O’CONNELL & O’CONNELL

[2015] FamCA 1129

FAMILY COURT OF AUSTRALIA

O’CONNELL & O’CONNELL [2015] FamCA 1129

FAMILY LAW – CHILDREN – Where final orders were made by consent in November 2012 – Where the mother failed to comply with those orders – Where, save for some infrequent exceptions, the children ceased spending time with the father in March 2014 – Best Interests – Where the children have enjoyed meaningful relationships with the father – Where the father does not pose any unacceptable risk of harm to the children by their subjection or exposure to family violence or abuse – Where an issue of overarching significance was the willingness and ability of the mother to support and promote the children’s important relationships with the father – Where the evidence establishes the children are aligned with the mother – Where, if no remedial action is taken, the trend of deterioration will probably continue until the children’s filial relationships with the father are lost altogether – Where there are dire consequences for the children if they remain living with the mother – Where no reprieve could be expected unless they live with the father instead – Children to live with the father – Where the children need some temporary relief from the mother to settle into the father’s household – Where, after an initial embargo and a period of supervised time, children to spend increasing amounts of time with the mother, culminating in a regime of alternate weekends and half of school holidays

FAMILY LAW – CHILDREN – Parental Responsibility – Where an order for the parents to have equal shared parental responsibility would not serve the children’s best interests – Where the parties’ relationship is riven with conflict – Where the party with whom the child lives should have exclusive parental responsibility – Father to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B

Marriage of Archbold (1984) FLC 91-532
U v U (2002) 211 CLR 238

APPLICANT: Mr O’Connell

RESPONDENT: Ms O’Connell

INDEPENDENT CHILDREN’S LAWYER: Ms Moran, Coast Law

FILE NUMBER: NCC 541 of 2011

DATE DELIVERED: 17 December 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8, 9 & 10 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Boyd

SOLICITOR FOR THE RESPONDENT: Adams & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Moran, Coast Law

Orders

1. All former orders related to the following children (“the children”) are discharged:

   (a)B, born … 2004;

   (b)C, born … 2006; and

   (c)D, born … 2008.

2. The father shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

3. The children shall live with the father.

4. The parties shall take all reasonable steps to ensure that the children spend time with the mother as follows, or as otherwise agreed:

   (a)From Saturday 20 February 2016 up to and including Saturday 23 April 2016, each Saturday for two hours under supervision;

   (b)From Sunday 24 April 2016 up to and including Sunday 17 July 2016, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first Saturday after the last visit pursuant to Order 4(a) hereof;

   (c)From Monday 18 July 2016 up to and including Sunday 9 October 2016, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the second Friday after the last visit pursuant to Order 4(b) hereof;

   (d)Thereafter:

   (i)During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the second Friday of each term;

   (ii)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and

   (iii)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

5. Pursuant to s 68B of the Family Law Act, until Friday 19 February 2016, the mother is restrained from entering upon or approaching within 100 metres of:

   (a)The father’s residence; and

   (b)Any school attended by the children.

6. For the purpose of implementation of Order 4(a) hereof, unless otherwise agreed:

   (a)The supervisor of the time spent by the children with the mother shall be staff of J Group or staff at Relationships Australia, in that order of priority (“the supervisor”);

   (b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   (c)The time that is to be spent by the children with the mother each Saturday shall commence at the time designated by the supervisor;

   (d)The venue at which the time is to be spent by the children with the mother each Saturday shall be designated by the supervisor;

   (e)The parties shall pay in equal shares any costs due to the supervisor;

   (f)The father shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the mother;

   (g)The mother and father shall comply with all reasonable requests and directions of the supervisor; and

   (h)Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.

7. For the purpose of implementation of Order 4(d) hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the children are due to return to school in the new school term, and the mid-point is midday on the day halfway between those first and last days.

8. Orders 3 and 4 hereof are suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day in 2016 and each year thereafter, during which period the children will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.

   (b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

9. For the purpose of implementing Orders 3, 4, and 8 hereof, the parties shall respectively ensure the children’s:

   (a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the McDonald’s Restaurant at Suburb E, NSW.

10. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

    (a)The mother each Wednesday at 6.00 pm, when the children are living with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

    (b)The father each Wednesday at 6.00 pm, when the children are spending time with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.

    (c)The parent with whom they are not then staying, at 6.00 pm on the children’s birthdays, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.

11. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

13. The father is restrained from causing or allowing the children to be in the presence of the following adults unless personally supervised by him and/or his partner, Ms F:

    (a)Mr G

    (b)Mr H

14. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and the father shall use his parental responsibility for the children to authorise any treating health professionals to communicate with the mother about the condition and treatment of the children.

15. The father shall notify the mother of the schools at which he enrols the children and authorise and request the principals of those schools to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the children.

16. Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address and mobile telephone number.

17. In the event of either party notifying either the police or a prescribed child welfare authority that the children have been or are the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

    (a)A copy of these orders;

    (b)A copy of these reasons for judgment; and

    (c)Copies of the two reports prepared by the Family Consultant on 24 March 2015 and 21 August 2015.

18. Within 48 hours hereof the father shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21. Costs are reserved for 28 days.

22. Any and all other outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  O’Connell & O’Connell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 541 of 2011

Mr O’Connell

Applicant

And

Ms O’Connell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is the second bout of litigation between the applicant father and the respondent mother over their three children.

