Nast and Nast

FAMILY COURT OF AUSTRALIA

NAST & NAST

[2010] FamCA 132

FAMILY LAW - CHILDREN – whether the presumption of equal shared parental responsibility has been rebutted on the ground of family violence - whether it is in the best interests of the children to make a sole parental responsibility order and whether the children live with the mother or the father – relevant considerations – other parenting orders – injunctive relief.

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755
Damiani & Damiani (No.2) [2009] FamCAFC 215

APPLICANT:

Ms Nast

RESPONDENT:

Mr Nast

INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Partners, Lawyers

FILE NUMBER:

SYF

2617

2005

DATE DELIVERED:

26 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:

24-27 August 2009; and

26 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	R Greenaway
COUNSEL FOR THE RESPONDENT:	A Canceri
SOLICITOR FOR THE RESPONDENT:	O'Brien, Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	G Clarke
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Tiyce & Partners, Lawyers

Orders

That the mother have sole responsibility for the children C, born in May 1998, S, born in February 2000, and Z, born in September 2003 (“the three children”) AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the three children live with the mother subject to such periods of time that they live with the father in accordance with Orders 3(a) to 3(e), 4, 5, 6 and 7 hereof.
That the three children live with the father as follows:
During school term
(a)From Friday after school until the following Monday morning when the three children commence school each alternate week provided that when the Monday is a public holiday the time shall be extended to the commencement of school the following Tuesday the first occasion of which shall take place on Friday, 5 March 2010.
(b)For such alternative or other periods that the parties may agree upon from time to time.
During school holiday periods
(c) For the second half of the mid-term school holiday period.
(d)For half of each other end of school term holiday period being the first half of each such period in even numbered years and for the second half of each such period in odd numbered years which shall commence at 9.00am on the first day and conclude at 6.00pm on the last day of such holiday periods provided that the period spent with the father in the second half of holiday periods shall conclude at 6.00pm on Saturday preceding the commencement of the new school term.
(e)For such alternative or other periods that the parties may agree upon from time to time.

Other occasions

That in the event the three children are not with the mother on Mother’s Day then they shall spend time with the mother from 9.00am to 6.00pm on Mother’s Day.
That in the event the three children are not with the father on Father’s Day then they shall spend time with the father from 9.00am to 6.00pm on Father’s Day.
That the party with whom the three children are not residing on any of the three children’s birthday may spend a minimum of two (2) hours with the three children on such day and at times and places to be agreed between the parties but that such time shall be spent within a close proximity to where the three children are living.
That the three children spend Christmas with the father from 3.00pm on Christmas Eve until 6.00pm on Boxing Day in each even-numbered year commencing in 2010 and from 3.00pm on Christmas Day until 6.00pm on Boxing Day in each odd‑numbered year commencing in 2011.

Change-over of care of the three children

That for the purposes of facilitating Orders 3(a) and 3(b) hereof the father shall cause the three children to be collected from school at the commencement of each such period and shall deliver the three children to school at the end of each such period.
That for the purposes of facilitating Orders 3(c), 3(d) and 3(e) hereof at the commencement of time the three children are to spend with the father, the father shall cause the three children to be collected from the mother’s place of residence and return them there at the end of such time.
That in the event of the father being unable to collect or deliver the three children in accordance with these Orders then he shall make arrangements for them to be collected or delivered as the case may be by one or other of the paternal grandparents or member of his extended family unless otherwise agreed between the parties.

Telephone communication

That the father shall be entitled to telephone and have a private discussion with the three children no more than once each week by agreement and in the absence of agreement the mother shall ensure that the three children are available to speak to the father each Wednesday between the hours of 6.00pm and 7.00pm.
That when the three children are with the father pursuant to Orders 3(c) and 3(d) herein the mother shall be entitled to telephone and have a private discussion with the three children no more than once each week by agreement and in the absence of agreement the father shall ensure that the three children are available to speak to the mother each Wednesday between the hours of 6.00pm and 7.00pm.

Other orders

That the mother forthwith provide written authorisation to and request the Principal of all schools attended by the three children to provide the father at his request copies of all school reports, notices and correspondence in relation to the three children at his expense.
That in the event of any of the three children suffering from a serious illness or injury then the party who has the care of the child in question shall notify the other party as soon as possible of the details of such illness or injury and the name, address and telephone number of the relevant medical practitioner or hospital.
That each party shall keep the other informed of his or her residential address and telephone number through which the three children may be contacted.
That each party is restrained from discussing or referring to any of the evidence in these proceedings in conversation with the three children or any of them.
That each party is restrained from criticising or making any adverse comment about the other or his or her relatives in the presence or hearing of the three children or any of them and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that fashion.
That the father is restrained from having a weapon in his possession or control during any period that the three children or any of them spend in his care.
That the wife encourage each of the three children to address or refer to Mr T by any name other than “dad” or any other name which indicates him to be a blood relative.
That the father is restrained from questioning any of the three children in relation to the manner in which they refer to Mr T and he shall use his best endeavours to ensure that the paternal grandparents and any other person do not conduct themselves in that fashion.

Procedural Orders

That subject to the Orders made this day and any application for costs all outstanding applications are dismissed.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF2617 of 2005

