weeks at a time.
The mother is hopeful that she and Mr N might form a household at some time in the future. However that would require a change of the orders that require time between Mr N’s children and himself to be at the Town M home of his mother. It would also mean uniting those four children and up to five children of the mother’s in one house, at least from time to time.
The mother has not been particularly compliant with Court orders. She has been unable to facilitate time between E and his father at all. She did not attend the session arranged by the Court on 3 May 2011, for the parents to discuss how to deal with telling P about her paternity. She did not arrange for P and L to be engaged in a program SCAFPS ordered by the Court and she did not enrol in the Keeping in Contact program, which she was directed to do. The mother did attend another program run by the Samaritans and annexed a certificate to her affidavit, although there is no indication of the length of the course.
My overall impression is that the mother has been overwhelmed by the difficulty of having a series of relationships breakdown after a reasonably short time, she has a three year old son with significant disability, she has a 16 year old son who is in deep psychological trouble and a new baby. Her relationship with Mr N is somewhat unstable.

The father’s intensity in pursuing orders for the two girls to continue to live with him has been too much for her to contend with. I do not doubt that she brings a warmth and affection to the lives of the children, which they very much miss in the more structured household of the father. Next year both girls will be at high school, P in year seven, L in year nine and at least for some time, E in year 11. The children can get themselves to school and will be responsible for their own organisation to a considerable extent.
The three children have been distressed by being separated as a group of siblings between their two parents. It must have added strongly to their feeling that the family has been pulled apart. I note the evidence of Ms D that P and L never mentioned the mother’s baby T and she candidly expressed the view that they probably knew that it was better not to talk about that aspect, although no doubt enjoying their baby sister in the mother’s home.

Education

Counsel for the Independent Children’s Lawyer asked a significant question of the mother:
How can the Court have confidence that you will pay more attention to their educational needs [L and P] than you have to [E]?
The mother’s answer was, “I don’t know”. This was the same answer she gave as to why she had not signed and returned letters from the school about E’s non-completion of work. I am satisfied that the mother was unable to give any evidence that would show she had reflected on the significance of the children’s education and her own role in their non-attendance in her care. It is a matter of significant concern.

Mr N, the mother’s partner

Mr N is aged 33. He is presently unemployed. In his affidavit[5] Mr N said that he had just obtained a security license. In the witness box he clarified the situation as having “almost obtained a security license” having applied and sent his fingerprints away. On the final day of hearing counsel for the mother let the Court know without objection that Mr N’s security agent’s license and photo license card had arrived. It may be that he is now able to obtain employment with security work. However, Mr N does not have a driver’s license. Indeed, he failed to be candid about that situation in his affidavit[6] “A few years ago I was also convicted of drive whilst not licensed”.
[5]Affidavit of Mr N e-filed 04/11/2013, par 2
[6]Affidavit of Mr N e-filed 04/11/2013, par 19
Mr N lost his driver’s license soon after obtaining it as a teenager of 16. He was disqualified as a result of riding bikes in public areas. He has had multiple disqualifications for driving unlicensed in the 17 years since, including an habitual offender’s disqualification. He is due to qualify for a license again in June 2014. When counsel for the father asked Mr N whether he had driven out of the car park opposite this Court on the previous day, Mr N declined to answer the question. I infer from his record that Mr N simply disregards the legal requirement to hold a driver’s license in order to drive a car. Whether or not his record in this regard impacts on his plan to work as a licensed security officer in the future is unknown. It may do.
Mr N has children from two previous relationships. O aged 11 and Q aged nine. They are the children of his relationship with Ms X. He sees them in accordance with court orders which provide for contact for him in the home of his mother, the paternal grandmother of those two children. There are two other children to whom Mr N has a commitment. They are S now aged two and R aged four. R is not Mr N’s biological child. She was a young baby when her mother entered the relationship with Mr N. Mr N had believed that S was his biological child, but doubt has been cast over that situation by his mother, Ms AA. The matter remains to be clarified.
Mr N has a child T aged seven months with the mother. He sees her regularly other than at times when he is assisting his mother, who has episodes of ill health. Mr N lives mainly with his step-father and sometimes with his mother and two or three days a week usually with the mother in these proceedings. He has not worked for 18 months but is hopeful about doing so in the future.
The parties became engaged, but have no immediate plans to marry or even to live together permanently. I accept that there is a relationship between the mother and Mr N and they have a child together, but I can come to no conclusion about whether the relationship will become a permanent one with the parties living in a household together.
Mr N enjoys a good relationship with E who confides in him and I accept that he has encouraged E to go on at school to year 12 for his own sake to “get the best job you can.” Mr N appears to be a supportive friend for E, but he has not attempted to take on the fathering role.
Despite being the natural and/or psychological father of five children, Mr N impressed as still somewhat immature, communicating with E and one of his friends as a mate rather than an adult role model. He also impressed as a rather kind and thoughtful member of the household, who facilitates family occasions such as barbeques and games when he is a member of the household.

