PALIN & ASHLEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALIN & ASHLEY

[2015] FCCA 2206

Catchwords:
FAMILY LAW − Whether conflict between parents affecting children psychologically − whether conflict would be less if the children live with the father − whether the father can provide more stability of the children − whether one child should have a hyphenated surname.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DAA, 65DAA

Births Deaths and Marriages Registration Act 1996 (Vic), s.22(2)(b)

Applicant:

MR PALIN

Respondent:

MS ASHLEY

File Number:

DGC 3552 of 2013

Judgment of:

Judge Phipps

Hearing dates:

8 & 9 July 2015

Date of Last Submission:

9 July 2015

Delivered at:

Dandenong

Delivered on:

19 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Dunlop

Solicitors for the Applicant:

Calley Family Lawyers

The Respondent:

Appearing on their own behalf

Counsel for the Independent Children’s Lawyer:

Ms Brennan

Solicitors for the Independent Children’s Lawyer:

Lampe Family Lawyers

ORDERS

That all previous orders are discharged.
That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2006.
That the children live with the father commencing from after school on 20 August 2015.
That the children spend time and communicate with the mother as follows:
(a)commencing 27 August 2015 each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday (and in the event Monday is a public holiday, the Tuesday);
(b)for one half of school term holidays as agreed and failing agreement the first half in odd numbered years and the second half in even numbered years;
(c)for the first half of the long summer school holiday period in 2015/2016 and each alternate year thereafter commencing at the conclusion of school on the last day of term four until 12.00 noon on the middle day of the school holiday period;
(d)for the second half of the long summer school holiday period in 2016/2017 and each alternate year thereafter commencing at 12.00 noon on the middle day of the school holiday period and concluding at 12 noon two days prior to the conclusion of the school holiday period;
(e)notwithstanding the provision for the long summer holiday period the children will spend time with each parent at Christmas as follows:
(i)with the mother from 4.00pm on 25 December 2015 until 4.00pm on 26 December 2015 and each alternate year thereafter and from 4.00pm on 24 December 2016 until 4.00pm on 25 December 2016 and each alternate year thereafter;
(ii)with the father from 4.00pm on 24 December 2015 until 4.00pm on 25 December 2015 and each alternate year thereafter and from 4.00pm on 25 December 2015 until 4.00pm on 26 December 2015 and each alternate year thereafter;
(f)on the children’s birthdays from 2.00pm to 6.00pm if a non-school day;
(g)on the mother’s birthday from 9.30am to 3.00pm if a non-school day;
(h)on Mother’s Day from 9.30am to 6.00pm;
(i)such other times as may be agreed between the parties confirmed by email.
That in the event the children are in her care, the mother’s spend time with the children is suspended on:
(a)Father’s Day from 10.00am to 6.00pm;
(b)the father’s birthday from 10.00am to 6.00pm; and
(c)for four hours on the children’s birthdays if a non-school day.
That paragraph 4(a) is suspended during school holiday periods and resumes at the conclusion of the holidays in the same sequences as if the holidays had not occurred.
That each party will keep the other informed of their residential address and contact telephone numbers and notify the other of any change within 48 hours.
That changeover will take place at school and when the children are not at school the parent with whom the children are shall deliver them to the other parent’s residence and remain in the car until the children have entered the other parent’s home.
That each of the parents are restrained by injunction from:
(a)abusing, assaulting, denigrating, intimidating or imposing any form of physical discipline on the children or either of them;
(b)denigrating the other parent in the presence or hearing of the children or either of them;
(c)discussing with the children these proceedings, the contents of orders or affidavit material, future residential arrangements for the children and/or adult issues between the father and mother;
(d)allowing others to engage in conduct prohibited by this paragraph.
That both the father and the mother are at liberty to attend school events and extra-curricular activities to which parents are ordinarily entitled including but not limited to speech nights, parent teacher interviews, sports days, classroom participation, concerts, working bees, weekend sports and training sessions.
That each party authorise any educational institution attended by the children to provide to the other parent at their expense any information to which a parent is ordinarily entitled including the provision of school notices, reports, assessments, class photographs and the like.
That upon the commencement of these orders the mother and father arrange and attend therapeutic family counselling as soon as practicable to address the matters outlined in the family reports of Ms B dated 13 March 2014 and 29 June 2014 and in particular the third recommendation at paragraph 68 of the family report dated 13 March 2014.
That upon the commencement of these orders, the father arrange and ensure the attendance of the children at therapeutic counselling as recommended at paragraph 4 of the family report dated 13 March 2014.
That the father be responsible for the cost of the therapeutic counsellors referred to in paragraphs 12 and 13 thereof.
That the mother and the father are authorised to provide to the counsellor or counsellors engaged in the therapeutic counselling of the parents and children a copy of the family reports dated 13 March 2014 and 29 June 2015 together with a copy of these orders.
That the mother continue to attend upon her counsellor to address her own psychological health generally.
That the father is authorised to apply to the Registrar of Births, Deaths and Marriages, that the children previously registered as Y be now registered as Y.
That a sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages, who is requested to give effect to any such application.
That the order appointing the Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3552 of 2013

