Nielson & Varley
[2021] FedCFamC2F 225
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nielson & Varley [2021] FedCFamC2F 225
File number(s): PAC 4027 of 2009 Judgment of: JUDGE NEWBRUN Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – parenting – best interests of children – orders made Legislation: Family Law Act 1975 (Cth), ss 60CC, 60B, 60CA, 61DA, 65DAA, 65D
Evidence Act 1995 (Cth), s 140
Cases cited: Jones v Dunkel (1959) 101 CLR 298 Division: Division 2 Family Law Number of paragraphs: 266 Date of last submission/s: 15 September 2021 Date of hearing: 13, 14 & 15 September 2021 Place: Parramatta Counsel for the Applicant: Mr Jackson of Counsel Counsel for the Respondent: Mr Hill of Counsel Counsel for the Independent Children's Lawyer: Mr Greenaway of Counsel ORDERS
PAC 4027 of 2009 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NIELSON
Applicant
AND: MS VARLEY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.That all previous Orders be discharged.
2.That the parents have equal shared parental responsibility for each of the children X born in 2005(“X”); Y born in 2006 (“Y”) and Z born in 2006 (“Z”).
3.That the child X live with the Father.
4.That X spend time with the parent with whom she is not living during the school holidays as arranged between the parties.
5.That the child Z live with the Father until end of 2021 by agreement, and in default of agreement on and from 2 January 2022 the child Z live with the Mother.
6.Upon Z living with the Mother pursuant to these Orders, she spend time with the Father for one half of each Queensland school holiday periods or otherwise as agreed between the parties in writing.
7.That the child Y live with the Father.
8.Y spend time with the Mother for one half of each of the NSW school holiday periods or otherwise as agreed between the parties in writing.
9.That the Mother be responsible for and bear the costs of the children’s travel during the times when the children spend time with each parent pursuant to these orders.
10.That the children and each of them be permitted to speak with each of their parents and/or siblings as they wish, and the parents shall each do all reasonable things to facilitate such communication.
11.That the parents and each of them, do all things reasonably necessary to ensure that the children and each of them spend as much time together as practicable with their siblings.
12.That each parent authorise the school or schools which each of the children may from time to time attend to provide to each parent with copies of all school reports and other documents which the parents would each ordinarily be entitled to receive, and for the purpose of such authorisation this Order shall be deemed to be sufficient authority.
13.That each parent shall do all things necessary to ensure that the names, addresses and contact details of each parent is included in the enrolment details of each of the children.
14.That each parent be granted leave to provide a copy of these sealed Orders to each of the schools which the children may from time-to-time attend.
15.That each parent shall promptly inform the other in the event that the children or any of them suffer a serious illness or accident which requires hospitalisation, including but not limited to the name of the hospital and the nature of the illness or accident.
16.That each parent shall keep the other informed of their residential address and contact telephone number and promptly inform the other in the event of any change.
17.That each of the parents be and are hereby restrained from making any critical and/or derogatory remarks in relation to the other party or members of their family in the presence and hearing of the children or any of them and shall do all things reasonably necessary from permitting any third party so to do.
18.Within 7 days the Father do all things reasonably necessary to enrol each of the children X and Y with Headspace Suburb B and/or Western Area Adolescent Team Suburb B and do all things reasonably necessary to facilitate their attendance, including facilitating any request of each child to speak with any counsellor and/or attend upon the Service.
19.The Father shall authorise the Mother to be registered with Headspace and/or Western Area Adolescent Team Suburb B as a contact parent upon registration of the children to such services, and for the purposes of such authorisation this Order shall be deemed sufficient authority.
20.Within 7 days the Father do all things reasonably necessary to enrol Y in the Home Work Club at the C School and facilitate his attendance there as required.
21.Within 7 days, the Father do all things reasonably necessary to liaise with C School to enquire as to any other educational support and/or mentoring services that may be available or connected with the school for Y.
22.That the Independent Children’s Lawyer be requested to speak with each of the children for the purpose of explaining to them the Orders of this Court and for that purpose the parent with whom the children are with upon the publication of these Orders shall do all things necessary to ensure that the children are made available to speak with the Independent Children’s Lawyer at her request, in a timely manner.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Nielson & Varley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final parenting hearing relates to the children X born in 2005, Y born in 2006 and Z born 2006.
PROPOSALS
The Father’s proposals were set out in Annexure A to his Amended Initiating Application filed 24 November 2020 being:
1.That the Orders of the Federal Circuit Court at Parramatta 12 July 2011 be discharged.
2.That the children X (b.2005, Y (b.2006) and Z (b.2006) live with the Father.
3.That the parties have joint parenting responsibility in relation to the children Y (b.2006), Z (b.2006), and X (b.2005).
4.That X spend time with the Mother in accordance with her wishes.
5.That the children Y and Z spend time with the Mother during the term 1, term 2 and term 3 of the NSW school holidays as arranged between the parties and failing agreement, from the day following the last gazetted day of NSW school term to the Wednesday of the second week of the school holidays.
6.That the children Y and Z spend time with the Mother during half of Christmas school holiday periods, as agreed between the parties and failing agreement during the first half in even numbered years and the second half in odd numbered years.
7.For the puposes of calculating time the holidays will commence on the first Saturday day following the last gazetted NSW school day and end of the Saturday proceeding commencement of the school term.
8.The Mother shall be responsible for the costs of the travel of the children including X.
9.That the Father will sign such authories and do such things as may be necessary to authorize the children's school to forward to the Mother copies of the children school reports, and that the Mother is hereby authorized by the Father to speak to the children's teachers and the principal in relation to the progress of the school.
10.The Mother may attend such activities at the children's schools as parents normally attend.
11.The parties shall ensure that the other is kept informed of the following inforrmation in relation to the children:
(i)Any serious medial problems or severe illness suffered by the children whilst they are in their care;
(ii)Any medication that has been prescribed to the children, and the reason for such medication;
(iii)Any treatment that is required to be undertaken for the children;
(iv)Any social, school or religious function that the children is to attend from time to time;
(v)The residential address and telephone contact details of the parties and any changes to such details within 24 hours, and the particulars of any other person who may reside in the same home as the children from time to time; and
(vi)Any other matter revelant to the children’s welfare.
12.For the purposes of communicating information between the parties, parties shall;
(i)Communicate by telephone in regards to matters of an urgent nature; and
(ii)Otherwise, communicate by text message and email about the day to day matters including arrangements for each party to spend time with the children.
13.That each party refrain from making critical or derogatory remarks in relation to the other parties in the presence or hearing of the children and that each party shall do all things necessary to ensure that no third party makes any such critical or derogatory remarks about the other parties in the presence of hearing of the children.
14.That the parties refrain from discussing the Court proceedings or showing the children any Court documents that have been filed in these proceedings.
The Mother’s proposals were set out in her proposed Minute of Orders being:
1.That the parents have equal shared parental responsibility for each of the children X born in 2005 (“X”); Y born in 2006 (“Y”) and Z born in 2006 (“Z”).
2.That the child X live with the Father.
3.That X spend time with the Mother as agreed in writing between the parents, but failing agreement, as follows:
(a)In Term 4 2021 school holiday time, from the second half of the NSW school holidays
(b)In Term 1 2022 school holiday time, from the second half of the NSW school holidays
(c)In Term 2 2022 school holiday time, from the second half of the NSW school holidays
(d)In Term 3 2022 school holiday time, from the second half of the NSW school holidays
(e)In Term 4 2022 – 2023 school holiday time, from the first half of the NSW school holidays
4.That the child Z live with the Father until end of 2021 as agreed in writing between the parents, and in default of agreement not before 10 January 2022 the child live with the Mother.
5.Upon Z living with the Mother pursuant to these Orders, she spend time with the Father as agreed between the parties in writing, but failing agreement, as follows:
(a)In Term 1 2022 school holiday time, from the second half of the QLD school holidays
(b)In Term 2 2022 school holiday time, from the second half of the QLD school holidays
(c)In Term 3 2022 school holiday time, from the second half of the QLD school holidays
(d)In Term 4 2022 – 2023 school holiday time, from the second half of the QLD school holidays
(e)In Term 1 2023 school holiday time, from the second half of the QLD school holidays
(f)In Term 2 2023 school holiday time, from the second half of the QLD school holidays
(g)In Term 3 2023 school holiday time, from the second half of the QLD school holidays
(h)In Term 4 2023 – 2024 school holiday time, from the first half of the QLD school holidays
(i)In Term 1 2024 school holiday time, from the second half of the QLD school holidays
6.That the child Y live with the Father.
7.Y spend time with the Mother as agreed in writing between the parents, but failing agreement, as follows:
(a)In Term 4 2021 school holiday time, from the second half of the NSW school holidays
(b)In Term 1 2022 school holiday time, from the second half of the NSW school holidays
(c)In Term 2 2022 school holiday time, from the second half of the NSW school holidays
(d)In Term 3 2022 school holiday time, from the second half of the NSW school holidays
(e)In Term 4 2022 – 2023 school holiday time, from the first half of the NSW school holidays
(f)In Term 1 2023 school holiday time, from the second half of the NSW school holidays
(g)In Term 2 2023 school holiday time, from the second half of the NSW school holidays
(h)In Term 3 2023 school holiday time, from the second half of the NSW school holidays
(i)In Term 4 2023 – 2024 school holiday time, from the second half of the NSW school holidays
(j)In Term 1 2024 school holiday time, from the second half of the NSW school holidays
8.That the Mother be responsible for and bear the costs of the children’s travel during the times when the children spend time with each parent pursuant to these orders.
9.That the children and each of them be permitted to speak with each of their parents and/or siblings as they wish, and the parents shall each do all reasonable things to facilitate such communication.
10.That the parents and each of them, do all things reasonably necessary to ensure that the children and each of them spend as much time together as practicable with their siblings.
