Meriton and Mathers

FAMILY COURT OF AUSTRALIA

MERITON & MATHERS

[2010] FamCA 122

FAMILY LAW – CHILDREN – With whom children live

APPLICANT:

Ms Meriton

RESPONDENT:

Mr Mathers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

1748

2007

DATE DELIVERED:

5 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

17/12/2009, 221/12/2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moss

SOLICITOR FOR THE APPLICANT:

Lamrocks Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Mathers appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

Orders

All existing orders in relation to the children: T, born on … February 2001 and A, born on … December 2002 (‘the children’) are discharged.
The children live with the father at all times other than the periods specified in order 3, during they will live with the mother.
The children live with the mother during the following periods:
3.1each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday during school term time, commencing on the first weekend of each school term and
3.2for one half of all school holidays in a continuous block period, being the first half in even-numbered years and the second half in odd-numbered years, subject to order 3.4 and
3.3from 2:00pm on the Saturday immediately preceding Mothers Day until 5:00pm on Mothers Day, in the event that the children are not otherwise in her care pursuant to these orders and
3.43.4.1 from 3:00pm on Christmas Day until 3:00pm on Boxing Day in even-numbered years and
3.4.2 from 3:00pm on Christmas Eve until 3:00pm on Christmas Day in odd-numbered years.
If the children are in the care of the mother on a Fathers Day weekend, the parties shall effect their return to the father at 2:00pm on the Saturday immediately preceding Fathers Day.
Each of the parties may telephone the children on one occasion only per day when they are in the care of the other parent, between 6:00pm and 7:00pm unless otherwise agreed in writing.
The father will not change the children’s school or place of residence without first providing to the mother no less than 28 days written notice, accompanied by written reasons for the proposed change.
The father shall provide all necessary consents to enable the mother to receive:
1.school reports, newsletters, photographs and notice of all events at the children’s school to which parents are invited
2.all information which she may request in relation to their educational progress
3.all information which she may request from any health care professional whom the children consult from time to time.
Each of the parties will advise the other, as soon as practicable, of any serious illness or injury suffered by the child/ren while in the care of that party.
9.1 The father will, within 7 days of these orders, contact the Interrelate Organisation for the purpose of enrolling the children in the next available course entitled “Seasons” (or similar course provided by Interrelate) and he will ensure that they attend and complete this course.
The father will meet all costs of the course which the children attend pursuant to order 9.
That pursuant to s.65DA(2) and s.62B, 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.
That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Meriton & Mathers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1748 of 2009

MS MERITON

Applicant

And

MR MATHERS

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Ms Meriton and Mr Mathers are the parents of two children: T, born in July 2001 (8) and A, born in December 2002 (7). After a trial on 7 & 8 February 2006, Ryan FM (as her Honour then was) made final orders on 14 March 2006. At the invitation of the parties, I read her Honour’s judgment. These proceedings also concerned final parenting orders in relation to the children.
Essentially the 2006 orders provided that the children live with their father and spend time with their mother on three out of four weekends, until A started school, and thereafter each fortnight. There was also provision for graduated block periods during school holidays and for special occasions.
The current litigation commenced when the mother filed an application on 28 March 2007, seeking orders that the children live with her and spend regular time with their father. In a Minute of Proposed Orders submitted at the beginning of the trial, she sought that this time be each alternate weekend from Friday afternoon until Monday morning; each Wednesday afternoon and for half of school holidays.
The father sought orders that the children continue to live with him and spend time with their mother. He phrased the precise orders which he sought as follows:
“I propose that we maintain the fortnightly weekend arrangement, precisely as it is.
I propose that during the school holidays, rather than staying for a continuous block of either one week or three weeks during the Christmas holidays, the children only stay at the applicant’s house on weekends. This would limit the risk of more harm and damage to the children.
I propose that if the children vehemently do not wish to go to the applicants, that they be granted that choice.
I propose that the applicant takes the children to their sporting events if and when they fall on her weekends.
I propose that a bond be put in place over the applicant to discourage further attempts to prevent phone contact during the access period.”
The Independent Children’s Lawyer (‘the ICL’) sought orders to the effect that the children continue to live with their father and spend time with their mother each alternate weekend and for half of all school holidays. The ICL opposed the father’s application to break up the Christmas holiday time and proposed that the children spend a continuous three week period with their mother.

