Prime and Butterworth

FAMILY COURT OF AUSTRALIA

PRIME & BUTTERWORTH

[2008] FamCA 572

FAMILY LAW – CHILDREN – Children’s views – where children live with their father – mother stops seeing children in 2003 – occasional contact since then – where 15 year old boy strongly resists relationship with his mother – where 13 year old girl wishes to live with father – children interpret mother’s failure to maintain contact with them as repudiation of their relationships – where all older siblings disturbed – mother attributes elder children’s difficulties to father’s abusive behaviour and lacks insight into her role in family violence and parties dysfunctional parenting – all children victims of parents appalling relationship - ordering children to live with the mother involves grave risk of harm – mother lacks insight into children’s circumstances - mother and daughter to spend time and communicate with each other – mother’s application children live with her dismissed

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61C, 61DA(2), 61DB, 64A, 65AA, 65DAA, Pt VII
Evidence Act 1995 (Cth) s 140(2)(c)

Goode and Goode (2006) FLC 93-286
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
A v A (1988) FLC 92-800
R v R (Children’s Wishes) (2000) FLC 93-000
H v W (1995) FLC 92-598
Mazorski v Albright (2007) 37 Fam LR 518

APPLICANT:

Ms Prime

RESPONDENT:

Mr Butterworth

FILE NUMBER:

(P)PAF

2190

2000

DATE DELIVERED:

11 July 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Parramatta

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

16, 17, 18, 19 & 20 June 2008

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Wong

SOLICITOR FOR THE RESPONDENT:

Malouf Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Karen Haga and Assoc.

Orders

That Orders 7, 8, 9 and 20 made in this Honourable Court on 4 March 2002 are discharged.
That all orders made after 4 March 2002 in Family Law Act proceedings between these parties concerning the children B born … November 1993 and T born … April 1995 are discharged.
That the father have sole parental responsibility for the children B born … November 1993 and T born … April 1995.
That until T turns 15 years she shall spend time with the mother as follows:
(i)During school holidays no less than twice annually at the mother’s home for at least one week on each occasion;
(ii)During school holidays no less than twice annually at the maternal grandparents Sydney home for at least one week on each occasion;
(iii)at such other times as the parties agree.
In the event that the mother fails to return T to the father in accordance with these orders, all orders whereby the mother is entitled to spend time with T are discharged.
The mother shall give the father no less than 28 days written notice that she wishes to spend time with T pursuant to order 4.
That within seven days of receiving the mother’s written notice, the father shall give the mother written notice of the dates upon which T will spend time with her mother.
The mother shall provide T with return air tickets, copies of which she shall provide by email to T and/or the father.
The first occasion upon which the mother and T spend time together pursuant to order (4) shall take place during the end of Term 3, 2008 NSW school holidays.
For the purpose of changeover the father shall cause for T to be delivered to her maternal grandparents, or some other agreed place, and collect her from the same place.
Within fourteen days the father shall give the mother T’s current mobile telephone number. In the event T’s telephone number subsequently changes the father shall notify the mother of the new within seven days. This order expires upon T turning 15 years old.
The father shall give his written authority to any school either child attends so that the mother is at liberty to make arrangements to receive copies of school reports and other information routinely made available to parents.
The father shall keep the mother informed in a timely manner of major long term decisions which materially affect the children’s health and well being.
In the event that a party or the Independent Children’s Lawyer seeks to make any costs application, that application shall be made in writing within 28 days in relation to which the application is to be listed before me by arrangement with my Associate.
Subject to the above order all outstanding applications are dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
At the expiration of one month, unless there is an appeal, all documents produced pursuant to subpoena shall be returned to their own

