Pinto and Wilhelm

[2013] FCCA 1785

FEDERAL CIRCUIT COURT OF AUSTRALIA

PINTO & WILHELM [2013] FCCA 1785

Catchwords:
FAMILY LAW – Parenting orders – competing residence applications – mother sole caregiver – mother and father residing in different states – father over-held one of the children – father’s denigration of the mother to the children – children’s wishes – children to continue to live with the mother.

Legislation: 
Family Law Act 1975 (Cth), ss.60CC(2), 62G(2)

Applicant: MS PINTO

Respondent: MR WILHELM

File Number: MLC 2750 of 2013

Judgment of: Judge Hartnett

Hearing date: 25 October 2013

Delivered at: Melbourne

Delivered on: 25 October 2013

REPRESENTATION

The Applicant: In person

The Respondent: In person

THE COURT ORDERS BY CONSENT THAT:

1. The Applicant mother and Respondent father have equal shared parental responsibility of the children [X] born [in] 2000 and [Y] born [in] 2001.

THE COURT ORDERS THAT:

1. All previous orders are discharged.

2. The children live with their mother.

3. The children spend time with their father as follows:-

   (a)for one half of each school term and Christmas school vacation (the Victorian gazetted school holiday periods), with the father to be in substantial attendance at all times, and being the first half.  Such time spent with shall occur in the State of Queensland;

   (b)the children shall travel by plane to and from Melbourne and Brisbane airports, and the cost of all airfares are to be shared between the parties;

   (c)the parents will each provide the other with the travel information for the children's flights not less than seven days prior to the commencement of each school holiday;

   (d)at the commencement of the father's time with the children, the mother will deliver them to the Melbourne airport and the father will collect them from the Brisbane airport.  At the conclusion of the father's time with the children, the father will deliver the children to the Brisbane airport and the mother will collect them from the Melbourne airport;

   (e)such other and further time spent with as agreed between the parties; and

   (f)the father shall communicate with the children by telephone by instigating calls to their mobile phone numbers at all reasonable times.  The father is also permitted to communicate with the children via Facebook, email and mail.

4. Each of the mother and father by themselves, servants and/or agents are restrained from denigrating the other in the presence and/or hearing of either of the children. 

5. The mother and father shall:-

   (a)keep the other parent informed at all times of their residential address and a contact telephone number;

   (b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children, and authorise that practitioner to provide the other parent with the information that they are lawfully able to provide about the children;

   (c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.  This authorises any treating medical practitioner to release the children's medical information to the other parent; and

   (d)the parents authorise by this Order the children's medical and other health professionals to give each parent information about the children's treatment, at that parent's cost. 

THE COURT ORDERS BY CONSENT THAT:

1. The mother do all acts and things necessary to prevent [X] from obtaining further piercings to her body for at least three years.

THE COURT ORDERS THAT:

1. Otherwise all extant applications are dismissed and the matter removed from the List.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2750 of 2013

MS PINTO

Applicant

And

MR WILHELM

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant mother making application to the Court on 11 April 2013 for an abridgement of time in respect of the hearing of her application, in circumstances where the Respondent father had over-held one of the parties’ two daughters, namely, [X] born [in] 2000, and the mother sought her recovery.

2. On 24 April 2013, the Court ordered the father return the child, [X], to the residence of the mother by 10pm on the day following, and the Court noted that the parties would commence a form of dispute resolution, which had not been undertaken at the time of the filing of the Application.

3. On 28 May 2013, the Court made Orders that the parties’ two daughters [X] born [in] 2000 and [Y] born [in] 2001 live with their mother, until further order.

4. The Court further ordered a family report be prepared, pursuant to s.62G(2) of the Family Law Act 1975 (Cth) (‘the Act’), and that the matter be adjourned to this date for final hearing. The Orders made that day also provided that the mother ensure the children allow their father access to their respective Facebook sites.

5. The matter proceeded this day with the mother relying upon her Initiating Application filed 11 April 2013 and affidavits sworn by her on 10 April 2013 and 22 May 2013.  The mother had also sworn a further Affidavit, by way of her Affidavit of evidence-in-chief, which she had forwarded to the Court for filing, along with three copies of the original document.  The Court’s Registry had returned the documents to the mother for a purpose, and she had subsequently returned them to the Registry.  The mother had failed to keep a copy of her Affidavit, had not served an unsealed copy on the father, and the Registry had not received the returned documents.  In those circumstances I gave the mother leave to adduce oral evidence in the witness box this day, with the father having an opportunity to stand the matter down, should he so desire, to consider the evidence of the mother and thus afford him procedural fairness.  The father did not require any additional time.

