MOLKENS & ANSELL
[2020] FCCA 37
•14 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOLKENS & ANSELL | [2020] FCCA 37 |
| Catchwords: FAMILY LAW – Parenting – alienation of children by one parent against the other – separation of siblings – consideration of a moratorium of time spent between children and parent. |
| Legislation: Family Law Act 1975 (Cth), ss.4; 60B; 60CA; 60CC; 61B; 61C; 61DA; 65DAA; 65DAC |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 |
| Applicant: | MS MOLKENS |
| Respondent: | MR ANSELL |
| File Number: | BRC 11026 of 2014 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 23, 24 & 25 September and 2 October 2019 |
| Date of Last Submission: | 2 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 14 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGregor |
| Solicitors for the Applicant: | Cornerstone Law Offices |
| Solicitors for the Respondent: | Self represented |
| Counsel for the Independent Children's Lawyer: | Ms McArdle |
| Solicitors for the Independent Children's Lawyer: | Julie Harrington Solicitor |
ORDERS
That all previous parenting orders be discharged.
Parental Responsibility
That the father have sole parental responsibility for the long-term care, welfare and development of the child Z (“Z”) born in 2004.
When making a decision about major long-term issues in respect of Z, the father must:
(a)inform the mother in writing of the decision to be made;
(b)invite written comments from the mother;
(c)take such comments into account when making the decision; and
(d)inform the mother in writing of the decision.
That the mother have sole parental responsibility for the long-term care, welfare and development of:
(a)W (“W”) born in 2006;
(b)Y (“Y’) born in 2007; and
(c)X (“X”) born in 2009.
When making a decision about major long-term issues in respect of W, Y, and/or X, the mother must:
(a)inform the father in writing of the decision to be made;
(b)invite written comments from the father;
(c)take such comments into account when making the decision; and
(d)inform the father in writing of the decision.
That decisions regarding the major long-term care, welfare and development of the children include, but are not limited to, decisions about the following:
(a)the children’s education, both current and future;
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s name; and
(e)any changes to the children’s living arrangement that makes it significantly more difficult for the children to spend time with either parent.
That each parent be responsible for day-to-day decisions concerning the care of the children when the children are living with them or spending time with them.
That notwithstanding order (4) herein the mother is at liberty to change the children’s school to School B provided she remains solely responsible for all fees associated with such enrolment and in the event that the mother is unwilling or unable to maintain such fees she is at liberty to enrol the children in a state school within the catchment area for her current address.
Therapeutic Counselling for Z
That within seven (7) days of the date of these Orders, the mother and father do all things necessary to register/re-register the mother and the child Z with Ms D of E Centre for counselling, provided that counselling shall commence within one (1) month of the date of these Orders failing which the father and mother mutually agree to an alternate counselling service.
That any costs associated with counselling for the mother and Z shall be paid by the father and mother equally.
That the father shall do all things necessary to ensure Z attends all scheduled counselling sessions.
That subject to the counsellor considering it appropriate to do so, the counsellor explain these orders to Z.
That for the purposes of the previous order and for the counselling in general the mother is to provide to the counsellor copies of:
(a)these Orders;
(b)the Reasons for Judgment; and
(c)the Family Report of Ms F dated 22 February 2019.
That the father and mother shall do all things necessary as directed by the counsellor.
That counselling continue for as long as directed by the counsellor, and any joint sessions of counselling shall be at the discretion and at the direction of the counsellor.
Living Arrangements
That the children spend time with the mother and father at all such times as is agreed in writing between the parents and failing agreement as per these orders.
That Z live with the father.
That notwithstanding any order herein Z spend time with the mother in accordance with his wishes.
That W, Y and X live with the mother.
That for a period of six weeks from the date of these orders the children W, Y and X not spend any time or communicate with the father.
That commencing on the first Friday after the expiration of order (20) herein W, Y and X spend time with the father every second weekend from 5pm Friday to 5pm Sunday.
That for the purposes of facilitating W, Y and X spending time with the father in accordance with these orders the mother will deliver or cause to be delivered the children to the father or his nominee known to the children at McDonalds Restaurant, Suburb G at the commencement of periods of time and the father will deliver or cause to be delivered the children to the mother or her nominee known to the children at McDonalds Restaurant, Suburb H at the conclusion of the periods of time.
School Holidays and Travel
The children spend time with the parents during school holidays as agreed in writing between the parents and failing agreement, with each parent for one half of the Queensland gazetted school holiday periods.
If there is no agreement as to which half of the holidays are to be spent with each parent, then the children shall spend time with the:
(a)mother for the first half of each school holiday period in even numbered years commencing 2020 and with the father for the second half of each school holiday period.
(b)father for the first half of each school holiday period in odd numbered years commencing 2021 and with the mother for the second half of each school holiday period.
That for the purposes of school holiday time, school holidays are deemed to commence at 9am on the Friday (if school finishes on Thursday) or 9am Saturday (if school finishes on Friday) after the last day of school and are deemed to end at 9am on the last Sunday (or 9am Monday if school commences on a Tuesday) before school commences.
In the event that a parent intends to travel overseas with a child or children then:
(a)such period of travel shall be during the time that the child or children are in that parent’s care in accordance with these orders unless otherwise agreed in writing between the parents.
(b)no less than 3 months prior to the intended date of departure the parent intending to travel overseas shall notify the other parent in writing of the proposed travel arrangements in general terms including the countries of travel and duration of travel.
(c)no less than 2 months prior to the date of departure from Australia the mother and father shall cause the passport for the child or children to be released to the parent travelling overseas with the child or children.
(d)no less than 1 month prior to the intended date of departure, the parent intending to travel overseas shall provide to the other parent an itinerary in writing for the period that the child or children are to be absent from Australia including (but not limited to):
(i)contact telephone numbers to facilitate telephone communication between the child or children and the other parent continuing as set out in these orders provided however the parent travelling overseas shall be responsible for initiating the telephone calls during the period that the child or children are absent from Australia;
(ii)copy of the itinerary or tickets showing details of intended departure and return to Australia;
(iii)details of travel arrangements including methods of travel, destinations and any potential stopovers, travel insurance (for overseas travel); and
(iv)copy of airline tickets/booking confirmations.
(e)if at any time there is any change in the itinerary the parent shall immediately provide in writing full details of any change to the other parent.
(f)provided that the parent has complied with these provisions (and there is no Court Order to the contrary) then the travelling parent is at liberty to travel overseas with the child or children under these orders.
(g)the travelling parent is responsible for all costs of the travel including but not limited to passports and visas, travel costs, and travel and/or medical insurance and inoculation.
(h)any time the child or children would normally have spent with the other parent will be made up upon return from travel period, with the dates for make-up time to have been agreed upon in writing prior to the child or children travelling, or as otherwise agreed between the parents.
Special Occasions
Birthdays
On each child’s birthday, all children spend time with the non-resident parent from 3pm until 7:30pm if it is a school day, and from 9am to 1:30pm if it is a non-school day, unless otherwise agreed upon by the parents in writing.
On the father’s birthday, all children spend time with the father if they are not already in his care, from 3pm until 7:30pm if it is a school day, and from 9am to 1:30pm if it is a non-school day, unless otherwise agreed upon by the parents in writing.
On the mother’s birthday, all children spend time with the mother if they are not already in her care, from 3pm until 7:30pm if it is a school day, and from 9am to 1:30pm if it is a non-school day, unless otherwise agreed upon by the parents in writing.
Mother’s Day and Father’s Day
On Mother’s Day, if outside the children’s usual time with the mother, from 5pm on the Saturday immediately prior to Mother’s Day until 5pm on Mother’s Day.
On Father’s Day, if outside the children’s usual time with the father, from 5pm on the Saturday immediately prior to Father’s Day until 5pm on Father’s Day.
Christmas Period
The children spend time with the mother in each even numbered year starting in 2020 from 9am on Christmas Eve until 11am on Christmas Day, and with the father from 11am on Christmas Day until 8pm on Boxing Day.
The children shall spend time with the father in each odd numbered year starting in 2021 from 9am on Christmas Eve until 11am on Christmas Day and with the mother from 11am on Christmas Day until 8pm on Boxing Day.
Telephone Communication
That subject to Order (20) herein, the children have telephone communication with the father each Wednesday night, with the father to initiate the call between 5:30pm and 6pm on the following terms:
(a)the father will be responsible for initiating the telephone call to a phone number provided by the mother;
(b)the mother will ensure that the children are able to access the telephone to receive the call from the father;
(c)the mother will arrange for the children to telephone the father if for any unforeseen circumstance the children are unable to receive the telephone call after the father’s first attempt.
(d)that the mother shall not disturb the children when communicating with the father.
Parental Communication
That the parents communicate about matters concerning the children only in writing by text messages or email, except for when matters arise during the week that require a response within 24 hours about the children, in which case, by telephone call.
Sharing of Information
That both parents keep the other informed of the names and addresses of all schools, medical practitioners: general and specialist, dentists and other persons providing professional services to Z, W, Y and X (“the children”).
That both parents are hereby authorised to obtain from any school that the children may attend, at his or her own cost, all notices, letters, reports and invitations and are at liberty to attend any activities, including sporting to which parents are invited.
That these Orders shall act as authority to all health care and educational providers to provide all such information as may be reasonably requested by either the mother or father in relation to the health, welfare or education of the children, at his or her own cost. Copies of these Orders shall be provided to any health care provider and educational provider where the children may attend.
That each parent shall be noted as next of kin and contact person for the children on any registration or enrolment form required to be completed.
Miscellaneous Parenting Orders
That during the time the children are with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent and use their best endeavours to ensure that other persons not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully and use their best endeavours to ensure that other persons speak of the other parent respectfully; and
(c)not denigrate or insult the other parent, or any members of their respective families, or partner of the other parent, in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent or any members of their respective families, or partner of the other parent in the hearing or presence of the children.
That the father shall, in the event that either the mother informs the father or he otherwise becomes aware of the child Z speaking disrespectfully or negatively about the mother and/or her husband to the other children then:
(a)the father shall immediately request Z to cease and counsel Z to speak respectfully about the mother and her husband; and
(b)in the event that Z does not cease the father shall remove Z from the presence of the other children.