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: (P)PAF2190 of 2000

MS PRIME

Applicant

And

MR BUTTERWORTH

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the future living arrangements for the parties’ two youngest children, B and T. B is almost 15 years old and T recently turned 13. Following a nine day hearing, in March 2002 the Court placed the children in their father’s care. This meant that all five of the parties’ children were reunited albeit the younger two left the parent with whom they had always lived. When the first hearing started both parties sought orders that all five children lives with them. However by the time that hearing finished the mother agreed that the elder three children should remain with their father. These children were alienated from the mother and she could see no hope for persuading them to even spend time with her. Thus, notwithstanding the mother believed that the father was physically, verbally and emotionally abusive of the elder three children, she consented to his application that they live with him. She feared, and says history has proved her correct, that if B and T went into their father’s care, her relationships with them would be undermined and possibly destroyed. In this hearing the mother emphasised that the three elder children are seriously disturbed which she submits is primarily the result of the father’s poor parenting. The mother argues that B and T should be removed from the father’s care before they are irretrievably harmed and thereafter not see him.[1]
[1] Exhibit “A2”
The father opposes the mother’s application. While he agrees the elder children are disturbed, he denies responsibility for this rests solely with him. The father perceives that the elder children’s difficulties are partly of their making but primarily arise from the impact of the parties’ dysfunctional relationship. Because the younger children were young when the parties separated, he says the emotional and psychological damage to them from the parties appalling relationship is less than it caused their older siblings. He says the mother refused to accept the Court’s decision, viz a viz the younger children’s living arrangements and, in the years since she has maintained a campaign to undermine the children’s relationships with him and rejected the children when they refused to embrace her view of the family’s circumstances. Since mid 2003 each time the younger children visited their mother, she failed to return them. Other than during the family report process, B has not seen his mother for three and a half years. Essentially, the father says the mother barely knows B and her insistence that he lives with her is driven by a desire for vindication that she is the better parent. As recently as April 2008, T ran away from her mother, pursuing police assistance in order to return to her father. So strong are the children’s desires to live with their father, he submits that there are no orders which will keep the children with their mother and away from him. Inherently the conflict involved in such an outcome involves a grave risk to the children.
Because the mother resolutely refuses to return the children to their father, he says all orders by which the children spend time with her should be discharged. Given the children’s ages, the father says that if the children wish to see their mother only then should they be required to[2].
[2] Exhibit “C”
Because of the issues involved an Independent Children’s Lawyer was appointed and a family report ordered. In her family report the Family Consultant recommends that the children live with their father. Upon being made aware of events subsequent to her report the Family Consultant’s opinion was unchanged. It is her opinion that the father has a closer relationship with the children than their mother and concludes they genuinely wish to remain in his care. Concerning the children’s relationship with their mother, the Family Consultant opines that there should be no orders requiring the children to spend time with her and that it is preferable that the children decide when and how they see her. Finally, the Family Consultant recommends that the father resumes counselling to address his role in contributing to the impact of the family violence and poor relationship dynamics to which the children have been exposed.

The evidence

The mother relied upon the following evidence:
·Her affidavits filed 22 August 2008, 8 February 2008 and 26 May 2008 and her oral testimony.
·Affidavit of the maternal grandmother filed 26 May 2008 and her oral testimony.
·Affidavit of Ms G filed 16 June 2008.
·Statement of Mr Prime[3] and his oral testimony.
[3] Exhibit “L”
The father relied upon the following evidence:
·His affidavits filed 25 October 2007 and 29 May 2008 and his oral testimony.
·Affidavits of Ms H filed 25 October 2007 and 29 May 2008 and her oral testimony.
The Independent Children’s Lawyer gave evidence concerning her recent discussions with T[4] and called the Family Consultant and Senior Constable C. Senior Constable C gave oral evidence and adopted police records dated 26 April 2008.[5] The Family Consultant adopted her report dated 17 August 2007.[6] The Family Consultant’s evidence demonstrated sound knowledge of the relevant facts and issues. To a considerable extent her observations of the parties coincide with my own. Although I disagree with minor aspects of her ultimate recommendations, concerning the ultimate issue I am satisfied her recommendation is in the children’s best interests and warrant significant weight.
[4] Exhibit “V”
[5] Exhibit “H”
[6] Exhibit “B”
There are voluminous exhibits. By agreement, I received into evidence Justice Collier’s judgment delivered 4 March 2002. His Honour’s judgment provides the factual foundation for events preceding it. This hearing focused on subsequent events.