6. The mother also relied on affidavits sworn by a close friend, namely, Ms A, with those affidavits being sworn on 10 April 2013 and 22 May 2013.  Although Ms A, who resides in [M] in the State of Victoria, was present at Court this day, the father did not require her for cross-examination, and understood the contents of her affidavits were thus unchallenged by him.

7. The father filed a Response on 22 April 2013, and he relies on that, together with affidavits sworn by him on 22 April 2013 and 27 September 2013.  He also relied upon an Affidavit sworn by Ms G, his de facto partner, on 22 April 2013.  The content of Ms G’s Affidavit was not particularly challenged by the mother, although Ms G entered the witness box and adopted the contents of her Affidavit, and answered some questions asked of her by me.

8. In addition, there was before the Court the Family Report of family consultant, Mr U, dated 1 September 2013. Mr U was required for cross-examination by the father. The mother did not challenge the recommendations made by Mr U nor take issue with the contents of that report.

9. The father also tendered in evidence, as exhibit ‘F1’, two ‘selfie’ photographs placed on Facebook by the parties’ daughter, [X].

10. These Reasons are delivered ex tempore. Statements of facts in these Reasons are findings of fact on the balance of probabilities.

History

1. The father was born [in] 1971 and is now aged 42 years.  The mother was born [in] 1969 and she is now aged 44 years.  The parties resided in a de facto relationship between approximately 1993 and 2004.  During this period their two daughters, [X] and [Y], were born.  [X] and [Y] are now 13 and 12 years of age, respectively.  The mother has not re-partnered and resides in the country town of [M] in the State of Victoria.  The father has re-partnered, and he resides with Ms G and one of her two sons, [Z] who is aged 14 years.  Also in the mother’s household is a child of a previous relationship, namely her son, [D], who is now aged 22 years, and in employment.

2. Although the mother, in her application, applied for sole parental responsibility in respect of the parties’ two daughters, at trial she indicated that she sought specifically that the children continue their residence with her, and she was happy to consent to an equal shared parental responsibility order in respect of the parties’ two daughters.

3. The father, in his Response filed 22 April 2013, sought a final order that the mother and father have equal shared parental responsibility in respect of the children and, accordingly, that order was made by consent in the proceedings this day.  Although that order has been made, both parties agree that it is not reasonably practicable, given they reside in differing States, for the children to spend equal time with either parent or, indeed, substantial and significant time beyond that which can be provided for in school term and Christmas holiday periods.

4. This application proceeded as one of competing residence applications.  The father determined to have the parties’ children reside in [omitted] in the State of Queensland with he, Ms G, and Ms G’s son, [Z]. The mother sought that the children continue to reside with her, as they have done throughout their life and, in particular, since 2004 when the parties separated.

5. There are some significant difficulties in the father succeeding in his application.  In the main they are:-

   a)on his own evidence he and the child, [Y], have a poor relationship and, in the orders sought by him, he desired that there be what he referred to as “reunification counselling” for the child, [Y], so as to effect some form of workable parent/child relationship;

   b)the children have lived for nine, nearly 10, years in the sole care of their mother, with little time spent with their father.  Their father informed the Court this day that in that period of time he had been through the “ringer” himself, and that it had taken him almost 10 years to be in a position to present himself as a potential carer for the children.  He had in the intervening period worked “seriously hard” to achieve the degree of financial security that he now has, and he conceded that he had seen little of the children in that extensive period of time.  His desire was now to give the children the opportunity of living with him;

   c)Mr U recommended, in his Family Report of 1 September 2013, that the children continue to live with their mother and spend time with their father on an as agreed basis, for the reasons as set out in that Report.  He noted in that Report that the father indicated at that time that he would not proceed with his application.  The father however resiled from that statement of intent, and partook in the proceedings this day.

6. When the parties first met, the mother was living in [S] and the father was living at [P].  At the time of the parties’ separation, they were living in Darwin, as the father had been posted there in his employment.  Following separation, the mother returned to [S], taking the children with her.  She did so in order to be close to her family.  Following the mother and children’s return to [S], the father remained in Darwin for some years.  The children travelled to Darwin once in that time, to spend time with their father around a Christmas period. 