Both parents are at liberty to attend and/or be involved in any extracurricular activity of the children or school event to which parents are invited to attend.
In the event that a child requires medical treatment or prescription medication when with a parent, then that parent is to inform the other parent of this as soon as practicable.
Each parent is to ensure that prescription medication travels with the child at changeovers.
Each parent is to advise the other within 48 hours of any change to their residential address or contact details.
Alternate dispute resolution
That in the event that there is a dispute about the children or the interpretation, implementation or enforcement of these Orders, before making any application to a Court the parents shall:
(a)either attend mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney General; or
(b)participate in family dispute resolution with a family relationship centre or person authorised under s.10G of the Family Law Act 1975 (as amended);
(c)share the costs of mediation equally.
Explanation of these Orders to W, Y and X
That these orders be explained to W, Y and X by the Family Report Writer or another Family Consultant on the day of their delivery.
Independent Children’s Lawyer
That in the event Order (9) herein has not been complied with the Independent Children’s Lawyer has liberty to relist the matter on seven (7) days notice.
That upon Orders (9) and (47) being complied with the appointment for the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Molkens & Ansell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11026 of 2014
| MS MOLKENS |
Applicant
And
| MR ANSELL |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to make parenting orders in relation to four children: 15 year old Z; 13 year old W; 12 year old Y and X aged 10. Although the parents are in agreement for Z to live with the father they are in dispute where the three younger children should reside. Each parent is desirous of the children living primarily with them.
Although there were a number of aspects to the dispute between the parents, the mother was particularly concerned that the father was alienating all of the children from her. The father was concerned for the physical and emotional wellbeing of the children in the mother’s care. He was particularly concerned about the mother’s husband and also the quality of housing the mother would provide for the children.
Throughout this judgment I will, for the most part, refer to the three youngest children W, Y and X as “the children,” and refer to Z separately and the parties as “the parents” or as “the father” and “the mother.” I mean no disrespect in doing so.
Competing applications
The applicant mother, Ms Molkens, sought orders that would provide for her to have sole parental responsibility with consultation with the father for the children; and for the children to live with her and spend each alternate weekend and half the school holidays with the father. She also sought orders for overseas travel with make-up time as necessary and for her to be at liberty to change the children’s school back to School B at the end of 2019. In relation to Z the mother sought the father have sole parental responsibility with consultation with her, for Z to live with the father and for Z and the mother to commence therapeutic counselling.
The respondent father, Mr Ansell, sought equal shared parental responsibility for the children and for them to live with him and spend each alternate weekend and half the school holidays with the mother. The father also sought orders that would provide that whilst in the mother’s care the children not be left alone with her husband, Mr J, and that her residence be reasonably sized to house the children and have facilities such as running water and flushing toilets. In relation to Z, the father sought sole parental responsibility and for Z to live with him and spend time and communicate with the mother as agreed between Z and the mother. The father sought that all of the children remain enrolled at School C State Primary School and School C State Secondary School.
The Independent Children’s Lawyer (ICL) proposed orders for the mother to have sole parental responsibility for the children with consultation with the father, the children live with the mother and after a month’s moratorium the children spend one weekend a month and half the school holidays with the father. The ICL did not have a position in relation to the children’s schooling. For Z, the ICL proposed he live with the father and commence counselling with the mother and for the parents to have equal shared parental responsibility. The ICL also proposed an order that in the event Z was to speak negatively or disrespectfully about the mother and/or Mr J to the children, the father be required to ensure Z ceased doing so or to remove the children from Z’s presence. The ICL also proposed that the orders be explained to all four children by the family report writer.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the children as the paramount consideration.[2]
[1] S.60B
[2] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)children have a right to know and be cared for by both their parents;
b)children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture.
[3] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.[5] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the children’s best interests for it to apply.[6]
[4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] S.61DA
[6] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9] A major long-term issue in relation to a child means an issue:
[7] S.61B
[8] S.61C
[9] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[10]
[10] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the children’s best interests and reasonably practicable.[11] If the court finds that equal time is not in the children’s best interests or that it is not reasonably practicable then the court must consider the children spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the children’s best interests and reasonably practicable.[12]
[11] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[12] S.65DAA(2)(c) & (d)
Material relied on
In support of her case the mother relied on:
a)her First Amended Initiating Application filed 18 September 2019;
b)her Notice of Risk filed 26 July 2018;
c)her affidavit filed 26 August 2019;
d)the affidavit of Mr J filed 16 September 2019;
e)the affidavit of Mr L filed 26 August 2019;
f)her case outline filed 16 September 2019; and
g)her document entitled “Findings contended for by the applicant mother” handed up 2 October 2019.
The father relied on:
a)his Response filed 31 August 2018;
b)his Notice of Risk filed 31 August 2018;
c)his affidavit filed 26 August 2019;
d)his case outline filed 16 September 2019;
e)his orders sought handed up 2 October 2019; and
f)his document entitled “Section 60CC considerations” handed up 2 October 2019.
A number of documents were tendered into evidence[13].
[13]Exhibit ICL1 ICL tender bundle (Volumes 1, 2 & 3)
The Court also had the benefit of a family report prepared by Ms F dated 22 February 2019 (the report) and the case outline filed by the ICL on 18 September 2019.
The Evidence
Each of the parties, Mr J, Pastor L and the family report writer were cross-examined. Ms D a counsellor from E Centre was also called to give evidence.
In determining this matter, I have had regard to all of the written evidence referred to above along with the oral evidence given. I have also considered the submissions made in support of the cases advanced at trial but these submissions do not form part of the evidence. In order to avoid repetition and limit the length of this judgment I will not repeat all of the evidence of the parties but refer to the evidence that is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore, throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[14]
[14] Section 140 Evidence Act 1995
Prior to considering the evidence however it is important for me to address issues of credit. I found the mother to be a forthright and honest witness although at times she was quick to lay blame on the father for all of the issues she has experienced with the children. However she made appropriate concessions and admissions. Mr J was also an honest witness who readily admitted past failings in his life which he did not appear to minimise. The father on the other hand was often avoidant, inconsistent and not responsive to questions asked. Although I observed his manner of speaking to be somewhat unusual, I was not satisfied that explained his approach to the giving of his evidence. I found much of his evidence difficult to accept. Where their evidence differed, I preferred the evidence of the mother.
The mother is 44 years of age, lives in Suburb R and is a professional. The father is 39 years of age, lives in Suburb C and is a home maker. They married in 2000 and had four children: Z born in 2004; W born in 2006; Y born in 2007 and X born in 2009. They separated on a final basis in July 2013 when the mother and all four children moved out of the matrimonial home to live with the maternal grandfather in Suburb S. In September 2013 the mother obtained a two-year domestic violence protection order which the father consented to on a without admissions basis. In December 2013 the mother and all four children returned to reside in Brisbane. Both parties agreed that following separation there were periods of time of a few months when all the children did not see the father but they differed as to the reasons why. Z commenced living with the father in May 2016 and on 18 July 2018 the father withheld the other children from the mother. She commenced these proceedings on 26 July 2018. The children currently spend each alternate weekend and half the school holidays with the mother however Z refuses to do so.
The parties reached an agreement in relation to property proceeding in February 2015. The father contested the mother’s application for a divorce on religious grounds and said he was also hopeful of a reconciliation. A divorce order was made on 8 November 2015.
The mother met Mr J in 2017 and they were married in that year. They have a daughter, K who was born in 2018. The father has not re-partnered.
In mid-April 2016 Z stayed with the father for four days whilst the mother was overseas and upon returning to her care, Z informed her that he would be moving to live with the father. He was not quite 12 years of age at this stage. The father said that Z had been threatening to run away from the mother’s home and went to live with him on 16 May 2016 at the request of the mother as she was not coping with him. The mother said she never consented to the move but assisted Z in moving as she felt she had no choice. She was concerned he would run away and put himself in harm’s way or physically harm her. Her evidence was that Z had been getting physically abusive towards her on a daily basis prior to his move to the father’s home. I accept her evidence.
It was the mother’s view that the father had groomed Z to make the move by telling him of a court case where a 12 year old was ordered to live with the mother but the child kept running away to the father so the court ultimately ordered the child to live with the father. The father denied telling Z about this case and said he implored Z to not run away. I do not accept his evidence. During cross examination the mother denied the father’s assertions that Z had tried to run away three times whilst they resided in Suburb S. I accept her evidence.
After Z went to live with the father the behaviour of the other children towards the mother gradually began to become oppositional. Prior to the 2018 Easter school holidays W had said to her mother that she wanted to live in an equal time arrangement with the parents. The mother’s evidence was that after spending the Easter holiday time with the father this issue was not raised again or even responded to when the mother asked W. The father gave evidence that W had told him many times that she wanted to run away from the mother to live with him. I am satisfied that W had been thinking about living more with her father at around this time. At that time the mother, her husband and the three children were living in a ‘tiny house’. As part of her profession she has an interest in homes.
A couple of days after going into the father’s care for the July 2018 school holidays, he took the children to a police station. He said that they had told him they were being physically assaulted by both the mother and Mr J and they also complained about their living conditions. The father’s accounts of this visit to the police differed. He told the report writer that the police advised him that if there was no parenting plan and he had concerns for the children’s safety then they could remain in his care. In his trial affidavit the father deposed that “the officer we spoke to expressed concerns about the children and told me that I should not send them back to the Mother.” Under cross-examination the father was adamant that the police had spoken to the children and he had been told by the police to not send them back to their mother. The police records only record that the father “attended Suburb T Police Station in relation to custody advice. Wanted the matter recorded in case of backlash from his former partner.”[15] No further narration was recorded including no mention of any interview with the children. When cross-examined about this the father was vague in his response but conceded that the children may not have been interviewed.
[15] Exhibit ICL1, volume 1, page20
The children were due to be returned to the mother on the 18th of July. Just before 8am that morning the parents, via text message, agreed for the changeover to occur at 1pm. Later that morning the mother received a call from the child support agency informing her that the father had applied a few days prior for 100% care of all of the children. This was the first she heard of his intention to change the living arrangements. Then at 12.10pm the father texted the mother:
Ms Molkens, W, Y & X have “voted with their feet” & stated they all want 2live with me & Z now full time. (i will arrange later down the track kids visit on weekends) – Mr Ansell.