Background

The mother and the father, who are both 27 years old, commenced their relationship and began to live together in 2000. They married in 2001 and separated in March 2003, when T was two years old and A was aged four months. The children remained with their mother after the separation and the parties established a pattern of time with the father on alternate weekends.
Soon after the separation the mother formed a relationship with her current partner, Mr F. They have two children, B born in July 2004 (5), and K born in December 2006 (3). The mother and Mr F do not live together but plan to do so in the relatively near future.
The mother and Mr F separated in April 2005. As is recorded in the judgment of Ryan FM, the separation caused the mother to become extremely distressed and depressed. She could not cope with caring for the children. She handed T and A to the father and B to Mr F. She regretted her actions within a matter of days and filed an application for the return of the children on 22 April 2005.
At this stage the mother received substantial assistance from workers at several organisation. While she was resident in W Centre, the children lived with her pursuant to interim orders of the Federal Magistrates Court. On her discharge it was ordered that T and A live with their father and spend time with their mother from 4:00pm on Friday until 5:00pm on Sunday. These orders were conditional upon the mother accepting supervision from the Department of Community Services, abstaining from alcohol and prescription drugs and attending upon a psychiatrist for a mental health assessment.
After the final orders of 14 March 2006, the parties agreed that the children would spend time with their mother each fortnight rather than on three out of four weekends. During 2006 there were several occasions when the father unilaterally prevented the children from spending time with their mother. He continued with this behaviour and, ultimately, the mother filed a Contravention Application on 9 November 2007. The father was convicted of two breaches of the orders on 3 December 2007. Since that conviction, the children have spent time with their mother regularly.
In about June 2006 the father moved the children to live with his girlfriend, Ms Y. He made no attempt to discuss this change in the children’s place of residence and school with the mother.
The father’s relationship with Ms Y broke down in 2008. He did not arrange for the children to see her after this separation, although they had lived with her for more than two years. The mother, on the other hand, invited Ms Y to T’s birthday party in 2009. Ms Y saw the boys on several other occasions in 2009, by arrangement with the mother.
The father moved to live in his parents’ home with the children after the breakdown of his relationship with Ms Y. For about four months he lived with a girlfriend known as “P”. Currently he and the children live at rented premises and “P” occupies attached accommodation at the same property. The father made no attempt to consult the mother about any of these significant changes to the children’s living arrangements.
In January 2009 there was an incident between the mother and Mr F, which resulted in an assault charge against him. He pleaded guilty and was placed on a good behaviour bond, without a conviction being recorded. Their relationship broke down for a few weeks after this incident but has been intact since about March 2009.
Mr F lives with his sister and her children. The mother lives in an adjoining suburb.
Mr F works from 6:00am until 6:00pm each Monday, Tuesday and Wednesday. He is also undertaking a TAFE course in screen media, which occupies him from 6:00pm until up to 10:00pm on three evenings per week. He stays overnight at the mother’s home on two to three occasions per week and is usually there when she has T and A.
The father operates his own business, the details of which remained sketchy at the end of the trial. He said that he is able to set his own working hours.

The Evidence and Witnesses

The witnesses in the mother’s case were herself and her partner, Mr F. As is clear from evidence to which I refer below, the mother suffers from depression and has personal vulnerabilities. She presented as an earnest, sincere person who genuinely wants the best for her children. It was obvious that she had considerable difficulty with the experience of being cross-examined by the father, who represented himself. She was reduced to tears on several occasions but there was nothing at all inappropriate in the content of the father’s questions or his demeanour.
Mr F also presented as a sincere, genuine person. He impressed me as a hardworking young man who is making commendable efforts to obtain career qualifications.
The father was the only witness in his case. Although I accept that he was honest in his evidence, he created an unfavourable impression in both his written and oral evidence. My impression of him was entirely consistent with that of Ryan FM.
Her Honour quoted from a Family Report dated 25 January 2006 prepared by Mr G, who observed:
“[The father], by comparison, impressed as an arrogant man who expressed strong and fixed views on most topics discussed. Many of his comments about [the mother] and her family were extremely derogatory, indicating that he considered himself superior to them. He accepted no responsibility for the breakdown of his relationship with [the mother] (she did accept some mutual responsibility) preferring to view all of the problems as due to [the mother’s] intrinsic failings as a partner and parent. He also seemed insensitive to her reported post-natal depression and gave the impression that he regarded this, too, as a sign of weakness.”
Her Honour then recorded her own observations of the father as a witness, saying:
“Within only minutes of making his way to the witness box, the father behaved in much the same fashion as described by the Family Reporter. Rather than focus on counsel’s questions, he took every perceived opportunity to make derogatory remarks about the mother and her family. He discussed the mother’s and his families’ different circumstances with unsavoury class overtones…..”
I, too, was quickly struck by the father’s arrogance and sense of superiority. Numerous examples of his lack of respect for the mother, and blatant condescension toward her, emerged in the course of his oral evidence. I will refer below to some specific examples in the context of my consideration of his parental capacity.
I had the benefit of a report dated 28 October 2009 prepared by Family Consultant Ms S, who also gave oral evidence. The father took issue with several aspects of this report but, in my view, the Family Consultant’s observations and opinions were unshaken after his cross-examination of her. I thus attribute substantial weight to the evidence of Ms S.
I had the benefit of a psychiatric report in relation to each of the parents prepared by Dr W, who also gave oral evidence. I attribute substantial weight to the evidence of Dr W.

