Percy and Dickens

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERCY & DICKENS

[2016] FCCA 2244

Catchwords:
FAMILY LAW – Parenting – Children aged 7 & 5 living with their father – mother proposing change of residence – where the father perpetrated family violence during the relationship – where the family report writer expressed concern about the father’s capacity to facilitate and encourage a close and continuing relationship between the mother and the children and where the evidence at trial validated that concern – order made for a change of residence – consideration of the time the children should spend with the father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Applicant:

MS PERCY

Respondent:

MR DICKENS

File Number:

NCC 1166 of 2015

Judgment of:

Judge Terry

Hearing dates:

18 and 19 August 2016

Date of Last Submission:

9 September 2016

Delivered at:

Newcastle

Delivered on:

9 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Court

Solicitors for the Applicant:

Harpers Legal

Counsel for the Respondent:

Mr Wilkinson

Solicitors for the Respondent:

Winder Lawyers

ORDERS

Subject to Orders (2) & (3) the mother shall have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2011.
The mother shall not without the consent of the father or an order of the court change the children’s surname or relocate with the children to a place which makes compliance with the spend time with orders impractical or arduous for the children.
Except in the event of an emergency the mother shall notify the father by text message of any decision which needs to be made about a major long term issue for the children and shall inform him of the outcome she prefers. If the father responds within 14 days the mother shall take his opinion into account in making her decision and the mother shall promptly notify the father of any decision she makes in the exercising of sole parental responsibility.
The children shall live with the mother.
The father must attend upon his treating psychologist and upon UNIFAM within 14 days and in such appointments:
(a)Provide the practitioner with a copy of these Orders;
(b)Discuss the change in living arrangements for the children and the impact upon him and the children.
The children spend time with the Father as agreed between the parties but failing agreement as follows:
(a)Commencing on 25 September 2016 the children shall spend time with the father from 10.00am to 4.00pm each Sunday, for a period of 2 months.
(b)Commencing on the first Friday following the conclusion of Order (6)(a) and continuing each alternate week thereafter, from the conclusion of pre-school/school Friday until the commencement of pre-school/’school the immediately following Monday.
(c)Commencing on the first Wednesday after the conclusion of Order (6)(a) and continuing each Wednesday thereafter:
(i)from the conclusion of school Wednesday until the commencement of school the immediately following Thursday for X;
(ii)until Y commences kindergarten in 2017, from 2:45pm Wednesday until 3:00pm the immediately following Thursday; and
(iii)once Y has commenced kindergarten in 2017, from the conclusion of school Wednesday until the commencement of school the immediately following Thursday.
Notwithstanding any other Order the children shall spend time with the parties as follows:
(a)During the New South Wales Christmas School Holiday periods commencing in odd numbered years as follows:
(iv)From the 18th December to 3.00pm on the 25th of December with the Mother;
(v)From 3.00pm on the 25th of December to 10.00am on the 1st of January with the Father;
(vi)From 10.00am on the 1st of January to 10.00am on the 8th of January with the Mother;
(vii)From 10.00am on the 8th of January to 10.00am on the 15th of January with the Father;
(viii)From 10.00am on the 15th of January to 10.00am on the 22nd of January with the Mother.
(b)During the New South Wales Christmas School Holiday periods commencing in even numbered years as follows:
(i)From the 18th of December to 3.00pm on the 25th of December with the Father;
(ii)From 3.00pm on the 25th of December to 10.00am on the 1st of January with the Mother;
(iii)From 10.00am on the 1st of January to 10.00am on the 8th of January with the Father;
(iv)From 10.00am on the 8th of January to 10.00am on the 15th of January with the Mother;
(v)From 10.00am on the 15th of January to 10.00am on the 22nd of January with the Father.
(c)Commencing with the Term 1 school holidays in 2017 exclusive of the Easter arrangements (Order 9) for half of each of the Term 1, 2 and 3 school holidays being the first half in odd numbered years and the second half in even numbered years.
If Mother’s Day or the mother’s birthday falls on a day when the children would not otherwise be with the mother the children will spend time with the mother from 9.00am to 5.00pm on those days.
If Father’s Day or the father’s birthday falls on a day when the children would not otherwise be with the father the children will spend time with the father from 9.00am to 5.00pm on those days.
The children will spend time from 9.00am on Good Friday to 9.00am on Easter Sunday with the father and from 9.00am on Easter Sunday until 9.00am the day after Easter Monday with the mother in even numbered years and from 9.00am on Good Friday to 9.00am on Easter Sunday with the mother and from 9.00am on Easter Sunday to 9.00am on the day following Easter Monday with the father in odd numbered years.
The children will spend time on the children’s birthdays as follows:
(a)if the birthday falls on a week day, from the conclusion of school that day until 6:00pm with the parent they would not ordinarily be with that day;
(b)if the birthday falls on a weekend day, from 10:00am to 3:00pm on that day with the parent the children would not ordinarily be with that day.
For the purpose of facilitating the time that the children spend with the Father in accordance with Orders for times that commence or conclude at school or pre-school, changeover shall take place at school or pre-school, for all other time changeover shall take place at (omitted) Service Station.
The father shall have telephone communication with the children as agreed between the mother and the father but failing agreement between 5.00pm and 6.00pm each Wednesday and Saturday when the children are not in his care with such communication to occur by the father placing a call to the mother’s mobile telephone number and the mother ensuring the children are made available to receive that call.
Each party is restrained from denigrating the other parent and members of the other parent’s family in the presence or hearing of the children or from allowing the children to remain in the presence or hearing of any third party who does so.
Each party is restrained from discussing details of these court proceedings with the children or showing them any documents associated with these proceedings and from questioning the children about who they want to live with.
The parties are to keep one another advised of their current residential address and landline and/or mobile telephone numbers and advise the other within twenty four (24) hours of a change of such details.
The parties shall ensure that X remains engaged with Unifam Counselling and Mediation for the purpose of participating in The Anchor Program as and when directed for as long as deemed necessary.
If in the future Unifam Counselling and Mediation recommend that Y should participate in The Anchor Program, then the parties shall within seven (7) days of such a recommendation make contact with Unifam Counselling and Mediation for the purpose of enrolling Y in The Anchor Program and if deemed suitable to participate, thereafter take Y to all appointments and counselling sessions as directed and recommended by Unifam Counselling and Mediation for as long as deemed necessary.
The parties shall remain engaged with Unifam Counselling and Mediation for the purpose of participating in the Keeping Contact Program as directed by Unifam Counselling and Mediation and for as long as deemed necessary.
That the Independent Children’s Lawyer shall forthwith meet with the children or if she prefers arrange for the family report writer to meet with the children so that the Orders can be explained to the children.
Following compliance with Order (19) the Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1166 of 2015

