Peacock and Pennington

[2015] FCCA 2336

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEACOCK & PENNINGTON [2015] FCCA 2336

Catchwords:
FAMILY LAW – Parenting – spending time orders – parental responsibility.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Cases cited:
Collu & Rinaldo [2010] FamCAFC 53

Applicant: MS PEACOCK

Respondent: MR PENNINGTON

File Number: BRC 1263 of 2012

Judgment of: Judge Howard

Hearing dates: 27 & 28 July 2015

Date of Last Submission: 25 August 2015

Delivered at: Brisbane

Delivered on: 28 August 2015

REPRESENTATION

Counsel for the Applicant: Ms McMillan QC

Solicitors for the Applicant: Hopgood Ganim Lawyers

Counsel for the Respondent: Ms McArdle

Solicitors for the Respondent: Brisbane Family Law Centre

ORDERS

1. That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 17 September 2015.

2. That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 28 September 2015.

3. That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1263 of 2012

MS PEACOCK

Applicant

And

MR PENNINGTON

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant mother is Ms Peacock.  She was born on (omitted) 1973.

2. The respondent father is Mr Pennington.  He was born on (omitted) 1968. 

3. The parties met in (omitted) in 1998.  They married on (omitted) 2000.

4. The parties separated on a final basis in July 2007. 

5. The parties have two children – X born (omitted) 2003 and Y born (omitted) 2005.

6. The children are currently living in a week about shared care arrangement.  Unfortunately, the parents are not able to agree on final parenting orders.  The mother seeks an order whereby the children would live primarily with her and spend four nights per fortnight with the father.  In addition, the mother seeks an order that she be granted sole parental responsibility for the children in relation to the issues of education and health.  Further, the mother seeks an order that would require each parent to refrain from attending regular sporting and regular extracurricular activities of the children – unless the children are actually in the care of that parent at the time.

7. The father seeks a continuation of the week about arrangement.  Furthermore, the father seeks an order for equal shared parental responsibility.  Finally, (in so far as the main issues in contention are concerned) the father does not want either parent to be prevented from attending at the children’s sporting and extracurricular activities (irrespective of which parent currently then had the care of the children).

Section 60CA

1. In deciding whether to make a particular parenting order – the Court must regard the best interests of the children as the paramount consideration (section 60CA Family Law Act 1975).

Section 60CC

1. The Court must determine what is in the children’s best interests in accordance with the statutory pathway set down in section 60CC of the Act.

2. Section 60CC(2) sets out the primary considerations. Section 60CC(2) states:-

   “60CC(2)  The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

Section 60CC(2)(a)

1. This family has seen Mr S on two occasions.  The first occasion was in April 2014.  Mr S’s first report is in fact dated 7 July 2014 and is annexed to an affidavit of Mr S which was filed on 22 September 2014.

2. A further copy of that same family report was annexed to Mr S’s affidavit which was e-filed on 27 July 2015. 

3. Also annexed to the affidavit of Mr S which was e-filed on 27 July 2015 was an updated report from Mr S.  Mr S’s second report is dated 16 February 2015.  The family were interviewed on 11 December 2014 for the purposes of the updated family report. 

4. In Mr S’s first report (dated 7 July 2014) he notes at paragraph 88:-

   “The children here present with an attachment to both parents and strong loyalty to each. This sense of loyalty leaves them invested in the status quo. Unfortunately it is the case that, due to the change in the parents’ relations, they each in different ways have been emotionally affected.”

5. Mr S was of the view (at the time of the first family report) that the children should live primarily with the mother and spend time with the father on alternate weekends from Friday until Tuesday.  To put it another way – four nights per fortnight with the father. 

6. In Mr S’s second report he noted at paragraph 37:-

   “They (the children) appeared generally more stressed than when I had seen them on the first occasion, in their behaviour and also within their interviews”.

7. Mr S noted further, in his second report, inter alia:-

   “64. It was my previous view – and it remains my view – that there is a disparity in the available emotional maturity of the parents here. I am of the view that Ms Peacock demonstrates greater insight and depth of understanding of the nuances of the children’s behaviour than Mr Pennington, even if it is accepted that his conduct has changed or will change. This is apparent in both the history up until relatively recently and the way that each of them speak about the children’s issues.

   65. The nature of the children’s attachments is also of consequence, as insecurity and confusion in attachments between children and parents is more likely to occur in environments in which there is little cohesion between the parents’ homes and attitudes, and a paucity of, or irregular, encouragement of the child’s bond with the other parent.

   66. I formed the view – over the course of the two assessments – that both parents have some difficulties here. The mother perceives the father’s bond with the children as detrimental to their growth, sensing that he disparages her, but also that he fails to address or take issue with the children over matters of principle and values, instead taking the easy road. Her support for his relationship with the children is a tacit one.

   67. As noted in the earlier assessment, the father has directly maligned the mother’s relationship with the children, seeking through that process to establish a stronger bond between him and the children. He maintains that his approach is now different.

   ……

   72. The risk to placing the children more in the care of their mother is that there could be a reaction from both, but more probably from X. How acute such a reaction might be is not ascertainable, but one aspect of it could be a sense of sympathy for his father – particularly if his father’s reaction is as acute as has been suggested – which could translate into anger at his mother. This is a possibility even if the arrangements were to remain the same.

   73. I have found Ms Peacock to be a particularly insightful woman and my view is that she is as capable of managing this as anyone. In my view the children should be placed more predominately in the care of their mother, and spend approximately five nights per fortnight with their father.”

8. Mr S has reconfirmed his opinion that the children should live primarily with the mother.  On this occasion he states that, in his opinion, the children should spend “approximately five nights per fortnight with their father”.

9. On the basis of the evidence of Mr S (in both his first and second reports) it is apparent that there will be benefits to both children in having a meaningful relationship with both of their parents.

Section 60CC(2)(b)

1. I note that the second stated primary consideration relates to the need for the Court to protect children from, “physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

2. I also note, in particular, section 60CC(2A) which requires that the Court is to give greater weight to section 60CC(2)(b) (than section 60CC(2)(a)).

3. In the mother’s affidavit filed 18 June 2015 (the mother’s trial affidavit) the mother gives evidence as follows:-

   “15. Mr Pennington and I had a difficult relationship which deteriorated extremely rapidly towards the end of our marriage. During the years pre separation (and particularly from the time of X’s birth) our marriage was extremely inequitable and characterised by controlling and aggressive behaviour on Mr Pennington’s part. I would describe my behaviour towards Mr Pennington during this time as accommodating and compliant.

   16. The years post separation were littered with unsettling incidents involving Mr Pennington, including him stalking me and engaging in other acts of family violence, together with threats of and actual incidents of self harm by him. I refer to these issues in further detail below. All of those incidents contributed in some way to the difficult post separation parenting dynamic between us. These incidents also left me feeling very frightened of Mr Pennington due to his unpredictability and the fact that I could not feel comfortable that he would not physically harm me, X and Y.”