2. The first proceedings were concluded in November 2012, but the prescience of the Family Consultant in those proceedings was remarkable. She said:[1]

   The Family Consultant has some serious concerns with regards to the children’s long term psychological and emotional well-being should they remain in the mother’s care.

   [1] Father’s affidavit, para 201

3. Her concerns were not heeded. The orders provided for the children to remain in the mother’s primary care and, subsequently, her compliance with the orders requiring the children to spend time with the father completely disintegrated.

4. The evidence in these proceedings portends dire consequences for the children if they remain living with the mother. No relief could be expected unless they live with the father instead. They also need some temporary reprieve from the mother to settle in with the father before beginning visits with her. The parties’ relationship was so riven with conflict that it was only feasible to allocate parental responsibility for the children exclusively to the father.

History

1. The parties’ children were born in 2004, 2006, and 2008 and are now aged between 11 and 7 years of age. The middle child is a daughter and the other two are sons.

2. The parties separated in May 2010. Fairly quickly, a pattern developed where the children spent time with the father for about five nights in each fortnight, which then waned, causing the father to commence proceedings against the mother. In response to her service with his process, in March 2011, she ceased allowing the children to spend any time with the father.[2]

   [2] Father’s affidavit, paras 5, 7, 61, 62, 65; Second Family Report, paras 7, 86-92

3. The intensity of their dispute in that litigation increased, involving allegations of the children’s actual abuse, the unacceptable risk of their abuse, and parental misconduct. It is unnecessary to traverse that evidence because the parties settled the dispute and final parenting orders were made with their consent in November 2012.

4. Those orders provided for the parties to have equal shared parental responsibility for the children and for the children to live with the parties under two different regimes. Until 2015, the children were to live with the mother and spend substantial amounts of time with the father, amounting to five nights per fortnight during school terms, for half of school holiday periods, and on other special occasions. From 2015 onwards, the children were to live with the parties for equal time on weekly rotations.[3] The parties’ past grievances about one another must have merged in those orders. Both were legally represented and would not have agreed to orders in those terms if they believed the orders would not reflect the children’s best interests.

   [3] Second Family Report, paras 10, 114

5. The orders only held the family in check for little more than 12 months. Save for infrequent exceptions, the children ceased spending any time with the father in March 2014. The two boys spent a week with the father during the school holidays in July 2014 and, more recently, there were two other brief supervised visits in November 2015 – the first involving only the two boys, but the second involving all three children.

6. The father was dissatisfied with the breakdown in his relationships with the children during 2014 and so he commenced these proceedings in November 2014. The Federal Circuit Court transferred the proceedings to this Court in May 2015 and the matter proceeded to trial in December 2015.

Proposals

1. The father’s proposal, set out within his Initiating Application filed on

   
   

   3 November 2014, was for him to have sole parental responsibility for the children, for the children to live with him, and for the children to only spend time with the mother when he agreed in writing. When pressed about that in cross-examination, he said he wanted the Family Consultant’s advice about the children’s future interaction with the mother. He did not want to make that decision himself. After the evidence closed and after hearing the Independent Children’s Lawyer’s proposal, he adopted that proposal instead.

2. The mother filed her Response on 17 December 2014. The only order she sought was permission to file an amended application later on, which she never did, even when she was given that permission.[4] It was not until the first day of trial that a Case Outline was produced to the Court and served upon the father and Independent Children’s Lawyer, in which the mother revealed the orders she proposed. Her proposed orders were tendered as an exhibit.[5] She wanted sole parental responsibility for the children, for the children to live with her, and for them to spend time with the father (after a swift graduation) for three nights each fortnight during school terms, for half of school holiday periods, and on other special occasions.

   [4] Order 4 made on 7 September 2015

   [5] Exhibit M6

3. The Independent Children’s Lawyer did not reveal her proposal until the evidence was closed and final submissions were about to begin. Her proposal was outlined orally. No minute of orders was tendered. She proposed the children should move immediately to live with the father and that he should have sole parental responsibility for them. As for the children’s interaction with the mother, an embargo of some eight weeks duration was suggested, to enable the children to settle into the father’s residence without disturbance. Thereafter, the Independent Children’s Lawyer proposed the interaction graduate in stages over the next couple of months, culminating in three nights per fortnight on alternating weekends in school terms and for half of school holiday periods.

Evidence

1. The father relied upon:

   (a)His affidavit filed on 29 October 2015; and

   (b)The affidavit of his partner, Ms F, filed on 29 October 2015.

2. The mother relied on only her affidavit filed on 30 October 2015. She was permitted by a former procedural order to rely upon an affidavit by her partner, Mr I,[6] but she did not do so. She revealed at the trial that she and

   
   

   Mr I ended their relationship shortly beforehand.

   [6] Order 7(b) made on 7 September 2015

3. The parties also relied upon the two reports compiled by the Family Consultant, being:

   (a)The Limited Issues Report dated 24 March 2015 (“the first Family Report”); and

   (b)The Family Report dated 21 August 2015 (“the second Family Report”).