Family Consultant, Mr U

Mr U has had the opportunity over the preparation of four reports for this family to not only understand family dynamics, but to some extent has watched the children grow up.
In his first report Mr U noted:
[E] was emotionally close to his mother, who had difficulty in maintaining an appropriate parent/child relationship with him. Further that [E] had adopted somewhat of a protective role in regard to his mother, particularly in relation to his parent’s conflict.[7]
[7] Family Report, Mr U dated 10/12/2010 par 20
He captured, then what has continued since, as follows:
[E] is a sensitive boy and appears to react poorly to direct feedback which [E] rightly or wrongly infers as unfair criticism. [E] believes that his father treats him poorly and unfairly and picks on him, particularly in regard to his weight. It appears that [E] reports to his mother what he sees as unfair behaviour by his father and his mother supports [E’s] interpretation thus strengthening the bond between [E] and his mother and strengthening [E’s] views that his father treats him unfairly.[8]
[8]Family Report, Mr U dated 10/12/2010 par 21
I also note Mr U’s comment:
[E] feels very uncomfortable challenging his father and has therefore opted to cease contact with his father and remain in the relative comfort of his mother’s household.[9]
[9]Family Report Mr U dated 10/12/2010 par 22
In my view this situation too has continued. E increasingly resisted any contact whatsoever, including phone calls from his father. He may believe that it is impossible for him and his father to restore a relationship. There is evidence that the mother “begged [E] to visit his father.” There is no evidence that she was reassuring of E that his father loved him and that it would be possible for them to work through their differences and on E’s part, fears, back to the former good relationship which had existed in the past.
In his report[10] Mr U notes that both the mother and E indicated that they did not feel that E “needs to see anyone.” This is in reference to the mother having taken E for counselling, his previous psychologist Mr BB not being available and that it had been difficult for him to see anyone else. The comments that both the mother and E felt that he did not need to see anyone confirms the ongoing relationship of friendship and inter-dependence, rather than one of mother and son.
[10]Family Report Mr U dated 5/11/2012, par 20
In the second report Mr U commented on E’s abysmal record of attending school each day on time and the fact that in their mother’s care, L and P had also been absent from school, disproportionately often in their mother’s care compared to their father’s care. There is no evidence to suggest that either of the children were sick or had other reasons to regularly miss school.
Again Mr U notes that the mother and E each attempted to reassure him that attendance at school was no longer an issue of any concern.[11] Likewise the mother and E together advised Mr U that:
Although [E] continued to be totally estranged from his father they did not see this as an issue and are therefore not overly keen for [E] to see anyone about this.
[11]Family Report Mr U dated 5/11/2012, par 25
Mr U was concerned about this alliance between mother and son and also the failure of the family to engage in family therapy and to address E’s estrangement from his father.
Mr U noted that the mother was “vague and non-committal” about the children’s schooling.[12] When pressed about E’s first semester school report indicating 32 days absence in 20 weeks, the mother blamed the situation on stress resulting from the relationship breakdown with his father, upset and stress following telephone calls from his father and that E had been beaten up by a group of boys.
[12]Family Report Mr U dated 19/12/2011, par 19