Background facts

The father was born in October 1963 and is 44 years old.
The mother was born in March 1970 and is 38 years old.
The parties commenced cohabitation in 1985.
The parties eldest child K was born in September 1987. K is 20 years old and lives with her boyfriend.
In October 1988 the parties married.
Their second child, Y, was born in January 1989. Y lives independently from both of his parents.
In 1989 the father pleaded guilty to assaulting the mother.
In February 1990 the parties third child, J was born. J recently had a baby and lives independently from both her parents.
In November 1993, B was born. B lives with his father and has not seen his mother, other than in August 2007 for the family report, for three and a half years.
T was born in April 1995. T last saw her mother on 30 April 2008 on which occasion she asked Police to help her return to her father.
The parties separated for the first time in July 1996. At separation police obtained another Apprehended Violence Order (“AVO”) for the mother’s protection from the father. The five children remained with the mother.
In October 1996 the parties reconciled.
In February 1997 the father pleaded guilty to contravening the AVO referred to above and driving dangerously. The driving dangerously conviction related to the father’s pursuit of the mother and his attempt to avoid apprehension. On appeal, his sentence was reduced to periodic detention. This was the catalyst for another separation and a further AVO for the mother’s protection. All five children remained with the mother.
In May 1997 the mother moved house. B and T remained in her care. K, Y and J remained with the father.
In June 1997 the mother pled guilty to assault occasioning actual bodily harm. The mother stabbed the father in an episode Collier J found, “was not merely self defence on her part”. T recalls seeing this incident.
In January 1998 the parties resumed cohabitation.
The parties separated again in March 1998. On this occasion the mother, B and T remained in the family home and the father, K, Y and J moved into rental accommodation. During the same month, the father was charged with breaching an AVO for the mother’s protection.
The parties finally separated in November 1998. At separation all five children remained with the mother.
In November 1999 another AVO was made for the mother’s protection from the father.
On 7 January 2000 the mother stabbed the father. This occurred during an argument in which the court was satisfied that “there was some threat of violence by the husband to the wife”. In order to protect the mother from the consequences of her actions, the father informed the hospital he accidentally injured himself. Not long after this incident K went to live with the father. Y joined him soon afterwards.
While moving home, in April 2000 the mother left all five children with the father. Once she was settled the mother asked for the children’s return. The father refused and with police assistance she retrieved the three younger children.
On 12 September 2000 the father commenced proceedings seeking residence of all children.
On 9 October 2000 a decree nisi of dissolution of marriage was ordered which became absolute one month later.
In November 2000 the mother married Mr Prime.
On 13 November 2000 interim orders were made providing that K and Y live with the father and the three younger children live with the mother. These orders included provisions for contact.
On 18 January 2001 the mother was found to have contravened parenting orders which required her to make the children available for contact to the father. The breach related to the mother’s failure to allow the children to have contact with their father on 13 November 2000.
In April 2001 the mother was found to have again contravened orders requiring her to provide the children for contact with their father.
On 24 July 2001 interim orders were made for J to live with her father.
Following a nine day hearing which commenced on 30 April 2001 and finished on 13 September 2001, on 4 March 2002 Collier J made the following orders:
1.      That all existing parenting orders in relation to the children [K], born […] September 1987, [Y], born […] January 1989, [J], born […] February 1990, [B], born […] November 1993 and [T], born […] April 1995, be and they are hereby discharged.
2.      That the said children reside with the husband.
3.      That the wife deliver the said children to the husband at 12.00 noon on Saturday, 9 March 2002 at the [G] Police Station. The husband is to attend to collect the said children without any of the children [K], [Y] or [J] being in his company at such time.
4.      That the husband be responsible for decisions concerning the day to day care, welfare and development of the said children.
5.      That the wife be permitted to send cards, letters and gifts to each of the children.
6.      That upon receipt of any such card, letter or gift, the husband shall make the same available to the child to whom it is addressed, and shall assist the child in any way that the child wishes to respond to such card or letter, or to acknowledge any gift.
7.      That the two youngest children, [B] and [T], have contact with the wife as follows:
(a)For one half of each short school holiday period in each year, being the first half in years ending in an odd number and the second half in years ending in an even number, commencing with the school holidays between 1^st and 2^nd Term in the year 2002.
(b)For the purpose of these orders, the first half shall mean the period commencing at 12.00 noon on the Saturday immediately after the last day of term and concluding at 12.00 noon on the day marking the mid-point, and the second half shall mean the period commencing at 12.00 noon on the day marking the mid-point and concluding at 12.00 noon on the last Saturday before the commencement of the next ensuing school term.
(c)For a period of three weeks in each Christmas school holiday period in each year, commencing at 12.00 noon on the first Saturday after New Year’s Day and concluding at 12.00 noon on the Saturday three weeks later.
8.      That for the purpose of contact, the husband shall deliver the children to the [G] Contact Centre by no later than 11.45 am on the days specified for the commencement of contact, and shall thereafter immediately leave the Centre. The wife shall collect the children at 12.00 noon from the Centre. At the conclusion of contact, the wife shall deliver the children to the Centre at 11.45 am, and the husband shall collect the children no earlier than 12.00 noon.
9.      That both parties do all things and execute all documents necessary to procure enrolment of themselves and the children with the [G] Contact Centre for the purpose of that Centre facilitating contact changeovers.
10.    That in the event that, for whatever reason, the parties are unable to use the facilities of the Contact Centre, then liberty is granted to either party, or the children’s representative, to relist the matter upon 48 hours’ notice in respect of that issue.
11.    That the husband be and he is hereby restrained from discussing with the children these proceedings.
12.    That each party is hereby restrained from discussing the other party or denigrating the other party to or in the presence of the said children.
13.    That the husband forthwith do all things as are required and sign all consents and other documents necessary to ensure that he and all children attend the local Area Health Service to receive such counselling and therapy as that Service may advise, to ensure that the children attend contact. The husband shall ensure that the children and each of them attend any such conferences appointed by the appropriate counsellor for the purposes of carrying out counselling and therapy.
14.    That the wife be and is hereby restrained from administering or threatening to administer to the said children [B] and [T] any form of corporal punishment or physical chastisement whatsoever.
15.    That the use her best endeavours to ensure that [Mr Prime] administers no form of corporal punishment or physical chastisement to either of the said children.
16.    That the wife attend upon her local Area Health Service to receive such counselling and therapy as that Service may advise in relation to her care and control and her ongoing relationship with all or any of the subject children.
17.    That pursuant to s 656DA(2), the particulars of the obligations of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure ‘A’ and these particulars are included in these orders.
18.    That liberty is granted to either party and the children’s representative to relist the matter on seven days’ notice in respect of the issue of costs.
19.    That save and except for the issue of costs, all outstanding applications and cross-applications by and they are hereby dismissed.
20.    That these proceedings be removed from the Pending Cases List.
21.    That all material produced on subpoena be returned.