MS PERCY

Applicant

And

MR DICKENS

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Percy and Mr Dickens are in dispute about parenting arrangements for their children X, 7 (almost 8) years of age and Y, 5 years of age.
The children have lived with primarily with their father since the parents separated in January 2014. During 2014 and into early 2015 their time with their mother was fractured but they have spent time with her regularly since she commenced court proceedings in May 2015.
The orders sought by the mother were that she should have sole parental responsibility for the children and that they should live with her and spend time with the father during the day only initially and thereafter on alternate weekends and for half of the school holidays.
The mother alleged that the father perpetrated family violence during the relationship, that she left the children with him at separation because he refused to let her take them and that he had behaved in an overbearing and aggressive way toward her since separation and on one occasion assaulted her by spitting on her.
The mother alleged that the father was undermining X’s relationship with her by inculcating in him the belief that she was a liar and was placing a huge emotional burden on both children by requiring them to show their love for him by rejecting her.
It was the mother’s case (and this was supported by the family report writer) that the children’s psychological well-being required a change of residence.
The orders sought by the father were that the parents should have equal shared parental responsibility and that the children should live with him and spend substantial and significant time with the mother.
The father denied being a perpetrator of family violence and pointed out that he was acquitted of the criminal charge arising out of the spitting incident. He said that the mother voluntarily left the children with him at separation and later went interstate to live for a period of time and that if X was hostile toward her it was because she had continually let him down and he did not trust her. He said he had not knowingly sought to undermine the children’s relationship with the mother and that with the assistance of counselling he was learning to moderate his tone of voice and gestures to ensure that the children did not inadvertently feel that he did not support them having a relationship with their mother.
Implicit in the father’s case, although not articulated in submissions, was that the court should be cautious about changing the children’s living arrangements in case the mother once again proved unreliable in caring for them given that she had mental health issues which had led to self-harming behaviour and threats of suicide as recently as 2014.
During final submissions the Independent Children’s Lawyer supported an order for equal shared parental responsibility but also supported a change of residence for the children.
The Independent Children’s Lawyer proposed that the father be required to engage in counselling and that he spend day only time with the children at first, moving after three months to time on alternate weekends and time during school holidays. The mother adopted this proposal during submissions.

The evidence

The mother relied on her amended application and affidavit filed on 22 July 2016 and the affidavit of her friend Mr B filed on the same day.
The father relied on his amended response and affidavit filed on 12 August 2016.
The father’s trial documents were filed two days before the trial was due to commence and on the first day of the hearing his solicitor appeared and asked that the matter be stood over to the following day as the barrister he had briefed to appear for the father had taken ill and the barrister who had agreed to assume conduct of the matter needed until the following day to prepare.
The mother’s counsel and counsel for the Independent Children’s Lawyer sensibly took no objection to the late filing of the father’s material and consented to the matter being stood over for a day and the hearing was easily able to be concluded in the remaining two days.
A family report was prepared by Ms D, a Family Consultant and the Memorandum to Court which she prepared after conducting a child inclusive child dispute conference on 16 October 2015 was also in evidence.
All of the witnesses were cross-examined.
A notable absence from the witness list was the paternal grandmother who was in court throughout the hearing. The mother alleged in her affidavit that during her relationship with the father she frequently left the home she shared with the father for short periods because of his behaviour and went to live with the paternal grandmother before returning. She also alleged that on one occasion when she was in dispute with the father at changeover the paternal grandmother put her finger up at her.
The father denied both of these allegations but the fact that the paternal grandmother could easily have been called and was not makes irresistible the conclusion that the mother was telling the truth about these things.

Background

The mother and father commenced a relationship in 2007 when the mother was 20 and the father 25. They commenced cohabitation in either (omitted) 2007 according to the mother or early 2008 according to the father and they have two children, X born on (omitted) 2008 and Y born on (omitted) 2011.
Both parties worked during the relationship and both were involved in the children’s day to day care. X attended some day care and the paternal grandmother sometimes helped out with the care of Y.
It was the mother’s case that the father was violent to her throughout the relationship. The father denied this and I will consider the issue of family violence at length later in the judgment.
There was a dispute about the date of the final separation with the father saying it occurred in October 2013 and the mother saying it occurred in January 2014, but whenever it occurred, and January 2014 seems more probable, at separation the mother left the former matrimonial home and the father gave up work to care for the children.
At trial the mother said that she left the children with the father because he refused to let her take them and threatened her, and the father said that she left to either pursue another relationship or pursue a relationship with Mr B.
The mother produced evidence that first she met Mr B on an (omitted) dating site in (omitted) 2014 and I am satisfied that she did not leave the father to pursue a relationship with Mr B or anyone else. I am also satisfied that the father did forcefully tell the mother at separation that she could not take the children. However I do not accept that the father’s behaviour on the day of separation was the reason the mother did not try to take the children with her. She told the family report writer that she left the children with the father because she had nowhere to take them and initially after separation she either slept in her car or at her grandparent’s retirement unit.
The mother did not abandon the children however; she went to the former matrimonial home after work either every day or every second day to see them.
In February 2014 the mother, with the assistance of her grandfather, was able to rent a one bed room unit in (omitted) and the parents reached an agreement about the children spending time with her on alternate weekends and on Wednesday afternoons for a couple of hours.
The mother’s friendship with Mr B developed and in late (omitted) 2014 she decided to go to Western Australia where Mr B was then living and working.
This is another area where the evidence is vexed. It looks on the face of it as if the mother went to Western Australia to pursue a relationship, and this was certainly the father’s belief. In her trial affidavit the mother denied this and said that she went to Western Australia because the father was stalking her but as the father’s counsel pointed out the evidence does not support a finding that this was the case.
As with the mother’s decision on the day of separation I suspect that the issues for her at the time were complex and once again she did not simply abandon the children. She telephoned them every day and came back to the eastern states to see them and she and Mr B took the children and Mr B’s daughter A on a holiday to the (omitted) in the Term 3 school holidays.
The mother missed the children and in about October 2014 she returned to live in (omitted) and was able to resume spending some time with them by agreement with the father.
In December 2014 the parties attended mediation and an agreement was reached that the children would spend time with the mother each alternate weekend and each Wednesday afternoon after school. However on 17 December 2014 an incident occurred at the father’s home. The mother alleged that the father yelled abuse and spat on her. She immediately reported the incident to police and an Apprehended Domestic Violence Order (ADVO) was taken out for her protection and the father was arrested and charged with assault.
Following this the father would not let the mother see the children at all and he would not answer his telephone, even on Christmas Day.
In January 2015 the father began allowing the mother to speak to the children on the telephone for brief periods but he would still not let her see them. As a result when school resumed the mother began going to X’s class for parent teacher reading sessions.
The father eventually agreed to the mother spending time with the children each Wednesday from 4.00pm to 7.00pm but would only agree to her spending the occasional weekend with the children.
In May 2015 the mother filed an application seeking orders for the children to live with her and spend time with the father.
At some point after the court proceedings commenced the children began spending time with the mother each alternate weekend. The parties also agreed that the children would spend time with her overnight each Wednesday but the father resiled from this agreement shortly afterwards and insisted on the children being returned at 7.00pm on Wednesday.
On 23 October 2015 interim orders were made for the parents to have equal shared parental responsibility and for the children to live with the father and spend time with the mother on alternate weekends from Friday to Monday, from after school or 3.00pm on Wednesday until the commencement of school for X and until 3.00pm for Y on Thursday and during school holidays and on special occasions.
The parents were ordered to enrol in the Unifam Keeping in Contact program and to enrol X in the Anchor program, something which was recommended by the family consultant who conducted the child inclusive child dispute conference.
Because the parties were in dispute about where the children should primarily live, a family report was ordered and it was released in April 2016.
The report writer expressed concern about the children’s psychological well-being and recommended a change of residence.
The matter was mentioned on 14 April 2016 and given an expedited hearing date in August 2016. Notwithstanding this the mother filed an application in a case seeking an immediate change of residence. I dismissed that application on 8 May 2016 and confirmed the hearing dates.

