MERRICKS & DEERING

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRICKS & DEERING

[2018] FCCA 3431

Catchwords:
FAMILY LAW – Parenting dispute – two older children living with father and refusing to see mother – two younger children living with mother and refusing to see father – both parents blaming the other for the children’s significant difficulties – both parents bereft of insight as to their own contribution to the problems – risk of serious developmental harm to the children as a result of parental conflict – court regarding both parents as equally selfish and irresponsible – children to remain as they are and all parties to be ordered to engage in therapeutic counselling.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant:

MS MERRICKS

Respondent:

MR DEERING

File Number:

DGC 2069 of 2014

Judgment of:

Judge Burchardt

Hearing dates:

20 & 21 September 2018

Date of Last Submission:

21 September 2018

Delivered at:

Dandenong

Delivered on:

10 December 2018

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Allen

Solicitors for the Independent Children’s Lawyer:

O’Halloran Davis

DRAFT ORDERS

That all previous Parenting Orders be discharged.
That the Mother and Father have sole parental responsibility for the children [W] born 2005; [X] born 2006; [Y] born 2009 and [Z] born 2010 when they are in their care.
That the children [W] born 2005; [X] born 2006 live with the Father.
That the children [Y] born 2009 and [Z] born 2010 live with the Mother.
That the Mother spend time and communicate with the children [W] and [X] as agreed.
That the Father spend time and communicate with the children [Y] and [Z] as agreed.
That for the purposes of changeover where not otherwise occurring at the children’s schools, it shall take place at the [Service Station], [Town A] in view of the said Service Station’s security camera.
That in the case of matters relating to the children, such communication to be sent and received via text message between the parents.
That each of the parents be permitted to attend all school related and extra-curricular activities to which parents are usually invited regardless of whose care the children are in at the time.
That the Mother and Father will obtain a separate school photo order forms for the children from the school and will pay for any school photos that they choose to order.
That the Mother and Father shall receive copies of school reports; newsletters; photograph order forms and all other documents normally sent to parents, at their own expense (if any), for the children and each parent will sign with the children’s school any documents necessary to evidence that permission and sign all necessary documents required of the children’s school to ensure that each of the parents receives all information usually provided to a parent.
That unless otherwise agreed in writing by the Mother and Father;
(a)
The Paediatrician that will see the children, if needed, will be

Dr G or another Paediatrician at his practice;
(b)The General Medical Practitioners will be the [Medical Centre];
(c)And the parents shall use those treaters other than in case of emergency or as agreed between the parties in writing (including text message).
That unless otherwise agreed in writing the children will attend Primary School at Town A Primary School and Secondary School at Town A Secondary School.
That the Mother and Father shall inform the other, as soon as practicable, of any treatment received by any of the children while in their care and shall authorise any medical treater to provide to the other parent any information in respect to that treatment.
That both parents ensure that each of the children are suspended during all times that they use the Internet or other electronic communications while in their home and that such internet use, including Apps and games, are age appropriate.
That each of the parties be restrained from:
(a)Denigrating the other parent; members of their family or household to or within the presence of the children or any of them;
(b)Allowing any other person to denigrate the other parent, members of their family or household in the presence or hearing of the children;
(c)Discussing these proceedings with or in the presence or hearing of the children or any of them;
(d)Committing family violence towards each other or to the children or in the presence of the children or any of them;
(e)From exposing the children to verbal; emotional and physical violence or aggressive exchanges between them;
(f)Using corporal punishment to discipline the children;
(g)Using the children or any of them as a means of communicating messages between the parents.
That the Mother and Father shall do all things necessary to ensure each child in their care is undertaking a sporting activity or cultural activity and each parent shall ensure that the child attends those activities if in their care.
The Mother and Father be at liberty to make application for Australian Passports to be issued in the children’s names and the other parent, if provided with such applications, shall provide their consent.
The Mother and Father be at liberty to holiday during their time outside the Commonwealth of Australia with the children and the other parent shall not unreasonably withhold their consent.
That if the children or any of them, when with either parent express a desire to communicate with the other parent, then the parent and children are with shall allow such communication.
The Mother and Father be at liberty to provide a copy of this Order to the children’s schools.
The Mother be restrained by injunction from physically disciplining and/or assaulting the children in any way.
That pursuant to Section 65DA(2) and Section 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 the 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2069 of 2014

MS MERRICKS

Applicant

And

MR DEERING

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of four children: [W], born 2005, [X], born 2006, [Y], born 2009, and [Z], born 2010. At present, the two older children live with the father and spend no time with the mother, and the two younger children live with the mother and spend no time with the father.
The father seeks that all four children live with him and spend time with the mother, and the mother seeks that the two younger children live with her and the two older children with the father, and spend time with the parent with whom they do not live.
The Independent Children’s Lawyer has put two options to the Court, which are, effectively, the two immediately above. On balance, the Independent Children’s Lawyer supports the mother’s proposal.
This case involves the most appalling hostility between the mother and father. It is greatly to their joint discredit that the unsatisfactory circumstances that now obtain have occurred. For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer’s option 2.

Agreed or Undisputed Facts

The parties engaged in a first tranche of litigation in 2014 to 2015, which led to final orders on 6 July 2015 made by Judge Phipps. It is not necessary to rehash the materials placed before the Court, but it is apparent that that proceeding was attended by a measure of bitterness all round. For present purposes, relevantly, the children were ordered to live with the mother and spend time with the father each alternate weekend (increasing to Wednesdays if the father relocated closer to the children’s schools).
The father was born on 1973 and the mother on 1976. It would seem that the parties were in a relationship from 2003 until August 2013 (father’s version) or December 2012 (mother’s version).
Although overtaken by events, it is appropriate to pay some attention to the family report of Ms H prepared in the earlier proceeding. The father was seeking a shared care regime. He had commenced a relationship with Ms J, who has two children, [P] and [Q], in early 2013. I note that in his interview with Ms H, the father accused the mother of being a compulsive liar, a shoplifter and having convictions for theft and dishonesty.
The mother, by way of contradistinction, said that the father’s application to have the children live with him was motivated by money. I note that at paragraphs 40 and 42 of the family report, [W] seemed sad and down and was tired of the fights between his parents. At paragraph 55, the two younger children interacted better with the mother than the elder two. At paragraph 58, Ms H noted the mutual accusations made between the parties and, at paragraph 63, the children were aware of the conflict. She recommended a 9/5 regime.
The father is still in his relationship with Ms J, whom he has married, and the mother has herself re-partnered.