7. In 2010, the father was reposted to [P].  When he first returned, the mother permitted him to come and stay at her home so that he could spend time with the parties’ daughters.  After a time, the father commenced to reside with Ms G, and the children commenced to spend time in that household each second weekend.  That continued for a period of time, being approximately 12 months, with the children’s visitations then being reduced to approximately once each month. The father’s evidence was that the mother commenced to be erratic in changeover in 2010, and that he was also facing difficulty in sustaining a regular regime of telephone contact with the two children.  The father did spend some time over the Christmas period at the end of 2010 with the children. 

8. On 26 February 2011, the father relocated from Victoria to South East Queensland to help care for his mother.  The father did not see the children throughout 2011 until its end when they spent from 23 December 2011 to 15 January 2012 with him in his household in Queensland.  The children did not spend any time at all with their father in 2012.  He claims to have been unable to afford the airfares for the children to travel to Queensland.  His evidence is, that whilst he has not been able to spend a lot of physical time with his children, he has been able to regularly communicate with them via Facebook and a number of telephone calls, which he arranged through the wife’s sister.

9. In March 2013, the father and mother made arrangements for the child, [X], to spend a week of the Easter holiday vacation with the father.  The younger daughter, [Y], did not wish to go, and so only [X] made the trip.  [Y] had a problematic relationship with her father prior to that time, having not enjoyed the earlier and last face-to-face contact she had had with her father.

10. The mother and father agreed that the father would pay for [X]’s trip to Brisbane and the mother would pay for her return flight home.  The father sent [X]’s ticket down to the mother a week before she was scheduled to travel on 28 March 2013.  Around that time, the mother and father had an argument on the telephone, as the mother had indicated that she may not allow [X] to go and spend holidays with her father because she had got into some trouble with the local police and at school. 

11. During that discussion, the mother told the father that she was having problems with [X]’s behaviour and struggling to look after her.  She had recently given up her [omitted] job, which she undertook at night, in order to ensure that she was home to properly supervise and to care for [X] and [Y].  The mother has now obtained work as a [omitted] working from 9am to 11am and 3pm to 6pm, three or four days each week.  The mother does receive child support payments from the father in addition to her modest income, although there has been some past issue between the parties as to the accumulation of arrears.

12. It is clear that [X] has had some personal difficulties, in particular, in the 2013 year.  She commenced high school and was causing trouble at the school.  She had also broken into the [M] Primary School with friends, and the police had brought her home.  They had cautioned her.  The mother advised [X] that she would not tolerate further behaviour of that kind but proceeded to allow her to travel to visit her father and spend the holiday period with him.

13. On 28 March 2013, the wife’s friend, Ms A, drove [X] to the airport to catch her flight to Brisbane.  Later that day, the mother got a call from [X] confirming that she had arrived safely.  On 1 April 2013, [X] rang Ms A and told her that she would not be returning home on her scheduled flight of 4 April 2013 and that she wished to stay in South East Queensland with her father.  This news very much upset her mother and younger sister, [Y].  The children have a close bond and have always resided together.

14. The mother alleged the father did not allow [X] to have any contact with her from 28 March 2013 until 9 April 2013, when [X] rang her mother and [X] was crying.  [X] said to her mother that she wanted to come home but that the father would not let her, and that he had enrolled her at a local school in Queensland.  Certainly, he had enrolled her at the [T] School, although he denies that the child wished to return to her mother’s care.  His evidence was that [X] was happy in that time, thrived in his household and conveyed to him a history of neglect of her by the mother, and emotional abuse of her.  These matters were denied by the mother. The mother was required to attend Court and obtain a Recovery Order for the return of [X] to her care.

15. The mother’s evidence was that the child, [Y], was very upset that her sister had not returned home and that her father had separated them in that way, and chosen [X] above her.  The father was not concerned by the separation of the siblings.  He showed little insight in this regard. He said, as to [Y]’s views, that he was not sure what they were and that “[Y] does not willingly talk to me”.

Consideration

1. Mr U noted that the parties, whilst together, lived in several locations in Australia because the father was [occupation omitted].  He noted that since their separation in 2004 and their commencing to reside in separate States, the children had seen their father but that it had been inconsistent and at times problematic, with [Y] ultimately refusing to have much to do with him.  He noted that since the Recovery Order was made in April this year, the children had not seen their father and nor, at the time of the preparation of the Report, had they spoken to him for some time.