The family violence allegations

The mother alleged that the father was violent to her on numerous occasions during the relationship and that it took the form of physical abuse, sexual abuse and verbal abuse. She alleged that the on 17 December 2014 the father spat on her during an argument and that the verbal abuse and denigration continued. She said that she was afraid of the father.
The father vehemently denied all of the mother’s allegations.
Determining where the truth lies about family violence allegations is often challenging and my task in this case was made more difficult by the fact that the mother’s affidavit was not well drafted. It contained some evidence of actual events and actual words said but it also contained a quantity of unhelpful material.
It is unhelpful for a party to continually assert in their affidavit that they were the victim of family violence. The court needs the raw evidence on which to make its own findings. It is not assisted by conclusions drawn by the party.
Many of the allegations the mother made were particularised only in the sense that they alleged either sexual violence or verbal abuse or controlling behaviour. For example the mother alleged that the father would not let her see or talk to her family, particularly her grandparents, and encouraged her not to talk about her family or friends. She also alleged that the father was financially controlling during the relationship.
I cannot make findings based on such general allegations and I cannot do anything with an assertion such as “Y was conceived as a result of a sexual assault”. It would be unsafe to find that such an assertion was true when no detail of the behaviour in question was given.
I accept that it can be very difficult for victims of family violence to talk in detail about what has happened to them. I accept that it is time consuming to put together an affidavit which details every incident of violence but I cannot make findings on the balance of probabilities that violence has occurred based on very general allegations and it is impossible for the other party to test such allegations in cross-examination without giving the party making the allegations a second chance to make good their claims with proper particulars.
The mother did however make some specific allegations.
The first was about an incident at (omitted) which occurred prior to cohabitation in which she asserted that the father tried to coerce her into having sexual relations with him.
She alleged that when she was 8 months pregnant with X she told the father she wanted to end the relationship and he pushed her against a cupboard and punched the cupboard door saying “Next time that will be you’re fucking head.”[1]
[1] Paragraph 16 of the mother’s affidavit.
She alleged that the father physically assaulted her on multiple other occasions and that her grandfather (who has since died) came and picked her and X up on two occasions so that she could leave with X. She alleged that the father would assault her by pushing her up against the verandah and grabbing X or her bags out of her arms.
She alleged that the father would call her “psycho” and continually tell her that she was a bad mother.
She alleged that in January 2014 when she decided to leave the relationship the father said that he would let her leave if she signed over full care of the children to him and left only with a bag of clothes. She alleged that as she was leaving the father took her car keys and punched the metal screen door bending the steel and told her that she would never see X or Y again. She alleged that when she got out her spare car keys the father ran inside the house saying loudly:
Watch this then bitch. X and Y you’d better come say goodbye to your Mum because you’re never going to see her again.
The mother alleged that after she returned to (omitted) in late 2014 the father continued to verbally abuse and disrespect her and tell her that the children did not want to see her and that she had abandoned them and was a bad mother.
She alleged that on 17 December 2014 he spat on her face and neck after an argument outside his home.
The mother alleged that on 21 June 2015 the father collected the children from the changeover venue after they had spent the weekend in Sydney with her and Mr B. A couple of minutes later she pulled her car over to receive a call from the father and when she answered the call the father began yelling:
You’re a fucking sick cunt, you fucking sick bitch. You’re fucking sick having sex in front of the kids. You’re a fucking sick cunt. X, tell your mother what you told me.
The mother said that she could hear the children in the car screaming and crying.
The mother alleged that at changeover on 9 July 2015 the father came up very close to her forcing her to walk backwards to increase the distance between them and then began to yell at her:
Why ya backing away from me Ms Percy? Why ya backin’ away? Ya a fuckin’ joke. Why? Ya makin’ a scene for the cameras are ya.
X and Y witnessed the father yelling at the mother and X wrapped his arms around a tree and began crying and saying:
Don’t want to, I don’t want to go, why are you making me go?
The father then walked over and harshly pulled X from the tree and yelled:
You’re going with your fucking mother.
Both children were crying and upset, and the mother took the children and put them in her vehicle.
The mother had chosen the changeover venue because it was close to a police station and on another occasion at changeover after she walked to the service station from the direction of the Police Station the father began yelling at her saying:
What do you think your fucking doing, going over there making fuckin’ false allegations. You’re a bad mother.
The mother did not respond and put the children in her car but as she attempted to drive away X jumped out of the car and ran to his father. Y soon followed and the father continued yelling:
See I told you the kids never want to go with you. You make it so hard for everyone. They hate you. This is all your fault. Why can’t you just fuck off to where you came from so we can be a family.
The mother said that she was by now extremely fearful and upset and she started walking to the police station. The father yelled:
You going over there to make more fucking stories up? I’ll follow you over there cunt.
By this time X was still sobbing and shaking his head saying:
I just don’t know. I just don’t know.
The parties both went over to the police station and the father eventually left and the children went happily with the mother. The father apologised to police for yelling and for his behaviour in front of the children.
Mr B gave evidence of hearing the father threatening and taunting the mother. He said as follows:
On multiple occasions when Ms Percy was on the phone to Mr Dickens I would overhear their conversations and noticed that he abused her on the phone frequently. I could hear the yelling on the phone and Mr Dickens saying words to the effect of: “you are not a mother you gave up all your rights and the kids don’t want you”, “you fucked off to WA with your boyfriend” and “you’re better off dead”. It was clear that the children were present on his end of the call during these incidents as I could hear Ms Percy talking to them.[2]
[2] Paragraph 30 of Mr B's Affidavit.
He also gave the following evidence:
In September 2015 I attended changeover of the children with Ms Percy. This was when changeover was at (omitted) station. While I was putting petrol in the car Mr Dickens came up behind my car and behaved aggressively toward me. He said words to the effect of: “What the fuck are you looking at cunt? I’m going to kill you and your daughter.[3]
[3] Paragraph 88 of Mr B's Affidavit.
Mr B applied for an ADVO following this incident which was eventually granted.
The father denied all of the mother’s allegations of violence and abusive behaviour and denied Mr B’s allegations. He relied in particular on the fact that he was acquitted of the criminal charge arising out of the spitting incident.