The Parties’ Applications and Affidavits

The mother’s initiating application filed 19 December 2016 sought, essentially, that she be permitted to enrol the children in Town A School. She deposed to difficulties experienced by [W] and [X] at school, in particular.
The father’s response, unsurprisingly given the parties’ history, sought the children remain at their then school. He sought that [Y] live with him and that the other children spend equal time with each parent on a week-about basis, and that the mother be restrained from cutting the children’s hair and that the father have sole responsibility for medical treatment for [Z].
The father’s affidavit (and it should be noted that both parties’ affidavits tend to be, to an extent, uninformative) attested to communication problems with the parents. He deposed to [Y] being abused by her mother, grandmother and older siblings. He deposed to Department of Health and Human Services involvement with the mother, including assertions that the mother had hit the children. By and large, he took issue with the mother’s assertions and criticised her parenting capacity.
The mother’s responding affidavit, filed 20 April 2017, is, essentially, a series of denials of the father’s materials.
The next affidavit is that of the mother filed 18 September 2017. This disclosed that [X] was suicidal. It is replete with criticisms of the father and his partner Ms J. I note annexure D, being hospital records that relevantly disclose:
“… mum states that principal at school had told her about [X] tying a skipping rope around her neck and to have seen a mark but mum has not seen this nor is it evident today when in ED.”
I note a text message from [X]’s teacher is annexure E, which disclosed that [X] had stated on three occasions that she wished to kill herself.
The mother filed a further affidavit on 21 September 2017. In part, and indeed in large part, it details a somewhat unfortunate attendance by both parties at a football final.
More relevantly, annexure L being correspondence from Anglicare Victoria dated 20 September 2017 shows that [X] was self-harming.
Annexure N from the Region 1 Hospital, a letter to [X] and the mother, it is obvious, that inter alia [X] had:
“feelings of wanting to harm yourself by sharp objects

or strangulation.”
It should be noted in passing that the maternal grandmother has filed several affidavits which are wholly supportive of her daughter’s position and critical of the father.
The father filed a further affidavit on 9 October 2017. Much of it is repetitive of earlier matters. I note that at paragraph 21, [X]’s placing the skipping rope around her neck is dismissed as a joke.
It is perhaps important to note what the father said at paragraph 24:
“As I have stated multiple times to both health professionals,

Ms H and Ms Merricks herself “these issues don’t manifest themselves in our house, so I struggle to understand where they are coming from” but after recent events I feel it is most likely the people Ms Merricks surrounds herself with and the constant discussion of what is going on in these court proceedings, even after it was ordered that the children not be exposed to it.”
It is sufficient to say that the affidavit is once again replete with numerous criticisms of the mother.
Ms J, as she now is, has also filed an affidavit on 9 October 2017. She deposes to [P], being aged 15, and [Q], 12, who live with her and the father. She and the father were actively involved with Town B Primary School. I note Ms J is, likewise, critical of the mother’s failure to engage with the school. Like the father, (see paragraph 17) Ms J did not accept that [X] would have any risk of self-harm and she attributes, at paragraph 18, [X]’s meltdowns to her mother.
Dr G, Consultant Paediatrician, has filed two affidavits sworn on 22 December 2017. The first relates to [X], [Y] and [Z]. Relevantly for these purposes, Dr G observed, at page 4 of 9 of the affidavit:
“Like all the other health professionals involved in their care I am concerned with the children’s emotional wellbeing and mental health. In my view their difficulties are underpinned by the dysfunctional and antagonistic relationship shared by their parents Ms Merrick and Mr Deering. They have both been highly critical of each other, and blame each other for the children’s difficulties. The children are all unhappy, and acting out at school. This is a particular issue for [X], and in the latter half of this year [Y]. As has been well documented there have been episodes of self harm with [X], and [Y] has become particularly defiant and difficult recently.”
Dr G went on to support a change of school.
Dr G’s second affidavit is wholly concerned with [Z], and while I have had regard to it, it is not necessary to paraphrase it further.
On 27 July 2018, the father filed an affidavit in support of his Recovery Application. Leaving aside ongoing difficulties between the parents, the father deposed that on 13 June 2018 he received a call from the Vice Principal at Town A Primary School saying that [X] was in the office, hysterical and asking him to collect her. There was an allegation that [X] had been assaulted by her mother. He promptly took the child to the police.
On 5 September 2018, the mother filed a responding affidavit. Covering the period from Court orders made in January 2018, pursuant to which all four children were to live with the father and spend time with the mother, these being orders made by consent, the mother deposed, at paragraph 9:
“Sadly since the court hearing in January life for all our crew and myself turned pear shaped extremely quick. All of our crew stating to myself, Partner Mr K, Close Friend Ms L, Grandma Ms M, Grandpa Mr N at different times that they were sat down after court and days following, were told that mum doesn’t want you, Stating “Ms J and dad had said that I was a bad mother, that I was only focused on my work, that I didn’t care about them and had given up on our crew, what sort of mother gives up her children, only having them for one week on the christmas school holidays, that Ms J was now their mother, and was better at being their mother, and that I hated them”.”
In amongst the generally dispiriting matters asserted in this affidavit there is an account at paragraph 20 of a meeting held at the school in June 2018 following a call from the Vice Principal at Town A Primary School, Ms O, stating that [X] had self-harmed. The mother, the father, his partner and various school officials, together with the maternal grandmother attended. The meeting was clearly a debacle because the adults were unable to concentrate on [X] and were concerned only to fall out with one another.
In his affidavit filed on 5 September 2018, the father complained that in July 2018, [Y] and [Z] had run from school to the mother’s partner’s [business], which is relatively close to it. I note that he appended at A-4 [X]’s police statement given on 28 June 2013 in which inter alia she alleged that her mother slapped her on 13 June 2018.
It should be noted that this is only a brief and superficial traverse of the very substantial amounts of materials that the parties have filed. It gives, I hope, a flavour of mutual accusation and the toxic interaction between the adults in this case.

The Department of Health & Human Services Report, dated 3 April 2017

In a section 67Z response letter, dated 3 April 2017, the Department noted, inter alia, that on 24 April 2015 it was reported that there was an injury to [Y] and [W] caused by the mother hitting them with a belt. The children disclosed physical discipline with an implement by their mother to Child Protection and SOCIT. The mother did not show insight into the seriousness of the concerns, she would not state whether or not she intended to continue to use physical discipline on the children and she refused to sign an undertaking to refrain from doing so until she had legal representation.
I note that on 16 November 2016 [Y] presented with an injury and disclosed that it was caused by her mother hitting her. The mother acknowledged using smacking with an open hand as discipline when [Y] demonstrated challenging behaviours. Ms Merricks was agreeable to a referral for support.

Exhibit ICL-1

The Independent Children’s Lawyer tendered as exhibit ICL-1 a report from Town C Paediatric Group, dated 6 August 2018. I note that the writer, Dr G, asserted:
“The family dramas continue, and after speaking with Mr Deering and Ms J I telephoned Ms O, Assistant Principal at Town A Primary. [Y] and [Z] have been living with Ms Merricks for the past three weeks (“they run from school to the [business]”) but [X] will not go any more. [W] has apparently not seen his mother since February. [X]’s refusal to visit her mum seems to have stemmed from an incident in mid June when allegedly Ms Merricks assaulted her; the police were involved. [X] continues to see counsellor Ms R fortnightly and apparently she is impressed with [X]’s progress. Ms O told me that [X] was “really settled ... no problems at all”.
[Y]’s behaviour is much more of a concern however. She is said to be physically well but is acting out at school. Mr Deering told me that she had been leaving the classroom, playing games with the staff and she was described as “highly manipulative”. She and [Z] allegedly tell their mother Ms Merricks what to do; when Ms Merricks does not cope she calls Mr Deering.”
I note that Dr G concluded his report by stating:
“I elected not to contact Ms Merricks directly as I am aware she is displeased with my previous court report. I was left with the strong impression [Y]’s issues are not primarily medical but socially determined, and will need to be addressed by the Family Court in September.”