11.That each parent authorise the school or schools which each of the children may from time to time attend to provide to each parent with copies of all school reports and other documents which the parents would each ordinarily be entitled to receive, and for the purpose of such authorisation this Order shall be deemed to be sufficient authority.
12.That each parent authorise the school or schools which each of the children may from time to time attend to allow each parent to attend all school functions and ceremonial and sporting events which the parents would each ordinarily be entitled to attend, and for the purpose of such authorisation this Order shall be deemed to be sufficient authority.
13.That each parent shall do all things necessary to ensure that the names, addresses and contact details of each parent is included in the enrolment details of each of the children.
14.That each parent be granted leave to provide a copy of these sealed Orders to each of the schools which the children may from time-to-time attend.
15.That each parent shall promptly inform the other in the event that the children or any of them suffer a serious illness or accident which requires hospitalisation, including but not limited to the name of the hospital and the nature of the illness or accident;
16.That each parent shall keep the other informed of their residential address and contact telephone number and promptly inform the other within 48 hours in the event of any change.
17.That each of the parents be and are hereby restrained from making any critical and/or derogatory remarks in relation to the other party or members of their family in the presence and hearing of the children or any of them and shall do all things reasonably necessary from permitting any third party so to do.
18.Within 7 days the Father do all things reasonably necessary to enrol each of the children X and Y with Headspace Suburb B and Western Area Adolescent Team Suburb B and do all things reasonably necessary to facilitate their attendance, including facilitating any request of each child to speak with any counsellor and/or attend upon the Service.
19.The Father shall authorise the Mother to be registered with Headspace and WAAT as a contact parent upon registration of the children to such services, and for the purposes of such authorisation this Order shall be deemed sufficient authority.
20.Within 7 days the Father do all things reasonably necessary to enrol Y in the Home Work Club at the C School and facilitate his attendance there as required.
21.Within 7 days, the Father do all things reasonably necessary to liaise with C School to enquire as to any other educational support and/or mentoring services that may be available or connected with the school for Y.
22.That the Independent Children’s Lawyer be requested to speak with each of the children for the purpose of explaining to them the Orders of this Court and for that purpose the parent with whom the children are with upon the publication of these Orders shall do all things necessary to ensure that the children are made available to speak with the Independent Children’s Lawyer at her request, in a timely manner.
23.That all previous Orders be otherwise discharged.
Note:
A.Pursuant to Order 4, it is accepted that the children X and Y will be travelling to QLD to spend time with their Mother on 10 January 2022 and it is agreed to by both parents that the child Z shall travel with her siblings to relocate to QLD to live with the Mother.
The ICL’s proposals were set out in her proposed Minute of Orders being:
1.That the parents have equal shared parental responsibility for each of the children X born in 2005(“X”); Y born in 2006 (“Y”) and Z born in 2006 (“Z”).
2.That the child X live with the Father.
3.That X spend time with the parent with whom she is not living during the school holidays as arranged between the parties.
4.That the child Z live with the Father until end of 2021 by agreement, and in default of agreement on and from 2 January 2022 the child live with the Mother.
5.Upon Z living with the Mother pursuant to these Orders, she spend time with the Father for one half of each Queensland school holiday periods or otherwise as agreed between the parties in writing.
6.Pending Z living with the Mother pursuant to these Orders she spend one half of the term 3 school holiday period with the Mother.
7.That the child Y live with the Father.
8.Y spend time with the Mother for one half of each of the NSW school holiday periods or otherwise as agreed between the parties in writing.
9.That the Mother be responsible for and bear the costs of the children’s travel during the times when the children spend time with each parent pursuant to these orders.
10.That the children and each of them be permitted to speak with each of their parents and/or siblings as they wish, and the parents shall each do all reasonable things to facilitate such communication.
11.That the parents and each of them, do all things reasonably necessary to ensure that the children and each of them spend as much time together as practicable with their siblings.
12.That each parent authorise the school or schools which each of the children may from time to time attend to provide to each parent with copies of all school reports and other documents which the parents would each ordinarily be entitled to receive, and for the purpose of such authorisation this Order shall be deemed to be sufficient authority.
13.That each parent shall do all things necessary to ensure that the names, addresses and contact details of each parent is included in the enrolment details of each of the children.
14.That each parent be granted leave to provide a copy of these sealed Orders to each of the schools which the children may from time-to-time attend.
15.That each parent shall promptly inform the other in the event that the children or any of them suffer a serious illness or accident which requires hospitalisation, including but not limited to the name of the hospital and the nature of the illness or accident;
16.That each parent shall keep the other informed of their residential address and contact telephone number and promptly inform the other in the event of any change.
17.That each of the parents be and are hereby restrained from making any critical and/or derogatory remarks in relation to the other party or members of their family in the presence and hearing of the children or any of them and shall do all things reasonably necessary from permitting any third party so to do.
18.Within 7 days the Father do all things reasonably necessary to enrol each of the children X and Y with Headspace Suburb B (“the service”) and do all things reasonably necessary to facilitate their attendance, including facilitating any request of each child to speak with any counsellor and/or attend upon the Service.
19.The Father shall authorise the Mother to be registered with Headspace as a contact parent, and for the purposes of such authorisation this Order shall be deemed sufficient authority.
20.Within 7 days the Father do all things reasonably necessary to enrol Y in the Home Work Club at the C School and facilitate his attendance there as required.
21.The Father do all things reasonably necessary to liaise with C School to enquire as to any other educational support and/or mentoring services that may be available or connected with the school for Y.
22.That the Independent Children’s Lawyer be requested to speak with each of the children for the purpose of explaining to them the Orders of this Court and for that purpose the parent with whom the children are with upon the publication of these Orders shall do all things necessary to ensure that the children are made available to speak with the Independent Children’s Lawyer at her request, in a timely manner.
23.That all previous Orders be otherwise discharged.
The Father relied upon the following documents:
(a)Case Summary filed 9 September 2021;
(b)Amended Initiating Application filed 24 November 2020;
(c)his trial Affidavit filed 7 September 2021;
(d)the Family Report of Dr D dated 13 March 2020.
The Mother relied upon the following documents:
(a)her Case Outline filed 9 September 2021;
(b)her Affidavit filed 16 February 2021;
(c)Affidavit of Mr E filed 26 February 2021;
(d)Tender bundle of documents (index and 5 pages dated 9 September 2021).
The ICL relied upon her Case Outline filed 7 September 2021 and the above Family Report.
The following Exhibit was relied upon:
(a)Family Report of Dr D: exhibit A.
EVIDENCE
At the outset the Court should state that in determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons (including under the Court’s discussion of the s 60CC Family Law Act 1975 (Cth) (“the Act”) considerations), the Court will refer to a number of facts, and any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities (see section 140 of the Evidence Act 1995 (Cth)).
The Father’s trial Affidavit
The Father is aged 43 years. The Mother is aged 39 years.
The parties commenced a relationship in 1999 and separated on a final basis in 2008.
The parties had 5 children of their relationship: Ms F now aged 20 years, Mr G now aged 19 years, X now aged 16 years, and Y and Z, twins, now aged 15 years.
The Father has 2 children from a later relationship with Ms H, namely J now aged 8 years, and K now aged 9 years. J lives with the Father and has not spent time with his Mother since October 2018. K lives with her Mother and the Father has not spent time with her since September 2018.
Ms F and Mr G live with their partners in Brisbane and Suburb L respectively.
The Father has a close relationship with Ms F and communicates with her regularly. Ms F and her partner have a baby, M aged 1 years. The Father has had limited contact with Mr G since he moved out of the family home in July 2020.
The children X, Y and Z presently live with the Father and spend time with the Mother, who lives in Brisbane, during school holiday periods.
On 12 July 2011 the parties agreed to final parenting Orders providing, inter alia, that the parties’ children, which included the above children and two older children, Mr G and Ms F, be subject to an equal time arrangement between the parties, and that the parties have equal shared parental responsibility for the children.
In about February 2019 the Mother told the Father that she wished to move to Queensland as she and Ms F had found employment there.
At the end of February 2019 the children came to live with the Father on a permanent basis.
On 8 March 2019 the Mother made a statutory declaration stating, inter alia, that the children live with the Father and visit her half of all holidays at a Brisbane address to be given to the Father. The declaration stated, “This is all temporary until sorted in family court.”
The Mother vacated her home at Suburb N in early April 2019 and moved to Queensland.
In mid-April 2019 the children flew to Brisbane to visit the Mother during the school holidays. On 29 April 2019 when the children were due to return to Sydney the Mother informed the Father that Z was refusing to return to Sydney unless it was for holidays only.
On 2 September 2019 this Court ordered that the Mother cause Z to be returned to the Father’s primary care by 6 September 2019. Since this latter date, the children have remained in the Father’s care and have continued to spend time with the Mother during the school holiday periods throughout 2020 and 2021 subject to Covid 19 travel and quarantine restrictions.
The Father is a full-time parent to the children. He is also a full-time carer for J. The Father and the children live in a four bedroom house at Suburb O which the Father rents through the Department of Housing. The paternal grandparents live less than five minutes’ drive away in Suburb N and the paternal aunt lives two streets away (in Suburb P).
The paternal aunt has 6 children aged between 6 and 16. The children enjoy spending time with their cousins.
The Father initially found it difficult to adjust to suddenly becoming the sole caregiver of several teenagers and a young child with special needs.
Z and X do some activities together and share a bedroom. The Father has observed that they appear to be very close and Z appears to be closer to X than to her twin Y.
The child J has been diagnosed with global developmental delay, speech delays and attention deficit hyperactivity disorder. He attends Year 1 at a public school in a special class where he receives extra support for his learning difficulties. The Father is this child’s sole carer. This child occasionally co-sleeps with the Father although he has his own bedroom. This child attends occupational therapy once a month, and speech therapy once a fortnight. The Father has observed that J has a particularly close relationship with Z.