Ms Nast

Applicant

And

Mr Nast

Respondent

REASONS FOR JUDGMENT

Introduction

In these parenting proceedings each of the parties seeks an order that the three children of the marriage (“the three children”) live with her or him as the case may be. Other orders are sought to which subsequent reference will be made.
The applicant (who for convenience I shall refer to as “the mother”) instituted proceedings pursuant to her Application filed 23 March 2005. Ultimately, the orders sought by the mother are reflected in the Minute of Orders which became Exhibit 3, save and except that during the course of submissions made by her counsel it was made clear that the mother sought an order that she have sole parental responsibility for the three children.
In addition, the substantive orders sought by the mother included that the three children spend periods of time with the father during school term each alternate weekend from Friday after school until the following Monday morning and otherwise for half of each school holiday period and other specified occasions. Counsel for the mother also stated during the course of his submissions that the mother sought an order that would enable the children to reside with her for the first half of the mid-term school holiday period. In addition, injunctive relief was also sought to be granted against the father to which subsequent reference will be made in this Judgment.
By his Response filed 14 April 2005 the respondent (who for convenience I shall refer to as “the father”) also sought orders that the parties have joint responsibility for the long term care, welfare and development of the three children and that the mother have “contact” with them as may be ordered. The terminology used in the Response was appropriate at that time as the substantial amendments to the Act did not come into force until 1 July 2006.
During the course of the hearing the father sought orders in accordance with Exhibit 4. The substantive orders so sought by him included that the parties have equal shared parental responsibility for the three children; that the three children live with him and spend periods of time with the mother, which in essence is the mirror image of the orders sought by mother. During the course of submissions made by counsel for the father, he stated that the father also sought an injunction against the mother restraining her from allowing the three children or any other them to call or refer to the mother’s husband Mr T as “dad”, “dad [T]”, or “uncle [T]”. Mr T is not a party to these proceedings although he did give evidence in the mother’s case.
The independent children’s lawyer sought orders in accordance with Exhibit 15. The substantive orders so sought are that the mother have sole parental responsibility for the three children; that the three children live with her; and otherwise spend periods of time with the father in similar terms to those sought by the mother. Amongst the orders so sought is an order that each party be restrained from “physically disciplining the children or any of them, or from permitting any third parties so to do”. During submissions an order was also sought restraining the father from having a firearm in his possession at any time that the three children are in his care.
The parties cohabited for a period of approximately six and a half years which commenced on their marriage in 1998 until they separated during 2003 followed by a number of short separations with the final separation occurring on 13 March 2005.
The marriage was dissolved by Decree Nisi which became Absolute on 6 September 2006.
The father is 32 years of age and is unemployed.
The mother is 29 years of age and occupied in home duties.
The mother married Mr T on an unspecified date.
The mother and Mr T have one child L who is two years of age having been born in August 2007.
The three children of the marriage are:
(a)C who is 11 years of age having been born in May 1998.
(b)S who is 10 years of age having been born in February 2000 (nine years of age at the time of the trial).
(c)Z who is six years of age having been born in September 2003.

Historical background

The following are further brief relevant historical matters.
On 31 May 2003 an interim apprehended violence order was made against the father for the protection of the mother.
On 6 June 2003 and interim apprehended violence order was made in the Local Court against the father for the protection of the mother.
On 1 August 2003 the father was convicted on the charge of assault, being an assault on the mother. A warrant was issued for the father’s arrest.
On 7 October 2003, in relation to the conviction, the father was placed on a bond for two years not to assault, molest, harass or otherwise interfere with the mother or incite any third party to do so.
On 13 March 2005, being the date of the final separation of the parties, the mother’s case is that she was forced out of the former matrimonial home at M due to the father’s violence and thereafter the three children resided with the father at his parent’s home at M until orders were made on 14 April 2005.
On 14 April 2005 Registrar Messner made interim parenting orders which provided for the three children to live with the mother; that the father return the three children to her by 5.00pm 15 April 2005; and thereafter the father have contact with the three children in a four week cycle for the first three weekends from 9.00am Saturday to 5.00pm Sunday commencing 23 April 2005. Other parenting orders were made. Changeover of care of the three children as between the parties was to be implemented at McDonald’s by the paternal grandmother or paternal aunt on behalf of the father and by the mother directly.
On 9 June 2005 the father’s application for review of the orders made 14 April 2005 was withdrawn and dismissed. The father was ordered to pay the mother’s costs of $650.00.
In or about October 2005 the mother commenced to live in a domestic relationship with Mr T.
On 3 November 2005 an apprehended violence order was made against the father for the protection of the mother.
On 6 December 2005 the father was convicted on the charge of assault, being an assault against the mother, and given a 12 month suspended sentence of imprisonment.
On 25 January 2006 an application by the mother to vary the existing apprehended violence order was dismissed.
On 28 and 29 June 2006 Johnston JR made a finding that the mother had contravened current parenting orders. The parties were ordered to participate in an initial assessment at Unifam for the post-separation parenting program “Keeping in Contact” and to attend such a program if assessed as being suitable. Orders were made by consent in relation to periods of time to be spent by the father with the three children. The mother was ordered to pay the father’s costs of $1,000.00.
In the latter half of 2006 the father and his then partner Ms X separated.
On 3 October 2006 the father was convicted on the charge of possessing a prohibited drug. The relevant drug was cocaine. The father was fined $300.00 and court costs.
In December 2007 in the District Court of New South Wales the father’s conviction in the lower court of driving whilst disqualified was confirmed. The father was sentenced to 250 hours community service and disqualified from driving a motor vehicle for two years.
On 28 June 2008 the proceedings were transferred by the Federal Magistrates Court to this Court. An independent children’s lawyer was appointed. Short-term parenting orders were made. An updating family report was ordered.
On 24 September 2008 a child expert was appointed for the purposes of preparing a single expert’s report.
On 11 December 2008 an order was made for the appointment of Dr R, child and family psychiatrist as the single expert in place of the previously appointed expert.
On 20 April 2009 pending charges against the father under the Drugs Misuse Act (Qld) 1986 were withdrawn against the father by the Director of Public Prosecutions and then dismissed.
In May 2009 in the … Magistrates Court the father pleaded guilty to one count of possessing a weapon with altered identification marks and one count of unlawful possession of a weapon. The father was fined $1800.00 in relation to both offences. A further charge of possessing a utensil/pipe was withdrawn against the father on that date and dismissed.
On 12 May 2009 I fixed the substantive proceedings for hearing for four days commencing 24 August 2009. Directions were made. The following issues for determination were crystallised:
(a)views of the children in relation to any relevant matter;
(b)the nature of the relationship that the children have with the parties and extended family members including the mother’s youngest child;
(c)the capacity of the parties and their extended family members to provide for the physical, emotional and intellectual needs of the children;
(d)the likely effect on the children should there be a substantial change to the periods of time that they currently live with each parent;
(e)family violence;
(f)the nature and extent of communication between the parties in relation to matters affecting the children and the proposals of the parties to improve such communication; and
(g)proposals of the parties for the ongoing care and upbringing of the children and the role that the other party should carry out in that regard.
Directions were made to ensure that the matter proceeded fully prepared.
On 24 to 26 August 2009 the hearing of the substantive proceedings proceeded.
On 22 February 2010 an Application in a Case was filed on behalf of the father seeking to re-open his case. That application together with an affidavit in support filed on the same day were served.
Today, that application together with the Response filed in Court today and affidavit of the mother were listed before me. The solicitors for the parties and the independent children’s lawyer had previously been given notice that Judgment was due to be delivered today. That notice preceded the father’s application to re-open his case. Fortunately, for the parties and their children the issues were resolved. The agreement reached was that should either party seek to alter periods of care that he or she may have with the three children then that party will provide the other with seven days written notice with a view to attempts being made to reach agreement. Obviously, prior arrangements for the three children may remain an obstacle. In that event, the parties should seek to make alternative arrangements. In addition, it was also agreed that the parties should use email for the purpose of communication direct between them without involving the three children. Each party informed me that she or he no longer had any concern regarding the actual email address that was used for that purpose. It was emphasised on their behalves that the content of email must be provided by the party sending it. It was further noted that the three children should retain or obtain, if necessary, separate email accounts so that none of them can access the parties’ emails to each other.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
A Court must regard the best interests of the child as the paramount consideration.
That provision is re-emphasised in s.65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s.60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
·“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (emphasis added);
·protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence;
·ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children.