Throughout these proceedings the father has proffered different reasons for the children not returning to their mother in July 2018. These have included the advice received from the police in relation to safety concerns in the mother’s home; he was respecting the children’s wishes; and that he withheld them because he had not seen them for three months. Regardless of the reason, it is very apparent that it was a calculated event. In the days prior to withholding the children the father had completed the children’s school enrolment forms at his local state school, he informed the child support agency that he had 100% custody of the children and had attended the police station in relation to ‘custody advice’. The father said he did not discuss his concerns about the children with the mother “because she just decides and that’s it” and “I just had three months of not seeing them, so there was no way I could talk to Ms Molkens about anything”.
Family violence
Both parties said they were subjected to domestic violence perpetrated by the other and both denied each other’s assertions. The mother alleged that during the relationship the father was “emotionally, financially and sexually abusive” towards her and described the weeks when the father was away for work as “good weeks” and when he was home as “one week of ‘hell’”. She said he was “very controlling financially, including attempting to take all our savings from our joint account when I left”. She said he took her keys, phone and wallet on one of the occasions she attempted to leave him and threatened to take the children away from her on separation. She also said the father was also verbally abusive towards her, calling her “bitch” and “slut” with the children regularly in ear shot.
Upon application by the mother, a two-year protection order was made by consent on a without admissions basis on 5 September 2013. The order noted that the father was a member of a pistol club and was applying for a weapons licence.
During the father’s cross-examination of the mother, I had to stop his inappropriate questioning and warned him that he was bordering on being abusive of the mother.
The report writer recorded the father’s allegations of the mother as follows:
56.Mr Ansell said that Ms Molkens physically assaulted him during their relationship by poking his shoulder blades and that she hit him on the head at least twice a week from 2009 onwards. He said that he did not report these assaults to Police, as "I loved her." He feels that Ms Molkens ended their relationship for financial reasons, as this was the first time in their relationship they had savings of $120,000.
In relation to the attempted withdrawal of their savings, the father said he had been advised to try and move the money out of the joint account “in case the Mother tried to take the money and move away with the children”.
W also told the report writer that “dad washed dishes and she’d yell at him for washing them”. The father elaborated on this saying, “[w]hether I washed them or didn’t wash them, I would get yelled at.” The report writer found it unusual that W “would remember this, as it did not appear to be a pattern of behaviour and W was at the oldest, 7 years old at this time.”. The report writer also noted that it was the same example used by the father.
The report writer was of the view:
111.The parents made allegations about the other in respect of family violence when they were in a relationship. Although, they both describe a pattern of violent behaviour that could be consistent with coercive and controlling violence during their relationship, neither parent presented with current fears of the other in respect of direct physical or emotional abuse. The current concerns, which could come under the context of family violence is the communication between the parents and if the father is negatively influencing the children's view of the mother as an extension of controlling behaviours indicative of family violence after separation.
It is also noted that the eldest child Z is verbally abusive towards the mother calling her “bitch” and “slut” and had become physically abusive towards her on a daily basis prior to moving to live with the father.
A lack of particularisation in the evidence of each of the parents means I am not in a position to make individual findings of family violence. I am however satisfied that the conduct of each of the parties was at times consistent with family violence, particularly of a controlling and coercive nature.
Z
Autism
In November 2014 Z was diagnosed with Asperger’s Disorder or more accurately Autistic Disorder under DSM-5 criteria with “mild issues around rigidity and social skills”. He was described as having difficulty coping and relating to his peers and siblings and was constantly pushing, touching and annoying people and got a bit aggressive and physical when excited.
Z told the report writer:
63.… he was diagnosed as autistic when he was around six years old and this was a result of his mother "hitting me on the back of my head" and that this happened "countless times every day."
When this paragraph was put to the father, his response was “Yes. He was not diagnosed at six.” The father was of the view that it was possible there was a connection between the alleged beatings of Z by the mother and autism notwithstanding he had asked a psychologist but they couldn’t tell him either way. I am satisfied that the father has installed this belief in Z or at the very least has done nothing to dissuade Z in the belief.
Z’s 13th birthday outing
In 2017, just over a year after Z had changed residence to live with the father, the mother took all four children out for Z’s 13th birthday. Z told the report writer:
65.… The last time he saw his mother was on his 13th birthday and he said he went home crying, and that she bought him presents that were "2 dollars and 5 dollars" and they broke.
Z had previously provided the mother with a list of presents, worth approximately $200, which he expected from her if she loved him. The mother gave Z a card with $200 in it and a small gift but on the day he called the mother names like “bitch” and “slut” and said “you stole $1.5 million off my dad and left him broken-hearted on the street”. Z was upset and had asked the mother for a letter of apology. The mother said she apologised on the phone for upsetting him but also asked for an apology from him for his behaviour. He did not apologise.
Under cross-examination the father acknowledged that Z’s behaviour on his birthday outing was rude, but he did not talk to him about it as he didn’t know what to say. He did however tell Z that his list of presents was an “unreasonable demand”. The father was of the view that he did not need to explain to Z that a letter of apology had not been received because the mother had nothing to apologise for. Nor did he consider he needed to tell him it was his own behaviour that was inappropriate. I am satisfied the father, at the very least, lacks insight into his role in directing Z towards having a positive relationship with his mother and at worst has deliberately chosen to affirm Z’s attitude by not correcting his bad behaviour.
House visit
In February 2018 Z called the mother requesting to visit her. W told her mother that Z had been making comments of wanting to go to the mother’s house to trash it. The mother offered to go out for dinner instead but received no response from Z.
Z’s view of the mother
Z’s view of the mother was addressed in the family report.
59.Z referred to his mother by her first name throughout his interview with me and he said that "Ms Molkens doesn't deserve the name of mum because of what she's been doing to me." He described his mother as "the most manipulative and horrible person I've ever met."
…
61.Z said he has lived with his father since he was 11, and he advised that “dad and I don’t have any money as Ms Molkens took it.” He told me that his mother bought a “tiny house” with this money. Z said that his mother took everything when she left, and “dad lived on the street as he had nothing.” Z said that he was really upset by this.
62.Z had nothing positive to say about his mother and he described her "yelling" at him when he lived with her and said that she would tell him he was "worthless." Z told me that as a "defence mechanism" he does not remember exactly what his mother said to him. …
…
65.Z expressed specific and clear views that he wants to live with his father and spend no time with his mother. …
66. When asked if he had anything else to say Z said "dad said it's a good idea to tell you - like I told him," and he said about living with his mother "I will run away and I don't want her to have school records." He said that he could "tolerate" seeing his mother if she acknowledged how she treated him, but he does not want to spend time with her.
Z ended his interview by telling the report writer:
68.… that his father has always loved his mother, and that his father "still loves Ms Molkens," and he stated that his father did not want to get a divorce, but his mother "wanted money and Ms Molkens doesn't care." He said that he had more stories about "Ms Molkens" that he has "suppressed."
Under cross-examination the father admitted that had spoken to Z about his feelings for the mother. I find that not only has the father failed to shield Z from his own upset in the breakdown of their relationship he has involved him in the dispute by telling Z things he would not otherwise know. This has damaged Z’s relationship with the mother and the father has done nothing to assist Z overcome his feelings for his mother.
Facebook posts
In April 2018 Z posted a number of hostile and abusive posts on the mother’s Facebook’s account including:
huh yeah and you threw away 60,000 buck and be honest people no one would buy it [the tiny house] and my SIBLINGS HATE IT BUT Ms Molkens DIDN’T CARE
…
Yeah well that was one thing Ms Molkens has been hitting me on the head since I was 6 and way way way way waaayyy more
…
Huh yeah then you became your mum a selfish self-centred cold hard idiotic BITCH
…
I wonder if the kid [K] will have a defect or disease oh wait her BITCH of a mum is one. anyway you have a sex disease from Mr J, Ms Molkens yeah that’s right I’ve seen it
The mother advised the father of Z’s form of comments in a text message:
Mr Ansell I would like to let you know that Z has been very inappropriate on my Facebook posts, making very hurtful comments. I understand he feels hurt from what we went through and I have not blocked him because it is the only contact I have had with him in nearly two years. He will get banned from Facebook if he continues. I just thought you should know whether you choose to do something or not is up to you. Thanks Ms Molkens
The mother did not receive any response from the father. Later that month the mother blocked Z on Facebook. The father claimed he told Z that his Facebook comments were rude and shouldn’t have said them and asked him to apologise to the mother. Z said he did not want to and so the father did not take any further action. The father later added that he had asked Z to take down the posts and would have overseen him do this.
When the mother asked W how she managed the anger and hatred Z has of the mother, W responded “I just try to ignore it”. The father was aware that Z’s opinion of the mother was that she was the worst mother and that he refused to speak to her. During cross-examination on 25 September the father said he tries not to talk to Z about Z’s views of the mother “because it upsets him” and therefore he rarely talks about the mother at all. However by 2 October 2019 the father had altered his position and claimed that he had stopped Z speaking poorly of the mother and was adamant that Z would encourage the other children to have a relationship with the mother because he had been working on Z having a relationship with the mother too. I found the father to be disingenuous in this latter evidence.
The report writer remarked:
113. … Z does hold very strong negative views about his mother, and … the father does not appear to have encouraged Z to spend time with his mother. However, Z's reality in my view is that he has not spent time with his mother in the past few years, and although the mother stated that she wants to spend time with Z she did not mention any real attempts to connect with Z. Some of what Z stated to me appeared to be information that could have come directly from the father and not his own experience of his mother, for example his father's financial struggles after the parents' separation and his father "living on the streets," that his father loves his mother and "Ms Molkens doesn't care, " as well as the way he described his school grades and compared his parents. However, Z also discussed what I would view as his own experiences of his relationship with his mother.
The report writer also remarked:
115. … In my view, and in relation to Z's cognitive ability his reality is that his mother does not care about him, and he is hurt and angry.
Whilst Z’s diagnosis can explain his rigid approach to the upset he has with the mother, I am satisfied that the father has at times not been strong enough to assist Z in having a positive relationship with her and at other times has been fuelling the dislike between son and his mother.