4. I accept this evidence from the mother.

5. In the period following separation the father, on 25 July 2007, attempted to commit suicide.  I accept the mother’s evidence in relation to this issue as detailed in her trial affidavit.  In paragraphs 120 and 121 of the mother’s trial affidavit the mother states:-

   “120. On 25 July 2007 Mr Pennington came over to put the kids to bed. We had further conversations about our relationship. He wanted to reconcile and I said I did not. At approximately 7.30pm he stormed out of the house. I could see him in the laundry looking for something (which I assumed was rope or similar). I walked outside to ask what he was doing. He then walked past me to the back yard and came back holding our garden hose. I took it off him. We talked though the open car window for some time, before he followed me back inside. He told me he was moving back into the house whether I liked it or not. He then left again at approximately 10:30pm. I got a call a short time later when he said goodbye to me and told me to look after the kids. He was driving in a manner that was such that I could hear the car revving extremely high, and I thought he may have been about to deliberately crash the car. His brother, Mr B then phoned me and told me that Mr Pennington had also called him. I spent the next three hours between calls to Mr Pennington and the Police. Mr Pennington made several calls to me, but wouldn’t tell me where he was. Initially the Police were unable to help given that I didn’t know where Mr Pennington was and they advised that it was “like looking for a needle in a haystack”.

   121. I managed to contact a police officer who was a friend of ours. That helped and the police more actively assisted, and they came to the house to ask me questions so they could try and find Mr Pennington. During one of our phone calls I heard a noise which I thought could have been the sound of the chain that opened the roller door at his work. I told the Police that. The final time Mr Pennington phoned me he said goodbye to me and I could hear the sound of him inhaling deeply, but he did not hang up the phone. While the line was open, I heard the police arrive at his business premises and get him out of a car. He had connected the exhaust pipe to the car via a hose. He was hospitalised until Monday 30 July 2007.”

6. As noted, I accept this evidence from the mother.

7. The father, of course, does not dispute the suicide attempt.

8. I have had regard to both parents in the witness box.  There are conflicting accounts of what occurred on 7 August 2007 after a meeting between the parents at the (omitted) at (omitted).  The father, having recently attempted to commit suicide, was emotionally distressed at that time.  I note the mother’s evidence in her trial affidavit where she states, inter alia:-

   “125. On 7 August 2007 there was an incident that led to a Protection Order being made in my favour. I met with Mr Pennington at the (omitted) at his request at approximately 8pm. We talked until approximately 9.30pm. When I wanted to go, I went down to the car park. He told me that he wanted to keep talking. I said that I wanted to go home and asked if we could talk the following day. We spoke for another minute or so. Mr Pennington became angry and I said I was leaving. I then started walking towards my car and unlocked the doors. He then ran to my passenger door so I re-locked the doors. I asked him several times to move away from the car so that I could leave. He refused. I then started to walk back out of the car park in the direction of (omitted). He chased after me and continued to state that he wanted to talk for 2 more minutes. I refused and said he had no right to do what he was doing. I told him that if he did not leave me alone, I would call the Police.

   126. I walked back over to my car and he followed me to the driver’s side door. I again started to walk away from my car. He grabbed at me repeatedly as I walked away. I ended up being cornered against the brick wall of the car park. He grabbed at me as if trying to hold both of my arms with his arms three times. Each time I pushed him away with my arms and told him to leave me alone. I then backed off towards my car and took my phone out of my pocket. As soon as I started searching for a phone number, he walked to his car. I phoned my brother, Mr Y, and told him that Mr Pennington was stopping me from leaving. I asked him to stay on the phone while I got in my car and started driving. Once I was on (omitted), I hung up. Mr Pennington followed closely behind me in his car.

   127. As I was approaching (omitted), Mr Pennington phoned me. He said he was sorry repeatedly and said “I didn’t mean it”. I said “Don’t you dare follow me home.” When I turned into a street close to home, he stopped following me. Once I Was inside the house, I locked the doors. I then decided to go to the Police Station. My brother went with me. Mr Pennington’s brother, Mr H was also staying with me. He stayed with X and Y. I asked him not to let Mr Pennington in if he came to the house. I then went to the Police Station. Mr Pennington tried to phone me while I was driving there; I didn’t answer. I made a statement to the Sergeant. During the time I was at the station, Mr H phoned and told me Mr Pennington was at the house. He phoned me again about 10 minutes later and said Mr Pennington had left. I also received a voice message and text messages until 11:30 pm from Mr Pennington saying he was sorry he had scared me. He later phoned Mr H, who told Mr Pennington I didn’t want to talk to him.

   128. On 8 August 2007 I sent Mr Pennington a text message at 8.00 am asking him to stay away from the house, me and the children.

   129. On 22 August 2007 a Temporary Protection Order was made.

   130. On 4 September 2007, a Protection Order was made.”

9. I accept this evidence from the mother.

10. To the extent that there is any conflict in the evidence between the parents concerning what actually occurred during and after the parents’ meeting at the (omitted) on 7 August 2007 – I prefer the evidence of the mother.  The father was, clearly, so emotionally distressed and eager to try to reconcile – that I consider it much more likely that the mother’s recollection of the events is more accurate.  The mother is a much better historian than the father.  On numerous occasions throughout the father’s evidence (during cross-examination) he was not able to recall events or matters that were put to him.

11. Furthermore, the father engaged in other stalking and inappropriate behaviour which leads me to conclude that he lacked insight in relation to many of these issues.  The father had secretly placed digital voice recorders in the mother’s car and in the former matrimonial home in October 2007.  The mother was still then living with the two children in the former matrimonial home post separation.  The father attended at the former matrimonial home and confronted the mother in order to challenge her about what he heard on the voice recorders.  When the mother asked the father to leave the house the father went to X’s bedroom and got into bed with X.  The mother states (in paragraph 133 of her trial affidavit) inter alia:-

    “He was yelling at me from X’s bed that the police would have to drag him out with X in his arms”.

12. I accept this evidence of the mother.  One would only have to wonder what impact this might have had upon X who was in his bed at that time.

13. The mother’s evidence continues (in relation to the incident where the father would not get off X’s bed):-

    “133. …When I asked him to leave, he went to X’s room and got into bed with him. He was yelling at me from X’s bed that the Police would have to drag him out with X in his arms.

    134. I phoned the Police. Mr Pennington got up and walked out of the house a few minutes later. I remember being extremely scared of Mr Pennington, but I refused to leave the house as both of the kids were there. He was later arrested.

    135. I recall being upset (and feeling guilty) that Mr Pennington had been arrested. I picked him from the Brisbane watch-house when he was released the following day.”

14. I accept this evidence of the mother.

15. Another confronting incident took place shortly thereafter when the parents were attending a counselling session with a psychologist at the (omitted) at (omitted) in Brisbane.  The mother states in paragraph 136 of her trial affidavit:-

    “136. In the days shortly after that incident, Mr Pennington asked me to see a psychologist with him at the practice ((omitted), (omitted)) where he has been treated since the attempted suicide incident on 25 July 2007. I agreed. When we attended upon the psychologist, Mr Pennington proceeded to tell the psychologist that I’d had an affair and was essentially trying to embarrass me in front of her. When the psychologist told Mr Pennington that we wouldn’t have a very productive session if that was how he behaved towards me, he immediately stormed out in anger at us both. I remember her being quite surprised, whereas I felt it was not unlike any other conflict that occurred during our marriage. My recollection is that the counselling session was over in less than 10 minutes. That experience has certainly impacted by willingness to participate face-to-face in any mediation or counselling sessions with Mr Pennington.”