The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s.60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60

I make the following findings in relation to relevant matters that underpin the considerations set forth in this sub-section.

Views expressed by the three children and other relevant factors

The evidence of the father is that each of the three children have expressed clear views of wanting to live with him, although part of the evidence is put on the basis that the two youngest children are concerned to spend more time with him.
Whilst the mother does not deny that the three children love the father it was clear from the tenor of her evidence, she considers that they prefer to live with her.
Written and oral evidence was given by the appointed single expert Dr R, child and family psychiatrist. Dr R’s report is Exhibit 2. Dr R was also cross-examined. I found that Dr R’s evidence and the manner in which it was given, whether by way of Exhibit 2 or in his subsequent oral evidence, was impressive by the professional and considered way in which he dealt with a myriad of topics. I accept the whole of his evidence in relation to all matters to which it was directed, unless otherwise stated in this judgment.
The views of each of the three children are provided in Exhibit 2 with less detail so far as the youngest child is concerned. That is understandable given the child’s very young age.
In Exhibit 2 C is recorded as expressing the view that it may be best for her to be with the mother but that she also wanted to be with the father. It is not clear from that passage in Exhibit 2 whether she was expressing views of preference or indicating a greater period of time with the mother as opposed to the father with whom she also wanted to spend time.
C also stated that she was “very upset about writing a note about killing herself if she couldn’t stay with her father” she made it clear that she did not mean what she had written and that at the time she was “upset and angry”. C also expressed her concern that the father should be a calmer person and she did not know what was wrong with him. Her view was that she could speak with her mother. C worried about her father becoming angry.
Dr R summarised the position in relation to C’s views by concluding that C was happier with the mother however, she still wanted to have frequent time and contact with the father. Dr R pointed out that C being the eldest child is particularly aware of the issues and under a great deal of pressure between the parties although under less pressure with the mother and Mr T. Dr R’s conclusion concerning C is that she cares a lot about her father and wants to spend time with him but feels “somewhat intimidated by [the father] and doesn’t want to upset him”.
With regard to S, Dr R recorded that S expressed the view that the parties should be together and that he was upset by having to “keep coming and going” although the word used was “dizzy”. S implicitly expressed the view that in relation to the father he was “happy with 3 weekends a month”.
In Exhibit 2, Dr R summarised the position in relation to S by expressing the opinion that he was:
…rather confused. He looks to [C] for a lead.
Dr R also provided the summary that S “is aware that [the father] becomes angry and upset and is anxious about [Mr T]”.
Dr R concluded that in his opinion S “would be happy to live with either parent”.
Z is now aged six years and was five years old at the time of interview with Dr R. Dr R noted that Z enjoyed seeing the father and spending time with the mother and Mr T. Dr R quoted her as saying “I want to live mum and dad, and step-dad”.
During the course of his oral evidence Dr R stated that C said different things in front of each party to please that particular person and that her “fear” was not genuinely held.
Dr R appeared to accept that C was tricked to say bad things against the mother. In addition, the three children were confused and wanted to please both parties. In relation to a letter written by C, Dr R was of the view that the tone of the letter suggested that C was “under a great deal of pressure” and wanted the conflict to end.
I find that the views of each of the three children are expressed and summarised by Dr R and affected by the factors referred to in that evidence to which earlier reference has been made.

The nature of the relationship of the three children with each of the parties and other persons

I accept the evidence of Dr R as summarised in Exhibit 2 that:
…the children all had a close loving relationship with the mother. They appeared to be developing well in her care and were strongly attached to her. The mother appeared to be a confident and calm sensible person…She appears to be insightful and has good intuition about children…I believe she supports a relationship between the children and the father and does want to support that.
There was little if any challenge to the opinions of Dr R during the course of his cross-examination. I accept Dr R’s evidence and make findings accordingly.
I also accept Dr R’s opinion that “the children appear to relate very easily” to Mr T.
Dr R emphasised in his opinion “the children still recognized [Mr Nast] as their father and recognized [Mr T] as a step-father”.
In Exhibit 2, Dr R concluded:
…that the children cared a great deal about their father and that the father also cared a great deal about the children. I believe that he is a capable caring parent and that he wants to continue to have a major role in the children’s lives.
According to Dr R the father quite clearly has difficulty in coming to terms with the mother’s relationship with Mr T. Dr R is of the firm view that the father appeared “very threatened” by that relationship and that Mr T “has a major role with the children”.
The evidence of Dr R is that the father is very insecure so far as his relationship with the three children are concerned in that “He is very threatened by the fear that the children will relate to [Mr T] more as a father figure than him”.
Unfortunately, the father’s insecurity has led him to question the three children particularly in relation to the topic of whether or not the mother and/or Mr T insist on them calling Mr T “dad” which has led to the father and possibly the paternal grandparents denigrating Mr T in front of the three children. In Dr R’s opinion that undesirable conduct by the father and the paternal grandparents represent “a reflection on [the father’s] anxiety” with the result being that the father “unwittingly is placing a great deal of pressure on the children particularly [C] and [S]”.
Dr R clearly was concerned as to the effect of the pressure that the father is placing upon C and S and expressed the firm view that:
[C] appears to feel under great pressure to support her father. She is very worried about him.
Indeed, there are disturbing aspects of the father’s anxiety quite apart from the pressure that he is placing upon the three children, especially the two eldest children. C informed Dr R that:
Dad’s okay when he’s calm. He used to trick us to try to get us to be against our mum.
Dr R concluded that the father’s behaviour may well represent a self-fulfilling prophecy and summarised the problem as follows:
However, the risk is the more that [the father] puts pressure on the children to not relate to [Mr T] as a father, ironically this will distance the children from him and as a result create a gap with him and therefore, a greater closeness with [Mr T]. [The father] in effect, is creating the problem that he is fearful of occurring.
There is no issue that the three children have a close relationship between themselves allowing for the occasional dispute that does not appear to be extraordinary.
The three children also have a close relationship with the paternal grandmother and has been an important figure in their lives. There is very little evidence in relation to the depth of the relationship between the three children and the paternal grandfather. There is disturbing evidence, which I accept, that he has hit S. I will refer to this matter and the paternal grandparent’s denigration of the mother and/or Mr T subsequently in the Judgment.
The three children also appear to have a fond relationship with members of the father’s extended family.
I accept the evidence that the three children also have a fond relationship with Mr T’s mother.
Accordingly, I make findings that the nature of the relationship between the three children with each of the parties amongst themselves and other adult family members to whom I have referred is in accordance with the evidence that I have accepted as previously described.