MR PALIN

Applicant

And

MS ASHLEY

Respondent

REASONS FOR JUDGMENT

Introduction and proposals

Mr Palin, the father and Ms Ashley, the mother, have two children X born (omitted) 2002, 12 nearly 13 and Y born (omitted) 2006, aged 8. They currently live with their mother and spend alternate weekends Thursday after school until Monday before school with their father. The question is whether this arrangement should remain or whether it should be reversed.
Both parents and the Independent Children’s Lawyer propose an order for equal shared parental responsibility. Although, as will appear from these reasons, the parents’ relationship is marked by hostility and distrust, the relationship of the children with each of them is strong and each parent should be involved in decisions about major long-term matters. The question of the secondary school the children should attend was an issue in this proceeding but the parties have now agreed. Notwithstanding their fraught relationship they have reached agreement on this major long-term matter.
The father’s proposal is that the children live with him and that initially there be a transition period as follows:
a)from the date of the orders and for a one week period, the children’s time with the father coincide with the previous sequence of time and then extending from the conclusion of school Thursday until the commencement of school the following Thursday; then
b)from the conclusion of the children’s time with the father in (a), the children spend time with the Mother from the conclusion of school Thursday until the commencement of school on Monday.
After the transition period the father proposes that the children spend time with the wife:
a)each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday and in the event that the Monday is a public holiday, until the commencement of school on Tuesday;
b)on the children’s birthdays from 2.00pm to 6.00pm if a non-school day;
c)on the Mother’s birthday from 9.30am to 3.00pm if a non-school day;
d)for half school term holidays, the first half in odd numbered years in the second half in even numbered years;
e)for the first half of the long summer school holiday period in 2015/2016 and each alternate year thereafter noting that the school holiday period shall commence at the conclusion of school on the last day of term 4 with changeover to occur at 12.00 noon on the middle day of school holiday period;
f)the second half of the long summer school holiday period in 2016/2017 and each alternate year thereafter with time to conclude at 12.00 noon two days prior to the conclusion of school holiday period;
g)such further times as agreed between the parties confirmed by email.
The father proposes suspension of the child’s time with the mother on Father’s Day from 10.00am to 6.00pm, the father’s birthday from 10.00am to 6.00pm and for 4 hours on the children’s birthdays if not a school day. He proposes various restraints on the parties, each party be at liberty to attend school events and extra-curricular activities, and notice of medical procedures and treatments.
For the child Y, the father proposes that her name be changed from Y to Y. After the child Y was born both parents signed the birth registration application. The father requested the birth be registered in the surname of Palin. The mother requested that the surname be registered in the name Palin. (omitted) was her surname at the time. The parties did not reach agreement and in accordance with the Registrar of Births, Deaths and Marriages policy exercised under s.22(2)(b) of the Births, Deaths and Marriages Registration Act 1996 (Vic) the name was registered with a combined name in alphabetical order, Palin.
The mother is self-represented and did not file a case outline or written proposal. She proposes that final orders should be the same as the current interim orders which are that the children live with her and spend alternate weekends with the father and time during school holidays and on special occasions.
The Independent Children’s Lawyer’s proposal is the same as the father’s without the introductory week that the father proposes.
The significant issues are:
a)The parties conflicted relationship and its effect on the children;
b)The stability of the mother’s living arrangements.