The Family Report of Ms H dated 18 July 2017

Ms H’s report noted at paragraph 3:
“Over the years the parents have struggled to conduct cooperative communication but failed to reach peaceful agreements between them in relation to several issues relating to their children. The parents have taken several Intervention orders against each other. There have been ongoing disputes between the parents and concerns regarding children’s schooling issues.”
I note that the mother was recorded as being in a new relationship with Mr K since 2016.
I note that at paragraph 20, the mother:
“was concerned that [Y] seemed to have no remorse and she deliberately caused pain to her siblings and to pets if she did not get her way”. The mother expressed a view that [Y]’s problematic behaviour could have come about due to an incident of her being hit by the father’s car when she was a baby. When confronted, she also conceded that the incident of her using the belt on [Y] might have made her more defiant.”

At paragraph 21 the mother conceded that 18 months previously, she had clipped [Y] on the backside with a belt after [Y] had assaulted [Z].
I note that at paragraph 33 the father repeated his assertion that:
“… the children presented emotional and behavioural difficulties only at the home of the mother.”
I further note that at paragraph 51 [W]:
“… confirmed that the internet was only available at his father’s home. He noted that his siblings behave better in their father’s home. They were scared that if they misbehaved, their iPad would be taken away from them.”
At paragraph 56, Ms H recorded that [X]:
“Was noticeably depressed and emotionally tired during her interview.”
At paragraphs 60 to 61, [X] admitted that she did not feel life was worth living and that she thought about killing herself many times.
At paragraph 61, Ms H noted:
“[X] responded with deep despair ‘so far my life has been horrible. How can it get any better?’” It was a shocking disclosure from a child aged 10 years.”
At paragraph 66, Ms H noted that when she asked [Y] to draw a picture and explain her feelings:
“[Y] spontaneously drew a smiling human figure with a knife in hand and gave a title to the drawing ‘killer’.” It is noteworthy that [Y] explained that sometimes she heard voices telling her to hurt people, which she followed, indicating that [Y] may be struggling with mental health issues.”
[Y] disclosed at paragraph 65 that her mother had belted her for hurting her younger sister. I note that the mother had informed [Y] that her father had run over her as a child.
[Z] had likewise (paragraph 67) been made aware of the car accident involving [Y].
At paragraph 74 Ms H observed:
“The parents separated almost four years ago. They are still stuck in their unfinished past and present personal issues and the four children have become enmeshed in the ongoing parental conflicts with zero goodwill between their parents. These young children have been constantly shifting between two chaotic family home environments witnessing the perpetual disputes between the adults that provide care for them. The ongoing bickering among the siblings mirrors the parental hostility towards one another.”
Having noted that each parent has a lifetime Intervention Order against the other and the ongoing conflict between the parents, Ms H continued at paragraphs 77-79:
“77. To develop a sound world view and a healthy self-concept, the children need the respect and protection of the adults that take them seriously, love them genuinely and sincerely help them to become positively oriented in the world. The exposure to ongoing parental discord has detrimental impact on the children and in this family, each child is expressing their inner emotional turmoil in a different way based on their personal vulnerabilities. The parents are unable to focus in a cooperative way to help their children and are not mindful that their children want and need to go on loving the two parents who have stopped loving each other and in fact they immensely dislike each other.
78. The writer notes that a report interview process with the family was a daunting task as the depth of each child’s problematic issue came to the fore. There were shocking disclosures and revelations, particularly on the part of [X] and [Y]. [X] speaks seriously about suicide and comes across as the most miserable and [Y] is likely to be experiencing the initial stages of mental health issues. It is likely that both girls are depressed and raging with suppressed anger and frustration.
79. The children clearly state that they have internet access only at their father’s home. Based on their statements, it seems that there is little supervision of their activities on the internet. [X] speaks about having adult boyfriends that she has made online. She is seeking thrill and attention from outside sources and she can easily fall victim to child abusers on the internet.”
At paragraph 81, the report continues:
“The father opposes the mother’s proposal. He seeks that [Y] resides primarily with him. He and his partner indicate that [Y] presents no difficult issues at the father’s home, which is difficult to believe and even comprehend.”
Ms H went on to recommend no changes to the children’s current living arrangements.

The further Family Report of Ms H dated 13 December 2017

Ms H conducted interviews on 28 November 2017, [Y] cried and said that she missed being with her mother and wanted to see her and wanted to go home with her siblings. Her mother smacked her the previous Friday on the bottom because she had annoyed her.
When Ms H told the father and the stepmother about [Y]’s wishes, they assured that they had no plan to withhold her but wanted to make sure she was safe with her mother. When the mother came, [Y] left the father’s company and joined her mother and siblings. All seemed well between [Y] and the other family members. [Y], as Ms H put it, “certainly wished to go home with her mother”.
The stepmother and the father indicated that they were determined to take [Y] home on that day, and it took the good officers of the security team at the Court and Registrar Moser to enable [Y] to depart without actual brawling between the parents.
I note at paragraph 11:
“The children seemed totally distressed and distraught through this process”.
When the father and stepmother were told that the mother had gone home with all the children (paragraph 12):
“The stepmother became frantic making threats to the writer and the registrar and loudly commenting that, ‘right now, [Y] is being bashed in the car by her mother and the grandmother on their way home. You two are responsible for that. We will take it to the highest authority.’ Both father and stepmother expressed a view that they were ‘disgusted with the way this matter was handled by the Court personnel’ and later informed the writer that a complaint was lodged to the authorities about the incident.
It is perhaps sufficient to record that during their interview with