Counselling
On 1 March 2019 the parties entered into consent orders which provided for the mother and Z to attend counselling; that the father do all things necessary to ensure Z attends all scheduled counselling sessions and the counselling continue for as long as directed by the Counsellor and for the parties to share the cost of such counselling.
Later that month both parties commenced their intake with E Centre and completed their assessment forms. Both parties assessed the communication between them as very poor. However, in rating the statement “I totally respect the role the other parent plays in my child’s/ren’s life” with the rating of one being that they completely disagreed and a rating of 10 being that they completely agreed, the mother rated this statement as a 10 whereas the father gave a rating of one. In answer to the question “Do you talk to your child/ren about the other parent? Why / why not?” The father ticked yes but noted “sometimes, but Ms Molkens stresses me out so much I find it more nicer to say nothing”. Upon completing the intake form, the father provided the feedback that “it helped me to focus on the kids”.
Ms D of E Centre had requested to read the family report but the father refused because he “felt it would influence her and make her prejudiced”. In a session with the father on 3 April 2019 Ms D’s notes recorded:
He kept using the phrase “I don’t want to be disrespectful… but…. You all don’t know what is in the best interests of my children” and “you have no idea how abusive their mother has been to them for quite a number of years.”
… “the report writer was biased and on the mother’s side and didn’t listen to me at all”
Notwithstanding the father consenting to the orders for him to facilitate therapeutic counselling between Z and the mother, Ms D recalled that the father told her that “Z did not want to have contact with his mother and probably would not attend.” This was not followed through by Ms D as she informed the Court that they had not reached the stage of requiring the father to encourage Z to attend.
In re-examination the father told the Court he didn’t have counselling because he did not have the finances to pay for professional counselling. Ms D’s evidence was that she could assist in as many sessions as it would take for the proposed counselling between the mother and Z to rebuild their relationship, and that there was no cost involved in that.
The report writer opined of the dynamics and difficulties of the relationship between Z and the mother in that “Z’s negative feelings towards his mother are ingrained, and therefore it will take time for him to feel trust again and to connect with his mother in a positive way” and in her opinion “it would be beneficial if the father could encourage Z to see a counsellor.”
When asked how the father would assist Z to see the mother, the father maintained his position that “If there is an apology that takes place, simple as that. … there can be a place of meeting … like a restaurant dinner or something. Then start their relationship from there.” The father later said he was supportive of Z having counselling with the mother in relation to his birthday outing.
The father did not impress as being committed to counselling for Z to repair his relationship with the mother however he informed the court he would comply with such an order. It is in my view the only way Z will be able to move on from his entrenched position.
Concerns of the children in the mother’s care
The father held the view that whilst in the mother’s care the children were at risk of physical and psychological harm from both the mother but particularly from Mr J. The father’s concerns arise primarily from what the children had reported to him and his observations of the children when in his care. The father admitted that at times he accepted the children’s versions of events and ignored what an adult who was involved might have to say about the situation as he was adamant that none of the four children lie.
Not surprisingly then, rather than having a discussion with the mother and Mr J in relation to his concerns, the father instead set about searching for evidence to affirm his concerns. He searched the electoral role for the address of Mr J’s ex-wife and a few months later attended at her property unannounced with all four children. The father said it was an impulsive decision to make this visit and this occurred when all four children were in his care. He conceded that the visit required a half hour drive each way from his home.
The father told the family report writer that he had ascertained from this encounter:
40. … Mr J had “bashed” his ex-partner’s head against a stair when he was under the influence of alcohol and he owes $6000 in unpaid child support. … Mr J’s sons told him that they do not want to see their father, and … that Mr J “threw” his sons.
The father said that all four children remained in the car during this visit and they did not ask nor did he tell them the reason for being at that residence.
The report writer opined that children of their ages would ask questions, however even if the father’s account was to be accepted, she was of the view that because the children are very aware of their parents’ moods the father was at risk of exposing the children to the conflict, particularly noting what the father had just learned.
Under cross-examination the father said he did not trust the account given by Mr J’s former wife “because, you know, anyone could say anything sort of thing. And being an ex-wife as well.” He suggested that she may have been under the influence of drugs during the conversation but he did trust her sons, who were aged 10, 12 and 13. He appeared to struggle in giving this evidence in a way that left me with little confidence that he was telling the truth. I find that he deliberately searched for her address in order to obtain information on Mr J. Information he hoped would help him in his case before this court. Further to that at the very least he showed a total lack of insight in attending on the home with the children even if he did leave them in the car. He exposed them to the ongoing conflict between him and the mother. I do not accept his evidence that the visit was a spontaneous decision and that he did not tell the children about the visit. This conduct is consistent with his other thought out plans such as visiting the police station with the children, contacting Child Support, and to unilaterally enrol them in school. His actions were calculated and in this incidence he wanted to paint a negative picture of Mr J in the children’s minds.
Alcohol and drugs
A primary concern of the father’s was Mr J’s alcohol and illicit drug use. I have no doubt that in the father’s mind Mr J poses a risk to the children. This belief is sincerely held by him. In informing his mind however the father did not see fit to meet with Mr J to discuss his concerns.
In his evidence, Mr J was forthright and honest about his history with drugs and alcohol earlier in his life and his significant criminal history involving public nuisance, drink driving, drug possession, altercations with his ex-wife and his mother, malicious damage and resisting arrest. These offences had been made known to the mother prior to them marrying. The mother, given her estrangement from the father did not inform him of this history. It is not surprising that the father has become entrenched in his views of Mr J, despite not meeting him, when you take into account the children have told him negative stories about Mr J, his enquiries with Mr J’s former partner and the evidence that came before the court. In that regard I am not critical of the father however it is disappointing he has been unable to be objective in his enquiries. Hearing the evidence of both Mr J and Reverend L did not seem to allay any anxiety the father has in relation to potential risk for the children with Mr J.
From the age of 14 till approximately 23 Mr J had been using drugs which included ecstasy, heroin and marijuana. In 2012 Mr J attempted suicide as he had relapsed and was using speed and again drinking excessively. Mr J explained his malicious damage offences. In 2004 Mr J was drunk at an engagement party and punched holes in the walls and in 2013 his mother was to look after his dog for the weekend however she herself went away leaving his dog locked in a shed for almost four days and the dog died as a result. Mr J was drunk and very angry and kicked a door off its hinges in his mother’s house. Mr J’s last conviction was in 2014 for drink driving.
Mr J and the mother met at and continue to attend The M Church. Mr J had attended the M Recovery Group when it commenced in 2015. This was a men’s group that operated in a form of group counselling and assisted men who were suffering from drug and alcohol addictions. The Pastor, Reverend L said the group wound up approximately two years later as “the men had achieved most of their goals and their ambition of being fairly free” and he had seen “these men changing in their behaviour and their ability to lead a much better life.” Specifically the Pastor had observed Mr J’s self-esteem and courage improve and his mind set was focused and “knew that he would just have a progression of not committing anything concerning drugs or even with alcohol”.
At the time of the trial, Mr J was receiving counselling from a trauma coach who assisted him with his feelings and emotions and how he expressed them in relation to the difficulties he has with his ex-wife and their children and other issues as they arose.
When asked about the possibility of relapsing during times of stress, Mr J did not think this was a risk as he had this issue under control with the support he receives from members of the church and his wife and was of the firm view that “it’s definitely not a path that is actually going to be beneficial in any way shape or form for me and for everybody else around me.” He gave evidence of still consuming alcohol, but he now restricts himself to a maximum of three drinks. He no longer uses illicit substances.
In cross-examination the father found it difficult to believe and accept that Mr J had changed and viewed him as “an abuser”. At the family report interviews, the father refused for changeovers to occur with Mr J present citing again that he was “an abuser” and that did not feel safe but when making his opening remarks for his cross-examination of Mr J, the father introduced himself to Mr J and noted they may have not met before and said he was pleased to meet him.
The concerns of Mr J’s alcohol consumption were addressed at paragraph 109 of the report:
The father raised concerns about Ms and Mr J's alcohol use, however the pattern of alcohol use described by Ms Molkens and Mr J does not appear to be excessive. X mentioned Mr J being "drunk," however, he did not describe any behaviour that would indicate excessive use of alcohol instead he stated that he did not realise Mr J was "drunk" and the indication he was drunk was that his sister, Y had saw bottles of beer. This explanation appears to show that Mr J was drinking alcohol, which he does not deny, but it does not highlight excessive use of alcohol. In my view Mr Ansell has a different lifestyle choice in regards to alcohol consumption than Ms and Mr J. In my opinion substance misuse is not a risk factor in this matter.
I respectfully agree. I found Mr J to be a very credible witness and have no hesitation in accepting his evidence. I find that he has turned his life around and is vigilant in addressing any relapse through the support of his wife and church. The father on the other hand is unwilling or unable to accept anything positive in relation to Mr J.
2017 police station visit
On 8 September 2017, prior to these proceedings having been commenced, the father attended Suburb N police station with X and Y wanting the police to talk to them and take an official report that Mr J was intoxicated and had slapped X. The police did not talk to the children but when followed up for more information on the 18th the police records record:
When discussed further the informant confirmed that the actions of the suspect were a result of the behaviour of his son and it could be seen to be discipline. The informant also confirmed that his ex-wife contacted him and advised him of the incident so as to avoid any overreaction by the informant. Police advised the informant that the actions of the suspect constitutes domestic discipline and therefore provides a legal defence in relation to assault.
When asked about the message he was giving the children by taking them to talk to the police, the father was evasive and only when pressed did he acknowledge “in hindsight” that the children could view their mother as an abuser.
Living conditions at the mother’s house
The father’s concerns in relation to the living conditions at the mother’s house were recorded in the family report:
39.In Mr Ansell's view the mother is not able to provide basic care needs for the children, as he referred to the 'tiny house' that she lived in previously and said that she has moved home now, but this accommodation is not stable as she has no lease due to the property being owned by her relatives.
The mother is a professional and from the proceeds of their property settlement, she moved the family into a ‘tiny house’. The father has been critical of the home the mother and the children were living in. He asserted that the house had “no running water or flushing toilet” and the children had to “take turns emptying the bucket of urine that was the toilet.” Although the father had not seen inside the tiny house he was adamant that all tiny houses were built and designed for only one person.
At the beginning of the year the mother moved to a three bedroom home in Suburb R which she rents from her uncle and his wife. At the time of the hearing the lease was month to month but the mother had no intention of moving. W has her own bedroom. Y chose to share a bedroom with X as she shares a room with W at the father’s home.
Notwithstanding that the mother had moved out of the tiny house her living conditions were still an issue at the end of the trial as the father sought an order:
That both parents shall ensure that their residence is of a suitable size to reasonably house the children and that it will have all necessary facilities such as running water and flushing toilets.
During the family report interviews the father also expressed concern for the mother’s ability to provide for the children’s needs:
39.… He also stated that the mother does not provide adequate nutrition for the children, as their diet contains too much sugar and the children had holes in their socks and underwear when they were living with their mother.
Approximately three years before the mother commenced these proceedings, the father had taken photos of holes in the children’s clothing because he said he was in disbelief that she had dressed them in those clothes when they were going to spend time with him. The father claimed that these photos were taken casually. The photos were not produced at the hearing.
The father refuted that he portrayed the mother as unable to provide the basic care needs for the children and said that “I don’t think that she was unable. I think that she just hadn’t. … she had the choice to buy clothes or not” notwithstanding that he was not making any financial contributions towards the children. The father was of the view that the mother did not provide for the children by choice rather than poor financial circumstances as she had received approximately $60,000 from their property settlement.
In the property settlement, the mother received approximately 60% and the father received approximately 40% of the property pool. When interviewed by the report writer Z relayed:
61.… that he has lived with his father since he was 11, and he advised that "dad and I don't have money as Ms Molkens took it." He told me that his mother bought a "tiny house" with this money. Z said that his mother took everything when she left, and "dad lived on the street as he had nothing." Z said that he was really upset by this.
The father could not explain how Z knew about the parents’ financial circumstances but suggested Z had obtained this information from his siblings because they had lived with the mother. When asked if he had told Z or the children that he had lived on the street, the father was evasive and eventually answered “No. They saw me.” I do not accept his evidence. The father maintained his view that the mother ended their relationship for financial reasons as this was the first time in their relationship they had savings of $120,000.
Food in the mother’s household
The father informed the report writer that when X was spending time with the mother he had asked for food but Mr J told him he was not to have any. Even though the father admitted that he did not know what food it was, and that he had read X’s account made to the report writer that “Mr J told him he could not have an extra rice cracker before his dinner,” the father refused to accept this account and maintained that X “was refrained from having food” because his children do not lie.
Again, the father’s view made to the report writer that “the mother does not provide adequate nutrition for the children, as their diet contains too much sugar” was based on what the children had reported to the father and he again asserted that they do not mislead him.
There is no basis for the father’s position in this regard.
Photos of Y’s foot
On 14 December 2016 the father asked Y about a bruise on her leg and she said that she had been “beaten across her legs” by the mother and that she ran and locked herself in the toilet. His evidence was that in response to this disclosure the father said nothing to Y but was concerned enough to take some photographs of the bruise. When explaining how he took the photos, the father said that he was sitting next to Y and took the photo with his phone, Y was engrossed watching TV and that he didn’t explain and she didn’t ask why he was taking the photo and proffered that “she would have thought it was just Dad taking photos, because I always took photos of the children every time I got them.” However the photos, which the father annexed to his trial affidavit, show that the photos were not taken surreptitiously as the father had portrayed, as the pant leg had been rolled up and the photo included a ruler placed against the leg. At this point I reminded the father that he was under oath and was to give full and honest evidence and offered him a moment to collect himself before proceeding.
Notwithstanding that the father had deposed and gave oral evidence on 24 September of this incident occurring in December 2016, as cross examination on this issue continued the father was taken to his diary entry for 14 December 2016 and was referred to the opposite page that had an entry for 28 January 2017:
… i took a picture with my phone off Y’s left leg. (an measurement with Ruler) There is a bruise on her left leg. Y told me Ms Molkens/her mother beat/hit her on her leg, because Y refused to do her home work.
In cross-examination on 24 September, the father was evasive when faced with the discrepancy with the date of this incident and said that it occurred in December and that another event took place six weeks later. When again questioned about this on 2 October 2019 his evidence had changed saying that his January 2017 entry was “just saying back to myself what I had already written down”.
I find that he took the photo to gather evidence against the mother and that Y was fully aware of the photo being taken and would also have been aware why the father was taking the photo.
Pillow fight
There was an incident between Mr J and X involving a pillow which was reported to the Department of Child Safety and Women on 10 April 2019. The father considered this to be yet another example of the children being at risk of harm in the mother’s and Mr J’ care. The concern recorded was that “Their son X (11 years) had been ‘hit repeatedly with a (hard) pillow by Ms Molkens’s husband Mr J”[16] The evidence of the mother was that Mr J was drunk when he engaged in a pillow fight with X and that the mother asked Mr J to stop and he did. Both the mother and Mr J viewed this incident as “play fighting” whereas the father holds the firm view that Mr J was hitting X; albeit with a pillow. The Department’s assessment recorded:
· The information provided does not indicate that the children have been harmed as a result of Mr J and Ms Molkens’s actions.
· The information provided does not indicare [sic] that the children are at an unacceptable risk of harm in Mr J and Ms Molkens’s care; and,
· The information provided does not indicate that the children are without a parent able and willing to meet their care and protection needs whilst they are in Mr J and Ms Molkens’s care.
· …
It is noted that there are current Family Law Court proceedings occurring which may have prompted this report.[17]
[16] Exhibit ICL1, volume 1, page 132
[17] Exhibit ICL1, volume 1, page 138
The report writer’s view of the pillow fight was that it:
103.… appears to have started off as a fun interaction to becoming an incident … but in my view this was not abusive. … Furthermore, issues similar to this that can occur in any transition period with blended families where children and adults are not used to each other's personalities.
I am satisfied that there is nothing in this incident that would lead to a finding that X was at risk of harm. However the father’s fixation on incidents such as these and his blindness to alternative innocent explanations give rise to concerns that he is unable to be objective when it comes to the parenting of his children.
Car door / ankle incident
At the commencement of the hearing the father tendered a series of three videos[18] which were taken by W on her mobile phone on the afternoon of 24 August 2019 just one month prior to the commencement of the hearing. Mr J and the mother needed to be at a car dealership before it closed in order to collect Mr J’s new work vehicle and the videos depict an exchange between the mother, Mr J and the children about getting into and the seating arrangements in the car. An experience common to many families. The adults asked for either X or Y to move into the back but both refused to move. The mother and Mr J then directed Y to move and the consequences of not doing so included no ice-cream and/or an early bed time. Ultimately they asked W to sit in the back which she did, but then Y got out of and stood beside the car. In the second video Mr J is standing next to Y and asks her if he has to physically put her in the car. Y still refused to get into the car so he picked her up and put her in the car and as he shut the door Y can be seen trying to keep the door open with her feet and consequently Y’s foot got caught in the car door. Moments later Y runs out of the car and hides in some shrubs. In talking with Y, the mother acknowledged that what happened was not right and that Mr J didn’t know her foot was in the door when he shut it. In the third video, after putting ice on Y’s foot, the mother discussed the incident and explained the situation with the children in a calm manner noting that they cannot refuse to do things because it doesn’t suit them or they don’t want to. At the mother’s request the children wrote a letter to Mr J and apologised for their behaviour.
[18] Exhibit F1
Notwithstanding seeing the videos and hearing the evidence of both the mother and Mr J, the father still did not accept that this incident was an accident.
The mother asserted that the children being defiant and challenging as exampled in the video has been endorsed and encouraged by the father. When asked how he viewed the children’s behaviour in the videos, the father said that because it was not his residence it was not his place “to pull up the children at somebody else’s house” when he did not have “custody” of them. He further stated that he wouldn’t want to classify their behaviour as insolent until he knew why, justifying that he didn’t know what Y was thinking and that she may have been tired, exhausted or hungry. The father explained that he did not say anything to the children about their behaviour in the videos because it would cause an argument between he and the mother so it was wiser for him not to say anything. When pressed further, the father reluctantly accepted that the children’s conduct was rude, insolent and challenging regardless of the circumstances and that it is a parent’s responsibility to teach their children to have respect for others. On the final day of his cross-examination the father added that he would have addressed their behaviour had they not been before the Court and only when pressed further the father accepted that by failing to address the children’s behaviour he was undermining the mother’s role as a parent.
The videos clearly showed the children being defiant and insolent. The fact that W was filming the incident is suggestive of a set up by the children to annoy their mother and Mr J and to give the father the video. The children are well aware of the court proceedings between the parents. The father’s response to the questions surrounding his failure to address the children’s conduct beggars belief. His response that it was not his place to pull up his children for conduct at some other person’s home is a complete abrogation of his parental responsibilities to the children. Further it was an example of endorsement by acquiescence of their conduct and in such was deliberately designed to undermine the children’s relationships with the mother and Mr J.
In relation to the injury suffered by Y, I am satisfied that this was purely an accident and in the context of the children’s behaviour. The frustration shown by Mr J was understandable.
‘Covert’ anger
In his affidavit the father expressed the view that “the covert anger the children continue to be exposed to coming from both the mother and Mr J has been taking an emotional toll on the children” and that “the mother and Mr J’s covert anger is always being seen by the children.” The father claimed that the report writer did not detect the children being afraid of Mr J and of his “aggressive and abusive behaviour towards them” because “the mother and her partner had recently been on their best behaviour in order to ‘Fly under the radar” and that the children were “more at ease having contact with the Mother when at the Family Report Interviews”. The father asserted that consequently this was why the report writer saw no problems between the children and the mother. I don’t accept his submission. I find no evidence of either the mother or Mr J conducting themselves in an aggressive or abusive way towards the children and that the father’s claim that the children are subject to covert anger from either of them is baseless.
Pornography on W’s computer
The mother found on her computer’s search history that a search for words like “dirty sex” or “kids having sex” had been conducted when the mother was home schooling W The mother reported it to the Department of Child Safety Youth and Women but they took no action stating, “It appears that W may be engaging in age appropriate behaviours that not cause for worry at this time”. This incident did not form part of any party’s submissions and is only included in the judgment out of thoroughness.
Father’s request for Z’s School not to communicate with the mother
Upon moving to live with his father in 2016, Z remained enrolled at School B, and on 2 November 2016 the father wrote to Mr O[19], a teacher at the school:
[19] Exhibit ICL1, volume 2, page 2
Hi Mr O
This is Mr Ansell, Z’s father.
As i have requested back in May over 5 months ago that you would please cancel all communication via email to Z’s mother.
as this has not be followed through, the result is Z’s mother (who does not have custody of Z) has been stalking Z through your class activities through “U”
I have not received any communication from you at all via email ([email address omitted])
i request Mr O that you block and cease all communication with Z’s mother (Ms Molkens)
Z told me he is upset that his mother (somehow) has access to him through this school medium “U” and feels like she is “stalking” him.
IF this letter is disregarded, as my request was (in May) to stop all communication to Ms Molkens then i will have to take a more serious approach with you and the school about this matter.
Please attend to my request asap. (As this is extremely upsetting to Z and my-self!)
Sincerely
Mr Ansell [phone number omitted]
The father initially claimed that his letter was clearly instructing the school to cause the cessation of communication between the mother and Z but when pressed further the father conceded that he had “gone overboard” as he “had been frustrated” and conceded that the letter instructed the school to cease all communication with the mother. Although the father made that concession, I am satisfied that at the time he wanted there be no communication and any insight into his request has been obtained as a result of these proceedings and how it may look for him before the court.
Enrolments by the father
When enrolling Z at School C State School in February 2018, the father listed himself and a friend, Mr Q, as the emergency contacts. Similarly, two days before he retained the children on 18 July 2018, the father unilaterally enrolled Y and W at School C State School and listed his sister and again his friend as the emergency contacts for the children. The father’s evidence was that apart from supplying the father with a car from time to time, his friend had no other dealings with the children. Additionally, on both W and Y’s enrolment forms the mother’s prepopulated details under the heading “Family details” and sub heading “Parent/Carer 1” had been crossed out by the father and instead listed himself as both parent 1 and parent 2. The father said he did not include the mother’s details because “there was no court order for that at that time” and deposed that he had “been fully compliant with the court orders”.
On 13 August 2018, in the knowledge that the mother had filed her Initiating Application seeking a recovery order for the children, the father contacted the Department of Education advising them that he had “100% custody” of the three younger children and requested that they cancel their home schooling.
On 4 September 2018 the parents entered into consent orders for equal shared parental responsibility, but notwithstanding this, the following day the father completed W’s enrolment form for School C State School and again did not correct the record for the mother to be an emergency contact. Yet again a month later on 9 October 2018 when enrolling W for School C for 2019, the father listed only himself as the parent and his friend Mr Q and himself as the emergency contacts. The mother’s details were again not recorded. The father explained:
I didn’t even think of it, and to be honest, then later on I realised, whoops, and I didn’t get back to it and re-adjust it.
I didn’t see it as a major issue, I just thought “mate, I need to get this court stuff done”
The father went on to say that he did not correct the school records to list the mother as a parent and emergency contact because by the time he had realised the ICL had already fixed it. I found his evidence to be disingenuous. His conduct in not including the mother’s details on the enrolment forms was consistent with the approach he took in requesting Z’s previous school not to contact the mother.
School carnival
Following a phone conversation with the school on the morning of 3 May 2019, the mother received an email from School C State Secondary College attaching the run sheet for an athletic carnival that was being held that day and had been advised over the phone that parents were welcome to attend. The mother and Mr J attended the high school however were unable to locate the events and attended the office where upon they learned that W had become upset that the mother had entered the school grounds to spectate the carnival. After speaking with the Vice-Principal the mother and Mr J left the school. W’s response confused the mother as she had previously attended W’s school events and was due to collect the children that afternoon. When she did collect them, the mother said W was fine. The father’s account of this event differs in so far as he recalled that the acting principal advised him that the school “almost went into lockdown” as a result of the mother's attendance at the school. The school's record of this incident however does not corroborate the father's versions of events and noted that “they did not want to aggravate the kids and have them upset.” There was no reference to a likely lockdown occurring. The father was clearly embellishing what he had been told.
W’s timeline
In February this year for her humanities class at school, W completed a timeline of her life[20] in which she worked backwards to as far back as she could remember being an event when she was 5 years old.
13 years old 2019 – I moved to my dads and visited my mum every fortnight, I went to high school saw my old friends and made new friends, I was very nervous going to high school for the first day and my friend almost cried.
11 years old 2017 – I lived at my mums house and she had just married a gutless cruel alcoholical idiot and had a baby named K who is irresistibly adorable but can also chuck a big tantrum sometimes.
9 years old 2015 – We have spent a year at where we have also spent a year at School B and we weren’t learning properly and my older brother Z was failing in school, wasn’t learning anything, wasn’t getting help and was being beat by my mum and getting autism.
7 years old 2013 – my mum has moved from Suburb V, left my dad, all our possessions and left my dads heart broken and us kids so confused thinking we were going on a holiday for a couple days and we only saw our dad 11 months after that but when we did see our dad we saw him at the café.
5 years old 2011 – My mum and my dad had a fight and basically my mum had been crying for months because she wanted a 5th child and was drinking red wine and my mum said to my dad I am leaving with or without you, and I am taking the kids, so my dad dropped his job and stopped trying to get his certificates and only got the way later on in life and we went to Queensland from Melbourne.
[20] Exhibit ICL1, volume 2, page 71-72
The father stated that not obtaining his certificate was a complaint he had of the mother and that he would have made this “gripe” in front of the children. The father did not view that his gripe, which portrayed the mother negatively and was sympathetic towards him, had cemented itself in W’s mind as a significant event such that it was one of the five events she recorded of her 13 years of life. However, again only when pressed, the father acknowledged that it was not healthy to have made that gripe to or in the presence of the children.
The father denied that he had reiterated to the children that it was an 11 month period that he did not see the children following separation and proffered that W was a smart girl who had worked the exact number of months herself by putting two and two together.
I find that all of what is written by W has been influenced by the father’s comments either directly to her or around her.
The father’s diary
Post separation the father kept a diary which he said he recorded everything in general such as dreams, his time with the children and incidents arising from the children’s time with the mother. Upon being told of incidences, the father said he would try not to react to what the children had told him but would give them a hug and tell them he loved them and later record the incident in his diary. The excerpts of his diary annexed to his affidavit only contained negative events of the children having been with the mother in addition to counting the number of days since the parties separated.
I observed that the father’s call upon Mr J’s former wife occurred after these proceedings commenced and despite going to the effort to look locate her on the electoral roll, driving to her residence and talking with her and eliciting information about Mr J, the father did not record this in his diary because of “her demeanour” notwithstanding his earlier evidence that he kept a diary in which he recorded everything in general.
Child support
When the children were in the mother’s care the father was not required to pay child support as he was unemployed but he gave evidence that he had paid $20 or $30 spasmodically to the mother. In the days prior to the father withholding the children, and prior to informing the mother that he was not returning the children to her primary care, the father advised the child support agency that he had 100% custody of the children. The father said that he “was struggling financially” and notwithstanding his claim that he did not expect any money from the mother, he found it very frustrating that it was three months before he received any child support payments.
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The children’s relationships[21]
[21] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
The evidence would suggest that during the relationship the children had close and loving relationships with both parents. This initially continued after separation even though there were periods of time when the children did not spend time with the father. Over time Z and then the other children began exhibiting oppositional behaviour to the mother and her husband.
Although the mother has been the primary carer for all four children for the majority of their lives there can be no doubt that now her relationships with them have been compromised. The mother would have it that the father has systematically undermined her parent/child relationships and has enticed all of the children to reject her. The father on the other hand argued that the mother’s own conduct has underscored the children’s relationships with her such that they have “voted with their feet.”
Z in particular has severed his relationship with the mother. Prior to moving to his father’s he had become physically and verbally aggressive towards his mother. He has not spent any time with her since his 13th birthday and he has refused other forms of communication other than to post offensive comments on her Facebook site. Earlier in this judgment I addressed some of the evidence surrounding this. Whilst I have no doubt when living with the mother Z experienced conflict with her and began desiring more time with his father, I am satisfied that the father has at the very least seized opportunities to undermine Z’s relationship with his mother. I find that he has fuelled the breakdown by telling Z stories to entice him to strongly align with his father. Z’s perceptions of the outcome of the property settlement between his parents could only have come from the father. The father telling Z about a court case where a 12 year old boy was able to live with his father would have added to the child’s sense of empowerment and would have fuelled his opposition towards the mother. The fact that the father has done nothing to correct Z’s behaviour and encourage him to have more respect for his mother has only reaffirmed in Z’s mind that he is right and his mother is wrong. As the report writer put it:
112. … when Z started to live with his father two/three years ago, it would appear that the father has not encouraged a relationship between the mother and Z, instead he advised me that he encourages Z to forgive his mother's mistakes. This language reinforces Z's negative view of his mother, and does not encourage or make an attempt to facilitate a relationship between Z and his mother.
The sad reality is that any chance of improving the mother/son relationship will be fraught with difficulties given Z’s age, the entrenched position taken by him, and the father’s lack of any sincere interest in helping to turn things around. A therapeutic counselling approach is the only possible means of doing so. The mother realised there was no utility in seeking an order for Z to live with her in those circumstances and in my view was being child focused in seeking the orders for therapeutic counselling.
Although the other children have been living with the father since July 2018 they still have relationships with their mother, albeit problematic at times. The father has done little to promote positive relationships and has acted in ways that promote a negative view of the mother and her partner some of which I have addressed above. I note also that he saw no issue with the children calling their mother by her first name rather than “mum”. He did not consider it to be disrespectful or that it would undermine their relationships with their mother.
When cross-examined about not addressing inaccuracies in the children’s views about the mother, the father conceded that he has sent negative messages about her and hasn’t been affirming of her to the children but he considered that he has done his best in that regard. If that is so he has fallen well short of what is required of him as a parent in order to ensure the children’s emotional wellbeing is met. I however have formed the view that he has deliberately tried to undermine the relationship for the reasons I have addressed elsewhere in this judgment.
In her report the family report writer observed the changeover during the interviews where the children were observed to give the mother a cuddle as she left but upon seeing the father their demeanour changed towards their mother. They looked towards and then stood close to their father. In her oral evidence she elaborated to say that the children stood still as if they were confused and didn’t know what to do. She recalled that they had gone from being quite affectionate and interacting with the mother to being confused. She opined that the reasons for the change may have been that the children were uncomfortable having both parents in the same room at the same time or they were overwhelmed by the father’s influence. She said that earlier in the day the children told her they didn’t want to spend time with their mother and she considered that they may have been faced with having done something contrary to what they were told to do.
Whilst I make no findings as to whether the father influenced the children on the day of the interviews, I have found him to have involved the children throughout this dispute and he has failed to promote positive relationships between the children and the mother. In light of that, I am satisfied that there is a real risk that if they remain living primarily with him their relationships with the mother will go the same way as that of Z. In her oral evidence the family report writer said there was a real risk the children would be emotionally harmed if they remained living with the father. In her view not only could the children start exhibiting behaviours and forming negative views similar to Z’s conduct and attitude towards his mother, they may also develop issues in forming relationships with other people throughout their lives. She stressed the potential long-term impact of this in relation to their ability to develop working relationships in employment and engaging with authority figures into the future.
When Mr J initially formed a relationship with the mother the children accepted him and developed positive relationships with him. Over time however these relationships have also been compromised. Given his own opposition to Mr J there is little chance the father will do anything to correct the children’s perceptions of him.
The father argued that the children’s views of both the mother and Mr J have come about as a result of their lived experience with them. Y told the report writer that the mother would smack her for not doing her maths and would hit her on the “back or bum” on a weekly basis. She said that their mother was mean to them and would scream and yell at them every week. W however said that her mother could be fun and then laughing said that she could also be “annoying”. X said that Mr J had “grabbed my arm and pushed me” and that his mother “used to hit us and she has a new husband”. I am sure that the mother has raised her voice to the children from time to time but I am not satisfied that the children have been subject to excessive physical discipline on a weekly basis as claimed by them. Although I have no doubt the children have had negative experiences in the mother’s home, particularly when they were adjusting to Mr J joining the family and whilst they were living in the small home, their expressed views are out of proportion. This, in my view, has been fuelled by the father in his failure to support their relationships with the mother and his involvement of them in the parental dispute. W’s comment that the mother can be both fun and annoying is likely to be the more accurate assessment. I am satisfied that despite the expressed position of the children they do still have a positive relationship with their mother but are torn between what is expected of them by the father and their own personal feelings. I am fortified in that finding by the observation of the family report writer:
97.The initial observation was between Ms Molkens, W, Y and X and the children’s half-sister K. W and Y cuddled their mum and then cuddled K when they greeted them. The interaction between the mother and all three children was positive. They interacted well, laughed at each other and played by drawing on the white board. The mother led play between them, by drawing silhouettes of the children on the white board.
98.I asked Mr J to join the family towards the end of the observation, and he joined in playing with the children, and then played individually with X and W and Y continued to draw and interact with their mother. There was no adverse reaction to Mr J entering the room.
……
100.When the father and Z entered the observation room, there was no communication between them and the mother. The mother looked at Z, but he turned his head away. The children, W, Y and X cuddled their mother as she left, but their demeanour changed towards their mother and they looked towards ands stood close to the father.
Having addressed the relationships between the children and the mother it is also important to address the father/children relationships. All four children expressed a strong love for their father and were observed to have positive interactions with him during the family report interviews. Although at face value the children appear to have a close and loving relationship with their father, given my findings as to his involvement in enticing the children to align with him, I find that these relationships are also compromised by a lack of honesty on his part. Having said that however, I have no doubt the children love their father deeply and want to be with him.
It is also important to look at the likely effect on a child or the children generally if they are to change residence. The children have been living with the father since July 2018 which is a significant period of time. A move to the mother’s home would have a significant impact on all of them but they would be returning to the primary care of the mother. They have also been spending alternate weekends with her so they would be familiar with her household. They would of course miss living with their father and brother but with regular time orders in place they would be able to continue their relationships in that regard.
Risk of harm[22]
[22] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father remained concerned that the children would be harmed by Mr J’s involvement in their lives. He accused both Mr J and the mother of being violent towards the children and by his actions and words had reinforced that message to the children. I have already addressed the evidence in this regard and I am satisfied that the children are not at any risk of physical or psychological harm in the care of the mother or Mr J. On the other hand I have concerns that the children would be subject to psychological or emotional harm in the father’s care given his involvement of them in this dispute and his deliberate attempts to align the children with him. This risk would be heightened if the children lived primarily with him as the negative messages received from both the father and Z would dominate their living environment. This risk could be mitigated somewhat if they spent shorter periods of time with the father but would not be entirely mitigated as I have no confidence the father will be able to put the dispute with the mother away and speak positively of her to the children.
I note that the family violence protection order obtained by the mother against the father in 2013 was for a period of two years and has now expired. This order was consented to by the father on a without admissions basis. There are no current family violence orders in place. The report writer opined that the parties did not present as being currently in fear of each other. I would share that view.
The children’s views[23]
[23] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
There is no dispute that all four children have expressed clear wishes to live primarily with their father. They have done so to the father, the mother and the family report writer. The issue in this regard is what weight I should give to those views. During her oral evidence I asked the report writer what the impact on the children could be in not following their wishes. She considered that for the children they would feel that their views weren’t important and may impact their willingness to express their views in the future. However, she went on to say, that with maturity as they get older, they would come to understand different aspects of decision making. She said that when the children were interviewed they were told that their views would be listened to but what they say may not eventuate. She believed it would be beneficial for some independent person to speak to the children about the outcome of the proceedings.
In relation to Z, given his age, I propose to give considerable weight to his wishes notwithstanding my findings that he has been heavily influenced by his father. To do otherwise would only cause more angst and would sever any chance of repairing the mother’s relationship with him. This view was shared by the mother and also the ICL.
For the other children however the issue of weight to be given is more complex.
In the family report the writer observed:
121.W, Y and X all stated that the want to live with their father, and they did not want to spend time with their mother on the day of interviews. The younger three children spend time with their mother every second weekend, and the positive interactions during observations with their mother and Mr J did not suggest that they did not want to spend time with their mother, as per their expressed views. Therefore, the children's wishes and views were not consistent with their actions and experiences. This could suggest that they are being influenced by the father, and given the breakdown of the relationship between the mother and Z, I would be reluctant to make a significant decision for the children's future living arrangements based on their expressed views and wishes to me alone. In that respect the court should, I think, give some consideration to the mother's significant role with these children, as the primary care provider before and after the parents' separation. ……
The report writer went on to recommend an updated family report if the children were returned to the mother’s care to again assess the children’s views but during cross-examination she said that that recommendation was intended for any interim determination not after a final trial. She did not support interim orders being made.
Although I have had regard to the wishes of the children, I do not propose to give them the same weight that I have for Z. I have no doubt the children honestly hold the views they have expressed but I am satisfied that they have been heavily influenced by their father and they do not yet possess the maturity to see through that influence and form independent minds. When I take their views into account along with the other considerations addressed in this judgment I have come to the conclusion that it would not be in the children’s best interests to follow their wishes in relation to where they should live.
Given the concerns referred to above as to how they may re-act to their wishes not being followed I propose to make an order for the family report writer or family consultant to explain the orders to them. The report writer gave evidence that Z would benefit from having the orders explained to him in the context of counselling given his cognitive abilities and the entrenched position he has taken. I accept that opinion.
Practical difficulties[24]
[24] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties live some 35 minutes drive from each other. This distance would not preclude the children living with one parent and spending time on a regular basis with the other parent. However, if they are to move to live with their mother it would be desirable for a change of school in order to make it easier for the family.
The father raised concerns about the mother’s living arrangements. She no longer lives in the ‘tiny house’ and the children are familiar with her current home having been spending time there on alternate weekends and during school holidays. Although the lease on this property is only a month to month basis there was no suggestion that this cannot continue. I do not hold the father’s concerns in this regard.
Parental capacity and responsibility[25]
[25] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
Both parents have the capacity to meet the day to day needs of the children, particularly ensuring they are fed, clothed and housed. I have addressed the father’s concern in relation to the mother’s accommodation above. The mother readily conceded that, other than in relation to the children’s emotional needs, the father has in recent years been able to care for the children appropriately. She remained critical of lack of child support payments when the children were living with her complaining the father chose to remain unemployed. She also highlighted the fact he told the child support agency the children were living with him 100% of the time before he informed her that he was retaining them. Her criticism is warranted.
I remain concerned as to the father’s ability to meet the children’s emotional needs given his undermining of the mother’s relationships with them. I do not have those concerns in relation to the mother although the father was right to point out there were times when the children were withheld from him. Both parties lay blame at the other for not facilitating that time. If the children were ordered to live with the mother, the father was concerned that the mother may again not facilitate time. Under cross-examination the mother said that time had not occurred because they hadn’t reached a written agreement and on other occasions she emailed and/or texted the father requiring him to obtain his own vehicle suitable for transporting the children as it was a two hour return trip and the mother was heavily pregnant at the time. The mother impressed as someone who would abide by orders for the children to spend time with the father should I order a change of residence. It is also important to recall that in July 2018 the father also withheld the children from the mother contrary to their agreement for them to be returned to her at the end of the school holidays. He has however been compliant with the current orders for the children to spend time with the mother.
Presumption of Equal Shared Parental Responsibility
I am satisfied that the presumption of equal shared parental responsibility does not apply given the history of family violence between the mother and father. Although I have found that there are no current family violence concerns, I am satisfied that the making of such an order would not be in the best interests of all four children given the difficulties experienced by the parties in communicating and making decisions together.
Both parents accused the other of not communicating in an effective manner and making unilateral decisions. The father’s evidence of the parents being able to communicate and effectively co-parent varied. In March 2019 on his intake questionnaire with E Centre the father completely disagreed that he could communicate effectively with the mother. His oral evidence varied between that position and the father electing not to communicate with the mother to avoid conflict, to then on the final day of the hearing saying that he and the mother had only recently been able to communicate effectively. In this regard the mother agreed that since there has been a court order in place the father had been keeping her informed of children’s health and school events.