2. The father indicated to Mr U that he would not be proceeding with the matter, and that the issues raised by him in the proceedings to that point in time related to the safety and wellbeing of the children.  Mr U noted that maybe there would be some positive outcomes after all, as the mother stated that she had already taken steps to address some of the concerns identified by the father. 

3. The mother has, in fact, engaged in a parenting course and has also attended and completed an anger management course.  The father said that he would be willing to engage in a parenting course, but that he was not willing to do an anger management course nor saw any need for it.  In respect of the children engaging in any counselling sessions, with or without him, he considered any such order to be unnecessary because, in his view, counselling was “superfluous” and the children would be better engaging in physical activities with him, and build up their confidence in, and communication with, each other in that way.

4. The father works as [omitted].  He was, and is, disenchanted with the legal process and submitted to the Court at the conclusion of the proceedings today, when told that the children would continue to reside with their mother, that he had been “vilified”, and wrongly so.

5. Everything about the application of the father showed a breathtaking lack of insight into the best interests of the children being served.  Although the father raised numerous concerns about the safety and wellbeing of the children, and the adequacy of the care and supervision their mother had been providing, he did not proffer anything by way of support to the mother and/or children to improve the situation, save a wholesale relocation of them from their mother’s household in Victoria to his household in South East Queensland.  The fact that they had always lived with their mother he saw as a negative, albeit he has been unavailable to care for them for the last nine years. He has been engaged in his employment to a significant degree, and the mother has been engaged, in effectively a sole capacity, with the rearing of the parties’ children.

6. The mother acknowledged to Mr U that she had been struggling in her role as carer for the children.  No support in that role has been forthcoming from the father. She advised that managing [X], in particular, had not been easy and that they had clashed over what comprised acceptable limits and other behaviours as well.  The matters raised by the father are, it was agreed by all, troubling and require urgent attention. The mother is endeavouring to address those issues. 

7. The mother’s evidence was that [X] attends counselling at school weekly, and has done so since her return from her father’s place at the time of the over-holding of her by him.  She also commenced to attend upon an organisation called ‘[H]’ approximately one month ago, and sees a psychologist there.  She is in year 7 at [M] High School, and has commenced to re-attend school for half days.  The mother took her to attend upon a nurse and doctor some two months ago, and is willing to enter into a consent order that she do all acts and things necessary to prevent [X] obtaining further piercings to her body for at least three years.

1. The mother’s evidence was also that she had arranged counselling for [Y], whom she described as an angry little girl who felt rejected and unwanted by her father.  [Y] also attends upon medical professionals at the organisation called ‘[H]’ for her anger and mood swings.  She attends upon a general practitioner in [M].  She is also undertaking counselling at school. Her mother’s evidence is that [Y] feels that her father chose [X] over her, and that she has been left out by him.

2. Mr U referred in his Report to the father speaking with the children on 8 July 2013, and denigrating their mother to them by referring to their mother as “white trash”. The father conceded in evidence this day that he, in fact, did refer to their mother in that manner, and I observe his demeanour in respect of that admission to be forceful and entirely without regret or remorse.  When asked by the Court why he referred to the children’s’ mother as “white trash” his response was “Because she is”.

3. It is clear, on his evidence, that the father’s attitude to the mother is one of open hostility; that he undermines her care of the girls; and that he has absolutely no regard for her personally or in her role as primary care-giver and attachment figure of the girls.  He referred derisively and irrelevantly at one stage of the proceedings – completely out of context – to the mother thinking that pole dancing was an Olympic sport.  His view of pole dancing is that it is performed by scantily-clad women in bars. He does not contemplate it being in the context of a gym exercise for fitness, or a gymnastics pursuit being the manner in which it has been engaged in by his daughters. Throughout 2012, the children were competing in callisthenics and both enjoyed that sport. 

4. When interviewed by Mr U, [X] confirmed that the issues that had made her want to remain with her father in Queensland were no longer as pressing as they once were, and that some of them, such as her unhappiness at school, were being addressed by her mother.  The child admitted that she missed her sister, [Y], and her half-brother, [D].  She wished to continue her residence with her mother but wanted to have a relationship with her father, which she hoped could occur by way of visitation during school holidays.

5. [Y] indicated that she had always been happy to live with her mother and that her relationship with her father had been problematic for some time.  Mr U noted, at paragraph 29:-

   “…There are some evident, long-standing tensions between Mr Wilhelm and [Y] of unclear origin. It is worth noting that [Y] felt further rejected and hurt when Mr Wilhelm returned [X] to Ms Pinto’s home, as ordered, but did not even stop to ask after her. Nonetheless, this child indicated she would speak with him Mr Wilhelm if he phoned.”