16. I accept this evidence of the mother.

17. The mother states further in her trial affidavit:-

    “137. On 23 October 2007 Mr Pennington made a big deal about returning the keys to the home. I recall that I had a funny feeling from Mr Pennington’s contact with me (which was incessant) that he knew my movements in great detail. That evening I located two digital voice recorders in the house.

    138. At approximately 7am on 24 October 2007 I phoned (omitted) (private investigators) and asked them to watch my house for the day. (omitted) later reported to me (and provided me with a confirmatory written report and DVD) that Mr Pennington entered my home and removed unknown items from the house. Mr Pennington was not living in the house. He had no consent from me to be there, and it was contrary to the Protection Order. He phoned me later that day and asked me to return the voice recorders. I have never told him that the house was being surveilled, and I never reported Mr Pennington’s entry to the police.

    139. During October and November 2007 there were numerous additional unreported breaches of the Protection Order and stalking behaviour. This included numerous instances of Mr Pennington following me during work hours. On one occasion, I discovered him following me along the (omitted) during my lunch break. I had been working ((omitted)) in a different office building and went out for a walk at lunch. When he phoned me, I realised he had been watching and listening to me. I turned around and walked back in the other direction and nearly immediately found Mr Pennington following me. I confronted him. This was not my normal office building or general location (which was on (omitted)), so he must have followed me there in the first place.

    140. He also phoned my family, friends and colleagues. I can recall a day (around separation) when he had insisted on knowing the identity of every person on my phone (which I used for work and personal purposes). I believe that he later phoned every number listed on my phone bill as several of my family, friends and work colleagues reported calls to them from a person they believed to be Mr Pennington. The substance of the calls to my friends and family was to tell them that I had had an affair and he attempted to gain their support for him.

    141. On another occasion, he entered the house when I was at work and made a “shrine” of sorts on the kitchen bench. He’d pulled photos out of albums, found old letters and cards and left it all on the bench with letters to me, X and Y. He wrote multiple captions in albums that he had never previously written in.”

1. I accept this evidence of the mother.

2. At page 137 of the transcript (day two of the trial, Tuesday 28 July 2015) while being cross-examined by Ms McMillan QC on behalf of the mother – the father could not recall entering the former matrimonial home and making a collection of photos on the kitchen bench.  The photographs depicted the wedding day of the parents and other happy family memories.  The father stated from line 20:-

   “I cannot recall that, and I cannot recall”.

3. The father did not deny that he had entered the house and arranged the photographs on the kitchen bench.  I find, as a fact, that the father did enter the house and arrange the photographs on the kitchen bench as alleged by the mother.  It is much more likely than not that the father was responsible for this collection of photos – especially noting the mother’s evidence (which I accept) to the effect that the father at that time wrote captions on photographs he had not previously written.  In fact, I do not believe the father’s assertion that he “cannot recall” the event.

4. From page 139 of the transcript (line 40) – the father gave evidence that he could not recall asking the mother to go and see a psychologist at the (omitted).  But he does recall storming out of the counselling session.  I find, as a fact, that it was the father who asked the mother to go to the counselling session at the (omitted).

5. The father maintains that he engaged a private detective.  He says that he does not remember the name of the person.  The father also says that he paid the person in cash.  This occurred over a six to seven month period.  The father seems to be maintaining that he was able to know the mother’s movements because the father had engaged this private detective.  The father has not been able to provide the name of the private detective and nor produce any documents relating to that person.  I find, as a fact, that it is more likely than not that the father was personally following the mother and keeping tabs on the mother’s movements.  I consider it highly unlikely that (even after a period of eight years) if the father had indeed engaged a private detective – that the father would no longer remember the name of the private detective. Especially if, as the father alleges, this particular private detective had been engaged:-

   “Over the period of six or seven months, and it was on a probably week-on and week-off basis…” (Note lines 44 and 45 at page 141 of the transcript during the cross-examination of the father).

6. I find, as a fact, that the father did follow the mother as alleged by the mother in paragraph 139 of her trial affidavit (and as noted elsewhere by the mother in her evidence).

7. I find, as a fact, that it is more likely than not that it was indeed the father who phoned the mother’s family, friends and colleagues informing them that the mother had engaged in an affair. 

8. In addition to those instances already mentioned – the father was unable to recall other events.  I note, for instance, the following:-

   a)The father could not recall spending time with the mother and the mother’s parents on X’s birthday.  In addition, the father appeared not to recall telling Mr S about that particular birthday event (I note page 145 of the transcript lines 33-35);

   b)The father had sent a text message to the mother where he made a reference to the mother sleeping with her new partner/boyfriend (Mr K).  The father could not recall sending this text message.  I note page 146 of the transcript line 40;

   c)The father did not appear to recall that there was a (omitted) information night for Y’s middle school in November 2014 (page 163 of the transcript lines 30-35).

9. Each of the instances referred to in the evidence (of the father’s poor recollection) lends weight to the conclusion that I have reached – namely that the father has a poor recollection, the father is a poor historian and the father is an unreliable witness.  On the other hand, the mother, as noted, was an excellent historian and where there are any discrepancies in the evidence between the mother and the father – I prefer the evidence of the mother.  The mother is a reliable witness.

10. Much of the father’s conduct (as outlined above) leads the Court to conclude that the father lacks insight.  His conduct (as outlined) was completely inappropriate and, indeed, in certain respects, unlawful.  For instance, the father was convicted of breaching the protection order (as detailed in the mother’s trial affidavit in paragraphs 133 and 134). 

11. In paragraph 74 of Mr S’s first report he noted, when talking to Y:-

    “74. At her father’s place, she says ‘I get on really well,’ and she spoke happily about the things that they did there. She recalled having a conversation with her mother about her father saying she (her mother) had done something wrong, saying ‘last time I said to Mum, I said Dad said the reason you broke up is because you did something really bad and I really hope he is lying.’ Her mother didn’t say anything to her about it. This appeared to play on her mind.”

12. Clearly, the father has said to the children that the mother did something “really bad” – and that was why the parents’ marriage ended.  This obviously played on the minds of the children and, in particular, it seems to have played upon Y’s mind – in the sense that she mentioned it to Mr S.

13. I note Mr S’s conclusion in paragraph 85 of his first report in relation to this issue:-

    “85. Of further relevance to this action has been his failure to consider the very real possibility that such information will eventually return to the children. I formed the view that he was aware of this possibility – as the fact that it might do so did not bother him – and the context of the continuing hint to them that he holds adverse information about their mother’s character – which he will only reveal to them when he feels that they are old enough. Mr Pennington has not made – and probably will not make – the connection that this undercuts the emotional security of the children and therefore is a form of abuse. It is noted within Y’s presentation that this has been the case.”

14. I accept the evidence of Mr S in relation to this particular issue.  I note that Mr S describes this conduct by the father as, “a form of abuse”. 