The Father, is a stay-at-home parent for children, and the sole carer for a disabled child, cannot work, and struggles financially. He receives a carer’s pension and family tax benefits. He has significant debts and bills. He requires a car to drive the children to and from school and to take J to his regular medical appointments at Suburb L. He receives varying amounts of child support, usually about $17, each fortnight from the Mother. Given his limited income and significant liabilities, the Father is unable to save money or contribute towards the cost of flights for the children to visit the Mother in Brisbane in the school holidays.
The children have indicated to the Father that they experienced feelings of abandonment in response to the Mother’s relocation, telling him, “she chose her boyfriend over us”, words to that effect.
Y, Z and X attend C School at Suburb N. The twins are in Year 10, and X is in Year 11. Since the start of Term 3, 2021 in mid-July, the children have attended school remotely due to Covid 19 restrictions. The Father has provided the children with their own desks in their respective bedrooms, internet access, laptops and iPads, and access to a printer.
The Father takes the children to school by car each morning and picks them up at the end of the school day. He states that once the children are on the school campus, they often leave the campus or sign into school late. He states that it is impossible for him to ensure that the children attend class throughout the day.
The Father annexes to his trial Affidavit certain copies of the children’s school reports for 2019, 2020 and first semester 2021.
The child X appears to be progressing quite satisfactorily in year 11.
The child Y received very concerning adverse school reports for Semester 1 2021; the year adviser stated that he has not worked to the best of his ability this semester due to irregular attendances and inconsistent efforts in class. One of Y’s teachers referred to their deep concern with Y’s level of truancy.
Z’s school absences were quite high in 2019 and 2020 with some reduction in her school absences in Semester 1 in 2021, however, at least two of her teachers referred to her inconsistent attendances in class. Z’s year adviser for Semester 1 in 2021 referred to Z’s mixed results for year 10 this semester.
The Father asserts that he is in regular contact with the deputy principal of the children’s school, “in order to monitor the children’s academic progress and school attendance.”
Prior to the Covid 19 travel and gathering restrictions, Z attended Youth Group at Q Group on a fortnightly basis, and occasionally attended church on Sundays. In May 2021, Z completed 6 days of work experience at Employer R and was later offered a job in July.
The children last visited the Mother and Ms F in Brisbane during the April 2021 school holidays.
In July 2020 the children flew to Brisbane to stay with the Mother and the Father followed with J a few days later to stay with Ms F. X and Z elected to stay with Ms F instead of the Mother. The Mother sent X and Z messages by way of a group chat on the Facebook Message platform saying, “I’ll just go kill myself make it so much easier for all of you to move on with your lives since I’m so much of a burden.” One of these children responded to the Mother’s message by stating, “Now your just being stupid.”
The children primarily communicate with the Mother by way of text message, through Facebook Message, or by videoconference on a weekly basis.
The Father has observed that of the children, Y appears to have the strongest bond with the Mother, often electing to stay at her home when visiting Brisbane whilst Z and X prefer to stay with Ms F.
The parties communicate solely by email, and usually only in relation to travel arrangements. They rarely communicate regarding the day-to-day care of the children.
The Father states that given Y, Z and X are aged 15, 15 and 16 respectively he would respect their wishes if they chose to live with the Mother. However, he asserts that the children have told him that they want to keep living with him. The Father states that he has observed that the children have been able to maintain a meaningful relationship with the Mother through frequent communication and regular visits during school holidays.
The Father asserts that the children are settled into their respective schools and have formed close friendships. He asserts that they have a close relationship with J, with the paternal aunt, cousins and paternal grandparents who live close by.
The Mother’s trial Affidavit
Ms F lives in Queensland about 15 – 30 minutes from the Mother’s home.
The Mother has continued to remain in regular contact with the children by telephone messages. She often speaks to Z three times per week, Y two times per week, and X about once a month, “at the moment due to our relationship breaking down.”
On 20 April 2019 Z refused to go back to Sydney to live with the Father. She told the Mother that she didn’t want to go back to the Father’s home because his house was overcrowded, the Father was yelling at her all the time, and she didn’t want to keep looking after J all the time. The Mother enrolled her into S School on 29 April 2019 in year 8. The Mother states that Z had been attending this school each day and had not missed a day of school. The Mother states that Z’s grade average improved 3 levels and she attended after school tutoring. The Mother had purchased all of Z’s school uniforms and paid all fees in relation to her enrolment.
The Semester 1, 2019 school report for Z from S School stated, inter alia, that Z’s effort and behaviour was very good in the subjects Drama, Well-being, Health and Physical Education, and English. In the subjects Humanities and Social Sciences, Economics and Business, her effort and behaviour was stated in satisfactory. In the subject
sMathematics her effort and behaviour was stated as needing attention. In the subject Science, her effort was stated as needing attention, however, her behaviour was very good.The Mother stated that Z had made a lot of new friends (whilst living with the Mother in Brisbane in 2019). Z’s self-esteem and confidence improved. Z’s previous diagnoses of anxiety and trichotillomania was much better whilst Z lived with the Mother. Z played basketball for a team under 14’s, she attended training on two days each week and games on Saturdays. Z maintains contact with her siblings via Facebook, Snapchat and video calls and spoke to them daily. She also spoke with J via video chat. Z expressed a very strong view that she had wanted to remain living in Queensland with the Mother. On one occasion prior to April 2019 she went to her teachers at her school in Suburb N and tried to get information on how she could come and live with the Mother.
The Mother states her understanding that X does not wish to live with her and relocate from New South Wales. The Mother states that her relationship with X is currently strained.
The Mother states that because of the children’s ages she would seek for them to decide where they want to live once they are 15 years old.
The Mother states that she lives in the Suburb T area in Queensland in a three-bedroom home. She states that she works 38 hours per week on a casual basis at a company. She states that she commenced to work with this company 10 weeks ago.
The Mother states that her partner Mr E gets along well with all of the children and they are comfortable around each other.
The Mother states that she intends on remaining living in Queensland. She states that she has a lot of support in Queensland including friends and family living in Queensland between City V and Brisbane and in Suburb W.
The Mother states that if Y and Z were to live with her she would enrol them both at Suburb T State College.
The Mother states that due to a X’s age she accepts that she would be able to choose where she lives and how much time she spends with the other parent.
Affidavit of Mr E
Mr E is aged 38 years. He works full-time as a hospitality worker. He commenced a relationship with the Mother in December 2018 and they have lived together since April 2019.
He states that he understands that the Mother is seeking for Z and Y to live with the Mother and himself and for X to make her own decisions as to where she lives. He states his belief that the children are at an age where they can make choices for themselves. He states that if the children can live with himself and the Mother, they would enrol them at Suburb T State College and get them involved in extracurricular activities outside of school. He states that he and the Mother would ensure that they take care of all the children’s day-to-day and long-term needs, including medical, education, financial, moral support and everything else that they may need. He states that he treats the children as his own and he sees them as his children, he loves them as his children, and his family accept them as his children.
He states that during the Christmas holidays in 2019 there was a misunderstanding which made communication between himself and X rocky. Since this time, he states that he has been trying to mend the relationship with X.
He states that when Z was attending the S State College he and the Mother went to Z’s parent teacher interviews, and the teachers told them that Z had improved in the short time that she had been in their care. He states that whilst Z was staying with himself and the Mother he would often help Z with her homework and drop off and collect Z from school. They enrolled Z in basketball which she really enjoyed playing.
Oral evidence of the Father
The Father gave oral evidence and was cross-examined. The Court does not propose to set out the entirety of his oral evidence.
The Father stated that he drops off the children at school at 8:30 AM each school day and then he drops off his younger son J at his school.
The Father stated that he had spoken to Y and his principal and his woodwork teacher, and his advisor, regarding his school grades.
The Father was asked whether he had seen the mathematics school report for Z for Semester 1, 2021. The Father stated that she could try a bit better.
The Father was asked whether he had spoken to the children after he had seen their school report. He stated that he had, and he had told the children that if they needed help to speak to their year advisors. He stated that he had not spoken to their year advisors due to Covid.
The Father stated that Y had been suspended from school just before the school holidays at the start of the year for playing with a fire extinguisher. The Father spoke with the deputy principal over the telephone after the school holidays. He stated that Y had incurred another suspension for being out of bounds and not speaking to a teacher at the start of the year, 2021. He stated that Y had been suspended a few times in 2019.
The Father was asked what he had done to help Y. The Father stated that he had asked Y why he got suspended. He had told Y, inter alia, that if he had problems he should speak with his teacher.
The Father was asked what does Y do at home and he stated that Y plays his videogames. He stated that prior to the Covid lockdowns, Y had no social activities.
The Father did not inform the Mother of the above suspensions because he was aware that the school could inform the Mother about them.
The Father acknowledged that Y’s school attendance in 2021 was worse than what it was when the family report was written (13 March 2020). He stated that if a child now has a runny nose or a cold, they have to stay home, being the school’s Covid rules.
The Father was asked what was Y’s bedtime. The Father stated that during school nights, he went to bed at 10 – 10.30 p.m. He stated that on weekends it was a bit later.
The Father stated that he usually wakes up between 7 AM and 7:30 AM and that the child J gets up at the same time as the Father. He stated that Y and Z wake up between 7:45 AM to 8 AM, as does X.
The Father was asked what breakfast the children had. The Father stated that he let the older children do it themselves if they need it. He got J’s breakfast.
The Father stated that he helps J with his school work. He stated that the other children do their online work. He referred to the children’s booklet work.
The Father stated that he did not know Y and Z’s online learning in the subjects Mathematics, English and Science. He stated that he did not know any of the specifics of the twin’s online learning. He stated that he did not specifically sit down with the twins to help them with their online learning. However, he did sit down and help J with his online learning; he stated that J has special needs and is not capable of doing it himself. He stated that the older children are able to do it themselves and ask for help when they need it.
