Mickelson & Mickelson

FEDERAL CIRCUIT COURT OF AUSTRALIA
Mickelson & Mickelson [2020] FCCA 2986

File number(s): NCC 2335 of 2018

Judgment of: JUDGE TERRY

Date of judgment: 20 November 2020

Catchwords: FAMILY LAW – PARENTING – Children aged 11, 8, 6 & 4 – where the eldest child is living with the father and not spending time with the mother and the younger children are living with the mother and spending five nights per fortnight with the father - where the father has alienated the oldest child from the mother and where his bullying aligning behaviour means that the mother’s relationship with the three younger children will be at risk if they continue to spend extensive time with him – where the Independent Children’s Lawyer proposed that the children continue to be separated and that an order be made for the parties to attend family therapy and for W to spend time with the mother – where this is not a case which is suitable for family therapy and where if this order is made W will have no relationship with the mother in the future – where the Family Report Writer was strongly of the view that it was too soon to give up on the prospect of W having a relationship with her mother – where there is a risk that an order for W to live with the mother may fail but where orders for the children to live with the mother, for there to be a moratorium on their time with the father and for their time with the father to be less extensive than is currently occurring once it resumes are in the children’s best interests – mother to have sole parental responsibility for the children.

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA

Cases cited:
Mazorski & Albright (2009) 57 Fam LR 518

Proctor & Proctor [2017] FamCAFC 110

Number of paragraphs: 401

Date of last submission/s: 24 September 2020

Date of hearing: 4 & 5 June, 31 August & 1, 2, 22 & 24 September 2020

Place: Newcastle

Counsel for the Applicant: Mr Mooney

Solicitor for the Applicant: Ashby Family Solicitors

Counsel for the Respondent: Ms Bridgett

Solicitor for the Respondent: CBD Law Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Boyd

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Domestic Violence Unit
ORDERS

NCC 2335 of 2018

BETWEEN:
MS MICKELSON

Applicant

AND:
MR MICKELSON

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

20 NOVEMBER 2020

THE COURT ORDERS THAT:
1.All existing orders concerning W born in 2009, X born in 2012, Y born in 2014 and Z born in 2016 (‘the children’).
2.The mother shall have sole parental responsibility for the children.
3.For a period of three months from the date of these Orders the children shall live with the mother at a location to be determined by the mother and the children shall spend no time with and have no communication or contact in any way with the father.
4.After a period of three months the children shall spend time with the father as follows:
(a)For the first weekend of each calendar month from the conclusion of school (or pre-school) on Friday to the commencement of school (or pre-school) on the following Monday for a period of three months.
(b)Thereafter each alternate weekend during each of the NSW school terms commencing on the second weekend of each school term from the conclusion of school (or pre-school) on Friday to the commencement of school (or pre-school) on Monday (or Tuesday in the case of a long weekend).
(c)For one half of each of the NSW school holidays at the conclusion of terms 1, 2 and 3 from the last day of school term until 5.00pm on the mid-point Saturday of the school holiday period.
(d)For one half of the Christmas school holidays in each year as agreed between the parties but in the absence of agreement:
(i)in each odd numbered year from the conclusion of school on the last day of term 4 until 12 noon on 8 January and otherwise with the mother and
(ii)In each even numbered year from 12 noon on 8 January until 12 noon on the last Sunday prior to the return to school and otherwise with the mother.

5.If Father’s Day in any year falls during a time that the children are living with the mother the children shall spend time with the Father as per the above Order 4(b).
6.If Mother’s Day in any year falls during a time that the children are due to spend time with the father pursuant to Order 4(b) his time shall be suspended for that weekend.
7.For the purpose of implementing these orders, changeover shall take place at the children’s school or pre-school or when not appropriate:
(a)The mother shall arrange for her nominee being a person known to the children and to the father and to his nominee to deliver the children to the Convenience Store at Suburb B at the commencement of the father’s time.
(b)The father’s nominee being a person known to the children and to the mother’s nominee shall return the children to the Convenience Store at Suburb B at the conclusion of the father’s time.
(c)Each parent is restrained by injunction from attending at the changeover location or from being within 100 metres of the changeover location within half an hour prior to or half an hour after the changeover time.

8.Each parent is restrained and an injunction is granted restraining them from being within 200 metres of the children’s school half an hour prior to and half an hour after the commencement and conclusion of the school day unless the children are in their care at the beginning of the school day or they are collecting the children from school pursuant to these Orders.
9.Each party shall notify the other via SMS as soon as is practicable if any of the children suffers from a serious medical problem or illness requiring hospitalisation whilst in their care.
10.Each of the parties will be entitled to obtain directly from any education, health, welfare or other professional attended by the children, copies of any reports, notices or other verbal or written advice affecting the health and welfare of the children.
11.The parties shall keep each other informed of changes to their landline and mobile telephone contact numbers, addresses and email addresses and advise the other parent of any changes to same within 48 hours of such change occurring.
12.The father is restrained and an injunction is granted restraining him from attending the children’s medical or therapeutic appointments without the consent in writing of the mother.
13.For six months from the date of these orders the father is restrained and an injunction is granted restraining him from attending any events at the school to which parents are invited or which are normally attended by parents.
14.Neither party will denigrate the other party, their family or their friends to or in the presence or hearing of the children and will use their best endeavours to ensure that no one else does so and will remove the children from any environment when the same is occurring.
15.Both parties are restrained from administrating corporal punishment upon the children and will ensure that no other person does so either.
16.Both parents are restrained from consuming alcohol in excess of the legal driving limit during the times that the children are living with or spending time with them and for 12 hours prior to the children coming into their care.
17.Both parties are restrained from discussing the family law matters with or in the presence or hearing of the children or from allowing them to view any document associated with these proceedings.
18.Either party is at liberty to apply for a passport for the children for the purposes of travelling overseas for a holiday and both parties shall do all acts and all things necessary to enable a passport to be issued for the children upon the written request of either party and at the cost of the parent seeking to make the passport application.
19.Within 14 days of being issued passports the party receiving the passport will ensure the passport is held by the mother excepting for periods of overseas travel with the children and 7 days prior to such travel the parties shall permit the parent taking the children for such travel to have the passport for such periods.
20.Either parent shall be at liberty to travel overseas with the children during the time that they are spending with the children pursuant to these Orders provided that:
(a)They shall provide to the other party not less than four (4) weeks prior to the date of intended departure, a detailed written itinerary of the proposed trip, including the date of departure and return; flight details and times; all locations and destinations of travel and details of the accommodation for the entire period of travel including the name of accommodation, address, telephone and email contact details.
(b)A copy of the booked seats in the parents and children’s names (either the hard copy tickets or a written confirmation of the tickets from a travel agent or airline for the departure and return flights.
(c)The details of an email address and/or telephone number at which the children and parent can be contacted during the trip.
(d)The parent ensures that they travel with the children for the entire period during which the children are travelling.
(e)The children’s passports are to be returned to the mother within 72 hours of return from any overseas trip.

IT IS NOTED that publication of this judgment under the pseudonym Mickelson & Mickelson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction

This matter concerns parenting arrangements for W, 11, X, 8, Y, 6 and Z 4. It is a sad matter because the father’s behaviour and attitudes are such that there is a real risk that no matter what orders the court makes some or all of the children will lose a relationship with one of their parents.
The orders sought by the parties on a final basis changed over the course of the proceedings.
The mother’s proposals have been consistent in broad general terms in that she has proposed that the children live with her and spend time with the father. However by the end of the trial she had amended her proposal to include a period when the father would spend no time with the children to aid W being re-settled into her care. W has spent no time with the mother since April 2020 as a result of aligning behaviour by the father.
The mother’s final proposal was that:
(a)She have sole parental responsibility for the children.
(b)The children live with her.
(c)For a period of three months the children live with her at a location to be determined by the mother and have no time and no communication with the father.
(d)After three months the children spend time with the father from Friday to Monday on the first calendar weekend of each month for a period of three months and then each alternate weekend from Friday to Monday (or Tuesday if Monday was a public holiday) and for half of the school holidays.
(e)Each parent be able to travel internationally with the children during their time with the children.
The mother alleged that the father was aggressive, violent and unsupportive of her during the relationship and that she was intimidated by and frightened of him. She alleged that since the relationship ended he had been doing everything in his power to try and ensure that the children were turned against her and ceased to have a relationship with her and that he had succeeded with W.
She said that notwithstanding the father’s behaviour she had always proposed that the children spend time with him because they enjoyed doing so. However she proposed that there be a moratorium on the children spending time with him for three months after final orders were made to give her a chance to settle W back into her care without the father’s interference.
She said that her proposal that once time resumed the children spend one weekend a month with the father followed by each alternate weekend rather than the existing five days per fortnight provided for in orders made in August 2018 was to limit the opportunity for him to undermine the children’s relationship with her.
The father’s counsel put to the mother during cross-examination and repeated in closing submissions that the mother was seeking to limit the father’s time with the children because she had her own issues with the father and was unable to separate the children’s needs from her own. The mother’s consistent proposal throughout the proceedings that the children spend time with the father notwithstanding the difficulties his behaviour has caused gives the lie to such a suggestion.
The father’s proposals have not always been congruent with his allegations about the mother. He has maintained since proceedings commenced in 2018 that the children hate the mother and that she is a harsh, incompetent and negligent parent who places the children at risk of harm by drinking excessively, smacking them excessively, failing to properly supervise them, failing to keep a clean house and failing to attend to the medical and therapeutic needs of X and Y.
Consistently with this, in his response filed in 2018 the father proposed that the children live with him and spend time with the mother from 10.00am until 4.00pm on the first Saturday of each month and that she seek treatment for her mental health and alcohol dependence and/or abuse issues.
However at the family report interviews in August 2019 he told the family report writer that he was proposing that the children live with him and spend five nights per fortnight with the mother.
On 27 February 2020 shortly before the trial was originally due to commence the father filed an amended response in which he proposed that the children live in a week about shared care arrangement, notwithstanding that his trial affidavit was filled with all the same allegations about the mother’s parenting incompetence, alcohol abuse and harsh treatment of the children and that he continued to maintain that the children hated spending time with her.
The father did propose an alternative namely that if the court considered that equal time was not appropriate the children should live with him and spend time with the mother as ordered by the court.
The trial commenced in July 2020 and the father’s counsel cross-examined the mother vigorously and at length with a view to establishing that the father’s allegations about her were true.
The trial did not finish in July and it was adjourned to 30 August 2020 for further hearing and on 21 August 2020 the father filed a further amended response in which he proposed that the children live with him and spend each alternate weekend with the mother, continuing during the school holidays save that during the Christmas school holidays one alternate weekend would be missed.
The father continued to seek those orders at the end of the trial notwithstanding that he never wavered from his allegations about the mother, which he added to in a proof of evidence filed on 30 August 2020, and notwithstanding his assertion during cross-examination that it would be impossible for him to get W to spend time with the mother.
In closing submissions the Independent Children’s Lawyer’s proposed that the father have sole parental responsibility for W and that she live with him and that the mother have sole parental responsibility for X, Y and Z and that they live with her.
The reasons given for proposing that W continue to live with the father were that there were issues with the mother’s parenting capacity and she might not be able to manage looking after four children and that if W was forced to live with the mother against her will she would be a disruptive factor in the mother’s home and might seek to influence the younger children against her.
The Independent Children’s Lawyer proposed that an order be made for W to spend alternate weekend and holiday time with the mother subject to doing four sessions of family therapy and that the other three children spend alternate weekend and holiday time with the father.
I will discuss the Independent Children’s Lawyer’s proposal in more detail at the end of the judgment but I do not intend to make those orders. Family therapy is not a solution to the problems in this family and if orders were made as proposed by the Independent Children’s Lawyer W would have no future relationship with the mother and the other children would be at risk of losing their relationship with her.
The family report writer made the following recommendations in her report:
It is recommended that the children continue to live with the mother.
It is recommended that time with the father increase to roughly equal to the time spent with the mother.[1]
[1] Family Report paragraphs 152 and 153
However her recommendation about the father’s time with the children was subject to the following rider:
It is recommended that time with the father be minimised or suspended if the court finds he is seeking to influence the children to reject the mother or continuing to behave in an abusive or controlling manner towards the mother.[2]
[2] Family Report paragraph 157
For reasons now to be explained I am satisfied that the father is seeking to influence the children to reject the mother and is continuing to behave in an abusive and controlling manner toward her, indeed his abuse of her continued during the trial. His counsel humiliated and degraded her by cross-examining her at length about a bag of used tampons which the father removed from a drawer in the bathroom, opened and photographed.
The family report writer was informed during cross-examination that W was living with the father and was not currently spending time with the mother. She was strongly of the view that it would not be in W’s best interests to give up on trying to restore her relationship with her mother and she also felt that the siblings should not be separated.
I accept that making an order for W to live with the mother is one thing and ensuring that it is carried into effect is another but for the reasons which follow I am satisfied that the orders the mother proposed are the orders which are in the children’s best interests.
The evidence
The mother relied on her affidavits filed on 26 February 2020, 22 May 2020, 3 June 2020 and 30 August 2020 and the affidavit of the maternal grandfather Mr C filed on 26 February 2020.
The father relied on his affidavits filed on 28 February 2020, 22 May 2020 and 5 June 2020, a proof of evidence tendered on 31 August 2020 and the affidavit of the paternal grandmother Ms D filed on 27 February 2020.
A Child Inclusive Child Dispute Conference memorandum was prepared by Ms E, a family consultant, on 3 April 2019 and a Family Report was prepared by Ms F, a Regulation 7 Family Consultant following interviews in August 2019.
Ms E’s memo was tendered but she was not required for cross-examination. All of the other witnesses were cross-examined.
A number of additional documents were tendered and I particularly note that following the close of submission the mother’s counsel sent to my Associate by email, as she had been asked to do, a list of the NDIS documents in Exhibit M she wished me to read.[3]
[3] Exhibit N
The matter was originally listed for hearing for 3 days commencing on 23 March 2020. Just prior to that time the court determined not to conduct face to face hearings because of the Covid-19 situation.
This matter had a particular urgency given the ongoing high level of conflict between the parents which was impacting on the children and it was listed to commence as a Microsoft Teams hearing. However when the matter was called on the court was informed that the father’s counsel was ill and was unable to take part.