Background

The father was born on (omitted) 1970 now nearly 45. The mother was born on (omitted) 1973, now aged 42. The father married Ms R in (omitted) 2008. They had been in a relationship for about 3½ years prior to that. There are no children of the relationship. The wife married Mr A in (country omitted) in (omitted) 2011. They met online in 2008. They met for the first time when they married in (omitted) 2011 in (country omitted). The mother’s husband did not come to Australia for two years because it took that long to obtain a visa.
The mother has five other children, A born (omitted) 1992, B born (omitted) 1995, C born (omitted) 1996, D born (omitted) 2000 and then E born (omitted) 2014. The five children have three different fathers. E is the child of the mother and her husband Mr A. A lives independently and the other children live with the mother.
The parties commenced their relationship in late 2001 after knowing each other for about two years. They did not cohabitate. The mother became pregnant with the parties first daughter X in (omitted) 2001. The mother already had four children from previous relationships and moved soon after this time. The father says he assisted her and then discontinued contact until six weeks prior to X’s birth. He says he stayed with the mother for several weeks after the birth. The mother says they did not live together. The father was just visiting.
In early 2003 the father commenced proceedings in the Family Court of Australia in the Melbourne registry. Consent orders provided for the father to spend time with X from approximately 11.00am until 6.00pm on Saturdays.
In the middle of 2005 the mother sought to move to Queensland with X and her four older children. She was pregnant with the parties’ second child at the time. The mother says that she was offered a house by her grandmother and that the father agreed to it. The father says he did not agree to it and commenced proceedings to restrain the mother from moving. She did not move. In that proceeding final orders were made by consent on 1 August 2006. They provided for the father to spend time with the children alternate weekends from 5.00pm Friday until 5.00pm Sunday, and in the event that the father relocated to the (omitted) area then from the first weekend in October 2006 from 5.000pm Thursday to 5.00pm Sunday each alternate weekend. The orders provided for Y to spend incrementally short periods. When she was 14 months she began to spend the same time as X. In September 2012 the father and his wife Ms R bought their current home in (omitted), near the mother’s residence, and from January 2013 the children have spent time with the father each alternate weekend from 5.00pm Thursday until 5.00pm Sunday, half school holidays and on special occasions.
The mother went to (country omitted) in (omitted) 2011 to marry. The children spent all that time with the father. The father says it was five weeks the mother says it was four weeks.
The mother separated from her husband in September 2013. She said it was because he had told her lies about the child he had in (country omitted) and the nature of their wedding ceremony. She obtained a family violence intervention order. The mother and her husband recommenced living together in January 2014.
The father commenced these proceedings in December 2013. The mother was then living in emergency two-bedroom accommodation having either been evicted from her previous residence or the lease had been terminated.
Consent orders made on 28 January 2014 provide for the children to spend time with the father from the conclusion of school on Thursday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day). Orders made on 4 April 2014 provided for the children to spend half school holidays with the father and time on the various special occasions.

Children’s provisions

Children’s provisions are contained in part VII of the Family Law Act 1975 (Cth). The objects of the part and principles underlying it are s.60B.
1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of these objects and principles has relevance in this dispute.
There will be an order that the parties have equal shared parental responsibility for the children. Section 61DAA requires that I consider whether equal time is in the best interests of the children and reasonably practicable or if not equal time substantial and significant time.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interest the court must consider the matters set out in s.60CC(2) & (3).

The best interests considerations.

The relevant best interest considerations from s.60CC(2) and (3) are
a)Both primary considerations:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
b)The additional considerations:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(f) the capacity of:
each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;

Family Reports

Ms B prepared two family reports, one dated 28 January 2014 and the other 29 June 2015. She gave oral evidence. In both reports she recommended that the living arrangements be reversed so that the children live with the father and spend alternate weekends Thursday afternoon to Monday morning with the mother.