The mother stated that she had wanted to change E’s school, that the deputy school principal was in agreement that a change of school would be beneficial and that the father had opposed the change. Mr U’s conversation with the Deputy Principal revealed that she, the Deputy Principal, had not indicated her support in any way for E transferring schools. This is a further example of the mother simply supporting what E wanted, failing to challenge his fears and concerns about his father and blaming the father for E’s absence from school with no basis.
In the fourth and final report of 14 November 2013, Mr U again reflected
on the very poor co-parenting relationship between the two parents, recommending that [L] and [P] live predominantly with one parent[13] and when pressed in cross-examination, recommending that that parent should be the father.
[13] Family Report Mr U dated 14/11/2013, par 50
E remained totally estranged from his father and in the observation of Mr U, had gained weight, was tired and not feeling well on the day of interview. Mr U noted that E had nursed G to sleep whilst the mother was being interviewed and E himself had fallen asleep at that time as well. A close and affectionate relationship was observed between E and G.[14]
[14] Family Report Mr U dated 14/11/2013, par 19
L expressed a view that she would like to spend equal time with her parents as she had in the past, rather than the majority of the time with the father. If she could not have that, her preference was to spend more time with her mother.
Mr U explained to L that equal time arrangements were usually more successful for children when the parents were flexible and cooperated and communicated well. L announced, “Well that isn’t going to happen”.[15]
[15]Family Report Mr U dated 14/11/2013, par 25
Mr U confirmed that both girls were very well aware of the conflict between their parents. He observed and I agree, that whatever orders are made, the willingness of the parents to implement them will determine the outcome for both children.
A risk for P was identified that she may act out her disappointment if she were not permitted to spend most of her term time with the mother and that the mother would support her in not seeing the father, as she has done with E. Mr U also sounded a strong note of caution about the risk for P of information being provided to her from the maternal household about her paternity, which might prompt her to be unsettled if she remained with her father, or disinclined to spend time with him if she remained with her mother.
Mr U expressed the view that it is important for E to know that his father is ready, willing and able to be his parent. I agree. It may be that E, no matter what he says, is hopeful of spending time with his father in future, but is wondering whether he has “burnt his bridges” through particularly what he has said about his father to others and on Facebook.
Mr U was advised that in their cross-examinations neither of the parents had been able to say anything positive about the other, except that the other parent loved the children. Likewise that each of the parents’ affidavits was nothing but critical about the other parent.
When Mr U was asked to identify the positive strengths of each of the parents he did so as follows:
He said that the father was well organised, thorough, established clear boundaries and successfully managed school on time every day. He said that the mother was warm, responsive and approachable as a parent, flexible in a way that made the children feel comfortable with her.
Mr U confirmed that the differences in the parenting styles between the parents, was not the issue. That if the parents were respectful of each other’s styles and engaged with each other, the children would manage quite well.