Family violence and family violence orders

There have been apprehended violence orders made against the father for the protection of the mother as well as the father having been on a charge of assault (on two separate occasions). In each instance the father assaulted the mother. Details of those orders and convictions are set forth in paragraphs 16, 17, 18, 23 and 24 hereof. The evidence of the father is that on one occasion, either an order or conviction was made in his absence. There is no record of the father having appealed.
The evidence of the mother is that the father has been physically violent towards her for a considerable period during their cohabitation.
The mother alleges that on or about 31 May 2003 she was assaulted by the father and suffered injuries to her face and knees. Following a complaint made by the mother to police, an apprehended violence order was made against the father for her protection. The father was also separately convicted on a charge of assault on the mother.
On or about 31 May 2003 the father ceased to live with the mother in the matrimonial home for unspecified period which implicitly was relatively short.
The mother also alleges other occasions of physical assault by the father which caused bruising to her, and at times, such assaults took place in front of the three children.
The parties have had a number of separations for unspecified periods of time, although apparently quite short.
The mother alleges that on 13 March 2005, following an argument between the parties in the matrimonial home where the three children were also present, the father severely assaulted her by punching her in the face and head as well as slapping her face. The mother contends that she fainted. A short time thereafter, on that occasion, the father threatened the mother with a kitchen knife of about 15 centimetres in length whilst shouting at her to “sign this piece of paper so that I have custody of the three children”. The mother refused. Following a telephone call made by the father, his brother and sister arrived. The mother contacted the paternal grandmother who also then arrived. The paternal grandmother left with the three children. The mother left the home.
The mother reported the incident referred to in the previous paragraph to police. Subsequently, on 3 November 2005 and 6 December 2005 an apprehended violence order was made and the father convicted on a charge of assault previously referred to in paragraphs 23 and 24.
The mother was cross-examined at some length in relation to her affidavit evidence of violent behaviour by the father to her. During the course of that cross-examination it appeared that her affidavit evidence reflected in at least of two of her affidavits were not consistent so far as her allegations of violent behaviour repeatedly occurring.
However, the balance of her oral evidence was consistent with her affidavit evidence in relation to specific incidents particularly those which ultimately led to apprehended violence orders being made and the 2005 charge of assault against the father in respect of which he claimed that he pleaded guilty. The details of those orders and convictions are set out in paragraphs 16, 17, 18, 23 and 24. To that extent the mother’s evidence is substantiated.
The affidavit evidence of the father is that there are two incidents of violence in the past. The first of such incidents occurred prior to separation. He states that he was charged with assault and intended defending the charge. He missed a third court event and was convicted in his absence.
With regard to the second incident he states that occurred in March 2005 prior to the final separation. The father claims that the mother disclosed that she was having an affair and had been “cheating for some time”. The father then states that the parties commenced screaming at each other and they were both pushing and slapping each other. The father further states that after the mother threw her mobile phone at him he “tried to clam us both down” the mother allegedly tried to hit him from behind and he managed to push her away. The father states that “as a result of this argument I was charged with assault pleaded guilty and was convicted”.
During the course of his oral evidence the father claimed that he could not recollect the first time he was arrested for assaulting the wife nor could he recollect that she was left with a bleeding lip. The father could not explain injury to the mother’s lip.
The father also gave oral evidence that he could not recall the police interview.
With regard to the incident on 13 March 2005 the father confirmed that he had pleaded guilty and accepted responsibility. In addition, the father apologised and stated that he had not done so before because this was the first time he had “taken the stand”.
The father’s sole evidence also was that he could not remember when he was arrested nor could he remember a police report of bruising on the mother’s face. The father was not sure if there were two charges including assault occasioning actual bodily harm.
In his affidavit the father attempted to excuse his inexcusable violent conduct to the mother by his claims that he had discovered that she had been “cheating” on him for some time.
I accept the mother’s evidence in preference to that of the father wherever they conflict in relation to the evidence that each gave with respect to the father’s violent behaviour towards her and the surrounding circumstances. From my observations of the father in the witness box, including the manner in which he gave his evidence as well as its content, I am not persuaded that he has had the loss of memory in relation to a number of matters which he claimed he had. The father’s memory was faultless so far as a description of a television set having been broken by C and that at one point he was holding Z in his arms. Yet, in relation to more serious matters of the father’s violent behaviour towards the mother, injuring her and a police interview, claimed he had a failure of memory.
In addition, it was disingenuous to say the least to claim in his first affidavit that he was charged with assault as a result of an “argument”, rather than being honest and direct by stating that the charge followed his violent behaviour towards the mother.
The father’s evidence in relation to another episode involving the police to which I will now refer reinforces my conclusion that not only is the mother’s evidence to be preferred to that of the father in relation to the issue of family violence, but also has led me to conclude that the father has poor credibility as a witness of truth. That episode is as follows.
The oral evidence of the father is that he entered a motor vehicle in M in which there were two other males. Meeting those two men had not been pre-arranged. The father spontaneously decided to go with these two men, one of whom he did not know, “on a drive to Queensland”. The father had been wanting to go on a drive to Queensland.
The father and the two men travelled in the vehicle to B, Queensland “for the drive”. The father did not have friends in B and had not been there before.
The father had in his possession during the course of that trip a .45 calibre pistol which he claimed he just happened to find in a park near the M swimming pool about a week prior to the trip taking place. The father also claims he did not know that he had a magazine with six bullets and retained the pistol “to show off to associates, to make himself look good”.
An Affidavit was sworn by Mr D on 31 July 2009 filed 10 August 2009. The deponent is a solicitor whose firm acted for the father in relation to a number of charges under the Drugs Misuse Act (Qld) 1986 and in relation to additional counts of “possessing a weapon with altered identification marks” and “unlawful possession of a weapon” pursuant to the Weapons Act (Qld) 1990.
Annexure “A” to the affidavit of Mr D is a copy of the police court brief. The brief is detailed. It describes the investigation carried out by the police including monitoring through telecommunication devices of both the father and the two other males. A summary of the recordings that were made is also given.
Ultimately, the drug charges were all withdrawn by the Director of Public Prosecutions and then dismissed by a Magistrate. Given the content of the police brief, that appears on the face it an extraordinary turn of events.
The father pleaded guilty to the Weapons Act offences. The fines in that regard are previously referred to in this Judgment.
I do not accept the father’s oral evidence in relation to him travelling to Queensland and the purpose of it, nor do I accept his evidence in relation to him having found the subject pistol. In summary, the father would have me accept that he decided one day to travel to Queensland because he had always wanted to go on a drive to that State, with two men one of whom he did not know, as a result of a spontaneous meeting with them. The father also asked me to accept that he inadvertently found the pistol with its serial numbers erased and kept it with him to show off. I find that evidence to be ridiculous in all respects. A mild description of the father’s evidence would be that it is fanciful.
In contrast, I find that the mother gave her evidence in a straightforward honest manner, making concessions where appropriate.
Another matter that is relevant to the father’s credibility as a witness is his evidence in relation to injuries suffered by him in 2007. The substance of the father’s evidence is that he suffered a work accident whilst working on a ladder at the paternal grandfather’s premises where he slipped, fell and suffered a broken rib. The father attended hospital. The father acknowledges that the hospital clinical notes did not carry an explanation by him as to what occurred because he did not provide that information.
The father also concedes that he did not inform his general practitioner that he had fallen from a ladder.