Findings about the mother’s allegations

I am not going to go into the (omitted) incident which predated cohabitation and which could on the state of the evidence as the father’s counsel submitted as easily suggest a lovers tiff as it could suggest an attempted sexual assault. However for a number of reasons I am satisfied on the balance of probabilities that both during and after the relationship the father subjected the mother to the family violence in the form of assaults, threats to harm her, damaging property and repeated derogatory taunts.
My reasons for coming to this conclusion are as follows:
First, the mother impressed as generally a witness of credit. The evidence she gave about how X behaved violently to her during an incident in 2016 and how she dealt with it was calmly and credibly given; it would have been in the mother’s interests to downplay the extent of her difficulties with X but she did not do so.
The mother gave evidence that she left the relationship on a number of occasions because of the father’s behaviour and went to live with the paternal grandmother for a period of time. The father denied it but the paternal grandmother was not called to give evidence and she was readily available and I accept the mother’s evidence about this issue.
The fact that the father was found not guilty of a charge arising out of the spitting incident by a criminal court which needs to be satisfied of the elements of a charge beyond reasonable doubt does not mean that the incident did not occur as the mother described. The mother gave very clear consistent evidence about this incident. The father did not refer to it at all in his affidavit, yet during cross-examination he conceded that he did spit. He said that he spat on the ground to clear his throat and not at the mother, but I do not accept that evidence.
Second, the mother has behaved consistently with her allegations being true both during the relationship and after separation. She left the relationship with X on a number of occasions to escape from the father’s violence; she promptly reported the spitting incident to police; and police on more than one occasion described her as being visibly upset or upset and shaking when she made reports.
Third, there was no sign that the mother had invented her allegations for tactical purposes.
The fact that the mother did not report incidents to police during the relationship or immediately after it does not undermine her claims. The mother had an abusive upbringing and at the time of separation her only support in (omitted) was her grandparents. She sought counselling assistance from 2015 onwards once she had escaped from the relationship and made some friends and she promptly reported the spitting incident on 17 December 2014.
The fact that the mother told the Family Consultant in October 2015 and during the report interviews that she was considering proposing an equal time arrangement also does not undermine the validity of her evidence about family violence. The family report writer observed that there were signs of the mother wishing to placate the father which is consistent with a situation where the mother had been in an abusive relationship and continued to fear the father’s reaction if an order was made for the children to live with her.
Fourth, the information X gave to the Family Consultant during the Child Inclusive Child Dispute conference in October 2015 provides some corroboration for the mother’s account. The family consultant said as follows:
When reflecting on his experiences in his family, [X] recalled happy times when they were all living in (omitted), but said he remembers “a little bit of fighting” between the parents when the family lived in (omitted). He said he witnessed some of the fighting and said “it looking mean”. He said that both parents would say “nasty things” to each other, but said that he did not see either parent hit the other. He said that both parents would sometimes hit the walls; when asked whether anything in the home was ever broken, X said “they only broke each other’s heart”
Fifth, Mr B impressed as a calm credible witness and I have no reason to disbelieve his evidence about things he saw and heard.
Sixth, there was independent evidence about the father’s capacity to be loud, angry and overbearing in the material produced on subpoena from NSW Police.
I am satisfied that the mother’s particularised allegations are true and that she is afraid of the father and that she chose to conduct changeovers with him near a police station because that gave her some comfort.
It is important however to note the following.
Although I am satisfied that the father was a perpetrator of family violence this is not a case in which this explains everything, although the mother sometimes attempted to make it serve that purpose.
The mother’s story that she left X and Y with the father in January 2014 simply because he threatened her and refused to let her take the children is difficult to credit in the light of her evidence that during the relationship she frequently (and successfully) left the relationship with X before returning to the father, and indeed she told the family report writer that the reason she left the children with the father was because:
……she did not believe it was appropriate at the time to uproot the children by taking them with her, as she was homeless and unstable.[4]
[4] Paragraph 40 of the Family Report.
The mother had a very difficult childhood and adolescence. The maternal grandmother drank and used cannabis and the mother alleged that she was sexually abused by her father and that her step-father made sexual advances to her. There was a JIRT investigation into the mother’s allegations about the maternal grandfather but the mother elected not to press charges.
The mother told the family report writer that the birth of X re-awakened some childhood issues for her. It would require more evidence than is available to me and a more in depth examination of the situation than a two day trial was able to provide to tease out the extent to which issues unrelated to the father’s behaviour to the mother contributed to her decisions at and after separation and in particular her decisions about the children during 2014.

The parties’ current circumstances

The mother and Mr B share a home in (omitted). They have a sexual relationship but they both maintained that they were not in a committed relationship and were uncertain what the future held.
Mr B is working and I have some misgivings about whether I have been told the entire truth about the situation between the mother and Mr B, because if the story were told differently it might affect the mother’s eligibility for legal aid if indeed she is receiving it. However the father’s counsel did not openly challenge the veracity of the story the mother and Mr B told about their relationship and in the circumstances I cannot find that their relationship is other than they claim it to be.
The mother is not currently working but given her history it seems to me likely that she will return to work in the future.
Mr B is 36 and is a (occupation omitted) with (employer omitted). He has a daughter, A, who lives with her mother in (omitted). A accompanied the mother and Mr B and the children on the (omitted) holiday in 2014 and has spent other time with the mother and her children.
Nothing adverse is known about Mr B. He does not have a criminal record and it was not alleged that he had a problem with drugs or alcohol.
The father lives with the children in a four bedroom home in (omitted). He left the workforce in January 2014 and is on a sole parent’s pension. Given his history I would expect that he also will return to the workforce in the future.
The father has not re-partnered.
X is in year 2 at (omitted) Public School. Y attends (omitted) School and is due to commence kindergarten in 2017.
X is doing well academically and the parents have enrolled him in extra-curricular activities such as (hobbies omitted).
In the last twelve months X’s school have raised concerns with the parents about inappropriate sexual behaviour/comments by X at school, and the mother gave evidence about something X said about Y in the car which deeply concerned her. However on the state of the evidence I cannot make a finding that one parent or the other is exposing X to anything which is causing this behaviour and the only relevance of the events which have occurred at school is the parents’ reaction after being notified about them.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration, and S.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the children's best interests.
The primary considerations in s.60CC(2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
S.60CC(3) contains the additional considerations which include matters such as the children’s views, the nature of their relationship with each of their parents, the likely effect of any change in their circumstances and their parents capacity to provide for the needs of the children.
Sometimes it is preferable to start by making findings about the additional considerations to better assist in assessing the primary considerations and this is such a case.
The first of the additional considerations is any views expressed by the children 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 children's views.
When talking to the family report writer in October 2015, X identified his most secure relationship as being with the father and described some ambivalence and insecurities in his relationship with the mother. However he also told her that his head hurt sometimes and that he wanted his family back together.
In March 2016 X told the family report writer that his greatest concern in his family was “Mum taking my dad off me”[5] and he verbalised considerable hostility towards the mother. He said he wanted to spend less time with his mother such as Wednesday night dinner only and no weekend time.
[5] Paragraph 96 of the Family Report.
The family report writer did not consider that any weight could be placed on X’s views. She said as follows:
X in particular appeared focussed on making sure he had said and done the ‘right’ things during the report process; things that aligned with the father’s position. As such, any views or decisions which may oppose the father’s position in these proceedings are likely to be interpreted by X as him not having ‘done a good enough job’ or having let the father down. It would therefore appear critical that X and Y maintain their intervention with Unifam to support them through this very complex process.
Y did not express a view to the family report writer either in October 2015 or March 2016 about her preferred parenting arrangements.
I must consider the nature of the relationship of the children with each of the children's parents and other persons (including any grandparent or other relative of the children.
The family report writer observed a very good relationship between Y and the mother during the family report interviews in March 2016. She said that Y hugged and kissed her mother and sought close physical interaction with her throughout the session.
The family report writer said that X initially seemed pleased to see the mother but then noticed the family report writer and became withdrawn. The mother managed to draw him into playing with some Lego but he remained for the most part quiet and withdrawn although the report writer observed that he occasionally relaxed and engaged warmly with the mother before correcting himself. He was also aloof with Mr B when he entered the room.