The matter was adjourned and a hearing by Microsoft Teams commenced on 4 June 2020 and continued on 5 June. It did not conclude and further time was found to hear it on 31 August and 1 & 2 September 2020. It then had to be adjourned to later in September 2020 to conclude cross-examination of the family consultant and to take submissions. Judgment was then reserved.
From time to time there were some technical issues with the Teams hearing but the court was able to see and hear the witnesses and form the same impression of them that it would have been able to form if they were in the witness box. Considerable patience was shown by all of the people involved in the hearing in ensuring that no party was disadvantaged by temporary technical issues.
The mother and father as witnesses
The mother was cross-examined at length by the father’s counsel. There were occasions when there was some confusion in her evidence about sequences of events which had happened at particular times but I did not form the view that she was attempting to mislead the court or conceal relevant matters.
Counsel for the Independent Children’s Lawyer and the father’s Counsel both submitted that the mother was evasive when she was asked questions about her mental health. I do not accept that submission. She certainly said that she could not remember certain things but the mother’s medical and counselling records were all before the court and there was nothing in the mother’s answers to suggest that she was trying to conceal anything about her mental health or indeed had anything serious to conceal.
The father was not a witness of credit and his evidence about the unregistered shotgun he kept in the house is a prime example of this.
In his affidavit filed on 28 February 2020 the father said that the police rang him on 26 October 2017 and said that they wanted to talk to him about an argument with his wife. He went on to say that he had an unregistered shotgun in his possession at the time and in the next paragraph he said:
I handed in my shotgun to Town G Police Station that afternoon, and I was formally charged with intimidation and firearm offences.[4]
[4] Father’s affidavit filed 28 February 2020 paragraph 41
That is not what happened at all. The police asked the father to come to the police station the day after the mother made a complaint about an incident at the home. The mother had told the police that the father had an unregistered firearm in the house and when the father arrived the police asked whether he had a gun. He responded that the police had taken all his guns from him last time.[5]
[5] The father was charged with and convicted of a number of criminal offences in 2007.
Police rang the mother who said that she had seen the father leaving the house carrying the gun and the police searched the father’s car and found the gun in the car wrapped in a towel.
In light of this deliberately misleading statement I will have to be careful about placing weight on other seemingly plausible assertions by the father unless I check source documents to be sure that the assertions are accurate.
The father was a very poor witness under cross-examination. On a number of occasions he failed to properly respond to questions and instead embarked on lengthy complaints about the mother. He repeatedly denied that he was aggressive or that other people might perceive him as aggressive and yet at times during cross-examination he displayed anger and was argumentative and disrespectful to counsel.
The father was also evasive on occasions and an example was when he was asked about the shotgun which was in his possession. He agreed that the gun had been in the house for some time prior to separation but alleged that he had forgotten about it. If that is so it is curious that he was able to immediately find it in the walk-in wardrobe and put it in his car after the police rang and asked him to come to the station.
Background
The mother and father commenced a relationship in about 2004 when they were 25 and 30 respectively. They commenced living together in 2007 and they have four children: W, born in 2009, X, born in 2012, Y, born in 2014 and Z, born in 2016.
The mother is a public servant by occupation and she continued to work until sometime prior to Y’s birth in 2014.
The mother was always the children’s primary carer. She took them to school and day care and to medical appointments and assessments and it was her evidence that the father played a very limited role in the children’s care. She said that he often worked 7 days a week and would often leave home at 7.30am and not return until well into the evening.
The father disagreed that he played a limited role in the children’s lives and went into detail about things he did for the children. However he did not dispute that he worked full time and worked long hours and this was corroborated by the paternal grandmother who said as follows:
…Mr Mickelson would tell me things like: “I am working seven days a week”, “I worked ten hours today”, “I worked twelve hours today”.[6]
[6] Paragraph 19 of the paternal grandmother’s affidavit filed on 27 February 2020.
I am sure that the father did do things with the children and he may have played a greater role than the mother is now willing to admit but I am satisfied that the overwhelming majority of the children’s care fell to their mother.
The mother alleged that there was family violence during the relationship in the form of verbal abuse and constant putdowns. She alleged that the father was constantly critical of her about her spending, her failure to go back to work and her attention to housework. The father denied the allegations and I will need to make findings about them later.
The parties separated on 26 October 2017 following an incident at the home which the mother said involved the father yelling at her and in her face over a prolonged period. The mother went to the police. They took a statement from her and on 27 October 2017 the father was charged with intimidation and firearm offences and a provisional Apprehended Domestic Violence Order (ADVO) was made for the mother’s protection.
The intimidation charge was later withdrawn by the police and the father was convicted and fined $800.00 and placed on a good behaviour bond for 2 years in relation to the firearm charges.
The mother left the home with the children upon separation but after about a week the father moved out and went to live with his parents and the mother and children moved back into the home.
On 26 March 2018 a final ADVO was made for mother’s protection. It restrained the father from assaulting, threatening or intimidating her but it was not a no-contact ADVO.
On 30 April 2018 the father moved back into the former matrimonial home. I accept the mother’s evidence that she did not want him to do so but he moved in anyway.
The parties did not reconcile although the evidence suggests that the father hoped for this.
The mother had been put in touch with the Start Safety housing program after the ADVO was made. On 12 July 2018 they informed her that they had arranged accommodation for her and the children and she left the former matrimonial home and moved into that accommodation.
The parties had only one car which the mother habitually used but it was registered in the name of the paternal grandfather. She left in the car on 12 July 2018 but shortly after she left she received a text message from the paternal grandfather demanding that she return the motor vehicle to him or he would report it stolen.
The father said that he knew that his parents were going to do this. When he was asked in cross-examination whether, knowing that the mother had the care of four children, two of whom had special needs, he thought it was a good thing that his parents demanded the return of the car he said:
She didn’t pay any money to it so why should she have it?
When the paternal grandmother was cross-examined about this issue she agreed that the paternal grandparents had bought the car for the family to use. When she was asked why then she and her husband demanded the return of the car from the mother after separation she said that it was because she wanted to have it returned to her son.
When she was asked if she thought the mother might need a car she did not immediately reply and when asked whether she thought the action taken about the car was appropriate she said yes.
Fortunately the mother was able to withdraw $3,000.00 from the home loan account and she purchased a Motor Vehicle 1 so that she had some transport.
On 16 July 2018 the mother dropped X to an appointment at Jigsaw and took the other three children with her to an RMS office to get the registration of the car she had purchased changed over. When she was inside the RMS office the father appeared. The mother said that he told her that he was taking the children. She said that he was unable to take Z as the mother was holding her but he walked off with W and Y. The mother followed him outside and he demanded that she give him Y’s car seat but she would not do so. He then drove off with W and Y.
The father downplayed this incident and said that when he entered the RMS office W and Y walked up to him. He did not dispute however that he immediately left with the children.
The mother called the police but they told her that it was a family court matter. They did a welfare check but did not remove the children from the father.
The mother said and I accept because it is consistent with the father’s behaviour on numerous occasions during these proceedings, that she tried to ring the children but the father said that they did not want to talk to her.
In taking the children and refusing to allow the mother to have any contact with them the father engaged in bullying behaviour if not perpetrated family violence.
The mother had always been the children’s primary carer. The father worked long hours and she was the one who took them to and from school and day care and who attended assessments and therapeutic appointments for X and Y. It was perfectly natural and indeed appropriate for the mother to take the children with her when she left the former matrimonial home on 12 July 2018. She did not do it to prevent the father spending time with the children. She did it as a continuation of her role as the children’s primary carer.
The father’s action in walking into the RMS on 16 July 2018 and walking off with W and Y over the mother’s protests and then preventing her from speaking to them must be considered in light of this and when considered in light of this they were bullying, non-child focussed actions.
The father did not send Y to day care and failed to take W to school between 23 July 2018 and 30 July 2018. She attended school on 30 July 2018 and the mother went to the school to see her but she found that the father was present and she was unable to recover the children.
On 2 August 2018 the mother filed an application for parenting orders. On an interim basis she sought the return of W and Y to her and an order that the children live with her and spend time with the father each alternate Saturday from 11.00am to 5.00pm. On a final basis she sought an order that she have sole parental responsibility, that the children live with her and that the children spend time with the father as determined by the court.
The matter was listed urgently and on 7 August 2018 an order was made by consent for the father to return W and Y to the mother and for all four children to live with the mother and spend time with the father for two nights a fortnight during school terms and for defined periods in the school holidays.
The father filed a response on 24 September 2018. On both an interim and final basis he sought orders that he have sole parental responsibility and that the children live with him and spend time with the mother on the first Saturday of each month from 10.00am to 4.00pm. He also proposed that the mother attend on her GP to obtain a mental health care plan and a referral to a psychologist or psychiatrist for her mental health and alcohol dependence issues.
Conflict between the parents continued after the interim orders were made on 7 August 2018 and when the matter was before the court on 14 December 2018 an order was made restraining the parties from involving the children in the dispute or recording or videoing the children and the parties were ordered to attend a parenting after separation course.
A Child Inclusive Child Dispute Conference was ordered and it took place on 3 April 2019. I will refer to the contents of the memorandum which was prepared in more detail later.
On 11 April 2019 orders were made by consent for the children to live with the mother and spend five nights per fortnight and half of the school holidays with the father. A non-denigration order was made and an order restraining the parties from posting information on social media.
It was agreed that changeovers which did not take place at school, playgroup or day care would take place at the Convenience Store Service Station at Suburb B.
The mother said that she agreed to the five nights per fortnight because it would mean that on most occasions the father picked the children up from school or day care on Thursday and returned them to school or day care on Tuesday and that few changeovers would need to take place between the parents. It was her case that the father’s rude and dismissive behaviour toward her and the loyalty demands he placed on the children meant that the children were exposed to conflict whenever handovers occurred directly between the parents.
The father did not dispute that there were difficulties when the parties were both present at changeovers but he did not accept that difficulties were his fault. He alleged that the mother was rude abrupt and dismissive to him and did not deal appropriately with the children’s dislike of returning to her care.
I will refer in greater detail later in the judgment to the changeover difficulties but I am satisfied on the balance of probabilities that the mother’s accounts about what happened should be accepted.
A family report had been ordered and interviews for the report took place on 4 September 2019 and the report was released on 12 September 2019.
I noted earlier the principal recommendations in the report but the report writer recognised emerging difficulties with W transitioning to the mother’s care and also recommended that W be engaged in counselling to assist her to maintain a positive relationship with both of her parents.
The parents could not reach agreement after the release of the report and the matter was listed for trial commencing on 23 March 20202.
Between the release of the report and the commencement of trial conflict between the parties continued and there was a large amount of correspondence between the parties solicitors. When the matter had to be adjourned in March 2020 because the father’s counsel was unavailable his solicitor raised orally a list of complaints the father wished to have noted and there was reference to the fact that about 90 letters had been exchanged between the parties’ solicitors.
Some of the ongoing issues between the parties related to the therapeutic needs of X and Y and toward the end of 2019 they became involved in power struggle about which service provider Y should be engaged with which was still ongoing when the trial concluded.
The other issue which caused ongoing conflict between the parties was changeover difficulties in relation to W.
On a number of occasions between 7 August 2018 and March 2020 when changeover had to take place at the Convenience Store at Suburb B, W did not get out of the father’s car and go with the mother. The father declined to make any effort to ensure that she transitioned to the mother’s care and on each occasion the mother left with the younger three children. However the mother was always able to collect W from school when changeover occurred on a school day and by that means W’s time with her largely continued.
On 2 April 2020 as a result of the Covid-19 crisis schools in NSW closed, playgroup ceased and all changeovers had to take place at the Convenience Store at Suburb B and at or about this time the father also lost his job.
Problems emerged almost immediately. Some of them were minor, such as the parties being unable to agree on a revised change over time for Z who was no longer attending playgroup but the major problem which emerged was that W ceased spending time with the mother.
On Tuesday 7 April 2020 there was a changeover at the Convenience Store and Z, Y and X left the father’s care at the end of their five day block with him and returned to the mother without issue. W did not get out of the father’s car. The father did nothing to assist the situation and when the mother could not persuade W to go with her she drove the other children home.
The mother contacted her solicitor. She then contacted the father’s solicitor who advised that the father would bring W to the Convenience Store at 7.00pm. The mother arranged for a friend to come to the house to mind the other children and drove to the Convenience Store. When the father arrived and parked his car W remained seated in his car.
The mother walked to the car and asked W to get out of the car and come home. She said that the father exited the car and said words to the following effect:
I have complied with the court orders. I have brought her here. I can’t make her get out of the car. If I do that it would be assault. And if you touch my car, I will call the Police and you will be charged.[7]
[7] Mother’s affidavit filed on 22 May 2020 paragraph 14.
The father denied that this occurred but he was not a witness of credit when it came to accurately describing his own behaviour and I accept the mother’s evidence.
The mother tried to talk to W who repeatedly said that she wasn’t coming. The mother contacted her solicitor who notwithstanding the lateness of the hour responded but said that she did not have a solution.
The mother rang the police who said that they were not able to send anyone straight away and after an hour the mother left without W.
On each occasion after that when the father brought W to the changeover location when the other children were due to go back to the mother she would refuse to get out of his car.
On 11 May 2020 children were permitted to return to school, initially for one day a week and then for longer.
W did not immediately return to school but she was at school on Tuesday 26 May 2020 and at the conclusion of school the mother was at the top gate of the school to collect W, X and Y in accordance with the court orders.
X and Y came to her and told her that W was at school but had told them to tell the mother she wasn’t there. The mother asked a teacher to try and find her but then saw W walking out the gate. She said that W walked straight past her and when X tried to attract her attention yelled out to X to leave her alone. W went to the mother’s car but then doubled back and ran into the school.
The mother drove around to the bottom gate and found W there. W began to yell and ran back into the school. The mother looked down the street and saw the father standing there. The mother retreated to her car. The father went up to the school gate and collected W and walked off.
The trial commenced on 4 June 2020 and when it did not conclude on 5 June 2020 I made an interim order for W to live with the father and no order about her spending time with the mother. I did it as a temporary measure to relieve the stress on W. I was extremely concerned about the situation W was being placed in where every fortnight since 7 April 2020 a scene would develop at change over which involved her overtly rejecting the mother with the father standing by doing nothing to help.
The trial was to recommence on 31 August and on Sunday 30 August an incident occurred involving X.
At about midday X ran away from the father’s care and turned up on the mother’s doorstep. At trial the father said that the children were behind him in the hall and when he looked around X had gone.