In the first report Ms B says that one of the most striking features of the case is the highly conflictual parents’ distrust of one another. She considered that the children are highly anxious and confused as they are inappropriately embroiled in their parents’ dispute. She considers this will only lead to feelings of anxiety. In her oral evidence she said that this could lead to serious psychological problems. She said that the children’s anxiety was aggravated by the insecurity about their home. She described the parents as appearing infuriated and resentful of one another.
Ms B interviewed both children. She said that X made numerous efforts to present the home environment with her mother as “perfect”. Ms B said she found that X exaggerated the descriptions of the mother’s household and everyone occupying it, but also focussed on negativity about her father’s household. She considered X’s responses mostly inconsistent and reflective of a young person very confused. X said her father was “always yelling but when asked what she would change said “I wish he would spend more time with us”. She gave critical commentary relating to the father’s wife but acknowledged she likes it when the father’s wife takes care of them.
Ms B said it was disappointing that X had an extensive understanding of her parents’ dispute and current court proceedings. X believed her parents’ conflicts related to the father’s wish for them to live with him. She suggested he did not like the new baby.
Ms B says that despite the negativity about her father in observation, she appeared comfortable and engaged with him as well as having a close and meaningful bond with the mother.
Ms B describes Y as more open and insightful than her sister. She said that Y spoke about her knowledge of her mother’s narrative that her father was abusive and violent to her mother. The examples given by Y could not have been things she knew herself. Despite this she was clear she had no fears or worries when spending time with her father. She knew her parents were not friends. Ms B observed Y with her family. She was confident and assertive. Ms B felt Y appeared more pondered and reliant on the maternal figures, her mother and stepmother. Ms B remarked that this may relate to her years. Y’s negative reporting of the father was inconsistent with observations of her interacting with her father warmly and eagerly but that was also observed with members of the mother’s household.
In her evaluation in the first report Ms B said the children are highly anxious and confused as they are inappropriately embroiled in their parents dispute. She said this could only lead to feelings of anxiety and a degree of fearfulness and insecurity.
The mother has had numerous relationships. She alleges that the father was violent and with another partner there was an incident which the mother accepts would have been very frightening for the children. The mother has been involved in numerous conflicts and has had difficulties in maintaining a home for her and the children, the most recent being in 2013.
In summary, Ms B’s conclusion is that the children are more likely to have stability in the father’s home. She acknowledges that the children both expressed negative views of the father but that was inconsistent with her observations of the children with the father and related more to the children having to reconcile parents who are hostile to each other.
The second report is dated 29 June 2015. The mother attended with the children and Ms B interviewed both children and observed them with the father and his wife. The mother refused to have an interview with Ms B.
Ms B interviewed both children. She observed considerable inconsistencies in their presentation. She says “Despite observing them to be equally engaged, open and enthusiastic while interacting with their father and Ms R, the children both continued to broadcast negative views of the father, as they both presented aligned to the mother’s views”.
Of the interview with X, Ms B says that it became apparent X feels highly responsible for her mother’s happiness. She often used adult language for example when describing events that led to the mother’s husband leaving the house. Ms B explored the impact on X of forming relationships with people who then leave, with often unexplained separations. X explained “sometime I get confused, I like the people then I have to forget them”.
X gave mixed reports of time with her father. She identified many positive experiences. She identified difficulties in managing belongings across the two households and explained conflicts between the parents where a sports uniform was unable to be located by her mother. Her mother accused the father of hiding it. She recalled her mother yelling at the father on the phone.
X is aware of her parents’ conflict. She said to Ms B that her mother is “really angry at her father” although Ms B says she was unable to explain the cause of the disapproval. X stated her father always “says bad stuff about mum”, but was unable to provide any examples.
Ms B says that the exposure to the parents’ discordant end to the current dispute appeared to be placing unacceptable pressure on X as she feels the burden to choose.
Ms B says that Y was consistent in her presentation from prior interviews. She mostly referred to previously broadcast reports against the father. Ms B says this included the repeated disclosure that the father was mean to her as a baby. Ms B considered it likely that she was coached for the interview. She gave as an example that Y was clear in expressing that “I like my dad”, quickly qualified “but I don’t want to be taken away from my mother”. She repeated “I don’t want to live with my father”. When asked why Y responded “X and mum told me to tell you”.