Approach To These Proceedings

The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters this statutory conferral.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4).
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2).
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. The legislation contains no temporal definition of “substantial and significant time”. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement.
If there is no order for equal or substantial and significant time, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

The Primary Considerations: Section 60CC(2)

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

I have no doubt that the children currently have a meaningful relationship with each of their parents. It was clear that the mother recognises the benefit to the children of constructive involvement of each of their parents in their lives. She said: “If they live with me they should have as much time as possible with him. It is important for them to have as much time as possible with both parents, have both in their lives.” I have no doubt that she was sincere in expressing these sentiments.
The father conceded that the children need a relationship with their mother. He said: “I think they need to go to maintain a relationship with her. They need this from a psychological point of view to form relationships in later life.”
I would elevate the benefit which the children derive from a meaningful relationship with their mother beyond the father’s belief that it is a basic psychological necessity for healthy development. It seems to me that the boys would derive much benefit from a solid knowledge that their mother loves and greatly cares for them.
The father has been the children’s primary carer since 2005. They would derive a strong sense of safety and security from him.
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father has a fixed belief that the mother neglects the children by failing to provide adequate supervision, routine, hygiene and nutrition. He was taken in cross-examination to the Family Consultant’s observations of a warm, positive interaction between the boys and their mother. He said:
“I was not surprised to read in the Family Report about how they related to their mother – I have read a lot of studies about abused children being able to compartmentalise their emotions and relate as if to a nurturing parent”.
It is true that the mother could not provide adequate care for the children after the parties’ separation. The judgment of Ryan FM sets out her difficulties in considerable detail. I will not distress the mother by repeating this material in my reasons. It is sufficient to say that the mother admitted, in her affidavit, that she “did not cope in caring for the boys and [B]” early in 2005.
It is also true that the father has some justification for concerns as to aspects of the mother’s current care of the children. For example, she admitted that she allowed the boys to watch an M+ rated horror film during the October 2009 school holidays. She admitted that T subsequently became afraid of the dark and had nightmares for some four to six weeks. I accept that she did not intend that the children watch this movie but she should not have played it during the day. It must be that she did not supervise the children adequately on this occasion.
When pressed in cross-examination about examples of what he considered to be “serious neglect” of the children the father said:
“The last ‘serious neglect’ was the horror film. I would have to refer to my notes to say when the previous one was – I am thinking the mid-year holiday when I rang and they were having dinner at 9:20pm. Another example was when [A] was hospitalised for dehydration in 2006 or 2007”.
In his affidavits the father detailed his concerns about the mother’s care of the children. I will refer below to these allegations, when I come to consider her parental capacity.
Thef ather made it clear that his primary area of concern is the three week block periods during the Christmas school holidays. He said: “It is unfair for them to spend three weeks with her because they have to readjust their routine”.

It may be that the mother is more likely to experience problems in sustaining a proper level of care of the children for a continuous period of three weeks. It should be remembered that she has full time care of her daughters, who are aged five and three years. With her vulnerabilities, she may very well find it challenging and stressful to have full-time care of four children under nine years of age, for a continuous period of three weeks. I do not suggest that she is unable to cope with the care of her four children for this short period. I simply acknowledge that it is likely that greater challenges present themselves than would be the case with weekends and shorter holidays.
I am satisfied that the children derive benefit from a meaningful relationship with each of their parents. As noted, I do not accept the father’s contention that an appropriate relationship with their mother is nothing more than a basic psychological prerequisite for their healthy emotional development.
I am far from satisfied that the children need to be protected from abuse by their mother. It may be that she experiences some difficulties in providing for their needs, due to her own vulnerabilities. In my assessment, however, she is not a “neglectful parent”.