The mother delivered the children to the father at G Police Station in accordance with the orders. From that time until January 2003, the children saw her in accordance with the orders save only that the parties agreed to effect changeover at G Police Station and not a contact centre.
In accordance with the orders the father delivered the children to the mother on Saturday 5 January 2003. By this time he and the children had moved from the former matrimonial home and were living with his parents at a suburb of Brisbane. The orders required the mother to return the children at 11.45 am on 26 January 2003. The father arrived at the changeover point only to discover the mother and children were not there. Having contacted the mother the father waited until she returned the children at 7.00 pm. The mother gives no explanation for her failure to return the children on time.
B and T next had contact with their mother during the April 2003 school holidays. The father delivered the children at the appointed time on 12 April 2003. On 19 April 2003 he returned at the appointed time to receive the children. Having waiting two hours, the father telephoned the mother who told him she would “.. return them when I’m good and ready”. The mother returned the children five days late, on Thursday 24 April 2003. She gives no explanation for her failure to return the children on time.
By July 2003 the mother had moved from G on the New South Wales central coast to M, further north on the coast. Shortly before the July 2003 school holidays, the parties spoke and at the father’s request, the mother agreed that her contact with the children would start on Sunday rather than Saturday. It was agreed that the children would return the following Sunday, thus ensuring they had the requisite one half of the school holidays with the mother. Because his car broke down, the father arranged for a friend, Mr DA, to deliver the children to the mother on 7 July 2003. During the week the children were with the mother, the father spoke with the mother’s husband concerning the arrangements for the children’s return. He was advised that unless he attended personally, the mother would not hand the children over. Work commitments made it difficult for the father to attend and he arranged for Mr DA to collect the children. The mother refused to hand the children to Mr DA and returned with them to M. When the father contacted the mother concerning the children’s non-return, the mother informed him that she would not return them and commented she would “see you in court”.
On the father’s application this court issued a recovery order for the children’s return on 25 July 2003. They were returned at about this time. Following the children’s return the mother decided she needed to step out of what she believed was an impossible situation. Simply put the mother believed that in the father’s care the children were neglected and exposed to family violence a situation she felt unable to return them. Without explaining her decision to the children and the father the mother simply stopped. It is highly likely that the children interpreted her stance as abandonment. The children did not see their mother again until late 2004.
By late 2003 Y was increasingly out of control and he was expelled from W High School. He ran away from his father’s home and for a time, stayed with the father’s sister Ms IS. Ms IS and the father are estranged. At some stage Y left Ms IS’s home and moved into a youth refuge. He has been in and out of refuges ever since.
So as to give them a fresh start on 7 February 2004 the mother and her husband moved to N. N is about two hours from O in northern Queensland. It appears likely that the mother had no plans for face to face contact with the children, at least for the short to medium term.
By arrangement with the Department of Community Services, and without the father’s knowledge, Y was flown to his mother’s home in about mid May 2004. This was the first time he had seen her in years and unsurprisingly difficulties quickly developed. On 17 June 2004 Y’s Queensland Department of Child Safety case worker attempted to convene a family conference between Y, the mother and her husband. The conference broke down when Y became verbally abusive towards his mother. Provided Y apologised for his misbehaviour and agreed to live by their rules the mother and her husband were willing to have him remain living with them. Y refused to stay and was taken to a youth refuge in O.
The following day Y was interviewed by officers from the Juvenile Aid Bureau and the Department of Child Safety. In this interview Y made allegations that the mother’s husband hit him the previous evening and explained how the conflict between his mother developed during the day. Further investigations by the Juvenile Aid Bureau, including interviews with child protection workers present the previous evening, resulted in their conclusion: “That [Y’s] step-father did not hit him at all and that the problem that triggered the breakdown of the family meeting was [Y’s] attitude and behavioural problems”. The investigators concluded that: “There was no risk of harm to [Y] and he may need to work with a counsellor to work through his behavioural problems”. The later remark is an understatement.