4. The two reports of the Family Consultant referred to excerpts of the Family Report and single expert report prepared for use in the previous litigation between the parties that concluded in November 2012. However, at the commencement of the trial, the parties and Independent Children’s Lawyer agreed those former reports should not be received in evidence as separate exhibits in these proceedings.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (“the Act”). The Act defines the meaning of a “parenting order”

   
   

   (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

1. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

2. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

3. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

1. The issues in these proceedings distilled to relatively few.

2. The father contended the mother was either deliberately or inadvertently destroying the meaningful relationships each of the children have hitherto enjoyed with him by her immersing them in the parental conflict and aligning them with her against him. For the father, the principal issues were the disadvantageous deterioration of the children’s relationships with him (s 60CC(2)(a)) and the mother’s impaired parenting capacity (s 60CC(3)(f), (i)).

3. The mother contended the father was a violent man who was physically abusive of the children and their resistance to any form of interaction with him was a product of their adverse experiences. For her, the principal issues were the risk of harm posed to the children by the father through his physical abuse of them (s 60CC(2)(b)), the strong views expressed by all of the children of their unwillingness to see or communicate with him (s 60CC(3)(a)), and the deleterious consequences for the children if they are forced to instead live with him (s 60CC(3)(d)).

Section 60CC(2)(a)

1. The Family Consultant observed the two eldest children in the company of the father twice; in March 2015 and August 2015. The youngest child was not observed with the father on the first occasion because he walked out,[7] nor on the second occasion, because he was absent recovering from minor surgery.[8]

   [7] First Family Report, para 54

   [8] Second Family Report, paras 61, 73

2. At the first observation session, the eldest child was most engaged with the father. He was comfortable and relaxed. Both he and the father reciprocated physical affection. The middle child was slightly disrespectful to the father, which the Family Consultant considered was an unsubtle demonstration for her benefit. The middle child ultimately left the session when the Family Consultant disengaged from her demonstration.[9] The middle child had not seen the father for about a year beforehand and the father deposed she had formerly been friendly and affectionate with him in the mother’s absence.[10]

   [9] First Family Report, paras 54-56

   [10] Father’s affidavit, para 140

3. The Family Consultant concluded neither of the two eldest children was frightened of the father. The behaviour of the eldest child was quite incompatible with his desire, expressed separately to the mother and Family Consultant, to spend no time with the father.[11] Her conclusion to that effect was the same as that reached by the single expert psychiatrist and the Family Consultant in the former litigation.[12]

   [11] First Family Report, para 56

   [12] Second Family Report, paras 25, 103; Father’s affidavit, para 200

4. At the second observation session, the two eldest children greeted the father quietly but both soon warmed up and actively engaged him in their activities. They laughed and neither child shied away from the father’s physical affection. At its conclusion, the eldest child hugged the father and the middle child accepted the father’s hug.[13]

   [13] Second Family Report, paras 79-82

5. The Family Consultant considered the two eldest children were notably more relaxed and engaged with the father in the second session. Again, nothing indicated they held any fear of him.[14] Their behaviour remained incompatible with their expressed desire not to spend any time with him.

   [14] Second Family Report, para 83

6. The single expert psychiatrist in the former proceedings considered the father would provide the children with a “different and valuable parenting experience” from that provided by the mother, which warranted his significant involvement in their lives. The single expert believed that should amount to “at least six days a fortnight”.[15]

   [15] Second Family Report, paras 25, 111-112

7. The evidence unquestionably establishes the two eldest children have enjoyed meaningful relationships with the father from which they derive great benefit. There is no reason to think the situation is any different for the youngest child. The constriction of their regular interaction with him over more than the past year has impaired, but not yet destroyed, their relationships with the father. If no remedial action is taken the trend of deterioration will probably continue until their filial relationships with him are lost altogether, with emotionally injurious consequences for the children. That outcome must be averted at all costs, save for their exposure by the father to any risk of harm, which feature of the evidence is considered under s 60CC(2)(b) of the Act.

8. Before departing consideration of the children’s filial relationships, it is appropriate to record that the two eldest children seem to have warm and loving relationships with the mother,[16] as presumably does the youngest child. However, the primary consideration stipulated by s 60CC(2)(a) of the Act is not the warmth of the children’s filial relationships, but rather the meaningfulness of, and the benefit derived from, such relationships. The father contended the children do not derive a full measure of benefit from their relationships with the mother because their relationships with her come at the cost of their relationships with him.

Section 60CC(2)(b)

[16] Second Family Report, para 84

Family violence

1. The mother told the Family Consultant in August 2015 that the father had engaged in “emotional, verbal, controlling and physical family violence towards her during their cohabitation,[17] but that allegation largely contradicted the information she gave to the Family Consultant in the former litigation in 2011. Back then, she completed a questionnaire in which she said there was only ever one physical altercation between them, they “never used to fight in front of the kids”, and their conflict had no effect upon the children because “they don’t know anything – they are happy”.[18] When she later inconsistently told staff of the NSW Department of Family and Community Services (“the Department”) in 2015 that the eldest child had been exposed to the father’s domestic violence,[19] she was probably lying. Such inconsistency could hardly have been an innocent mistake.