The Additional Considerations: Section 60CC(3)

section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

The Family Consultant explored with T his views as to various possible living arrangements. She reported:
“38. If the judge told him he had to continue with current arrangements to spend time with each of his parents [T] said he would say to the judge he didn’t want to do this. He explained that he thought his father should get the first half of the week and his mother the second half. He conceptualised this as ‘spending Saturday to Wednesday with Daddy’ and ‘Wednesday to Sunday with Mummy’.
39. When questioned about a judge deciding that he should see his mother less than he does now, [T] said, ‘I could not do that. I want to see the girls (his half sisters) all the time.
40. [T] was then asked to respond to the judge deciding that he had to live with his mother. He replied that he would not be happy to do this and ‘see less of Daddy’. He added that he would have to go to a new school and ‘she does not have the money’. Moreover, if he had to change school, [T] said he wanted to go back to […] Public School where he had been in kindergarten to year 2 because he still had a friend there.”
Ms S commented about these passages in her report. She said: “[T] found it very hard to reconcile what he wants. It showed that he does not have a good grasp of time”.
The father disputed that T accurately expressed his views to the Family Consultant. He said: “[T] explained to me that he wanted to alter the times with her, so he would have his weekends free every second week”. He said further: “[T] told me that he only wanted weekday time with his mother and to have all his weekends at home. I said it sounded like he wanted more time and quite passionately he said that he did not”. Apparently, the father felt that it was appropriate that he have this discussion with T. I have reservations as to the pressure which was probably placed on the little boy.
The Family Consultant reported as follows on her discussion with A as to his views:
“46.   If the judge decided that spending time with each of his parents would remain the same as it is now, he said he would tell the judge ‘I just want to live with Daddy’. He explained this was because [Mr F] was rude and [Mr F] would not let him have a fire whenever he wanted one.
47.        [A] was then asked to respond to the judge deciding that he would never see [the mother]. He responded, ‘Okay that’s (al) right.’
48.        Finally [A] was asked to consider the judge making a decision that he would live with [the mother] and see his father on weekends. [A] responded ‘That would not be fair, that would be rude’. He said he wanted to see [the mother] on weekends.”
The Family Consultant set out clearly her evaluation of the validity of the children’s stated views. She reported:
“60. There was no indication that [T] wanted to spend less time with his mother when he was interviewed. Indeed he expressed a wish to spend more time with his mother and appeared to value the opportunity this provided to spend time with his little sisters” and
“62. [A] presented as a rather confused little boy. While he said he just wanted to live with his father and he would not object to a judge deciding that he would never see ‘[the mother[, he then said that he wanted to see her on weekends, even though he might not want to live with her.”
The father maintained that both boys regularly tell him that they do not want to spend time with their mother. He said: “Mostly they say they don’t want to go. [T] particularly gets emotional a couple of days before.” He also said “I have explained that they have to go and I can’t step in on their behalf. They understand that they don’t have a choice. They go resignedly.” When pressed, however, the father conceded that they go to visit their mother “willingly”.
On the other hand, the mother said that the children have told her that they are “scared to tell their dad that they love me”. She said that one of the boys told her: “I can’t let him know that I am having fun up here”.
An observation of the Family Consultant suggested that the boys have difficulty in expressing their true feelings to their father. Ms S reported:
“63. During observations with his mother, [A] immediately stopped calling her [by her first name] and, without prompting, referred to her as ‘Mummy’.”
As set out below, the father refers to the boys’ mother by her first name in conversation with them. It was clear that he encourages them to do likewise. When with her, however, A elected to call her “Mummy”.
As noted, I formed the view that the father failed to challenge successfully any of the Family Consultant’s assessments or opinions. I am thus persuaded that the children have a genuine wish to continue to live with their father and spend significant time with their mother.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The Family Consultant assessed that the boys have a loving and positive relationship with each of their parents. With respect to T she reported:
“60. [T] was observed to enjoy spending time with both of his parents, even though the parenting styles of his father and his mother are very different. [T] was very happy to engage closely with his mother and with his little sisters…[T] demonstrated a positive relationship with Mr [F] and interacted with him with ease and pleasure.
61. During observations with his father, [T] also demonstrated pleasure at interacting with him and was tolerant of his father deciding which toys he should be allowed to play with. However [T] and [A] were much quieter and more restrained in their behaviour during this observation.”
Ms S was of the view that A “seemed to have difficulty conceptualising his family, choosing to draw [P], his brother and then himself.” She considered that it is “most unusual for a child of this age not to draw either their mother or their father when asked to depict their family.”