In the Department of Child Safety records[7] the mother explains the incident with Y in the following terms:
The night before the family breakdown [Y] started going off and [the mother’s husband] told him to go to bed. [Y] said ‘no’. [Y] then went into the caravan and was yelling and swearing. [The mother’s husband] took the light bulb out of the caravan and told him to go to bed. The next morning at 10.30 am [the mother] told [Y] to get out of bed. [Y] would not get out of bed and swore at her saying: ‘Fuck you’. He then kept swearing. He then got out of bed and kept swearing at her. [The mother] then poured a cup of water on him. He kept swearing at her and she grabbed him by the shirt and tried to put him outside. He was swinging his arms around and smashed the glass panel in the door with his arm. [The mother] called the police and her husband. The mother reported that: ‘[Y] tried to make a deal with his mother that if he lived with her he would be allowed to smoke and he didn’t have to go to church. The mother said that he would have to go to church with her as she would not leave a 15 year old at home by himself’.
[7] Exhibit “E”
Y was moved into a men’s refuge where he remained for a short time. He has not seen his mother since. Through a third party the father learned Y was living on the streets and he drove to O hoping to find him. In about October 2004 the father brought Y home. While in O Y was charged with stealing a car and presently there is an outstanding warrant for his arrest resulting from his failure to attend court.
By late 2004 the father’s mother was dying. The father and children had lived with his parents from about the middle of 2003 and all were distressed by her failing health. K’s behaviour was increasingly out of control and disrupting the family, including threatening the father’s mother. The father demanded that K leaves the home and, when she refused to go, called police to have her removed. K made her way to her mother where she remained for about one month.
At about the time K arrived back from her mother’s home J says that on 17 November 2004 Y pushed her to the ground and pulled her pants down. Somehow the Department of Community Services were notified of the incident. Department of Community Services officers interviewed J at school on 26 November 2004. The interview took place before J’s father was aware of the incident and without notice to him. In a detailed and well crafted interview[8] J discussed her home life and the sexual assault notification. She was clearly troubled about the conflict in her home between Y and K and spoke favourably about her relationship with her father and her father’s then partner Ms Z’s support. J denied that Y had been sexually inappropriate with her. She explained that sometimes he scares her and that his behaviour makes her uncomfortable. J indicated that if the situation with Y deteriorated she would tell her father and counsellor. At that time J was seeing a counsellor at the Child and Mental Health Unit. J was comfortable with the District Officer’s suggestion they discuss the interview with her father.
[8] Exhibit “I”
During the interview J discussed the stressors caused by the mother: “Always trying to get custody over my little brother and sister”. J told the District Officer: “She [the mother] rings up and says we are abusing her and we are not, she makes up all this stuff, she thinks that we are calling her names, she is our mum, we have to respect her.” From this interview it is clear J is stressed by her mother’s behaviour and comfortable with her relationship with her father.
When he learned of the incident the father was concerned there may have been more to it than J disclosed. At his request Ms Z took J to their family doctor for a medical examination. The family doctor referred them to a local hospital. J refused to undergo an intimate medical examination.
Following a fight between Y and K, K went to her mother. It is unclear whether K went once or twice to her mother. Nothing turns upon whether she went once or twice.
The father’s mother died and her funeral took place in early December 2004. K and the mother returned for the father’s mother’s funeral.
When the paternal grandmother passed away, the father, J and the younger children, together with a significant number of other members of the father’s family were at the hospital. J became hysterical when she learned her grandmother had passed away. The father tried to have J leave the hospital with him and his family. He took her by the arm and against her will, tried removing her from the hospital. His sister Ms IS and her sons tried to stop him. Although the father believed J needed to be at home, he went along with her desire to be with his sister. J was still at Ms IS’s home when the funeral took place. Whilst J was there her aunt learned about the allegation concerning Y’s sexual misbehaviour. The aunt informed the mother of the issue. If the aunt was aware of the Department of Community Services prior involvement and the father’s actions she did not pass this information to the mother.