   [17] Second Family Report, para 24

   [18] Second Family Report, para 104

   [19] Second Family Report, para 138

2. It would seem from reports made by the mother in December 2011 that she only retrospectively came to the realisation she had been in a violent relationship with the father after she left it and she received the benefit of counselling.[20]

   [20] Second Family Report, para 107

3. Putting aside the inconsistent accounts of family violence given by the mother, in November 2012 she agreed to final parenting orders that invested the parties with equal shared parental responsibility for the children and would eventually result in the children living with the father for equal time. Her agreement to that regime was antithetical to any belief that she was at risk of any further family violence committed by the father or that the children were at risk of any harm from their exposure to family violence by the father. The mother alleged to the Family Consultant that her agreement to the portion of the orders that imported the equal-time living arrangement in 2015 was coerced by her lawyers,[21] but even if that were true, her consent to the remainder of the orders was still entirely repugnant to any suggestion, then or now, about the father’s tendency to commit family violence being a risk to her or the children.

   [21] Second Family Report, para 26

4. As an aside, although not explored as an issue in cross-examination, the mother’s professed dissatisfaction with the impending change to an equal-time living arrangement from the beginning of 2015 might well explain why the parenting regime came unstuck during 2014 and led to the institution of these proceedings.

5. The father denied his commission of any family violence upon the mother at any time. Presently, he is in a long-term relationship with Ms F, who confirmed there was no family violence in their relationship.[22]

   [22] Second Family Report, para 43

6. Neither the mother (s 60CG(1)(b)), nor the children are at any tangible risk of harm through exposure to family violence committed by the father.

Child abuse

1. The mother found herself on the horns of a dilemma in these proceedings. She alleged, to the Family Consultant[23] and in evidence, that the children were physically abused by the father and remained at risk of more abuse. However, that contention was entirely contradictory to her proposal for the children to spend substantial amounts of unsupervised time in the father’s care.

   [23] Second Family Report, paras 24, 36

2. Relying entirely upon reports made to her by the children, because she witnessed none of it, the mother alleged the father assaulted all three of them.

3. In early 2012, the middle child told the single expert in the former proceedings she was once picked up by the father and thrown on her bed, causing her to hit her head on the bedhead.[24] The children repeated that allegation to the Family Consultant in these proceedings, even though the youngest child conceded it may have only been an accident.[25] Obviously enough, that allegation preceded the consent orders that terminated the last proceedings and therefore lost all relevance for these proceedings.

   [24] Second Family Report, para 108

   [25] First Family Report, paras 33, 38

4. The evidence was discrepant as to time, but in either September/October 2013 or March/April 2014, the mother alleged the father assaulted both boys when all children were visiting him. There was an incident on a trampoline which required the boys’ discipline. The boys resisted the discipline and it was alleged the father pulled the eldest child off the trampoline by the hair and pushed him into the house and down a hallway, then grabbed the youngest child by the throat and pushed him against a cupboard. Later the same evening it was alleged the father punched the eldest child in the head and pulled his hair.[26] The children reported the incident to the mother by telephone that night. She notified the police who then visited the father’s home and interviewed the boys separately, but they “did not disclose any information of concern”.[27]

   [26] First Family Report, paras 32, 38, 44; Second Family Report, paras 115, 118

   [27] First Family Report, para 38; Second Family Report, paras 118, 143

5. In March 2014, the mother alleged the father “repeatedly opened a door into [the eldest child’s] face and repeatedly punched him in the face (whilst he was sleeping)” and also “pulled his hair” after he threw a stick at a car.[28]

   [28] First Family Report, p 38; Second Family Report, p 119-121, 144; Mother’s aff, p 7

6. In July 2014, the mother alleged the father placed his hands around the youngest child’s neck and pushed his head back into a pillow.[29] The youngest child told the Family Consultant “he got hurt by the father every time he got into trouble”,[30] but that was plainly embellishment if he was referring to being “hurt” physically rather than emotionally.

   [29] First Family Report, p 34, 38, 43; Second Family Report, p 127, 145; Mother’s aff, p 12

   [30] First Family Report, para 42

7. Despite the vicious nature of the alleged attacks, particularly those on the boys after the trampoline incident and that on the eldest child in March 2014, none of the children sustained any visible injuries.[31] That fact was confirmed by both the mother and by the police on the single occasion they intervened. Such incongruence casts serious doubt on the veracity of the children’s reports because such brutal assaults would probably have resulted in visible injuries.

   [31] First Family Report, para 10; Second Family Report, paras 118, 119, 120, 143, 144

8. Even though the children were all aware of the incidents of alleged abuse and purported to speak authoritatively about them, they conceded to the Family Consultant they did not witness all of the incidents. For example, the middle child could not possibly have seen what happened between the father and the boys in the house after the trampoline incident because she remained on the trampoline outside. It follows that their knowledge of some incidents is entirely reliant upon reports they received from the mother or their siblings, meaning the issue of abuse has been a topic of conversation between them, most probably within the mother’s home. It is now difficult to sift eyewitness accounts from hearsay and even more difficult to discern accuracy from hyperbole.

9. By now, the mother should be well aware that the children make false reports to her about the father. There was a stark example of it in the evidence. The mother deposed the children reported to her that when they woke up at the father’s home on Christmas Day in 2013 they found a note attached to the back of their chairs at the breakfast table stating:[32]

   You have all been very NAUGHTY this year so you will be getting no presents.

   That was false. The note addressed to them collectively, supposedly written by Santa, actually said (relevantly):[33]

   Please open your presents…

   I know that you are all good kids but at times this last year I was a little disappointed with some of your behaviour.

   I hope you will remember for next year to be extra good at both your homes and at school.