Ms B explored Y’s memory of her last interviews. She was able to identify who was living in her mother’s household. When asked about the mother’s husband she responded “I don’t know anything” Ms B says that when exploring her past disclosures in previous interviews that she liked the mother’s husband, Y explained she was not unhappy he had left because he was “really mean to mum”.
Y described the time she was responsible for putting the baby to sleep while the mother’s husband was sleeping. She was having difficulty settling the baby when the mother’s husband swore at her. Ms B says it was unclear where the mother was at the time and why it was Y’s responsibility to settle the baby.
Ms B says that Y presented as protecting her mother attempting to disapprove of the father. When asked examples she said she did not remember anything. Ms B says that the disclosures were in contrast to observations of Y with her father and his wife. The children were comfortable and at ease.
For the second report the mother refused to be interviewed by Ms B. Ms B describes what happened. The mother attended with the two children, her seventh child in a pram and one of her daughters escorting her. Ms B began the day with interviews with the children and observations of them with the father. Ms B arranged for the mother to leave the premises while waiting for her interview.
The mother was called once required and asked to return. She returned and became aggressive and volatile. Ms B sets out in detail what the mother said. It is unnecessary to repeat it all here. One phrase recorded by Ms B says that the mother said “Stick your f,,, report up your ass”. When it was put to the mother she denied using that phrase. She said she used a phrase which was equally offensive. Given that Ms B has recorded the phrase and put it in the report written soon after ,the probability is that Ms B’s version is correct. It matters little what the mother said. She does not deny being abusive. In her affidavits she is highly critical of Ms B and the report. Both children were present. Ms B describes them as looking “frozen, clearly confused”.
Ms B interviewed the father and his wife. They described the mother’s volatility and verbal and abusive responses to them. Ms B says that was consistent with what was observed by her.
In her evaluation, Ms B noted the need for a sense of comfort and security in a child’s world. She expressed concern that this had not been achieved at the mother’s house. She says that the ongoing unpredictable and fluctuating nature of the mother’s relationships continue to be of concern. She was unable to determine the current nature of the mother’s relationship with her husband.
Ms B says she observed strong meaningful relationships between the children and the father and his wife. She said she assumes that that was due to the positive and active parenting that they have both undertaken. She stated her belief that the children are well cared for and nurtured in the care of the father. She expressed concern for the mother’s inconsistent responses and non-compliance to engage in reasonable directions to participate in appointments including a psychiatric assessment. She described the mother as mostly defensive and cantankerous.
Ms B, in the second report, maintained her earlier recommendation for the children to live with the father and spend time with the mother as they currently spend with their father.
In an interim order the mother had been ordered to attend for a psychiatric report. She had not. Her reason for not doing so was that she considered it would be used against her by Ms B. Her reason for refusing to participate in an interview with Ms B was that she considered Ms B was biased against her. One particular reason she gave was the way she considered Ms B treated her older children.
For the first interview Ms B had observed the two children with the mother and her husband and older children from the mother’s family. The mother alleges that Ms B was demeaning or patronising towards two of the older children and stated what she alleged Ms B said. Ms B denied that this was the case. She said that she was evaluating the children with the members of the family with which she lived. She encouraged appropriate atmosphere and conversed with the older children to do this. She denied she would ever be patronising or demeaning to children, or young adults in this situation. She said she was very experienced including in conducting these types of observation sessions.
Ms B’s evidence that she treated the mother’s older children appropriately and respectfully is correct. It illustrates the mother’s approach to life generally, that of aggression and opposition, something that Ms B observed and the father and his wife say is the mother’s approach. The mother as good as admits that this has been her approach. She said that she has joined and been attending the (omitted) Church. She said that she has attended two courses conducted by the church and this has taught her that an aggressive approach to people in life is not appropriate.
Regretfully, cross examination of the mother, particularly by counsel for the Independent Children’s Lawyer showed that the mother has not put what she says she has learnt into practice. She continued to show an aggressive and critical attitude towards the father.