15. Once again, this demonstrates the father’s lack of insight into the harm he has caused to the children by his words and conduct.  The father says that, after the receipt of the first report by Mr S – that he has had a change of heart.  The father says that he no longer denigrates the mother to the children or to other people.  The Court cannot be confident that this is the case.

16. At the time that Y was interviewed by Mr S on the first occasion (April 2014) Y was eight years old – and about to turn nine years old.  Y, of her volition, raised this topic with Mr S (paragraph 74 of Mr S’s first report).  Of particular concern to the Court is that – it is more likely than not that the father had referred to this “bad thing” that the mother is alleged to have done on more than one occasion when speaking to Y. 

17. I also note paragraph 84 of Mr S’s first report where he was referring to the fact that the father had told parents at the football field, parents at the school and other people – of the father’s opinion that the mother had been unfaithful to him.  Mr S notes:-

    “84. It is clear here that there have been – at times – degrees of cooperation, but that this masked underlying maliciousness in Mr Pennington’s behaviour occurring concurrent with seeming cooperation. His admission of telling others, inclusive of the parents at the football field, parents at the school, and anyone who would listen, in an apparently unfettered fashion – of his view that Ms Peacock was unfaithful to him – was and is a form of harassment. The intent was not merely to voice an opinion, but to damage her character within the social circle that they shared, due to the nature of their arrangements. This has been his desire to punish her.”

18. I accept this evidence of Mr S.  The father does not deny that he did tell other people (including other parents at the children’s sporting events) about his view that the mother had been unfaithful to him.  I find, as a fact, that the father did so maliciously and with the intention of damaging the mother’s character and standing in the eyes of other people. 

19. I find further that, the father made those statements maliciously to other people (concerning the mother), recklessly and not caring whether or not that information made its way back to the children.

20. The father has exposed the children to possible psychological harm – as referred to by Mr S.  The father has also exposed the children to family violence by, for instance, his conduct in lying in X’s bed and refusing to leave the former matrimonial home – as outlined earlier in these reasons for judgment.

21. Notwithstanding the father’s lack of insight and his conduct as detailed above – it is still the case that the independent expert, Mr S, has recommended that the children spend substantial and significant time (as that term is defined in section 65DAA of the Act) with the father. I am prepared to accept Mr S’s opinion and recommendation in that regard. It is what the mother seeks in any event. I have come to the conclusion that it is imperative that the children live primarily with the mother. I will elaborate on this conclusion throughout these reasons for judgment.

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

1. In Mr S’s first family report he notes the following in relation to his interview with X.  I do note that X in fact went back to see Mr S after that initial interview.  This is referred to in paragraph 69 of Mr S’s first report.  Those paragraphs relevant to the interview with X are as follows:-

   “60. X was pensive in his interview but in a general sense presented in a normal fashion. He went between his parents quite easily. It appeared that both children might at least have been worried about the day of interviews, feeling that it might be difficult.

   61. X said that things had certainly changed between his parents, saying ‘I think they used to get on but not now,’ and whereas they ‘used to speak about things face to face, now they don’t do that and talk as much.’ As to the effect of him, he said ‘I think I would rather that they talk.’

   62. He said that there had been difficulties recently because Y was ‘telling things about Mum that weren’t true (to their father) and I was trying to say that it is not true.’ He felt that he was asked questions and ‘put in the middle’ when he was at his father’s place, whereas ‘Y did some dobbing and it made it harder for me and I keep on getting questions at Dad’s.’

   63. He said that his father does try to find out what has happened, saying ‘we sometimes have talks at Dad’s in Ms T’s room about what is happening.’ Such talks appear to take a long time, with his father trying to get to the bottom of this or that. He said ‘Y kept on telling stories that maybe Mr K might have done something to upset her and I just sat there listening.’

   64. He said that his father got Y a diary to write about what she dislikes at her mother’s place and put a lock on it. Y said that this was a general diary and not just about that.

   65. X said that he had been trying to tell both his parents ‘that Y has been doing some lying to make it harder and telling stores.’ His real view about Mr R was ‘I think he’s really nice and I really like him.’ He thought that his father thought that Mr R was a bully. One issue which had occurred which had upset X was when Mr R apparently pointed to an advert of a car yard and made a derisive comment about his father. His mother had become angry with Mr R and it did not happen again.

   66. He did not know why his parents had separated although this subject comes up a fair bit, particularly with Y. He said that his father had sometimes said ‘I will tell you when you are a bit older what Mum did.’ He’s not sure what his father means by this.

   67. He gets on with his father ‘really well. I love him. We kick footy and go to his work.’ Regarding his mother he said ‘yes. Really, really well. Yes really well. Mum gives me cuddles and helps me with school work.’ He said that he likes a week-about because ‘I get to spend equal amounts of time at both houses and to see both parents and Mr K and Ms T.’ He said his mother doesn’t speak about his father at all in a negative way. His father ‘normally speaks just about Mr K but not as much. Not for a bit now.’

   68. He did not want to have any changes to the current arrangements. He felt that it would be better over the holidays at Christmas time to do three weeks with each parent.

   69. A later interview was arranged with X at the initial request of Ms Peacock, and occurred with Mr Pennington’s agreement.  I only spoke to X. In that interview it was clear that it was solely requested by X. He said that he had not told me the full story in the last interview, however, he presented with a lot of confusion as to what that might be. Generally he appeared to be a child under increased emotional pressure since the last interview. He did not like the continuing conflict between his parents. He appeared to be overly worried about what might happen in the future. He was worried about his father more than his mother, whom he perceives in a very secure fashion.”

2. The father (note page 155 of the transcript) had denied in the witness box that he had stated to X that he would tell X something when he was older – about what the mother had done.  But X told Mr S the truth.  The father had, indeed, said this to X.  I do not accept the father’s evidence.

3. In any event, X’s stated wish to Mr S was that the week about shared care arrangement continue.  But the child, even at the time of the first family report interviews – was clearly under an increased amount of emotional pressure (note paragraph 69 of Mr S’s first family report). 

4. When X was interviewed for the purposes of Mr S’s second family report there was still confusion about his feelings.  I note Mr S has stated in relation to the interview with X from paragraph 40 of the second family report  as follows:-

   “40. In speaking with X, we firstly spoke about his football which had been of great issue for him in the earlier interview. He said that the stress about the games had gone away and didn’t impact on him anymore. His mum had started taking him. He has now stopped rugby and is thinking of doing swimming.

   41. Compared to how he felt at the previous assessment, he thought that things were better. He feels that there is not as much stress put on him, saying that ‘I think that there hasn’t been as much worriness around’ and that ‘everyone seems to have calmed down about it’ and that ‘I think it’s been taken down a notch’.

   42. He feels that Y is not telling as many stories between each household and ‘getting a lot better now’. The relationship between his father and Ms B also appears to be improved. He said ‘they were arguing but never broke up and they get along well now’.

   43. Asked how things were different with his father, he said at first that his father was busier at work than he usually is and more stressed at home, but they still get along well. He went through the routine that he has at his father’s home in terms of getting to school and after school.

