MITCHELL & MITCHELL

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL

[2019] FamCA 213

FAMILY LAW – CHILDREN – Interim orders – Best interests of the children – With whom the children shall live and spend time with – Where there are six subject children – Where current interim orders provide for the children to live with the father and spend time with the mother – Where the children have not spent time with the mother for nine months – Where the children have not communicated with the mother for two months – Where the mother proposed the four youngest children immediately start spending time with her on a gradual basis transitioning them to live with her – Where the father proposed the children live with him and communicate weekly with the mother by telephone – Where the Independent Children’s Lawyer proposed the children live with the father and spend time with the mother commensurate to the distance between the parties’ homes – Where neither household can offer an entirely beneficial residential experience to the children – Where the children generally have meaningful relationships with both parties but currently appear to derive much more benefit from their relationship with the father – Where each party allege the children are at risk in the other’s household – Where both parties have been the perpetrator of past family violence – Where there is no evidence of family violence between the parties since separation – Where the mother has physically abused the children in the past – Where the mother alleges there is a risk of emotional harm to the children from their exposure to family violence between the father and his current partner – Where additional factors under s 60CC(3) of the Family Law Act 1975 (Cth) are considered – Where the views of the two eldest children, aged 13 and 14, are considered – Where a change of residence would be disruptive to the children – Where both parties lack insight into the children’s needs but the father is better equipped to provide for the children’s physical and intellectual needs – Where the mother is untested as a single parent – Where the mother’s proposed orders would mean separating the children – Ordered the children live with the father and spend graduating time with the mother over the next three months – Ordered the children spend time with the mother thereafter every third weekend during school terms, half of the school holidays and 10 days during the summer school holidays.

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility does not apply – Finding of past family violence – Where sole parental responsibility allocated to the residential parent – Where an order made to compel the residential parent to ensure the child with a disability is promptly provided with every benefit available under the National Disability Insurance Scheme.

Family Law Act 1975 (Cth) ss 4, 11F, 60B, 60CC, 60CA, 61B, 61DA, 64B, 65AA, 65D, 65DAA. 65DAC, 65DAE

APPLICANT:

Ms Mitchell

RESPONDENT:

Mr Mitchell

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

FILE NUMBER:

NCC

1730

2017

DATE DELIVERED:

12 April 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

1, 2, 3 & 4 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs J. Kearney

SOLICITOR FOR THE APPLICANT:

NLS Law

COUNSEL FOR THE RESPONDENT:

Mr A. Bithrey

SOLICITOR FOR THE RESPONDENT:

Craney Family Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr C. Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

Orders, pending further order

All orders relating to the following children are discharged:
(a)T, born in 2004;
(b)V, born in 2005;
(c)W, born in 2008;
(d)X, born in 2008;
(e)Y, born in 2010; and
(f)Z, born in 2012.
The father shall have sole parental responsibility for the children.
The father shall forthwith do all acts and things necessary to enable the child W to be assessed for participation in the National Disability Insurance Scheme.
The children shall live with the father.
The parties shall take all reasonable steps to ensure the children spend time with the mother:
(a)On Saturday 27 April 2019, from 10.00 am until 4.00 pm;
(b)On Saturday 11 May 2019, from 10.00 am until 4.00 pm
(c)On Saturday 25 May 2019, from 10.00 am until 4.00 pm;
(d)From 6.00 pm on Friday 7 June 2019 until 4.00 pm on Monday 10 June 2019;
(e)From 6.00 pm on Friday 28 June 2019 until 4.00 pm on Sunday 30 June 2019;
(f)From 12.00 noon on Sunday 14 July 2019 until 12.00 noon on Sunday 21 July 2019; and
(g)From the commencement of the NSW public school third term on Monday 22 July 2019:
(i)On the third, sixth, and ninth weekends of each school term, from 6.00 pm on Friday until 6.00 pm on Sunday;
(ii)For the second week of the Autumn, Winter, and Spring school holidays, commencing at 12.00 noon on the middle Sunday and concluding at 12.00 noon on the last Sunday; and
(iii)For 10 consecutive days in the Summer school holidays, commencing at 12.00 noon on 26 December and concluding at 12.00 noon on 5 January each year.
For the purpose of implementing Orders 5(a), 5(b) and 5(c), the parties shall cause the children to be exchanged at the McDonalds Restaurant, Town B, NSW.
For the purpose of implementing Orders 5(d), 5(e), 5(f) and 5(g), the parties shall cause the children to be exchanged at Town F Service Station in NSW.
The parties are restrained from:
(a)Consuming alcohol during any period in which the children live or spend time with them;
(b)Causing or permitting the administration of physical discipline to the children;
(c)Denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other; and
(d)Permitting the children to refer to any person other than the biological parents by use of the terms “Dad” and “Mum” respectively.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
The father shall authorise and request the principals of any schools attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.
Leave is granted to the Independent Children’s Lawyer to furnish to any treating psychiatrist, psychologist, counsellor, or other medical provider of the parties or the children copies of:
(a)These orders;
(b)The published reasons for the orders; and/or
(c)The Family Report dated 18 April 2018.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
On or before Friday 26 April 2019, the father shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders and, if deemed appropriate by the Director, the reasons for such orders.
Any and all other outstanding applications for interim relief are dismissed.
The proceedings are adjourned to 9.30 am on Monday 2 December 2019 for further procedural directions.
Liberty to apply, on 14 days’ notice, to re-list the proceedings for further procedural directions in the event of any alleged material breach of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1730 of 2017

Ms Mitchell

Applicant

And

Mr Mitchell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings entail a dispute between the applicant mother and the respondent father over their six children who currently range in age between 14 and seven years.
The children live with the father in rural NSW, but the mother wants them to live with her in suburban Newcastle, NSW. The parties agree they cannot share parental responsibility for the children as their relationship is too vexed.
Some 12 months ago, at the time of her last involvement with the family, the Family Consultant said:[1]
All these children are very vulnerable and they have all been exposed to poor parenting over many years. They have suffered neglect, including educational neglect, lack of supervision, exposure to family violence, drug and alcohol misuse and parental mental health issues.
[1] Family Report, para 191
The Family Consultant was therefore concerned about the children’s safety in both households and felt unable to recommend that they live with either parent, so she instead recommended that her Family Report be provided to the child welfare authority and the authority be invited to intervene in the proceedings as a party.[2] Even though the child welfare authority’s involvement with the family extends back well over a decade to 2006, it chose not to intervene in these proceedings. The authority informed the Court in writing of its decision.[3]
[2] Family Report, paras 200, 204
[3] Notation D made on 11 July 2018
As a consequence, the Court was left with a binary choice between the parties to provide the children’s residential care. The evidence adduced at the trial vindicated the Family Consultant’s concern from around 12 months ago, notwithstanding some tangible improvements by both parties since then. Neither can offer an entirely beneficial residential experience for the children so, without intending disrespect, the task entailed selection of the least inferior option.