The family report writer said that she later left the room and that when she returned an hour later X was sitting comfortably between the mother and Mr B and Y was drawing on the whiteboard. She said that both children displayed physical affection with the mother before the session ended.
The mother said in evidence and to the family report writer that X was often very different when he was with her without the father around and the observations about X’s behaviour to the mother at the family report interviews when he did not feel the need to keep up a front supports that.
X’s relationship with the mother is complex but he has not reached the stage of refusing to spend time with her.
Y has an untroubled relationship with Mr B while X’s relationship with him is more complicated.
The family report writer said as follows about the father’s interaction with the children:
The father was then asked to collect the children from the childcare room. The children became immediately vigilant to the father’s presence; they did not approach him, and the father demonstrated some difficulty physically or verbally engaging them. He appeared anxious and agitated, and the children appeared receptive to this. Their jovial and relaxed state changed immediately; they became tense and began complaining that they were bored and hungry.
Y then drew the father’s attention to the drawings on the board. She pointed to the picture of the horse and said “what do you think of the horse dad?”; to which the father replied “it’s very good”. Y then asked “who do you think did it?” X was observed to become immediately anxious and tried to redirect the father’s attention away from Y’s discussion. Y then said “(omitted) did it”; to which X said “don’t worry, I don’t like it dad”. The father told the children to pack up because they had to leave.[6]
[6] Paragraphs 128 and 129 of the Family Report.
It was by implication the family report writer’s view that the children did not have a secure and beneficial attachment to the father and her observations raised considerable concern about the nature of those relationships.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
The father gave up work to care for the children in January 2014 and he has been available for them throughout the post-separation period.
The mother left the children behind at separation and in May 2014 she moved to the other side of Australia. She said that she left them behind in January 2014 because the father refused to let her take them and that she went to Western Australia because the father was stalking her.
As noted above I have reservations about whether either is the entire truth.
Family violence is a complex issue and exposure to family violence can have a long tail and it is not inherently unbelievable that family violence during the relationship caused the mother to lack confidence and contributed to her failure to take decisive action about the children at the time of separation but the fact that she also has a history of childhood trauma means that I cannot be satisfied on the balance of probabilities that it entirely explains what happened post-separation.
However while I cannot be satisfied that this is a case in which family violence explains all the mother’s post separation decisions I am not satisfied that she simply prioritised her own needs over the children’s needs by moving to Western Australia. The mother is a vulnerable person who was not in a good place in her life for much of 2014. Since she returned from Western Australia she has actively sought to be involved in the children’s lives and to spend as much time with them as she can.
I must consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
Some child support issues were raised; the mother claimed that on occasions the father said that she could not see the children unless she paid him quite a large sum of money. The father denied this. The father was not an especially credible witness but I am unable on the state of the evidence to make findings about the mother’s allegations.
I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children 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.
The mother’s case was that Y would have little difficulty transitioning her to full time care because she has never lost a close and affectionate bond with the mother and the evidence suggests that this is correct. Y told the family report writer in March 2016 that she did not know why she saw more of the father than the mother.
It was the mother’s case that when X was away from the father’s influence he often behaved in an affectionate way with her, but she also gave evidence that he had recently been hitting her. She gave detailed evidence in the witness box about an occasion when this occurred after X became angry about losing at a video game but in her affidavit she also said that X had been hitting her on other occasions.
The evidence as a whole suggests that X is under severe psychological stress and how he will react if an order is made for change of residence is difficult to predict.
If his residence is changed and he then spends time with the father and the father makes him feel bad about what has happened he may be very difficult for the mother to handle when he returns to her care.
On the positive side the mother said that she did not intend to remove the children from (omitted) School so they will have continuity there.
Also on the positive side X is engaged in counselling at Unifam which provides a resource to assist him to settle into the mother’s care and the mother gave calm and insightful evidence in the witness box about how she had handled the instance when X became upset about the video game, giving some confidence that the mother will be able to assist X to settle.
I must consider 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.
This is not an issue given that both parents live within reasonable proximity of each other in (omitted).
I must consider the capacity of:
(i) each of the children's parents; and
(ii) any other person (including any grandparent or other relative of the children);
to provide for the needs of the children including their emotional and intellectual needs.
The mother does not have a problem with drugs and alcohol and does not have any criminal convictions. She has a good work history and is a good role model for her children.
There is no reason to suppose that the mother would not be able to get the children to and from school and she has demonstrated considerable sensitivity throughout these proceedings to X’s needs in particular. Her description of how she dealt with the incident where X became upset over the video game suggested that she would be well able to handle appropriately any issues of discipline in her home.
The concern about the mother is her mental health.
The mother told the family report writer that some childhood issues resurfaced following X’s birth and that she experienced some symptoms of depression and bulimia following his birth. The family report writer asked the mother more about her mental health and found it difficult to get answers from her. The family report writer went on to say as follows:
Eventually the family consultant ascertained from the mother that she did not experience mental illness or self-harm during her adolescence/early adulthood despite her childhood trauma, and that she was first diagnosed with post-traumatic stress disorder by her general practitioner Dr B.
Information pertaining to the mother’s mental health was gleaned from the available subpoenaed records. (omitted) Medical Centre records indicate that: in March 2013 the mother experienced symptoms of depression, poor self-esteem and bulimia in the context of childhood trauma; and in November 2013 the mother experienced depressed mood and suicidal thoughts in the context of alleged family violence by the father and childhood trauma. In November 2014 the mother self-harmed by cutting her wrists, in January 2015 attempted suicide by hanging, and in April 2015 overdosed and cut her wrists with suicidal intent. In January 2015 Dr B identified symptoms of depression, panic disorder and post-traumatic stress disorder. In April 2015, mental health emergency department staff diagnosed the mother with a ‘depressive disorder with anxiety symptoms’, and categorised the attempted suicide as an ‘adjustment reaction’. In July 2015 Dr B detailed in a letter the impacts on the mother of “domestic bullying in physical, emotional and social arenas” from the father, including: reoccurring nightmares, flashbacks, feelings of being overwhelmed, numbness, hypervigilance, panic, depression.[7]
[7] Paragraphs 43 and 44 of the Family Report
At the time of the family report interviews the mother was seeing someone at (omitted) Family Support Service but the family report writer pointed out that this service focussed on family violence rather than specialised in issues to do with mental health. She said in her report that:
The mother may benefit from undertaking intervention specifically aimed at enhancing her coping capacities, to promote the children’s security in their relationship with her.[8]
[8] Paragraph 151 of the Family Report
The mother took this on board and is now seeing a psychologist and she has a support network and is willing to seek help and support when she needs it and those are all positives for the future.
The mother is supremely confident that she will not face any problems with her mental health in the future which she cannot effectively deal with by accessing counselling and with the help of the support group that now surrounds her. However she has had recent and serious mental health issues and she has childhood issues to deal with as well as issues arising out of her relationship with the father and there has to be some risk that the mother could suffer a decline in her mental health in the future which could affect her parenting capacity.
The father is attending appropriately to the children’s day to day needs in terms of feeding and clothing them and he is attending appropriately to their education. X is doing well at school academically and attends regularly and Y will start at the same school next year.
In March 2014 the father requested that X be referred to the school counsellor.[9] The mother’s counsel suggested that the father should be criticised because of the terms of the referral but I do not accept that submission and consider that the evidence supports a finding that the father was genuinely trying to help X when he made this request.
[9] Exhibit F
The concern about the father is his capacity to provide for the children’s emotional needs.
It was the mother’s case that since separation the father had actively taken steps to align and manipulate the children and to make sure that they rejected her and believed that she had abandoned them. She gave evidence about things he said to them on the day of separation in January 2014, in the background when she spoke to them on the phone particularly when she was in Western Australia and at changeovers.
The mother also gave evidence that:
i)On 20 March 2015 she attended X’s sports carnival and when she tried to talk to Y who was with the father the father said “get away from her, she doesn’t want you.”
ii)After X got into her car at changeover on 3 June 2015 the father said “I miss you mate, don’t worry mate, she will bring you back in a few hours” causing X to be so distressed that he jumped out of the car crying.
iii)On 7 June 2015 when X spoke to the father on the telephone when with the mother the father said “What so you actually want to stay with your mother? You don’t want to come home with Daddy? That makes Dad feel like shit.” X began saying “I do want to stay with you Dad, I’m sorry” and eventually began crying and screaming at the mother to take him home.
I accept the mother’s evidence that those things occurred and X in particular is clearly enormously emotionally burdened by the father’s actions. The family report writer said as follows:
X was asked whether he was worried about anyone in particular in his family. He said “yes dad ‘cause he’s got a lot of stress on him…because he gets frustrated when mum says bad things about him”. X said that he often sees the father cry “and he leans on me and says ‘I don’t want to lose you because of your mum’”. X said “That’s my worst fear, losing my dad”.[10]
[10] Paragraph 98 of the Family Report.
X is assuming enormous responsibility for the father’s well-being. The family report writer also noted that:
Towards the end of the interview X asked if the mother set the times for the Family Report interviews, “because last week we went to another lawyer or someone and we were late ‘cause mum set the time up so we would be late and my dad would be frustrated”.[11]
[11] Paragraph 100 of the Family Report.
The father denied that he was responsible for X thinking that the mother was a liar and for X’s emotional state but there were some windows in which undermined his claim.
First, the father described X during cross-examination as being his “best mate” and without seeming to understand the implication of it said the following:
X said to me “Mum called you a crook, that’s a lie.” I said “Mate it is, you know your Daddy.”
Second, it was clear from cross-examination that the father had not forgiven the mother for the separation. He now cleaves to the view that she separated from him because she formed a new relationship and he displays hostility to Mr B.
Y is also emotionally burdened by the father’s behaviour. The family report writer said as follows:
Y said that the mother cries “sometimes” when she has to return to the father. She then said “but daddy cries all the time when we go to mum”. She said that when the father cries it makes her “feel sad and like I want to go to dad”.
Y was asked whether she had any worries in her family. She initially deflected the question, but at one stage said “I worry most about my dad”. When asked why, Y said “because…” and then stopped before finishing the answer.[12]
[12] Paragraphs 110 and 113 of the Family Report.
The family report writer said as follows:
While it is reasonable to accept that the children have been exposed to conflict and negative behaviour by both parents since separation, the children’s current emotional state, poor adjustment in their current arrangement, and evident difficulty enjoying their relationship with the mother appears most substantially and adversely influenced by the father at this time. This is evidenced markedly by the interviews and observations of the children for this report.
It is concerning in this matter that X has been observed to be “fearful” or anxious of the father at times, and that both children appear desperate to appease him. Both children present with age-inappropriate levels of responsibility for the father’s wellbeing causing them emotional distress. The degree of stress associated with these issues for the children appears to be disrupting; not only their capacity to enjoy their relationship with the mother, but their capacity to undertake their normative developmental tasks such as peer relationships and learning. Such stress on children, if prolonged, can have profoundly adverse impacts on their mental health and development in the immediate and long term.[13]
[13] Paragraphs 132 and 133 of the Family Report.
I am satisfied that the father lacks the capacity to provide for the children’s emotional needs to the point where continuing extensive exposure to his views and behaviour is likely to cause them psychological harm. There is force in the mother’s argument that regardless of the counselling if X remains living primarily with the father X’s attitude to her will not change because the father’s attitudes and behaviour will not change.
In his affidavit the father said that he had recently commenced seeing a psychologist at (omitted) in (omitted) and had commenced a course called Keeping in Touch at Unifam. He said that he was learning about appropriate and inappropriate things to say to the children and that even if the court had a concern about his behaviour up to now it should not assume that things would the same in the future.
The problem for the father is that he denies the allegations of family violence and during cross-examination he showed no recognition that some of the things he said to X (such as confirming to him that the mother was a liar) were inappropriate. I have little confidence therefore that the counselling and the course the father describe are likely to change the children’s situation if they remain living primarily with the father.
The mother alleged that the father had historically used cannabis. The father maintained that he had occasionally used synthetic cannabis but had not done so for a long time. There was no evidence at trial that the father was currently using cannabis or synthetic cannabis.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
X is almost 8 and he is doing very well at school academically. He has had some behavioural issues at school however.
There was a suggestion in the subpoena material that the father’s way of dealing with X’s issues was inappropriate and that the mother responded more appropriately but this issue by itself is not determinative of the matter.
I must consider the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents.
The father displayed an extremely poor attitude to the children and the responsibilities of parenthood when he prevented them spending time with the mother or speaking to her after the 17 December 2014 incident.
I must consider any family violence involving the children or a member of the children's family.
The fact that the father has committed acts of family violence has a number of implications for this matter.
A person who uses threats and aggression to deal with situations which upset him is not a good role model for children.
The fact that the father does not recognise that his aggressive and threatening behaviour is family violence makes it questionable whether even with access to counselling his behaviour is likely to change.
The mother has on occasion expressed fear of what the father might do if an order was made substantially reducing his time with the children and there is a passage in the family report which suggests that the mother is right to be concerned. The family report writer said as follows:
…if the nature of the alleged family violence is found to be consistent with the account provided by the mother, then this form of family violence would be considered most consistent with coercive controlling family violence. Coercive controlling violence involves an ongoing pattern of threat or force used to dominate a person or for that person to feel threatened or intimidated. Risks associated with this form of violence are thought to increase in circumstances when an abusive parent perceives a loss of power and control, for example, during a parental separation or during a Court process.
Evaluating the degree of risk associated with this form of family violence involves an analysis of specific features and characteristics of the alleged primary perpetrator. There are several indicators of risks in this matter, including the recent alleged threats of harm made by the father to Mr B and his daughter. Also, the father’s thought processes/adjustment in relation to the parental separation would also be considered an indicator of risk, given his demonstrated preoccupation with the mother’s new relationship, and his seemingly distorted impressions/allegations at times. Allegations that the father has used the children as leverage within the parental dispute is also of concern; as are observations made of the father (including by the school) that indicate he may lack empathy for the children’s needs and experiences. It is therefore the view of the family consultant that if the Court finds that there have been issues of family violence of a coercive controlling nature in this matter, that the risks to the mother and children may remain relatively high[14]
[14] Family Report paragraphs 138, 139