The Father’s attention was drawn to paragraph 163 of the family report which stated that the educational issues relating to the twins pointed to serious consideration being given to them living in Brisbane and having the Mother monitor and encourage their education and his response was sought. The Father stated that he did not agree because the children have their own school. He stated they were settled. He stated that they have friends and know their teachers.
The ICL cross-examined the Father.
The Father stated that the Mother was on the children’s enrolment forms for their school.
The Father stated that the parties had had no discussions about the children’s school reports.
The Father was asked if he was aware whether the Mother speaks to the children, by phone or FaceTime or other communication. The Father replied in the affirmative stating that he was aware of a group chat occurring through FaceTime. He stated that that occurred regularly. He stated that the children speak to the Mother in their own room and he does not interfere. He stated that the children do not speak to him about their discussions with the Mother.
The Father agreed that because of J’s special needs he needed to be a full-time carer for him.
The Father stated that the children all have a good relationship with J, especially Z.
The Father confirmed that the twins had each obtained casual employment to begin after Covid lockdown.
The Father was asked whether he saw it might be of assistance to Y if the parties could talk from time to time about his problems at school. The Father stated that it would make no difference because the parties never spoke about the children’s schooling when the Mother was in Sydney. He then stated that it may or may not help.
The Father stated that a couple of years ago he had undertaken the parenting courses Triple P, Triple P Stepping Stones, and the 1 2 3 Magic course. The courses had helped him in particular at trying to look at the situation from the child’s point of view.
The Father was asked about the children’s partial absences from school. He stated that even if the children are a few minutes late that it would be recorded as a partial absence.
The Father stated that the children’s school was 4.3 km from his home. School starts with a bell at 8:50 AM, then there is Roll Call, and the first class begins after that. The child J commenced class at 9 AM. He stated that he got the children to school well before the bell rang so he did not understand why they were late.
The Father was questioned as to the children’s significant absences from school in 2020. He stated that the children had not refused to go to school or truanted. He stated that in the beginning of 2020 the paternal grandfather was in hospital and close to death and he had the children with him and which explained most absences last year. He stated that the paternal grandfather had recovered.
The Father was questioned as to Y’s whole day absences from school this year. The Father stated that Y has not been well, or he has had cold symptoms, and the school encourages him to stay home. The Father acknowledged that there were occasions when the children had days off school unrelated to Covid. He stated that they had told him that they were ill and he had kept them at home. He stated that sometimes he had got a bit suspicious as to whether the children were telling him the truth and if need be he took them to the doctors to make sure. He stated that he would ask the children what was wrong with them to see if they were actually sick, and if they were not sick he would tell them to go to school.
Oral evidence of the Mother
The Court does not propose to set out the entirety of the Mother’s oral evidence.
The Father cross-examined the Mother as to the family’s group chat online communication platform known as Silly family Group chat. The Mother denied that that platform contained a record of her encouraging Z to move to Queensland. She stated that her partner, in the context of the group chat, had never said anything to encourage the children to come to Queensland.
The Mother’s attention was drawn to paragraph 149 of the family report which had stated that the Mother’s attempt to find happiness, in the aftermath of her Mother’s death, and several failed relationships, had caused grief for the children, who love her and miss her in a day-to-day sense. The Mother stated that the family report writer was trying to say that the Mother trying to find happiness had upset the children. She denied that her decision to move to Brisbane had been driven by her priorities and not the priorities of the children.
The Mother stated that she took some responsibility for Mr G being ultimately unsuccessful in schooling pursuits.
The Mother was asked what she had done regarding Y’s schooling since April 2019. The Mother stated that all she can do is to telephone the school and the counsellor. She stated that she had spoken to the deputy principal and the counsellor. The Mother was asked whether she had spoken to Y. She stated that she had but Y did not want to hear it. She stated that it was hard to speak to Y now as he played video games. She stated that she could not control Y as a student because she was not there. She stated that because she was not there she could not ensure Y was at school and was staying at school, and that he did his assessments. She stated that when she speaks to Y, Y states that he doesn’t have anything. She had spoken to Y a few months ago on this topic but not since then.
The Mother stated that she had spoken to Z who had shown the Mother her school booklets that she hadn’t done. The Mother had spoken to Z about her grades a few weeks ago.
The Mother stated that the Father does not respond to her emails and she has to go through her lawyer.
The Mother was asked whether she had any solutions relating to Y’s schooling if the Father was to retain Y in Sydney. She stated that it was extra tutoring. She stated that she had suggested that in the past, in 2020. She had suggested that to the Father but had not heard anything. She stated that in 2020 she asked if there was extra tutoring after school.
The Mother stated that she had lost her employment two weeks ago.
The Mother was asked whether there was anything positive she could say regarding the Father as a Father. She stated that the children love him.
The Mother stated that Ms AA, a parent, told her that Y was constantly falling asleep about two years ago. The Mother stated that she did not follow up this issue with the school because she did not think of it at the time. Y had told the Mother about falling asleep and the Mother asked him why he was tired. The Mother stated her view that Y was losing sleep because he was playing videogames until 2 AM. The Mother stated that she doubts the sleeping issue is still a problem as no one has told her.
The Mother stated that in 2019, after she had moved to Brisbane, she had telephoned the children’s school regularly during each semester.
The Mother stated that she did not know what was happening or how Z was performing in Mathematics at school. She did not know what X was now doing in English at school. Nor what Y was doing in Geography. The Mother agreed that she could contact the school at any time. The Mother stated that there were difficulties communicating with Y about his schooling. She did not have difficulties communicating with X about her schooling.
The Mother stated that she had spoken to Z about her schooling a little. She stated that Z was not doing well at school, however, X was doing well at school.
The Mother stated she did not wish to return to Sydney to live. The Mother stated that she and her partner cannot afford to live in Sydney.
The Mother did not agree that she had tried to persuade Z to live in Brisbane. She had told Z that there was a better lifestyle in Brisbane. The Mother agreed that there were advantages to Z in staying in Sydney including that her friends were in Sydney, and the paternal grandparents were in Sydney. Those advantages would also apply to Y and X.
The Mother stated that all the children were close to J.
The Mother stated that Z was comfortable in Sydney making new friends. She stated that Z could make new friends anywhere. The Mother stated that Z would miss her siblings if she moved to Brisbane, however she also has one sibling in Brisbane and her nephew.
The Mother stated that there would be an impact on all the children if they were separated. However the Mother stated (if Z moved to Brisbane) that they would not be separated forever and they would have school holidays.
The Mother acknowledged that the child X had done fantastically at school this year.
It was put to the Mother that there is a profound lack of trust between the parties regarding arrangements for the children. The Mother replied that there had always been a lack of trust. She sends the Father messages and he does not respond.
The Mother acknowledged that her move to Queensland might have hurt the children.
The Mother stated that she did regret sending a message to X and Z (in about July 2020) stating that, “I’ll just go kill myself and make it easier for all of you to move on with your lives since I’m such a burden.” The Mother stated that at this time she was on medication, Duromine, which she believed had put her into a deep depression. She stated that she was not in the right frame of mind. She acknowledged that the message was very damaging to the children. She did hurt the children and it upset them greatly.
The Mother stated that there were messages available on the family’s Facechat as screenshots and that they could be downloaded from March 2021 to the present time.
It was put to the Mother that when Z was living with the Mother in Brisbane for about six months the Mother did not share that time with the Father then. The Mother replied by stating that she knows that Z spoke to the Father by Messenger and video chat.
The Mother was asked whether, assuming Z was living with the Mother in Brisbane, and Z refused to go and spend time with the Father, the Mother would facilitate Z spending time with him. The Mother stated that she would speak to Z. In this context the Mother stated that Z was tall and she was not a child. She stated that if Z was up here (in Brisbane), she would be more willing to go back (to Sydney) during school holidays because that is what she wants.
The ICL cross-examined the Mother.
The Mother stated that the property she is presently living in is being sold and they have to move. She stated that they are still looking for a home to rent being larger premises. She stated that Ms F and her child, aged one year, would live with her when they move. Ms F had separated from this child’s Father.
In relation to the children, or any one of them, coming to live with the Mother, the Mother stated that she wanted the children to finish school in Sydney to the end of the year.
The Mother agreed that she should not have sent X a letter from the Child Support Agency.
The Mother was asked about the relationship between the twins. The Mother stated that the twins used to be very close. She stated that they were now close but not as close as twins are. She stated that Y was very withdrawn and Z is very vibrant.
The Mother stated that she believed that all the children have reached ages where they can make up their own minds (as to where they want to live).
The Mother was asked (what she would do) if one of the children came to live with her, and after a short period of time that they decided to return to the Father. The Mother stated that she would support that and let them return to Sydney.
The Mother agreed that if one or more of the children were to come to live with her that should not happen until the end of this year so that the children can finish their schooling year and the Mother can obtain other accommodation.
Oral evidence of Mr E
The Court does not propose to set out the entirety of his oral evidence.
Mr E’s attention was drawn to paragraphs 149 and 155 of the family report. He stated that he did understand that one or all of the children had a sense of resentment towards him. He stated that he had started forming close bonds (with the children). He stated that he had formed a close bond with Z. He stated that if there was resentment, he was working on that.
He acknowledged having had disagreements with X. He stated that they worked through that and that the family report writer had given him good advice and he had used that advice. Later he stated that X was very independent and that the family report writer had made him realise that he was not the children’s Father and it was up to the Mother to discipline the children.
He stated that he first physically met Z in January/February 2019. He next saw her in April 2019.
Family Report
The family report was prepared by Dr D (the family report writer) and is dated 13 March 2020.
The family report writer interviewed the parties, the Mother’s partner and the children on 4 March 2020. (As discussed later, under the heading, “Oral evidence of the family report writer”, the family report writer interviewed the children again on 14 September 2021.)
The family report writer observed that four of the five children of the relationship between the parties live with the Father in Sydney, and spend time with the Mother during the school holidays in Brisbane. Ms F lives with the Mother and her partner in Brisbane. The Mother pays all of the fares associated with the children’s travel between Sydney and Brisbane.
The Father described Y as “quiet, real quiet”. He said that Y likes the PlayStation and his laptop computer. He said that Y is good at maths. He knows that Y would like to get a part-time job. He described Z as close to Y.
When asked to describe the Mother’s personality and temperament, the Father said that she was a good partner and a good Mother when they were together.
The Mother works occasionally outside the home as a retail worker. She is studying towards her Certificate III, and has ambitions to become a healthcare worker.
The Mother said, in relation to her decision to move to Queensland, that her plan was to get established up there, after which the children would see the obvious benefits and want to move there also.
The Mother said that the children are of an age where they know what they want and she will support whatever decision they make.
The Mother said that she is aware that Z is not close to Y, but Y feels very close to Z.
The Mother recalled that during the time that Z lived with herself and her partner for six months in 2019, that Z’s schooling was “perfect” and her homework was always done. She joined a basketball team in Brisbane and apparently loved it. The Mother said that Z cried for two days when she was told about the Recovery Order to return to Sydney.
The Mother’s partner, Mr E, told the family report writer, inter alia, that Z had made friends quickly at her new school (in Brisbane), had received help at home, and was highly regarded by the coach of her basketball team.
Z (then aged 13 years and 10 months) was interviewed by the family report writer. She is in Year 9. She said that she would like to be a photographer when she leaves school. She stated that she wants to live “down here”, because she likes her school, and her friends are here. She said that she attends a church youth group every second Friday night, and she thinks it’s fun, enabling her to meet a lot of new people.
Z stated that she told the Mother the other day that she wished to remain living in Sydney, and the Mother was shocked. She explained that now she is back in Sydney with her friends, she finds it easier than when she was in Brisbane, and she has better friends here.
Z was asked who worries about her the most, and she replied that it was probably her Mother, because the Mother is closer to her than she is to the other children. Z said that she has always told her Mother everything and been around her Mother more than she has been around her Father. She said that she does not see enough of the Mother.
Z said that she also feels very close to Ms F and misses her. Z said that she went to live with the Mother in Brisbane because she also wanted to be close to Ms F.
Z stated that the Father’s house was crowded and on a main road. She said that she shares a small room with X and does not do her homework. She said that she does not feel like doing homework and has never done it.
X told the family report writer, inter alia, that she wants to spend time with the Mother in the holidays and that she has told the Mother that she wishes to live “down here”. She said that last year she spent a lot of time sleeping at her friend’s house.
X described Y as sad and explained that he is always in his room and rarely interacts with others. At one point she described herself as the saddest person in the family.
Y was interviewed by the family report writer. When asked what he would like to do when he leaves school, Y replied “nothing”. He stated that he does no sport, has no hobbies, has no pets but enjoys playing on the PlayStation. He was not spontaneously verbal and had to be asked direct questions to elicit information.
When Y was asked about the good things about living with the Father, he said that he goes to a school he likes and gets to hang out with friends. He also likes to see his relatives (cousins) on special occasions. When asked the “bad things” about living with the Father, Y could not think of any.
Y said that it is possible he feels closer to the Father than to the Mother, because he spends more time with the Father.
When asked how he would like it to be, Y replied that he would like it to be like it was before the Mother went away with week about.
When asked if the Father checks up on his homework Y said he does not.
As to the children’s relationships, the family report writer stated that the children all have a very close sibling bond with each other and with their half-brother J.
In relation to school records of the children, the family report writer observed that Z’s attendance records in the three months of term time, after she returned from six months living with the Mother, impressed as unsatisfactory. They indicated 18 whole days absent, 11 of which were unjustified without excuse. On 8 occasions she was late because she slept in.
Regarding Z’s report for the second half of Semester 1, at S State College, her subject achievements were very mixed, ranging from the top of the achievement band (two subjects) through to the lower range of the achievement band (two subjects). In most subjects her homework was described as very good or satisfactory, but in two subject areas, science and maths, her homework was described as “requires attention”.
Under the heading, Evaluation, the family report writer stated that the Mother’s attempt to find happiness, in the aftermath of her Mother’s death, and several failed relationships, has caused grief for the children, who love her and miss her in a day-to-day sense. She stated that the Mother does appear to have formed a stable relationship with Mr E in Brisbane.
There appeared to be impediments to the Mother moving back to Sydney. Firstly, her commitment to Mr E keeps her in Brisbane. She believes she has a good lifestyle there and is in a much better environment than in Suburb B. She was originally hoping that the children might elect to come and share that better lifestyle with her. More recently, she hoped that the twins might come and live with her there.
Mr E feels that his current job gives him unique opportunities in relation to his roster, that are rarely otherwise available.
The family report writer stated that the children are all teenagers and are of an age where their wishes might be expected to carry a great deal of weight. Given a choice of moving to Brisbane or remaining in Suburb B, all of the children unequivocally expressed a wish to remain living in the Father’s household in Sydney. They did not want to leave their schools nor lose their friends. The family report writer stated that peers are very important to teenagers and it is consistent with their developmental stage that they would choose the stability of their current circumstances.
All of the children expressed satisfaction with the previous week about arrangement, and wish the Mother would come back to Sydney.
The children missed the Mother and feel that she has prioritised her relationship with her partner over them, and their needs.
The family report writer stated that the Father has a challenging job on his hands, parenting for teenagers and a young disabled child. He impressed as somewhat overwhelmed by it. He needs more support than he appears to have currently. A Family Support Service would likely be able to assist him. He also needs to find ways to liaise with the children’s teachers, and regularly monitor the children’s school attendance.
The family report writer stated that it could be argued that the Father would cope better if the Mother had the care of the twins in Queensland. Mr E claimed to have an established relationship with both children. The Mother is better positioned than the Father is currently to monitor the children’s school attendance, homework and assignments, and enrol them in extracurricular sport. She would be able to assist with Y’s social withdrawal by getting him involved in other activities, and limiting his apparent overuse of computer games. It is possible that the twins would achieve better educational opportunities and life chances living with the Mother if she has the capacity to retain them as her focus. The family report writer stated that this option does warrant serious consideration by the Court.
The family report writer stated that if the twins resided with the Mother, the Father could focus on the apparently challenging behaviours of his older children and J who has special needs. He could better monitor X’s school attendance and liaise with her teachers.
The family report writer stated that, however, apart from being contrary to the twin’s wishes, this would split the siblings, who impress as being very close with one another. She stated that X, in particular, would feel even more hurt and left out by the Mother. In observation, Y and six-year-old J played together and impressed as having an excellent rapport. If Y was separated from J, this would distress him, and there is little doubt that J, who is already challenged, would be distressed by separation from Y and Z.
The family report writer stated that if the school records perused are representative of Y, Z and X’s overall performance at school, the prognosis for the children’s educational outcomes and life chances is poor. The number of partial absences because the children slept in is alarming, and begs the question of what the Father, who was a full-time parent, is doing to support his children’s school attendance.
The family report writer stated that Mr G dropped out of school in Year 9, and apparently has gone through a period of instability. Indications are that X and Y are on the same trajectory. She stated that the danger is that the children will miss so much foundational work, especially in English, Maths and Science, that they will be unable to catch up on the basic knowledge on which to build for further learning, and will either drop out or become chronically absent to avoid embarrassment and feelings of helplessness. These educational issues point to serious consideration being given to Z and Y living in Brisbane and having the Mother monitor and encourage their education.
X categorically stated that she does not wish to move. If she lived with the Mother there is the potential for conflict between her and the Mother’s partner. The family report writer stated that with fewer children to manage, the Father might be able to better focus on X’s welfare.
The family report writer stated that there was nothing in the assessment to suggest that there should not be shared Parental Responsibility.
Under the heading Recommendations, the family report writer recommended:
(a)the parents have shared parental responsibility of the children;
(b)the children remain living in Sydney;
(c)in the event that the Mother resumes living in Sydney, the week about schedule be reinstated;
(d)the Father continually liaises with Y, Z and X’s school teachers so that he keeps up-to-date with their attendance record and educational needs;
(e)X be provided with a mentor, to guide and inspire her, to achieve her educational objectives;
(f)the Father be assisted by a community family support service in his challenging role of parenting for teenagers and young disabled child by himself;
(g)the Mother, and not her partner, discipline the children while the children are in their Mother’s care;
(h)there be open telephone contact between the children and their parents;
(i)consideration be given to Z and Y having a trial period of one year in Brisbane.
The family report writer gave oral evidence.
The Court does not propose to set out the entirety of her oral evidence.
The family report writer had reinterviewed the children, specifically Z, Y and X, on 14 September 2021.
The ICL questioned the family report writer.
The family report writer stated that she wished to make a change to her recommendations set out in her family report dated 13 March 2020.
In relation to Z, the family report writer stated that she now has a strong wish to live with the Mother in Brisbane and which was an informed choice because she was the one who had had a period of living with the mother before and attending S High School. Z realises that she will not be able to go to that high school again because the mother has now moved. Z wants to do Year 11 and Year 12 in Brisbane, whilst living with the Mother, Ms F and her nephew CC. The family report writer stated that she supports Z’s choice. Z had told the family report writer that she had discussed it with the father who accepts it. Z was strongly committed to coming down to Sydney for the school holidays to see the father and the other children. Z had told the family report writer that this was not a new decision and that she had been thinking about it for some time.
The family report writer stated, in relation to her new recommendations, that she was trying to formulate some recommendations that would give more support to the children in their emotional development and their mental health.
The family report writer stated that she recommended that Y and X attend Headspace in Suburb B. She was really concerned that the presentation of X and Y to her was quite flat in that they lacked that vibrancy that one would like to see in young people.
The family report writer stated that X and Y need additional support. She considered that they were quite vulnerable and at risk and had been experiencing the level of depression particular since the mother left and went to Queensland. She stated that Headspace was a mental health service for adolescents. It provided preventative work for vulnerable persons at risk. She stated that these children should attend Headspace.
The family report writer stated that she was concerned that Y spends most of his time in his room playing computer games and eats in his room as well. The family report writer stated that she was concerned that Y was getting quite behind in his schoolwork. Y had told the family report writer that he did not have a very good idea at all of what the school paperwork means and was not clear about the questions.
The family report writer had telephoned Y’s school and spoke to a person there. They had told the family report writer that there was additional support available for Y. There was a homework centre at the school with two teachers supervising. They recommended that the Father contact the child’s Year adviser and discuss Y attending the homework centre and what the process might be. There was a very substantial booklet to be picked up for Year 10 students; Y would have to complete this booklet for the end of year assessment.
The family report writer stated that she had interviewed X, aged 16 years and 7 months, and she had expressed her views. X unequivocally wanted to stay with the Father in Sydney. X had stated that she does not have a distant relationship with the Mother any more and she was not angry anymore. X had stated that she wants to finish school with her family here. She was happy to visit the Mother during her school holidays.
The family report writer confirmed that X had been able to express an opinion with insight as to what she wants so that it would be counter-productive to make an order against her wishes. In this context, the family report writer stated that X was in Year 11 and it would be very disruptive for X to move elsewhere at this stage of her education.
In relation to Z, the family report writer stated her definite view that Z was a mature teenager. She gave this oral evidence in relation to Z:
And did you gain the understanding at all that she appeared to have given at least age-based mature consideration to her thoughts? Yes, I do. And also my line of questioning, I think, fleshed it out more because I was thinking in terms of attachments and whether, you know – which particular siblings she might miss, and how she would cope with those issues. And, look, she really gave satisfactory answers. She’s very close to X and, you know, but she said that she will probably still be in daily touch with X by FaceTime or – what was it? FaceTime or SMS and
Yes? Yes. So, I mean, there’s a closeness there, I think, that’s not going to change. I suppose the nature of the relationship could change a little in that they’re not together in a day-to-day sense. But, you know, bearing that in mind, she had made the decision that she wanted to live with her mother and do her HSC up there. And she said, “And I will be coming back when I’m 18.” So she regards it as – you know, as for the rest of her schooling rather than a forever move.
And also, do you see that, having regard to her age and the state of her maturity, that it would, in fact, be counterproductive to make an order not in accordance with her wishes? Yes, I do, definitely.
And why do you say that, Dr D? Could you flesh that out a little bit as to why you believe it would be counterproductive, please? Well, as we were saying, it’s something that she has been wanting for a while. It’s something that she has tried before. So I think it’s an informed decision. She – she comes across as an intelligent girl that thinks about things. I don’t see her as a – as a defiant oppositional girl. I think that if she had an order to remain in Sydney, I think that she would adjust to it and cope with it, but – but then again, that’s not the only consideration. There’s also the consideration of how the father would cope, you know, with an additional child. You know, I think with so many children and with the children having high needs in various ways that, you know, to have her living with her mother could assist the father because he has got a young disabled child who’s seven, I think J is. And then he has got Y who’s – you know, who’s quite a vulnerable child as I see it. And Z who, despite the fact that she’s nearly 17, you know, has quite a few problems. She’s quite socially isolated. She only has one friend, and she said she’s not seeing much of her lately. I asked the children who they worry about most, and Y and Z both said that X was the one that they worry out. So I think the father has got his hands full with having J and Y and X. And I know that’s – that’s not exactly an answer to your question, but I’m trying to look at this thing holistically.
Yes? It’s – it’s more than just about children’s wishes.
And I appreciate that. Thank you. But having said that, I just wanted to come back again to the subject of the children’s wishes. And even though you’ve assisted by looking at it holistically, when we get a child who is emotionally mature age-wise of around about that 15 and a half mark, a young woman, is there likely to be any effect upon that child if, in fact, their emotional expectations are not met inasmuch as they give a definite view about what they want to do and that, then, is not adopted by the court? Is that likely to have an emotional effect on the child? I think it can. But, Mr Greenaway, you’re just talking about chronological age, and temperament comes into it as well.
Thank you? So as I said, I mean I think Z would be very disappointed if she couldn’t live with her father – sorry, with her mother
Yes? as she has been thinking about it for some time and has trialled before. Generally speaking, for a child of that age whose – who – whose wishes were not supported by the court, there could be resentment. They could run away. I’m not picking up these things from Z but, certainly, it’s possible. I think that Z is probably a fairly compliant child, and would cope if an order was made that went against her wishes. But I support her wishes. I think at her age, it’s good for her to be with the same sex parent. I just – you know, and because of her age, I – I respect her decision. I perceive that she is at least as mature as a normal – you know, a normal teenager of 15 and a half years. She’s a young woman.
Yes.
HIS HONOUR: Dr D, can I just interpose there, Doctor? Yes.
Can you just elaborate – perhaps you have already, I’m not sure – what reasons, if any, Z gave for wanting to live with her mother presently? Let me just consult my notes, your Honour, please. Your Honour, I haven’t – this is an oversight on my part, but I – I will just read my notes to you:
I would like to live with my Mum.
And I probably said, “Why?” because she said:
I feel like it would be better for me.
And, of course, you know, hindsight is a wonderful thing and I – I should have said, “Well, can you” – “Better in what way? Can you tell me more? It will help me to understand that,” but I didn’t. She said:
It’s something I’ve been thinking about, and something I’ve wanted to do for a while. I’ve told Dad. He took it well. It’s okay because it’s not going to be forever. I said I will only be up there until I’m 18, and I will see him in the holidays, and he’s okay with it.
I asked her about schools up there. She said that she hasn’t checked out the schools because she’s aware that she won’t be able to go to S College because her mother has now moved and that’s too far away. That – that – that’s all I’ve said on that. That’s all I’ve noted on that topic, your Honour.
The ICL asked the family report writer as to the effect on Y if Z was to live with the Mother. The family report writer stated that Y has felt very close to Z but that had never been reciprocated. Y had been asked by the family report writer what his sisters wanted to do. He had stated that he was pretty sure that X wanted to stay down here. He wasn’t sure about Z. He felt closer to Z than to X. The family report writer stated that Y would cope better now than he would have a few years ago (if Z was to live with the Mother); Y had a part time job and has friends, and he was probably not as reliant upon Z as he was before.
The family report writer stated that Y has quite firmly stated that he wants to stay living in the Father’s household. He had told the family report writer that he does not want to have to make new friends and go to a new school “and everything”.
The family report writer stated that Y was less mature than Z, however, she supported his view which was firmly expressed. The family report writer stated that Y was quite an introverted boy who stayed in his room a lot. She believed that Y would not like change very much; it would be overwhelming for him to have to go to a new school and make new friends at his age.
The family report writer gave this evidence:
And so – and I suppose to paraphrase what you said before, holistically, looking not only at his views, that there are significant reasons why it would be appropriate if the court adopted his views, that is, to remain living with his father? Yes, and in addition to that, with children this age, they often want to be with the same sex parent. That – parents are vulnerable, so he’s wanting – the boy is wanting to stay with Dad. The girl is wanting to stay with Mum. Now, I know that doesn’t apply in all cases, but that’s what – you know, an additional consideration in – in – in this circumstance.
The Mother’s counsel cross-examined the family report writer.
The family report writer stated that it was very important that Y engage with his schooling, however, it was also important that Y engage with mental health services as well. It was important that Y get some support with his actual schoolwork by attending the homework centre or getting a tutor to bring him up to standard. The family report writer stated that the potential outcomes and prognosis was quite poor (for Y). She gave this evidence in relation to Y:
He said he wants to go to university. Well, that’s totally unrealistic with his present performance. This boy, he needs – he needs some sort of – he needs support in his mentorship. I’m not sure to what extent his father can help him. But I’m equally not sure that the solution would be to, you know, dislocate him from his – from everything he has known against his wishes and – and send him up to Queensland.
The family report writer stated that for a boy of Y’s age and temperament he would not cope with the change to another school, and that he would more than likely truant with the result that he would drop out of school.
For Y’s mental health, the family report writer agreed that Y’s engagement with mental health services and staying at his school was best for him currently.
In relation to Z, the family report writer stated that it made no sense to her to make Z’s change of schooling before the end of this year; her transition to Brisbane would best take place during the Christmas holidays.
The Father’s counsel cross-examined the family report writer.
The family report writer stated that Z had stated to her at the recent interview that she wanted to go to Brisbane until she was 18 years; that was in the context of Z reassuring the Father that it was not a permanent move, that it was until she was 18 years.
The family report writer was asked whether she had read any research regarding the separation of twins in separate households. She stated that she had not done any serious research. She stated that Z and Y were twins that were of different genders and never identical. The family report writer stated that she carries out her (family) assessments on a case-by-case basis with individuals.
The family report writer’s attention was drawn to paragraph 49 of the Father’s trial Affidavit. The family report writer read paragraph 49 which included a reference to the Mother’s messages sent to X and Z on the Facebook Messenger platform. The family report writer conceded that there was a possibility of Z having been emotionally manipulated by the Mother in now telling the family report writer that she wanted to live in Brisbane.
The family report writer stated that whilst Z did not give cogent reasons to the family report writer as to why she now wished to move to Brisbane in her reinterview in September 2021, she did explain herself fairly fully.
The family report writer was asked whether, if Z was subjected to some emotional blackmail at the instance of the Mother, would that cause the family report writer to caution in her current recommendations that Z live with the Mother. The family report writer responded that she was prepared to take Z’s wishes on face value.
The family report writer gave this evidence:
Well, let’s assume, then, if you can – let’s assume that Z has been emotionally manipulated by her mother. Her mother has threatened to kill herself. Her mother has said, “It’s your choice. You make the decision.” Let’s just make that assumption for the moment that that has occurred. If that is the assumption that is made, then you would have to give some caveat to her wishes that she has given now. Would you agree with that? I want to say “yes” but you just want me to say “yes”, so I will say “yes”.
The family report writer stated that her strong impression was that the Father was overburdened. In this context she stated that the Father had a disabled child and four teenagers in the house. She confirmed that a major consideration for her was that the Father had more on his plate than the Mother.
The family report writer stated that she was hoping that X would cope (with Z living with the Mother) especially if in frequent contact (with her) and she spends time with the Mother in the holidays.
The Father submitted that the Court should find that the family report writer was not an independent expert witness, and in this regard he referred, in particular, to the family report writer’s oral evidence when cross-examined by the Father. Having regard to the whole of the family report writer’s evidence, including her oral evidence, and having observed the family report writer give her oral evidence, the Court is satisfied that the family report writer was an independent expert witness who sought to give her evidence honestly and conscientiously, and sought to answer cross examination questions responsively and without evasion. The Court found the family report writer to be an impressive witness. The Court rejects the Father’s submission.
The Court does not accept the Father’s submission that the family report writer had failed to properly consider the effect on each of the twins of being separated from each other, assuming Z was to live with the Mother. He had also submitted that the family report writer’s evidence relating to the twins was deficient because she had not read any research relating to the separation of twins. The Court does not accept this submission. She stated that she had not done any serious research. However the Father did not adduce any evidence suggesting what such research would have revealed relevant to the separation of the subject twins in this case. Again, the family report writer had stated that Z and Y, as twins, were of different gender and not identical. The family report writer stated that she carries out her (family) assessments on a case-by-case basis with individuals. Her qualifications as a family report writer were not the subject of criticism.
The Court accepts the evidence of the family report writer.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
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 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court 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 for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with the both parents and will benefit from a continuance of those relationships.
Should Z live with the Mother as proposed by ICL there is a significant prospect that Z’s meaningful relationship with the Father can be maintained. In this context, the Court observes that Z had lived with the Mother in Brisbane for about six months in 2019 without adversely impacting her meaningful relationship with the Father.
Should Y continue to live with the Father and spend time with the Mother as proposed by the ICL there is a significant prospect that his meaningful relationship with the Mother can be maintained. Y’s meaningful relationship with the Mother has persisted since the Mother’s relocation to Brisbane in about April 2019 through, in particular, his visits to Brisbane to be with the Mother.
Should X continue to live with the Father and spend time with the parent with whom she is not living during the school holidays as arranged between the parties, as proposed by the ICL, there is a significant prospect that X’s meaningful relationship with the Mother can be maintained. In this context, inter alia, the Court observes that X’s relationship with the Mother is no longer distant and X is no longer angry with the Mother.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court refers to its discussion below, in relation to the views of the children, in relation to the Mother’s message sent to X and Z in July 2020 and referred to in paragraph 49 of the Father’s trial Affidavit. Subject to that discussion, this primary consideration is not relevant.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Z, aged 15 and a half years, has a strong wish to live with the Mother in Brisbane and which is an informed choice. Z wants to do Year 11 and Year 12 there, whilst living with the Mother, Ms F and her nephew.
Z had told the family report writer, in her re-interview on 14 September 2021, that this was not a new decision to live with the Mother and that she had been thinking about it for some time. She had last spoken to the family report writer over a year and a half ago (on 4 March 2020).
Z is mature for her age. Z is of the view that living with the Mother would be better for her. Whilst Z was not questioned by the family report writer, in her recent re-interview, as to her specific reasons for wanting to now live with the Mother, the Court takes into account that Z had told the family report writer, on 4 March 2020, that the Mother is closer to her than the Mother is to the other children, that Z has always told the Mother everything and been around the Mother more than she has been around the Father, that she does not see enough of the Mother, that she feels very close to Ms F and misses her, that the Father’s house was crowded and on a main road, and that she shares a small room with X. The Court further takes into account that Z’s lived-with experience with the Mother for the approximate six-month period in 2019 was positive, and that she had not returned to live with the Father until the Court made a Recovery Order in September 2019 requiring the Mother to have Z returned to Sydney to live with the Father.
The Court recognises that should Z proceed to live with the Mother, as proposed by the ICL and the Mother, that she would leave behind her school and friends, and a casual job that she had recently obtained. Nevertheless, the Court observes that Z had made a lot of new friends whilst living with the Mother in Brisbane in 2019, and the Court accepts the Mother’s and her partner’s evidence in relation to Z’s ability to make new friends. It would be open for Z to seek to obtain a casual job in Brisbane if living with the Mother, and to join a sporting team as she did in 2019 when living with the Mother. The Court would also assess that Z is more likely to attend school consistently should she live with the Mother, in particular taking into account her consistent school attendances whilst living with the Mother in Brisbane in 2019 compared to her unsatisfactory school attendances whilst living with the Father.
Z is close to X and X wishes to remain living with the Father. However, Z, if living with the Mother, could communicate with X through, inter alia, FaceTime or SMS and spend time with her during Z’s school holidays. Z had told the family report writer that she would be in daily contact with X. The Court observes that Z maintained her close relationship with X despite Z living with the Mother for about six months in 2019. In these circumstances, and as to X, there is a significant prospect that she would cope with Z living in Brisbane. In this regard, the Court refers to the evidence of the family report writer, inter alia, that X is gaining in maturity and would cope, especially if she was in frequent contact with Z and spends holiday time with her.
Z, according to the family report writer, had made an informed decision to live with the Mother, she was an intelligent girl and was not defiant or oppositional. The family report writer stated that she supports Z’s choice. She stated that it would be counter-productive to make an order not in accordance with Z’s wishes.
The family report writer stated that Z would be very disappointed if she was not able to live with the Mother and it was possible that she would experience resentment and run away. Whilst the family report writer stated that Z would probably adjust and cope if she was not permitted to live with the Mother, there is some force to the Mother’s submission that if Z is living with the Mother in accordance with her wishes, there is probably a greater prospect of Z performing better academically and socially than if she is required to live with the Father against her wishes.
As to Y, the parties and ICL all ultimately sought an Order that he remain living with the Father. The question arises as to whether there is a significant risk that Y or Z will experience emotional harm by not living in the same household assuming Z proceeds to live with the Mother.
Y feels close to Z but this has not been reciprocated by Z. He feels closer to Z than to X. The family report writer stated that Y would cope better now than before (if Z was to live with the Mother); Y has a job and has friends, and he was probably not as reliant upon Z as he was before. The Court observes that there is no evidence adduced by the Father to suggest that Y or Z suffered any significant emotional disturbance by reason of not living in the same household together when Z lived with the Mother in 2019 for about 6 months.
Y will be able to communicate with Z, if Z is living with the Mother, through, inter alia, FaceTime or SMS, and can spend time with her in the holidays.
Similarly, Z will be able to communicate with Y when not spending time with him during school holidays.
The Court finds that it is unlikely that Y or Z will experience significant emotional disturbance by reason of not living in the same household together if Z is permitted to live with the Mother.
Y has quite firmly stated to the family report writer that he wants to stay living with the Father. He had told the family report writer that he does not want to have to make new friends and go to a new school.
The family report writer stated that Y was less mature than Z, however, she supported his decision. The family report writer stated that Y was quite an introverted boy who stayed in his room a lot. She believed that Y would not like change; it would be overwhelming for him to move and go to a new school.
The Father contended that it was open to the Court to find that Z’s wishes, as expressed to the family report writer on 14 September 2021, were premised on emotional blackmail or manipulation by the Mother. The Father had contended that such behaviour by the Mother constituted psychological abuse of the children. In this regard the Father referred to the message sent by the Mother to X and Z in July 2020 and referred to in paragraph 49 of his trial Affidavit. The Father also contended that the Court should draw a Jones v Dunkel (1959) 101 CLR 298 inference, against the Mother, because she had not adduced evidence relating to other messages sent to the children. The Court does not accept these contentions of the Father. The Court does not find that Z was emotionally blackmailed or manipulated by the Mother in relation to Z’s recently expressed view that she now wishes to live with the Mother.
In this regard, the Court accepts the Mother’s evidence that she was significantly depressed at the time she sent the above message in July 2020, and that, on the balance of probabilities, it was unlikely that the Mother intentionally sought to emotionally blackmail or manipulate Z (or X); she did not intend to psychologically abuse the children. The Court further observes in this context that one of either Z or X had responded to the Mother’s message by stating, “Now your just being stupid”, carrying the significant suggestion that the Mother’s message was not taken seriously by the child who sent this response to the Mother, with the Court observing that these two children were quite close to each other.
The Court further takes into account, in this context, that there was no significant evidence before the Court that the Mother had sent other messages to Z (or X) suggesting emotional blackmail or manipulation by the Mother. The Mother, in cross examination by the Father, indicated that she did have access to previous messages sent to the children through the online internet medium. In the view of the Court, there was no obligation upon the Mother to tender in evidence such previous messages in circumstances where there was no significant evidence that there were other messages suggesting emotional blackmail or manipulation by her; it could not be reasonably expected that such previous messages (or any one of them) fell into this category of suggested emotional blackmail or manipulation by the Mother. Without any criticism of the Father, it was open to the Father to have called for such previous messages to be produced by the Mother in Court, and have sought to have tendered them if considered relevant, but he chose not to do so.
Again, the Court accepts the evidence of the family report writer including in relation to Z.
The Court gives significant weight to the children’s views as discussed above.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The children have a close relationship with J, the paternal aunt, cousins and paternal grandparents.
The Court accepts Mr E’s evidence that although he has experienced some difficulties developing positive relationships with the children, he had started forming close bonds with them.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties have sought to take such opportunities. The Court observes that the parties’ communication and level of trust with each other is unsatisfactory.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Father has maintained the children satisfactorily in his care. The Mother, when spending time with the children, including when Z was living with the Mother in 2019, has maintained them adequately.