The mother

Central to Ms B’s recommendation that the children live with the father, is her opinion that in the father’s home the children will be less exposed to the conflict that exists between the parents. The mother claims that she is a good parent and that it is the father who is the abusive one.
Several things in the evidence demonstrate that the mother’s approach to events in her life is one of hostility. The mother refused to attend for a psychiatric appointment even though one was ordered. She said she considered it would be used against her by Ms B. She had already decided that Ms B was biased against her because of what was in the first report.
In saying this, the mother, even if she does not realise it, assumes that the psychiatric report would be critical of her. She does not appreciate that a psychiatric report might be favourable to her case. It demonstrates that the mother’s approach to life is to adopt an oppositional attitude. Her claim that Ms B is biased demonstrates a similar attitude. The report is not biased. It is detailed and well-reasoned. It contains criticisms of the father as well as the mother. The mother’s approach is that because the report is critical of her it is biased.
The incident described already where the mother refused to stay for an interview with Ms B and was highly abusive is a good illustration of the mother’s approach. She considered that in the observation session for the earlier report, Ms B was rude or patronising to one of her older children. Clearly Ms B was not and her conversation with the older child was aimed at making him feel comfortable.
The abuse of Ms B by the mother took place in the presence of the children. I have set out Ms B’s description of their reaction. This demonstrates that the mother does not appreciate the need to shield the children from her criticism of other people. The mother’s affidavits and oral evidence show that she is continually critical of the father. She was critical of them in her one interview with Ms B. I am satisfied that this criticism takes place either to or in the presence of the children and that is it is frequent. Ms B concludes this. She sees it as the explanation for the children in interview being critical of their father and yet having a warm and affectionate relationship with him during the observation sessions.
The mother’s emphasis on herself and lack of understanding of the effect of her actions on the children is illustrated by events at Christmas 2012. Early in December the mother sent the husband a text message saying that the children would spend three weeks from Christmas Eve with the father. The father did not respond but accepted that that was the arrangement. He planned to take the children to Sydney to see his family. The mother objected and so the father arranged for Christmas at his house. He considered there was agreement that the children would be in his care until 13 January 2013.
The mother arrived at the father’s house at 5.00pm on Christmas Day. X opened the door and the father alleges that the mother pulled X through the door and sent her to the car where her husband was. Neither the father nor his wife were at the front of the house when the mother arrived. Other members of the family were.
The father alleges that the mother then demanded Y come with her but Y ran out to the back of the house. The situation escalated to the point where police came. Ultimately the mother left with X and Y stayed with the father until 13 January.
The mother acknowledges that she sent the email proposing the children spend the first half of the holidays with the father commencing Christmas Eve.. She says that the father did not reply and she decided to change the arrangements. She denies any aggressive or abusive behaviour.
Whatever the details are of what happened, this was an event distressing for the children and the result of it was that the children were separated for three weeks over the school holidays. I consider that the father was quite reasonable in concluding that the children were to be with him for the three weeks after Christmas. I am satisfied that neither he nor any other members of his family restrained Y and that it was Y who did not want to go with her mother. The mother’s approach was again one of aggression and a lack of appreciation of how this affected the children.
The second reason for Ms B making the recommendation she does is the instability in the mother’s past. She has had a number of partners and she has had a separation from her husband between September 2014 and January 2015. The husband commenced these proceedings because the mother had been evicted from her rental premises. The mother denies she was evicted, but material annexed to one of the affidavits shows she was given notice to leave. She was living in emergency accommodation with only two bedrooms when the father commenced this proceeding.
At the time when the mother proposed going to Queensland she had no accommodation in Victoria. She says that she did have accommodation in Queensland and that she had agreement with the father. The father disputes this but whether there was an agreement or not there was instability in the mother’s accommodation. On another occasion she was staying with her mother with the children but had to leave.
Ms B’s conclusion about instability in the mother’s living arrangements in the past is correct. The mother now has suitable accommodation provided by one of the welfare agencies. The past history shows that she may suffer further instability in the future. Her husband did not give evidence. What he thinks about his marriage to the mother, his relationship with the children and whether they should be living with the mother is not known.
According to the father and his wife, Y said that the wife’s husband pulled Y by the arm and that he has walked into the bathroom while she had been having a shower. She says she has asked him not to but he has repeated it. The mother denies that this has happened, but the absence of any evidence from Mr Ashley does not help.
Neither the father nor the Independent Children’s Lawyer suggests that Mr Ashley presents any risk to the children. What is relevant is the mother’s dismissal of the allegations without any real consideration of them.

The father

Ms B has some criticism of the father. In recording the first interview she said that at times he presented as rigid and defensive. She said she was unsure he had any insight into how his own responses to the mother contributed to the strained dynamic between them.
The father has had some medical and mental health issues. A report annexed to an affidavit by Dr R, the father’s treating general medical practitioner, describes these issues. The father worked in (occupation omitted) and injured his right shoulder on 29 August 2008 when acting as a (occupation omitted). His shoulder was dislocated following an act of violence by the client. He sustained neck and right shoulder injuries. He had two operations.
According to Dr R the father suffered a nervous breakdown. He was diagnosed with Bipolar Effective Disorder and Depression and was admitted to (omitted) Clinic for treatment. He was suffering severe pain and was taking strong opioid medications along with psychotropic medications for his mental health issues.
Dr R says that following surgery the father experienced a dramatic improvement in his pain and improvement in his mobility. All strong analgesic medications were withdrawn. His mental health issues improved dramatically.
The husband suffers from atopic eczema. The report from his treating dermatologist, Dr G states that it does not affect his parenting ability.
The father attended for a psychiatric assessment by Dr D. Dr D says his formal psychiatric history is limited to a period of sustained depression and post-traumatic stress disorder stemming from the workplace incident in 2008. The father reported to Dr D that he was under psychiatric treatment five years. He admitted to being less tolerant of his wife and children when he was anxious until two years before he saw Dr D which was in May 2015. He had not seen his treating psychiatrist since that two-year period.
Dr D says that the father did not present with signs of ongoing mental difficulties. He presented as frustrated with the mother, but he was contained and reasonable.
The father’s admission to Dr D about being less tolerant when he was anxious leads to the conclusion that he has contributed to the conflict between the parents but Dr D’s assessment that he does not present with any signs of ongoing mental difficulties leads me to the conclusion that that was more in the past and not now.

