NEVILLE & NEVILLE - [2009] FMCAfam 901

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEVILLE & NEVILLE

[2009] FMCAfam 901

FAMILY LAW – Parenting orders – allegations of violence and denigration – children’s wishes – relocation.

Family Law Act 1975 (Cth), ss.60B(2), 60CA, 60CC, 60CC(3), 65DAA and Part VII

Irish & Michelle (2009) FamCA 66
McKillop & Jell (2009) FamCA 191
Stojanovski & Stojanovski (No.2) (2007) FamCA 1442

Applicant:

MS NEVILLE

Respondent:

MR NEVILLE

File Number:

ADC3344 of 2008

Judgment of:

Cole FM

Hearing dates:

5, 6 May and 14 August 2009

Date of Last Submission:

6 May 2009

Delivered at:

Adelaide

Delivered on:

28 August 2009

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Ian Charman & Associates

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

Johnston Withers

ORDERS

The parties have equal shared parental responsibility for the children of the marriage mainly [X] born [in] 1997, and [Y] born [in]1999 (“the Children”).
The children live with the father, Mr Neville.
The children spend time with the mother:
(a)For the school term each alternate weekend from the conclusion of school Friday to 5:00 pm on Sunday (or Monday in the event of it being a long weekend);
(b)from 9:00 am to 5:00 pm each Mother’s Day;
(c)from 3:00 pm on Christmas Day until 5:00 pm on a Boxing Day each alternate year commencing 2009 with the children to be with the father from 5:00 pm. on 24 December and to 3:00 pm on 25 December of each alternate year;
(d)from 5:00 pm on 24 December to 3:00 pm on 25 December every other year commencing 2010 with the children to be with the father from 3:00 pm on Christmas Day until 5:00 pm. on Boxing Day of each alternate year;
(e)Save as set out above for the first half of the school holidays such period to commence in 2009 and each alternate year thereafter;
(f)The mother’s time with the children:
i)In the September/October 2009 school holidays be extended by an additional two days; and
ii)In the Christmas school holidays be extended by four days;
(g)Save as set out above for the second half of the school holidays such period to commence in 2010 and each alternate year thereafter;
(h)By telephone;
b)every Tuesday and Thursday the children are with the father between the hours of 7:30 and 8:00 pm;
i)ii) at 6:00 pm on the children’s birthdays and the mother’s birthday; and
(i)at such other times as are agreed between the parties.
The time referred to in the above paragraph 3(a) be suspended during the school holiday period and from 9:00 am to 5:00 pm Father’s Day.
The children be collected from and delivered to the other party at [U].
The mother and take all such steps as are reasonably required to take the children to their reasonable sporting activities whilst they are with her.
The father provide copies of [S]'s medical reports to the mother as soon as possible.
The parties:
(a)notify the other as soon as possible of the children's health status in the event there is any serious illness or accident.
(b)be at liberty to obtain copies of school reports and photographs at their expense.
(c)be at liberty to attend at the children's schools for normal school functions and events and to attend at the said children's sporting fixtures.
The father be restrained from telephoning the children whilst they are with the mother save and except for the school term holiday breaks when the father may telephone the children every Tuesday and Thursday between the hours of 7.30pm and 8.00pm.
The parties take all such steps as are necessary to utilise a communication book for the purposes of communicating any concerns regarding the children's welfare to the other.
The parties be restrained and an injunction is hereby granted restraining each of them from:
(a)abusing, denigrating or rebuking each other or their families in the presence of the children or from permitting any other person to do so;
(b)(save and except for any discussion regarding the orders made and any future arrangements), any issues arising from the conduct of the parties in the course of these proceedings including any of the evidence provided by the parties to the Court with any of the children of the marriage and from permitting anyone else to do so.
The parties forthwith attend in person or by telephone upon a Family Advisor at the [P] Family Relationship Centre for referral to enrolment in an appropriate parenting course in the [P] region for separated parents.
The applications of the parties filed on 22 August 2008 and 3 October 2008 be otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

ADELAIDE

ADC 3344 of 2009

MS NEVILLE

Applicant

And

MR NEVILLE

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern two of the children of the parties’ marriage, namely:
a)[X] born [in] 1997, now twelve; and
b)[Y] born [in] 1999, who will be ten this year.
There are three other children of the relationship namely:
a)[G] born [in] 1989 aged twenty;
b)[Z] born [in] 1990 aged nineteen; and
c)[S] born [in] 1992 aged sixteen.
They are not the subject of these proceedings.
The children’s parents, the parties to these proceedings, cannot agree on the living arrangements and seek parenting orders.

The parties’ proposals

Ms Neville, the applicant mother, seeks orders that:
a)[X] and [Y] live with her;
b)she have sole parental responsibility for the children; and
c)the children spend each alternate weekend and half of the school holidays with their father.
Mr Neville (“Mr Neville”), the children’s father, seeks orders that:
a)the parties have equal shared parental responsibility for the children;
b)the children live with the father; and
c)the children spend every third weekend with their mother and half of the school term holidays.
In the alternative, should the mother reside in [O], he says the children should live with each parent on a week about basis.
There does not appear to be a proposal in respect of the Christmas holidays.
There is no agreed position on the orders about the time the children should spend with the other parent.

The evidence relied on

The applicant mother relies on her initiating Application filed on 22 August 2008 and her Trial Affidavit filed on 23 April 2009. She also gave evidence in the course of this matter.
The respondent father relies on his Affidavit filed on 3 October 2008, 13 October 2008, 25 February 2009 and his Trial Affidavit filed on 30 April 2009. He also gave evidence at the trial.
The report of Ms Cavanagh was admitted and she was cross-examined by both parties.

Background

The father was born [in] 1967 and is aged forty-two years this year. The wife was born [in] 1968 and is aged forty-one years this year.
The parties married [in] 1987.
It is alleged that there was a short period of separation in 2000 shortly after [Y] was born. Nothing turns on this for the purposes of these proceedings.
It is agreed that there was a period of separation from July 2004 until late 2005 when the parties reconciled.
In that period of time there were proceedings instituted in this Court and orders were made on 11 August 2004 that all five children resided with the mother and spend time with the father.
A second order was made on 18 August 2004 that [Z] and [S] (who were 14 and 12 at the time) reside with the father and [G], [X] and [Y] live with the mother. The proceedings were subsequently discontinued when the parties got back together.
The events following this period unfortunately have coloured the father’s perception of the mother’s family and had a significant impact on matters following that time and the parties’ subsequent separation in 2008.
The father in his affidavit refers to the fact “the wife’s family assisted her to go to Western Australia with the children without my knowledge and hid their location from me for twenty-nine days”. The wife also concedes that there was a three-month period from December 2004 to March 2005 when the father did not see the children.
The father refers to allegations that:
a)the maternal grandmother Ms M said in the presence of [X] that she would like to see me “locked up behind bars”;
b)the mother’s brothers Mr G and Mr A took [X] out on the farm in their ute and told [X] that they hate his father and that he was better off without him.
c)whilst [S] was sick in Adelaide and the father was with him, the wife and her brothers broke into their home and removed three “ute fulls”, a trailer full and a Tarago full of items from the home and items belonging to the children.
The importance of repeating these allegations is not so much to demonstrate the truth of the matter as to demonstrate the father’s perception of the involvement of the mother’s family and the subsequent impact that it had upon his family.
The parties reconciled in late 2005 and remained residing in [O]. They eventually ceased to live under the one roof on 2 September 2008.
Proceedings in this Court were commenced following separation and on 15 September 2008 an order was made that the children [X] and [Y] live with the mother from 5.00pm on Friday 19 September 2008 until 5.00pm on Sunday 21 September 2008.
The children lived with the father at all other times until 26 September 2008 (the next Court date).
On 26 September 2008 an order was made that pending the hearing on 15 October 2008 the children live with each of their parents as follows, namely:
a)with their father from 26 September 2008 to 10.00am on 7 October 2008; and
b)thereafter with their mother.
An order was made that the mother be at liberty to arrange for the children to attend school in [L] on 13, 14 and 15 October 2008 should she so wish.
On 15 October 2008 orders were made directing, amongst other things, that:
a)in the event that the mother remained living in [L] they reside with their mother on alternate weekends and during the Christmas holiday period from 13 December 2008 until 25 December and from 3 January 2009 until 20 January 2009;
b)the children live with their father at all other times.
In the event that the mother returned to reside within twenty-five kilometres of the township of [O] an order was made that:
a)the children live with their mother from 5.00pm on Monday until 5.00pm on the second Tuesday thereafter in each two week period; and
b)the children to live with their father from 5.00pm on Tuesday until the commencement of school on the following Monday in every other week.
On 27 February 2009 the matter was listed before me as a priority to commence on 5 May 2009.
An order had been made and a report was provided by Ms Cavanagh with an order for a further report to be made of the observed interactions between the other children, namely [S], [Z] and [G], and [X] and [Y].
The trial commenced on 5 May 2009. An application was made to re-open the evidence which was granted and the trial eventually concluded on 14 August 2009.