History

The parties began cohabitation in October 2001, married in 2004, and separated in 2017. The eldest child was born in 2004 and the youngest child was born in 2012.
In April 2017, the parties met Ms D and they began a polyamorous relationship with her, following which Ms D and her son moved into the parties’ household. The parties separated only a month later in May 2017, whereupon the father and Ms D relocated together to a township in rural NSW where they both have family connections. They took the six children and Ms D’s son with them. Their household remains intact in that locality and Ms D has just given birth to their child.
The mother remained in occupation of the former matrimonial home in Newcastle, where she continues to live. The maternal grandmother lived with the mother until her death in 2018.
The mother commenced these proceedings within a month of the parties’ separation, as the children were with the father in rural NSW and she was not seeing them. It is common ground that the parties are relatively impecunious and the drive between their households is over four hours in duration.
Interim orders were first made by the Federal Circuit Court of Australia in June 2017, providing for the children to speak with the mother by telephone three times each week. It was intended the orders would only be a stop-gap because an order was made under s 11F of Family Law Act 1975 (Cth) (“the Act”) for the parties to confer with the Family Consultant several weeks hence and the proceedings were adjourned until the day after that consultation.
More interim orders were made by the Federal Circuit Court in July 2017, providing for the children to live with the father and for them to spend time with the mother every third weekend from Friday evening until Sunday afternoon. The children were to be exchanged at a venue equidistant between the parties’ homes. Provision was also made for the children to communicate with the mother three times each week.
The father was unable to ensure the children complied with those orders and their visits to the mother ceased in about October 2017. In December 2017, the mother filed a contravention application, but it was consensually dismissed in February 2018 in response to the father’s commitment to ensure the orders made in July 2017 would be faithfully implemented.
In May 2018, following the release of the Family Report, the Federal Circuit Court transferred the proceedings to this Court for determination.
The orders made in July 2017 have now completely broken down. It is common ground the children have not spent any time at all with the mother since July 2018, but there was some dispute about whether any of the children still communicate with the mother by telephone. The father said some of the children spoke to her as recently as two to three weeks before trial, but the mother alleged none of the children have spoken to her since February 2019.

Proposals

The mother abandoned the proposal set out within her Amended Initiating Application filed on 11 February 2019. Instead, she sought the orders set out in the Minute of Orders she tendered just prior to the commencement of final submissions.[4] The mother’s proposal eventually related to only the four youngest children, as she acceded to the reality that her proposal for them could not be imposed upon the two eldest children against their will. She proposed that the four youngest children would immediately begin to spend time with her, with a view to the transition of their residence to live with her several months hence. She accepted that the parent with whom the children live should have exclusive parental responsibility for them, subject to some caveats.
[4] Exhibit M10
The father adhered to the proposal set out within his Amended Response filed on 15 February 2019. He proposed that he have sole parental responsibility for the children, that they continue to live with him, and that they communicate with the mother by telephone once each week. He sought no express order to either regulate the time the children would spend with the mother or to preclude it.
The Independent Children’s Lawyer began the trial foreshadowing her view that there was no realistic alternative but for the children to continue living with the father and that he have sole parental responsibility for them, but the precise orders she sought were not revealed until her Minute of Orders was tendered at the conclusion of the evidence.[5] She sought that the father have sole parental responsibility for the children, that the children live with the father, and that they spend time with the mother in a manner commensurate with the distance between the parties’ homes.
[5] Exhibit ICL6
During final submissions, an idea was mooted that further parenting orders should be made on only an interim basis, so as to test the father’s stated resolve to adhere to orders requiring the children to spend time with the mother. He said in cross-examination he would ensure his compliance with any orders made to that effect if, despite his genuine fears about the children’s safety in the mother’s care and his perception about the difficulty he would confront convincing the children to comply, the Court concluded such orders would be in the children’s overall best interests. His failure to adhere to existing orders of that ilk over the last 10 months necessarily meant his evidence in that respect could only be approached with the utmost caution. Confronted with only bleak alternatives, the idea of keeping the litigation alive so the father could prove his bona fides gained traction.
As it transpired, the mother and the Independent Children’s Lawyer both adopted the idea of interim orders as their preference, with their formally proposed orders then only being pressed as their fall-back positions. The father, however, did not embrace their enthusiasm for interim orders and maintained his application for final orders in the style set out in his Amended Response.

Evidence

The mother relied upon:
(a)Her affidavit filed on 22 February 2019, together with the unattached annexures which were separately tendered;[6] and
(b)The affidavit of the maternal grandfather filed on 22 February 2019.
[6] Exhibit M1
The father relied upon his affidavit filed on 25 February 2019, together with the unattached annexures which were separately tendered.[7]
[7] Exhibit F1
The father did not file any affidavit by his partner, despite being given leave to do so,[8] which he attributed to a misunderstanding. The mother and Independent Children’s Lawyer were both openly critical of his decision not to call her as a witness, but it should not be overlooked she gave birth to the father’s child only four days before the trial started and was busy caring for the newborn, to say nothing of the six children and her own son. In response to the criticism, Ms D made herself available for cross-examination.
[8] Order 3(b)(ii) made on 18 December 2018
The parties and the Independent Children’s Lawyer also relied upon the two documents prepared by the Family Consultant in these proceedings, being the:
(a)Memorandum dated 12 July 2017; and
(b)Family Report dated 18 April 2018.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

Although the Family Consultant did not observe the children with the father during the Family Report interviews in March 2018 due to time constraints,[9] there can be little doubt the children derive benefit from the meaningful relationships they have with him. The mother conceded to the Family Consultant the children love both the father and Ms D.[10] Nonetheless, the children have lost some confidence in the father’s parenting capacity and do not regard themselves as being as close to him as they once were.[11]
[9] Family Report, page 4
[10] Family Report, para 48
[11] Family Report, paras 160, 165
It is also reasonably clear the children love the mother, though they do not always feel safe in her care. The Family Consultant observed the children were very happy to see the mother in July 2017, at which point in time they had not seen her for two months, and again in March 2018, immediately following resumption of their visits with her.[12] Despite some misgivings, the children reported to the Family Consultant they enjoyed seeing the mother.[13] The Family Consultant said the children have “anxious and ambivalent” relationships with her; particularly the eldest child because of her past unhappy experiences.[14]
[12] Memorandum, page 3; Family Report, para 167
[13] Family Report, para 147
[14] Family Report, para 164
While the children generally have meaningful relationships with both parties, they currently appear to derive much more benefit from their relationships with the father.