Best interests

The first of the primary considerations is the benefit to the children of a meaningful relationship with each parent. Ms B makes it clear that the children have a meaningful relationship with each parent now. Because of the children’s exposure to conflict there is a risk to the relationship. Ms B considers that there will be less conflict with the children if they live with the father. She considers that there will be some difficulty in the children initially in moving to live with their father but they will adjust.
The second of the primary considerations is the need to protect the children from physical or psychological harm. Ms B considers that if the children continue to be exposed to conflict between the parents, they are at risk of psychological harm. Ms B considers that there is less of this risk if the children live with the father. I accept what Ms B says.
The first of the additional considerations is the views of the children taking into account their ages and maturity. To Ms B, both children are positive about their mother and critical of their father. However, Ms B’s view is that this is because of the conflict between the parents and is the way the children have coped with this conflict. On both occasions when she saw the children with their father, she observed a very warm relationship between them. Ms B does not consider that the children’s views can be treated as a true indication of how they see each parent. I accept Ms B’s expert opinion.
The next additional consideration is the children’s relationship with each parent and other persons. They have a good and close relationship with each parent. Of particular significance in this case is that they have a good relationship with the father’s wife. Relevant too is their relationship with their siblings. Should they live with their father they will be separated from the siblings with whom they have been living. Ms B considered this but does not consider it outweighs the benefit to the children of living with their father.
The next additional consideration is the extent to which each parent has participated in communicating with the children and spending time with them. The children have lived predominately with the mother. The father has actively pursued spending time with them and has done so.
The next consideration is the extent to which each parent supports the children. Since the workplace accident the father has been disabled and his income is a disability payment. His ability to contribute financially to the care of the children is limited. His wife is employed.
The next consideration is the effect of the children of any change including separation from a parent. Ms B considers that a change from living with their mother to living with their father will cause difficulties for the children but it can be dealt with.
The next consideration is the ability of each parent to provide for the needs of the children including emotional and intellectual needs. The mother’s living arrangements have not been stable. She was living in emergency accommodation when the father commenced these proceedings in 2013. While she may not have been evicted, she had to leave the previous accommodation without having anywhere else to go.
When she was intending to move to Queensland she had no accommodation in Victoria. On another occasion she was living with her mother with the children and had to leave. From September 2014 until January 2015 she was separated from her husband. The mother has not provided any evidence which allows assessment of the stability of her current relationship. Ms B was unable to make this assessment. What is known about the mother’s relationship with her husband is that in September 2013 she compelled him to leave. She obtained a family violence intervention order although she does not appear to have been alleging behaviour which meets the definition of family violence.
The father owns his own home with his wife and has lived there for many years. His circumstances are stable. In particular, the mother accepts the father’s wife as someone she can communicate with and the father’s wife impressed Ms B. The children like the father’s wife and have a good relationship with her.
The children’s emotional and intellectual needs are significant considerations in Ms B’s recommendation that the children live with their father. She considers that if the children continue to be exposed to conflict that can have serious psychological and emotional consequences. She considers that if living with the father and his wife the exposure is likely to be much less. The father’s wife impressed as a witness and I am satisfied that the children will be exposed to little if any of the conflict between the parents while in the father’s house. I consider the opposite is the case in the mother’s house. This leads to the conclusion that the children’s emotional and intellectual needs are better served by living with the father.
All the evidence shows that the father is better able to provide for the children’s needs including their emotional and intellectual needs.
The next consideration is the attitude of each parent to the responsibilities of parenthood. The mother’s abusive statements, with the children present, to Ms B at the time of the interviews for the second report show that the mother has little understanding of the responsibilities of parenthood. She should not subject the children to that behaviour. The attitude shown in her affidavits and in the witness box shows that it is probable that she makes criticisms of the father in similar terms in the presence of the children. What the children said to Ms B criticising their father reinforces this conclusion. I am satisfied that the mother does make inappropriate statements about the father in the presence of the children and the probability is that she will continue.
The father is critical of the mother. Some of the statements of the children to Ms B suggest that this has happened in their presence. Nonetheless, the children have a very good relationship with the father and I am satisfied that any criticism he makes of the mother in the presence of the children is at a lower scale than the mother makes of him in the presence of the children.
The next consideration is family violence and family violence intervention orders. The mother alleges continual family violence by the father. One incident occurred where on each party’s version there was actual violence. The mother alleges the father’s behaviour included elbowing her in the head. The father alleges the mother punched him in the eye and he accidentally elbowed her. The mother obtained a family violence intervention order against the father which was dismissed on appeal to the County Court of Victoria. The mother claims that this was not because of any finding on the merits. There was little cross examination and no independent evidence so it is not possible to make a finding about this incident, and given other considerations it is of little relevance.
The mother’s claim of family violence on other occasions has little credence. The mother’s interpretation of events during Ms B’s observation sessions with the children and other members of the mother’s family show that the mother has little ability to be an accurate reporter of events. The father acknowledges shortcomings in his attitude to the mother while he was under treatment by a psychiatrist but does not admit to any violence. The mother does not give any specific incidents of violence other than the one I’ve already referred to. There has been conflict between the parents. Other than the one incident, the evidence does not identify any occasion of family violence. I am satisfied that there is not now evidence of family violence which is relevant to the best interests of the children.
The evidence supports Ms B’s conclusion that the children would have a more stable and predictable environment and be exposed to less conflict should they live with their father. I accept Ms B’s conclusion.
I am satisfied that there is risk to the children’s psychological well-being if they continue living probably with the mother and that the father, with his wife, is better able to provide for the children’s needs including their intellectual and psychological needs. The children’s best interests are served by living with their father.