The evidence

Ms Cavanagh – Report-Writer

Ms Cavanagh saw the parties and the children in [L] in February, 2009.
The report prepared by Ms Cavanagh recommends that:
a)the children remain living with Mr Neville in [O] and spend alternate weekends and school holidays with Ms Neville;
b)Ms Neville find a way of taking the children to their sporting activities on the weekend she has them;
c)Mr Neville be required to provide copies of [S]’s medical reports to Ms Neville as soon as possible and each parent notify the other of the children’s respective health status if there is any illness or accident;
d)Mr Neville be restrained from ringing the children when they are with Ms Neville; and
e)Mr and Ms Neville have shared parental responsibility for [X] and [Y], although it is acknowledged that if communication with each other is not working, a communication book may help with this.
Ms Cavanagh was cross-examined by counsel for both parties.
Her evidence was that she was unable to include observations of the interaction of the children with their older siblings when she saw the family in February at [L].
This was remedied by orders of the Court of 27 February 2009.
Ms Cavanagh subsequently observed [S] and [G] with [X] and [Y] at the Court at 9:30am on 5 May 2009.
She reported that the children got on well. They engaged in good-natured teasing. The older two were mindful of the safety of the younger two, for example when [X] started to build a pyramid out of the blocks in the room.
[G] sorted out the disputes, such as they were between the children.
With respect to her report and in answer to the questions from counsel, she stated that:
a)[G] was not in [L] when the parties and the children were interviewed and there was not the funding to make any further inquiries other than that which occurred on the day;
b)she was provided with all of the documents on the file;
c)she may not have finished reading them by the time of the interview, however, all documents had been read prior to the filing of her report;
d)she understood that alienation of the children was an issue;
e)both children made it very clear that they had not been influenced when expressing their wishes - the children were clear where they wanted to live - the children did not present as having been influenced by the father;
f)when questioned about violence and the possibility that the children were afraid of the father she replied: “It is amazing what children will divulge when they witness violence, however, this did not occur” - she maintained the view that the children’s wishes were genuine;
g)she received many calls from the wife regarding the report - she commented that she had never experienced such intense pressure before - while she did not record the dates on which the calls had been made to her, she was clear that there had been numerous phone calls (she said that it felt like hundreds but it may have been half a dozen or more) in the three weeks around the time of the assessment;
h)she was clear that the wife had worked very hard to influence her to take her side;
i)she advised the wife that she did not have the time or the resources to make further inquiries - she suggested that the wife use other avenues to get her information across;
j)she was aware that the children had not seen the wife for some three weeks prior to the interview - she did have this in mind at the time;
k)she did have some concerns as to whether the children would be emotionally provided for in the wife’s care as the children themselves reported being pressured by their mother;
l)when it was suggested to her that [X] and [Y] would be living in a hostile house, particularly in view of the fact that [Z] and [S] would be there from time to time, she was clear that this was not the feeling that she had;
m)she did comment that the children not having a relationship with their mother would have serious consequences as there would be no balance in their lives;
n)she also commented that if the mother persisted with [X] the same way she did with her (Ms Cavanagh) it will have the effect of “doing his head in”;
o)she commented that [X] was on the threshold of puberty and that peer groups are very important to him - it would be hard for children to slide into new friendships should they change residence;
p)if [X] was ordered to live with his mother, he may end up deeply resenting her and may also resent his father - it is possible that he may go the way of [Z] and [S] and their relationship with their mother;
q)she went on to say further that if [X] was made to move to [L] it was likely that he would be uncooperative, have problems with schooling and may run away - [Y], however, was more resilient and may well cope; and
r)she did not get a sense that either child was traumatised by past events.
The report writer was robustly challenged by Counsel for the mother. It was put to her that, amongst other things:
a)she had not read all of the papers before she commenced the interview process. Ms Cavanagh conceded she may not have read them all at that time but was clear that she had done so before writing the report;
b)she had not followed up on the mother’s request to speak with [G] or the counsellor for the wife and the parties, Ms F. This was conceded by Ms Cavanagh who advised there was insufficient time and funding. She did not however concede that this meant her report was deficient; and
c)that she did not have a “handle” on the issues for this case. This was not conceded.
She did not resile from her position or her recommendations to this Court.

The Mother

The mother’s case is that she was the children’s primary care giver up until the date of separation.
It is her submission that this case is about the systematic alienation of the children from their mother.
The mother challenges the report of Ms Cavanagh and submits that Ms Cavanagh did not have a “clear handle” on the brief at the time of the interview.
Her evidence is that she believes [X] is confused. She says that with the father’s support [X] would settle in [L] with her quickly.
At the same time she says that she does not want the father to be in her space and she does not want to be in his. She also concedes it is unlikely the father would support [X] remaining in [L].
She recounts, in some detail, allegations of domestic violence and abuse that allegedly occurred in the early days of the relationship in [E] and, subsequently, in 2007.
Whilst her recollection of these events is very clear, it was notable that when allegations of the father regarding, for example, her hiding the children from him when the parties separated in 2004/05 were put to the mother she did not recall the exact circumstances.
When it was put to her that a recovery order was sought in February 2005 when the children were withheld by her; she did not recall exactly what happened. She did when, referred to her affidavit filed in March 2005, concede that [X] and [Y] did not see their father from December 2004 to March 2005. An order was made for the delivery up of the children and I find it hard to accept that this is an event or series of events that has been forgotten.
When she was questioned about the father’s role with the children and it was suggested that the father had on some occasions bathed the children and tucked them in her answer was: “Not to my recollection”.
The impression I was left with was that if there was anything negative to say about her case or if there was anything positive to say about the father’s case she did not recall it. In other words I formed the view that she was not able to concede where she may have got it wrong or the father may have got it right.
Her evidence was that the children’s behaviour when with her varies such that for example on occasions they are resentful to be there and on other occasions they are happy. Her answer when queried on this point was that if they were happy it depended on what was going on in their lives at the time. She was asked if that was because the father was encouraging them to be with her. She could not concede this point.
She concedes that there will be some problems with [Y], however, these are surmountable.
She concedes that there will be problems with [X] and goes on to say that these will not be able to be managed without the support of the father. This reliance on the father’s support goes directly against her evidence which would suggest the father cannot be relied on.

It is fair to say that both parties acknowledge that [X] is well established in the [O] community and that a move to [L] would be difficult and require both parents’ support. This would suggest the need for some cooperation between the parties and yet it is the wife’s evidence that she cannot bring herself to attend counselling with the father and wants no contact with him at all.
In the circumstances, it is hard to see how this arrangement would work.
These issues will be addressed under the relevant headings when considering the best interests of the children.