The father denied having been attacked, and suffered injuries as a result. I do not accept the father’s evidence regarding the cause of the injuries suffered. I am not satisfied on the balance of probabilities as to the true causes of such injuries.
The father stated that he had previously had a security general licence which was cancelled in 2003 due to him being convicted on the charge of assaulting the mother. The father stated that he had also kept in his possession two rifles and five pistols. No evidence was given by the father to explain why he felt it necessary or desirable to have that armoury.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the three children and the other party

I accept the evidence of the mother that she is both willing and able to facilitate and encourage the relevant relationship between the three children and the father. Indeed, there was little if any challenge to the mother’s evidence in that regard. I make a finding accordingly.
So far as the father is concerned, I find that his willingness and ability to facilitate such relationship is significantly qualified. That is due to his negative attitude towards the mother and in particular Mr T brought about in part by his feelings of anxiety and insecurity, the subject of my earlier findings.
There is also evidence of the negative attitude to each of the mother and Mr T so far as the paternal grandmother is concerned with whom the father has a close and continuing relationship. I find that the impact of the paternal grandmother’s attitude also negatively affects the father in relation to this particular matter.

Practical difficulty and expense of the three children spending time with and communicating with a parent and the effect on their right to maintain personal relations and direct contact with both parents on a regular basis

Whilst the parties do not live in adjoining suburbs, it has not been suggested in their evidence or on their behalf that there is practical difficulty and expense relevant to the issue raised by this particular matter.

The capacity of each of the parties and any other person to provide for the needs of the three children including emotional and intellectual needs