Section 65DAA

The orders will include an order for equal shared parental responsibility. This section then requires that I consider whether equal time is in the best interests of the children and reasonably practicable or if not equal time substantial and significant time. Neither parent proposes equal time and the Independent Children’s Lawyer and Ms B do not support it. I must consider substantial and significant time. What is proposed by the father means that the children will spend substantial and significant time as that is defined in s.65DAA. The parties live close together and are able to communicate and cooperate sufficiently to make the order reasonably practicable. The communication occurs between the mother and the father’s wife, but it is effective. The orders proposed by the father are reasonably practicable.

Name Change

Y’s birth certificate registers her as Y. As I set out earlier in these reasons how the hyphenated surname came about because the parents could not agree. The Registrar of Births, Deaths and Marriages applied the policy of registering a combined name in alphabetical order. X’s birth certificate registers her as X.
The father proposes Y’s surname be Palin only. I will proceed on the basis that it is a parenting order and so I am required to consider the best interests considerations.
Little attention was given to the name change in the hearing. There is no evidence that a change of name will affect Y’s relationship with either parent or with her sister. Nor is there any evidence about the views of either child about the name.
Ms B makes no distinction between the children in assessing their relationship with each parent. I consider I can draw the conclusion that Y’s surname is not relevant to her relationship with either parent or the sister. There is no evidence about either child’s views about the surname and I consider that I can proceed on the basis that neither child has a view in the surname.
That leaves the last of the best interest considerations in s.60CC, “any other fact or circumstance that the court thinks is relevant.”
The relevant considerations are these. The surname is a default surname because the parties could not agree. It means that children who are full siblings, of the same sex and close in age have different surnames. The name which the father proposes be deleted, (omitted), is no longer the name the mother uses. She uses her married name, Ashley.
None of these might be of great significance but when added to the practical consideration of the length of the surname, my conclusion is that Y’s best interests are met by the change. The surname has 13 letters and a hyphen. It has six syllables. Life is full of form filling and stating one’s name. Y’s best interests are served by removing the hyphen and the name no longer used by any member of her family and making her life that less complicated.
Ms B recommends the parents attend therapeutic counselling and that the children do so too. The Independent Children’s Lawyer supports these proposals and I will make the orders.
The father’s proposal for an intermediate regime of time for the first two weeks after the children have commenced living with the father is a proposal Ms B suggested in her oral evidence. The Independent Children’s Lawyer does not propose it. The children are used to spending periods of time away from the mother and with the father. They did so in 2011 when the mother went to (country omitted) to marry her husband and they have done so during school holidays. I consider that an intermediate regime is an unnecessary complication when the parties are in conflict.

I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Associate:

Date: 21 August 2015

[2015] FCCA 2206

19 August 2015

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