However this aspect of the matter was not the focus of any submission by either the mother’s counsel or the counsel for the Independent Children’s Lawyer. They both seemed to take the view that the appropriate way to deal with any risk of harm was to keep the parties apart at changeover as much as possible.
I must consider if a family violence order applies, or has applied, to the children or a member of the children's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)     the nature of the order;
(ii)    the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter.
Police applied for a provisional ADVO for the protection of the mother on 17 December 2014, the day she reported the spitting incident. The ADVO was withdrawn after the father was acquitted of the criminal charge.
The father applied for an ADVO against Mr B in late 2014. After several court attendances the application was eventually dismissed without a hearing.
Mr B applied for an ADVO against the father following the incident at the service station in September 2015. In the end the matter was settled on the basis that the father consented to an order without admissions.
I cannot draw any inferences from the mere fact that these orders were made.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The risk of further proceedings is very high if I make an order that the children live with the father and spend time with the mother, because if X remains living with the father his ambivalent attitude to the mother will not change for the better and his confusion and distress will not abate. He may begin refusing to spend time with the mother and given the father’s entrenched belief that the mother’s problems with X are due to her own actions and are a deserved consequence of her actions it is unlikely that the father will deal appropriately with the situation if X does begin to resist spending time with the mother.
An Order that the children live with the mother is least likely to lead to further proceedings but the mother has her fragilities and the future is impossible to predict with absolute certainty.
I must consider any other fact or circumstance that the court thinks is relevant.
There are no other relevant matters.
The primary considerations in s.60CC(2) are:
a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Pursuant to s.60CC (2A) I must prioritise consideration b) over consideration a).
I am satisfied that the mother has the capacity to ensure that the children continue to have a relationship with the father. It has never been her case that the children should spend no time with him and there was no evidence of her denigrating the father either to his face or to the children.
There was nothing to suggest that the children were likely to be exposed to abuse neglect or family violence in the mother’s care at present. The children could be neglected if the mother’s mental health declined but there was nothing to suggest that this was likely to happen.
There is considerable risk that if the children remain living with the father they will not have a meaningful relationship with the mother and that X may cease to have a relationship with her at all.
X has an enmeshed relationship with the father and feels the need to be hostile to the mother in order to please the father.
The father said during cross-examination that he had begun seeing a psychologist and was learning from that psychologist and from Unifam about how his tone of voice and gestures could influence the children. He gave an example of how it had been suggested that his manner of telling the children that the mother was on the phone might convey to them that he did not particularly support them talking to her.
I felt that the father was quite genuine in giving this evidence but he has an entrenched belief that the mother abandoned the children in January 2014 and he makes no effort to shield the children from that belief. He does not accept that his behaviour has helped to create a situation where X is hostile to the mother. He might eventually come to that point in counselling if he is genuinely engaged with the counselling but it would be very hard for him to do so and in the meantime if X stays with the father his relationship with the mother might be damaged beyond repair.
Y’s relationship with the mother is not currently being undermined but that could happen if she remains primarily living with the father.
Notwithstanding that the father committed acts of family violence during and after his relationship with the mother and that the children have been exposed to family violence as a result, there was no evidence that the father has ever been violent to the children as such and absent the father re-partnering and absent any incidents occurring between the mother and father at changeovers there was no evidence that the children were likely to be exposed to family violence in the father’s care, and also no evidence that they were likely to be abused (as abuse is defined in the Family Law Act, which does not include emotional abuse) or neglected in his care.
The children have been exposed to some very unsatisfactory behaviour by the father at changeovers but the orders proposed for the future by both parties would see children being collected from and dropped off at school on the majority of occasions which will greatly reduce the risk of them being exposed to any further incidents between the parents.
I referred earlier to the passage in the Family Report suggesting that the mother and children might be at risk if the father felt that he had lost control of the situation but again note neither the mother’s counsel or counsel for the Independent Children’s Lawyer sought to make anything of this issue in submissions.