   [32] Mother’s affidavit, para 22

   [33] Affidavit of Ms F, paras 97-99, Annexures A-B

10. In cross-examination, the Family Consultant agreed with propositions that the children were “emotionally vulnerable”, may be more amenable to either active or passive alignment by the mother, and may say and do things to please her, which concessions endorsed the views of the single expert in the prior proceedings.

11. The father flatly denied ever acting abusively to the children, let alone in the manner alleged by her on the strength of the children’s reports.[34] He said in cross-examination he was “almost paranoid” about allegations being made against him by the mother so he and Ms F have been very careful in the way they handle the children. He admitted to occasionally chastising the children for misbehaviour, which entailed him sending the boys to their rooms and once involved him restraining the youngest child in his bed with the doona.[35] Whether those incidents correlate with any of the more graphic allegations made by the children is impossible to say.

    [34] First Family Report, para 11; Second Family Report, para 31

    [35] Father’s affidavit, para 154

12. The father asserted the children’s behaviour when with him is completely “at odds” with their allegations of their abuse by him. The same conclusion was reached independently by the Family Consultant after her own observations of them.

13. The Family Consultant formed the view, albeit on untested evidence, that the children are probably not at unacceptable risk of harm in the father’s care.[36] Once tested, the evidence led inexorably to that same conclusion.

    [36] Second Family Report, para 148

14. The contradiction between the mother’s allegations of the father’s child abuse and her proposal for the children to spend substantial amounts of unsupervised time in his care was never rationalised. Nor could it have been, because it was an impossible task. Her simultaneous maintenance of the allegations and that proposal demonstrated one of two things: either the allegations were disingenuous or she was willing to expose the children to the risk of further physical abuse by the father. In the first instance she would be untruthful. In the second instance she would be foolish.

15. Sensibly, the mother’s counsel ultimately conceded the evidence did not support any conclusion that the father posed an unacceptable risk of harm to the children, but that concession could not sweep away the repercussions of her evidence and her comments to the Family Consultant. The mother’s evidence finished on a foreboding note, vindicating the Family Consultant’s apprehension of further allegations against the father,[37] by her implying there might be more investigation and litigation lying in wait for the family. She said:

    I will continue to report any incidents of abuse on the children and take it from there

    [37] Second Family Report, para 152

16. Rather unexpectedly, the evidence given by the mother in cross-examination proved the children were at unacceptable risk of physical or psychological harm through their subjection or exposure to physical abuse in her own home. The perpetrators of such abuse were liable to be the two boys, not her or the middle child, but all of them were liable to be victims.

17. The two boys’ behaviour, both at school and in the mother’s home, has been truly shocking. She conceded that violence is now just normal behaviour for both boys.

18. The youngest child is perpetually angry with everybody – the mother, his siblings, his peers, and his teachers. His anger manifests physically and verbally. At home, almost every day, he addresses the mother in the most profane and derogatory manner imaginable. He has chased the mother with a weapon and struck his siblings with a weapon. In 2014, he confronted the mother with a knife and threatened to stab her. At school, he assaults other students. Classes have had to be evacuated because of his behaviour. He brazenly told a teacher who tried to contain his behaviour “you can’t deal with me anymore bitch”. He regularly uses profanities. On one occasion, he objected to his confinement in a room, struck teachers, upended furniture, and had to be physically restrained to prevent further injury or damage. The school is no longer able to handle him and the Department of Education is actively making arrangements for him to be transferred to another school which it is believed has better capacity to control him.

19. The mother described the eldest child as being “not as bad” as the youngest child, even though he “has his days”, though that seemed a naïve assessment. He too is prone to gross violence. At home, he yells at the mother, punches her, and hits her with sticks. In around 2012 or 2013, he threatened the mother with a knife twice, saying “I’m going to kill you and myself too. I hate life”. The mother described his behaviour as having deteriorated since then, though it is difficult to imagine how it could be much worse than that. He now hits the middle child too. He has accumulated a cache of weapons, which includes tent pegs secreted somewhere in the yard and a screwdriver and a hammer he keeps in a backpack padlocked to his bed. He was suspended from school for nine days during 2015 for his incorrigible behaviour.

20. The two boys’ threatening use of knives in the household caused the mother to lock away all kitchen knives so that only she can now gain access to them with a key she holds. Her decision to take such precautions evidences the depth of her concern about someone within the household being grievously injured.

Best interests of children – additional considerations

1. An issue of overarching significance that emerged in the proceedings was the willingness and ability of the mother to support and promote the children’s important relationships with the father. Regrettably, the mother’s views on that issue were inconsistent and unreliable.

2. It will be remembered that it was not until the commencement of the trial in December 2015 that the mother made any proposal at all for the children to spend any time with the father. By then the litigation had been pending for over a year and many months had passed after release of the first and second Family Reports. Her comments to the Family Consultant and the evidence she gave about the father and the children’s interaction with him were irreconcilable and disturbing.

3. The mother first told the Family Consultant she did not know whether she had the capacity to ensure the children’s future visits with the father,[38] but she later told the Family Consultant she had considered the matter carefully and decided the children should spend no time with the father at all so as to avoid any further traumatisation he causes them. She boldly told the Family Consultant she would leave the choice to the children and not force them to see the father if they were disinclined.[39] In cross-examination, the Family Consultant was adamant she accurately reported the mother’s remarks to her.