It would appear that X turned up at the mother’s home and was let in by the maternal grandparents. The mother was out and discovered the child there when she returned home and she sent the father an SMS saying that X was at her house and asking what had happened.
The father went to the mother’s house demanding X’s return but the mother said that she felt intimidated by the father’s manner and she did not agree to go and get X and return her to the father.
The father called the police who attended at the mother’s home. When they arrived the father was standing outside near his car and the other children were in the car.
The police spoke to the mother and the maternal grandparents who said that the child did not want to return to the father and the police went out and informed the father of this. The father was not happy and the police requested that he leave the area with the children he had in his vehicle already, which the father did.
The mother alleged that the father was aggressive to police when they would not bring X out. The father denied this and said in cross-examination that he simply “called out” the police officer about the fact that she was aggressive in her approach to him. From observing the way the father responded to questions in cross-examination at trial I strongly suspect that he was indeed aggressive with police. The fact that there is nothing about this in the COPS record does not mean that it did not occur.
The mother’s circumstances
The mother lives in rented premises in Suburb H and she lives about two kilometres from the former matrimonial home which is also in Suburb H. When she was asked why she chose to live in such close proximity to the father if she was intimidated by him she said that it was because she wanted to live close to the children’s school. I accept that evidence and it is not as if the parties are living next door or in the same street.
The mother is engaged in home duties and is in receipt of Centrelink benefits. She is a qualified public servant but has not worked outside the home since 2014. X and Y have medical issues and Z was two at the time of separation and has only recently turned four and it is not unreasonable for the mother to devote herself to the care of the children rather than to seek to return to the work force.
The mother said that in the future she may look at getting employment as an allied health worker.
The mother has not re-partnered.
The mother has a good relationship with the maternal grandparents who have provided her with support caring for the children.
The maternal grandparents live on a 5 acre property 23 kilometres from Town J, about 6 hours’ drive from City K and the mother said that if the court made the orders she sought about W living with her and there being a moratorium on the children spending time with the father she was considering relocating to Town J and living with the maternal grandparents for a few months to ensure that there was a complete break between the father and the children and no risk of W attempting to run away while she settled into the new arrangement.
In answer to a question in cross-examination from Counsel for the Independent Children’s Lawyer the mother said that she knew that it would be extremely hard to help W adjust to living with her again but she did not want the children split up.
The father’s circumstances
The father lives in the former matrimonial home in Suburb H.
The father was employed by Employer L throughout the relationship but he was made redundant prior to the family report interviews on 14 August 2019 and at the time of the family report interviews he was unemployed.
The father subsequently obtained employment but during cross-examination in August 2020 he said that he had lost his job in April 2020 due to Covid-19 and was in receipt of Jobseeker. He said that he intended to return to work. When he was asked about the care of the children if they lived with him he said that they could attend out of school hours care or day care. He said that the paternal grandparents who live in Suburb M and some neighbours would also be available to assist him but there were no specifics around this evidence.
The father has not re-partnered.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations are in s. 60CC (2) and the first is the benefit to the children of having a meaningful relationship with both of their parents.
X, Y and Z have a meaningful relationship with both of their parents at present, in other words a relationship which is significant, valuable and important to them.[8]
[8] Mazorski & Albright (2009) 57 FamLR 518
W has not spent time with the mother since about 7 April 2020 and does not currently have a meaningful relationship with her.
There is a very high risk, and in my view almost a certainty, that if X, Y and Z commence living with the father they will cease to have a relationship with their mother and that if W remains with him her relationship with her mother will never resume.
The father has tried to prevent the children having a relationship with their mother from the very beginning. He removed W and Y from her care a few days after their final separation in July 2018 and when she tried to ring them told her that the children did not want to speak to her.
He did nothing to ensure that W changed over to the mother on 7 August 2018 after court orders were made and the mother was not able to collect her until the following day.
At the changeover on Christmas Day 2018, W refused to get out of the father’s car to go to the mother and told the mother that she knew her rights. The mother said that the father did nothing to try to get W out of the car. She said that the father said in front of W that he had spoken to police and they would not do anything because it was a federal matter. She said that the father then got in his car and drove off with W. I accept the mother’s evidence.
The father similarly blocked the mother spending time with W at Christmas 2019.
There have also been some issues with X and Y going to the mother when changeovers have been at the Convenience Store which the father has done nothing to assist with but to date they have always gone to her.
The father’s counsel asked me to find that the children’s reluctance or refusal to go to the mother arose out of them fearing her because she had abused them and from them having a poor relationship with her. For reasons to be given shortly I do not accept that the children have been abused by the mother nor do I accept that they have a poor relationship with her. In my view the children’s reluctance to transition to the mother’s care is directly attributable to the father having systematically undermined their trust and confidence in the mother and his desire for them to reject her which leads to him taking pleasure in seeing the children act out against the mother and doing nothing to help when they act out or refuse to go with her.
The family report writer commented on the father’s negativity about the mother during the report interviews in August 2019. She said as follows:
The father presented at the Family Consultant’s office at the designated time and was unaccompanied. On a number of occasions, his demeanour appeared defensive, and while he was communicative with the Family Consultant, he would often answer the questions asked of him with an abrasive tone and would make negative comments about the mother in the presence of the children. From the beginning of the interview it appeared that the father was seeking to create a negative picture of the mother.[9]
[9] Family Report paragraph 31
The mother gave copious evidence about the father’s behaviour at changeovers including pointedly ignoring her, being rude and aggressive to her or passively standing by while W refused to go with her. I accept her evidence, which is consistent with other evidence in the case about the father’s attitude and behaviour to the mother and is supported by the evidence of the maternal grandfather about the changeover on 7 August 2018.
The father’s own evidence about some of his behaviour, such as refusing to do a changeover unless the mother’s friend Ms N left and threatening to call the police in the children’s hearing at a changeover in May 2020 makes the mother’s account of his behaviour at changeovers credible.
There is evidence that the father has placed pressure on W to be on his side. The family report writer said as follows:
When asked what she was told about coming to the Family Assessment, W stated that her mother only told her the name of the Family Consultant. She stated that the father told her to ‘tell the truth and don’t lie ... make sure you tell about if you like it with me and how it is living with me’. It appears that the father may have been putting subtle pressure on W to present a positive picture of her time with her father.[10]
[10] Family Report paragraph 88
I do not accept that W has such a poor relationship with the mother that she would not go to her if the father gave his permission.
W had positive things to say about the mother at the child inclusive child dispute conference, the family report interviews and to her counsellor at All About Kids and she was observed to have a satisfactory relationship with the mother at the Child Inclusive Child Dispute Conference and the family report interviews. When changeovers were happening at school she was going with the mother.
The father could facilitate W spending time with the mother if he chose to do so. He chooses not to.
If W continues to live with the father she will have no relationship with her mother in the future and there is a very high risk that if X, Y and Z live with the father he will orchestrate the same outcome in respect of them.
There are already signs of the father trying to draw X, Y and Z into this net. In his affidavit filed on 22 May 2020 he made a number of allegations about Y and Z cowering when they had accidents in his home and he gave a detailed account of his alleged difficulty getting X, Y and Z to change over to the mother. He said as follows:
On 19 May 2020 I attended changeover to return the children to the Applicant following my weekend with them. When I arrived, Z and X were distressed, crying and saying, “I don’t want to go”. I got Z out of the car first and as I was doing so, the Applicant approached very close behind me, so that I could not move out of where I was with Z, I am unsure why she was standing so close to me. I asked her a number of times, “please move back away from me” and she responded, “no, I don’t have to”. She eventually moved out of the way so that I could go and put Z in her car.
I then went to get X, and again she jumped around in the car so that I could not get her. She was crying and screaming as I tried to get her out. I told her, “it’s your mother’s time with you” and she respondent, “no, I don’t care, she hits me and hides the phone so that we can’t talk to you”. I managed to get X out of the car and sat on the ground with her for several minutes while she calmed down.
The applicant then came to take her and X fought to try and get away from her. As this was happening, Z was alone in the Applicant’s care, so I went to be with her and make sure she was okay while the Applicant was dealing with X. The Applicant followed me and said, “you are not allowed near my car”. I was only going to her car to make sure Z was okay and so that she wasn’t left alone. I told the Applicant, “I am in a public place; I am not doing anything wrong”. At this, the Applicant stepped towards me and shoved me with her shoulder and hips. I was shocked, and said to her, “if you touch me again I will call the police”.
I walked away from the Applicant and went to get Y and W out of the car. When I got Y out of the car, he ran around the Applicant’s car trying to get away from her so that she could not put him in the car.
W again refused to get out of my car, and the Applicant did not attend to speak to her or try and get her to go with her before getting in her car and driving away with the other three children.[11]
[11] Paragraphs 29-33 of the father’s affidavit filed on 5 June 2020.
Excluding the father from all changeovers might be a solution to the problem of the children changing over peacefully between the parents but it might not be. The mother described the father as manipulative and a classic example of him being manipulative occurred on Tuesday 26 May 2020.
This was a day on which the mother was due to pick the children up from school pursuant to the orders. The father said that W told him that she did not want the mother to pick her up and in order to get her to go to school he told her that he would not allow that to happen and would come to the school that afternoon and pick her up himself.
He said that he did not intend to do so and just told her that to get her to go to school, which was manipulative to start with.
The father went to the school at the end of the day, waited until a scene unfolded after the mother tried to pick W up and W became acutely distressed, reiterating over and over to a teacher “he promised, he promised” and then emerged from nearby (and whether it was from behind a structure or not is irrelevant) and collected her. He then tried to use the incident at trial to make the mother look bad.
If X, Y and Z commence living with the father there is a very high risk that it will only be a short time before they cease to spend time with the mother and the risk of that is also high if they continue to spend time with him. There is strong foundation for the following opinion in the family report:
The father has not shown an ability to facilitate and encourage a close continuing relationship between the children and the mother. The father claims he wishes to support an ongoing relationship for the children with their mother; however, the father appeared to have no qualms about making negative statements about the mother in the presence of the children. It was also observed that the children appear to echo the language of the father regarding their mother and both in interview with myself and the Family Consultant at the Child Inclusive Conference noted that W appears to use very similar phrasing to the father in her criticisms of the mother and it seems to suggest that she is highly influenced by her father’s attitude to the mother. [12]
[12] Family Report paragraph 36
I struggle to understand why the Independent Children’s Lawyer believes that arranging for this family to attend family therapy would alter a situation which has its genesis in the father engaging in family violence and bullying during and after the relationship and the mother being unable to effectively deal with his behaviour.
The father’s counsel repeated a number of times during submissions that the mother was intent on preventing the children having a relationship with the father because she did not like him and wanted him out of her life and she even went so far as to suggest that if the children lived with the mother their relationship with him might cease because of the mother’s attitude and actions. There is absolutely no foundation for such claims.
The mother has never demonstrated a hostile attitude to the father. She has complied with orders about the children spending time with him. The father complained about her compliance with the orders about telephone communication but it was not clearly established that the mother had sought to interfere with the calls. It is quite possible that the children’s ages and the busy life in the mother’s household in the evening may sometimes have made telephone calls less than satisfying for the father and the children but this does not demonstrate that the mother does not support the children having a relationship with their father.
The mother has remained supportive of the children spending time with the father notwithstanding his behaviour since separation. If his time with the children ceases in the future it will not be because of her actions or attitude but because the father is unable to change his behaviour and attitude.
Pursuant to s. 60CC (2) (b) I must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Pursuant to s. 60CC (2A) this subsection takes priority over the first primary consideration.
The father’s counsel submitted that the mother had abused the children by smacking them excessively and continued to do so even after a court order was made prohibiting it, making them live in filthy conditions, failing to supervise them and leaving them alone in a motor vehicle while she went shopping and in the case of X and Y failing to properly attend to their therapeutic needs.
These matters do all need to be considered but they are parenting capacity issues and I will discuss them under that heading. I do not accept that the mother has ever abused the children as abuse is defined in the Family Law Act or neglected them in that she has pervasively failed to meet their basic needs.
The submission by the father’s counsel that the mother committed an act of family violence by preventing the father spending time with Y at a Father’s Day event is without merit.
For reasons I will explain later in the judgment I am satisfied that the children were exposed to family violence perpetrated by the father during the relationship and have been exposed to family violence perpetrated by him since separation insofar as taking the motor vehicle from the mother, removing W and Y from her care and being aggressive and confrontational at changeovers can be so characterised although characterising them as bullying behaviour is also appropriate.
The children have been repeatedly exposed to the father bullying the mother and seeking to demonstrate that he is the powerful person in the situation by refusing to facilitate W transitioning to her care.
If the mother and father come into contact at handovers in the future the children will continue to be exposed to this behaviour. There is also a risk of the father behaving in this way in a future relationship and exposing the children to family violence as a result and there is force in the following opinion by the family report writer:
The father appeared to have limited understanding and insight into the dynamics of family violence and impact upon the children. The father did not appear to view his behaviour as intimidating or denigrating to the mother. It was observed that while the father claimed he was supporting the children to have a loving relationship with their mother, he made a commentary about the mother in the presence of the children and it is the opinion of the Family Consultant that this behaviour may be placing psychological stress upon the children and puts them in the untenable position of feeling they must show loyalty to their father by rejecting their mother.[13]
[13] Family Report paragraph 75
The father has also abused the children.
Abuse is defined in the Family Law Act and it includes causing children serious psychological harm. The father has deliberately alienated W from the mother and I place weight on the following opinion by the family report writer:
Deliberate alienation of a child from their parent is a form of psychological abuse and causes children significant harm. As such, if the court finds that the father is seeking to encourage the children to reject their mother, the children need to be protected from this potential harm and orders may be required to minimise the father’s impact upon the children.[14]
[14] Family Report paragraph 38
I am satisfied on the balance of probabilities that the father has alienated W from the mother and is seeking to alienate the other children from her and that he is abusing the children.