The family report writer’s recommendations

The family report writer said as follows:
The children’s psychological wellbeing has presented as a primary concern in this matter. While it is reasonable to accept that the children have been exposed to conflict and negative behaviour by both parents since separation, the children’s current emotional state, poor adjustment in their current arrangement, and evident difficulty enjoying their relationship with the mother appears most substantially and adversely influenced by the father at this time. This is evidenced markedly by the interviews and observations of the children for this report.[15]
[15] Family Report paragraph 132
The family report writer recommended that the children live with the mother and made the following recommendations about the father’s time.
If the Court finds that there is an unacceptable risk of harm to the children with the father, then consideration may be given to the children initially spending time with him at a Contact Centre.
It is recommended that the father engage in assessment and intervention aimed at identifying and addressing any psychological and/or or adjustment issues related to the parental separation.
If the Court finds that there is not an unacceptable risk of harm to the children with the father, and that the father is capable of positively supporting the children’s relationship with the mother, then the children could spend time with the father alternate weekends and additional time during holidays and special occasions.
The family report writer is an experienced family consultant. Her report was thorough, she was not shown to have made any factual errors and her recommendations were soundly based on the information available to her.
However the family report writer is not the decision maker in the matter and I must consider not only the recommendations in the report but all of the other evidence in order to come to a decision.

Parental Responsibility

The parties have equal shared parental responsibility for the children pursuant to an interim order made by consent on 8 May 2015 but I must disregard that when considering the allocation of parental responsibility on a final basis.
Pursuant to s.61DA of the Family Law Act the court is required to apply a presumption that the parties have equal shared parental responsibility for the children absent a finding that one of the parties has abused the children or committed an act of family violence.
The presumption does not apply because the father has committed acts of family violence but it is still open to the court to make an order for equal shared parental responsibility. This is what the father sought and the Independent Children’s Lawyer also proposed this.
The mother sought an order for sole parental responsibility.
There are cases, and this is one, where is not possible to make a decision about the allocation of parental responsibility until a decision is made about where the children should primarily live.
If I decide to order that the children remain living primarily with the father, it would be untenable to give the mother sole parental responsibility for them and it would not be in the children’s best interests for the father to have sole parental responsibility for them given the concerns about family violence and controlling behaviour and about X’s enmeshment with the father and the precarious state of his relationship with the mother.
In those circumstances despite the communication difficulties between the parties it would be preferable for an order for equal shared parental responsibility to be made.
If however I order that the children live with the mother I would not be inclined to make an order for equal shared parental responsibility.
The mother has been subjected to some very unpleasant behaviour by the father since separation such as name calling and spitting. The father does not respect the mother and thinks that she is a liar. The mother is afraid of the father and she should not be required in those circumstances to negotiate with the father about major long term issues and attempt to reach agreement with him.
It is also open to question whether the father would respect any proposal put forward by the mother.
If an order is made for the children to live primarily with the mother then the order which would be in the children’s best interests and would ensure that decisions were promptly made and would ensure that the mother’s parenting capacity was not impacted on by abuse or disrespect would be an order that the mother have sole parental responsibility for the children.
A sole parental responsibility order can be made subject to conditions such as requiring the mother to notify the father of any major long term decisions which need to be made and to take his response or proposals into account when making her decision provided that the response is provided within a certain time frame and it could also be subject to the mother not changing the children’s name or relocating and if I do make an order for sole parental responsibility. I will make it subject to those conditions.