6. [Y] also told Mr U that whilst she felt fine about [X] going to visit her father by herself, she was upset when [X] was not returned.

7. Mr U’s opinion was that it would be very troubling were [X] and [Y] to be separated.  There were many sounds reasons for preserving the sibling bond.

8. Mr U acknowledged that the father had concerns about the safety, quality of care and level of supervision the mother was providing for the children.  Mr U noted the mother and the children to be a very vulnerable family, and [X] at risk, if not out of control.  It was regrettable that the school had not been able to provide the mother with a greater measure of support.  Mr U also noted that the Department of Human Services, despite receiving notifications, had failed to take any action to, for instance, ensure that [X] attended school regularly.

9. Mr U noted that the mother proposed seeking help to address the problems in the family and that it was very encouraging that she was doing so. Recently, when she had a problem with [X] and some of her friends, she called the police to her home to address the issue.  She then removed [X]’s phone from her by way of disciplining the child, and in an appropriately measured response to the offence.

10. Whilst Mr U noted some very real risks for [X] and perhaps later [Y] as well, which included progressively more serious delinquent behaviours, becoming sexually active, promiscuous at a very young age, the possibility of leaving the home in anger if conflict escalates, he also noted that the raising of three children as a single parent with very limited assistance from the father had not been easy.  He said, at paragraph 38, that:-

    “One suspects that Ms Pinto has done so to the best of her capacity and she needs to be commended for this. Mr Wilhelm has provided Ms Pinto with some occasional respite when the girls have spent (limited) time with him but his inconsistent presence has also meant a measure of uncertainty and destabilisation.”

11. The mother claims the father has undermined her authority and I find his denigration of her has done just that.  His referring to the mother as “white trash” negatively impacts upon the children, and I am not confident, given his evidence and demeanour in the courtroom, that he would be able to restrain himself from similar comments, despite the existence of a non-denigration order which I shall make, into the future.  His attitude to the responsibilities of parenting is very concerning.

12. The mother’s evidence is that she accepts that she is having some difficulties with the children, but she is positive of progress being made with respect to their relationship and the children’s difficulties.  Her view is that the children are entitled to express their opinion, and that she should not be overly authoritarian with them. In response to the father’s criticism of [X]’s, in particular, Facebook entries the mother agreed that some of the remarks made by the children on their Facebook were inappropriate, and she noted she penalised the children by again removing their mobile phones from them.  She said they, however, access Facebook from their friends’ computers and phones, and that she is not really in a position to control their use of Facebook further.  She has indicated to the children that they need to be careful on Facebook and that what they write “will come back and bite them”. Whilst the mother conceded to the father that she has difficulties in disciplining the children, she indicated to him that she would not hit them and that for inappropriate behaviour she grounded the children and removed their phones.  

13. Despite the evidence as set out in the Family Report and the history of care provided to the children by the mother; the father’s own acknowledgement that he has not been there for nine years; and the father’s working hours being currently eleven and a half hour days, five days a week, and each second Saturday until 2.00pm; the father proceeded with this application, showing a significant lack of insight into the needs of the children and their connection with their mother.

14. The father’s reason for the bringing of this application now, is that he feels the time has come when he could “mount this activity with some sort of success”.  He described himself as having had to “crawl his way out of a gutter” and to complete his own development before this time.  He heard Mr U’s evidence that the father should come to Victoria as often as possible to see the children, but the father’s view was that, at best, he could perhaps only once every six months.  He did not see it as economically viable for him to make any other attempts.  He desired the children travel to him and the mother share the cost.  If that was limited to school holiday time, then that would be the extent of the time he would spend with them.

15. The mother’s evidence was that the father should be in substantial attendance during those times, and that the children should not be predominantly cared for by Ms G.

16. I accept that the children’s best interests will be served by their father being in substantial attendance, given the limited time they have to spend face-to-face time with him.  He clearly needs to resolve his relationship with [Y], and for the children to travel to Queensland with their father to be mostly absent and away at work, would not promote the father’s relationship with the children and would not make the children feel that their father was available to them.  Mr U noted in evidence that the father had, unfortunately, not been as available to the children as perhaps he should have been. 