There are numerous additional considerations in s. 60CC (3) and the first is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) which the court thinks are relevant to the weight it should give to the children’s views.
There is evidence about the views of some of the children in the Child Inclusive Child Dispute Conference memorandum prepared on 3 April 2019 and the family report prepared in September 2019.
W told the family consultant on 3 April 2019 that she had always felt closer to her father than to her mother. She said that she would like to spend week about with each parent but that if her young siblings could not spend week about she would still like some extra time with her father.
W made a number of negative comments about the mother’s parenting to the family report writer in August 2019 but she was not completely rejecting of her. The report writer said as follows:
When asked her view regarding future parenting of herself and her siblings, W responded, ‘a week and a week or switch times so it’s 9 days with Dad and 5 with Mum for a little mix up’.
W would like the court to know that ‘I’d rather stay with Dad than Mum. I’d struggle a lot. It wasn’t fair at all... I’d refuse to go back if it wasn’t fairer. The little ones ask how many sleeps to Dad’s. They never say how many sleeps to Mum’s.’ W appears to be very set on her perception of justice for her father.[15]
[15] Family Report paragraphs 102 & 103
The father’s case at trial was that W now had a strong fixed view that she did not want to spend any time with her mother. The father was not a witness of credit and I consider it probable that she would transition well enough between her parents if she had the father’s permission to do so. Her preference has always been to spend more time with the father than the mother but that does not mean that she has reached the point of completely rejecting the mother.
X was not interviewed by the family consultant in April 2019. She was interviewed by the family report writer but she noted that X had limited language and her facial expression was non-congruent with the topics discussed.
The report writer said as follows:
When asked about her views about future parenting arrangements, X responded that she ‘wants more time with Daddy’. [16]
[16] Family Report paragraph 107
Y was 5 and he was also interviewed by the report writer but she noted that due to his age his answers were quite limited. She reported as follows:
Y wanted to court to know ‘I want to live with Daddy.’ When asked for his reasons, Y responded ‘because he is happy’. [17]
[17] Family Report paragraph 117
Z was two years and 10 months old at the time of the family report interviews. The report writer spoke to her only briefly and said:
When asked to choose a feelings card to show her mother, Z chose the sad card. When asked to choose a feelings card to show her father, Z chose the angry card.[18]
[18] Family Report paragraph 121
This is interesting because it is the way the parents presented during the hearing – out of the mouths of babes? However it does not suggest that Z has a view about parenting arrangements.
The children all wish to spend time with the father and W at least would prefer to live. However they have been exposed to aligning behaviour by the father and against that background I cannot place weight on their views.
I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent of the children.
The mother said that she had a good relationship with all of the children. She said that before the parties separated she had a close relationship with W and that W would comfort her if she was upset after an argument with the father.
The father maintained that all the children hated the mother but while there have been difficulties at changeovers between the parents and while the children have been subjected to loyalty demands when the parents have both attended events at the school, the independent evidence does not bear out the proposition that any of the children hate the mother or even the proposition that W has a poor relationship with her.
The family consultant did not consider this to be the case in April 2019. She said as follows:
According to the father, all the children hate spending time with the mother and they verbalise their hatred of her. The father described the mother as being devoid of any emotions or capacity to nurture the children. In observations with the mother, W and the mother hugged and kissed each other before W left the childcare room to speak with the family consultant. Observing the mother with the children, their interactions were very warm and affectionate. The three younger children knew that the father was in the waiting area and that W had asked to sit with him. At no time did any of the other children ask to see the father. According to the father, the children hate spending time with the mother and kick and scream to get away from her so that they can spend time with him.[19]
[19] Child Inclusive Child Dispute Conference memorandum dated 3 April 2019, page 3.
The family consultant also said as follows:
Whilst the father is adamant that the children hate the mother, in particular W, this does not appear to be the case. W’s comments were that “I love my mum, but dad is a ‘betterish’ parent. He lets us socialise.” She said that the mother takes them to church and she enjoys that, but the father takes her to counselling every Thursday when they are with him. W then went on to say “To be honest, I prefer to live with dad rather than mum.” However, she said she does not want to be separated from her younger siblings if they remained with the mother.[20]
[20] Child Inclusive Child Dispute Conference memorandum dated 3 April 2019, page 4.
The family report writer also did not consider this to be the case. She conducted an observation between the mother and the children in August 2019 and said as follows:
The observation of the mother and the children suggested a loving and relaxed relationship. The mother was attentive and engaged with the children and was attuned to their needs throughout the session.
The mother was able to attend appropriately to the needs of the children and the three younger children all requested her attention with comments like ‘Mummy look at me’. The mother divided her attention evenly between the younger three children.
W was more independent of the mother, however the mother checked in with her whilst managing the younger three children.
The mother was able to play easily and conversed in an age appropriate manner with each of the children and the children took turns and shared easily.
At one point X became fearful of one of the play equipment apparatus. The mother responded appropriately and soothed and encouraged her and X settled quickly. W helped with the two younger children while the mother attended to X. The mother was calm and appropriately responsive.[21]
[21] Family Report paragraphs 123 to 127
After the family report interviews there were some occasional problems with W returning to her mother’s care but these all occurred on occasions when she had to change over directly between her parents. When the mother picked her up from school the time still occurred.
Both the family consultant in April 2019 and the family report writer in September 2019 considered that W was embroiled in the dispute and that there were strong indicators that she had been exposed to the father’s views and was parroting his complaints about the mother but even while parroting those complaints W was not rejecting of her mother.
W was engaged in individual counselling with All About Kids between March 2019 and March 2020. The counselling notes were tendered and they shine another light on W’s relationship with the mother.
During the counselling W’s issues when in the care of the mother were explored. She complained about the way her siblings treated her and about not getting enough attention from the mother. On 14 March 2019 for example she told her counsellor that thing were going ok. She said that she was a bit angry and stressed as she was finding it hard to respond to some of her sibling’s behaviour to her and said that she was ok doing art with mum.
At a session on 21 February 2020 W said that things were going better at Mum’s house as they have the internet and she can play outside a bit more and X was less of a problem. The session notes end with the following comment:
No issues raised from either house.[22]
[22] Page 189 Exhibit D ICL’s Tender Bundle
The family report writer observed a good relationship between the father and the children and said as follows:
The father was affectionate and playful with the children and responded appropriately to their needs.
W was far more connected and affectionate with her father than with her mother and all the children appeared to seek to play close at hand to the father whilst with the mother they were content to spread out into their own activities.
When it was time to cease the observation with the father and return the children to the mother W became emotional but when directed to go to the mother she acquiesced. Y returned to the mother without resistance.
X became very distressed and resistant when she was to return to the mother. She crawled under the table and screamed ‘I hate Mum’. Z also began screaming. The father responded appropriately and reassured the children but X was very distressed and the father needed to physically guide her over to the mother to transition. The mother responded by taking X from the father’s arms but she did not acknowledge the father.[23]
[23] Family Report paragraphs 129 to 132
The family report writer expressed the opinion that the children seemed to feel secure and at ease with both parents although W was markedly more reserved with the mother and I am satisfied based on the totality of the evidence that this opinion should be given weight. Her observations also revealed difficulties with the children changing over between the parents but that is not the same as the children having a poor or no relationship with the mother.
W complained to her counsellor and to the family report writer about the way her siblings treated her but the father conceded that there were issues between the siblings in his home so it is not just a problem confined to the mother’s home and although W has had issue with her siblings there is nothing to suggest that her relationship with them is so poor that the siblings need to live separately.
The mother has a good relationship with her parents and the children have spent time with the maternal grandparents throughout their lives. The maternal grandparents cared for the children for a week when the parents went on a trip to Country O. They agreed to do the changeover on 7 August 2018 after the interim orders were made because the mother was fearful of doing the changeover herself. They were staying in the mother’ house on 30 August 2020 when X ran away from the father and returned home.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children.
In her affidavit filed on 26 February 2020 the mother said that she was not receiving any child support She said that she had received $1,900.00 on 17 November 2019 after the father filed his tax return.
The mother said that the father had gone to the school to pay odd expenses for the children such as for excursions but he did not discuss this with her prior and she found out about it only when she went to pay.
During cross-examination in August 2020 the father said that the mother was getting $25.00 per week child support since he had been in receipt of Jobseeker. He denied that he had not been paying child support when he was employed and suggested that he had challenged the assessment because the mother overstated the amount of time the children were spending with her and it had been changed.
No documentation was provided to assist me to resolve this issue but regardless of whether the father has been meeting his statutory obligations the mother has been bearing the brunt of the financial support of the children since separation.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
This does not assist me as a separate consideration.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom he or she has been living.
Four changes were proposed.
One was the father’s proposal that all of the children live with him.
This would be detrimental for the children. It would almost certainly see an end to them having a relationship with the mother and there is nothing to suggest that this outcome is necessary to protect them from harm or necessary because of the nature of their relationship with her.
The second was the proposal by the Independent Children’s Lawyer that W continue to live with the father. That would not be a change to the arrangement which has been in place since April 2020 but it is a change to the arrangement which was in place between August 2018 and April 2020.
Counsel for the Independent Children’s Lawyer expressed the view that once final orders were made things between the parties might settle down and they might both respect the orders and that W was likely to spend time with the mother if an order was made for it to happen, and the father’s counsel asked me to disregard the father’s evidence that he would be unable to get W to spend time with the mother and find that once the pressure was off things would change.
I do not accept that. There was nothing in the evidence to suggest that the father’s hostility to the mother had reduced one iota. It is extremely unlikely that W will have a relationship with the mother in the future if she continues to live with the father and given the objective evidence about the nature of her relationship with the mother prior to April 2020 (as opposed to the father’s evidence about it) that would be a significant loss for her.
The family report writer was asked during cross-examination about the impact on W of not spending time with the mother even if that did appear to be her wish. She answered along the lines of:
If W forms the view at the age of 10 that she can refuse to see her mother without their being a good basis for it, it is putting W in the position of being the decision maker in her family. She is too young to carry that burden and may suffer ongoing guilt and distress and it may cause long term issues in her relationships with her siblings, her parents and other people. It is an enormous responsibility which is likely to impact on her negatively.
The third change proposed was that W live with the mother.
The father’s counsel submitted that this would be a detrimental change because W did not want to live with her mother and would run away. If she ran away while the parties were living close to each other that might not be too dangerous but if the mother moved to Town J and she ran away she could come to harm.
W could run away. Even if she is not truly opposed to spending time with her mother, she has always expressed a preference to either live week about with her parents or to spend more time with her father than with her mother and an order that she live with her mother would be contrary to her wishes and she might act out.
It is by no means certain that the mother will be able to retain W in her care if I make the orders she seeks but the long term detriment to W of not having a relationship with her mother and also of possibly not having a relationship with her siblings if the father’s hostile aligning behaviour continues and the court has to consider a no time order is so great that I am satisfied that the mother should be given a chance to try and settle W in her care.
The fourth change proposed was a reduction in the father’s time with the children. The Independent Children’s Lawyer proposed only a reduction. The mother proposed a period of no time before time was introduced in a reduced amount.
A moratorium on the father’s time with the children is essential to give the mother a chance to settle W into her care and a reduction in the father’s time with the children once time resumes is essential if they are to be shielded from his hostile aligning behaviour. As the mother’s Counsel said and Counsel for the Independent Children’s Lawyer hinted at, this is a case in which it would not have been surprising if the mother had proposed a no time order. She has not done so and an order for some time in a reduced amount will give him one last chance to show that he can spend time with his children and simply enjoy it and not try to alienate them from the mother.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant consideration.
I must consider the capacity of each parent and any other relevant person to provide for the needs of the children including their intellectual and emotional needs.
The mother
The father alleged that there were numerous reasons to be concerned about the mother’s parenting capacity. He alleged that she consumed excessive alcohol, had mental health issues, smacked the children to the point where it constituted abuse, kept a filthy house, failed to properly supervise the children and failed to attend to their hygiene. He also alleged that she failed to properly attend to X and Y’s therapeutic needs.
It is important to consider his father’s allegations against the background of the following uncontroversial matters.
First, the mother has been the children’s primary carer throughout their lives, save for W having spent no time with her since early April 2020.
Second, no issues were raised during the trial about W and Y’s school attendance or their progress at school. The same applies to X. She has had some absences but they have been connected with her having therapy. The children have never attended school neglected or unkempt and there was no independent evidence that they were not provided with sufficient food by the mother. The mother ensured that W attended a session at the school about puberty and has encouraged her interest in the choir.
Third, there was no suggestion that Y and Z ever appeared unkempt or hungry at day care or playgroup.
Fourth, the family consultant said as follows on 3 April 2019:
All four subject children presented as being well cared for. They were clean tidy and appeared to be well nourished. By the father’s own admission, he spoke with W and X’s teachers at school yesterday and they have no concerns regarding either child. This includes their school attendance.[24]
[24] Child Inclusive Child Dispute Conference memorandum dated 3 April 2019, page 3.
Fifth, the children presented as healthy, well dressed and well cared for at the family report interviews in August 2019.
Sixth, none of the children have attracted adverse comment at school or day care because of behavioural issues. In an email dated 21 May 2020 a child protection case worker who was dealing with a notification stated that:
The school have not independently held any concerns for the children beyond the conflict between the parents.[25]
[25] Tender Bundle 2 page 41
Seventh, none of the children have made disclosures at school or day care about issues with the mother’s treatment of them which has led to a mandatory notification.