Ms H, the father and stepmother were relentlessly critical of the mother. At paragraph 18 Ms H recorded that they did not believe that [X] or [Y] had self-harm tendencies or suicidal ideation.
At paragraph 19 the father repeated his firm view that:
“these issues don’t manifest themselves at his home. He informs that at his home, the children face consequences for their actions and rewards for good behaviour, therefore they behave well. He is convinced that the mother has no time or patience to attend to the individual needs of the children.”
I note that the stepmother, Ms J, was involved with the children, and at paragraph 23 Ms H recorded:
“During the interview Ms J seemed overcome with intense emotions. She spoke in a loud voice and cried profusely and did not seem aware of her heightened emotions. She was angry, hurt and seemed to feel helpless demonstrating an unappreciated overinvolvement with the matters relating to her stepchildren.”
Much of this report is concerned with the then-extant issue with a change of school. The mother noted lack of cooperation between her and the father in relation to medical appointments (paragraph 31) and the father’s refusal to accept that the children had problems. The mother was strongly arguing that during school week, the children needed to be in one home with a constant carer (this position needs to be contrasted with the orders consented to by her in January 2018 that the children live with their father).
Unsurprisingly, the children were distressed and distracted given the brawl brewing between the parents in relation to the issue of [Y]. [W] was concerned about his parents’ fight over [Y]. He was looking forward to commencing school at Town A Secondary and a fresh start in 2018. [W] denied that [Y] was hit by his mother and said that he had done it. [X] still seemed depressed. [Z] seemed impacted by [Y] staying over at her father’s home.
At paragraphs 44-45, Ms H reported:
“44. The complicated interactional dramas mostly unnecessary, appear to be a recurrent occurrence in this family, whether it takes place at [W]’s football game or on the Court premises. The negative interactions at times instigated by the mother and invariably the father become involved and at other times it is the father, or the stepmother taking some action without consulting the mother, such as if [X] uses pads or a tampon during her initial periods which brings various negative responses from the mother. This recurrent undesirable switch between the parents is highly damaging to the children as the currency used in these transactions are the four emotionally immature but innocent children of the family.
45. Mr Deering expresses a view that the counsellors, police and Child Protection authorities involved and finally the legal system have ‘failed’ his children on a repeated basis. He remarks that all the counselling, legal, medical and educational professionals working with the children over the years have ‘failed to get it right’ or end up placing the family in ‘a too difficult basket’. However, it is noted that the parents do not agree with the conclusions drawn by any intervening agency unless it supports their basic or slanted position.”
At paragraphs 51-54 Ms Merricks reported:
“51. The mother expressed a view that any family therapy or counselling would not be effective as the family had passed that stage long ago. She stated that the father flatly refuses to believe there are physical, psychological, educational, social or behavioural issues with any of their children and he expresses a view that if she identified, such problems, it is due to her parenting deficiencies as he does not observe the children to be facing any problematic issues.
52.    The writer finds it hard to believe that these children are totally different at their father’s home. However, they only spend 5 nights at his place which includes a leisurely weekend. As they spend a lot more time at their mother’s home, it is likely there will be more challenges in relation to parenting them whilst in her care.
53.    The writer does not believe that there are easy or perfect solutions to the problematic issues faced by this family. That is the reason the number of professionals involved with this family are unable to assist the children in a wholesome manner because the source of the problem need to be owned and addressed by the father and the mother of these children and they need to stop blaming everyone around for their intrinsic mutual distrust, intense hostility and unresolved emotional issues between them. Until such time the parents can achieve that outcome, it is likely that these children will continue to suffer on all counts.
54.    The writer observes that Ms J, the stepmother works exceptionally hard to assist these children in the best way she knows, and she can. But on many levels, her hard work to see that these children are well looked after at least when they are in her care goes futile due to the entrenched negative relationship between the parents. It is observed that on an emotional level, Ms J gets victimised by the mother and by the children as they tell tales about her to the mother when they return to the mother’s care to obtain their mother’s approval. Ms J then becomes the target of mother’s anger. The writer is of the view that Ms J needs to withdraw from becoming overinvolved with the Deering children and give priority to realise her own emotional wellbeing and her two children.”
I note that Ms H was unable to give only one option for the children. Those recommendations have been somewhat overtaken by events.

The submissions made and the evidence given at Court

What follows is taken from my notes. It is obviously not a transcript but records aspects of the matter that I found noteworthy. It should be noted that both parties were self-represented and this presented unsurprising forensic difficulties.

The opening and evidence of the mother

The mother said in opening that the arrangements entered into in January 2018 are not working for the children and need to be rectified. [W] has not been to her since February 2018. The father went to the police but everything was dismissed. Nonetheless, [W] stays with his father. [X] has assaulted the mother and [Y] which led to a police report. The girls decided not to live with the father and refused to go with him. [Y] jumps out of the moving car. The girls have been with her since July 2018. She hopes [W] and [X] will apologise with age. She would like the siblings together. [X] swears at [Y] at school. She hopes that a relationship with [X] could be improved with therapy but it is not possible now.
The mother was called and adopted her affidavits as true and correct.
Under cross-examination by the father, the mother said that the children were aware of Court dates and were aware of the preparation of paperwork. She shields them as much as they can be. She has not discussed the case with the children but they are aware of it. The school is involved. The orders in January 2018 did not work from the moment when they were put in place. The children were told by their father, “Your mother doesn’t love you”.
The mother denied that [W] was ostracised and berated by her. [W] was constantly asking her to pick him up. She admitted that [W] was not the closest child to her. After the Christmas holidays, [W] was a mess. [W] does not want to be at her house because there is no Wi Fi and Xbox and he cannot be on the computer all the time. The mother was questioned about taking [Y] to Dr G. She said there was a six-month wait. [Y] was out of control. She does not want her medicated. She wanted to find out what the problem was. She is not comfortable with the father anyway and had not had recent dealings with Dr G. She went to Dr G but [Y] did not because of Court.
The father sought to cross-examine the mother about the altercation at Court referred to by Ms H. She said she did not recall it. She said the father would not return [Y] to her care. She did not make the children come. When she sees how unsettled the children are, fighting, she does not force them to come. [Y] has started to copy [X] which is why she is not sent to the father. The father would not always bring [Y] to her. The mother said everybody else sees [Y] playing up but him. She had never seen her partner grab [Y]. He did break [Y]’s ukulele.
Her partner had not threatened violence against the children. She agreed that children do not always tell the truth. She took the children to Town D because [X] had been threatened with a knife. She told the father “you are a monster”. The children are not always unreliable. The children are a mess and are not normal children. The father had sent photographs of [W] at [sport] but she could not attend. She was working. She said, “Your actions are completely different to what you want to appear”.
When cross-examined by counsel for the Independent Children’s Lawyer, the mother said she had read Ms H’s reports but not recently. She had read the Independent Children’s Lawyer’s Outline of Case. She believes the father is a monster and has believed this for some time. The father is after vengeance. She has thought this for some years. This was prior to the orders made in January 2018.
It was put to her that on 25 January 2018 the mother indicated she sought orders for the children to live with the father. Despite being somewhat evasive and non-responsive, the mother eventually admitted that this was so. She admitted that she had not indicated this before that day. Arrangements had to change.
The mother was taken to paragraph 9 of her trial affidavit and she said that the denigration referred to had gone on over many weeks. When taken to paragraph 13, the mother said the change for [W] was very sudden. She was then cross-examined about the day [W] took off (see paragraph 15 of her trial affidavit). These difficulties arose on the second time the children were in her care after the orders in January.
The mother confirmed that she believes that the father refers to [X] as his bitch. She went on to say unresponsively to any question that Ms J (the stepmother) is well known to the police.
She attributed all the difficulties at the meeting at the school on 8 June 2018 to the stepmother who she said “just went off”. She conceded that [X] has been depressed for a very long time. She had seen [X]’s statement to the police. She admitted she did touch her cheek with two fingers. She was attempting to slap her. [X] has spent no time with her since then and is not ready to communicate. [X] had been hitting and punching her for 10 minutes. The mother did concede that both parents were responsible in part for [X]’s problems.
When taken to the DHHS report about the incident in April 2015 when all the children complained about being hit with a belt, the mother said that this was a one-off and involved [W] and [Y]. She said, “We both used to use a spoon”. [Y] and [W] were hit with a belt. The children were an absolute mess when they came home from the father. She had considered having [X] arrested. When asked if she blamed the children for their behaviour, the mother said “yes”. She asked the girls to go to the father and says, “It’s dad’s time”.
She said, however, “I won’t force them to go if they don’t want to. The children should settle where they feel most comfortable.” It was not that she would not have family therapy, rather, that it would not work. It will never be able to work between the parents. They have different lifestyles.
The mother confirmed that she has seen Ms S, psychologist, two to three times. She had tried to ring Dr G two or three times but received no response.
She has seen a Dr T and obtained a mental health plan for [Z]. Enough was enough. Ms S has seen [Z] on four occasions. She had spoken to the father about this earlier in the year.
I interpolate to observe that it is clear that she had not spoken to the father about [Z] attending upon psychologist, Ms S.