Ms S made these observations in relation to A’s interaction with each of his parents:
“He constantly engaged with [his mother] during the observation, demonstrating a close emotional attachment. [A] also engaged happily with Mr [F] and sought his attention. There was no indication that [A] felt he had to fight for attention from his mother who was more orientated to meet the demands of his sisters. Indeed, [A] seemed to also share his mother’s attention quite happily with his brother. When seen with his father, [A] was quieter, more compliant, demonstrated less creativity and initiative than when he was observed with his mother.”
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
I saw no reason for concern that the mother would fail to promote and nurture the children’s relationship with their father. On the other hand, there are real reasons to doubt that the father has the willingness or ability to do so, other than on an intellectual level and/or for the purpose of retaining residence of the children.
The father took it upon himself to prevent the children spending time with their mother on a number of occasions during 2006 and 2007. As noted, however, there have been no difficulties with the children seeing their mother regularly since he was convicted of two breaches of the 2006 orders in December 2007.
The father made a number of concerning comments about the mother during his oral evidence. He said:
“I generally refer to her [by her first name] to the boys – I choose to do so. I don’t believe it damages them to call her [by her first name] – I am quite within my rights. I am aware that she finds it denigrating” and
“I do value the relationship they have to have with their mother. I value their safety more than their relationship” and
“I am completely aware that I appear hostile and disparaging of her but I don’t speak to the boys about her” and
“I call them morning and night. I don’t think this is disruptive. If her state of mind is so delicate that two phone calls from me upset her so much, then she should not be around children at all.”
I have referred already to the observations of Mr G as to the father’s hostility and negativity towards the mother. Ms S shared these concerns. She reported:
“72. The main concern in relation to [the father] is his openly expressed anger and unrelenting criticism of [the mother] as a parent to the extent that I wondered whether it had become so habitual and so closely linked to his possibly high level of anxiety that [the father] does not understand that he behaves in a denigrating manner to the children’s mother. It was particularly concerning that [the father] seemed not to want to see that his children could spend time happily with their mother. If this attitude was generated mainly by [the mother’s] application to change fairly longstanding parenting arrangements, and that [the father] would be able to control his anxiety and significantly change his attitude when the court case was concluded, there would be less concern about the children being able to maintain their relationship with their mother. However, if the children remain resident with him and continue to experience their father’s open hostility and disruptive behaviour, the ability of these children to maintain a reasonable relationship with their mother in the future will be placed in jeopardy, which would not assist their emotional stability and development.”
Dr W was asked to assess the father’s anxiety level. He reported:
“[The father] certainly suffers symptoms of anxiety, this occurs when his children have access to their mother. The emotion of affect of anxiety is a normal emotion affecting all people. This issue of whether or not anxiety becomes a clinical problem, whether it becomes a psychiatric condition, is whether or not the anxiety is appropriate to the circumstances and what levels of anxiety the individual experiences in response to various psychosocial stressors.
In this particular case there is a background history in which there was a problem when the mother was suffering from psychological and psychiatric problems and during that period she does not appear to have been able to provide adequately for the children. In response to that [the father] is certainly angry and that was noted by the more recent Family Report writer as well.
I am not able to state conclusively whether his levels of anxiety associated with the children’s contact with their mother is within the normal limits although it may be. Much depends on how the mother is functioning and what level of risk she poses at any time to the children’s safety and welfare. This is something which will be determined by her mental state, her psychological and psychiatric condition.”
Dr W discussed with the father the comments of Mr G and Ms S as to his attitude towards the mother. He reported:
“He does appear to be aware and he does appear to understand that his emotional feelings can and almost certainly will impact on the children and in turn impact on the way they relate to and perceive their mother. It is of concern that a report written in 2006 and another report in 2009 have both identified this as an ongoing problem. Because of this it may be appropriate that [the father] see a counsellor to assist him understand more fully his own emotional response to the children’s mother and how his emotional response will impact on the children, particularly if his response is a negative one.”
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
To her credit, the mother recognised that a change in primary residence would be a significant challenge for the children. She said: “I accept it would be an adjustment for the boys to live with me. I accept I would need help to manage that.”