Changeovers

Mr U referred to the advantages and disadvantages of moving to changeovers at school rather than in a parent’s home. A very significant problem for P is that she has begun to dread changeovers, she then begs her father not to have to leave her mother, she cries and uses insulting language to the father and the whole household is affected by her distress.
Mr U said that there was a positive advantage to changeovers at school of the six hours of the school day being a neutral buffer between exposure to their two hostile parents. The disadvantage would be that the changeovers at school might undermine the benefit of the school being a neutral safe zone, changing it instead to being an area of conflict. He also noted that the return to school might be problematic, given the mother’s past record on ensuring the children’s attendance on time every day.
However on balance, he considered that the advantage of school to school, particularly in circumstances where the children are able to go home by themselves on the bus from high school, outweighed the disadvantages. I agree. The children being in the presence of both parents at the same time or even in reasonable proximity should be minimised.
Mr U expressed “enormous concern” that non-completion letters had come home from Town Z High School about E’s work and that the mother’s only response had been to ask E if he had done the outstanding work, accept his reply and not respond to the school in any way. I share that concern. The point of the letter was to have the mother and E acknowledge by their signature and return of the letter that the work was outstanding and no doubt were hoping for engagement by the mother over future completion by E of all necessary work.
The mother appears to simply lack the capacity to assert her authority in relation to education and school attendance and I consider it likely that in the event the girls lived mostly with the mother, their attendance at school, particularly P’s attendance at school, would go into decline.
The central difficulty in this case is that the mother appears to have greater emotional sensitivity to the needs of the children, but the father has a greater capacity to meet their practical needs and to establish standards in the household. Between the two parents, all of the children’s needs can be well met by one parent or the other if they were to cease being so profoundly critical of the approach that the other parent takes. The children would more easily accept that the rules were different in each household, would not complain and be supported in their complaint.
I note with considerable concern that questions were put on behalf of the mother to Mr U that P might rebel against orders which were not what she wanted, or would “vote with her feet.” P is not yet 12 and her parents should unite to ensure P’s compliance with the orders for her benefit, no matter what feelings of sadness, disappointment or loss they provoke in the parent.
Happily Mr U identified a very good relationship between the three siblings and for L and P with V in the father’s household, and for all three children with G and T in the mother’s household. There has been limited contact between the McGibbon children and Mr N’s children, which would continue at that level whichever household they mainly live in, given his arrangements for contact with his own children.
On the sensitive issue of P’s paternity, Mr U recommended that the current order which restrains the parents from discussing this topic with P continue until the parents were able to reach agreement about how to proceed with that matter. There is some prospect that the parents are now ready to engage with each other and with Mr B to formulate a plan, perhaps with professional input as to how to go about it; that they can agree on. If that is the case there is an enormous benefit to P compared to the emotional harm for P if she is told something inadvertently or maliciously by a third party.
The evidence of the Family Consultant was most helpful in identifying the strengths and weaknesses of each of the parents, in terms of their capacity to meet the children’s needs and the differences between each of the children as personalities within the family.

The law

When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for a child’s parents to have equal shared parental responsibility for the child. In this case, each of the parents did ask for equal shared parental responsibility.
The parents agree that parental responsibility for E should reside with the mother because of the intractable situation which has developed and continued for now three and a half years. It is important in my view that each parent retain the parental responsibility that sprang up on the birth of E, but that the majority of both short and long term issues be decided by the mother. Clearly serious medical issues would attract the need for both parents to adhere to medical advice and to give input into treatment. There is no basis for thinking that such a medical situation will arise, but it is appropriate to provide for that.
In relation to L and P, both parents now agree that they should have equal shared parental responsibility. It is a matter for them to make that work, to consult, to raise issues in a courteous way, to allow each other to express an opinion and to come to a view.
The day to day considerations are a matter for the parent with whom the children are mostly living.
In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).

Section 60CC(2)(a) - the benefit to the children of having a meaningful relationship with both of their parents

L and P do have a meaningful relationship with both of their parents. E’s relationship with his father has broken down. I am certain that the father is committed to being E’s parent and even if it is not until E is a young adult, would be ready to re-engage with him whenever E is ready.

Section 60CC(2)(b) – the need to protect from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

The mother’s submitted views at the conclusion of this hearing, as at the beginning, were that she had been a victim of family violence and that the children had been exposed to family violence at a level which created emotional risk. I do not accept these submissions.
There is evidence of high level conflict between the parents leading up to and during the period of separation. Loud, aggressive, hostile conflicts, shouting, pushing, shoving, indifference to the presence of children during these conversations. The father concedes that he took the mother’s mobile phone, threw it on the roof; retrieved it and that she rang the police. Both parties agree that the police were regularly called during the relationship and at the time of separation.

The children were present and probably heard, if not saw, such unedifying scenes. There is no evidence that the father, as a perpetrator, assaulted the mother. The father contends that the mother was an aggressor, especially at times when she was affected by alcohol. The mother concedes that she was affected by alcohol, but denies being an aggressor. She alleges that the father aggressively attacked her. There is no evidence to support it. I am unable to make a finding about domestic violence, other than as set out above.
I do not accept that the children are at an unacceptable risk in either household of physical or psychological harm.
I must take into account the following additional considerations as they are relevant to the best interests of these children.

Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant

This is a significant matter and there are different considerations for each of the children.
E has expressed a consistent view that he does not wish to see his father at all or communicate with him. The father reluctantly and with considerable sadness, accepts that he cannot force E back into a relationship and that he will now have to wait for E to initiate contact with him. That is an acceptance of E’s view and for that reason orders have been made which reflect E’s view.
However I consider that E has special considerations where he has become his mother’s champion, they have formed an alliance which has been unhelpful to him and he has rejected his father for reasons which are not entirely about his own disagreements with the way his father has treated him. It is almost inevitable that adolescents will come into sharp conflict with one or both of their parents as they achieve independence. It could hardly be otherwise. This process has been distorted in E’s case by him being caught between his parents and strongly aligned with his mother.
L has expressed a consistent view that she enjoys equal time. She is in a position to know. She has experienced equal time between her parents since between early 2008 and April 2012, about four years. She would like to return to that position rather than spending the majority of term time days with her father.
Her second preference, if there cannot be equal time, is for her to spend the majority of time with her mother. That too has been a consistent view. L is a bright, hard working girl doing well at school. She seems able to distance herself from her parent’s conflict, although knowing about it. She has sufficient confidence to be able to express her view knowing that both her parents will hear it. I have no reason to think that she is not mature for her chronological age. She enjoys a good relationship with each of her parents, her step-mother and her half-siblings. I have no reason to doubt that she gets along reasonably well with Mr N, although has not spent a great deal of time with him in the same household.
I do not consider that L is in a position to understand that her mother has an inability to insist on school attendance and boundaries at other levels, which are essential for her to safely travel through adolescence. I note that her confidence in expressing herself represents the strength of the relationship that she has with her father, that he would not be rejecting of her when she expressed her preference for more time with her mother. Indeed, both her father and step-mother have given evidence that she is free to say so in a perfectly courteous way at home.
P has consistently expressed a strong view that she wants to spend the majority of time with her mother. That is her first preference. She misses her mother; she misses the relaxed, warm and easy household that her mother operates. She probably greatly enjoys the presence of the younger children. She is in her final year at primary school. She works well at school, although does not take it as seriously yet as her older sister does. Given the opportunity she may do and come to understand that a good result at school will determine her future in a way that she could not be expected to understand yet. P does not have the maturity to understand the deficits in her mother’s parenting.
I expect that P will be very disappointed about orders that provide for her to continue in the current arrangement, although she may be relieved if the painful changeover arrangement is eliminated.
I do take into account each of the children’s views, but have concluded based on all of the evidence, that they should not simply be implemented for the reasons set out above.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons

The children have strong, close, loving relationships with each of their parents and with each other. They do not enjoy any relationship with their paternal grandparents. They do enjoy such a relationship with their maternal grandparents.
Ms D has become important to the girls and she meets a lot of their day to day needs and does so well. They regard V, Ms D’s son, as a brother.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

These are loving parents and they have each wanted to spend the maximum amount of time they can with their children.
The mother struggled in the marriage with alcohol abuse and the marriage ending badly. The bad ending to the relationship has affected E much more than the two younger children. The mother has failed to participate in making decisions to ensure that E is educated as well as he can be with a view to ensuring his own financial future.