It is a wonder that the mother has parented the children as well as she has since separation and she has been willing to accept support in regard to her management of the children. She had some sessions with the T Counsellors between August and November 2019 and was observed to endeavouring to place healthy boundaries around the children. In May 2020 she consented to a referral to Region U Family Support Services for some parenting and behaviour strategies for the family.[32]
[32] Tender Bundle 2 page 44
There is every reason to believe that if she has some power in her corner as a result of court orders and a moratorium on the father spending time with the children that she will capably parent the children in the future
The father is capable of feeding and clothing the children and ensuring that they attend school. A number of concerns arise about his parenting capacity however.
Some of them arise out of his bullying behaviour toward the mother, his failure to shield the children from his antipathy for the mother and his refusal to ensure that W has a relationship with the mother. I will discuss the bullying behaviour in the context of considering family violence as it is part of that spectrum and the remaining two issues have been discussed when dealing with the primary considerations.
A concern was raised about the father’s alcohol consumption. The mother said that he drank heavily during the relationship and that his alcohol consumption contributed to his aggression and there is evidence which supports a finding that this was the case.
The father engaged in counselling with V Counsellors between 2 November 2017 and 20 June 2018 and the precipitating factor for this was reported to be that he was drinking excessively and was under stress at work, high levels of stress and anxiety and wife suffering from long term depression.
In an early session he said that he worked 7 days a week and was drinking 2 cartons of beer a week. He complained that the mother suffered from depression and the house was a tip. In later sessions the father said that he had been drinking too much and was now drinking mid-strength beers.
There is good reason to believe that the father’s alcohol consumption was historically an issue but the father did a CDT test early in the proceedings which did not show regular excessive consumption of alcohol. There was no evidence such as drink driving charges or police records to suggest that the father currently had an alcohol problem and the children did not comment on his alcohol consumption.
It is not open to me to find that excessive consumption of alcohol is currently a problem for the father.
Somewhat surprisingly, although perhaps it is not so surprisingly given the plethora of issues in this matter, no questions were asked about the father’s mental health notwithstanding that there is reference in the V Counsellors counselling notes to the paternal grandfather being a Vietnam Veteran with PTSD and to the father having suffered physical, emotional and psychological abuse as a child and notwithstanding that it was noted that the father was in the
…extremely severe range for depression and severe range for anxiety and stress.
A final concern about the father’s parenting capacity is how he would manage if he had the care of all four children.
Earning an income is extremely important to the father. He and the paternal grandmother both complained about the fact that the mother made no effort to look for work after Y was born. The father has historically worked long hours and sometimes worked seven days a week. At trial he said that he intended to return to work when he could and that he would place the children into day care and before and after school care.
The mother said that she was concerned about his capacity to care for the children if he was working. She said as follows in her affidavit filed on 26 February 2020:
Mr Mickelson returned Z to preschool yesterday 25 February 2020 and when I collected her in the afternoon, Ms AA who is one of the workers said to me “it was a bit strange this morning, Z arrived at 8am as soon as we opened in a pull-up nappy and we put her in undies straight away and she didn’t have a sandwich so we found her something to eat from the kitchen. Also, she had Y’s shoes on which were much too big for her” or words to that effect.
I thought about ringing Mr Mickelson to discuss this with him but I didn’t want an argument so I said nothing.
When the children came home from school yesterday afternoon, they said to me “Dad had to go to work early and he took us to before school care at 7.30am” or words to that effect.
I am not aware that Mr Mickelson is working and at no time did he discuss this with me. I would have been happy to collect the children from the Convenience Store.[33]
[33] Paragraphs 264-267 of the mother’s affidavit filed on 16 February 2020.
I question whether the father has properly considered how he would manage the care of four children, two of whom have health issues which require them to regularly attend therapy and any of whom could get sick on any particular day and throw his plans for work into disarray. If he has considered it he gave no sign of it in any of his affidavits or during cross-examination.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
The mother said that she agreed to the children spending five nights a fortnight with the father because changeovers were always difficult due to the father’s behaviour and she felt that it was preferable that changeovers be to and from school and day care or playgroup.
She said that she felt that five nights in a row did not work for the children. She said that X struggled to adjust to changeovers between the households because there were different rules in each house and that she felt Z and Y were too little for this arrangement.
Z and Y are now 4 and 6 and they were observed to have a good relationship with the father at the family report interviews which would suggest that their age alone would not be a reason to reduce their time with their father.
The mother’s evidence about X struggling to adjust to change and having meltdowns is likely to be true given her diagnosis. The father said that X did not have behavioural issues in his care but he was unable to explain why she ran away from his home on 30 August 2020 other than to suggest that the mother had engaged in a nefarious plan to entice her away and he is not someone who would be likely to admit it if he was having problems with the children.
However whether reducing X’s time with the father from five nights to three would make it easier for her to transition between different homes with different rules and expectations has open to question.
I must consider any family violence involving the children or a member of the children’s family.
Family violence is defined as follows in s. 4AB (1) of the Family Law Act:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
S. 4AB (2) contains examples of behaviour that may constitute family violence but they are examples only.
The mother alleged that the father subjected her to verbal and emotional abuse during the relationship. She said that he had often told her she was stupid and useless and that she had begun to wonder if she was stupid and worthless. She said that he called her the biggest cunt he had ever known and complained that she had nothing to do all day and didn’t keep the house clean.
She said that he would yell in her face and she would “freeze”. She said that the children were present on occasions when the father was yelling at her or screaming in her face.
The mother said that the father drank heavily and became angrier the more he drank.
The mother said that she did everything she could to placate the father in terms of keeping the children quiet, keeping the house clean and cooking nice meals and she constantly felt she was walking on eggshells.
The maternal grandfather gave extensive evidence about observing the father behaving in a coercive and controlling way when he visited the home which he did on fairly regular basis.
Interestingly, although the mother said that there was no physical violence, the maternal grandfather described an occasion when he saw the father put both hands against the mother’s face and push her face into the lounge and then bend down close to her face and scream at her.
The mother was asked about this in cross-examination and said that she did not remember it.
It is most unlikely that the maternal grandfather made this up. If it was made up I would have expected the mother to readily adopt it. However the mother and maternal grandfather both stuck to their evidence about what they remembered.
I do need to bear in mind that the maternal grandfather is someone who is likely to support the mother but his evidence about what he observed during the relationship was detailed and credible as was the mother’s evidence. The mother’s evidence about the father’s behaviour during the relationship is credible given his behaviour to her since the relationship ended and there is support for the proposition that her claims about the father’s treatment of her are not a recent invention in the fact that there is reference in the mother’s GP’s notes when the mother sought assistance about her mental health in 2013 to the fact that she found the father’s behaviour and his expectations of her difficult to deal with.
There is also some support for the mother’s claims about the father’s behaviour in the interview between W and the family report writer. The report writer said as follows:
When asked about how her parents related when they lived together, W recalled how her mother and father would be fighting. She stated, ‘they were yelling at each other ... Dad was yelling because he works 14-16 hours per day and the house was dirty. I tried to break up the fight by asking Mum if she could put me to bed’. This vignette sheds insight on W’s efforts to minimise the conflict between her parents by attempting to direct their attention to her needs. It was also nearly an exact repetition of the father’s comments about the mother in his assessment.[34]
[34] Family Report paragraph 87
The mother said that on 27 October 2017 the father screamed and yelled at her over a prolonged period of time. She described in some detail feeling scared and intimidated by his behaviour. She said that during the dispute he threw a mobile phone at her but it missed her and hit the lounge.
The mother went to the police the next day and reported the incident and the police took a statement from her. She was asked if the father had a gun and she told them that he did.
The police rang the father and asked him to come to the police station.
The mother said that she returned home to pack up some things with the intention of leaving to stay with a friend. She said that when she got home the father wasn’t there but he arrived while she was packing up. She said that he went to a cupboard in the bedroom and removed the gun which was not stored in a gun safe and got in his car with the gun and drove away.
The father went to the police station but when asked if he had a gun said the police took all his guns off him last time.
The police rang the mother to say that the father was at the police station. She told them about seeing the father leaving the house with the gun and the police searched the father’s car and found the shotgun under a seat wrapped in a towel.
The father was charged with firearm offences and intimidation.
The charge of intimidation was ultimately dropped but I accept the mother’s evidence about the father’s behaviour on 27 October 2017 and I am satisfied on the balance of probabilities that the father engaged in controlling and coercive violence on that occasion.
I am also satisfied that he was violent on other occasions during the relationship which took the form of yelling at, abusing and intimidating the mother although I cannot make a finding about how often this occurred or the exact detail of what occurred on every occasion.
Keeping an unsecured unregistered shotgun in the house was also an action which had the potential to cause fear and to impact on the mother’s behaviour and it constituted family violence. The father’s counsel submitted that this finding was not open to me because the father said that he did not have any bullets for the gun. I do not accept that this makes a difference.
The father has engaged in or been complicit in controlling and coercive behaviour since the first separation in October 2017.
In March 2018 he insisted on moving back into the house even though he was aware that the mother did not want him to do so and in the end the mother had to leave and rehouse herself.
On 15 July 2018 the father followed the mother into an RMS office and took Y and W and walked off with them. The mother had to apply for a recovery order to get the children returned.
The mother said and I accept that on Boxing Day 2018 the father refused to allow Y or Z to get into his car because it was 8 minutes to 2 when the mother arrived at the changeover location. He required them to wait until 2.00pm. This was coercive and controlling behaviour designed to intimidate the mother.
The father repeatedly stated during cross-examination that he was not aggressive and that the mother had no reason to be afraid of him. When he was asked by the mother’s counsel if perhaps he had a manner which he didn’t intend to be aggressive but which came across as aggressive he said no.
The father is aggressive and he is a bully. His correspondence with the mother often has a bullying tone and there are endless examples in the evidence of his bullying behaviour: moving back into the house in March 2018 notwithstanding that the mother did not want to reconcile with him and had taken out a 6 month ADVO against him; using the opportunity while he was there to take photographs of the state of the house notwithstanding that he was also living there and could have helped to clean up rather than take photographs; asking his parents on the day the mother moved out to write a letter to her demanding the return of a motor vehicle with a threat to involve the police if she did not; forcibly removing W and Y from the mother’s care shortly after she moved out of the house in July 2018 to get away from him; making a complaint to the Department of Family and Community Services about the mother’s accommodation even though the only issue was the number of bedrooms and people in the house; snubbing the mother at changeovers in front of the children; and the list goes on and on.
Another example of bullying behaviour was the father’s response when the mother told him that she wanted W to attend a program at the school for girls approaching puberty. She said as follows:
The school ran a program for girls to attend with their parents about puberty and I sent Mr Mickelson an email confirming that I thought this would be a great program for W and I to attend together.
I was very surprised that Mr Mickelson then contacted me via SMS and said “no I do not agree with this, you have not discussed it with me and for the moment the answer is no. We need to sit down together and talk about it and if I agree then we will go together” or words to that effect.[35]
[35] Mother’s affidavit filed 26 February 2020 paragraphs 199-200.
The father eventually agreed to W attending and he also attended and sat through the program.
The father behaved like a bully when an appointment was arranged with service providers after NDIS funding was obtained for X and he ostentatiously refused to sit in the same room as the mother and his behaviour in overriding the mother’s wish to have Y continue therapy at CPA and unilaterally arranging for him to commence therapy at Jigsaw is another example of bullying behaviour.
The mother gave evidence about other occasions where she felt intimidated by the father. She said and I accept that on Thursday 13 February 2020 the father knocked on her door just after 5.30pm. She said that he was standing outside and said to her words to the effect of:
Listen its Thursday, put the kids on the phone.[36]
[36] Mother’s affidavit filed 26 February 2020 paragraph 217.
The mother said that she immediately shut the door because she felt that the father was very angry and she was upset that he had come to her house. She said that she burst into tears.
On 20 February 2020 the father was supposed to collect Z from playgroup at 11.30am in accordance with the interim orders. He did not arrive and the mother sent him a text message to see where he was. She said that the following then occurred:
We waited for a few minutes and then I sent Mr Mickelson a SMS to see where he was. I did not receive a reply. We then waited for a bit longer before I rang him to see where he was.
Mr Mickelson said to me “I have decided not to get Z from playgroup. You have refused to allow me to speak with the children on the phone so I am not coming. You need to learn to do the right thing” or words to that effect.
I tried to explain that I did not think the phone calls were good for the children but Mr Mickelson cut me off and said “you don’t know what the right thing is, I am sick and tired of you and what you are doing…” or words to that effect. As he as speaking he got louder and louder and I formed the opinion that he was again very angry.[37]
[37] Mother’s affidavit filed 26 February 2020 paragraphs 250-252.
The mother took Z home but she said that the following then occurred:
Just after 3pm Mr Mickelson rang me and asked me where I was. I told him that I was at home and he said to me “well that is not good enough, you were supposed to be at school” or words to that effect.[38]
[38] Mother’s affidavit filed 26 February 2020 paragraphs 256.
The mother agreed to take Z to the Convenience Store for the father to collect. When he parked his car Y, X and W who the father had collected from school got out of the father’s car and the mother hugged and kissed them and asked them about their day. She said that:
Mr Mickelson then walked up to us and he said to me “the kids are with me now, this is my time, you are not allowed to speak with them when they are with me” or words to that effect.[39]
[39] Mother’s affidavit filed 26 February 2020 paragraphs 259.
The father not only bullies the mother, he attempted to bully the family report writer’s receptionist. The family report writer said as follows:
It was noted that the Family Consultant’s receptionist reported the entitled and demanding manner with which the father conducted himself while organising a time for the interview. The father reportedly hung up on the receptionist when she would not allow him the timeslot that had been allocated to the mother and then called back and aggressively demanded that he be given a timeslot before the mother. The father’s manner was reportedly aggressive to the degree that the receptionist had to cease the phone call after asking the father to address his tone towards her.[40]
[40] Family Report paragraph 31
The father’s aggression has been a concern for FACS. The father’s counsel asked me to have regard to an entry from the FACS records on page 45 of the Tender Bundle in support of an allegation about the mother’s housekeeping but on the same page the following appears:
Father presents as a worker safety risk – in June 2017 BB Families caseworkers attended the family residence where they were highly aggressively confronted by father, they had to appease him to calm him down and he told them never to come back – due to his behaviours he hindered their capacity to effectively engage with the mother or have any direct contact with her. In October 2017 father was caught and charged for the possession of an unregistered and unlicensed shotgun in his vehicle. In 2003 father (along with his brother Mr CC) invaded the residence of an unrelated person, forcing entry and physically assaulting them in retaliation to a fight between that person and father the night prior at a party.