The mother has not arranged any professional assistance or support, despite a clear recommendation from Dr W that she undertake regular counselling. She said that she knows where to locate counsellors but offered no real explanation for her failure to put these arrangements in place.
To date, the longest period when the mother has had the care of all four children together has been three weeks during the Christmas school holidays. Effectively, she is untested as a parent with full-time care of four children under the age of nine years.
It is true that she would probably have the assistance of Mr F, as they both said that they would live together if the mother obtained residence of the boys. As noted, however, Mr F is heavily committed to his work and TAFE course.
Dr W identified the mother’s vulnerabilities and the consequent risk to her ability to provide appropriate long term care for the children. He reported:
“It is in the context of her interpersonal relationships with her partners that the most obvious difficulties arise. Apart from the most inappropriate relationships she had when she was 14 she had two other significant relationships, these with the fathers of her four children…..In the past she has been extremely insecure within her relationships and describes herself as being quite ‘paranoid’ at times, believing that her partners were ‘cheating’ on her. She acknowledges having had a number of ‘rebound’ relationships when her significant relationships broke down…..
Dr [A’s] assessment of the escalating stress she experienced with each successive child is I think a reasonable one. Her capacity to cope diminished and this was probably exacerbated by the instability of her relationships with the children’s fathers.
[The mother] is a woman at risk but based on her self reported history there have been some considerable improvements in her overall life progress since the report she suffered a ‘breakdown’ approximately four years ago. She appears to have increased insight into the need for professional assistance, she reports having the support of her mother and what appears to be more consistent but less than complete support from her partner [Mr F].
She is vulnerable however to having further episodes of depression although I again acknowledge some stabilisation and improvement, noted in her own history, over the last few years. She still does not have a lot of general social support and I am not certain how her relationship with [Mr F] will evolve. If that relationship does break down she will be at risk again of becoming depressed.
Finally I would add that she does appear to be highly motivated at this time to care for her children, she has some understanding about the difficulties associated with caring for four young children but that in and of itself does not indicate that she will be able to do that without assistance.”
I remarked during the trial that I have considerable sympathy for the mother, because her difficult upbringing has caused her to suffer from these personal vulnerabilities. I do not condone, in any way, the disdain which the father apparently feels entitled to pour upon her for this reason.
Obviously, it would be very traumatic and damaging for the children if there was a change of residence and the mother relapsed into depression. I accept that her condition has improved substantially since her dark days of 2005. I accept that she was very sincere in her evidence that she does not want her children again to experience her in that state. In my view, however, a significant difficulty in her case is the real uncertainty that she could cope with the inevitable stresses of continuous care of four children under the age of nine years.
On the positive side, a change of residence would see T and A living substantially with their half-sisters B and K. They both made it clear to the Family Consultant that they love their little sisters and want to spend time with them.
Another advantage of a change of residence would be that the children would have far less exposure to an environment characterised by a lack of respect, if not outright scorn, for their mother. On the basis of the evidence of the Family Consultant, however, I accept that the father has not so far undermined the boys’ relationship with their mother.
The father has imposed changes in the children’s circumstances which might best have been avoided. T has attended three schools since the parties’ separation. The father has moved the children’s residence on three or four occasions. They have also been subjected to the loss of Ms Y, who must have been a significant figure in their lives. It does not seem to have troubled the father that they lost a person who was closely involved in their lives and to whom they would have had a significant emotional attachment.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
According to a computer printout (exhibit 3) the parties’ homes are approximately 52 kilometres and 46 minutes distance and driving time from each other. They both have cars and have been able to make arrangements for changeovers. It would seem that the father has determined the changeover point, without consulting or attempting to accommodate the mother.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I have referred already to the two major areas of concern as to the capacity of the parents to provide for the children’s needs. As noted, there are real reasons to fear that the mother may not be able to maintain her current level of stability if the children go to live with her and their half sisters.
As also noted, the father has clearly demonstrated a disdain for the mother and an almost complete lack of respect for her as a person and a parent. As noted, however, the observations of the Family Consultant indicate that his attitude and conduct towards the mother have not so far undermined the children’s relationship with their mother.