An issue of concern is the adverse impact on the parental conflict with its consequential added pressure for the three children due to the continued controversy of them referred to Mr T as “dad” or the prospect of calling him “dad [T]” or any other description which shows a family relationship. It is obviously difficult for the three children, especially the youngest child, to appreciate the significance of using one or other of those descriptions in describing their relationship with Mr T who has been very supportive of them and the mother in all respects including filling the vacuum of financial support such as payment of school fees and a range of other expenses such as medical and dental which were and remain the responsibility of the father. It is ironic that the father, who wants to be regarded as the father figure in the three children’s lives, yet abdicated that role subsequent to separation as illustrated by the paltry child support that he has provided, notwithstanding other expenses that have been met by him from time to time which are relatively minor in the overall scheme of the three children’s expenses and the financial support that he should have been providing. I will refer further to the father’s capacity to provide for the needs of the three children in subsequent paragraphs.
There is no issue that the mother has the capacity to provide for the physical and intellectual needs of the three children.
I also find that emanating from the mother’s undoubted love for, and dedication to the three children, she has the capacity to provide for their emotional needs with some qualification. That qualification is that the mother has not always appreciated the needs of the three children, especially C, to be more involved with the father and the paternal family rather than being immersed in the parental conflict. That was illustrated by the unfortunate approach to the desire of the three children, particularly C, to be part of the wedding party for a sister of the father. To the credit of the mother, she recognised that subsequently in her evidence.
Mr T has a proven capacity to provide for all of the needs of the three children, save and except that he has been remiss in attempts that should have been made by him to ameliorate the issue of the reference of him by the three children which has only exacerbated the parental conflict with the father with which the three children have had to cope. The fact that a contributing factor has been the father’s feelings of insecurity and anxiety when a more mature and secure person may have acted otherwise, is of no consolation so far as the emotional difficulties with which the three children have had to cope.
In addition, Mr T taking the three children to view a court, regardless of the well-meaning motivation behind that action, which I accept, was not a decision for him to make. That is the responsibility of the mother and father, or if they could not agree then advice should have been sought by them of an independent expert in children’s matters such as Dr R.
However, overall Mr T has done his best to support the mother in creating a beneficial family environment for the three children and to meet their needs so far as he has been able to do so.
The father has the capacity to provide for the needs of the three children in all respects subject to a number of qualifications referred to in the following paragraphs.
With regard to accommodation for the three children, the father’s capacity is dependent upon the paternal grandparents. The father lives in the paternal grandparents’ home and it has all the necessary features and facilities appropriate for the three children whether they are there for limited or extended periods of time including overnight.
The paternal grandmother in particular has had many years direct involvement in the care of the three children. There is no suggestion that she will do anything other than to continue to provide that support. Indeed, the situation is one in which it is the paternal grandmother who has demonstrated the primary capacity to meet the physical needs of the three children in and about her home and the role of the father has been to support her, rather than the reverse.
In the period from separation to the completion of the evidence the father has provided paltry child support. There was no challenge to the evidence of the mother, which I accept, that following the final separation of the parties, the father’s child support payments were $260.00 per annum for two years.
In 2007 the father’s child support assessment was $320.00 per annum. No payment had been made as at 27 June 2007 being the date on which the mother had sworn her first affidavit in these proceedings.
In 2008 the father paid the last mentioned amount which is negligible. In that same year the father failed to meet medical expenses of $410.00 to Dr H and $532.00 to the medical practitioner who carried out a procedure at G Hospital.
From about August 2008 with a hearing about to take place in the Federal Magistrates Court the father commenced paying $291.00 per month and also provided pocket money to the three children from time to time. Four years of school fees for the three children were paid by the mother with the assistance of Mr T without any contribution by the father. Exhibit 13 demonstrates that there was an improvement in the father’s actual payment of a variety of expenses for the three children in 2008.
The financial support that the father has provided, apart from the negligible child support assessment to which I have referred, has included payment of certain expenses as illustrated by Exhibit 13. However, those payments have been irregular and the father has at times avoided his responsibility to meet health expenses for the three children.
The affidavit of the father’s sister, whose occupation is given as “solicitor” is one which I do not accept, particularly paragraphs 6 and 7, apart from paragraph 5 which deals with the separate topic of the views of the three children. The essence of the father’s sister’s affidavit (paragraphs 6 and 7) is that the father has the demonstrated ability to financially support the three children in a range of expenses. The objective facts are the reverse.
The history of the father neglecting his responsibility to pay regular and appropriate levels of financial support for the three children precedes the final separation of the parties as demonstrated in the affidavit of the mother sworn 27 June 2007. I make findings accordingly as it was not challenged. Indeed, the evidence before me reveals that the Child Support Agency reported the father’s income as being zero for the financial years 2003/2004. Interestingly, the father contradicts that assessment in paragraph 8 of his Affidavit sworn 6 July 2007 in which he states that “up until the date of separation I was involved in full-time employment”.
The father’s Affidavit sworn 10 August 2009, paragraphs 60, 61 and 62 makes it clear that his financial position and capacity to meet the reasonable needs of the three children are largely if not exclusively dependent upon the paternal grandparents.
In that regard, I have made previous findings on the evidence before me. The father has been mostly unemployed in a practical sense so far as earning income for most of the period since the separation of the parties. Money that the father has provided to meet the three children’s expenses, on his own evidence, has been derived not through his work and endeavours, but through the generosity of the paternal grandparents. It is disappointing to say the least that a solicitor would swear an affidavit without checking the facts first. It is an illustration of personal and family relationships being an obstacle to the giving of accurate evidence which is a basic obligation of a legal practitioner, let alone any witness.
A further qualification to the father’s capacity to provide for the physical needs of the three children in terms of ensuring a safe environment for them is his history of the weapons that he has kept in his possession or control, whether in his premises or otherwise on his person, to which subsequent reference will be made.
Whilst the father has a loving relationship with the three children, he lacks maturity or insight. That is demonstrated by the father allowing his own feelings of anxiety based upon insecurity in his parental relationship and recognition of that role by the three children to become a problem, to which I have earlier referred.
The pressures that the father has created, and the impact of stress upon the three children, particularly C, are the subject of previous findings made by me largely based upon the evidence of Dr R. It is unfortunate that the father did not recognise that he does have a loving relationship with the three children and the father should be secure in that relationship without his questioning them in terms of their relationship with Mr T, the mother, or the manner in the three children have addressed Mr T from time to time.
I do not accept the father’s evidence that he has been so distracted by these proceedings that he has been unable to be engaged in his family business and thereby earning income to enable him to fulfil his parental responsibilities of providing financial support for the three children on a consistent and regular basis at an appropriate level. Indeed, the father’s own inactivity has meant that the difficult and less glamorous aspects of financial support for the three children have had to be borne by the mother with the practical assistance of Mr T, the person with whom the father is resentful, insofar as Mr T’s relationship with the three children is concerned.
It should have occurred to the father that if he wanted to demonstrate his role as a father concerned with all aspects of the three children’s welfare and needs, then he needed to work and earn money for their support, rather than the easy option of just playing with them at the paternal grandparents’ home.
A significant further qualification to the father’s capacity to provide for the three children’s needs is represented by subsequent findings made by me in relation to the issue of family violence, family violence orders, and unsavoury activities. The latter is the subject of findings in earlier paragraphs.
I find that the father does have the capacity to provide for the intellectual needs of the three children in terms of the encouragement he has provided to them.

The parental attitude of each of the parties

I find that the mother has an exemplary parental attitude. The mother has supported the three children on a daily basis to the full extent of her ability to do so since the parties finally separated.
The mother has been assisted in the financial support of the three children by the financial support made available by Mr T.
So far as the father is concerned I accept that he has an appropriate parental attitude in terms of his display of love for the three children and being engaged with them in various activities during the course of periods of time that they have spent with him and the paternal grandparents as well as other members of the father’s extended family.
The father’s parental attitude so far as financial support of the children by regular and appropriate payments made directly or indirectly to the mother, has been unsatisfactory.
There is an absence of evidence of the father’s proposals to be reengaged on a full-time or indeed any other regular basis in his family’s business in order to generate income so as to provide appropriate, regular and reliable child support for the children or, indeed any proposal by him in that regard in the context of the three children continuing to live with the mother.
The father does propose that the children live with him in the paternal grandparents’ home. Consequently, his proposal for their future care is heavily dependent upon the paternal grandparents so far as their provision of accommodation and financial assistance to the father are concerned.
Poor communication between the parties reflects indirectly upon their individual parental attitudes. It is virtually non-existent. Relaying messages through the three children, even if it is only the eldest child is clearly an inappropriate manner of communication due to the pressure that it places upon a child. That should be obvious to responsible parents. Indeed, each of the parties has acted inappropriately in relation to important events for the three children.
The father arranged baptism of the youngest child which took place in June 2005. It seems internally contradictory that what is supposed to be a spiritual occasion for the child and members of her immediate family should not only take place in the absence of the mother, but also without her receiving any prior notice. The father’s actions in that regard for which he must take full responsibility reflect poorly upon him. One can only wonder at the reasons, if any, given to the officiating priest by the father to explain the mother’s absence from such an important event in the life of the child.
So far as the mother is concerned, carrying out negotiations for the purpose of deciding whether or not to permit the three children and particularly the eldest child attending and taking part in the wedding ceremony for a sister of the father shows a lack of maturity and an absence of the mother being child-focused in relation to those particular circumstances.
The mother during the course of her evidence acknowledged that she did not act appropriately in relation to that particular event.