It was abundantly clear during the trial that the father simply does not understand the nature of family violence and bullying. He was unrepentant about his actions, including his action in demanding the motor vehicle from the mother, and his counsel made a particular point of cross-examining the mother at length about a bag of used tampons.
The mother said and I accept that the bag was in a drawer in the bathroom tied up and waiting to be taken to the garbage. The father removed it from the drawer, opened it and photographed the contents.
In my view the decision to cross-examine the mother at length about the bag of tampons was made in order to humiliate and degrade her.
The father’s counsel did not seem to understand what she had done in cross-examining the mother using the photograph of the used tampons. When I raised it with her during submissions she expressed disbelief that I would be concerned about it and said:
What if one of the children had gone into the bathroom and opened the drawer and pulled out a tampon and put it their mouth? That’s what the court should be concerned about.
The father’s behaviour during the trial in instructing his counsel to subject the mother to lengthy cross-examination about the state of the house over two years ago was also bullying behaviour. It was not child focussed behaviour designed to achieve the outcome which he was then pursuing, namely week about shared care. It was designed to humiliate and degrade the mother indeed it is hard to avoid the conclusion that it was designed to batter her into submission.
The father’s family also may not be assisting him to recognise the nature of his behaviour. The paternal grandmother could see nothing wrong with demanding that the mother give up the motor vehicle.
There is no prospect of the father changing his behaviour in the future when he does not understand the nature of his behaviour and the harm and fear it causes.
The father made his own allegations of family violence. He told the family consultant during the child inclusive child dispute conference that the mother physically assaulted him when intoxicated on one occasion prior to having children and he repeated this to the family report writer and he repeated it in his affidavit filed on 27 February 2020. The issue was not however pursued at trial.
In his affidavit filed on 22 May 2020 the father alleged that the mother stepped towards him at a changeover on 19 May 2020 and shoved him with her shoulders and hips. He said that he was shocked and said that if she touched him again he would call the police. The father’s counsel made no reference to this in closing submissions and I do not accept the father’s evidence.
I must consider if a family violence order which applies, or has applied, to the children or a member of the children’s family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
The police took out a provisional ADVO for the mother’s protection on 26 October 2017 and a final ADVO was made for 6 months on 26 March 2018. It prohibited the father from assaulting, threatening or intimidating the mother. I have considered the behaviour which led to this ADVO being made in the previous section of the judgment.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
The father has shown a poor attitude to the children in not supporting the mother in her care of them.
On 2 May 2017 there was an incident where X ran away from the mother onto a busy road. The incident was reported to the Department of Family & Community Services (FACS). They investigated and in their report they noted that they felt that the mother was struggling. They noted that in the previous 6 months the mother had had a new baby, X had been diagnosed with Autism and Y had been diagnosed with Cerebral Palsy.
FACS considered that the appropriate option was to refer the mother to the BB Families program and they referred her to DD Families. They noted however that when representatives of this service went to the parties’ home again in in June 2017 the father answered the door and was aggressive to the workers and told them not to come back.
I must consider 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 children.
It would be highly regrettable if the matter returned to court a short time after the orders were made but there may be no way of avoiding it.
If I make an order for W to live with the mother there will be difficulties with this being made to work and if the mother cannot keep W in her care the matter is likely to return to court. It may also return to court if the father continues his campaign to alienate the children from the mother when he resumes spending time with them.
Making the orders proposed by the father would almost certainly lead to the matter returning to court unless the mother was prepared to give up on having a relationship with the children.
Making the orders proposed by the Independent Children’s Lawyer would also almost certainly lead to the matter returning to court unless the mother was prepared to give up on having a relationship with W and possibly on having a relationship with the other children.
Counsel for the Independent Children’s Lawyer submitted that sometimes when litigation ended matters settle down and conflict abated and that this might happen in this case.
How he could make that submission in the light of his submissions that the father was aggressive and domineering and that he had alienated W from the mother and that this was in danger of happening with X and in light of the fact that the father denied that these issues existed and demonstrated neither the willingness nor the ability to change his behaviour or his attitude I cannot understand.
I must consider any other fact or circumstance which the court thinks is relevant.
It is abundantly clear that these parties could never have made a week about arrangement work for the children and that the state of their relationship and their inability to communicate productively is such that even substantial and significant time would be difficult for the children.
Counsel for the Independent Children’s Lawyer was critical of the mother not for communicating with the father more often, even if it was only by having her solicitor do so if she was unwilling to do so face to face, and the father’s counsel joined in this criticism.
I do not accept that the mother can be criticised for her failures in communicating with the father. She has been subjected to repeated bullying hostile behaviour by the father since separation. It is not surprising that she is sometimes reluctant to communicate with him, rather it is surprising that she has been as willing to communicate with him as much as she has. She immediately sent the father a text message when X turned up at her home on 30 August 2020.
The mother gave copious evidence, which I accept, of the father being rude, unreasonable and demanding when she tried to communicate with him. She said that she thought the father was only like that with her until she read in account in the family report of the difficulties the family report writer’s receptionist had trying to organise appointment times with the father.
There is compelling evidence that not only has the mother often been met by a rude and bullying response when she has tried to communicate with the father, she has also sometimes been met by a complete refusal to communicate with her.
The mother described an incident on 18 December 2018 when she tried to give the father a sealed envelope containing W’s Mental Health Plan and X’s Christmas outfit but he refused to make eye contact with her or acknowledge her and she had to leave the items on the bonnet of his car.
The father has required W to communicate with the mother. On 27 December 2018 the mother tried to ring the children but her calls went unanswered. She later received a text from W sent from the father’s phone saying that the children were too tired to speak to her.
On 14 March 2019 the mother sent the following text message to the father:
Z had a physio app this morning (it was a cancellation app). Do you have an email address that I can send the info. She has a slight turning on of her left foot…Y, Z and W both have coughs so please limit time in water (and because of Z’s ear).
The father’s response was
Send it via your solicitor.[41]
[41] Mother’s affidavit filed 26 February 2020 Annexure C
Orders were made on 11 April 2019 for the parties to use the My Mob app to communicate about the children. The father has failed to join up to the App.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence and the state of the parties’ communication.
There has been family violence and the presumption does not apply and the nature of the father’s behaviour is such that it would be impossible for these parties to share parental responsibility but perhaps more importantly all counsel proposed that an order be made for sole parental responsibility and that it should go to the person with whom the children lived.
The family report writer’s recommendations
I have set out the recommendations in the family report, including the rider the report writer placed on the recommendation about the father’s time with the children, in the introduction to this judgment.
Neither Counsel for the father nor Counsel for the Independent Children’s Lawyer challenged the validity of these recommendations although of course the father’s case was that he was not seeking to influence the children to reject the mother or continuing to behave in an abusive or controlling manner toward the mother and Counsel for the mother placed emphasis on the rider.
During cross-examination the family report writer was acquainted with the mother’s amended proposal and was asked about the proposal that there be a moratorium on the children spending time with the father. She expressed the opinion that if the father was engaged in an ongoing and severe attempt to alienate the children then time away from him may be a reparative factor.
She said that if there was no major change in the dynamic after the three months passed and time resumed then no time with the father may have to be considered and she commented that if the dynamic had been continuing for some time things may not change in the future.
The family report writer was cross-examined at length about W’s situation. She was informed that W was no longer spending time with the mother and she was asked about the impact of that on W and about the steps which could be taken to restore W’s relationship with the mother.
The family report writer was adamant that it would be a great loss for W to not to have a relationship with her mother and that it was far too early to give up on any prospect of the relationship being restored.
She was asked about the pros and cons of the mother’s proposal to remove the children from City K for three months to give the mother an opportunity to re-bond with W without the chance of her running across the father or having the opportunity to run away to his care and she was of the view that it was a proposal which may have merit.
The family report writer was strongly of the view that the siblings should not be split.
Conclusion
I could not possibly make an order that X, Y and Z live with the father. It would sound the death knell on them having a relationship with the mother.
The mother is not perfect and has some parenting lapses and makes some errors of judgement but nothing that she has done before or after separation would warrant the removal of the children from her primary care and despite expressing some concerns about the mother’s parenting capacity which I do not completely share, the Independent Children’s Lawyer proposed that these children remain living with the mother.
The issue then is what to do with W. The mother sought an order that W also live with her. The Independent Children’s Lawyer proposed that W remain with the father.
In support of this proposal Counsel for the Independent Children’s Lawyer said that the Independent Children’s Lawyer was concerned about the mother’s capacity to parent four children.
He also referred me to Proctor & Proctor,[42] a matter which the Full Court dismissed an appeal from a decision in which the primary judge ordered that an 11 year old child live with the mother but left the 13 year old with the father on the basis that the 13 year was likely to undermine the 11 year old’s placement with the mother because he had been indoctrinated with the father’s negative views of the mother. He submitted that W might do the same in this case.
[42] Proctor & Proctor (2017) FamCAFC
To meet the concern that W remaining with the father might spell the end of a relationship between the mother and W the Independent Children’s Lawyer proposed that an order be made for W to spend time with the mother each alternate weekend during school terms and for half of the school holidays and that an order also be made for the parties and W to attend family therapy.
I do not accept that family therapy would assist in ensuring that W spent time with the mother. W is not spending time with the mother because the father is not permitting her to do so and no amount of family therapy is going to change the father’s attitude or behaviour.
I cannot make the orders proposed by the Independent Children’s Lawyer. If W remains living with the father she will not have a relationship with her mother and the family report writer was strongly of the view that it was too soon to give up on any prospect of that relationship being restored. She also did not support a separation of the siblings.
I do not accept that the mother would struggle to parent four children as opposed to three and Proctor & Procter turns on its own facts and does not assist me. There was no evidence that W was likely to attempt to undermine the relationship between the mother and the younger children or was likely to be successful in doing so.
It has to be acknowledged that it is uncertain whether changing W’s residence can be made to stick given the length of time she has now been with the father and the preference she has always expressed is to spend more time with the mother.
If the mother goes to live in Town J immediately and there is a reparative period when the father cannot influence the children there is a chance of it working, but it would be challenging for any parent to deal with the situation that has evolved with W and with any acting out or running away which may occur. I am sure that the mother will do her best but I cannot be certain that she has the parenting skills to ensure that the placement sticks and/or that W has not have become so aligned and empowered as a result of the father’s actions during the last two years that it is impossible to undo the damage.
I am however satisfied that it is in W’s best interests that the mother is given a chance to see if she can make it work and I intend to order that the children, including W, live with the mother.
The Independent Children’s Lawyer and the mother both proposed that father’s time with the children be each alternate weekend rather than the current five nights a fortnight once it resumed and a reduction in the father’s time with the children is essential because of the unacceptable risk that he will keep working on all the children to get them to reject their mother.
It could be argued, as Counsel for the Independent Children’s Lawyer mentioned in submissions, that a no time order should be considered. However although the mother’s counsel acknowledged that it might come that in the end he did not ask me to do that now and it would be too much for W to swallow. If she knew that was the position she might redouble her efforts to leave the mother’s care.
I intend to make orders about the children’s time with the father as proposed by the mother and I intend to make an order that the father not attend within 200 metres of the children’s school half an hour before or half an hour after the commencement and end of school.
The Independent Children’s Lawyer proposed orders about parents sharing Christmas Day but it would be appropriate to make an order for the children to share Christmas Day with each parent. It is not fair to the children for their enjoyment of Christmas to be blighted by changeover issues. A preferable outcome is that Christmas lies where it falls each year. The parent with whom it does not fall will have plenty of time to plan an alternative Christmas celebration.
The same applies to Easter and the children’s birthdays and I do not intend to order that the children change over between the parents on the Mother’s Day or Father’s Day weekend. I intend to order that the entire weekend be swapped.
I do not intend to order as proposed by the Independent Children’s Lawyer that if either parent wishes to send a nominee known to the children to drop-off or collect the children they will send an SMS to the other parent no later than 1 hour prior to changeover advising who that nominee will be. This would be a disaster between these parents and it is unnecessary if the children are to be picked up from school on most occasions.
I do not intend to make an order as proposed by both the mother and the Independent Children’s Lawyer that each parent ensure that the children are not exposed to family violence during any time the children are living with or spending time with a parent. Such an order is problematic at the best of times. Family violence has a very wide definition in the Family Law Act and the court does not want to create a situation where a contravention application is filed which turns on the issue of whether something the children were exposed to was family violence.
Otherwise the orders will be as set out at the beginning of this judgment.