After the father’s mothers funeral the mother remained in Sydney for a few days. While in Sydney she spent time with J. Apparently J was not speaking to her father and returned with her mother to Queensland. K remained in Sydney and has not seen the mother since.
Initially J and the mother were getting along well. The mother explains that J embraced their Christian lifestyle and appeared to be enjoying her attention. For the first time since the children returned to their father on 25 July 2003, towards the end of school term in 2004, the mother sought contact with them. The mother spoke with the father’s then partner, Ms Z and by agreement, the parties arranged for the mother to collect the children from a contact centre in Sydney. With the younger two children’s arrival, the situation in the mother’s home deteriorated. The mother explains that J was extremely jealous of her younger siblings. J was physically abusive towards them and on numerous occasions used the foulest language to the mother, the mother’s husband, B and T. In late January 2005 the situation in the home deteriorated even further.
Fearing that Y had raped J, the mother took her to a family planning clinic. After J’s consultation the mother was informed the doctor would notify the Department of Child Safety. Although the mother had previously spoken with Department of Community Services officers, she says she was unaware they had already interviewed J. Apparently J did not inform her mother. In response to the notification, in late January 2005 Juvenile Aid Bureau officers contacted the mother and made arrangements to interview J, B and T on 24 January 2005. The mother complied with their instruction that she should not warn the children they were to be interviewed.
On 24 January 2005 the mother took all three children into O where each child was separately interviewed. During the interview, J told police Y: “Pulled her pants down”. The police report that J was extremely reluctant to discuss the matter and refused to continue the interview. She was visibly upset and off tape, police report she said her brother sexually assaulted her. Because J refused to further discuss the issue with police, the mother was advised they could take no further action. Police advised J to seek counselling.
Concerning their interviews with B and T the police records report:
Both [B and T] say that they were quite happy living with their father and had no concerns in relation to their brother [Y]. No further police action is to be taken in this matter. Department of Child Safety to liaise with the children and their mother, regarding obvious child safety concerns, should the children return to live with their father. It should also be noted that during the interview with [T], she disclosed that her mother had told her that if she would talk with police, she would be allowed to come and live with her mother.
The situation in the mother’s home deteriorated further the following day. J was very distressed. The mother describes the incident thus:
…. [T] was sitting on the lounge. [B] had been sent to his room for fighting with the girls [J and T] beforehand. [J] escalated screaming disgusting swear words at the top of her voice, I told [J] to cut that filthy language out as we do not allow that kind of behaviour or language in our house. [J] kept going and then started calling me a filthy slut and so forth. My husband [Mr Prime] stayed out of it up until [J] kept directing her name calling at me. My husband entered the lounge room and used a stern voice with [J]: ‘That may be your mother you’re swearing and yelling at but this is my wife and you will not speak to my wife like that’. [J] then directed her anger towards my husband [Mr Prime] calling him a fucking cunt, a fuck wit and she also said to him: ‘No wonder you don’t see your own fucking kids you cunt.’
In order to contain J the mother took hold of her and holding J’s wrists, one in each hand, the mother pushed her to the floor and then straddled the child, pinning her to the ground. This continued for between 20 and 40 minutes. The mother learned this technique when, in 1996, she and J attended a live-in facility for troubled families and children. The mother explains:
[J] was spitting at me, calling me some disgusting and highly intolerable names such as ‘tunnel cunt, slut, whore and so on.’ She was also yelling the words: ‘I am going to make sure you never see [B] and [T] ever again.’ I kept telling her that I would let her up when she stops her filthy language and calms down. She eventually stopped so I let her up and she went to her bedroom.