The maturity, sex, lifestyle and background of the three children and with either of the parties

I find that the three children being two girls and a boy have the maturity commensurate with their ages.

The likely effect of any changes in the three children’s circumstances including the likely effect on the children of separation from the mother or any other person with whom the three children have been living

The three children have been primarily cared for by the mother for a substantial part of their lives. Indeed, so far as the two youngest children are concerned, that includes most of their lives given that the parties finally separated on 13 March 2005.
The likely effect of any changes in the circumstances of the three children include the matters set out in the following paragraphs.
Given the close attachment that the three children have with the mother, a likely effect is that they would face significant adjustment issues, particularly trauma so far as the two youngest children are concerned in the event of them no longer living with or being under the care of the mother on a daily basis. The evidence does not permit me to conclude as to how long, if at all, it would take them to adjust to such a change in trauma without them being emotionally damaged.
A consequence of such a change would also be that the three children would be in the care of the mother on a periodic basis, perhaps for a minor part of the week apart from more significant periods such as half of school holidays. It is implicit from Dr R’s conclusions that the likely effect of such changes may be detrimental to the emotional well-being of the three children.
A further likely effect of changes to the three children’s circumstances includes the benefit of the loving relationship that they have with the father as well as the paternal grandparents especially the paternal grandmother.
Another likely effect on the three children is that living on a daily basis in the household of the father and paternal grandparents they may well be subjected to a continuation of questioning by them of matters pertaining to their relationship with the mother and Mr T as well as criticism or denigration. Notwithstanding that an order may be made preventing such conduct, there are obvious difficulties in it being enforced.
Turning to the likely effect of a change in the schools the three children attend, I find, absent evidence to the contrary, that the three children are likely to make adjustment to such a change given that they are children commensurate with their ages, subject only to the qualification of the effect on them of the change from living in one household under the primary care of the mother to that of the father and paternal grandparents.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the three children

The parties have had a volatile relationship. Communication between them is poor.
The father is distrustful and anxious so far as the relationship between the children and Mr T is concerned.
Regardless of the parenting orders that may be made, the likely ongoing parental conflict extended to include indirectly members of the paternal family on the one hand and Mr T on the other represents the potential for further proceedings being instituted.
Consequently, I am not satisfied that I can reasonably make a prediction of one particular parenting order of substance being least likely to lead to the institution of further proceedings in relation to the children compared to another parenting order. Indeed, no submission was made in relation to this complex matter.

Conclusion

Section 61DA provides the presumption of equal shared parental responsibility in favour of the parties.
The father seeks an order that reflects this presumption.
The mother during the course of counsel’s submissions and the independent children’s lawyer both seek orders providing for the mother to be granted sole parental responsibility for the three children on the ground of family violence.
Section 61DA(2)(b) provides that the presumption of equal shared parental responsibility does not apply “if there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of a child) has engaged in…family violence”.