I certify that the preceding four hundred and one (401) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.
Associate:
Dated: 20 November 2020

[2020] FCCA 2986

20 November 2020

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

File number(s):	NCC 2335 of 2018
Judgment of:	JUDGE TERRY
Date of judgment:	20 November 2020
Catchwords:	FAMILY LAW – PARENTING – Children aged 11, 8, 6 & 4 – where the eldest child is living with the father and not spending time with the mother and the younger children are living with the mother and spending five nights per fortnight with the father - where the father has alienated the oldest child from the mother and where his bullying aligning behaviour means that the mother’s relationship with the three younger children will be at risk if they continue to spend extensive time with him – where the Independent Children’s Lawyer proposed that the children continue to be separated and that an order be made for the parties to attend family therapy and for W to spend time with the mother – where this is not a case which is suitable for family therapy and where if this order is made W will have no relationship with the mother in the future – where the Family Report Writer was strongly of the view that it was too soon to give up on the prospect of W having a relationship with her mother – where there is a risk that an order for W to live with the mother may fail but where orders for the children to live with the mother, for there to be a moratorium on their time with the father and for their time with the father to be less extensive than is currently occurring once it resumes are in the children’s best interests – mother to have sole parental responsibility for the children.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 61DA
Cases cited:	Mazorski & Albright (2009) 57 Fam LR 518 Proctor & Proctor [2017] FamCAFC 110
Number of paragraphs:	401
Date of last submission/s:	24 September 2020
Date of hearing:	4 & 5 June, 31 August & 1, 2, 22 & 24 September 2020
Place:	Newcastle
Counsel for the Applicant:	Mr Mooney
Solicitor for the Applicant:	Ashby Family Solicitors
Counsel for the Respondent:	Ms Bridgett
Solicitor for the Respondent:	CBD Law Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Boyd
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Domestic Violence Unit

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	20 NOVEMBER 2020