Section 60CC(2)(b)

Both parties filed Notices of Risk in the proceedings alleging various grave risks of harm are posed to the children by the other party. Their respective trial affidavits were replete with evidence intended to prove those allegations.
While the children’s neglect is an issue of historical significance, it all but ceased to be significant at trial. The children’s neglect was once a problem for which responsibility fell to both parties while they cohabited, since the child welfare authority was involved with the family for many years. The parties formerly expected the two eldest children to bear some responsibility for preparing meals for the younger children,[15] but now the children are healthier and have better nutrition.[16] They also now attend school more regularly.[17] The mother did not challenge the father with any allegation of his current neglect of the children during the trial.
[15] Family Report, paras 119-120
[16] Family Report, paras 144, 165
[17] Family Report, paras 140, 145
Of much greater significance in these proceedings was the risk of the children’s exposure to family violence and their subjection to forms of abuse.
There was no evidence of any family violence being committed between the parties after their final separation in May 2017, but it was a regular occurrence in their household during the marriage. Each party sought to portray the other as the instigator.[18] Independently compiled documents, which were perused by the Family Consultant, contained contemporaneous complaints made by the mother of her victimisation by the father in the last few years of their relationship,[19] but many other documents recorded reports of her violent conduct towards him.[20] The mother said in cross-examination she did not remember or had only a vague memory of some of those events, but the eldest child confirmed the mother perpetrated family violence[21] and several of the children confirmed having seen the mother slap, hit, and throw objects at the father.[22] The evidence even demonstrated the mother’s use of implements like knives, a barbeque fork, and a hammer in violent rages.[23]
[18] Family Report, para 92
[19] Family Report, paras 95, 96, 98, 111, 113
[20] Family Report, paras 97, 99, 100, 102, 103, 104, 106, 111, 114
[21] Family Report, paras 123, 124
[22] Memorandum, page 2
[23] Father’s affidavit, paras 12(a), 12(b), 12(c)
On the basis of the material produced on subpoena, which she read, the Family Consultant concluded both parties were violent towards the other,[24] neither party protected the children against exposure to the family violence, and both parties lacked insight into the deleterious psychological consequences for the children.[25] No evidence adduced at the trial tended to demonstrate those factual inferences and opinions were remiss. In fact, both parties sought to minimise their poor parental behaviour during cross-examination, which tended to vindicate those inferences and opinions.
[24] Family Report, para 116
[25] Family Report, para 117
While the parties ought to feel embarrassed about and remorseful for their past behaviour towards the other, the fact remains there have been no episodes of family violence between them for the past two years. The passage of time alone suggests the risk of family violence occurring between them is receding, but of course they must be kept apart to ensure no resumption of their hostility. There is no need to protect the children against their exposure to family violence between the parties, provided the orders avoid any need for the parties to interact or, at the very least, ensure their interaction only occasionally occurs at public venues to deter their overt conflict.
The occurrence of family violence between the father and Ms D was a pivotal part of the mother’s case. There is no doubt the father and his partner engaged in numerous physical altercations and serious verbal confrontations in the period between mid-2017 and mid-2018. The children reported it[26] and the father and Ms D admitted it.[27] The incidents about which they were cross-examined were:
(a)In or about September or October 2017, the father attempted to defuse a confrontation between Ms D and the second child. He defended the child’s position and “pushed” or “wrestled” Ms D through the doorway out of the children’s room. It seems Ms D was served by police with a provisional restraining order, but the order was later dismissed at court.[28]
(b)In or about November 2017, the father and Ms D argued vociferously about the second child not cleaning her teeth. The argument degenerated into a physical altercation. The eldest child tried to intervene. The father told her not to call the police and he removed the battery from her mobile telephone so she could not do so.[29]
(c)In or about February 2018, the father and Ms D were on holidays, but quarrelled and engaged in a physical altercation. The children and another adult couple were present.
(d)In June 2018, the father and Ms D attended a hotel in the local township to watch a football match. They argued in the car on the way home and upon their arrival home, which escalated to them grappling and pushing one another. The eldest child telephoned the police but, by the time of their arrival, the scene had calmed and no action was taken. The children were kept home from school the next day because they were traumatised.[30]
[26] Family Report, paras 151, 154
[27] Family Report, paras 58, 59, 75, 76, 77
[28] Family Report, paras 53, 77, 78, 157; Exhibit M9
[29] Family Report, para 156; Exhibit M8
[30] Exhibit M7
The mother was critical of the father’s omission to mention any of the violence which occurred between him and Ms D since they began their cohabitation together, separately from her, in June 2017, but her criticism is ameliorated by two considerations. First, the father and his partner both made admissions of such violence in their interviews with the Family Consultant in March 2018, so they did not pretend it had not happened. Secondly, the mother seemed not to appreciate the irony of her criticism, given she was impelled to concede in cross-examination that her evidence-in-chief also omitted any reference to her past violent conduct directed towards the father.
The father and Ms D told the children in or about February or March 2018 that they would cease fighting,[31] which promise they must have offered because they finally realised just how distressing it was for the children to witness or be embroiled in it. Save for the one further incident in June 2018, referred to above, they appear to have started on the path to reformation. There is no evidence of any physical altercation or heated argument between them since then. The father said in cross-examination the violence between him and his partner had stopped, which improvement coincides with them remaining abstinent from alcohol. He said words to the effect “we have learned from our mistakes and know the harm it caused [the children]”.
[31] Family Report, para 153
Perhaps that was a convenient and self-serving platitude. Perhaps insufficient time has passed since June 2018 to comfortably conclude the domestic peace will be enduring, but the absence of evidence of any violence over the past 10 months still represents an improved parental performance and leaves some room for cautious optimism that things might have changed for the better. Nevertheless, the risk of the children’s emotional harm from their exposure to family violence between the father and Ms D remains pronounced. Nothing short of the father’s elimination from the children’s lives could eradicate the risk, but nobody proposed his elimination from the children’s lives.
The risk of the children’s physical abuse by the mother loomed large. She was inclined to administer corporal punishment to the children, including by slapping them,[32] but her discipline of the eldest child probably exceeded punishment and constituted abuse. In 2015, she hit the eldest child with a skateboard[33] and tripped her up.[34] In 2015, she sometimes slapped the eldest child across the face and hit her on other parts of her body.[35] The mother also “scapegoated” the eldest child, accused her of lying, unreasonably blamed her, and locked her in her room.[36] In 2017, the father even alleged the mother admitted she hit the child who suffers from a disability across the head.[37]
[32] Family Report, para 123
[33] Family Report, para 94
[34] Family Report, para 120
[35] Family Report, para 124
[36] Family Report, paras 94, 120, 123, 164
[37] Father’s affidavit, para 40
In cross-examination, the mother admitted slapping the eldest child across the face and hitting her on other parts of the body. But as for the other allegations, she either denied the incidents, gave benign explanations for them, blamed the father for authorising her punishment of the children, or said her punishment was no worse than that administered by the father. As for the reports made about her by the eldest child, she said “children lie” (as indeed they sometimes do) and conceded she sometimes told the eldest child she lies. The mother told staff of the child welfare authority she thought the children were liars and wanted surveillance equipment set up in the family home to prove it.[38] The mother said she could not specifically recall her conversation with the staff of the child welfare authority on that occasion.
[38] Family Report, paras 120, 124
The mother calling the eldest child a liar is one thing, but telling the child she hates her is quite another. The eldest child reported the mother once said that to her,[39] which must have been emotionally wounding, as she was described as being “very upset” when relating the incident. In cross-examination the mother admitted she did say to the eldest child she hated her, but only as a practical demonstration to teach her not to say such things to her younger sister. Maybe the mother did not intend to be hurtful, but at the very least it was reckless and insightless. She must have handled the demonstration completely incompetently for the eldest child to be left with the impression the mother really did hate her. Unsurprisingly, the mother was impelled to agree that a memory of such a hurtful comment would stay with the child.
[39] Family Report, para 120
If the children resume their interaction with the mother, they will remain at risk of harm in various forms from the mother’s “abuse” (as the term is broadly defined in s 4(1)), namely: physical and emotional harm through their subjection to the mother’s physical abuse; and the “serious psychological harm” which might eventuate from the mother calling them liars or making other hurtful comments to them. The Family Consultant’s cross-examination left no room for doubt that the children have been emotionally damaged by the mother’s past conduct. The risk of such harm may now have diminished, as the mother was keen to impress, but she is entirely untested. When the children were last seeing her in July 2018, they reported she was openly denigrating the father and his partner.
The mother said she would submit to an injunction restraining her from administering physical discipline to the children, but the injunction would be hard to enforce. Unless the children have visible injuries, their allegations of physical discipline or assault might be met with the mother’s denials or equivocation, as occurred in some respects in this trial. An injunction would not be an entirely satisfactory bulwark, but there is no harm in an injunction being made in those terms to bind both parties.
An injunction restraining the mother from denigrating the father and his partner in the children’s presence might be futile. Such an order was made in July 2017 and flouted by her repeatedly. There was more than a hint in the evidence that the father did so too. Again though, no harm is caused by restraining both parties from denigrating the other.