Whilst in her bedroom, using her mobile telephone, J dialled 000 and spoke with police. J gave police a distressed account of being hit and hurt by her mother and step-father for about 45 minutes. Police arrived not long after. When they arrived, J was waiting with her possessions at the front of the property. Police contacted the Department of Child Safety and two Child Safety Officers travelled from O to N police station where they interviewed J. J was crying and the Child Safety Officers observed red marks on J’s wrists. The mother caused these marks when she pinned J to the floor.
J gave the Child Safety Officers a version of events different to the mother’s above account. J told the Child Safety Officers that an argument developed between B and the adults, which resulted in the mother’s husband dragging B into a bedroom. J says she saw her stepfather hit B with a closed fist while saying: “Your father is not your real father”. J said she intervened to protect B and the stepfather slapped her across the face. She says both adults took it in turns sitting on her and the stepfather began punching her. J says she vomited from her mother’s weight on her stomach and eventually was beaten with a wok cord.
The mother and the stepfather deny J’s allegations.
Having regard to the gravity of J’s allegations, it is unsurprising that the Child Safety Officers went to the mother’s home because they believed that B and T were also at risk. They were accompanied by two police officers and intended to remove the children. Upon being informed of their intentions, the mother refused them permission to speak with the children. The mother denies being abusive to the Child Safety Officers. She agrees that she was upset and out of control when she kicked one of the police officers in the groin. Her distress at the situation is such that I am satisfied that she ordered the Child Safety Officers off her property and in doing so, swore at them. B heard what was happening and ran to the Child Safety Officers informing them that he wanted to leave with them. T hid behind her mother and was forcibly removed. In his interview with the Child Safety Officers, B confirmed J’s version of events. However, B was in his bedroom for the majority of the incident and did not see, although undoubtedly heard, what occurred between J and the adults.
All three children were placed into temporary foster care. The Child Safety Officers contacted the father, who drove to Queensland and collected the children about one week later. Other than during the July 2007 family report interviews, B has not seen his mother since. Until the weekend immediately preceding this hearing, the mother had not seen J.
Before the Department of Child Safety released the children to their father, they contacted the Department of Community Services. The Department of Community Services informed the Department of Child Safety that it had no child protection concerns about the father and recommended the children’s return to him. The tenor of the Queensland file notes[9] suggests that the Department of Community Services had a reasonable working relationship with the father and that he sought appropriate support from them in relation to the children. The father was interviewed at O offices of the Department of Child Safety and the children returned to him with the officers noting that they had no concerns about the father’s care of the children.
[9] Exhibit “E”
The following day, Child Safety Officers interviewed the mother and the stepfather. The officers report: “That the mother and [the stepfather] were extremely aggressive and inappropriate throughout the interview, yelling and swearing at CSO’s”. The Child Safety Officers terminated the interview because of concerns for their safety.
The mother had no further face to face contact with T until December 2005.
The father and Ms Z ended their relationship almost immediately upon the children’s return. When they separated, Ms Z was six months pregnant.
On 13 February 2005 Ms Z was charged and convicted of assaulting the father and J[10].
[10] Exhibit “U”
In December 2005 through one of the children, the father contacted the maternal grandmother and enquired whether the mother wanted to see T during the forthcoming school holidays. By arrangement with the maternal grandmother T was delivered to her on 21 December 2005, which she curiously described as the father “dumping” T. T had few clothes and the following day, her grandparents outfitted her for the following three weeks. The mother had not pre-purchased airline tickets and only did so following T’s arrival at her grandmother’s home. The first available flight was Boxing Day and until then T stayed with her grandparents. When T arrived at her mother’s home, she was covered in head lice and had scabs on her scalp. This has been a recurring problem. The mother decided she would not return T. When T did not return by the due date, that is 11 January 2006, the father, using K as an intermediary, contacted the mother. The father refused the mother’s request that they discuss the situation. In these circumstances, through K the mother relayed that she was keeping T.