The Father

The father gave evidence that he runs an [business omitted] in [O], which is the only [business omitted] in a seventy-five kilometre radius.
He further gave evidence that he was able to tailor his work commitments around commitments to the children.
He denied the mother’s allegations of excessive drinking. He was prepared to concede that he had on occasion drunk alcohol, however stated that the mother had as well (which was denied).
He agreed that he had on occasion called the mother names, however, advised that this had been mutual and he was not proud of it.
It was clear from his evidence that the events of 2004 and the role of the wife’s family in those events, when he alleges that his children were hidden from him for a period of time remain at the forefront of his consciousness. He conceded that whilst he did not bar the mother from speaking with her mother on their reconciliation he did bar the two youngest children from speaking to the mother’s family. He also conceded that from 2004 he has not liked the mother’s family.
He gave evidence that after the separation in 2004, when the mother’s family broke into the house and took items from the property, relationships had not been good with the mother’s family.
He confirmed that after the parties reconciled in 2005 he shut their joint bank account. He gave evidence that he had found stashes of cash around the house. This he said had been set aside by the mother.
He denied he was verbally abusive however on the occasion when the parties were travelling from [M], he did say despicable things to the mother. This he says was in the context of both parties arguing in the car in front of the children.
He also concedes an incident in Western Australia when [S] was four months old that he was violent to the mother. He accepts his actions were wrong and expressed remorse.
He denies unduly disciplining the children, however admits to making them sit on the end of the bed when they have needed discipline.
He concedes that if the children were being “sooky” he would say “toughen up”.
The children, he stated, were taught from a young age to stand up for what they thought were right or wrong. I will refer to this later when discussing the difficulties over the children collecting their presents.
His evidence was that none of the children will sit quietly. If they disagree with something they will say so. The father’s evidence was that [X] and [Y] are both very independent and very aware of what is right and wrong. If they pushed the children too hard then they won’t go any further.
In respect of the parties’ arguments his evidence was that they both abused each other. They each on occasion loaded the car and told the other to go. They both hid the keys. They both took keys out of the hands of the other.
There is no question that this relationship had periods of high conflict.
The father conceded this and was able to admit where he had gone wrong, as indeed he should.
This contrasted with the mother’s evidence where when pressed about her behaviour, such as using abusive language about the father's family, she had no recollection.
He presented as quite frank and forthright in his views. That is not to say that his views were always correct, however he was prepared to concede his faults.
He went on to say that [X] had already decided that he won’t see his mother. (This appears to arise from a dispute over [X]’s belongings). He conceded that he was under an obligation to ensure that the children attend.
He regrets that the events surrounding the children’s attempt to bring their belongings to [O] have gotten out of hand. This is for [X], he says, a huge issue. He says that if [X] is forced down to live with his mother then he will run away.
He says that in some way this is the children’s way of punishing the mother for not allowing them to take their stuff. Their belongings, he says, are one of the few securities they have.
His evidence is that [X] has run away on several occasions.
His evidence is that all of his children are highly intelligent and perform well academically, although [X] is currently more sport-focussed.
The father is the Chairman of the Board for the local school. He gave evidence that [O] has the facilities for the children, if they wish, to remain at [O] until they complete their high school education. In the alternative, then the options of [L] and Adelaide both remain open for the children provided their academic results warrant the expense and the effort. They are enrolled to finish their high school years at [J] School. To the best of his knowledge and belief there is no room for the children to attend [J] School at present as is the wish of the mother.
In addition there is no certainty that they will attend [J] School at [L] as in accordance with what they did for the older children, this will depend on the academic performance of the children.

Re-opening of the case

Leave was given to re-open the case when the mother filed proceedings being an Application in a Case and an Affidavit in support on 2 July 2009. An Application for the father to be dealt with for Contravention of the Court orders was also filed and was adjourned sine die by agreement.
This matter came back before me on 14 August 2009. The mother gave evidence and relied on her Affidavits filed with this Court on 2 July 2009 and 3 August 2009.
The father gave evidence and relied on his Affidavits filed on 9 July 2009.
The mother continued to allege that the father is not prepared to facilitate the children having a close and continuing relationship with her.
The opening sentence in paragraph three of her Affidavit filed on 3 August 2009 perhaps best sets out her position when she states that:
I say that the father has continued to play games with me as far as providing the children to me so that I can spend time with the children in accordance with the Court orders.
The events complained of are set out below.

10 June 2009

It is common ground that the children spent the first two alternate weekends following the conclusion of the trial with their mother. It is the evidence of the father that some effort had to be made to get them to attend. It was his further evidence that whilst the children still had a major difficulty with the mother refusing to allow them to take their personal possessions, there were some positives coming out of their time with their mother. Unfortunately, neither Counsel chose to explore that.
It is the mother’s evidence that on 10 June 2009 the father telephoned her to tell her that [Y] was going to [C] to sing on Friday night. If the mother wanted her for the weekend then she would need to go and pick her up from [C] at 10.00pm when she had finished. Furthermore, [X] did not want to come with her on that weekend (being 12 June) because it was his birthday weekend.
The father in response says he rang the mother to confirm she would take [Y] to her choir performance at [C], however, the mother refused. He had assumed the mother was aware of the choir performance from the school newsletter. He went on to say the school newsletter can be either posted to the parents or sent to them by email to avoid the uncertainty of having it brought home by the children.
The mother’s evidence was that she did not have a copy of the school newsletter and did not receive one. When questioned about this she confirmed that she had not asked for one although she accepted that the school newsletter set out the forthcoming events. When asked why she had not asked, she said she had not thought about it. Eventually, she responded that she expected the children to pass it on and the father to let her know.
In her opinion, it was rude for the father to give permission for [Y] to attend an event on her weekend. It was her evidence that she had no prior knowledge of the event.
It is extraordinary that in view of the conflict and lack of communication between the parties, which the mother confirms with her evidence, that she did not take steps to have the school send a copy of the newsletter direct to her. It is also extraordinary that a choir performance, which is something that would have been planned for some time, was not discussed when [Y] and [X] were with her on the preceding alternate weekend. Furthermore, I have difficulty in understanding why the mother would not want to see her daughter perform when she concedes that choir is important to her. I appreciate [C] is some distance, however, I also note the parents’ acknowledgement of [Y]’s love of singing.
At the same time, this does not excuse the father from, once he was aware that the date was to fall on a weekend which [Y] would normally spend with the mother (which surely would have been earlier than

10 June two days before the performance), that he did not notify the mother earlier and obtain her approval and involvement in this exercise.
As a consequence of the mother viewing the father’s advice that she had to collect [Y] from [C] as an ultimatum, she refused to attend thereby missing an opportunity to view her daughter perform with her class.
As a consequence of her refusal, the father, according to his evidence, advised the mother that the children would not be available that weekend.
The mother’s evidence is that she rang back on the Friday and left a message that she would be at [U] to collect the children as ordered at 5.00pm. There was no response from the father. The mother’s evidence is, and it is not to be disputed, that she attended at [U] and waited for one hour for the children to be delivered to her. She did not at any stage attempt to contact the father again, even whilst she was waiting in the car at [U]. The children were not delivered.
The following day the mother attended as she does every Saturday according to her evidence, at [O] to watch the family, being [X] and [Y] and her two eldest sons, play sport at [O]. According to the mother she attends at the [O] sporting grounds from 9.30am to 5.30pm every Saturday and does not leave until her eldest son plays his game.
The father to his discredit had chosen not to tell [X] that he wanted him to spend the weekend with his mother as [X] had indicated he wished to spend his birthday with his friends.
It is common ground that [X] was at the [O] sporting ground on Saturday (being his birthday) and played his usual sporting fixtures.
It appears that the mother did not make any attempt to contact her son and wish him Happy Birthday whilst she was there. It also appears that the father did not get hold of his son and make him go and say hello to his mother on his birthday. Neither party, it appears, was prepared to bridge the gap.
The father can be rightly criticised for:
a)Not making the children available on the weekend;
b)Not advising the mother the moment he knew of [Y]’s choir performance and allowing the mother to participate in the benefits of seeing her child perform;
c)Not making flexible arrangements for [X]’s birthday so that some of his time could be spent with his mother;
d)Not delivering the children up in accordance with the Court order or attempting to negotiate a flexible arrangement.
The mother can be criticised for:
a)Not taking the opportunity to participate in her daughter’s performance;
b)Not taking steps to ensure that the school newsletter is delivered to her direct so that she would have been aware of the children’s commitments;
c)Attending at [U] when she knew the children would not be delivered to her; and
d)Attending at [O] and not taking the initiative to contact her son on his birthday.
Once again, it appears that the parties neglected the best interests of the children in favour of the continuing conflict between each other. What should have been a weekend where all could enjoy the benefits of the children, became something that was the subject of litigation.