Children’s best interests – additional considerations

Not all factors prescribed by s 60CC(3) of the Act were addressed by the parties and Independent Children’s Lawyer in submissions. Only those that are or were contended to be relevant are discussed below.

Section 60CC(3)(a)

The Family Consultant was concerned about the parties’ potential recriminations against the children if she divulged their individual views, so she elected to discuss the children’s views collectively rather than individually in both the Memorandum[40] and the Family Report.[41]
[40] Memorandum, page 2
[41] Family Report, paras 142, 201
Though some children were unsure, most of them told the Family Consultant they wanted to remain living with the father.[42] None of the children said they would prefer to live with the mother.[43] Some of the children said they would like to spend more time with the mother, which at that point in time had just been restored to every third weekend, but most of the children thought they were spending sufficient time with her.[44] Those sentiments were expressed consistently in both July 2017, when the children first met the Family Consultant, and in March 2018, when they met the Family Consultant for the second time. In cross-examination, the Family Consultant said none of the children appeared to have been coached by the father about what to say to her.
[42] Family Report, para 147; Memorandum, page 3
[43] Family Report, para 148; Memorandum, page 3
[44] Family Report, para 149; Memorandum, page 3
The father deposed the children stated similar views to the Independent Children’s Lawyer at some point before July 2018,[45] which was not disputed. In fact, the Independent Children’s Lawyer tendered a file note summarising the content of a recent meeting with the children in March 2019, only several weeks prior to the trial, which was to the same effect.[46]
[45] Father’s affidavit, para 119
[46] Exhibit ICL1
The evidence therefore demonstrates the children have consistently expressed the preference to live with the father on several occasions to two independent persons (being the Independent Children’s Lawyer and the Family Consultant) across a period of about two years.
However, while the children’s views about their residence have been static, their current views about spending time with the mother are variable. The children are individuals with quite significant differences in age and maturity. The two eldest children presently seem ill-disposed to any connection at all with the mother. The eldest child last spoke with the mother in July 2018 and then, in October 2018, sent an email telling the mother in striking terms she wanted nothing more to do with her.[47] She also blocked the mother’s access to her Facebook site.[48] The second child last spoke to the mother in August 2018, at which time she told the mother the children would not see her until they were adults.[49]
[47] Mother’s affidavit, para 99
[48] Father’s affidavit, para 129
[49] Mother’s affidavit, para 89
The Family Consultant considered there were several plausible explanations for why the children expressed views which favoured the father over the mother.[50] One possible explanation is the father’s alienation of the children from the mother, which was the central tenet of the mother’s case and is considered under s 60CC(3)(i) of the Act.
[50] Family Report, para 179
Nevertheless, for present purposes, all children express the desire to continue living with the father and at least the two eldest children say they do not wish to spend any time with the mother. The two eldest children are now of an age and maturity which requires considerable, but not determinative, weight to be reposed in their views. The remaining four children are too young and immature for their views to be given any real weight.

Section 60CC(3)(b)

The children’s relationships with the parties have been considered under the rubric of s 60CC(2)(a) and require no further discussion.
The children periodically see members of the paternal family, including the paternal grandparents and a paternal aunt, all of whom live in reasonable proximity to the father’s home.
The children also periodically see Ms D’s mother, as she lives about 90 minutes driving time away.[51]
[51] Family Report, para 71
The children do not see any members of the maternal family. They formerly saw the maternal grandmother, but she is now deceased. They rarely saw the maternal grandfather because of the mother’s long-standing estrangement from him, which only recently dissolved. The mother adduced no evidence of the children’s past relationships with any other member of the maternal family.