The evidence and submissions of the father

In opening, the father said the whole process has been drawn out and costly. It never had to be. He is astounded that things degenerated so quickly. The biggest issue is that if it is in paper, it is a fact. He was astounded by the mother’s affidavit. He thought access would be cut in January 2018 but agreed to take his children. He had done his best for his kids. Since separation, he had done everything he could to pay school fees, camp fees and the like. He did not agree to a change of schools but had no choice.
He did not want the children to change school. If the children run from the school, they can run to the [business]. The mother has never volunteered at the school. If she refuses to, then his wife will do it. The children have one mother. This year the school called four times about the mother not paying school fees. The mother is trying to make his life as difficult as possible. He sought the orders in his Outline of Case. [Z] is very aggressive. She has said, “You want to take us away”.
Once sworn, the father was cross-examined by counsel for the Independent Children’s Lawyer. He had read Ms H’s reports and the Independent Children’s Lawyer’s Outline of Case. The orders in January 2018 came as a surprise. When asked how the children reacted, he said, “Me and my wife sat them down. We said, ‘They said we are going to try this.’ We will try and get you to settle and see if we can improve things. ‘They said this is what’s going to happen.’ We will see how we go.”
[W] was the most upset. He cried and said, “Why?” He could not understand. It was explained that this had been agreed. The father said, “Mate, everything will work out.” [X] was stunned but there were no emotional outbursts. [Y] is hard to pick at any time and [Z] was a little bit teary.
He had contacted Dr G in the week after the orders and saw him at the start of March 2018. He just rang reception and then made the appointment. He denied referring to the mother negatively at all. He said he does not tolerate any such comments.

I would interpolate that this is difficult to sustain, given the material in his affidavits.
He said there was an incident and [W] had stayed with them since February 2018. [X] had come subsequently. He is not spending any time with [Y] and [Z]. They park outside the school and [Y] and [Z] seek out his wife. He is aware that [Y] says [Z] pulled a knife on her. [Z] has never indicated there is a problem with [X]. He has spoken to Ms S twice. This has been very limited as she will not talk to him until after these proceedings. He would be happy to have sessions with Ms S and [Z]. He was not involved in a decision to go and see [Z]. He was just told by text message.
He has seen Dr G with [X] in June 2018. He does not believe [X] will self-harm. Noteworthily, he said he did not accept that she has self-harmed. He said the children are coached. She was a very negative child but they have tried to improve her.
His partner, Ms J, is very involved with the children. When it was put to him that Ms H said she was over-involved, he said he had issues with her report. They have discussed Ms J’s withdrawing but they are a family.
When cross-examined about the incident at school in June 2018, the father agreed that Ms J had raised her voice at the mother and maternal grandmother. When asked how it would work if all the children were with him, he said words to the effect that they run a tight ship. There will be one rule for all. When asked about family therapy, the father said this has to be. It has gone beyond a joke. The children tell them different things. Until the mother understands the children lie to her, they will be in this position.
When asked about responsibility for the current state of affairs, the father said that to an extent he had played a part. He has argued with the mother over trivial rubbish in the children’s presence. When asked about counselling for the parents, he said that he would not be involved while the current litigation was underway. It had been tried but got nowhere.
At this point, Dr G was interposed.

The evidence of Dr G

Dr G adopted his affidavits as true and correct. When questioned by counsel for the Independent Children’s Lawyer, he confirmed that he saw [X] on 6 August 2018. She has improved. It was a very positive meeting. She looked well and the Vice Principal agreed. He saw [W] in May 2018 when the father and stepmother brought her. He had seen [Z] once last year. [Y] seemed happy with the father and looked happy and energetic. She was happy with Town A Primary.
There were odd behavioural problems because of time with her mother. He had not spoken to Ms Merricks at all. His receptionist made his appointments. He confirmed his note of 6 August 2018. Family dramas continue. [Y] had not been brought to see him because she was with the mother. The parents need counselling.
When questioned by the father, Dr G confirmed that the amount of food that the father had bought was excessive.
When questioned by the mother, Dr G said that Mr Deering and Ms J had told him that the mother did not like his report. He has never seen [W]. He only saw [Z] once with the mother on 22 November 2007. He had not been threatened by Mr Deering and Ms J who had always been very respectful.

The evidence of Ms O

Ms O was cross-examined by counsel for the Independent Children’s Lawyer. There are three children at her school, [X] in grade 6, [Y] in grade 3 and [Z] in grade 2. They all commenced on 29 January 2018. She was aware of the change of residence.
When asked about [X], Ms O had no concerns. There was a rough patch in the middle of the year when she was self-harming. She said she was assaulted on one Friday night at about 4.30 pm. She said she did not want to be with her mother and had walked to school. She wanted to be with her dad. There was no sign of injury, Ms O called the father.
Ms O confirmed there was a meeting on 8 June 2018. Ms U, the network support psychologist was present. Mr Deering and Ms J were present. Ms Merricks and the maternal grandmother were present. Additionally, there was the Principal and Ms O. Ms J was unhappy with Ms Merricks and the maternal grandmother being there. She felt that Ms O should have told her this would be the case. The meeting was stopped because both parents were quite aggressive. Ms U closed the meeting.
[Y] has a habit of running to the [business] if things are not going her way. She takes [Z] also. [Z] is not going independently. This does not just occur on days when the father is collecting the children.
Ms O is aware that [Y] and [Z] have been living with the mother since the last school holidays. The father has said hello to them but she has only seen this once. They seemed comfortable with one another. She has seen [X] and [Y] fighting but this week she saw [X] and [Y] getting along really well. [Z] was off to the side. All three girls have said to Ms O, “I just want our family to be happy again.”
When questioned by the father, Ms O said in the first term the children did not run from school, nor in the second term. In the third term they had done so some six to eight times. She has had one meeting with the mother and her partner. Accusations of the staff chasing the girls and restraining them are an invention by the girls. The children are positive with Ms J.
Under questioning by the mother, Ms O said she had not rung the father this week. [Y] was threatening to leave the school if she called the father. Ms O knew that [Y] would not run if she telephoned the mother. She suggested that the father and Ms J pick [Y] up from the classroom but this did not happen because it was likely to create a scene with [Y]. In conversation with the father, [Y] was not distressed in any way. She did not think [Y] would run away. [Y] was very manipulative.