26 June 2009

In spite of all the issues that arose out of the weekend of 12 June 2009, the mother’s time with the children proceeded on 26 June 2009.
The parties evidence differs in that the mother alleges that the father arrived to deliver the children to her in [U], however remained in the car with the children for approximately fifteen minutes before they got into her car a little after 5.20pm. The mother’s evidence to the Court was that the father’s action in parking behind her and not handing the children over immediately was intimidatory and because of her fears of the father, she sat there with the doors locked not even looking at the car.
The father’s evidence was that they arrived seven minutes early, [Y] had been telling him something, and he used the fact that they had arrived slightly early to allow her to finish the story. Eventually he had to interrupt [Y] to say “I am sorry you have to go”. Counsel for the mother attempted to make something of the fact that the father said he was sorry which would suggest that he regretted the children going with the mother. I did not see this in the way the father gave his evidence. I saw it more as an apology for interrupting the flow of the story and reminding the children that it was time for them to go. I do not think anything turns on this.
On 27 June 2009, the mother returned to [O] with the children to enable [Y] to participate in her netball and [X] to play football.
It is the mother’s evidence that when it was time to go home [Y] went to say goodbye to her father. It appears common ground that the father was working the bar in the clubrooms as part of a volunteer service, and that [Y] did not return.
She then sent [X] in to get [Y] who returned saying [Y] was in the clubrooms with her father and she did not want to go back to [L] with me so he wasn’t going either. She sat there for a couple of minutes not knowing what to do and then eventually left in tears and drove home to [L]. Whilst it may have been difficult to go into the clubrooms to confront the children, she confirmed that she did not make any attempt to telephone the father or in any way communicate with him. Instead, she says she relied on her eldest daughter [G] who confirmed that the children were with the father and would not come with her to [L] (and the accuracy of this is disputed). She then unfortunately spent the rest of her weekend without the children.
It is the father’s evidence that he was working the bar and there were approximately one hundred people in the clubrooms. As a consequence, the bar was extremely busy at the end of a sporting day. He was aware that [Y] had come to him and said that she did not want to go back to [L] with the mother. He did not catch what else she said because of the noise at the bar. When eventually his bar duties ceased he went and saw [Y] who was sitting at a table in the clubrooms. It was then that he found out that the mother had left. To his discredit he did not telephone the mother to come back and collect the children or to find out what had happened. In his words he said “he was not going to run after her to fix her problems”. As he said, “she could have rung me”. This is not good enough and reflects the unwillingness of both parties to meet in the middle to properly co-ordinate their responsibilities as parents. Counsel for the mother criticised the father for not taking more appropriate steps at the time. It was certainly open to him to do so, once he became aware of the situation.
Counsel for the father attempted to criticise the mother for leaving the children without the father knowing. Whilst it was open to her to make a telephone call to the father as I have pointed out, it was the mother’s evidence that “they live in a community where they know everybody and everybody knows them”. Unfortunately, she went on to say that it would have made the father very happy that he would have been able to show he was in control again. In other words, for the sake of the conflict, she was not prepared to put the children first and neither was the father.
It is important to note however the mother’s advice that the children live in a community where they know everybody and everybody knows them. I will refer more to that later.

School holidays

It was apparent from the evidence of both parties that there was some confusion over how the school holidays were to be organised. It had been anticipated that judgment would have been delivered prior to the school holidays. The application to re-open the trial however came prior to the judgment being published. In the circumstances, the mother was under the impression that she had the right to have one uninterrupted week in the school holidays whilst the father was of the impression that no arrangements had been made. It turns out that the father was correct, however, that is does not in any way approve his actions.
It transpired that the father’s sister had made arrangements to visit the children and the father during the first week of the school holidays. This, it was conceded, had been organised some time in advance.
It also transpired that the children’s training commitments for their sport continued through the school holidays.
Finally, the medical appointments for [S] and [Y] had been re-arranged some time before to the second week of the school holidays at the [omitted] Hospital. The parties then had to sort out the holiday time in the context of them accusing each other of:
a)in the case of the mother, the father subverting the mother’s time with the children the previous weekend; and
b)in the case of the father, the mother leaving the children unattended and driving away without letting him know that they were in his care.
The negotiations were made unnecessarily complex by accusation and counter accusation. Neither party can be proud of this. The father is also to be criticised for allowing events to occur in the fourteen day period without giving the mother prior notice of this and the mother in return seemed unable to get over the hurdle of the father’s prior conduct.
It was open to the mother to take [Y] to Adelaide in the second week. It is notable that the mother has in the past complained about not being informed about these matters and this would have been a perfect opportunity for her to participate. She chose not to.
In any event at the end of the day the parties reached a compromise where by the mother got to spend some time with the children over the school holidays. The fact that the school holiday time had to be broken for the children’s training commitments is not satisfactory. It is appropriate that the parties spend a week long block with the children and the orders that I make will encompass this. I accept the submission that appointments at the [omitted] Hospital are not easy to obtain and I find it difficult to accept the mother’s evidence that she was not prepared to attend.
Nevertheless, in view of the fact that the appointment had been made some time before, it would have been appropriate for the father to have provided as much advance notice of this as possible.

24 July 2009 / [M]

The next instance unfortunately occurred on the weekend of 24 July 2009.
This was the weekend that the children were to play football and netball at [M] (being an annual sporting carnival) on the Sunday. The father asked the mother if she was prepared to take them to that. Her response was that she would not be going to [M]. She then sets out how the father began lecturing her about how she had said she would support the children’s sport and that they were committed to playing at [M]. Her response was “I will see you in [U] at 5.00pm”

She then gave evidence in Court that it was her intention once she collected the children to give them the option of going to [M]. If they said yes she would return them to their father on Saturday. She did not, however, communicate this to the father. The father, no doubt, having informed the children that they were not going to [M], then had difficulty getting them to [U] at 5.00pm. Once again, neither party took the step to bridge the gap to properly communicate what their proposal was. Apparently, the [M] carnival is mentioned in the school newsletter, which the mother did not have and had not sought.
Furthermore, the father would have had some notice of this but did not make the effort to inform the mother as soon as possible of when the carnival was on.
Both parties acknowledged the importance of the children’s sport to them and yet knowing the carnival was on, the mother did not tell the father that she would discuss this with the children nor did either party make any attempts to arrange the mother’s time for an alternative weekend. Once again, it would seem that the parties are putting themselves above the interests of their children.

Other matters

The mother went on to criticise the father for, amongst other things:
a)Making plans for the children when they were supposed to be with her on the weekend;
b)Instructing the children not to have anything to do with her family;
c)Instructing the children to refuse to answer the telephone.
She cited a time when the children were with her during the school holidays when both of them refused to answer the telephone if it rang. It is telling that she drew the conclusion that they only did this because they had been warned against it by their father. There was no evidence to support this.
It is also telling that she believes the children had been coached by the father in the way they are to “beat” their own mother. Again, there was nothing to support this.
Whilst she concedes that both children have asked to take things that they have at her house back to [O] and that she has refused each of their requests, she does not address this issue in any detail. The father says that this still remains one of the sore points in the children’s relationship with their mother and it is regrettable that neither of them can resolve this issue so that it does not distract from the primary goal which would be maintaining a proper relationship between the children and each of their parents.
At the end of the day, the issues remain much the same as they were when this trial originally concluded in May 2009.
The mother’s words that “they live in a community where they know everybody and everybody knows them” support the view and to a degree reflect what is common ground: that the children are thoroughly entrenched in [O]. At a time when everything else is disintegrating around them, [O] probably remains one of the more stable factors in their lives.
I asked the mother again how it would work if I was to order the children were to live with her. Her response was that the children would return to [O] for their Saturday sporting fixtures however would train in [L] during the week. She pointed to the fact that the high school children did this and seemed to cope quite well. This ignored of course the fact that the high school group did it with their peers and were not isolated from the team. This would not be the case with [X] and [Y]. They would be different.
The mother continued to maintain a position that when the children do not agree with her or do not comply, it is the father speaking. She does not appear to accept that this is a ten and twelve year old who are not anxious to have change. She does not produce any expert evidence to support her and instead seeks to criticise the report writer for what she sees as inadequacies in the provision of the Report. I have commented on this elsewhere in these Reasons.
Her case revolves around the lack of communication between the parties. It is not likely that either party will be highly supportive of the other. If a finding had to be made, then I think it would be more likely that the father would be supportive of the mother by a slim margin.
This is not to say that the father represents the best choice in this matter. His decision to allow training during the school holidays to override the children’s time with the mother is wrong. Whilst he has said that it is important that the children have a relationship, it is for him to sit firmly in the driver’s seat of this matter and to create the agenda.
Having seen both parties before me and witnessed their antipathy towards each other, I consider it more probable that he would do that than the mother. He must now, however, go one step further and say to the children that he wants them to spend time with the mother and to have a relationship with her.

The Law

The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)     children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     the parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)     the nature of the relationship of the child with:
(i)      each of the child’s parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)     the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)      either of his or her parents; or
(ii)     any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)     the capacity of:
(i)      each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h) if the child is an Aboriginal child or a Torres Strait Island child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j) any family violence involving the child or a member of the child’s family;
k) any family violence order that applies to the child or a member of the child’s family, if:
(i)      the order is a final order; or
(ii)     the making of the order was contested by a person;
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m) any other fact or circumstance that the court thinks is relevant.
The father seeks equal shared parental responsibility for the children whilst the mother seeks sole parental responsibility. This will be discussed in due course.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents. These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending that time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these Reasons.

The Children’s Best Interests

I will turn now to a consideration of the considerations set out in s.60CC of the Act in determining the best interests of the children.

Section 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents

Both parties concede the benefit of the children having a meaningful relationship with the other parent. It is the mother’s position however that the father is “an overbearing, domineering and aggressive man who has sought to control the mother and children throughout the marriage”. She alleges the relationship was marred by domestic violence, isolation and intimidatory behaviour by the father towards her. She seeks an order that she have sole parental responsibility of the children [X] and [Y].
At the same time she says she will comply with any order that the children spend time with their father. Compliance as opposed to giving the relationship priority are very different concepts and I am doubtful there would be any positive reinforcement of the relationship.
The father’s position is that the parties should have equal shared parental responsibility for the children.
He states that he accepts that the children love their mother and encourages them to have an ongoing meaningful relationship with her.
There is reason for concern about his approach. By the time this matter had got to trial, the children had stopped spending time with their mother as ordered by this Court and had spent time with her infrequently due to matters that the father says were out of his control.
Neither party it seems had any great insight into the effect of their actions on the children nor what steps they should take to shoulder the responsibilities of parents in ensuring that the children have a good relationship with either party.
It is notable that the parties’ eldest child [G] (aged 20) was in the back of the Court for a lot of these proceedings. Some credit must be given for the fact that neither party attempted to produce evidence from her. Neither party should however be proud of the fact that their eldest child was present in the course of these proceedings and having been there on some of the occasions referred to was placed in a position where she could say that one of her parents was not remembering the incidents as she did.
I note the incident in which the children sought to obtain their personal possessions from their mother’s residence and take them to [O]. This appears to have had an impact on the children's relationship with their mother. I will refer to this later in detail.
Needless to say, the actions of the mother in refusing to allow the children to obtain possessions that were gifted to them at Christmas time and birthdays was inappropriate as was the actions of the father in not taking steps to diffuse the situation and advising the children they have the right to bring back to the house any of their possessions they wish to. To quote the father:
I have made it very clear to [X] and [Y] that they should have direct freedom to remove things between the mother’s house and my house and I know they are reluctant because they are not confident the mother will let them return with their item.
I accepted the evidence of Ms Cavanagh. I acknowledge that the relationship as set out above has becomes strained due to recent events.
Nevertheless, both parents clearly love the children. There is, I find, a benefit in the children having a meaningful relationship with both of the children’s parents. I am concerned, however, at the willingness of the parties to facilitate that relationship and will address that later.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm being subjected to, or exposed to, abuse, neglect or family violence

As previously stated, the mother alleges a relationship marked by domestic violence, isolation and intimidatory behaviour by the father towards her. She further alleges that the father has co-opted the two eldest boys, namely [Z] and [S] into this campaign.
In the course of the proceedings, a significant amount of time was spent on matters that occurred in 2007 and prior to that.
The mother sought in support of their case to produce a transcript and a recording of an argument the parties had on a trip from [M] to [O]. She also sought to produce recordings of other arguments the parties had in or about 2007.
The recordings were produced on the morning of the trial, they related to events that occurred in or about 2007 and there was no evidence to show they were the original recordings or recordings of the entire conversation. They were therefore not allowed.
The transcript of the [M] trip was allowed on the basis that it would be accorded appropriate weight. The evidence was that the trip was over one and a half hours. The transcript records less than five minutes of conversation. It is a snapshot of a moment and save for the husband's concession that he did use that language (in the context of both parties doing so) it does not assist me in determining this matter.
The mother also sought to rely on the letter received from Ms F, the party's councillor. The authorities are clear on this issue and it is not appropriate to seek to rely on the evidence of someone who has been in the position of counselling both parties to affect reconciliation. That evidence was therefore struck out. An attempt was made to call Ms F without prior notice and that too was dismissed for the reasons set out above.
It is clear from the evidence that the parties’ relationship was, and to some extent remains, highly dysfunctional. It would also appear that a number of those moments occurred in front of the children thereby causing them some significant distress.
The father accepts that on more than one occasion he has spoken to the mother in a “disgusting” manner and has acted in a “despicable” way to the wife. He alleges, however, that the mother was a participant in these disputes, often initiating them, and using similar language.
He further alleges that the mother, on occasion, drank to excess and could be quite abusive in her behaviour to him. This is not admitted by the mother and I am unable to make any finding in respect to that.
The father concedes that he was violent to the mother when [S] was four months old.
He concedes that he has also said despicable things to the mother about her and her family. He says that the mother in return was abusive to him and made derogatory remarks about his family. He concedes arguments occurred from time to time in the presence of the children.
The mother’s case is that the children have been subjected to systematic alienation from her and her family since separation, however, this will be addressed in the secondary considerations.
There are no allegations of any violent behaviour since the parties separated.
Is there a need to protect the children now? Ms Cavanagh does not think so and I accept her opinion on this issue. Whilst there may have been episodes of high conflict in the past, this appears to have resolved now the parties are apart. The history of this matter cannot be ignored however it is the present situation and the strongly expressed wishes of the children and the reasons for those wishes that stands out.

Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

[X] was born [in] 1997 and is now twelve.
The evidence of Ms Cavanagh, the report writer, was very clear. She stated when cross-examined that:
[t]he children did not present to me as having been influenced by the father.
She went on to state, and I paraphrase her answer, that it is amazing what kids will divulge when there is violence in the relationship. There had been no disclosure on this occasion and she formed the view that the children’s wishes were genuine.
Ms Cavanagh further stated that if [X] was made to go to live in [L] he may come to resent not only his mother, but his father as well.
The father confirmed Ms Cavanagh’s view of the children’s wishes.
The mother did not seek to dispute the expressed wishes of the children. She says, rather, that these arise from a systematic campaign of alienation.
The evidence of the report writer is clear. I accept her evidence that this is not the case and the children’s wishes are clear.
I also accept her evidence that at [X]’s age his peer group is important to him. It is feasible that his peer group may well have provided some refuge from his parents’ conflict. Both parents concede that [X] loves sport and is popular in [O]. It is also conceded that [Y] is heavily involved in the [O] sporting community.
To quote from the affidavit of the father:
26. [X] plays football during the winter. He trains on Tuesday and Thursday nights and plays on Saturdays. He also plays cricket during summer and trained on Wednesdays and plays on Saturdays. [X] also plays tennis on Friday nights, and lawn bowls on Thursday nights during summer.
27. [Y] goes to dance classes on Wednesday night. [Y] also plays netball on Saturdays during winter and trains on Thursday nights. [Y] also plays lawn bowls on Thursday nights in summer. [Y] also enjoys attending the [O] uniting church on Sundays.
The mother concedes this point although states that [X]’s interest in sport seems to have grown dramatically over the recent months. She also concedes [Y] is keen on netball and is keen on dancing and says both children are keen on swimming.
This is not to say that peer groups or sport are more important than a child’s relationship with their parent but it can and does provide a viable alternative to the mother’s claim that the children’s wishes have been overborne or arise from a systematic campaign of alienation.

I therefore do not accept that the children’s expressed wishes are not their own. I find that the children having been consulted should have their wishes, particularly those of [X], given proper weight. Furthermore, I accept that if these wishes were to be ignored then there could be damage to their relationship with each of their parents.

Section 60CC(3)(b) - the nature of the relationship of the child with:

(a) each of the child’s parents, and

The evidence of Ms Cavanagh is that the children have a good relationship with both parents.
Unfortunately, since the report was published it would seem that the children’s relationship with their mother has deteriorated.
This appears to arise from, amongst other things, the dispute over the children’s belongings and their wish to move their possessions from house to house. The mother concedes :
a)that when she left the home “I took many of their items as it was the intention that they would be living with me”;
b)that she was not prepared to allow the children to take their possessions;
c)in evidence that the children received further Christmas gifts which remained with her in [L]; and
d)that she would not let those items be taken by the children.
This overlays what Ms Cavanagh reports as the children’s concerns that they will be made to leave [O] by their mother, the pressure the children feel they are under when they are with the mother and the fact that whatever they say is seen as their father talking.
The incident over the belongings is something that demonstrates a lack of understanding by the mother that children in a separated home will want to keep their belongings with them. These were items given to them which they rightly view as their property. It also shows a complete lack of understanding on the part of the father in his advice to the children that it was their legal right to take their belongings with them, regardless of the cost that this might have on the relationship between the children and their mother. His lack of sensitivity and heavy handed black and white approach in this matter is not something that he should be proud of. It inflamed a situation that he should, as a responsible parent, have moved to defuse. It is hoped with the resolution of this matter that the fall out from this dispute will not effect the long term relationship between the children and their parents.
The current situation is capable of being resolved if both parents choose to take steps to defuse matters. The wife having given the gifts can let the children keep them with them and the husband can reinforce the need for the children to have some respect for their mother who loves them instead of advising them of their legal rights.
The parties agree that the mother at present does not have a relationship with [Z] and [S] (although there are signs such as [Z] inviting his mother to his graduation that this may change). The mother says this will happen with [X] and [Y]. Whilst this is a matter for concern, I am of the view that it is more likely, with proper guidance from both parties, that this will not occur.

(b) other persons (including any grandparent or other relative of the child)

The evidence was the children’s relationship with the mother’s family is poor and was influenced by events surrounding the separation in 2004/2005 and the subsequent fallout from those events.
The children’s relationship with the father’s family did not appear to be an issue.

Section 60CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing a close relationship between the child and the parent

The Mother

The mother’s evidence was that she would comply with any orders of the Court. Her case, however, was that:
a)the children had been systematically alienated from her by the father;
b)unless they were ordered to live with her this alienation would be permanent;
c)the father is an overbearing, domineering and aggressive man.
She could not concede that the children may wish to stay in [O] for their own reasons such as their friends, their sporting and social commitments or that [O] was where they felt comfortable.
I note the comments of Ms Cavanagh in her report where:
a)at paragraph 7.3 she stated “she (Ms Neville) is very firmly of the view that Mr Neville is not a good father and she believes he is turning the children against her by controlling them especially by ringing them very often when they are with her.”
b)at paragraph 7.4 “Mr Neville presented a more temperate view of Ms Neville saying that he “doesn't want the children to be turned against her.”
The fact that the mother was not prepared to acknowledge other options and to lay all responsibility at the feet of the father gave me concern about her willingness and her ability to facilitate and encourage a close and continuing relationship with their father.

The Father

The father made it clear that he considered the children should have a close relationship with their mother.
He referred to the fact that he lost his father when he was seven and did not want his children to grow up without a parent as he did.
In spite of this however, the children who at the present time are residing with him had, prior to trial, been seeing less of their mother. In other words he was not succeeding in his goal of fostering their relationship with her.
The father had allowed and to some extent inflamed (through the provision of “legal advice”) a conflict between the children and their mother over their belongings.
He sees himself as a man who is keen to determine what is right from what is wrong, however, on this issue whilst he may have had the answer to the minor question correct in that the children should be allowed to take their belongings, his answer to the major issue of the children’s ongoing relationship with their mother was clearly wrong and his actions were inappropriate. His evidence was that because of the way they were raised:
a)the children knew right from wrong;
b)he had taken advice over the dispute as to whether the children could collect the gifts provided to them by the mother and bring them to [O] and had told them they had a legal right to their property;
c)the argument over the belongings between the children and their mother was the cause for the deterioration in the relationship; and
d)he could only push the children so far when it came to their relationship with their mother and if he pushed too far it would break them,
This in some ways abdicates from the responsibility that must rest on the shoulders of the parent with whom the children are living. It is the responsibility of that parent to ensure that they have a meaningful relationship with the other parent. To allow that relationship to be affected by an issue such as this is not appropriate.
The children’s position may have been right and the mother’s understanding of the fact that the children should be allowed to do with their presents as they see fit is certainly not something she can be proud of, however, the father’s interference merely reinforced their conflict with the mother rather than diffuse the situation. This is in addition to a situation where the father concedes that his relationship with the mother’s family is non-existent and that he has spoken regularly about this issue when in front of the children.
This in its own way must impact on his willingness and ability to facilitate an ongoing relationship between the children and their mother.
Nevertheless, he has:
a)in his papers sought orders that in the event of the mother residing in [O] the children live week about with each parent;
b)talked openly in his evidence of his desire for the children to have a strong relationship with their mother;
c)in his evidence demonstrated some awareness of the children’s needs; and
d)considered options to repairing and improving the relationship between the parties and the children; and
e)presented when discussing this matter with Ms Cavanagh as putting a more temperate view of the mother, than she (the mother) had of him.
In the circumstances, although this issue is finely balanced, I find it more likely than not that the father would facilitate the ongoing relationship between the children and their mother as opposed to the mother facilitating a relationship between the children and their father.

Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(a) either of his or her parents; or

Both parents agree that [X] would have difficulty when being forced to move from [O] whilst [Y] may well adapt. Neither party disputes the fact that [X] is heavily entrenched in the [O] community. He is successful in his sporting achievements and has a good circle of friends and he is settled in the community. If he was to be sent to reside in [L] he would have to start again.
The mother submits that [X], with the support of his father, would be able to adapt. She concedes it would be difficult at first and would rely heavily on the father’s support (although she is not confident of that). This contrasts with the fact that her relationship with the father is at such an all time low, she cannot live in the same town as him and does not want him to be “in her space” at all.
The evidence of Ms Cavanagh is that there was a strong prospect that should [X] be forced to reside in [L] against his wishes that he would come to resent his mother and possibly his father as well.
The father in his evidence raises concerns that should [X] move to reside in [L] against his wishes then he may well run away. He also believes that not only the mother’s relationship but his relationship with [X] would suffer.
Both parties concede that whilst [Y] may have some initial difficulties she would adapt easily.
Neither party, despite the issue having been raised by the Court, is proposing that the siblings be separated.
The ultimate responsibility for the children’s welfare rests with the parents, however their wishes particularly in view of their age cannot now be ignored. They have been consulted and they should be listened to and to ignore them on the evidence before me is likely to have negative consequences for their relationship with their parents.
To force [X] to move to [L] may well damage his relationship with both parents while should he reside in [O] there is some prospect that his relationship with his mother may be repaired. This must also then apply to [Y].

(b) any other child, or other person

The evidence before the Court is that [S] who is aged sixteen returns to [O] on weekends in accordance with a car pooling system set up by the parents of children attending [J] School in [L]. [S] has no contact with his mother at present.
[Z] also returns to reside in [O] from time to time whilst [G] spends time with each parent at her convenience.
The evidence of Ms Cavanagh is that the siblings interact well. She referred to observing the “good natured teasing” that occurred when the children were observed in the precincts of the Family Court.
She also referred to the family all undertaking sport in [O], which may not occur should [X] and [Y] move to reside in [L].
In the circumstances, it is open for me to find the effect of [X] and [Y] moving to reside in [L] is that they are likely to see less of their siblings than should they remain in [O].

SECTION 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

[O] is located some one hundred and fifty kilometres from [L].
It is possible for the children to spend alternate weekends with their non-residential parent and for appropriate arrangements to be made that will facilitate communication throughout the week.
Whilst there is some distance between the towns, it is not insurmountable.
The current handover arrangements require the parties to meet “half way” in [U]. The father sought a variation of this which was opposed by the mother. I accept the mother’s submission that the current arrangements should continue.

Section 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Both parents have a basic capacity to provide for the needs of the children including their emotional and intellectual needs.
Incidents such as the argument over the location of the children’s belongings have shown that the parents can each in their own way lose perspective of what is in the best interests of the children.
Each party has a history of catering for the children's needs. The mother has demonstrated a significant involvement in the children’s welfare, care and development.
The father has also had a significant involvement with the children to date and continues since orders were made by this Court, to be the primary caregiver having active involvement with the children’s school as Chairman of the children’s school Board.
Each however has demonstrated their capacity to forget the children's best interest in favour of pursuing the ongoing conflict.
Both parties had engaged in highly conflictual disputes in the presence of the children.
The father has readily conceded that he has not hidden his extreme dislike of the wife's family for what he perceives as their role in the break-up of the party's relationship and their attempts to subsequently influence the children. This behaviour must stop.
The mother on the other hand does not concede that her family through their actions such as the removal of the children’s items from the home may have affected the children’s perception of matters. Furthermore there does not appear to be any appreciation of the pressure the children may feel they are under as reported to Ms Cavanagh.
There was no evidence to suggest that the mother had at any time attempted to rein her family in or to caution them to be careful in their interaction with the children even if the allegations were not correct.
I remain of the view, save for where the parties have put their interest in pursuing the conflict with each other ahead of the interests of the children, that each party has the capacity to provide for the needs of the child including emotional and intellectual needs.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child

As has been pointed out at the beginning of these reasons, [X] is now twelve. [Y] will be ten later this year.
It is the argument of the mother that the children’s wishes have been influenced or overborne by the father. There is however no independent evidence to support this.
I accept the evidence of Ms Cavanagh which is that both children were both very clear in their wishes.
Her further evidence was that there was no suggestion that the children were in any way influenced by either parent.
A review of the history of this matter including the ongoing conflict between the parents, the period of separation in 2004/05 and the final separation in 2008 can give some explanation, in addition to the matters previously discussed, for the children’s desire to remain in [O].
Furthermore, I accept that the children and in particular [X] are of an age where they may be reluctant to leave all that is familiar to them for a new environment.

Section 60CC(3)(h) – if the child is an Aboriginal child

This section is not relevant.

Section 60CC(3)(i) – the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

Both parents have demonstrated an appropriate level of responsibility in determining that the children attend to their education, engage in local sporting activities and are responsible young members of the community.
Where the children have been let down is where the parents have indulged in the ongoing conflict between them which unfortunately has carried on over some time. Now that the parties have separated and there is no prospect of reconciliation, the question is how the parties can rise above the conflict of the years past and react appropriately with the children.
Having observed the parties in Court I consider this matter to be extremely finely balanced. At the end of the day I must reach a conclusion and that conclusion is that it is more likely that the father will be able to place the children’s needs above his own in respect of the children’s ongoing welfare.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family

The mother referred to events that occurred in the history of the parties’ relationship. She referred inter alia to:
a)The assault that occurred in [E] in 1994 when [S] was quite young. The father conceded that this had occurred and conceded that his actions at that time were wrong. The parties subsequently reconciled and had a further four children between them;
b)The argument in the car on the way home from [M] in 2007 when the parties were returning from a function and the mother inadvertently telephoned her counsellor and a portion of the parties’ conversation was recorded on the counsellor’s answering machine. The father rightly pointed out that this recording which went for approximately a minute and a half was a very small portion of a journey which took an hour and a half in which, in his submission, neither party could be proud of their conduct. He conceded that the language used was inappropriate, however said that each party did not hold back and in the circumstances it is not possible to make any finding arising from that;
c)an occasion in 1995 when the mother alleged the father forcefully smacked the [S] fifteen times in response to the fifteen nail holes that he had put in the parties’ furniture. The father conceded that he did smack [S] fifteen times but did not do so forcefully. His evidence was that it was a light smack to reinforce the fact that he had wilfully damaged the parents’ furniture and in no way could it be characterised as abuse.
The violence complained of in these proceedings relates to incidents that occurred some time ago. In many ways it is not the violence but rather the ongoing conflict between the parties that impacts upon the welfare of the children in these proceedings. It is the ability of the parties to rise above that conflict and to put the interests of the children first that is the deciding factor for this matter rather than an examination of who was right or who was wrong in 2007. It is fair to acknowledge that the mother’s attitude to the father may stem from what she sees as the history of this matter, however, where does this leave the children? I therefore find that whilst this is a relationship where there has been some violence involving the parties, I am not prepared to find that there has been any violence involving the children. Where that violence has involved the parties, save and except where concessions have been made by the father, it is not possible to make any definitive finding regarding the other issues raised.

Section 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family

This section does not apply.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

The evidence of Ms Cavanagh is that should an order be made that [X] live with his mother, then it is likely that there will be significant difficulties.
This evidence is supported by the evidence of the mother who concurs that there will be significant difficulties unless [X] is supported by his father, (which in her view is unlikely).

The father’s evidence is that if [X] was forced to move to reside with his mother then it is likely that he would run away and it is possible that this action will have significant impact and perhaps lasting damage on the relationship [X] has with both parents.
I have already discussed the impact on the proposed move with [Y] and the fact that the parties are not seeking to separate the siblings.
It is my finding that whilst there are significant concerns regarding [X]’s current relationship with his mother and the willingness and ability of the father to promote and encourage that relationship, along with that of [Y], those concerns are outweighed by the impact of forcing [X] to move to reside in [L] with his mother.
It is my finding that the order that would be least likely to lead to the institution of further proceedings is an order that would allow [X] to remain residing with his father in [O]. It follows that if that is to be the case, then it should also be the case that [Y] reside in [O] with her father and her brother.