Section 60CC(3)(d)

A change of residence for the children would be very disruptive for them.
First and foremost it would require their reversal of parental allegiance. For the last two years they have experienced the need to demonstrate loyalty to the father, but they would need to adjust to residence with the mother. The children would most probably experience embarrassment with the mother for having had to forsake their relationships with her in the past and also some guilt for their abandonment of the father to live with the mother. That would be especially difficult for the two eldest children who have completely severed their relationships with her. The mother had little option but to admit in cross-examination there was no real prospect of the eldest child being convinced to live with her, though she was unsure about the second child. She was confident the four younger children would adjust.
Until the mother tendered her revised Minute of Orders at the commencement of final submissions, nobody countenanced separation of the siblings. Everyone accepted the children would be kept together as a sibling group because of their closeness,[52] which acknowledgment effectively eliminated any chance of ordering some children to remain living with the father and some children moving to live with the mother. The mother said in cross-examination “I don’t want to split them up”, so her eventual proposal to enforce a regime for only the four youngest, but not the two eldest, children to live with her was somewhat surprising.
[52] Family Report, para 166

Although the children’s residence with the father is far from ideal, they are relatively settled in his care. It was agreed the children’s school attendance was “excellent” since they have lived with him in rural NSW. The mother agreed in cross-examination the children’s school reports were “glowing” and it would be disruptive for them to be moved to live with her. However, there is a danger in generalising too broadly about the children’s settlement with the father. As recently as November 2018, the eldest child told her school counsellor she did not feel “comfortable or safe” with the father,[53] which correlates with the Family Consultant’s opinion expressed in April 2018 that it is likely the eldest child did not feel “physically and emotionally safe” in either party’s care.[54]
[53] Exhibit M6
[54] Family Report, para 194
If the children are to remain living with the father, another substantial problem emerges. The children are supposed to be spending time with the mother periodically, but they are not. Interim orders requiring the children to spend time with the mother every third weekend have been flouted by the father for the past 10 months. Why is there any better chance of orders to that effect being adhered to in the future? The answer to that problem lies, in part, in the assessment of both the practicability of such orders (s 60CC(3)(e)) and the parties’ attitudes to the proper responsibilities of parenthood (s 60CC(3)(i)).
If orders can be made for the children to spend time with the mother, with some degree of confidence they will be sensibly implemented by the parties, the children will likely cautiously adjust to the restoration of that arrangement. The mother, father, and Family Consultant all uniformly said in cross-examination they expected the two eldest children would choose to accompany the four youngest children on periodic visits with the mother.

Section 60CC(3)(e)

The parties live a long distance apart. The drive between their homes is measured at over four hours. Public transport is not available. The parties would be reliant upon their cars to transport and exchange the children between them. The father and Ms D would need to use two cars to transfer the children, their newborn, and the partner’s son.
Both parties are without gainful employment and are reliant upon welfare payments, so their financial capacity is extremely limited. Frequent exchanges of the children would be impossible, even if the parties and children uniformly agreed it would be desirable.

Section 60CC(3)(f)

The parties’ capacity to adequately provide for all of the children’s needs was under sustained attack throughout the trial, albeit for different reasons. The mother contended the father was unable to meet the children’s emotional needs because he denied them the opportunity to enjoy meaningful relationships with her, which is an issue taken up under s 60CC(3)(i) of the Act. The father contended the mother was unable to meet the children’s physical and intellectual needs, largely on account of her deteriorated psychological health.
Dealing with the father’s contention against the mother, it is first necessary to set out some uncontested history. The children reported to the Family Consultant that, before the parties’ separation, the mother often spent time alone in her bedroom, leaving most household tasks to the father and the two eldest children, ignoring their requests for her assistance.[55] One child, who the Family Consultant confirmed was the second child when cross-examined, identified herself as “mini Mum” because she sometimes had to get up at night to settle the younger children.[56] The Family Consultant opined the mother may have disengaged from the children for some years,[57] which the mother admitted. She agreed with the Family Consultant she had “not been available” to the children,[58] and she made admissions during cross-examination to the effect of:
“I agree I was disengaged a little”
“I wasn’t a very good mother at that stage. I was very disengaged.”
[55] Memorandum, page 3; Family Report, para 119
[56] Memorandum, page 3
[57] Memorandum, page 3
[58] Family Report, para 45
The mother was not disengaged from the children because she did not love them. Rather, the most plausible explanation for it was her unstable psychological health, which has been problematic for her over a long period, dating back to 2006.[59] She received treatment in 2007 and was admitted to hospital as an involuntary patient twice in 2015 and again in 2017. Despite her need for intensive treatment, the mother was not compliant with her medication regime and disobeyed medical advice to abstain from the use of illicit drugs.[60] Since her admission to hospital in 2017, the mother has been under the continuing care of a psychiatrist, who periodically monitors her condition,[61] and she also sees counsellors.[62] The mother was keen to convince that her psychological instability was a past problem from which she has recovered, but her condition cannot be passed off so easily.
[59] Family Report, para 24
[60] Family Report, paras 31, 32, 33; Father’s affidavit, paras 28-33
[61] Family Report, para 34
[62] Family Report, para 35
The mother asserted to the Family Consultant in March 2018 she was “going well”,[63] but she still felt the need for the maternal grandmother to accompany her to that consultation as a support person.[64] The Family Consultant confirmed in cross-examination that would only have happened if the mother requested it or if she considered the mother’s demeanour warranted it. Either way, the mother lacked the confidence and fortitude to speak with the Family Consultant alone.
[63] Family Report, para 35
[64] Family Report, para 28
In February 2019, just prior to trial, the mother deposed she was “doing well”.[65] However, only a week later she consulted her treating psychiatrist and divulged she had “not been doing very well” over the preceding five months,[66] in which event her evidence of doing well was either deliberately or recklessly false. The psychiatrist also reported that “her anxiety and depression have waxed and waned significantly with frequent episodes of relapses”. New prescriptions for anti-depressant and tranquilising medication were issued to her that day by the psychiatrist.
[65] Mother’s affidavit, para 25
[66] Exhibit ICL2
The mother’s counsel sought to explain how the interruption to the mother’s improvement was due to the coincidence of stressful circumstances (being the death of the maternal grandmother in October 2018 and her not seeing the children between about October 2018 and February 2019), but that only tended to prove she remains fragile and vulnerable to emotional disturbance. Even now, the mother continues to receive a Disability Support Pension, presumably because her psychological condition still renders her sufficiently disable to qualify for it.[67]
[67] Mother’s affidavit, para 13
The evidence justifies an inference that the mother’s psychological condition is steadily improving, but she is clearly far from being sufficiently robust to take on the residential care of all or even some of the children. The fragility of her condition still impedes her parenting capacity, which conclusion accords with the opinions expressed by the Family Consultant in the Family Report[68] and in cross-examination.
[68] Family Report, paras 177, 179, 180, 185
The father, with the help of Ms D, has provided the children with better physical and educational care and, at least on those counts, has a superior parenting capacity. The children’s diet is better, their school attendance has improved and is now excellent, they enjoy school, and their school reports are glowing.[69] The mother admitted in cross-examination that the children’s school attendance was “atrocious” before the parties’ separation, when she was primarily responsible for getting them to school. Nevertheless, the Family Consultant still described the father’s parenting capacity as “variable”,[70] which fairly characterises his inability to appreciate the children’s emotional needs. He can be brutish, rigid, detached, and oblivious.
[69] Family Report, paras 140, 144, 145, 165, 184
[70] Family Report, para 186
The Family Consultant’s opinion that both parties lack insight must surely be correct.[71]
[71] Family Report, paras 33, 117, 125, 171, 172, 179, 180, 186