17. The photos the father tendered in evidence, and in relation to which he said that his daughter [X] was posing in a provocative and inappropriate manner were said by the mother to be simply “selfie” photos that all children take.  The photos were of [X] and her best friend and, on the mother’s evidence, entirely innocent.

18. I accept the mother's evidence that the father has been abusive to her over the telephone and that she, therefore, has no wish to communicate with him in that manner.  The father requested that the mother provide a landline phone number, but she has no landline connected to her home.  Given her very limited financial circumstances, the Court will not insist that she obtain a landline.  Each of the children has a mobile phone, and the father is at liberty to instigate a call to either and both of those phones at any time. 

19. The mother and children also attend upon Ms B, a mental health worker at Centacare in [S], to assist them in their family relationship issues.  The mother's evidence that she had a belief that the parties could work together to support the children, even with the father being located in Queensland, was not shared by the father.  His disdain of the mother is so strong and apparent that, for him, the prospect of working with her in any capacity is an anathema. 

20. The mother is assisted in her role as a single parent (given the lack of support provided by the father) by her friend, Ms A.  The mother and children are lucky to have that support.  Ms A is aged 25 years. She feels like a big sister to the children, with their mother being a very good friend. 

21. Ms A entrusts the care of her young sons to the mother from time to time, saying in her evidence that she knows the mother is more than capable of looking after her own children and Ms A's two sons.  Ms A observed a huge change in [Y] from the time [Y] heard that [X] was not returned by her father.  [Y] did not sleep in her room which she shares with her sister.  She did not want friends around and did not want to stay at anyone else's house.  She desperately wanted her sister back and told Ms A that she felt empty and alone without [X].  Following [X]’s return [Y] became very happy, but the episode caused change for both girls.  [X] ceased to be as expressive.  She told Ms A that her father and Ms G had told her she would “not be seeing her mother again.  If she wants to see you she will have to travel to Queensland”, and that [X] could not contact her mother.  [X] noted that her father and Ms G spoke very poorly of her mother and Ms A. 

22. In Ms A's observation, the mother does not drink alcohol, does not take drugs and does not mentally, physically or verbally abuse the children.  She described her as exhibiting wonderful care and consideration toward others, and claimed that what she observed in their family was “love, care and kindness for each other”.

23. When the Court turns to the matters that it must consider in determining the best interests of the children, as set out in s.60CC of the Family Law Act 1975 (Cth), the Court finds that the children are of an age where their views should be given considerable weight. They wish to remain residing together, and with their mother, as they have always done. Their mother's approach to the responsibilities of parenthood far outweigh the father's, in that she has been available to the children in the last nine years since separation when the father has not.

24. In Mr U's expert opinion the father should see his children as often as is possible and travel to Victoria for that purpose in the immediate period ahead.  The father does not contemplate such action on his part.  It is too expensive, too difficult, and unless they relocate to live in his world and under his rules he will do little to support the mother in her care of the children.  In fact, he will no doubt continue his undermining of her because of the highly disparaging view he takes of her.  The continuation of the children’s’ residence arrangement should be the least likely order to lead to further litigation. 

25. I accept the mother's evidence that she has never withheld the children from their father, and the father's own evidence that it has taken him time to get himself to a place where he could contemplate considerable time spent with, indeed, residence of the children.  The children would likely suffer significantly in being separated from their mother, and most certainly have already suffered in being separated from each other.  The father took no account of the emotional distress he caused in his over-holding action earlier in the year.

26. Whilst, pursuant to s.60CC(2) of the Act, the Court must consider the benefit to the children of having a meaningful relationship with each of their parents, the Court must also consider the need to protect them from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I do not find that the mother has neglected the children, nor that she has caused them psychological harm as a result of any abuse, neglect or family violence. The mother has struggled in her care of the children in recent times and has taken steps to ameliorate the family difficulties being experienced by the family unit. The father's absence from the children's lives has clearly had an adverse impact on his relationship with [Y] and the current difficulties she is experiencing, although I have no medical evidence pertaining to such difficulties. It is important for the children to have a meaningful relationship with each of their parents and it is to be hoped that the father promotes such a relationship and makes himself available so that it can be established and nurtured. He has failed to do so to the present time. On the evidence the Court cannot be confident he will regularly spend time with the children and be supportive of their relationship with the mother. It is only when he is able to do such things that he will finally promote their best interests. Both the mother and children desire that the father make these necessary changes. The Court will make the orders sought by the mother.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  8 November 2013