The father under further cross-examination by the mother

The father said that, as a last resort, if the children were running away from school, he would change the school. He has not collected the children from classrooms. He had discussed this with Ms O. The alleged knife incident did not happen. [X] did put a skipping rope around her neck, but she did not go blue as the mother alleged. He was concerned that [X] was a liar, because she has lied in the past.

The evidence of Ms S

Ms S is a clinical psychologist. When questioned by counsel for the Independent Children’s Lawyer, she confirmed that [Z] had been referred to her under a mental health plan. There will be 10 sessions of which about four have occurred. She has not read Court materials. Initially, there were a couple of sessions with the mother earlier in the year. She is not, however, treating the mother. She has spoken to the father but has not seen the other children. She was aware that Court orders in January 2018 provided for the children to live with the father and was aware that the orders were made by consent. The mother was the driving force.
The younger children’s relationship with their father has broken down and the older children are with their father. [W] has spent no time with his mother since February 2018 and [X] has spent no time with her mother since mid-June 2018. [Z] told Ms S that her sister had pulled a knife on her bigger sister and the mother had to intervene. She had not spoken to the mother about the assault on [X].
Counselling with [X] and the father would help and she was prepared to offer this. The other children are well engaged with another clinician but that service cannot take the whole family. Family therapy would be separate and would cost $150 per hour. It could be cheaper with a different clinician. [Z] is very comfortable with her.
When questioned by the father, Ms S said there were two themes in her conversation with him. He was going to talk to Ms R about taking [Z] on but Ms R was unable to. [Z] is afraid of the Court outcome. There have been no sessions for a couple of weeks because [Z] is quite unsettled. It should be noted that, as I understood Ms S’s evidence, her treatment of [Z] was because she was running away from school.
When questioned by the mother, Ms S said she was engaged after the incidents. She has only spoken with [Z]. Because of a lack of clarity of the outcome, [Z] feels she has no choice. There are extreme narratives about the stepmother. She is scared she will not be able to return to her mother where she wants to live. [Z] was not coached. She was prepared to consult with Dr G and Ms R. She agreed that consistency was important. [Z] had fallen through the gaps and come to her.

The evidence of Ms H

Ms H adopted her most recent report as exhibit M-1.
Under cross-examination by counsel for the Independent Children’s Lawyer, her earlier reports in 2015 and 2017 were also tendered. The mother had wanted the children with her and the father was the other way around. She was aware the orders in January 2018 were made by consent but was surprised that the mother had sought those orders. By mid-February 2018, [W] had gone to the father and [X] in June 2018 and neither had spent time since.
In July 2018, the two younger girls went to the mother and refused to spend time with the father. They were running away from school. [Y] runs away with [Z]. The children’s bickering reflects the parents’ bickering. The children will suffer harm and, further, their development is at risk if the parents do not change their views. [Y] was crying profusely and wanted to go back to the mother.
The two younger children are more connected to the mother. [Y] is very strong willed and will do what she wants. All these children need lots of attention from their parents and each parent undermines the other. It would be very difficult for one parent to look after all four children.
The father is not emotionally able to understand the children as well as the mother. The mother’s sole problem is that she uses force to control the children. She has a job and a new partner. The mother had hit [Y] on that day but she did not know how badly. The father is totally opposed to physical force.
The father and his partner displayed extreme reactions. They provided unreasonable exaggerations. The father’s reactions are fuelled by his partner. She was equally ready for a fight in the Court. There was a lot of drama. The father is critical of everyone but has no insight.
When taken to paragraph 9 of exhibit M-1, which describes the regrettable scenes at Court, Ms H confirmed that part of what she described took place in front of [Y]. It was an unnecessary drama. The children were very relaxed with the mother and maternal grandmother.
Ms H confirmed that, at the time of her second report, [X] had suicidal ideation. [Y] also had mental health issues. [X] was not coached on the day of interview and was clearly depressed and genuinely sad.
When asked about the meeting on 8 June 2018 at school, Ms H said this was a serious matter. It was an ongoing thing. When she was informed that the meeting had to end because of parental bickering, Ms H said it did not surprise her. These are four beautiful children getting no help from their parents.
When asked what the parents could do to parent better, Ms H said the mother says that they are past therapy. The father has some interest in talking but when they meet it is a third world war. Only strict orders may help. Ideally, the children should be together but there is nothing ideal in this family. It might be better, perhaps, to leave things as they are. The elder two do not need the mother so much.
There are lots of gadgets in the father’s house. The younger two are more connected with the mother. There should be sole parental responsibility to the parent with whom the children live. The mother should be required to undertake that she not use physical violence on the children.
Therapy between the father and [Z] would be helpful. The mother found it difficult to let the children go and cried and cried. Time should be as agreed.
When cross-examined by the father, Ms H confirmed that her reference to [Y] being scared in paragraph 6 of her most recent report was that [Y] was scared that the maternal grandmother might disappear.
When challenged as to her version of events in paragraph 12 of her report, Ms H said, “I heard what I heard. I wrote notes. I may have misheard ‘bashed’ for ‘berated’.”
When taken to paragraph 41 of her report, Ms H confirmed that she thought that the mother had hit [Y] on that day on the legs.
It was put to her that the children did not run from school for the first two terms and then ran six to eight times. Ms H said [Y] was running away when both parents were seeing her. [Y] is upset and disturbed and knows that Court is coming.
The mother did not elect to put questions to [Y].

Final submissions

Counsel for the Independent Children’s Lawyer submitted this was a very difficult case. Submissions are made with reticence. The only losers have been the children. [W] has been tired of his parents’ hate since Ms H’s report in 2015. The Vice Principal says this is still reported. The children’s views are infected by the parents’ battles and animosity. Nonetheless, [W] and [X] do not want to see their mother and the two younger children are resistant to seeing their father.
The siblings are unhappy with one another and there is a risk of conflict between [X] and [Y]. Their parents were just bickering in Court. The children are hurt mentally. Ms H has pointed out that this is likely to lead to developmental difficulty for the children. Counsel sought specific orders as to time. A major concern is that the children will not see each other. Therapy will not help. On balance, the Independent Children’s Lawyer supported proposal 2 in his Case Outline.
Counsel submitted family therapy is needed. The materials from

Ms H and Dr G should be provided to a therapist. [X] and [Y] need therapy with their father and the parents also need therapy. [W] and [X] need therapy with the mother and the parties should share the costs. The therapy should be undertaken by Ms S or someone she recommends.
The children should remain at their current schools and equal shared parental responsibility should remain.
The father needs to hear what is said about his partner and she should take a backseat. The problems at the meeting at the school were disgraceful.
The Case Outline should also be provided to the counsellor.
In final submission the father said he did not dispute that they caused the children problems. There are different views about how the children are. His biggest issue is that everything in his house is gospel. Everything said to me is a lie. Since the change in January 2018, the children have done well in school, but things have then fallen apart. He is prepared to undertake counselling. The older children miss their mother. He asked rhetorically how there can be polar differences in the children. He does not agree with the orders proposed by the Independent Children’s Lawyer. The four children should live with him. [W] and [X] miss their siblings.
The mother was brief in submissions. She agreed that schools not be changed but said the siblings should be split. She accepts that family therapy should occur. She is not stopping [Y] and [Z] from seeing their father.