Section 60CC(3)(g)

The parties’ lifestyle choices to misuse alcohol and use illicit drugs received some attention, but fell away as issues of substance.
The mother used cannabis throughout the marriage, but alleged she ceased using it by “going cold turkey” in May 2017.[72] She tendered recent drug test results, which were negative.[73]
[72] Family Report, paras 41, 138
[73] Exhibits M2, M3
The mother began to arrest her alcohol consumption during late 2017,[74] and told her psychiatrist in February 2018 she is still trying to “consciously reduce her alcohol”.[75]
[74] Family Report, para 43
[75] Exhibit ICL2
The father used an illicit drug in the past but, save for one instance in July 2017, has not used it since his separation from the mother.[76] He was not contradicted. Quite reasonably, he was unable to comply with the Independent Children’s Lawyer’s request to submit to a drug test only a few days before the trial because his new child had only just been born 24 hours beforehand and he could not arrange an appointment so quickly in his rural locale.
[76] Family Report, paras 54, 65
Alcohol misuse has been a bigger problem for the father. He tried to cut back on his consumption from late 2017, but found it difficult.[77] In May 2018, orders were made restraining his use of alcohol when around the children. He received a copy of the orders in early June 2018 and alleged he has been compliant ever since. He was corroborated by his partner. Although the mother did not believe they could remain abstinent by “going cold turkey”, her doubts are not proof of their failure. She maintained she ceased her illicit drug use by “going cold turkey” and expected to be believed, so it was quite unclear why she doubted the father’s capacity to do the same with alcohol.
[77] Family Report, para 64

Section 60CC(3)(h)

Both parties identify as Aboriginal, but neither described themselves to the Family Consultant as connected to or involved in any Aboriginal cultural activities. The children identify as Aboriginal at school and attend cultural activities at school.[78]
[78] Family Report, para 5

Section 60CC(3)(i)

As earlier mentioned, the mother harbours a genuine belief that the father has alienated the children against her. She contended in her written Case Outline:
9. It is contended that all of the children’s views have been influenced by the father’s poor attitude towards the mother…
…
19.The father has seemingly been incapable of ensuring he complies with the existing parenting orders affording the children face-to-face time with the mother since 1 July 2018…
…
20.The mother submits that the father has engaged in a course of behaviour designed to align the children against her…
It is not unreasonable for the mother to wonder about the father’s honest commitment to implementation of the interim orders made in July 2017, which require the children to spend time with her every third weekend and to speak with her by telephone three times each week, when the orders are persistently disobeyed. However, close scrutiny of the available evidence suggests the father should not be assigned exclusive blame for the breakdown of the interim orders.
The father accepts responsibility for his decision to suspend compliance with the orders in October 2017, but he contends the mother’s conduct warranted the curtailment of the children’s interaction with her, even if they had not resisted spending time and communicating with her, as he asserted they did. He said the mother involved the children in the litigation as her allies and denigrated both him and Ms D to them. He also contended the mother was complicit in the threatening abuse he received from her neighbour in the children’s presence.[79]
[79] Family Report, paras 60, 83; Father’s affidavit, para 100
Most probably, there is some truth to his contentions for the following reasons:
(a)The children independently confirmed to the Family Consultant that the mother demanded their loyalty and made them write critical comments about both the father and his partner in diaries.[80]
(b)The Family Consultant confirmed in cross-examination how the children appeared quite distressed when they related that information to her.
(c)In cross-examination, the mother made various admissions about her conduct, which conduct could only possibly have alerted the children to her antipathy towards the father and immersed them in the parental conflict. Her admissions were to this effect:
(i)She did talk to the children about the litigation, which included her telling them they could live with her if they wanted, that she was “in a better place” without the father living with her, and that the father was isolating them and withholding love from them;
(ii)She provided the children with diaries as a “health outlet” for them to record their “worries and concerns” due to the “trauma” she believed they were experiencing in the father’s home; and
(iii)Her conversations with the children to that effect were most probably in breach of the injunction made in July 2017 restraining both parties from involving the children in the litigious conflict, but the injunction did not always deter her.
(d)The father alleged, without contradiction, that the mother took the children to medical appointments and lied about their ailments[81] and also made false allegations about him and the children to authorities.[82]
[80] Family Report, paras 150, 185; Father’s affidavit, para 110
[81] Father’s affidavit, paras 92, 93, 95
[82]Father’s affidavit, para 103
The mother’s past behaviour must also have alarmed the children. She admitted in cross-examination she had acted bizarrely in the past and those experiences would not be easily forgotten by the children. For example, the mother told the children the refrigerator was time-travelling and she made the children sit in a circle and chant an incantation for an imaginary person to emerge from under the house.[83] Most probably the children found those incidents unsettling; perhaps even disturbing. Little wonder they told their school counsellor about it[84] and informed the Family Consultant of their fear the mother’s “situation may deteriorate again”.[85]
[83] Father’s affidavit, para 31
[84] Exhibit ICL4
[85] Family Report, para 148
It is likely the views expressed by the children are at least partly formed by their past adverse experiences with the mother. They do not always feel safe with her. That is particularly true for the eldest child, who independently reported being physically assaulted by the mother and treated badly by her,[86] but all of the children witnessed family violence perpetrated by both parties.[87] Things became so bad for the eldest child that she physically harmed herself during the months of turbulence following the parties’ separation,[88] and again when in the mother’s care just prior to the children’s visits with her ceasing in July 2018.[89] It was revealed in cross-examination that the second child also cut herself around the same time while at the mother’s home. The mother thought the children’s visits with her between February and July 2018 were entirely positive,[90] which tends to suggest she was either oblivious to the tumult or was prepared to ignore it despite her awareness. When the problem with the eldest child was expressly raised with the mother, she agreed to suspend the next visit,[91] but the visits did not resume. Significantly, the two eldest children have not harmed themselves since they ceased having to manage exchanges between the parties.[92] The father deposed that all children have since been more settled.[93]
[86] Family Report, paras 124, 164
[87] Memorandum, page 2
[88] Father’s affidavit, para 112
[89] Father’s affidavit, paras 123-124
[90] Mother’s affidavit, para 85
[91] Mother’s affidavit, paras 86, 96
[92]Father’s affidavit , para 130
[93] Father’s affidavit, paras 126, 147
The mother tried to contend that the incidents of the two eldest children’s deliberate self-infliction of physical injury was in response to the despair they suffered from their exposure to family violence between the father and Ms D in late 2017 and early 2018, but that theory is entirely conjectural. The Family Consultant said in cross-examination that could be one of many explanations for it, but their behaviour is likely a complex problem related to their feelings about and experiences with both parents. The incidents of self-harm occurred when the children were in the midst of the parties’ intense conflict. They were aware of the litigation between the parties, they were counselled, they were consulted twice at the Court by the Family Consultant, and they were interviewed by the Independent Children’s Lawyer. All the while, they were cognisant of the parental friction, which was manifest in their exposure to the parties’ denigration of one another, the hostility and tension which pervaded their exchanges between the parties to enable them to spend time with the mother, and the difficulty they experienced communicating privately with the mother by telephone. It must be remembered the two eldest children self-inflicted their injuries while they were spending time with the mother at her home; not when they were living with the father. More likely their despair was due to their continuing exposure to the parental conflict. The absence of such overt conflict once the children ceased spending time with the mother in July 2018 correlates with the evidence about the children now being more settled.
The children are almost certainly aware of the father’s critical opinions of the mother, as it would be almost impossible for him to shield the children from the opinions he apparently holds so honestly and fervently. However, the evidence does not permit an inference to be reasonably drawn that he intentionally imparts those opinions to the children. More likely, it is an inadvertent process, but he lacks the insight to either appreciate how that occurs or to discern how the unintentional disclosure of his opinions to the children is just as harmful.
Nor does the evidence fairly permit an inference to be drawn that the father intentionally set out to destroy or impinge the children’s relationships with the mother, though that probably is or will be the result of his conduct. The more likely explanation for his behaviour is that he is alive to and apprehensive about the risks of harm the mother has posed to the children, the children are ostensibly resistant to spending time with the mother because of their regular exposure to the intense conflict between the parties, and he felt unable to enforce their visits and telephone conversations with the mother against their apparent wishes. The children probably took the path of least resistance and chose loyalty to the father, as he is their preferred residential parent, at the expense of their relationships with the mother, since they feel unable to have healthy relationships with both.
Unfortunately, it is unlikely the situation would be any better if the children’s residence was reversed. The mother is as staunchly critical of the father as he is of her. For example: she told her psychiatrist she would rather the children were taken into foster care than that they live with the father;[94] she sought to blame the father for all the violence within their relationship, including her own violent conduct; she said she has been “very scared of [the father] for a very long time”; she said her unstable psychological condition was caused, at least in part, by the trauma she suffered at the father’s hands and she requires ongoing counselling because of it; she blamed him for the physical discipline she administered to the children; and she blamed him for her own illicit drug use. Blaming the father for what she did and most of her own problems was an unreasonable deflection of her responsibility and tended to unfairly demonise him. She could barely endure sitting in the same court room as him, she felt she could only submit to cross-examination by video-link from an adjoining court room, and she wept and turned her back on Ms D for part of Ms D’s cross-examination. The mother probably cannot shield the children from her deeply-held adverse opinions of the father either. The children told the Family Consultant they were aware the parties “do not like each other”,[95] so they must know the mother dislikes the father just as much.
[94] Exhibit ICL3
[95] Memorandum, page 3