Post separation the Mother paid not insignificant child support, and only relatively recently has been unable to pay to the Father significant child support because of loss of employment.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above, in relation to the views of the children, under ss60CC(3)(a).
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Should the Court make live with Orders, in relation to the children, as proposed by the ICL (X and Y remaining living with the Father, with Z living with the Mother), because the Father lives in Sydney and the Mother lives in Brisbane there are obvious practical difficulties and expense in relation to Y and X spending time with the Mother, and in relation to Z spending time with the Father.
Since the Mother’s relocation to Brisbane in April 2019, she has borne the travel costs relating to the children spending time with her and involving the children travelling between Sydney and Brisbane by air. The parties and ICL are in agreement that the Mother will continue to bear the costs of such travel.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parties probably have such capacities, subject to the below discussions.
The Father has been unable to consistently provide for the needs of the children, in particular ensuring that the children regularly attend school. As submitted by the ICL, this is not a failing of the Father as such but rather an inability to adequately meet the challenging parenting needs of this family in Sydney.
Whilst the Father reliably dropped off the children at school each morning, at about 8:30 AM, and spoke with the children, inter alia, about their school attendances, he probably needed more substantial guidance and assistance from the school, and potentially health professionals, with a view to ensuring that school attendances, in particular, were significantly improved. The Court makes reference to health professionals in light of the family report writer’s evidence relating to Y whom she found to be likely depressed and spending most of his home time in his bedroom. The Court observes that X and Y, and Y probably urgently, require external support from mental health providers and school assistance. The family report writer had referred to a Family Support Service as being likely to be able to assist the Father.
It is likely that the Father’s practical ability to take the more significant steps, as discussed immediately above, in relation to Z and Y, has been significantly hampered by the Father’s day-to-day attention provided to his disabled son J, and by reason of the Father’s obligation to run a household for himself, the children and J, with all that entails. It is apparent from the evidence that the Father spends significant one-on-one time with J each day, both before and after-school. The Father’s time spent with Z and Y, in relation to school home study tasks, would appear to be minimal. He readily conceded that he was not aware of the content of individual school subjects undertaken by the twins.
The Court observes that the family report writer’s impression of the Father was that he appeared somewhat overwhelmed by the role of parenting four teenagers (Mr G, X, Z and Y) and a young disabled child, J. Whilst the Court acknowledges that Mr G is no longer living with the Father, nevertheless the Court would assess that should Z live with the Mother, the Father will likely be more practicably able to assist X and Y, both educationally and in relation to their mental health, because he would have one less teenage child to care for, and Z would likely receive greater educational assistance through the Mother; these views of the Court are regarded as significant in this case. The family report writer’s evidence was consistent with these views.
Having made the above comments in relation to the Father, the Court acknowledges that X has been, in more recent times, performing well at school, and that the Father, accordingly, should be given some credit for that achievement by X.
Whilst the Mother, residing in Brisbane, has practical difficulties in liaising with the children’s school and health professionals to the same extent as the Father, who lives close to the children’s school and health professionals, the Court would assess that she could have taken greater steps to communicate with the children’s school and health professionals when becoming aware of Z and Y’s school attendance and other schooling related issues.
(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
The Court refers to its discussions above in relation to the views of the children.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Father has conscientiously sought to parent the children. Nevertheless, as discussed above under section 60CC(3)(f), the Father has experienced significant difficulties in adequately parenting the children, including their consistent attendance at school.
The Court refers to its discussion above under section 60CC(3)(f) in relation to the Mother.
The Mother chose to relocate to Brisbane in April 2019 having formed a relationship with Mr E in late 2018. Mr E has lived in Brisbane for some 10 years. The Mother, in early February 2019 contacted the Father seeking to talk to him about her desire to move to Queensland. She had discussions with the Father. She moved to Queensland in April 2019. She recognises that her decision to relocate adversely affected the children.
Z lived with the Mother in Queensland from April 2019 until early September 2019. Whilst Z was spending time with the Mother in April 2019 she had expressed a wish to remain living with the Mother, and had refused to return to live with the Father. The Mother chose to respect Z’s wishes at this time. At this time Z was aged almost 13 years. Z did return to live with the Father after the Court made the recovery Order in early September 2019.
Both parents have facilitated the children spending time with the Mother in accordance with Court Orders.
Both parents, on occasions, have inappropriately involved the children in the parenting dispute.
(j) Any family violence involving the child or a member of the child's family
Not applicable.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(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
The ICL’s proposed Orders, significantly supported by the Mother, would probably be least likely to lead to the institution of further proceedings in relation to the children. Whilst Z would likely cope remaining living with the Father, albeit she may experience significant disappointment, again, the Court’s significant concern is that the Father would be overburdened with parenting responsibilities for the twins, X and J, and which could well lead to increased difficulties for the children. In this context, the Court again observes that X and Y have particular present needs (mental health and in Y’s case, schooling needs) as discussed by the family report writer.
m) Any other fact or circumstance that the Court thinks is relevant
The Father submitted that whilst J was not a child of these proceedings, nevertheless the Court should consider his position if Z was to live with the Mother, noting Z’s closeness to J.
The Court observes, as with Y, there is no significant evidence that J suffered significant emotional disturbance when Z lived with the Mother in 2019 for about six months. The Court further observes that, should Z live with the Mother, J will continue to enjoy the close relationship he has with Y in particular; in this regard, the Court observes that the family report writer had observed Y and J to have an excellent rapport. And further, there is a significant prospect that J can communicate with Z, should Z live with the Mother, through online Internet mediums, and spend time with her in holidays.
The Father submitted that the Mother’s housing in Brisbane was uncertain, and that this was an additional factor that militated against the Court potentially ordering that Z live with the Mother. The Mother’s evidence was that she had recently lost her employment. She stated that the property she is presently living in is being sold and they have to move. She stated that they are still looking for a home to rent being larger premises. However, there is force to the submissions of the ICL that the Mother’s partner has a good job, and that there is no significant evidence that the Mother is unlikely to obtain satisfactory accommodation.
The Mother seeks more detailed Orders relating to the specific holiday time that X, Z, and Y spend with the parent that they are not living with; in the view of the Court, such proposed Orders are too prescriptive, particularly taking into account the significant ages of these children, and may well hamper the parties implementing arrangements for the children to spend time with the non-live-with parent. The ICL’s proposed Orders in this regard are probably sufficient to ensure and enable the children to spend regular holiday time with their non-live with parent.
PARENTAL RESPONSIBILITY
The parties and ICL join in seeking an Order for equal shared parental responsibility. Equal time nor substantial and significant time would not be practically possible in this case, and it will not be in the best interests of the children to make such orders.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.That all previous Orders be discharged.
2.That the parents have equal shared parental responsibility for each of the children X born in 2005(“X”); Y born in 2006 (“Y”) and Z born in 2006 (“Z”).
3.That the child X live with the Father.
4.That X spend time with the parent with whom she is not living during the school holidays as arranged between the parties.
5.That the child Z live with the Father until end of 2021 by agreement, and in default of agreement on and from 2 January 2022 the child Z live with the Mother.
6.Upon Z living with the Mother pursuant to these Orders, she spend time with the Father for one half of each Queensland school holiday periods or otherwise as agreed between the parties in writing.
7.That the child Y live with the Father.
8.Y spend time with the Mother for one half of each of the NSW school holiday periods or otherwise as agreed between the parties in writing.
9.That the Mother be responsible for and bear the costs of the children’s travel during the times when the children spend time with each parent pursuant to these orders.
10.That the children and each of them be permitted to speak with each of their parents and/or siblings as they wish, and the parents shall each do all reasonable things to facilitate such communication.
11.That the parents and each of them, do all things reasonably necessary to ensure that the children and each of them spend as much time together as practicable with their siblings.
12.That each parent authorise the school or schools which each of the children may from time to time attend to provide to each parent with copies of all school reports and other documents which the parents would each ordinarily be entitled to receive, and for the purpose of such authorisation this Order shall be deemed to be sufficient authority.
13.That each parent shall do all things necessary to ensure that the names, addresses and contact details of each parent is included in the enrolment details of each of the children.
14.That each parent be granted leave to provide a copy of these sealed Orders to each of the schools which the children may from time-to-time attend.
15.That each parent shall promptly inform the other in the event that the children or any of them suffer a serious illness or accident which requires hospitalisation, including but not limited to the name of the hospital and the nature of the illness or accident.
16.That each parent shall keep the other informed of their residential address and contact telephone number and promptly inform the other in the event of any change.
17.That each of the parents be and are hereby restrained from making any critical and/or derogatory remarks in relation to the other party or members of their family in the presence and hearing of the children or any of them and shall do all things reasonably necessary from permitting any third party so to do.
18.Within 7 days the Father do all things reasonably necessary to enrol each of the children X and Y with Headspace Suburb B and/or Western Area Adolescent Team Suburb B and do all things reasonably necessary to facilitate their attendance, including facilitating any request of each child to speak with any counsellor and/or attend upon the Service.
19.The Father shall authorise the Mother to be registered with Headspace and/or Western Area Adolescent Team Suburb B as a contact parent upon registration of the children to such services, and for the purposes of such authorisation this Order shall be deemed sufficient authority.
20.Within 7 days the Father do all things reasonably necessary to enrol Y in the Home Work Club at the C School and facilitate his attendance there as required.
21.Within 7 days, the Father do all things reasonably necessary to liaise with C School to enquire as to any other educational support and/or mentoring services that may be available or connected with the school for Y.
22.That the Independent Children’s Lawyer be requested to speak with each of the children for the purpose of explaining to them the Orders of this Court and for that purpose the parent with whom the children are with upon the publication of these Orders shall do all things necessary to ensure that the children are made available to speak with the Independent Children’s Lawyer at her request, in a timely manner.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 22 October 2021
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