Some brief observations about the credit of the parties

I will return, perhaps in more detail, to deal with the personalities of the mother and father when I come to the matters under s.60CC. It should be noted, however, that both the two primary witnesses were in the witness box for a relatively extended period of time and I had

a good opportunity to observe them and come to conclusions about the character of their evidence. I think I may have already recorded in passing that the mother was at times evasive and non-responsive and appeared to be making evidence up on the run. She was, in the main, an unsatisfactory witness. Her evidence needs to be approached with caution.
The father was at all times pejorative of the mother. Although from time to time he spoke with obviously heightened emotion, and although from time to time he purported to accept some responsibility for the disastrous state of affairs that now obtains, he impressed me as being markedly lacking in insight. His assertion by way of illustration that [X] would never self-harm and had been coached to make suggestions that she might do or had done speaks for itself. It runs totally contrary to the objective evidence.
Further, I formed the clear view that although he managed to control himself in Court, Mr Deering is a man with a temper. I accept he is totally opposed to corporal punishment of his children and would never hit them but his anger, in a general way, was scarcely contained. I have no difficulty in accepting Ms H’s evidence that he is bitterly disappointed with everyone except himself and his partner. This would include the DHHS, those who have conducted interviews and, no doubt, the Court itself.
The various professional witnesses were wholly unexceptional and were clearly telling the truth. Endeavours to press Ms H as to her version of events on the disastrous occasion at Court when interviews were undertaken were wholly unsuccessful. What Ms H said was said with conviction and I accept it.
Perhaps the most salient quality to emerge during the currency of the hearing was the undiminished capacity of the father and mother to bicker with one another under the guise of cross-examination. Their interaction rapidly descended to kitchen-sink-type argument.

Findings about some of the matters in dispute

The father’s case is, essentially, that the children are perfectly fine with him and that all their problems emanate from what happens when they are at their mother’s house. I should make it clear that I do not accept this for a moment. I do accept that because the father and his wife are sterner disciplinarians than the mother, and are able to control them by threats to withhold computer access and the like, the children may be more contained while in his dwelling. This simply means that the underlying problems the children have are suppressed, but they are not removed.
Scarcely surprisingly, when in the rather laxer, but substantially more violent, household of the mother they act out.
The stepmother, Ms J, (who was not, of course, called as a witness) has made the most laudable efforts to engage with the four children but her involvement, which includes a very, very negative view of the mother, which only goes to reinforce and, indeed, exacerbate the father’s view, is deeply unhelpful. It would be entirely in the children’s best interests if she was able to take the backward step that Ms H has advocated.
Having made these general findings, I now turn to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That 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 (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Sole parental responsibility

Ms H’s position was that each parent should have sole parental responsibility for the children that live with them. The Independent Children’s Lawyer’s option 2 (narrowly preferred over option 1) seeks an order for equal share parental responsibility.
In my view, Ms H’s position is, in the regrettable circumstances of the case, clearly that which is in the children’s best interests. There has, of course, been family violence in the assaults by the mother from time to time on the various children, but in the particular circumstances of this case, that is not a decisive factor.
Having seen the parents in Court, and taking the materials as a whole, it is plain that these two parents are utterly unable to cooperate about anything. The school meeting in June 2018 stands as a stunning indictment of all concerned. For clarity, I make it plain that I include the father, Ms J, the mother and the maternal grandmother. All four of these people behaved disgracefully and were utterly unable to put their own personal antipathy to one side in the children’s best interests. This was in the presence of a counsellor and two school officials. If they are unable to behave with even basic civility in a controlled environment such as that, their capacity otherwise to communicate in a cooperative way has to be assessed as zero.
Thus, while this is plainly otherwise contraindicated, the only order the Court can sensibly make is that each parent have responsibility on a sole basis for the children in their care. That is so whether all four live with the father or the children remain split, as the mother seeks.
Having decided that orders for equal shared parental responsibility are not, in the circumstances, in the children’s best interests, the Court must now consider those orders which are in the children’s best interests by reference to the matters in s.60CC of the Family Law Act 1975 (Cth).

The primary considerations

All parties agree that in principle, it is a good idea that the children have the benefit of a meaningful relationship with each of their parents. On the father’s part, he concedes that the two older children miss the two younger children and appeared at moments to go close to suggesting that it might be in their interests to see their mother as well. The mother’s position, consistent with her somewhat feckless personality, is that she is not stopping the two younger children from going to see their father. Given that as I find each of these parents relentlessly denigrates the other (aided and abetted by Ms J and the maternal grandmother), the overarching desirability of a good relationship with a non-resident parent is to be approached with the caution that I do not believe that, in substance, either of them really mean it.
There is, of course, a need to protect the children from risk of abuse, and as I have already said, there is a difficulty with the mother’s use of corporal punishment to control her children. Nonetheless, the Court will be making orders that bring to the mother’s attention in a more precise and clear way than may have been the case formerly, what the results of any physical discipline of the children may be.

The additional considerations

Section 60CC(3)(a)

These children have expressed their views in the clearest way. They have voted with their feet. [W] and [X] have gone to their father and simply refused to return to their mother. She appears to accept this. Given that [X] is 12 and [W] is now 13, those views obviously attract weight.
[Y] and [Z] have likewise expressed their views through their actions. They refuse to go to their father. [Y] is 9 and is described on all sides as highly manipulative and exceptionally determined for her age. She plainly has a close relationship with [Z], whom she is able to inveigle from school when she leaves herself. While [Z]’s relative youth gives some qualification to her views, the fact is that her actions and, more particularly, those of [Y], speak loudly.

Section 60CC(3)(b)

It would seem that the two older children have a good relationship with the father and with Ms J. It seems equally clear that their relationship with their mother is presently sundered. Correspondingly, the two younger children appear to have a very good and close relationship with their mother, and likewise, appear to get on well with the maternal grandmother. While there are doubtless other players in the background, none of them have stepped forward into the limelight in this particular case.
One of the difficulties in this case, however, is the fractured nature of the relationship between the siblings themselves. [X] is upset not only with her mother, whom she alleges, correctly as I find, has assaulted her, but she is, as the Independent Children’s Lawyer’s outline indicates, upset and angry in relation to [Z] and, more particularly, [Y]. I note that very gratifyingly, Ms O had recently seen [X] and [Y] getting on well but this is one incident only. One swallow does not make a summer. It is quite clear that while the children may, to an extent, miss one another, forcing them all together would present significant problems. This would be all the more so given that there would be six children if they were all to live with the father and Ms J and I note that one of her children is autistic.