I have made findings that the father has engaged in family violence towards the mother. The father has been found guilty on two separate occasions of charges of assault arising out of his conduct towards the mother and there have also been apprehended violence orders made against him for her protection.
As a consequence of the aforementioned paragraphs, and also taking into account the findings of the father’s violent behaviour towards the mother, I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence as set out in s.61DA(2)(b). Once that ground has been established there is no discretion as to whether or not the presumption of equal shared parental responsibility no longer applies. The conclusion that such a presumption does not apply simply follows the establishment of the ground of “family violence”.[3]
[3] Damiani and Damiani (2) (2009) FamCAFC 215
The issue still arises as to whether or not I may make a parenting order that provides for equal shared parental responsibility, notwithstanding my conclusion that the provisions of s.61DA(1) do not apply. The reason is that a parenting order may only be made should it be in the best interests of a child or children to do so and that is the paramount consideration.[4]
[4] Section 60CA; Damiani ibid.
I have determined that an order will be made for sole parental responsibility as sought by both the mother and the independent children’s lawyer. My reasons are as follows.
The mother has been the prime carer of the three children since the parties finally separated four and a half years ago. During that period the mother has provided the daily emotional support and physical caring of the three children including their financial support in all respects, except for irregular and negligible amounts of child support and payment of expenses that have been made by the father albeit an improvement in that respect since about August 2008.
The financial support provided by the mother with the significant assistance of Mr T has included daily living expenses, school fees and expenses, medical and dental expenses. As I have already stated there have been irregular and negligible amounts of financial contributions made by the father in this regard.
The mother proposes to continue meeting her financial responsibilities for the foreseeable future.
Whilst the father’s evidence is that he will continue to provide for the three children, it is obvious from not only the evidence and in particular the father’s affidavit evidence that he is heavily, if not exclusively, reliant upon the paternal grandparents for their financial assistance. Though it is not unknown that family financial assistance can be provided by family members to a parent, what is remarkable in these proceedings is that the father did not give any evidence of his proposal to re-engage in employment, whether it be in the family business or otherwise, for the purpose of earning an income and also to provide an appropriate and realistic level of reliable financial support for the three children. Instead, the father has become fixated with the relationship that the three children have with Mr T which he obviously resents, but apparently does not resent Mr T filling the financial vacuum that the father has created with regard to the financial support of the three children.
Perhaps this Judgment will represent a motivating force for the father to demonstrate that actions speak louder than words and that he will fulfil the responsibilities of a parent to make provision for appropriate and reliable levels of financial support for the three children, rather than criticising Mr T and the mother.
Communication between the parties has been poor. I have made findings in that regard including the unfortunate actions of the father in relation to the baptism of Z; and the mother with regard to the participation of the three children of the wedding ceremony of the father’s sister. There was a lack of joint proposals by the parties which showed sincerity in wanting to put the past behind them and to co-operate in a positive and constructive manner for the benefit of the three children in the future.
Consequently, I have concluded that it will be the mother who will attend to all of the significant aspects of parental responsibility for the three children in the future. There seems little point in making an order subject to conditions of consultation given the lack of appropriate communication between the parties. That is not to say that should communication between the parties improve and parental conflict lessen, then they should be able to communicate as sensible, child-focused parents on significant matters affecting the future of the three children. Should that happen then of course it will only be for the benefit of the three children who each of the parties love and want to support.
I have also determined that it is in the best interests of the three children that an order be made for them to live with the mother. The following paragraphs set out my reasons.
At the time of the final separation of the parties the three children were aged six, five and 18 months respectively. The three children have lived in the primary care of the mother since that time. Accordingly, C has spent a substantial part of her life in the daily care of the mother; S almost half of his life in the mother’s care; and Z similarly for almost all of her life. There is no issue that the three children have progressed well in all respects as a result of the care provided by the mother, substantially assisted by Mr T.
The mother directly or indirectly has also shouldered the responsibility of financial support for the three children. The father has made negligible financial contributions whether by way of fortnightly child support or payment of expenses, excepting since the latter half of 2008 his child support has increased. That does not appear to have been the result of the father’s personal endeavours, but rather relying upon the financial assistance provided by the paternal grandparents. The father’s personal commitment in terms of his responsibilities, as opposed to the paternal grandparents, has been lacking.
I have made findings that the mother has the capacity to provide for the physical, emotional and intellectual needs of the three children, although I recognise that at times the mother’s actions have not helped overcome parental conflict.
The father for his part has engaged in family violence. That is an important and prime consideration which I am required to make due to the amendments to the Act which came into force on 1 July 2006 to which earlier reference has been made. However, in relation to that consideration, I am satisfied on the evidence before me that it is unlikely that the three children or any of them will be exposed to family violence perpetrated by the father, or by anyone else in the foreseeable future. Nonetheless, findings have been made in relation to the father’s violent behaviour towards the mother on more than one occasion resulting in the father being found guilty on two occasions of assault, quite apart from the apprehended violence orders that have been made. The surrounding circumstances have occurred in the home the parties formerly occupied together at least in the hearing if not in the sight of three very small children. The father’s conduct has been reprehensible. The father apologised whilst giving evidence in these proceedings. I do not accept that the father was sincere in that apology given the intervening years between that conduct and the apology. During that period, no apology was offered. The apology was only in the context of the trial for these proceedings.
I have made findings as to the significant qualifications that must be made to the father’s capacity to provide for all of the physical and emotional needs of the three children. I do not propose to reiterate those findings and the evidence upon which it was based. It is sufficient to say that they are significant matters which militate against an order that the three children live with him.
In addition, I attach much weight to the following paragraph in Exhibit 2 being the report of Dr R:
There is a risk that there could be further litigation if [the father] is unable to contain his anxiety and anger about [the mother’s] relationship with [Mr T]. I believe that he should stop questioning the children about [Mr T] and the mother. He is creating more problems by asking constant questions. There should be no interrogation of the children about their time with the other parent and what the other parent is saying about them. If the father is unable to alter his approach then it is very likely that he will not be able to contain his fears and anxiety and this will lead to further pressure on the children and further litigation. If there are further allegations of abuse that are found to be spurious I believe that this is extremely damaging for the children and that the time with the father would need to be restricted to perhaps day time contact for one day a month or perhaps even less.[5]
[5] Exhibit 2, p.17
An issue was raised in relation to the mother not actively discouraging the three children or any of them from referring to Mr T as “dad”. That has been a source of conflict between the parties, notwithstanding the unacceptable conduct of the father and perhaps both or either of the paternal grandparents in questioning the three children who are still young as to the manner in which they refer to or address Mr T. That conduct by the father and, if applicable, the paternal grandparents must immediately cease. It is placing pressure upon the three children which is not in their best interests. That should be obvious to any caring and mature parent and grandparent. Whatever their adverse views are about Mr T and/or the mother, that should be kept to themselves and not expressed in the presence or hearing of the three children or any of them.
I will make an order which provides for the three children to spend regular periods of time with the father during school term as well as for half of school holiday periods. The father needs to recognise that the purpose of such an order is that the three children have the benefit of spending those periods primarily in his care, rather than leaving them primarily in the care of the paternal grandparents. The purpose of those periods is to enhance the relationship between parent and child. That is not to say that the relationship with the paternal grandparents is unimportant. Quite the contrary. However, it is the father who is the parent and he should act accordingly and maximise the time that he spends with the three children in a positive and loving way, rather than utilising it as a means of manipulating the three children or any of them to say or do things which are adverse to the mother.
The father has an internal problem in dealing with the relationship that the three children have with Mr T. The father is insecure and has an anxiety in that regard. Those are the father’s personal issues which he needs to overcome so as to provide a tension free atmosphere for the three children when they are with him. I have made findings in relation to those matters. On the basis of those findings including the independent evidence of Dr R the father should not lose time in obtaining professional assistance from a psychiatrist or psychologist. It may be that the paternal grandparents should also benefit from such professional advice as perhaps they are unwittingly, if not knowingly, contributing to the pressure being placed on the three children by criticisms and/or adverse comments made about the mother or T or both.
The periods of time that will be provided for the three children to spend in the care of the father both during school term and school holiday periods will enable him to continue to have the benefit of a meaningful relationship with him as well as the mother whilst at the same time providing stability and routine for them during week days. It also recognises the distance between the premises in which the parties live as well as the travel time that is required.
The parties should feel free to be flexible in altering arrangements between them for periods of time that the three children spend with either of them taking into account the changing needs and reasonable requirements of the three children as they become older. An appropriate order will be made to ensure that the parties have flexibility in that regard.
An order will also be made for telephone communication between the three children and the parties. The three children should be able to have a discussion with one party or another in private. Calls made by the father from the paternal grandparents’ home can be utilised for the three children to also speak to both or either of the paternal grandparents rather than having separate telephone calls.
I will provide injunctive relief against each of the parties in relation to the matters of criticisms or adverse comment about the other or family members in the presence or hearing of the three children. In addition, there will be an order restraining the father from having a weapon in his possession or control during any period that the three children or any of them spend in his care. Such a possible order was not opposed.
Clearly, there must be formal recognition by way of orders as well as this Judgment restraining the father from questioning any of the three children in relation to the manner in which they refer to Mr T and requiring him to ensure that others do not conduct themselves in that manner. The mother for her part needs to recognise that she must perform an active role in encouraging each of the three children to address or refer to Mr T by any name other than “dad” or a name which appears to indicate that he is a blood relative. That should not be difficult to do over time. Should that occur, it would defuse to some extent the parental conflict.
Conventional orders will also be made to ensure that the father receives copies of school reports and related documents and that each of the parties is kept informed of any serious illness or injury suffered by any of the three children.
I will not determine the application for costs made by the independent children’s lawyer so as to provide an opportunity for submissions to be made in that regard on a date and time to be fixed by arrangement with my Associate so that submissions made are suitably informed by this Judgment.

I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 26 February 2010

[2010] FamCA 132

26 February 2010

Key Legal Topics

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Family Law

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