   44. With his mother, he said ‘when she is with us she is always nice and outgoing, and yeah Mr K is good most of the time, we get on really well’, although adding ‘sometimes he is in a serious mood’. He does not see him a lot.

   45. He agreed that he’d had some time off school but did not think it was very much. His mother had thought that he could have been at school more, but he didn’t like her saying this to him and he spoke about an argument between them about a toiletry bag and his mother telling him that he did not deserve an expensive bag because of his behaviour.

   46. His father does not talk about his mother anymore. He said ‘he doesn’t talk about mum and he lets things go. The same with mum, she doesn’t like talking about dad’.

   47. He would not be happy if the week about changed even slightly. He said ‘I don’t want anything to change and I’d miss even week to week’.

   48. Speaking to him at length about his feelings, there was some confusion. He misses his mother greatly when he is with his father, saying ‘sometimes when at dad’s we just need a hug from mum or to hear her voice’. He feels he connects easier with his father, getting more of his time than he gets with his mother, however he later corrected this, saying that they spend a lot of time just with their mother when they are with her.

   49. When he gets back to his mother, he said ‘I miss her like hell, her hugs and how nice she is when Mr K is not around’. He believes that his mother’s time is divided when Mr K is around and he feels slightly upset at times about it. He said ‘dad says whenever something is brought up about Mr K he says I think he’s a nice guy but if he does something to you and is not nice or hits you, just tell me’.”

5. Mr S noted in paragraph 47 (as quoted above) that X would not be happy even if the week about changed “slightly”. 

6. Mr S notes in relation to his interview with Y at the time of the preparation of the first family report:-

   “70. Y presented in an unusual fashion in the sense that her language for her age is well developed and she speaks overly conceptually. It was often difficult to unravel the context of her thoughts.

   71. She spoke in a rapid fashion about the conflict between her parents over the sporting issue, relating each of their positions regarding that. She said that before this they used to do lots of things together with both parents, such as ‘we did Nippers and Dad used to come in a car with us together’ but ‘we don’t do as much now, Dad hasn’t been able to do what he used to.’

   72. She mentioned the same incident as X of Mr R pointing out some picture in a newspaper about a (omitted) and saying (to X) that that was where a real (omitted) works. She said ‘I love Mr K lots but he doesn’t do very nice things and Mum seems to think Mr K’s the nicest person ever.’ She said ‘Dad says that Mr K’s a bit of a bully.’

   73. She said that she felt that X is ‘kind of being like Mum’s protector,’ and she spoke of a range of incidents where she felt that X got a little bit more attention than her. It appeared to be the case that she and X compete for her mother’s time and attention. She spoke of her mother saying to her at times that X can have a ‘heavy heart,’ and she interpreted this to mean that maybe her mother cared more about X.

   74. At her father’s place, she says ‘I get on really well,’ and spoke happily about the things that they did there. She recalled having a conversation with her mother about her father saying she (her mother) had something wrong, saying ‘last time I said to Mum, I said Dad said the reason you broke up is because you did something really bad and I really hope he is lying.’ Her mother didn’t say anything to her about it. This appeared to play on her mind.

   75. She said that she would like to keep the current arrangements. This gives her time with both of her parents.”

7. I note that at the time of the first family report interviews that Mr S reports (in paragraph 76) that “the children were affectionate with each of their parents”. 

8. In the second family report Mr S noted, in relation to his interview with Y:-

   “50. Y spoke in a less fragmented fashion than she had on the previous assessment, however she was also far more emotional. Much of her emotion was linked with her feelings about missing her mother (when with her father).

   51. Her perception about each of her parent’s partners was a slightly disgruntled one. Of Ms B’s, she said ‘she is pretty good, we like her but we don’t love her loads and loads, sometimes she’s not nice and she doesn’t give us support, she doesn’t listen’. She complained that Ms B sometimes talks with them about Mr K, telling them that ‘he is a bully and stuff’. Of Mr K, she said that they do not see him very much and sometimes ‘he kind of teases us’.

   52. She is resigned to the fact that her parents will never get on with each other. She said ‘I just know they don’t like each other and they are not going to change. I know they are never going to change’, saying that she felt ‘normal now (about that)’. She said she figured it out that it would not change.

   53. In the context of this, Y spoke about a recent situation with her gymnastics in which there was going to be an award presentation, saying ‘Dad asked me to ask her (her mother) if he could come’. Of this, she said ‘I wanted him to come but he didn’t’ and she was surprised when her mother said that he could come.

   54. She does not cope well when she is with her father and can’t see her mother for a week. Asked how she coped, she said ‘not so easily, sometimes if dad gets mad at me, I go to my room and cry and I need mum’, saying that ‘the clothes I wear to mum’s place I wear to bed. There was this dress that I wore and I slept in it and I went everywhere and did all those kinds of things with that dress and I didn’t let anyone touch it except for me. I wore that everywhere’, saying ‘the last one time I cried and cried and cried because I missed her so much and I keep asking if I could stay one more night (with her mother)’.

   55. She feels like this most of the time. She said ‘I want to see mum much more, I really love mum, she is much sweeter and nicer’. She feels that her mother gives her all of her attention when they are with her, whereas of her father, she said ‘I bet if you went into that room (the waiting room in which her father was sitting), dad would be on his phone and mum would be just playing with X’.

1. It is very apparent from the family report that these children are in crisis.  Y has been wearing the clothes she wears to her mother’s place to bed.  She said that she “cried and cried and cried because I missed her so much”.  She wants to see her mother much more.  I have no doubt that the opinion of Mr S is correct and that Y should be living primarily with the mother and spending four nights per fortnight with the father.

2. In relation to X the matter is somewhat more complicated.  He is older than Y.  At the time of the final hearing – X was aged 12 years and 5 months. 

3. Like Mr S, I have formed the opinion that the mother is particularly insightful.  The mother is an intelligent woman who is child focussed.  In this very difficult family situation the mother has done a remarkably good job.  Some of the father’s conduct (such as the stalking behaviour and maliciously denigrating the mother to other parents within their social circle) has been nothing short of appalling.  In those trying circumstances the mother has remained child focused.  The mother’s evidence is that, she considers that X will be able to accept four or five nights per fortnight with the father.  Mr S has confidence in the mother’s ability to handle any reaction from X in the event of a change in the current circumstances.  I share Mr S’s confidence in relation to the mother’s parenting ability. 

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

1. each of the child’s parents;  and

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

1. I have already noted that the children both seem to have an affectionate and loving relationship with each parent.  In addition, both of the children are fond of the mother’s partner (who in fact lives in South Australia).  His name is Mr K. 

2. Both children also appear to be fond of the father’s wife, Ms T. 

Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long-term issues in relation to the child; and

1. to spend time with the child; and

1. to communicate with the child.

1. Each parent seems to have taken all opportunities to communicate and spend time with the children.  I do note that there was a period of time post separation where the father was not seeing the children as often as he is now.  At one stage he declared that he was going to move to (omitted) and would not be seeing the children again.  The father changed his mind and returned to Brisbane.

2. Both parents seem to have been in general agreement about the choice of school.  Both children are currently attending (omitted) School at (omitted). 