It is disturbing that the children appear to be unable to reveal to their father that they love their mother. In her affidavit the mother said:
“93. During weekends with the boys [A] and [T] often express fear of their dad. For example on a day in approximately July 2009 [A] said: ‘Don’t tell Daddy but I do love you’. On another day [T] said: ‘I do love you Mum, I am just worried about Daddy; and I will get into trouble for lying about hating you for so long.
94. On a date in approximately March 2009 I spoke to [Ms Y] and understood that [T] had got into trouble for telling his father that he loved me. Following this I said to [T] words to the effect of ‘Did you get into trouble for telling your dad you loved me?’ He said ‘Yes, Daddy said I was a traitor and he sent me out of the room’. I said ‘I am proud of you for telling the truth. You shouldn’t feel bad for loving your mum or your dad’.”
This evidence was unchallenged and, in my view, is consistent with the Family Consultant’s observation that A called his mother “Mummy” when out of his father’s hearing. I am satisfied that the children cannot share with their father their love for their mother and their wish to spend time with her.
It seems that the mother has not taken up all available opportunities to participate in events at the children’s school. In fact, she has attended only a very few such occasions. She explained that the boys have asked her not to go to their school because they have told their friends that she is a mean person.
In her affidavit the mother gave an example of the obstacles which she perceives to lie in the way of her attendance at the children’s school. She said:
“91. In 2009 I had arranged to do canteen duty. I told [T] about this. He said ‘I don’t want you to. What if Daddy finds out?’ I said ‘I can tell Daddy it is okay I am allowed to.’ He said words to the effect of ‘Don’t come or my friends won’t be able to go to the canteen because I told them you are mean like Dad says’. I have not done canteen duty.
The father complained that the children are required to get their own breakfast at the mother’s home because she and Mr F do not get up until around noon. The mother said that the family is woken early by B and K and they then get up. I accept the mother’s evidence and note that the father’s complaint rested solely on what the children allegedly told him. In my opinion, he would be a very receptive audience to any criticism of the mother which they may proffer.
I have the same view as to the father’s complaint that the children are given dinner by their mother at an unacceptably late hour. She agreed that there was one occasion when they were eating dinner at about 9:20pm when the father rang the children. She explained that they had been out all day, engaging in fun activities, and arrived home late. I see no harm in occasional late meals during school holidays.
The father made a specific complaint that the children were dishevelled and smelly on the day of the Family Report interviews. This allegation cannot be reconciled with the observations of the Family Consultant. Ms S reported:
“29. [T] and [A], together with their half sisters [B] and [K], were brought to the court by their mother and Mr [F], as they were spending the second half of the school holidays with her. They looked well and all four children were well dressed and groomed.”
The father’s cross-examination failed to shake this evidence of the Family Consultant.
The father made a further complaint that T’s chronic eczema is exacerbated by spending time with his mother. The implication was that she neglects his condition, an allegation which she denied. Once again, the father took the opportunity to criticise the mother as a parent. As Dr W said, however: “Aggravation of eczema may be stress related but we don’t know whether it is because the child was anxious going to her or got anxious there”.
section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
section 60CC(3)(h):          if the child is an Aboriginal child or a Torres Strait Islander child:
(i)       the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
No relevant matters arise pursuant to these two considerations.
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have dealt already with the evidence relevant to this consideration.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
The only potential incident of violence was that involving the mother and Mr F in January 2009. I regard this event as isolated and in no way characteristic of their relationship.
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There are no family violence orders.
section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It seems to me that an order for residence in favour of the mother is more likely to lead to further litigation, than is an arrangement which preserves the status quo. I have referred in some detail to my assessment of the risks to her stability which may well arise from her having the responsibility to provide full time care for four children under the age of nine years.
On the other hand, there may be a risk of further litigation if the father again takes it upon himself unilaterally to terminate the children’s time with their mother. I regard this prospect as somewhat unlikely, however, given that the children’s time with their mother has proceeded without incident for some two years.
section 60CC(4)     Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)       participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to         maintain the child.
I have referred already to the evidence which is relevant to this subsection. In summary, the mother has not availed herself of all opportunities to spend time with the children and participate in their school activities. On the other hand, she has been at the mercy of the father’s disdain for her and his dictatorial attitude.
I have referred already in some depth to the father’s attitude to the mother’s participation in making decisions about major long term issues in relation to the children. As noted, he has made significant changes to their circumstances without consulting her, let alone attempting to gain her consent. He has unilaterally prevented the children from spending time with their mother.