   [38] First Family Report, para 6

   [39] Second Family Report, paras 18-19

4. The mother’s deliberate decision to not force the children’s compliance with orders requiring them to spend time with the father is consistent with her past conduct, as described by the father, but quite inconsistent with the assertion in her affidavit that she attempted to encourage the children to spend time with the father.[40] I accept the father’s evidence that, at changeovers, the mother gives both him and the children the clear impression, through her statements and demeanour, that she dislikes him and dislikes the children going with him.[41]

   [40] Mother’s affidavit, paras 15, 18, 20

   [41] Father’s affidavit, paras 33, 144-147, 177-180

5. Any encouragement she has offered the children to stay in touch with the father has been desultory and feigned. That conclusion follows from her criticisms of the father to the Family Consultant[42] and her admissions in cross-examination that she does not believe he is a “loving father”, she does not think he loves the children, he is not a “good man”, and he is contesting these proceedings simply because of his dislike for her. It does not matter she might never have expressly told the children she does not want them to see the father, as she said in cross-examination, because they know exactly how she really feels. She denied in cross-examination that her adverse feelings about the father might have “rubbed off” on the children, but that denial was either untruthful or additional evidence of her lack of insight.

   [42] Second Family Report, para 39

6. The excuses offered by the mother for the children’s refusal to spend time with the father have not always been consistent. She deposed it was because “they are all too scared due to [the father’s] violent behaviour towards them”,[43] but she told the father it was because they felt he “live[d] to[o] far away”.[44]

   [43] Mother’s affidavit, para 14

   [44] Father’s affidavit, para 165

7. The mother admitted her impotence in ensuring telephone communication between the children and the father. The mother plaintively told the father she could not force them to communicate with him. The father’s perspicacious question of her was “Who is parenting who?”, but the mother lacked the acumen to understand the implications of the question. She replied the children were not puppets and she could do nothing more than simply encourage them.[45]

   [45] Mother’s affidavit, para 61

8. In recent times, the children have been undeniably disrespectful of and resistant to the father, but the mother has nevertheless exaggerated their reactions to the father. For example, she alleged to the Family Consultant that the eldest child “pulled a knife” in anger on the youngest child on the night following the children’s first visit to the Family Consultant in March 2015. The Family Consultant was intrigued by that revelation because she considered the eldest child enjoyed his session in the father’s company that day. When questioned about it, the eldest child told the Family Consultant no such incident occurred and he only considered using a knife to smash a car window to retrieve a ball he wanted. The knife was not used to threaten his sibling and the incident to which he referred seemed to be an entirely different occasion to the previous visit to the Family Consultant.[46]

   [46] Second Family Report, paras 74-77, 146

9. The mother said in cross-examination she truly believes the children have no desire to see the father at all. If that is indeed her true sentiment then, given her disinclination to force the children to see the father against their wishes, the future is clear if they remain living with her. They will never see the father and their relationships with him will be lost.[47]

   [47] Second Family Report, para 152

10. For completeness, it should be recorded the mother also said afterwards in cross-examination that she believed the father was an important person in the children’s lives, she would like the children to see him, and it would be “nice” if they did. However, they were empty platitudes in the face of her earlier evidence and her earlier comments to the Family Consultant.

11. The Family Consultant clearly identified the possibility of the mother’s deliberate alignment of the children with her against the father.[48] In view of the children’s tendency to settle reasonably quickly with the father in the mother’s absence, their repudiation of him in the mother’s presence and in the public domain must mean they are under extraordinary pressure to support the mother in the conflict, as the father correctly believes.[49]

    [48] First Family Report, para 58; Second Family Report, paras 22, 103

    [49] Second Family Report, para 31

12. The evidence was littered with examples of the way in which the children have been manipulated by the mother in her conflict with the father. The children all referred to the father by his first name rather than the term of endearment “Dad” when discussing him with the Family Consultant.[50] Children do not voluntarily dispense with the use of such terms of endearment for a parent unless coerced or induced to do so, which powerfully implies the pressure exerted by the mother on the children and the depth of her disdain for the father. The mother involved the children in her conflict with the father, telling them the details of text communications, which descriptions were sometimes even inaccurate.[51] Even the school principal thinks the mother “discusses more information with the children than is helpful and/or necessary”.[52]

    [50] First Family Report, para 26

    [51] First Family Report, paras 36, 45; Second Family Report, para 137

    [52] Second Family Report, para 139(l)

13. On balance, the evidence does establish the children perceive the need to side with the mother and reject the father. It does not matter whether that has been consciously caused by the mother because, irrespective of whether deliberate or unintentional, the consequences are the same.

14. The adverse implications for the children were clearly articulated by the Family Consultant. They feel the need to “choose sides”. Although that may give them temporary respite from the parental conflict, they are likely to experience lasting detrimental psychological consequences. They will feel guilt and remorse about rejection of the father, they will eventually blame the mother for the schism in their relationships with the father, they will experience difficulties in their own inter-personal relationships, they will have poorer mental health, and they are liable to develop somatic complaints as a result of their anxiety.[53]

    [53] Second Family Report, paras 149-151

15. Because the children have been influenced by the mother, their expressed views about the parties are probably unreliable. While the children have uniformly expressed views to the Family Consultant not to see the father,[54] no weight should be reposed in those views.