Maintenance

There was critical cross-examination of the father about child support, but the only significant evidence was that the father has paid child support for the children. Indeed his income means that he pays support for E, despite having the younger children in his care.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

By keeping the children in the current arrangement, the effect will be one of disappointment for P, although it may be expressed more vehemently in the mother’s household than in the father’s household.
The main effect will be that L and P will continue to see their mother for substantial and significant time, from after school Friday to before school Monday each alternate weekend, for half of school holidays and at other special times. That is a slight extension of the amount of time spent and in less upsetting circumstances. There should be a positive effect from that change.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with a parent

Fortunately the families live in close proximity and all three children will from 2014, attend the same school, Town Z High School. For the sake of their stability, there will be an order for no change to their enrolment without the written consent of the other parent.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

This is a significant matter. The father has a greater capacity to run a structured and organised household, to ensure the children’s attendance at school and to instil into them a sense that there are consequences for actions.
The mother has a greater capacity to meet the children’s emotional needs by listening to them more carefully and being more flexible in response. There is some indication that the father has learned from a course recently attended a different way of being attuned to the children’s emotional needs, but my overall impression is that the mother has the greater capacity at this time.
The mother has a limited capacity to meet the intellectual needs of the children, only in the sense that she appears either to under value education, or does not have what it takes to ensure that the children attend school and do their work as required. This is a matter of great significance for three children at high school.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and of their parents

E is a 16 year old boy. He has at most two more years at school. He will begin a tech course leading he hopes, to an apprenticeship. He should be encouraged to achieve independence and even more importantly, to restore his relationship with his father in order to be more confident about his own ability to maintain relationships and to deal with conflicts directly and not by hiding from them.
L is a 14 year old girl who is confident, successful and perhaps impatient with how her parents behave. Her comment to Mr U in relation to equal time arrangements working for cooperative parents, “Well that’s never going to happen”, is in my view a reflection of this impatience. If pressed, L might well say that she thinks her parents should get over the past.
P is an emotional child. She has tested the boundaries with her father to the limit in an attempt to force him to allow him to spend more time with her mother. He has withstood that and she has expressed her anger with him. That is a sign of the strength of the relationship between P and her father. It is especially important that the relationship between P and her father not be undermined because of the significant issue which affects only her referred to in these reasons.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

Both parents have been committed to the children. The mother has introduced them to at least three partners. Each of those relationships has lasted approximately one year, although there is some indication that the relationship with Mr N will continue on a committed basis.
There are two younger children in the mother’s household, each one from a different one of those relationships. It has been a lot for the children to contend with and their relationship with their father and his wife has no doubt been a source of stability, especially for L and P.

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family

There is no family violence currently affecting any of the children. They have been exposed to family violence in the past during their parent’s marriage and at the time of separation. I am unable to find that either parent is exclusively responsible for that situation.

Section 60CC(3)(k) - any family violence order that applies to the children or a member of the children’s family

There may have been a family violence order made during the course of the marriage, but there is no evidence of it coming into existence in any event. If it was made, it was 12 years ago.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children

I have come to the conclusion that L and P are most likely to maintain a good relationship with both of their parents if they remain living for the majority of time with their father.
The tendency of the mother with E to allow him to have his own way, not to comply with the orders that the parents put into place by consent, not to complete his homework in a timely way and to attend school punctually each day, not to be part of an ongoing commitment to ensuring that he maintains a healthy weight and general good health, is a risk factor for the mother permitting L and particularly P, to not see their father if they choose not to and to support them in grievances with their father which would be inevitable as they move through adolescence.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

Litigation between the parents commenced within a month of their separation in December 2007 in a Local Court. It has been ongoing since. There has been a series of consent orders, but despite the consent, the unresolved issues between the parents have rankled, which has damaged the children, most particularly E.
The parents have now had the opportunity to air their grievances and to hear the oral evidence of each other, the children’s step-mother and Mr N. Most significantly the oral evidence of Mr U, who expressed in the strongest way, the significance of the parents putting their grievances aside and uniting for the benefit of the children in implementing the orders made.
Despite misgivings about allowing a group of siblings to go on being separated and concern about not implementing the wishes and views of girls aged almost 12 and 14, I conclude that the relationships are best protected and the needs of the children most effectively met by orders for continuation effectively of the current arrangement, with adjustments to changeovers and protective orders in relation to critical and derogatory communication.

I make the orders accordingly.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 January 2014.

Associate:

Date: 24 January 2014

[2014] FamCA 24

24 January 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness