Mulhern and Bowden

[2014] FCCA 2769

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULHERN & BOWDEN [2014] FCCA 2769

Catchwords:
FAMILY LAW – Parenting Orders – relocation – competing residence applications – father’s application acceded to – children to continue to reside with father in Victoria – father to have sole parental responsibility of the children – matters of credit.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 61DA(1), 61DA(4)

Applicant: MR MULHERN

Respondent: MS BOWDEN

File Number: MLC 364 of 2012

Judgment of: Judge Hartnett

Hearing dates: 9 and 10 April 2014 and 8 August 2014

Delivered at: Melbourne

Delivered on: 27 November 2014

REPRESENTATION

Counsel for the Applicant: Ms Stoikovska

Solicitors for the Applicant: Mason Sier Turnbull Lawyers

The Respondent: In Person

ORDERS

1. All previous parenting orders are discharged.

2. The father have sole parental responsibility for the children of the relationship X born (omitted) 2009 and Y born (omitted) 2010 (‘the children’).

3. The children live with the father.

4. The children spend time and communicate with the mother as follows:-

   (a)from the last day of school term in the middle term (June to July) Victorian School holidays for the children until 5pm (the children to be at their father’s home by this time) on the Friday immediately preceding the resumption of school, being the commencement of term 3. The mother is to pay for the costs of herself and the children to fly from Melbourne to Darwin and the father is to pay for the costs of himself and the children to fly from Darwin to Melbourne;

   (b)upon the mother giving the father 30 days’ notice in written form, for 21 days in Victoria during the long summer Victorian school holiday period for the children, at times to be agreed between the parties, but incorporating Christmas Day in each alternate year commencing 2014, the mother to collect the children from and return them to the father’s residence;

   (c)in the event the mother be in Melbourne, upon her giving the father as much notice in written form as possible, for such further and other times as is agreed between the parties; and

   (d)by Skype each Monday at 5pm until 5.20pm and by telephone each Thursday at 5pm until 5.20pm, the mother to instigate the sessions and calls and in the event she fails to do so, at no other time, save by written agreement.

5. Each party shall keep the other informed at all times of their current contact landline telephone number, their current contact mobile phone number and their current residential address.

6. Each party shall keep the other informed at all times of all significant medical issues relating to the children, including any significant injury or medical condition suffered by the children during such period of time when the children are in their respective care.

7. Each of the parties be and are hereby restrained by themselves, their servants and/or agents from:-

   (a)denigrating the other parent to or within the hearing of the children;

   (b)using foul or offensive language in the presence of, or hearing of the children; and

   (c)harassing the other party, including via text message, during their respective periods of care.

8. Should the mother relocate her residence to Adelaide at some future time, then time spent with to be agreed between the parties. The parties shall attend mediation in Melbourne in the event they are unable to agree before commencing legal proceedings.  Such proceedings should be listed in the Melbourne Registry of this Court before Judge Hartnett at first instance.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 364 of 2012

MR MULHERN

Applicant

And

MS BOWDEN

Respondent

REASONS FOR JUDGMENT

1. These proceedings involved the seeking of competing parenting orders by each of the mother and father of the two children of their relationship. Those children are X born (omitted) 2009 and now aged five years and Y born (omitted) 2010 and now aged nearly four years (‘the children’).

2. The Applicant father relied upon as evidence in the proceedings, the contents of his affidavits filed on 5 April 2013, 26 July 2013, 1 November 2013, 21 November 2013 and 31 March 2014.  The father also relied upon the Affidavit of Mr E filed on 21 November 2013, the Affidavit of Ms R sworn on 21 November 2013 and the Affidavit of Dr P filed on 6 December 2013.

3. The Respondent mother relied upon affidavits filed by her on 13 August 2013, 16 August 2013, 6 November 2013, 9 December 2013, 8 April 2014 and 30 July 2014. The mother also relied upon the affidavits of Ms H filed 9 December 2013 and 9 April 2014, the Affidavit of Ms W filed 9 December 2014, the Affidavits of Ms K filed 8 April 2014 and the affidavits of Mr S filed 8 April 2014 and 1 August 2014.

4. Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

1. The mother was born on (omitted) 1977 and is now aged 37 years. The father was born on (omitted) 1977 and is also now aged 37 years. The parties commenced their cohabitation in (omitted) 2009, shortly before X’s birth and separated in July 2011, when X was 23 months old and Y was seven months old. Three years and four months have passed since separation. In that time, the children have lived with both their mother and their father.

2. The father has not re-partnered nor does he have any other children. The mother had two children from two previous relationships when the parties in these proceedings commenced to reside together. A was born on (omitted) 2001 and is now aged 13 years. A has been diagnosed as having high functioning autism. B was born on (omitted) 2004 and is now aged 10 years. Both these children live with their mother. A spends no time with his father and B spends supervised time with his father approximately twice per month. His father had substance abuse problems. Since separation, the mother has commenced cohabitation with Mr S, and they have a daughter Z born on (omitted) 2014 who is now nine months old.

3. In earlier proceedings between the parties, final parenting Orders were made on 14 August 2012 and by consent. They provided amongst other things, for the mother and father to have equal shared parental responsibility for the children; for the children to live with the mother; and for the children to spend regular time with their father during university semesters, being five nights in a fortnight and otherwise holidays and special occasion periods (including periods of up to seven consecutive nights). At the time of the making of those Orders, the mother resided in (omitted) and the father in (omitted). Whilst the parties had cohabitated, they had resided in (omitted). 

4. Following the separation, the mother and children remained in occupation of the (omitted) accommodation for a period of some two to three months when the mother determined to move the residence of herself and the four children to (omitted). The father (although not consulted) and his parents nevertheless supported her move and assisted in the logistics of the move, including the paternal grandparents cleaning of the (omitted) property. Although the father had been depressed around the time of separation, his anxiety and depressive symptoms abated following the relationship’s end, and he and the mother had a positive and working relationship for a period of time, approximately six months, before their communication with each other, in particular about the father seeing the children, again became problematic. The father however did fairly regularly see the children by agreement, and then more so by court order, made by consent. The father moved from his parents’ home in (omitted) to rental accommodation in (omitted) to be geographically closer to the children and thereby to more readily assist in their care.

5. In March 2013, a matter of seven months following the making of the earlier referred to final consent Orders as to parenting matters, the mother relocated herself and her four children to a rental property in (omitted), a location approximately 10 minutes outside of (omitted) in Victoria. The mother claimed as to the reason for her move that:-

   a)the father had begun to harass and intimidate her because he had discovered she had commenced a relationship with Mr S. The mother claims this relationship commenced in October 2012 and that they became engaged in April 2013 (mother’s Affidavit sworn 12 August 2013 at paragraph 32);

   b)she was required to move from her rental accommodation in (omitted) and was having trouble finding new accommodation that was suitable and that she could afford; and

   c)during the relationship the father was often physically and emotionally violent towards her and as a consequence she feared for her safety and that of her children.

   The mother further claimed to have advised the father of her proposed relocation prior to the move, and stated that he acquiesced, simply requesting that she place their two boys in kindergarten in (omitted).

6. The Court finds none of the claims of the mother to be made out. The father’s behaviours were not violent nor harassing, and rental in (omitted) was available to the mother which was both affordable and appropriate. What in fact the Court finds was the reason for the mother’s move, was the commencement of her relationship with Mr S. He had obtained rental accommodation in (omitted), where he had lived most of his life and where his mother lived. He was at that time based in Darwin but posted to work near (omitted). The mother moved for the sole reason of pursuing her relationship with him. She knew the father objected to any relocation of the children. She had broached the subject of a possible move to Darwin for the family on 11 March 2013, at the time she introduced the father to Mr S. The father immediately indicated that he was shocked, and that he would not consent to the children’s relocation to Darwin. The mother indicated that any such proposal would not be immediate but rather at least one year away. Within a week the mother had telephoned the father and advised him that she had signed a lease for a rental property in (omitted) and was relocating with the children to that accommodation in the following week. The father replied that he was not agreeable to such a move. He subsequently had his solicitor communicate with the mother’s solicitor, but to no avail. The mother departed with the children, and the children were not made available to the father for the Easter period in 2013 and for some weeks thereafter. The mother’s move was sudden and unilateral. The father was very stressed and missed the children, as they did him. The mother demanded that the father, in order to see the children, pick them up from and return them to her home outside (omitted).

7. As soon as the father realised the mother was no longer residing in (omitted), he issued proceedings seeking the return of the children to the (omitted) area to remain so residing until further order. On 23 April 2013, interim Orders were made by consent which provided for the children to live with their father and spend time with their mother for five nights per fortnight until her return to reside in the (omitted) area, at which time the earlier final Orders of 14 August 2012 would resume in operation. The mother did not return to take up her primary care of the children – she had indicated as much to the Court, and thus the children have remained living with their father for the last one year and seven months. They, at their young and vulnerable age, have become very attached to him as their primary care giver. The mother claimed she could not afford to return. The Court does not accept such evidence and notes the Orders of 23 April 2013 included provision for the father to forthwith pay the sum of $2,000 to a Letting Agent to help secure any rental proposed by the mother.

8. The father seeks that the current care arrangement continue, that the children live with him and see their mother regularly. The mother seeks that the children live with her, Mr S when he is there, and her remaining children in Darwin, and then possibly Adelaide, and that the children see their father as regularly as geographically permits. Both seek sole parental responsibility of the children. In that regard and pursuant to s.61DA(4) of the Family Law Act 1975 (Cth) (‘the Act’), the Court notes the presumption of equal shared parental responsibility as set out in s.61DA(1) of the Act is rebutted in the circumstances of this case.

9. The mother’s continued residence in (omitted) in the early part of the proceedings was despite Mr S being posted to Darwin. Mr S is in the (employer omitted). He will remain in Darwin until approximately 2016, although that is subject to change. During the mother’s residence in (omitted), he visited her approximately each three to four months. He saw little of the children in these proceedings. Indeed far too little to support the high level of closeness claimed by the mother, or X and Y calling Mr S ‘Daddy Mr S’ of their own volition, in particular given their respective ages.

10. Mr S at trial was 26 years old. He has two children from a previous relationship which ended in early 2012. They are both very young children and they reside with their mother in (omitted) in South Australia. Mr S sees them every three to four months. These children, C aged five years at trial and D aged six years at trial, have spent some limited time with the parties’ children.

11. Since the children commenced to reside with their father primarily, they have been settled and happy. They have appropriate accommodation, are well cared for and interact with their paternal grandparents, with whom they have a close and loving relationship, on a weekly basis. The children attend kindergarten and some day care, and are otherwise looked after by their father who is assisted from time to time by the paternal grandparents.

12. In July 2013, the father became concerned the children were being hit by the mother, her other two children and Mr S. The children had bruising and scratching on their return from some time spent in (omitted) with their mother, and X provided a history to that effect. The father took the children to attend upon his General Practitioner who, following a physical examination of the children, referred the matter to the Department of Human Services, Child Protection (‘DHS’). An investigation followed.[1] Some adaptation of the time spent regime was proposed by the father for a limited period and pending an explanation by the mother, and thereafter time spent with between the children and their mother proceeded with restraining orders in place which included that the children not be administered corporal punishment and not be brought in to contact with Mr S until further order. This latter order has since been discharged (on 6 November 2013). The mother and Mr S denied the allegations made. There appears now no concern by the parties as to any physical chastisement of the children by either or by Mr S.

    [1] Photographs taken by the father and annexed to his Affidavit filed 26 July 2013 show bruising and scratches upon the children.

Report of Family Consultant

1. Introduced in the proceedings was the Family Report of Ms B, psychologist and family consultant, dated 20 October 2013 (‘Family Report’). Ms B’s recommendations were that the children reside with their father; that there be a consideration of allocating sole parental responsibility for them to him; and that they continue to spend time with their mother for five nights per fortnight pending her then relocation to Darwin. Thereafter, it be on three occasions each year in Darwin and in Victoria at Christmas time. The fortnightly time spent with period recommended was put in place at that time by subsequent interim Order of the Court.

2. Almost immediately following the release to the parties of the Family Report, the mother over-held the children. On 30 October 2013, the mother’s solicitors forwarded correspondence to the father’s solicitors advising that they had instructions that X had told the mother that his father had punched him on his tummy; that his father hurt him on his “head, tummy, penis and bum”; and that his father “hits (his) penis and (he) gets blood on it”. The mother had attended with X upon a doctor and the police station whereupon X was interviewed by the sexual assault team. X made no further disclosures in respect of these allegations of the mother. The father denied such allegations. Following an investigation by Child Protection Services in (omitted), it was concluded there were no on-going protective concerns and that the case would be closed. On 6 November 2013, further Orders were made by this Court that the mother cease her over holding of the children and return them to the father’s care.  

3. The mother also at this time initiated intervention order proceedings against the father in the Frankston Magistrates’ Court (on 4 November 2013) and obtained ex parte interim orders against the father. The allegations were those made to DHS which were already being investigated. This was an abuse of the Court process. The mother had just been served with the father’s recovery of the children application (which was successful) and there was no need for an ex parte hearing nor a duplication of Court processes. The intervention order proceedings were then transferred to the Wodonga Magistrates’ Court for hearing on 27 November 2013 at the mother’s request. This represented further cost to the father who contested such proceedings. The mother was self-represented, as she was throughout this trial and in the months leading up to it. The mother abandoned her application for an intervention order upon the father attending in (omitted) with legal counsel. This was simply vindictive behaviour on the mother’s part.

4. Both parties, the child X and Mr S were interviewed for the purposes of the Family Report. The parents and Mr S were also observed interacting with both X and Y. The children engaged readily with each of their parents and Mr S and displayed no evidence of fear or trepidation with any of the adults. The mother impressed as being an attuned and responsible parent, the father as loving and well-meaning but in need of a parenting course. The father has since completed a number of relevant courses. In her evaluation of the parties and their circumstances, Ms B provided the following evidence, unchallenged by the parties, being expert opinion recommendations that are supported by the totality of the evidence and which the Court accepts:-

   “54. This is a matter concerning X (aged 4 years 2 months) and Y (aged 2 years 10 months). The children remain young and vulnerable and dependent upon their parents to ensure their safety and wellbeing. Unfortunately post separation misunderstandings and miscommunications have caused the parents relationship to become increasingly strained and acrimonious. The reasoning for this is unclear and it is perhaps a moot point as to who initiated the conflict or how it has played out.

   55. Historically it appears Ms Bowden was readily available to parent the children in their early years and following separation. It is apparent the children have formed strong attachment relationships with their mother. There is no doubt that Mr Mulhern has had input in the children’s life and it is clear he has formed a loving bond with them. In recent times, as the children have matured a little and spent more time with their father, their bonds and attachments have likely strengthened. Ms Bowden impressed as a more attuned and responsive parent to the children and despite her questionable decision making in relocating, it seems her parenting of the children has been appropriate and nurturing.

   56. Ideally, given their young age, these children would spend significant and substantial time with both parents so their relationship can be nurtured and strengthened. While it is unfortunate the parents live such a distance apart, this situation is unlikely to change in the foreseeable future. Unless the parents live close to each other, it is not possible to recommend a living and time regime that allows the children regular and frequent time with both parents. X and Y need stability, predictability and routine in their lives if they are to thrive and learn and integrate developmental lessons. They need one primary home with a regular and stable provider of care.

   57. Ms Bowden’s relationship with Mr S remains relatively new and untested. After the birth of their infant Ms Bowden and Mr S’s relationship will be further challenged and they will need to manage and adapt to a new blended family constellation. It is unknown how successful they will be. Ms Bowden intends to relocate to Darwin with or without the two subject children. She will move with her two older children A and B. Ms Bowden and Mr S hope to move again to Adelaide to be closer to Mr S’s children. There is no clear benefit to X and Y to uproot them from the predictable environment currently provided by Mr Mulhern and support a move, first to (omitted), then Darwin and then Adelaide.

   58. Such a move would be potentially destabilising and detrimental to the children. Moving constantly and adapting to a newly blended family is not ideal. Ms Bowden’s attention will be divided and stretched as she and Mr S navigate their relationship and attend to the demands of their growing family. In addition X and Y would not have ready access to their father and extended family. They would likely pine for him. As Ms Bowden remains committed to relocating to Darwin, it is recommended that X and Y remain living with Mr Mulhern.

   59. When parents live a significant distance apart it is difficult to envisage how they might share parenting responsibilities. It might be sensible to accord sole parenting responsibilities to Mr Mulhern conditional upon him keeping Ms Bowden informed of significant and pertinent events and situations relating to their care, welfare and development. If Ms Bowden returns to live in Victoria in the future this could be reviewed.

   60. Given the children’s young age they need to spend as much time as possible with their mother and siblings prior to her moving to Darwin. The current regime whereby the children live with their mother from Thursday to Tuesday on alternate weeks is considered suitable in the current circumstances. In the longer term, time with Ms Bowden should not be at the expense of X’s and Y routine with Mr Mulhern though. The children’s kinder commitments in 2014 may need to be taken into account when making arrangements for the children.

   61. Unless the Court finds evidence to suggest Mr S presents an unacceptable level of risk of harm to the children then he should be permitted to spend time with X and Y when they are with the mother. X and Y need to spend time with Ms Bowden, and with Mr S, to feel included as part of their family unit. At this stage, this includes their brothers A and B (sic) [B], Mr S and their new sibling in February and perhaps Mr S's children in the future.

   62. When Ms Bowden moves to Darwin, extended time during school holidays should be supported conditional upon the parents being able to afford the costs associated with travel and transporting the children. Minimally time should occur in Darwin on two occasions for one to two weeks and time in Victoria over summer holidays for two weeks when Ms Bowden returns for Christmas.

   63. If Ms Bowden returns to live in Victoria then a review of the parenting arrangements should occur. If and when Ms Bowden moves to Adelaide the parents should be encouraged to negotiate alterations to the parenting arrangements at a community based family dispute resolution service.”[2]

   [2] Section 62G of the Family Law Act 1975 (Cth) Family Report.

Report of Dr P, Psychiatrist

1. Dr P saw the father on 28 November 2013 and produced a report to the Court in Affidavit sworn by him on 6 December 2013. Dr P was cross-examined by the mother. His evidence was required to be put before the Court as the mother alleged the father had mental health issues; suffered from drug abuse and alcoholism; and was violent to both her and the children.

2. Dr P’s evidence as to the father’s mental state was as follows:-

   “His personality type was that of someone of conscientious temperament, with interests in drama, writing, and artistic type pursuits. He spoke in a voice of appropriate tone, and volume. There was no evidence of any anxiety or depression. His mental faculties were appropriate, and consistent with his above average intelligence level. There was no disorder of perception. His judgement was appropriate. There was no indication of any sustained mood disturbance. His behaviour was within normal, appropriate limits. He was able to maintain appropriate eye contact. There were no psychotic features. There were no delusions or hallucinations.”[3]

   [3] Affidavit of Dr P filed on 6 December 2013, annexure “P1”, 9.

3. His further evidence in summation was:-

   “… I note the allegations made by Ms Bowden in her Affidavit of 5 November 2013, and in the Intervention Orders. Mr Mulhern seemed to me to be someone of rather softer temperament than normal, and totally denies any allegations of violence or abuse towards his children. I could detect no evidence of him having such tendencies, as far as one could determine within a psychiatric examination.

   … From the psychiatric viewpoint, he is someone who is totally able to have whatever custody or access arrangements are decided by the Court.

   Naturally, those matters are totally at the discretion of the Court.

   … His prognosis, from the psychiatric viewpoint, is quite favourable. It is not surprising that there was a short period in his life when Mr Mulhern became anxious, and depressed, due to the deterioration of the relationship with the mother of his children, and at the same time, being in a job situation which was quite unsatisfactory, and unsupportive. I do not anticipate that there will be further psychiatric difficulties, as far as I can determine.

   … In summary, Mr Mulhern presents as someone who is eminently suitable to raise children. It is, naturally, up to a Court to decide those issues, on hearing the totality of the evidence, but, from the psychiatric viewpoint alone, Mr Mulhern appears to be a competent, genuinely devoted father. I do not anticipate him having further psychiatric difficulties. He is someone who has a somewhat artistic temperament, and is hopeful of, at some stage in the future, completing a qualification in (omitted), and then doing a (course omitted), so as to become a (occupation omitted). In the meantime, it did appear to me that he was well organised in providing his two sons with a warm, and enriching, home environment.”[4]

   [4] Affidavit of Dr P filed on 6 December 2013, annexure “P1”, 11-12.

4. The mother’s cross-examination of Dr P did not alter or lessen the import of his evidence. From a psychiatric perspective, the father is a very able parent.

Other evidence

1. Mr S was cross-examined in the proceedings. The mother relied upon an Affidavit sworn by him on 8 April 2014. He subsequently swore a further Affidavit on 31 July 2014. Mr S first met the mother in these proceedings when she and his mother were attending university studies in (omitted) approximately 10 years ago. Until Christmas 2012, he was living together with his former wife, separated under the one roof in a house in Darwin. In approximately April 2013, he became engaged to the mother in these proceedings. At the time of the trial, he was living on the (employer omitted) base of (employer omitted) in Darwin where he had been for some 12 months. He was paying rent in respect of that occupation and had been assisting the mother in the paying of her rent in (omitted) and in the payment of other expenses. He had also assisted in the payment of the mother’s relocation costs from (omitted) to Darwin in the sum of $2,500 to that point in time. The mother finalised her relocating of her residence and that of three of her five children in April 2014 when she moved there. The father became aware of the timing of that move during the course of the trial.

2. In 2013, Mr S spent, until November of that year, at best three weeks with the children. His evidence was nevertheless that these very young children determined, of their own volition, to call him “Daddy Mr S”, and that such title caused no confusion to them. His evidence in this regard was implausible.

3. Mr S saw his own children in 2013 on two occasions prior to Christmas as his work commitments, he claimed, did not permit otherwise. He saw them in Easter and May of 2013 for approximately eight days at each time. The mother and her children were also present. He also saw them for a number of days, unable to be precisely specified by him, over the Christmas vacation of 2013/2014. For some of that period the mother and her children were present. He conceded in cross-examination that he could have seen his own children more often had he not gone to (omitted), but rather Adelaide where his children now live.

4. Mr S’s evidence in April 2014 as to the plans made by he and the mother for the relocation of themselves and children, with or without the two children the subject of this application, from (omitted) to Darwin, was that the parties had yet to find rental accommodation and were considering living with a friend of the mother for one week and then living in a cabin in a caravan park for a time. They had known of this move for many months. It is clear on the evidence of Mr S that he could at any time have sought out and obtained private commercial accommodation for the mother and the children. However, he and the mother wished for subsidised rental via his employers and needed to satisfy criteria first. Ultimately, they did obtain rental accommodation in a five bedroom home in (omitted) (also described as (omitted)) in Darwin where Mr S, the mother and three of the children reside.  Mr S is young and has a partner and now three children and two step-children to provide for. He will often be away with his work requirements. He has a comfortable relationship with the children in these proceedings but not a highly familiar one. He shall attempt to do his best and appears very supportive of the mother.

5. In the period the mother resided in (omitted), and following the birth of her daughter in (omitted) this year, the father and paternal grandfather did some considerable amount of the travelling between (omitted) and Melbourne to enable time spent with to occur. On one occasion, being 18 February 2014, the father and paternal grandfather travelled to (omitted) to be advised by text message by the mother when they were some 15 minutes away from the point of destination, that X was very ill with asthma and could not travel. The father responded that he was nearby and wished to see the mother and the children. The parties met at the changeover point and the mother handed the father a prescription for Ventolin. The father proceeded to get the script made out; administer the Ventolin and make an appointment with his General Practitioner in Melbourne for the following day (having told the mother he would do so). He then sent a text message to the mother as to those matters being attended to before leaving (omitted) to commence the trip home. He also said “I was a little upset this morning because of the late notice however I can understand if this has happened to you – if this has just occurred this morning and thank you for letting me know. I will let you know what transpires.” Upon arrival in (omitted), he sent the mother a further text message advising her of their safe arrival and that X had travelled very well. The next day, he took X to the General Practitioner and forwarded a further text message to that effect to the mother, advising also that X was “fine and doing much better”. The father received no responses to any of his text messages to the mother as to this important health issue. This was but one example of the mother’s refusal to communicate with the father.  The mother’s evidence that the father has failed to keep her informed about matters pertaining to the children is not borne out by the evidence, nor is her claim that the father attempts to restrict her time spent with them, in particular by telephone and Skype. On the totality of the evidence before the Court, I accept the father’s account of these matters and find the mother not to be a credible witness as to these claims made by her.

6. Post the mother’s move to (omitted), the father did engage in some very limited abuse of the mother and Mr S in phone calls and text messages to the mother. He was upset and frustrated. He felt that the mother had concealed her relationship with Mr S from him, and her intended relocation with the children. He subsequently apologised to the mother for his outbursts which were, in any event, considerably exaggerated by the mother in her evidence and not entirely placed in context.

7. Mr E, the paternal grandfather, gave evidence in the proceedings. He was cross-examined by the mother. Mr Mulhern was an impressive witness. He gave his evidence in a considered and truthful way and the Court prefers it to that of the mother. In his evidence he recalled he and the mother having a conversation about his son’s alleged violence toward the mother as claimed by the mother, on the occasion of he and his wife cleaning the mother’s home in (omitted) before her move to (omitted). He denied the mother ever accused his son of being an alcoholic. He denied the mother’s claim that he acknowledged his son to engage in violent behaviours before stating that he would deny such acknowledgment thereafter, assisted by the fact that he was a lawyer.  What Mr E did say, as the Court finds, was that “… I don’t believe Mr Mulhern would have done that and I don’t think he’s capable of doing that. I will talk to him and I will ask him...”. When he did subsequently ask his son whether he had assaulted or laid a hand on the mother, the answer was a flat denial. Mr Mulhern further noted that no such allegation had ever been made by the mother before. Otherwise, theirs was a friendly meeting and the paternal grandparents wished for both parties to have an amicable separation for the sake of the children.

Conclusion

1. The mother’s other witnesses were not cross-examined and the Court gives their evidence little weight. Some of the content of those affidavits is inadmissible and the matters the Court is required to consider pursuant to s.60CC of the Act are not much assisted by that evidence.

2. These proceedings were unfortunately truncated. The mother had her fifth baby in (omitted) 2014; the final hearing then commenced in April 2014 when it had to cease as a result of the sudden ill health of the mother’s baby and be further adjourned. The mother moved from (omitted) to Darwin in April 2014; and the final hearing resumed in August 2014.

3. Each of the parties sought sole parental responsibility for the children to rest with each of them. On the totality of the evidence before the Court, it is in the children’s best interests that the presumption set out in s.61DA of the Act is rebutted and that the father have sole parental responsibility of the children as suggested by the family consultant in her Family Report. The parties’ ability to communicate on any issue is compromised. The evidence of the mother herself is that she has failed to respond “at all” to most of the reasonable communication emanating from the father as to matters going to the future education and current health needs of the children. The father has endeavoured to keep the mother informed; involved in the children’s lives, and to consult with her as to those matters in respect of the children going to shared parental decision-making. There was ample evidence, in particular, during the course of cross-examination of the mother, as to the mother’s complete refusal to engage in any meaningful way with the father in relation to important aspects of the children’s care. The father has approached his communication with the mother as to the children, and since April 2013, in a respectful way. The mother has been disparaging of him, and behaved from time to time in a way that showed a lack of respect for the father, and a lack of care for the children. Referring to the father as a “dumb fuck” whom she made difficulties for in the handing-over of the children on one occasion, and being one and three quarter hours late for a Skype communication with the children without any real excuse, were but two examples. She lied about the return of the clothing provided to her for the children by the father, and clearly did not return some part of same. There is now a significant geographical distance between the parties’ residences and that compounds the difficulties which arise from the mother’s refusal to engage with the father. The father could do nothing more than he has done. He is still unable to get consensus with the mother about anything of importance in the children’s lives. He needs to be able to act in the children’s best interests and make necessary decisions for them, unimpeded by the mother’s “game playing” with him.

4. The children need a meaningful relationship with their mother to whom they were very attached. She was a loving primary care giver. However, there are now enormous practical difficulties in maintaining their relationship.  The children remain very young. They are unable to concentrate on a telephone or by Skype for any extended period. The mother does not wish for the father to be in the room during a Skype communication with her, despite the children on occasion behaving in an unruly manner. These considerations of necessity require a limitation of the time period. The mother also needs to make herself available for the children as agreed to with the father so as not to let the children down. Communicating by Skype once per week and telephoning once per week at a defined time of day should promote the children’s best interests where there is no communication exchange between the parents which would enable a less restrictive regime. Face to face time is hampered by distance and financial capacity. The mother proposed only two occasions each year. The father had offered three.

5. Upon a consideration of those matters as set out in s.60CC of the Act, the evidence supports the children’s continued residence with their father. He is the person better able to consistently parent them at this time in their lives. The mother has shown, at times, a complete lack of insight into their needs and additionally those of their half-siblings. The mother placed her relationship with Mr S ahead of that with her children at the time she took up residence in (omitted) and remained there. She was not engaged to Mr S, not pregnant to him and he was not residing in (omitted), but rather based in Darwin and spending limited time in (omitted). The mother had an opportunity to return to Melbourne and litigate the matter, with the children remaining in her primary care, but chose not to. Instead, she left them with a man she accused of alcoholism, family violence and drug taking. One who had aggressive and threatening behaviours, and who was psychiatrically disturbed. Mr S proposed that the children remain with their father further in April 2014 while they relocated from (omitted) to Darwin for the period in which they had no suitable accommodation. The Court finds on the evidence before it that all of the claims made by the mother as to these matters are false. Further, that the claims of sexual abuse of the children made by the mother are false and were made at a time proximate to the release of the Family Report. They were made for tactical advantage as perceived by the mother, and because the mother does not like the father. She is angry that he placed some check on her care of the children. She was prepared to lie to achieve the outcome she desired.

6. The children would now be highly distressed to separate from a father who has for over one year provided their primary attachment and constant care in a secure world with a very devoted father and loving and consistent paternal grandparents. The children’s mother needs to make herself more available to them as they also very much need her in their lives. She has had significant changes in her life since separation and somehow must work out a way to consistently include the children of the proceedings in her world. Part of that is developing a proper communication with the father.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 November 2014