    [54] First Family Report, paras 35, 41, 46; Second Family Report, paras 69, 71, 72

16. Aside from the mother’s alignment of the children with her, her impaired parenting capacity is otherwise proven by her inability to control the boys’ outrageous behaviour, either at home or at school. Nor could she control the youngest child during the consultation with the Family Consultant.[55] She rightly confessed her shame, embarrassment, and disappointment at their behaviour. She even has difficulty getting the children to attend and remain at school.[56] Surprisingly, the boys’ bad behaviour is not reflected in their academic performance, since the children’s most recent school reports are quite sound.[57]

    [55] First Family Report, paras 19, 25, 27

    [56] First Family Report, para 23; Exhibits ICL1, ICL2, ICL3

    [57] Exhibits M1, M2, M3

17. Any assistance sought out by the mother before her first meeting with the Family Consultant in March 2015 did not help her cope.[58] The Department referred an J Group caseworker to the mother in May 2015, which referral seems to have stemmed from a report made to the Department in April 2015 about her inability to cope with the children,[59] not through her own initiative.[60] That report was made even though the mother was still then receiving assistance from the Region I Family Support Service.[61] The J Group caseworker will remain engaged with the family for 12 months,[62] which can only help, not hinder. The father indicated his willingness to participate.

    [58] First Family Report, para 24

    [59] Second Family Report, para 138

    [60] Mother’s affidavit, para 76

    [61] Exhibit M4

    [62] Second Family Report, para 54; Mother’s affidavit, para 78

18. The youngest child’s delinquent behaviour is undoubtedly influenced by his diagnosis with autism, but that is not a complete answer. The father,[63] the single expert in the former proceedings,[64] the children’s school principal,[65] and the Family Consultant all believe the mother’s parenting style is a contributing factor. The children’s emotional disturbance has been so acute they were even incontinent for some time,[66] which even in the case of the youngest child could not possibly be attributable to autism. Children of their age do not lose control of their bowel or bladder without either a physiological reason, and there was none, or unrelenting anxiety, of which there is plenty.

    [63] First Family Report, p 18; Second Family Report, p 30; Father’s affidavit, p 160, 211

    [64] Second Family Report, para 110

    [65] Second Family Report, paras 139(h), 139(k)

    [66] First Family Report, para 22; Second Family Report, paras 62, 136

19. The evidence reasonably suggests the deterioration in the boys’ behaviour roughly correlated with them ceasing to spend regular time with the father in March 2014. That was the view of the father,[67] the youngest child’s psychologist,[68] and the school principal.[69] The mother admitted she also conceded the correlation at a school meeting to discuss their behaviour in April 2014. The Family Consultant believed the deteriorating behaviour of the boys is “highly likely” to be attributable to the mother’s psychologically abusive alignment of them.[70]

    [67] Father’s affidavit, para 181

    [68] Father’s affidavit, para 182

    [69] Second Family Report, para 139(b)

    [70] Second Family Report, para 151

20. The father’s belief the children are much better behaved in his care[71] was corroborated independently by his partner,[72] staff at the children’s school,[73] the youngest child’s speech therapist,[74] and the youngest child’s paediatrician.[75]

    [71] Second Family Report, para 29; Father’s affidavit, paras 80-81, 123, 174

    [72] Affidavit of Ms F, paras 26-36, 57-60, 63-64, 81-92

    [73] Second Family Report, paras 117, 139(a); Father’s affidavit, para 113

    [74] Father’s affidavit, para 116

    [75] Father’s affidavit, para 184

21. In the last proceedings, the single expert advised that “if [the mother] again withholds the children, a change in their residency would be indicated”.[76] In effect, the mother has now been withholding the children from the father since at least July 2014. Although the children recently visited the father twice under the supervision of J Group staff, it is not an encouraging development. While the father thought the visits went reasonably well, the mother said in evidence they did not. She said the children refused to go again.

    [76] Second Family Report, paras 110, 141; Father’s affidavit, para 202

22. The Family Consultant recommended the children be moved to live with the father, provided the children are not at unacceptable risk of harm in his care,[77] which finding is made. The Family Consultant said in cross-examination the children need a reparative environment, which will more likely be afforded by the father than the mother. The stage has been reached where it would be derelict for the Court not to remedy the impasse with a fundamental restructure of parenting arrangements.

    [77] Second Family Report, paras 153, 157

23. As the mother correctly contended, the reversal of the children’s residence would be an enormous change for them, but difficulty should never be an insuperable impediment to change for the better. The Independent Children’s Lawyer submitted that a change of residence would at least afford the children an opportunity to do better than they have, but in reality they could hardly do worse. The mother conceded in cross-examination it was “a long time” since the children have been happy and her impression is correct because it accords with the view of at least the youngest child’s psychologist.[78]

    [78] Father’s affidavit, paras 114-115

24. There is, of course, a risk the children will rebel and abscond. However, it is no less probable they will experience great relief from the alleviation of the pressure exerted by the mother and they settle with the father reasonably swiftly. The father will have the support of his partner, who lives with him, and the paternal grandparents, who live adjacent, to settle the children. As a unified group, they are more likely to bring a level of sophistication to the children’s care which has eluded the mother.

25. The father maintained his work experience equipped him with skill to better control the children,[79] which the Family Consultant accepted as being correct.[80] Her acceptance of the father’s self-confident opinion was not “blithe”, as the mother submitted. The father presented extremely well. He was open, careful, and measured. He abstained from any gratuitous criticism of the mother and explained his conduct and opinions coherently.