The Presumption of Equal Shared Parental Responsibility

No party suggested that the statutory presumption of equal shared parental responsibility should not apply or has been rebutted. In my view, it is entirely appropriate that these children have the benefit of their mother and father sharing parental responsibility for them. For reasons to which I have referred, I doubt that the father in future will show any real respect to the mother as a co-parent. In the fullness of time, however, the children should come to appreciate that their mother has always wished for maximum participation in their lives.
I am thus required to consider whether an order for equal time would be reasonably practicable and in the children’s best interests. I am satisfied that neither of these two criteria are met in this separated family. The distance between the parents’ homes means that the children could not attend the same school in an equal time arrangement. The father’s disdain for, and hostility toward, the mother would mean that any real cooperation between them would almost certainly be absent. His sense of entitlement and superiority would almost certainly eliminate any prospect of flexibility in arrangements for the children. I note, in any event, that there was no proposal for equal time from either parent or the ICL.
I am now required to consider whether an order for substantial and significant time would be reasonably practicable and in the children’s best interests. The considerations to which I have referred militate against substantial and significant time. It is thus necessary to determine with which parent the children should live predominantly.
It seems to me that there is an appreciable risk that the mother would be unable to cope with full time care of her four children. As Dr W said, she is “vulnerable to further episodes of depression” and history demonstrates that she has great difficulty in caring for her children in that condition. I stress again that I make no criticism of the mother but I must acknowledge her personal vulnerabilities, in the interests of the children. I simply cannot take the risk that she will fail to cope with full-time care of her four young children. It thus seems to me that it is in the best interests of T and A to continue to live predominantly with their father.
In reaching this conclusion I have balanced this risk against the father’s attitude to the mother and the children’s relationship with her. There is no reason for me to think that he will develop any respect for her or place any higher value on the mother/child relationship. Having been convicted of breaching court orders on two occasions, however, he now seems less willing to act unilaterally. In summary, it seems to me that there is a lesser risk that he will undermine the children’s relationship with their mother than is the case with the prospect that she will be unable to cope with full time care of her four children.
I do not intend to change the current arrangement for weekend time. It seems to me that the children’s stability requires that they return to their father on Sunday afternoon, to prepare for school on Monday morning. I am not confident that the mother could always deliver them to school punctually on Monday morning. I have no reason at all to think that the father would extend any of the cooperation which would be necessary if weekend time were to conclude at the commencement of school on Monday morning.
An issue arose as to whether the children’s Christmas school holiday time with their mother should be for shorter periods than a three week block. The ICL opposed this proposal, pointing to the increased number of changeovers.
I am not satisfied that it would be in the children’s best interests for their block time with their mother in the Christmas school holidays to be broken into shorter periods. It is obvious that they greatly enjoy being with their half-sisters and this three week period allows them an opportunity to live as a family unit with B and K. I am not satisfied that there is sufficient substance to any of the father’s criticisms of the mother’s parenting to warrant a departure to the current arrangement.
The father indicated that he would consent to an order that he be restrained from changing the children’s school. The ICL proposed that he be restrained from doing so without first giving 14 days notice to the mother. I will order that he provide no less than 28 days written notice of any proposed change in the children’s school or residential address. I will also order that he accompany this notice with written reasons for the proposed change.
The ICL also sought an order to restrain the father from referring to the mother by her first name, when speaking to the children. It is appropriate that he refrain from calling the children’s mother by her given name when speaking of her to them. The difficulties of enforcement, however, lead me to decline to make such an order.
The ICL sought a number of orders to compel the parents to attend counselling. I doubt the father would be receptive to any advice that a therapist could provide to him, despite his stated willingness to attend counselling. He said that he believed that counselling would benefit him but I doubted the sincerity of these words. I will not order the father to undertake any therapy. He would be well advised, however, to pursue this option of his own volition.
The mother said that she knows how to access appropriate professional support. I would urge her to do so as soon as possible, for the benefit of both herself and her four children. I will not make an order that she seek professional assistance. If she does not manage to do so satisfactorily, her failure would provide the father with another opportunity to criticise and demean her.
The ICL also sought an order that the father cause the children to undergo a course known as “Seasons”, which is conducted by Interrelate. I will make this order and the father will be required to meet the cost. The mother is in receipt of social security benefits and he conducts his own business, the income of which he did not disclose.
I will not order that the mother enter into a “bond”, to ensure that the father is at liberty to telephone the children at will when they are in her care. On the contrary, I will make orders to limit his telephone calls to one occasion per day. It seems to me that the mother may be less disrupted during these periods if she knows that there will be only one call, at a specified time, per day.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 5 February 2010

[2010] FamCA 122

5 February 2010

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Family Law

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