Section 60CC(4) - Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

Both parents can be equally criticised for the fact that they have allowed the conflict between them to overshadow their responsibilities as parents to these children.
Both levy allegations against the other in respect of their conduct in the past.
The father has been prepared to concede where he went wrong whereas no concession was forthcoming from the mother.
It is fair to say that each at some point has forgotten about their responsibilities to the children in favour of pursuing the ongoing conflict with each other.
Nevertheless, at the end of the day it would be fair to say that these are two children who are managing to thrive in the [O] community in spite of all of the difficulties they have faced through the ongoing conflict generated by their parents.
I am concerned about the conduct of the parties over time and their propensity to engage in conflict at the expense of the children. On the other hand however, the parents must take some credit for the fact that both children have managed to do as well as they have done to date. Whilst there was some evidence that [X]’s academic performance was taking second place to his sporting commitments, there was no evidence as to why this may have occurred particularly where the conflict between the parties continues. Nevertheless it can be acknowledged that each is excelling in their sporting achievements in their own way and each has a good circle of friends in the [O] community. Each parent must therefore take some credit for their children’s achievements to date in spite of their failings in respect of their relationship with each other.

Section 61DA presumption of equal shared parental responsibility when making parenting orders

When making a parenting order in relation to a child, I must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply if I have reasonable grounds to believe that a parent of a child has engaged in:
a)abuse of the child; or
b)family violence.
The allegations in respect of this matter centre around family violence between the parties.
The parties concede that their relationship has been highly conflictual.
The father concedes that he was violent at the commencement of the relationship. He also concedes in respect of the taped conversation that he was extremely abusive towards the mother, however, states that the mother was also abusive to him.
What is clear is that the parties have little or no relationship between them. The father however, proposes that I make an order for equal shared parental responsibility. This would require the parties to communicate with each other. At some point however, the bridge has to be crossed.
I am not minded to make an order that the father have sole parental responsibility for the children. I am not minded to exclude the mother from any decisions affecting the long term care, welfare and development of the children. In the circumstances I consider it appropriate that there be an order that the parties have equal shared parental responsibility.
Having made an order for equal shared parental responsibility I must consider the provisions of s.65DAA.

Section 65DAA

This section requires me to consider having made an order for equal shared parental responsibility whether an order that the parents have equal time with the children would be appropriate. In considering that, I must, amongst other things, consider the following factors:

(a) How far apart the parents live from each other

The parents live approximately one hundred and fifty kilometres apart. An order for equal time would not be practicable.

(b) The parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents

At present the parents do not have a current, nor are they likely to have a future capacity to implement an arrangement for the children spending equal time or substantial and significant time with each of the parents. The distance between the two houses is too great and there is no prospect of the mother returning to reside in [O] or the father moving to reside in [L].

(c) The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind

The evidence before me at present is that the parties have no capacity to communicate. I propose to address this in the orders that I will be making in the hope that some movement forward can be achieved.

(d) The impact that an arrangement of that kind would have on the child

Again, the main consideration in this matter is the distance between the parties. It is also of major significance that the parties are incapable at present of communicating.
In the circumstances, I do not propose to order that they spend equal time with each parent.

Substantial and significant time

Pursuant to s.65DAA(2) of the Act where:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.
Substantial and significant time is where :
a)the time the children spend with the parent includes both:
i)the days that fall on weekends and holidays; and
ii)the days that do not fall on weekends and holidays; and
b)the time the children spend with the parent allows the parent to be involved in:
i)the children’s daily routine; and
ii)the occasions and events that are of particular significance to the child; and
c)the time the children spend with the parent allow the children to be involved in occasions and events that are of special significance to the parent.
For the reasons set out in respect of s.65DAA(1) I reach the same conclusion with respect to the children spending substantial and significant time with the parties.
The recommendation of Ms Cavanagh, which I accept, is that the children should spend alternate weekends with the parent with whom they do not live. I propose to adopt that recommendation.
It would also be appropriate that the children spend half of the school holidays with the other parent and I would adopt that recommendation.
Counsel for the mother in closing again submitted that this was a case of parental alienation. The Court was referred to the authorities of:
a)Irish and Michelle (2009) FamCA 66;
b)McKillop and Jell (2009) FamCA 191; and
c)Stojanovski and Stojanovski (No. 2) (2007) FamCA 1442
d)as cases which may give the court some assistance. The difficulty with this however, is that it is evident from those authorities that parental alienation syndrome is a concept that has not generally been accepted. The results of the research undertaken by the Family Court of Australia Task Force indicate that children’s rejection of a parent can be for multiple reasons. This is something I have alluded to previously in this judgment.
Furthermore, in each case referred to the Court not only had the benefit of an Independent Children’s Lawyer but also multiple reports to provide the Court with a neutral window into the lives of the parties. Neither party sough the appointment of an Independent Children’s Lawyer. Neither party sought a review or an updated report taking into account the fact that the report of Ms Cavanagh was undertaken in February of this year.
In the circumstances, the Court was left with the conflicting evidence of each party and the report of Ms Cavanagh upon which I have commented. Having considered the authorities and the evidence in this matter, I was unable to accept the submissions of the mother’s Counsel.

Conclusion

Neither party has a lot to be proud of in the history of this matter.
It is fortunate that the children have, in spite of all of the obstacles that have arisen from the conflict between their parents, managed to do as well as they have.
It is now time for the parents to set aside the matters that plagued their relationship and focus on putting their children’s interests first.
I have commented in these reasons on the events that occurred on the weekends of 12 and 26 June and 24 July 2009.
Without going into the reasons why it occurred, the mother did not get to spend time with the children on those weekends as envisaged.
I have therefore ordered that she have additional time in the September and Christmas school holidays this year.
The mother currently has an Application for Contravention filed on

2 July 2009. That Application was adjourned generally by agreement.
Unfortunately this did not follow the path where the matters the subject of the Contravention Application should be dealt with prior to further evidence being taken.
To some extent it has now been addressed and it would be appropriate for the parties to draw a line in the sane and conclude all proceedings.
This has been a finely balanced matter and the parties need to appreciate that they have allowed the children to have a voice and that voice should be listened to.
It has been submitted that those wishes may have been overborne however I do not find this to be so. It needs to be acknowledged that the children are well settled in the [O] community and that for the reasons that may not relate to the particular parenting skills of each party, it will be in their best interests for them to continue their education in [O] for the foreseeable future.
In some ways [O] could be seen to provide the children with some stability in an environment where they have lost the privilege of having both parents residing with them and under the one roof. At the same time, having decided that they stay in [O], a heavy responsibility falls upon their father’s shoulders. It is now up to him to work as hard as possible to assist the children to repair their relationship with their mother and more importantly, to facilitate and encourage that relationship to the point that the children will have a healthy balance and a good relationship with both parents.
In the event that this does not occur, then the father will need to have a close look at his actions to ensure that he has not abdicated his responsibility as a parent toward the children by providing them with a loving environment from which they can exercise a healthy and ongoing relationship with their mother.
I have where possible adopted that the recommendations of the report writer Ms Cavanagh.
I've also where possible attempted to incorporate the alternative proposals of the mother.
It is extremely important that the children maintain a meaningful relationship with each parent. On the evidence before me I have found in what is an evenly balanced case that there is more prospect of that occurring if the children remain where they are. This means that the responsibility for ensuring the children continue to have a relationship with their mother lies heavily on the shoulders of the father who must now make every reasonable effort to ensure that the relationship is repaired and prospers in the best interests of the children.
To assist them I have made an additional order that they attend a parenting course for separated parents that will hopefully enable them to refocus on the needs of the children. [X] is in Year 6 and will shortly be having to consider his secondary school options. It would be appropriate for the parties to consider how this should be undertaken and try to start some discussions on the future of the children.

I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of Cole FM

Associate: Ms H Priest

Date: 28 August 2009