Section 60CC(3)(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.

1. From January 2008 the parents reached an informal agreement whereby the children would live with the mother and spend six nights per fortnight with the father.  Further, from approximately 2012 the parties agreed on a 50/50 shared care arrangement.  The children are currently living in a week about shared care arrangement with each parent. 

2. Whilst the children are in the care of each parent – it is the responsibility of that parent to maintain the children.  They certainly appear to be doing so. 

3. The mother is paying for the children’s school fees and their extra-curricular activities.

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

1. either of his or her parents;  or

1. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. In relation to the child Y – as noted, I have come to the conclusion (based in particular on the evidence of Mr S) that Y should be living primarily with the mother and spending four nights per fortnight with the father.  For the reasons I have already outlined I have come to the conclusion that it is in the best interests of the child.  Whilst currently in the father’s care (as part of the current week about shared care arrangement) Y misses her mother terribly. 

2. Mr S noted in his second report:-

   “72. The risk to placing the children more in the care of their mother is that there could be a reaction from both, but more probably from X. How acute such a reaction might be is not ascertainable, but one aspect of it could be a sense of sympathy for his father – particularly if his father’s reaction is as acute as has been suggested – which could translate into anger at his mother. This is a possibility even if the arrangements were to remain the same.

   73. I have found Ms Peacock to be a particularly insightful woman and my view is that she is as capable of managing this as anyone. In my view the children should be placed predominantly in the care of their mother, and spend approximately five nights per fortnight with their father.”

3. I do not consider that there is much risk of a reaction from young Y.  If there was a reaction it would not be acute.  She is clearly very much in need of spending more time with her mother.  This was essentially acknowledged (in a sensitive way) by the father’s wife Ms T. Indeed the father himself acknowledged that Y should be spending more time with her mother.  I note the father’s evidence at page 191 of the transcript where the father stated that he believed that Y needs more time with her mother.  The father actually said, “an extra night – wouldn’t hurt”.

4. Given the evidence showing the extent to which young Y misses her mother – I do consider that ten nights per fortnight with the mother and four nights per fortnight with the father for Y is appropriate.

5. Mr S makes the point in paragraph 72 of this second report that there is more likely going to be a reaction from X if there is a change in the arrangements – in particular by placing the children more in the care of their mother.  As noted earlier, I am, like Mr S, confident that the mother has the necessary parenting skills to handle that situation.

6. Whilst giving evidence on 28 July 2015, Mr S indicated that it would be better for the siblings to remain together.  But he also indicated that perhaps X could have some more time with the father than Y.  I consider that it in X’s best interests to live primarily with the mother.  The siblings should, to a substantial extent, remain together.  X has stated that he would prefer to live in a week about shared care arrangement – i.e. leave things the way they are.  But I do not consider that it is in X’s best interests to do so – apart from the fact that the mother has more insight - the mother is more focused on education than the father.  X is having too many days away from school whilst in the father’s care.

7. The father agreed in the witness box to a situation whereby X spent more time in his household than Y. 

8. On balance, and in order to make the transition easier for X – I have come to the conclusion that it will be in the best interests of X if he in fact spends five nights per fortnight with his father.

9. I do not consider that X spending five nights per fortnight with the father – instead of the current seven nights per fortnight with the father – will create a reaction from X that cannot be addressed by appropriate parenting skills – in particular from the mother.

10. However, it is absolutely essential that the father is supportive of the new arrangement.  I do note what the father told Mr S.  In paragraph 70 of the second report it is noted:-

    “70. As an adjunct to this is the fact of Mr Pennington’s belief that an exactly shared time arrangement is within the interests of the children, expressing this view acutely and adding his devastation if it were not to be so. It was difficult here to ascertain whether the children were aware of how intensely their father is invested in the current arrangements, but – given the history – it is my view that it is more probable that they are aware.”

11. For the children’s sake – the father cannot afford to be “devastated” because an exactly shared time arrangement will no longer be operating.  The father needs to receive counselling in relation to this issue and in relation to the outcome of this parenting litigation generally.  Of particular concern to the Court is the fact that, once again, the father has shown a lack of insight because of the intensity of his “investment” in the current arrangements (week about – exactly 50/50 time).  It is a reasonable inference to draw that, given the other findings I have made and the history of the father speaking inappropriately to the children – it is more likely than not that the children are well aware of just “how intensely their father is invested in the current arrangements”.

12. The final orders will include an order for the father to receive counselling.

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

1. There will be no practical difficulties or additional expenses connected to the children spending time with and communicating with the parents as a result of this decision.

Section 60CC(3)(f) – the capacity of:-

1. each of the child’s parents;  and

1. 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.

1. I have no doubt that the mother is well and truly able to provide for the needs of the children.  This includes the children’s emotional and intellectual needs.  In accordance with the findings that the Court has made, the mother is child focused and intelligent.  The mother avoids speaking inappropriately in front of the children.  When her partner Mr K did, on one occasion, say something inappropriate in front of the children – the mother quickly and appropriately corrected Mr K – in front of the children. 

2. Historically, the father has not been able to match the mother’s abilities in this regard.  I am hopeful that the father, with the help of his wife and with the help of counselling, will continue upon a path of more appropriate words and conduct in relation to the children and the mother.  The father essentially says that he gained insight following the first family report.  The father needs ongoing counselling and encouragement in this regard.  I sincerely hope that encouragement will come from his wife. I found Ms T to be intelligent and more sensitive to the children’s needs (especially Y). 

3. The father did concede in the witness box that it was apparent to him that young Y did need to be spending more time with her mother.  That is a start from the father.  However, on the other hand, I am in fact concerned that the father has not really accepted responsibility for his past actions.  There were some key events which occurred – which the father claims not to recall.  The father did not recall assembling the photographs on the bench of the kitchen in the former matrimonial home.  I do not consider this is the type of incident that a person would forget.  The father continues to insist that he engaged a detective over quite a significant period of time – but cannot remember the person’s name.  There is no medical evidence that the father suffers from memory loss.  These lapses in memory and denials by the father (along with other lapses in memory by the father referred to in the evidence) lead the Court to conclude that the father has not really fully accepted responsibility for his past conduct.  It has left the Court with the distinct impression that the father is doing what he thinks he has to do – in order to achieve his desired outcome in these parenting proceedings.  Further, the father maintains that once he received the first family report he had realised – for the first time – how inappropriate his conduct in the past has been.  So it seems that the father accepted the criticisms levelled at him by Mr S (in his first family report) – but the father steadfastly continued to refuse to accept the opinion stated by Mr S.  Obviously, any litigant is at liberty to pursue proceedings.  But it is an anomaly in the father’s approach which needs to be highlighted.  The evidence from the second family report is quite overwhelming that young Y needs to be spending much more time with the mother.  What is the father’s response during cross examination?  As noted at page 78 – the father stated in relation to Y that spending an extra night with her mother “wouldn’t hurt”.  In my view, this is hardly an appropriate concession noting the depth of the problems encountered by Y.  The child is wearing to bed clothes she wore at her mother’s house.  Apart from what appears to be a concession grudgingly made by the father – of one extra night per fortnight for Y with the mother – that is the extent of his response to the independent expert evidence of Mr S that the child Y is experiencing some significant emotional distress.  The father himself accepted that both children were “in crisis” (note line 4 on page 102 of the transcript from Tuesday 28 July 2015). 