Therefore, if the children live with the mother instead, in all probability they would conversely resist visiting the father to avoid their exposure to the parties’ conflict. In that event, the children would only have swapped residential carers, but still not gained beneficial relationships with both parents. Although the mother proposed orders (in the alternative) which would require her to ensure the children spend every third weekend and portions of school holidays with the father, one could have little confidence those orders would be the subject of compliance either. The Family Consultant found the parties could not likely work cooperatively.[96]
[96] Family Report, para 89
The mother has complied with orders by returning the children to the father on the weekends they intermittently spent with her, but that is a quite different situation. She was under scrutiny in the litigation and was trying to re-build her relationships with the children. It would be far different if the children live with her and the litigation is complete. Enforcement of the orders against her may not be swift and easy, as she found out when she prosecuted the father for his past contraventions of orders without tangible success in December 2017. In any event, even under the scrutiny brought by pending litigation, she was not compliant with all orders. She could not comply with the injunction restraining her from denigrating the father and involving the children in the litigation. Of course, the mother’s breaches do not excuse the father’s more egregious breaches, but the point is that her compliance with any final orders made in the terms she proposed is liable to be little better than the father’s.

Section 60CC(3)(j)

The issue of family violence and the chance of the children’s exposure to it has been comprehensively addressed under s 60CC(2)(b) of the Act.

Section 60CC(3)(l)

It would undoubtedly be desirable to bring this litigation to a final conclusion, but not at any cost. The cost of finalisation might well be the children’s loss of their last opportunity for relationships with both parents.
If the children live with the father and he is not held to account over their continuing interaction with the mother then the status quo will prevail, they will not see the mother, they will not communicate with her, and their relationships with her will eventually be lost. If orders are made for the children to spend time with the mother, the orders will not likely be obeyed unless the restoration of that arrangement occurs under the Court’s gaze while the litigation remains live.
If final orders are made for the children to instead live with the mother, there is every chance the same outcome will result in reverse, with the children eventually losing their relationships with the father. If the children’s residential placement with the mother fails, as could occur with the eldest children in particular, the possible impingement of their relationships with the father following their removal from his primary care may preclude him being a fall-back option.