Conclusion

I am abundantly satisfied on the evidence available to me that I should make an order that the children live primarily with the mother.
It is very important that X and Y have a relationship with their mother. She has some mental health issues but she is a good role model for the children; she does not have any issues with drugs or alcohol, she does not have a criminal history and she is not violent.
The mother has gone to considerable pains since late 2014 to maintain her connection with the children, including going regularly to X’s school for reading.
X is very conflicted about his mother. As the family report writer noted when he is with her and does not think he is being observed he relates very positively to her. However it was apparent to the family report writer, and I place weight on her evidence, that X feels himself strongly obliged to please the father by rejecting the mother and Mr B and this is creating huge psychological strain for him.
If X remains living primarily with the father there is a considerable risk that he will seek to escape from the strain by resisting spending time with the mother.
That would be a tragedy for X given all that the mother has to offer him and given the concerns about the father.
I am satisfied that the father was violent to the mother during the relationship, that he spat on her in December 2014 and that he has behaved in an overbearing and aggressive way with her on occasions since separation. In behaving in this way he is an extremely poor role model for his children. If X copies the father’s way of behaving then he will have all sorts of problems in the future.
The father is incapable of truly facilitating a relationship between the mother and X. He said that he had attended on a psychologist since the family report was released and had taken on board information provided to him about how his tone of voice and gestures influenced the children but he does not acknowledge that he was violent to the mother and persists in seeing her as a liar, and when X calls her a liar he validates the child’s comments.
X may have difficulty settling if a change of residence is ordered, but the mother is well engaged with support services and she described in a calm and insightful way how she dealt with a recent incident where X was aggressive to her in her home. The family is engaged with Unifam and the mother will ensure that they remain engaged with Unifam. The mother showed caring and consistent behaviour in coming regularly to X’s class for reading in 2015 and I am satisfied that she has the capacity to provide consistent care for him and make a change of residence work.
The mother had an abusive upbringing and she has had some concerning mental health issues as recently as mid-2015. However she has engaged with and remains firmly engaged with support services. It is impossible to be one hundred percent sure of the future but I am satisfied that the risk of the mother falling in a heap again as she has done in the past is not presently a high risk.
The mother also has the support of Mr B. He is an upstanding member of the community and he has remained connected with the mother for over two years now and the children get on well with him.
I also consider that the mother has a better capacity than the father to deal with any issues X might be experiencing at school but this is not the pivotal issue in the case.
I have concentrated on X in the above exposition because he is the child who has a deteriorating and troubled relationship with the mother. Y’s relationship with the mother has not reached that point. She reacted very warmly to the mother at the family report interviews. I am confident that she will readily adapt to a change of residence and it is essential for her long term psychological well-being as well that she lives with the parent who will promote a relationship with the other parent and not undermine it.
For the reasons outlined earlier because I intend to order that the children live with the mother, I also intend to order that the mother have sole parental responsibility for them subject to some provisos.
The most difficult issue in the case is what to do about the father’s time with the children.
It is too early to give up on the children having a good relationship with each of their parents. The father deserves praise for giving up work to care for the children; there was nothing to suggest that he was looking for an excuse to cease work, and he has ensured that X has attended school regularly and Y has been enrolled in pre-school. There was no suggestion that he was unable to provide for the children’s day to day needs.
The family report writer made it clear when she was asked about it during cross-examination that she did not support a no time order.
The family report writer suggested time at a contact centre if the court was concerned about the father influencing the children but this is not possible. Services such as the (omitted) Children's Contact Centre do not provide a service after final orders are made to the best of my knowledge and in any event have a long waiting list and these are not parties who could afford a private service such as Big Brown House.
The only possible family supervisor would be the paternal grandmother but she did not give evidence and the mother’s allegations about her behaviour since separation (which were not contradicted) make her unsuitable when the concern is that the father might continue to say things which undermine the mother’s relationship with the children and X in particular.
The Independent Children’s Lawyer did not support supervised time in any event and proposed that there be a staged process where the father was required to engage with a psychologist and once he did was permitted to spend time with the children for one day each weekend for three months. She proposed that after three months the father commence spending time with the children on alternate weekends, each alternate Wednesday overnight to Thursday and for half of the school holidays.
During final submissions on 19 August 2016, the mother’s counsel supported the orders proposed by the Independent Children’s Lawyer.
I arranged for this matter to be relisted on 6 September 2016 and again on 9 September 2016 because I was concerned about some of the orders proposed by the Independent Children’s Lawyer and wished to hear further submissions.
My first concern was that order 3 of orders proposed by the Independent Children’s Lawyer required the father to engage with a psychologist and discuss certain things and order 4 provided that once he did so the children commence spending time with him on one day each Saturday but did not suggest how the father was to prove that he had complied with order 3.
My second concern was that it was proposed that after three months of time during the day each Saturday the father should commence spending time with the children each alternate weekend and also each Wednesday overnight to Thursday during school terms. This amount of time seemed to me to be incongruous with the concerns raised during the hearing about the father’s inability to support the children’s relationship with the mother.
My third concern was the proposed telephone communication order which provided that the children be permitted to ring the other parent whenever they requested to do so.
Such an order is problematic at the best of times as it can undermine a parent’s right to make arrangements for the orderly running of their household and undermine their disciplinary decisions, but I considered it a particularly problematic in this case given the concerns about the psychological stress on X of trying to please the father.
During submissions on 9 September 2016 Counsel for the Independent Children’s Lawyer amended her proposal to suggest that Order 3 be a standalone order and that time pursuant to Order 4 commence on a fixed date, perhaps 14 days from the date of change of residence.
The mother’s Counsel supported this in broad general terms but proposed that time pursuant to order 4 commence in 4 weeks so that the children would have an additional period of time to adjust to the change of residence.
Counsel for the Independent Children’s Lawyer continued to propose that after three months the father spend time with the children each Wednesday overnight to Thursday during school terms as well as each alternate weekend. She submitted that there were signs in the evidence that the father now recognised the harm he had done to the children by his behaviour and signs that he had taken on board advice from Unifam about this and she submitted that there was therefore reason for optimism that the children’s relationship with the mother would not be undermined if they spent frequent time with the father. She also submitted that given the children’s long history of being in the father’s care since separation it was preferable that they continued to see the father more rather than less frequently.

The mother’s counsel said that the mother was in the court’s hand as to whether it made the order for time to occur overnight each Wednesday in addition to time on alternate weekends.
I do not share the Independent Children’s Lawyer’s view that there is any real sign that the father recognises the harm he has done to the children by his manner of interacting with them or that he has in any meaningful way commenced amending his behaviour in this regard. During cross-examination the father said that he had begun to understand that his tone of voice and gestures could influence the children but there was no sign that his view of the mother or her partner had changed and he is in denial about his perpetration of family violence.
The family report writer recommended that if the court felt that the father was capable of supporting the mother’s relationship with the children then they should spend time with him each alternate weekend and during school holidays. She did not recommend more extensive time and she recommended considerable caution if the court felt that the father was not capable of supporting that relationship.
I have considerable misgivings about the proposal for time each Wednesday in addition to the alternate weekends. I do not consider it congruent with the evidence currently available to me. However the proposal was not opposed by the mother and I cannot entirely dismiss the possibility that something might shift in the father’s attitude during the period when he is only seeing the children during the day. I therefore with misgivings intend to make the orders as proposed by the Independent Children’s Lawyer with the attendant risk that if there are any ongoing difficulties the matter will swiftly return to court.
The father’s counsel submitted that the time on alternate weekends and overnight on Wednesday’s should commence 4 weeks rather than in 3 months after the change of residence. He submitted that it was important that more extensive time commenced before the end of the school year to ensure that the father was able to take part in end of year activities at X’s school.
There is some merit in this proposal and I will order that the more extensive time commence after 2 months rather than after 3 months. There is no magic in either number; the extensive time will either work for the children or it won’t.
The mother’s Counsel and the Counsel for the Independent Children’s Lawyer both agreed that the telephone communication order originally proposed was inappropriate and proposed that the father have telephone communication with the children at a fixed time and the time proposed was between 5.00pm and 6.00pm each Wednesday and Saturday the children were not with the father.
The father’s counsel argued for the original order but I intend to make an order for telephone communication at a fixed time.
The family report writer recommended that the orders be explained to the children by either herself or the Independent Children’s Lawyer and I agree that this should be done to alleviate X’s possible distress and any misplaced concerns he may have for the father if for no other reason.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding two hundred and forty seven (247) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 9 September 2016

[2016] FCCA 2244

9 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Causation