4. The father himself has already been seeking personal counselling – in particular from Mr P and Ms S.  Whilst it is the case that the father is to be commended for pursuing counselling from Mr P and Ms S – the real concern for the Court is that it was not until the father received Mr S’s first family report that he (the father) apparently realised the inappropriateness of his conduct.  The fact that he needed counselling to try to address his lack of insight (particularly, for example in relation to maliciously denigrating the mother to other parents) remains a concern for the Court.  There is nothing in the affidavit of Ms S that impacts upon the Court’s conclusions in this case.  In fact, it seems to be the case that the Ms S counselling and report appear to have been obtained for the purposes of the litigation.  I would like to see a situation whereby the father engaged with Mr P following this litigation.  I am considering an order whereby a copy of these reasons for judgment are sent to the counsellor to assist in the counselling of the father.  I will not do that until I hear a submission from the parties (should they wish to be heard). 

5. As to the intellectual development of the children – my impression is that the mother was more focused on educational issues.  For instance, when the children were in the father’s care late in 2014 the father was supposed to attend with Y at a parent information evening for Y at (omitted)’s school.  The father initially said in evidence that he could not go that night because “we probably had something else on”.  It seems to be the case that in fact the father was playing in a (hobby omitted).  The father appeared to be particularly focused on his personal involvement in the (hobby omitted).  I understand the benefits of exercise and involvement in an excellent social activity such as (hobby omitted) – but, in life, it is always a question of organising one’s priorities. 

6. The evidence does also disclose quite a disparity between the number of days missed at school (in particular by X) when he is in the father’s care as opposed to the number of days missed at school when X is in the mother’s care.

7. I have come to the conclusion that the mother is more focused on the children’s education.  For instance, the mother does, when the children are in the father’s care, email to the father timetables etc in relation to the due dates for the children’s school work, assignments, essays, projects, etc.  The mother, indeed, sends the father a calendar at the beginning of the year dealing with many schooling issues.

8. The mother has sought sole parental responsibility in relation to educational and medical issues.  In relation to the matter generally, the communication between these parents has been very, very poor.  There is some indication that prior to May 2013 they had communicated somewhat better.  I accept the mother’s evidence that the situation has always been difficult.  In May 2013 an incident occurred at Y’s soccer match.  X was with Mr K behind the goal posts (Y was then acting as the goal keeper).  I accept the mother’s evidence that it had started to rain and Mr K was shielding young X and, it seems, giving him an affectionate hug (or similar).  The father maintains that whilst doing this Mr K looked at the father and “smirked”.  The father sent a detailed text message to the mother about this issue. 

9. The mother’s view was that the father had overreacted.  I think this is correct.  There is no indication that young X is in any danger of confusing the fact that Mr K is only his mother’s boyfriend/partner.  Mr K seems to be a male adult figure who is sometimes present in the mother’s household.  X has a close and loving relationship with the father.  The father is not in any danger of being replaced in X’s affections by Mr K.  There is no evidence to suggest that whatsoever.  I consider that the father did overreact.

10. The problem for the father is that, after his long history of inappropriate conduct (as already outlined at length in these reasons for judgment) this was, for the mother, the proverbial “straw that broke the camel’s back”.  The mother, from that point, took the view that, for the children’s sake, only one parent at a time should be present at the sporting and extracurricular events.  The father has sought to maintain that a text message sent by the mother in April 2012 following X’s rugby game was somehow akin to what occurred in May 2013.  It is not similar in my view.  The text message sent by the mother (as outlined in paragraph 107 of the father’s trial affidavit filed 18 June 2015) was sent by the mother in response to a text message that the father had sent.  The mother’s text message contained sensible and insightful comments in relation to the parenting of the children.  The father’s conduct following the soccer game in May 2013 had been preceded by many years of inappropriate conduct by the father (as detailed in these reasons for judgment).

11. Mr S was asked about this question also and gave his opinion as follows:-

    “Attendance at extra curricular sporting events and the father’s involvement in sporting teams

    This is a particularly vexed area in this family due to the history, as has already been noted. I do not think that it is in the children’s interest for their parents to attend such events at the same time, and thus it would only be feasible to attend on those days the children are in their care. I think an exception might be made for major sporting events – such as a grant final or regattas or an event of consequence. I do not believe that the father should be involved in coaching.”

12. I agree with the opinion of Mr S.  The children have been in emotional turmoil.  For instance, on the night before X’s rugby league games whilst he is in the mother’s care – X is anxious because he is worried about whether or not his father will also be present at the game.  The clear inference from this evidence is that the possibility that his parents may come into contact by being present at the same sporting match at the same time causes anxiety to X.  This is not appropriate.  This must stop.  X should be able to enjoy his football games without suffering from unnecessary anxiety over such an issue. 

13. I note that the father, to his credit, has very much encouraged the children in relation to their participation in sport.  He is particularly fond of rugby league.  X also loves to play rugby league.  This is wonderful for young X.  It also means that an excellent bond has been formed by the child with the father because of their common interest in sport and in particular in the sport of rugby league.  But, this issue is about the children.  It is not about the father.  The father may well love rugby league and any number of other sports.  But if the attendance of both parents at sporting events is causing anxiety to the children then – something has to give.  The parents, of course, must relent.  In particular, the father must come to realise that this is an issue whereby he can demonstrate that he is able to become more child focused.  It will clearly be in the best interests of the children if only one parent attends the regular sporting and extracurricular events.  I accept Mr S’s opinion.   

1. I do note that there is evidence to the effect that it is not only X who becomes anxious.  There was another example on one occasion where Y anxiously stated to her mother (at a sporting match) “Dad’s here”.  The inference to be drawn from the evidence is that this caused anxiety to Y – because, once again, of the possibility of conflict because of her parents being at the same event at the same time.

2. It may well be the case that prior to May 2013 the parents had attended events at the same time.  But it has to be kept in mind that, unfortunately, the father’s conduct at such sporting events and through those social gatherings was, to say the least, lamentable.  I have already made findings in relation to the father’s denigration in a malicious way of the mother to parents at those sporting events.  Because of the toxic nature of the parent’s relationship it is clearly now in the best interests of these children for only one parent to attend the regular sporting and extracurricular events.  The parents will, of course, have to “grin and bear it” for special sporting, educational and extracurricular events as recommended by Mr S.  As noted, I accept Mr S’s opinion.  My conclusions in this regard will also mean that the father should be restrained from acting in any position such as coach or manager of the children’s sporting teams.

Section 60CC(3)(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.

1. There is nothing in particular in relation to this aspect which needs further comment by the Court.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:

1. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and

1. the likely impact any proposed parenting order under this part will have on that right.

1. My attention has not been drawn to any evidence that would lead me to conclude that section 60CC(3)(h) is relevant.

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

1. I have already made findings in relation to the parent’s attitudes towards the children.  The mother is child focused and avoids denigrating the father in front of the children and avoids inappropriate adult conversations in front of the children.