    [79] Second Family Report, para 29

    [80] Second Family Report, para 153

26. The children’s move to live with the father would entail a change of schools, but at least the youngest child was due to change school if he remained living with the mother anyway. The Department of Education can no longer cope with him at his present school. The father has investigated the school he wants the children to attend if they live with him and he contended it had comparable resources to the school the Department of Education intended the youngest child would attend next year if he remains living with the mother.

27. Both parties live in Region I of NSW. Their homes are separated by a road journey of about 45 minutes duration. There is no practicable impediment to the exchange of the children between them on a reasonably frequent basis.

28. The mother criticised the father for not contributing to some dental expenses related to treatment of the children, but the legitimacy of such criticism was ameliorated by the father’s experience in this and the former litigation. The father explained he was brought to the brink of insolvency defending the mother’s baseless allegations in the last proceedings, meaning he was self-represented in these proceedings. The mother’s baseless allegations against him in these proceedings could also draw valid criticism, so his exasperation with her is understandable. It is common ground he has always paid child support in accordance with assessments.

Conclusions and orders

1. The evidence does not permit of reasonable grounds to believe the father engaged in child abuse or family violence (s 61DA(2)), so the presumption of equal shared parental responsibility applies.

2. However, the presumption of equal shared parental responsibility is rebutted by the evidence, which surely proves an order in those terms would not serve the children’s best interests (s 61DA(4)). The parties cannot co-operatively parent the children. The mother cannot hide her contempt for the father. She could not refer to him by name. At the children’s school, she refers to him as “the father”, as she did in oral evidence at trial. She admitted to school staff she could not call him by his name because “she couldn’t move on”.[81] It was common ground the allocation of parental responsibility should be exclusive to one parent and should follow the determination about with whom the children should live.

   [81] Second Family Report, para 139(m)

3. The children should live with the father, despite the risk they may remonstrate against the change. They will probably settle in his care. The only alternative is to leave them living with the mother, but that is untenable because nothing will change. The mother was pressed about how she could now make the children spend time with the father, as she now proposed, when the existing orders requiring exactly that to occur have not been successfully implemented by her for at least 18 months, and she had no answer. That is because there was no logical answer for her to give.

4. The mother’s counsel finally submitted the Court should contemplate making only interim orders, rather than final orders, even though that was not the mother’s actual proposal. The rationale was that, regardless of whether the children temporarily move to live with the father or stay with the mother, a review several months hence would eliminate the need for the current prognostications about whether the children’s residence with the father will be successful or whether the mother will successfully implement the children’s regular visits with the father.

5. The finality of litigation, although desirable, cannot always be wisely achieved in one step (see Marriage of Archbold (1984) FLC 91-532 at 79,309-79,310), but very persuasive reasons are required not to finalise litigation. Predictions about a family’s affairs are matters upon which minds will inevitably differ and findings by a Court in relation thereto permissibly fall within a wide range of discretion (see U v U (2002) 211 CLR 238 at 262-263). But such predictions are integral to all proceedings under Part VII of the Act and this case is no different. The interminable controversy between these parties has raged for almost four years and they have now endured two bouts of litigation. It should not be prolonged. Final orders should be made.

6. The Family Consultant recommended a short embargo on the children’s personal interaction with the mother to enable them to settle in the father’s residential care, though she carefully abstained from recommending what regime would then follow.[82]

   [82] Second Family Report, para 157

7. The recommendation of the embargo period is adopted and an injunction is imposed to prevent the mother’s frustration of it.

8. The father joined in the Independent Children’s Lawyer’s proposal about the nature of the children’s interaction with the mother that should follow the embargo period. Their proposal is adopted as sensible. The mother could have no real argument. It is akin to the regime she proposed for the children and the father if the children remained living with her. The regime graduates, easing the children back into a routine with the mother over the next 10 months, and culminates with them spending time with her for three nights each fortnight on alternate weekends in school terms, for one-week periods in school holidays, and on other special occasions.

1. The changeover venues for the children are their school and a public restaurant at Suburb E, which is about equidistant between the parties’ homes.

2. An order is made permitting the children to have telephone communication with the mother once each week and with the father once each week when they stay with the mother during school holiday periods. The parties were agreeable to an order of that sort. Communication twice each week is too much. Once is enough. There is no need to place an embargo on telephone communication in the same way that applies to the children’s personal interaction with the mother.

3. The mother sought an injunction restraining the parties’ corporal punishment of the children. It is granted because the father consented.

4. The mother and Independent Children’s Lawyer sought an injunction restraining the children being left in the unsupervised care of the father’s partner’s two adult sons. It is granted because the father consented.

5. Because the mother has made many past allegations of misconduct against the father in relation to his treatment of the children and because she said in cross-examination she would remain vigilant about reporting future complaints made by the children about the father, an order requires copies of the orders, these reasons, and the Family Reports to be furnished to the investigating authorities if and when any other complaint is made.

6. All remaining orders were either the subject of consent or could not attract any reasonable complaint.

7. An order requires the children to be promptly produced to the Family Consultant for them to receive a balanced explanation of the orders, so they can make sense of what will become of them.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 December 2015.

Associate:

Date:  17 December 2015.