Section 60CC(3)(c)

As the Independent Children’s Lawyer’s submissions correctly point out, this is a major area of dispute between the parties. Each assert that the other has made independent decisions without consultation with them and in my view, that is just part and part of the utter failure of the adults to be able to communicate sensibly or behave in an adult fashion when dealing with one another.

Section 60CC(3)(ca)

In broad terms, I accept that each parent has tended to look after the children at least reasonably well when they are in their care. There is no doubt that each has contributed in a material way to their wellbeing as best they are able. It should be noted that neither household appears to be especially flush with funds, and it might be fair to describe both parents’ endeavours as reasonable in the circumstances.

Section 60CC(3)(d)

In my view, to seek to remove [W] and [X] from the father would be traumatic, given the course of conduct that has devolved. The mother is not seeking it, so it is not necessary to consider that matter further.
To remove [Y] and [Z] from their mother would clearly, on the evidence, be traumatic for them. She is plainly their primary attachment. Indeed, as the Independent Children’s Lawyer’s Case Outline points out all of the children have felt a need to align themselves with one parent to the other in an endeavour to remove themselves from the parental conflict. Any endeavour to compel [Y] and [Z] to go and live with the father would be traumatic. This is all the more so given that there is significant interpersonal difficulty between the siblings.

Section 60CC(3)(e)

There is no particular difficulty in terms of expense with either time regime proposed by the parents. The practical difficulty of spending time in communicating with the non-resident parent is the appalling conduct of the adults resulting in enormous stress on the children, as was demonstrated in the most ghastly way at the interviews at Court.

Section 60CC(3)(f)

Both these parents are able to provide for the physical needs of the children. So far as their emotional and intellectual needs are concerned, I observe that Ms H was of the view that the ongoing conflict between the parents is not only destructive and damaging now but is likely to lead to developmental difficulties on the children’s part. I will return to this matter under the next subsection.

Section 60CC(3)(g)

Both of the parents appear to be in relatively stable relationships. I note that both have historical criminal convictions. These are not now, in my view, of any moment, save to the extent that each of the parents has, from time to time, made reference to it as a criticism of the other.
The children are of an age, in the case of [W] and [X], and, indeed, even of [Y] and [Z], where their emotional development ought to be at the absolute forefront of everyone’s consideration. Their bickering amongst one another reflects the parents’ bickering, according to Ms H, and I agree. This bickering was readily apparent even in Court. While each of the parents may be a perfectly decent citizen in a general sense, their personalities interact in the most dreadful way. On the one hand, as I find, the mother is essentially somewhat silly and vapid and feckless. She was given to inappropriate sniggering and laughter when anything was said to Mr Deering that she perceived to be to her advantage.
She is only able, it would seem, to control the children by physical force. It is remarkable that as an adult she has no other way of controlling what are still, particularly in the case of the two younger children, very young children.
On the other hand the father, is a man with a very intense personality, whom I would describe as being, in default mode, surly and angry, with a strong element of self-pity mixed in as well. He is a man largely bereft of insight into his children.
His constant repetition of the notion that the children are perfectly okay with him and Ms J and that all their difficulties in the other household emanate from their mother’s incompetence must be comprehensively rejected. Not only do I share Ms H’s reservations as to whether things really are as perfect as the father presents them, but as I have earlier indicated, to the extent that they are, this just means that the children’s difficulties are suppressed when in his care.
It needs to be said, loud and clear – and this is the time to do so – each of these parents, through their selfish self-obsession with one another, over their unresolved, ongoing personal hostilities is dreadfully damaging these children. It would appear that they are aided and abetted by Ms J and the maternal grandmother. These children are quite damaged enough already and if things are not going to get even worse, then the adults will need to wake up, accept the force of the Court’s findings in this case and engage in the remedial therapy so desperately needed to assist all concerned.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

This is an important matter that has largely been dealt with thus far.

I do not accept that the mother does not love the two elder children, a matter that seems to float as part of the father’s case. While her acceptance of the orders in January 2018 was deeply misguided,

I accept that she did this in a desperate attempt to try and see if the orders consented to would improve things. I have no doubt that the mother loves all her children and, indeed, no doubt that the father does also. Each would undoubtedly honestly say that they wished the best for their children in every way. It is their puerile incapacity to behave appropriately that has caused all the problems.

Section 60CC(3)(j)

I have already dealt with the question of family violence. I am going to make an order that the mother not use corporal punishment on the children. She needs to understand that this order stands, as it were, as a sword of Damocles. Not only will the two children in her care rapidly reach an age where they will respond to physical violence by absenting themselves, any physical violence on these children is likely to give rise to further Court proceedings and might well involve a change of residence. The Court would be disposed to order a change of residence in the event that the mother fails to comply with the terms of this order.

Section 60CC(3)(k)

There are Intervention Orders all over this case but in the particular circumstances they are of no great moment. It is noteworthy that, as I understand it, each parent has a lifetime Intervention Order against the other. What a triumph.

Section 60CC(3)(l)

It is plainly preferable to make orders designed to bring these terribly disappointing proceedings to an end. Given, however, that therapy is so clearly the way forward, I propose to hear from the parties, and most particularly, the Independent Children’s Lawyer, whether it is appropriate to make interim orders to ensure that the therapeutic treatment is properly proceeded with.

Section 60CC(3)(m)

There are no additional matters to which the Court has regard.

Conclusion

This decision has been as dispiriting to formulate as the proceeding was to hear. One’s heart goes out to these four conflicted and troubled children, beset as they are by problems not of their own making. I have been severely critical of each of the parents and, indeed, to an extent, of the other players also. I acknowledge that it is no part of the Court’s role to be gratuitously offensive to persons who appear before it, and I deeply regret having to express myself in the terms that I felt it appropriate to use. But this is a case, given the way the parties ran their applications, where there is no means of properly determining the matter without endeavouring to bring home as clearly as possible and in the strongest terms to these two misguided selfish parents what harm they are doing through their behaviour. I have used such strong terminology solely because I believe that nothing less will have the capacity to act as the sort of cold shower these two bickering adults need to make them stop thinking about themselves and start thinking about their children.
In the light of all the considerations referred to above, it is clear that the two elder children must stay with their father and the two younger children with their mother, and they must spend time with the other parent as agreed. The vital way forward is therapy, and I am going to make orders as suggested by the Independent Children’s Lawyer in this regard. I note that the draft orders I have prepared will need to be expanded to include appropriate orders for this therapy. As I have indicated, I will also hear from the parties as to whether I should make orders that are final or orders that are interim.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 10 December 2018

[2018] FCCA 3431

10 December 2018

Key Legal Topics

Areas of Law

Civil Procedure

Commercial Law

Legal Concepts

Abuse of Process

Jurisdiction

Stay of Proceedings

Res Judicata