2. The evidence shows that this is not the case with the father.  I have already made findings in relation to this. 

3. In relation to the temporal needs of the children both parents have generally accepted their responsibilities in that regard.

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

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-

1. the nature of the order;

1. the circumstances in which the order was made;

1. any evidence admitted in proceedings for the order;

1. any findings made by the court in, or in proceedings for, the order;

1. any other relevant matter.

1. I have already made findings in relation to the issues of family violence and there is no need for the Court to refer to those again.

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

1. Because of the history of conflict and poor communication and noting that the mother has significantly more insight than the father and noting further that the mother is more focused on education than the father – I have concluded that an order whereby the mother has sole parental responsibility in respect of medical and educational issues – is an order which is least likely to lead to the institution of further proceedings in relation to the children. 

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. I have made reference to my view in relation to the mother’s focus upon education.  Noting the conflict, the poor communication between the parents and noting that the mother is more focused on education than the father and noting the recommendation of Mr S in this regard – I have come to the conclusion that the mother should have sole parental responsibility in relation to the issue of education.  I agree with Mr S that it will be difficult for the parents to make any major decisions jointly.  I note what Mr S said in his second family report in this regard:-

   “Parental Responsibility

   My view is that it will continue to be difficult for the parents to make any major decisions jointly. Those broad major areas – at this stage of the children’s lives – would concern major medical care and schooling. I am of the view that the mother should have sole responsibility for those areas, so long as she informs the father and seeks his opinion. On all other areas of care, it is my opinion that it should be joint.”

2. I accept Mr S’s opinion. 

3. Mr S’s opinion relates to both education and medical issues.  I consider that major medical issues should also be the subject of sole parental responsibility for the mother.  The long history of dispute between the parents, the toxic nature of their relationship, the inappropriate conduct by the father (as outlined previously) and the fact that the mother is both child focused and has more insight in relation to important issues relating to the children leads the Court to conclude that the mother should have sole parental responsibility in relation to the issues of both education and medical issues.

4. The father did appear in evidence to be somewhat at a loss to understand why it is that the mother no longer agrees on an equal time arrangement and will not agree on equal shared parental responsibility for all issues.  It seems that the father has come to the conclusion that, because he has had a change of heart following the first family report that this ought somehow, as it were, wipe the slate clean from the mother’s perspective.  Understandably, this is not the case.  Particularly after the May 2013 incident it is apparent to the Court that the mother came to realise that there had to be some significant changes in the care arrangements for the children.  The mother was and is correct in that regard. 

5. I do note that Mr S did not think that counselling would be helpful for the parents.  I actually have a different view in relation to the father.  The father has been seeing Mr P and – these children cannot afford a situation whereby this father is “devastated” by the outcome of the Court proceedings and accordingly, as noted earlier, I will be ordering that the father does attend at least three counselling sessions once the final orders are made.  Mr S has given his opinion in relation to some other matters and I will include them here:-

   “Telephone Communication

   I think that the parents should be permitted to phone twice on each occasion the children are not within their care, between specific times.

   Denigration

   A general clause regarding denigration would be appropriate.

   Birthdays

   If the birthday falls within a school week, then the other parent should spend time with both children from the conclusion of school until the next day.

   If the birthday falls upon a weekend, then the other parent should have both children from 2pm until 10am the following day.

   …

   Exchange of information

   The parents should exchange any information which is relevant to the children, as soon as is reasonably possible.”

6. The above opinions were stated by Mr S in the second family report.  I accept those opinions and it is in the best interests of the children that orders are made along those lines.

7. Mr S was cross-examined at some length by Ms McArdle, Counsel on behalf of the father.  The essence of Mr S’s written opinions remained intact.  The only difference between the first and second reports related to the stated opinion initially that the children should spend four nights per fortnight with the father and then the second stated opinion that they should live primarily with the mother and spend approximately five nights per fortnight with the father.  I have come to the conclusion, for the reasons stated, that it is in the best interests of Y to spend four nights per fortnight with the father and in relation to X that he should spend five nights per fortnight with the father.  This conclusion is clearly within the ambit of Mr S’s opinion which I have accepted.

8. These children have been in crisis.  Both parents acknowledge this fact.  The arrangements had to change because, as things currently stand, the turmoil that the children are experiencing is both harmful and unnecessary.  Young Y is very much in need of more time with her mother.  I do think that five nights per fortnight between X and the father is also needed.  X has started high school and these are very important years.  He cannot afford ongoing emotional turmoil.  The opinion of Mr S is, essentially, that the children should be living primarily in one household – that being the mother’s household.  For the reasons stated and based primarily upon the opinion of Mr S and, of course, noting the other findings made by the Court, I am of the opinion that it is also in the best interests of X to live primarily with the mother and – in his case spend five nights per fortnight with the father. 

9. In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) the Full Court of the Family Court stated at paragraph 355:-

   “355 … in determining best interests the obligation is to ‘consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties.  After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out’.”

10. This is a difficult case to balance out the various matters. In paragraph 113 in these reasons for judgment the Court provided a summary of the reasons why the mother should have sole parental responsibility in relation to education and medical issues. That summary of the evidence, combined with the opinions of Mr S forms the basis for the conclusion reached by the Court that the children should live primarily in the mother’s household. To reiterate, I note – the long history of dispute between the parents, the toxic nature of their relationship, the inappropriate conduct by the father and the fact that the mother is both child focused and more insightful in relation to parenting issues has led the Court to conclude that the children should live primarily with the mother. The various matters touching upon these issues have been mentioned at length including under the headings relating to section 60CC(2)(b), section 60CC(3)(d), section 60CC(3)(f) and section 60CC(3)(m).

Section 61DA

1. I have already made specific findings in relation to why the presumption of parental responsibility needs to be rebutted in relation to the important issues of education and medical issues.  The mother will still need to consult with the father in relation to those particular issues.  In relation to all other issues there will be equal shared parental responsibility.

Section 65DAA

1. In this particular case the Court has, at some length, given reasons as to why an equal time order is not appropriate.  Such an order may have been reasonably practicable in the terms of geographical proximity.  However because of the very poor communication between the parents, the toxic history of the relationship, the long history of the father’s inappropriate conduct – the court has concluded that it is not reasonably practicable for a 50/50 equal time arrangement to continue.  One parent needs to be the primary residential parent and the mother is best equipped to fill that role. 

2. In addition, an equal time order would be contrary to the opinion of the independent expert Mr S.  Nothing transpired during the course of the trial that would lead the Court to conclude that the opinion of Mr S ought not be accepted.

3. An order for equal time is not in the best interests of the children.  I accept the opinion of Mr S in this regard.

Substantial and Significant Time

1. It is the case, that substantial and significant time is both reasonably practicable and in the best interests of the children.  The orders proposed come within the definition of substantial and significant time.  It is both reasonably practicable and in the best interests of the children.  I accept Mr S’s opinion in this regard. 

Conclusion

1. The parties will have some time to agree the wording of the final orders to reflect the reasons for judgment.

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  28 August 2015