Conclusions and orders

The presumption of equal shared parental responsibility does not apply. Both parties perpetrated family violence (s 61DA(2)(b)).
While an order for equal shared parental responsibility could still be made, it would be untenable to do so in this instance. The father always sought sole parental responsibility and, while the mother did not, she conceded to the Family Consultant that the residential parent would need to be allocated with sole parental responsibility for the children.[97] During cross-examination, she conceded she and the father had been “incommunicable about the smallest of things”. The Family Consultant believed the parties could not work cooperatively as parents.[98] So much was obvious. There is no feasible option but to confer exclusive parental responsibility upon the residential parent.
[97] Family Report, para 50
[98] Family Report, para 89
There is no need to fetter the conferral of parental responsibility in some of the ways the Independent Children’s Lawyer suggested,[99] because those issues were not raised in the evidence or in submissions. However, the Independent Children’s Lawyer did propose an order compelling the residential parent (who she proposed would be the father) to ensure the twin with a disability is promptly provided with every benefit available to her under the National Disability Insurance Scheme (“NDIS”).[100] Such an order is warranted because the father and his partner could not offer any reasonable explanation for why her enrolment forms have not already been submitted to the NDIS for assessment.
[99] Exhibit ICL6, Order 2
[100] Exhibit ICL6, Order 14
Turning then to the question of residence, choosing the better of two unappealing residential options was, as the Family Consultant said, a “very delicate balancing act”. Significantly, however, she visibly blanched when it became clear to her in cross-examination that the mother was pressing for orders to reverse the children’s residence. It was simply not an option the Family Consultant could conscionably countenance.
The children should continue to reside with the father.
In summary, the reasons which dictate that outcome are:
(a)The children presently have stronger and more durable relationships with the father than with the mother.
(b)There is no material risk of the children suffering physical or psychological harm from their subjection or exposure to physical or other forms of abuse while in the father’s care.
(c)They will not need to experience the physical and emotional disruption of any reversal of their residence if they remain living with him.
(d)The children will all remain resident together in the same household with the father, which may not happen if, as the mother wanted, only the four youngest children were ordered to live with her.
(e)The father is better equipped to provide for the children’s physical and intellectual needs.
(f)The mother is untested as a single parent, which is the role she wants to now adopt. It would be a risk to experiment with the children by placing them in the mother’s care when her parenting capacity was deficient even when she had the father’s help during their relationship.
(g)The children’s residence with the father is an outcome which is consistent with their persistently expressed views.
In summary, the countervailing reasons which would warrant the children’s residence with the mother were:
(a)There is no material risk of the children suffering any physical or psychological harm from their exposure to family violence between adults in the mother’s household.
(b)If living with the mother, there is some better prospect of the children being able to also maintain their relationships with the father.
On balance, the reasons weigh more heavily in favour of the children living with the father.
If the children’s residence with the father is settled on a final basis, there would be little point making any orders to try and revive and retain the children’s relationships with the mother because he would probably not be able to ensure compliance with orders requiring the children to spend time with her. He has convincingly demonstrated that over the past 10 months by his contravention of the interim orders made in July 2017.
If, alternatively, the children’s residence with the father is only provisional, he might be induced to ensure the children revive and retain their relationships with the mother for fear of the possibility of ultimately losing the children’s residence because of his intransigence. The father asserted during cross-examination that he could ensure the children would spend time with the mother if, following the trial, orders were made to that effect. He will now have the opportunity to prove he was not lying or mistaken. The risks of harm posed by the mother to the children are not now so pronounced that the children cannot safely spend modest amounts of time with her.
Because of the children’s estrangement from the mother over the past 10 months, the orders introduce an element of accelerated graduation. By mid-year, the children will commence spending time with the children every third weekend during school terms, for 10 consecutive days in the Summer school holidays, and for seven consecutive days in each of the other school holiday periods. No special provision is made for Mothers’ Day, Fathers’ Day, and birthdays because of the distance between the parties’ homes.
If the father, as he said he could and would, ensures the children spend time with the mother then, when the interim orders are reviewed several months hence, there might be good reason to consensually transform the interim regime (or something like it) into a final regime. The mother might still be inclined to contest the children’s residence but, in that event, she would need to present more convincing evidence of her overall parenting capacity than she was able to adduce at this trial. Absent any final consent orders, a further trial would be necessary.
The public venues selected for the children’s exchanges accord with the proposals of the mother and Independent Children’s Lawyer.[101] The father made no proposal because he sought no orders for the children to spend time with the mother.
[101] Exhibit M10, Order 11; Exhibit ICL6, Orders 5 & 6
No orders are made compelling the children to communicate with the mother by telephone, but nor do the orders forbid it. Curiously, the father,[102] the mother,[103] and the Independent Children’s Lawyer[104] all proposed orders for telephone communication, but the evidence comprehensively established the existing interim orders for telephone communication have failed. The father complained he could not regularly convince the children to either telephone the mother or accept her telephone calls and the mother complained that her efforts to telephone the children were constantly frustrated. Any orders for telephone communication are bound to be the source of more friction. The absence of orders compelling telephone communication should reduce stress all round.
[102] Amended Response filed 15/2/19, Order 4
[103] Exhibit M10, Order 12
[104] Exhibit ICL6, Orders 7, 8 & 9
The orders allow the mother to obtain the children’s school photographs and reports, as she wanted, but do not go quite so far as the Independent Children’s Lawyer proposed.[105] The distinction between the proposals was not the subject of any evidence or submission.
[105] Exhibit M10, Order 5; Exhibit ICL6, Orders 11, 12 &15
The orders require the parties to keep one another informed of any significant medical events related to the children, as the Independent Children’s Lawyer proposed, but do not go quite so far as the mother proposed.[106] The distinction between the proposals was not the subject of any evidence or submission.
[106] Exhibit ICL6, Order 10; Exhibit M10, Orders 16, 18 &19
The orders restrain the parties from alcohol consumption, administering the children with corporal punishment, denigration of one another in the children’s presence, and from allowing the children to refer to third parties (such as Ms D) by affectionate parental names like “Dad” and “Mum”. The orders are similar to, but do not replicate, the orders proposed by the mother and Independent Children’s Lawyer.[107]
[107] Exhibit M10, Order 14; Exhibit ICL6, Order 13
The mother sought orders requiring the provision of the Family Report to the child welfare authority and a host of other professionals providing medical service to family members.[108] No such order is made. Instead, an order is made authorising the Independent Children’s Lawyer, at her discretion, to furnish copies of the orders, the reasons for the orders, and the Family Consultant to any of the family’s medical service providers she considers appropriate.
[108] Exhibit M10, Orders 13 & 24
The mother sought orders requiring the parties to submit to therapy.[109] No such orders are made. Aside from the question of whether power exists to make such stand-alone orders, which are unconnected to the operation of “parenting orders” (s 64B), it is not the Court’s role to try and make parties better parents. The Court takes litigants as it finds them. If parties are reluctant or unwilling to seek out therapy because they think it is not needed, an order forcing them to seek out and accept the therapy is likely to be futile. Alternatively, if the parties are sufficiently self-motivated to seek out therapy they perceive will be helpful, there is no need for any order to compel them.
[109] Exhibit M10, Orders 21 & 22
The mother sought an order compelling the parties’ compliance with directions which may be issued to them by the child welfare authority.[110] No such order is made. The parties’ obligations with respect to the child welfare authority, which it will be remembered declined to participate in this litigation as a party, are enshrined within State child welfare legislation.
[110] Exhibit M10, Order 23
The orders oblige the parties to keep each other informed of their contact details, as the mother and Independent Children’s Lawyer both proposed.[111]
[111] Exhibit M10, Order 15; Exhibit ICL6, Order 10
The mother proposed that the children be promptly presented to the Family Consultant and Independent Children’s Lawyer for an explanation of the orders made.[112] The Independent Children’s Lawyer adopted that form of orders instead of the order she proposed.[113] An order is made to that effect, but it is confined to the Family Consultant because the Independent Children’s Lawyer changed just prior to trial and the children are unfamiliar with her. Of course, she is not precluded from involvement in the explanation process. The father should be able to present the children to the Family Consultant before the first scheduled visit with the mother because the children will be on school holidays for the preceding two weeks.
[112] Exhibit M10, Orders 25 & 26
[113] Exhibit ICL6, Order 16
The orders re-list the proceedings for consideration of final orders on a date approximately six months hence. If the orders are unreasonably breached, liberty is granted for the proceedings to be re-listed in advance of that date.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 April 2019.

Associate:

Date: 12 April 2019

[2019] FamCA 213

12 April 2019

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Family Law

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