The report writer observed:
123.The limited co-parenting relationship since the time of the parents' separation over five years ago was evident to me in respect of the child welfare concerns discussed by both parents. The parents have reported concerns to Child Protection services about the other parent, but have never discussed their concerns with each other. In my view this creates major issues for how information is interpreted, particularly when the source of the information is from their children, who could feel that they have to appease or please one of their parents.
The ICL submitted that I should order the mother to have sole parental responsibility for the children but for the parents to have equal shared parental responsibility for Z to send him a message that his mother is still involved in his life. Whilst that argument has some merit, I would be concerned that he might interpret the different arrangements for the other children as excluding their father and re-act defensively of his father which may lead to a compromising of the intended counselling before it begins. In any event I do not have confidence that the parents will be able to improve their communication sufficiently to work through differences in decision making. They simply lack trust in each other. For this reason, I will make orders for the parent with whom a child lives to have sole parental responsibility for that child but so as not to completely exclude a parent I propose to make the order subject to the exchange of information prior to a final decision being made. The orders proposed by the mother would appropriately cover this.
Consideration of Equal Time or Substantial and Significant Time
Given my decision to make sole parental responsibility orders in this matter I am not required to consider the children living in an equal time arrangement however I am satisfied that such an arrangement would not be in any of the four children’s best interests or be reasonably practicable given the distance between the two homes and the poor communication between the parents. They also have different parenting styles that would over time cause further conflict.
In relation to whether substantial and significant time, which means time during the week, on weekends and during school holidays, is in the best interests of the children similar considerations apply. Given the high level of conflict in this case, an arrangement whereby the children live in one primary home and spend regular weekend time and school holidays with the other parent would better meet their best interests.
Discussion
For the reasons set out above I have come to the conclusion Z’s best interests would be met by continuing to live with his father notwithstanding my findings that the father has influenced Z away from his mother. I am satisfied that therapeutic counselling should be employed to help restore Z’s relationship with the mother. In light of that counselling I do not propose to make any specific orders for Z to spend time with the mother, however to send Z a message that his mother wants to have a relationship with him I will make an order for Z to spend time with his mother in accordance with his wishes.
In relation to W, Y and X, for the reasons I have set out in this judgment, I have come to view that they should live with their mother. Should they continue to live with the father there is a very strong chance their relationships with the mother would go the way of Z’s. That will not be in their best interests. Whilst separating siblings is rarely ideal, in this case I find that it is necessary for the long term best interests of the children as they are likely to be influenced by Z in their relationship with the mother if they remain living primarily in the same house with him.
The ICL argued for a moratorium on the father’s time with the children to enable them to settle back into the mother’s household. This was supported by the mother but opposed by the father. He argued that the children spending alternate weekends with him would benefit the children as he would “help them, encourage them”, specifically he “would encourage them to submit to the mother and to Mr J” as “a person in authority ... like a teacher, like a principal”. He claimed that he had learnt not to “go running to the police” and would instead email the mother seeking clarification of events reported by the children to “make sure (he was) not blowing it out and (they) don’t end up in court again” . His comments did not instil any confidence in me that he would be able to refrain from being negative about the mother to the children. In my view he lacks insight into the effect of his words on the children.
There can be no doubt that the father was correct in his view that the children would find not only a transition to the mother’s home against their wishes but also a moratorium on seeing their father, devastating. The report writer had formed the view that although that would be the case they would cope and settle over time. I accept her opinion and have come to the conclusion, regrettable as it may be, a moratorium will be necessary. I propose to order that the children go into the mother’s care upon the making of the orders and resume spending time and communicating with the father at the conclusion of a six-week moratorium period. This will allow them time to settle into the mother’s primary care again free from any negative comments by the father, as well as settling into their school.
The ICL proposed that the father’s time upon resumption, should occur one weekend a month from 9am Saturday to 4pm Sunday. The mother’s proposal was for the alternate weekend time to be from 5pm Friday to 5pm Sunday. Whilst I remain concerned the father and Z will not be able to resist sending the children negative messages about the mother and a limited time may assist in reducing the children’s exposure to that, on balance I have concluded the mother’s proposal is to be preferred. This will ensure the children are able to maintain their relationships with their father and brother.
Whilst the parents agreed for changeovers to occur at McDonalds, they were in dispute as to the location with the mother preferring a continuation of handovers at Suburb G and the father seeking Suburb H. Responsibility for the children’s transition between the two homes should be shared between the parents. Their respective proposals are closer to their own homes. In my view it would be preferable for the children to be collected by the father at the commencement of his period of time from the McDonalds Suburb G as this would give the children time to go home from school and change out of their uniforms and get ready for their weekend with the father. The mother however should collect the children from the McDonalds Suburb H at the conclusion of the time so the children can spend more time with the father.
Notwithstanding my finding that the mother should have sole parental responsibility for the children which would include decisions in relation to schooling I propose to address the issue of the children’s enrolment at School B which was proposed by her, given this issue was canvassed at the hearing. The children have attended a number of schools and have also been home schooled by the mother.
In relation to the future school for the children the report writer did not recommend a specific school per se but rather commented on the children attending a school verses being home schooled.
122.… The father has enrolled all of the children in School, which appears to have been a positive change from them as they all discussed the social aspect of having friends at school. Children's wider social connections are important and most often created when attending school, and they can miss this social connection when being home schooled.
104.The children all told me that they enjoyed spending time with their friends at school, and for that reason I would recommend that the children continue to attend school. The father raised the home schooling as a concern, however, according to the father's reports of the children's academic achievements, they have not missed out in their education by being home schooled, but instead appear to have missed the social interactions of their peer group.
The mother does not intend to home school the children in the future but proposes they attend School B.
Whilst previously attending School B, X had been misbehaving and received multiple Discipline Notices between July and November 2015 and the mother conceded that whilst at School C State School his behaviour had improved and he had received a Principal’s Behaviour Award for positive behaviour.
The father annexed to his affidavit the 2019 semester 1 school reports of all the children which showed that Z and W were B average students at School C State Secondary College and both Y and X were C average students at School C State School. All children were reported to be making very good or excellent effort in their classes and attached were also numerous certificates or awards each child received for the first half of this year. This is a positive outcome for all of the children. I have no doubt the father has been very supportive of the children’s education.
The issues experienced by X at School B are now historic. I am satisfied that both the mother and Mr J are alive to behavioural issues in the children and would work with the school should there be any re-occurrence. The mother’s understanding from when the children were previously enrolled in the school was that the parents paid fees for the first two children but there would be no fees for subsequent children. She therefore anticipated that the annual school fees would be around $12,000. She said she was considering returning to part time work to help pay the fees. As Mr J earns approximately $45,000 net per annum in his business they would not be able to make the payments unless she was also bringing in an income.
The father agreed that should I order the children to live with the mother, it would be practical that the children attend a school closer to her residence but he argued that if he was to collect the children from a school near the mother it would be impractical for Z to travel in the car more than 20 minutes. However, when pressed the father acknowledged that his residence was within walking distance of Z’s school and that Z was responsible enough to be left at home on his own for an hour to enable the father to collect the children.
I propose to make an order that the mother be permitted to enrol the children at School B provided she is responsible for the fees associated with that decision and otherwise in a school in reasonable proximity to her home. Given I will be making orders for the children to be collected by the father from the Suburb G McDonalds on alternate Fridays the father will not have to travel any further distance to collect the children from their school.
The father sought an order that the children not be left alone in the care of Mr J. I was not persuaded that the children would be at risk of harm with Mr J and therefore such an order is not necessary. When asked how he would respond if the court found there was no unacceptable risk of the children being in the care of Mr J, the father said:
I will shut up and I will wear it in my heart. But I tell you this, I will never stop praying for them. No matter – no matter what the ruling is, I will always pray for their safety.
It will be important for the father to stick to his word in that regard.
The father also sought an order that both parents ensure the home in which they live is of a suitable size to reasonably house the children and have the necessary facilities such as running water and flushing toilets. Whilst I accept the father was concerned about the mother living in a ‘tiny house’ with the children I am not satisfied that this order is necessary and the making of it may lead to further disputes between the parties including intrusive requests to inspect.
During the final day of the hearing I indicated that I would make an order for the children to be brought to court on the day the decision is to be published and orders made. The purpose of this was to enable an independent person to explain the orders to the children. The report writer was of the view that it would be beneficial to all four children for these orders to be explained to them, but did note that because of Z’s autism and his very rigid thinking on who he can trust, she was unsure how much of the information she would relay to him would be listened to and suggested that be better done by the proposed therapeutic counsellor and separately to the three other children. I accept her opinion in this regard. I propose to make an order for the family report writer or another family consultant to explain the orders to the three younger children and by way of assistance will make an order for a copy of this judgment to be made available once published. In relation to Z however I do not propose he have the orders explained to him by the report writer. I would be concerned if he is to hear the outcome with the other children present, he might undermine their willingness to go home with their mother. It would however be important for him to have the orders explained to him and I propose to leave that to the counsellor arranged by the parties. To assist with this I will also make an order releasing both the family report and my judgment to the counsellor.
I have determined the discharge of the appointment of the ICL should not take effect until there has been compliance with the order for the parties to arrange for counselling for Z given the non-compliance of a previous order. I will give the ICL liberty to relist the matter if there has not been compliance in this regard.
For these reasons I will make the orders set out at the commencement of this judgment. In doing so I have used the mother’s proposed orders as the framework but have merged with them orders sought by each of the parties and the ICL consistent with my judgment.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 14 January 2020
Exhibit F1 Video recordings made August 2019
Exhibit ICL2 Email dated 3 May 2019
Exhibit C1 Email dated 6 December 2014
Exhibit M1 Email dated 7 March 2019
Exhibit ICL3 Child Inclusive Conference memorandum dated 27 September 2018
Exhibit ICL4 Paragraphs 7 and 10 and Annexures A and A6 of the Affidavit of the father filed 1 April 2019
Exhibit M2 The Mother’s proposed orders
Exhibit ICL5 The ICL’s proposed orders
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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Costs
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