On 11 January 2006 the mother filed an application for parenting orders in the Family Court at Brisbane. The mother enrolled T at N Public School. T was enrolled using Prime in lieu of Butterworth, the name she had until then always used. Shortly after school started, the father and Ms Z drove to N and collected T from school. The first the mother knew of this was when T failed to arrive home after school. Ms Z’s involvement indicates that although she and the father had previously separated they resumed their relationship in some fashion.
The father retrieved T before the first court date. On the father’s application, the proceedings were transferred from Brisbane to Parramatta.
On 16 May 2006 the mother contacted J using an internet chat room, the transcript of which is in evidence[11]. In her opening gambit, the mother calls J: “A very angry and bitter little girl”. She chides J when she calls the mother by her first name, calls J a liar and repeatedly refuses J’s requests to leave the discussion. When J challenges her for her failure to send birthday and Christmas cards, the mother responds by complaining that J did not send her any. The tenor of the discussion is revealed by the following exchange:
[11] Exhibit “F”
[J]:                 Will you just stop this and grow up and leave me alone.
Mother:         There’s a lot you don’t know [J].
[J]:                Don’t you get it. I DON’T WANT ANYTHING TO DO             WITH YOU.
Mother:         Because daddy calls you [the mother’s first name] when   he’s mad with you doesn’t he?
[J]:                LOOK GET OVER YOURSELF.
Mother:         That’s not all he calls you?
[J]:                I DON’T WANT YOU IN MY LIFE YOU HAVE MADE            IT HELL AS IT IS.
Mother:         Why, because I don’t choose to live like you? How have I?
[J]:                YOU HAVE.
Mother:         You all seem to blame me don’t you?
[J]:                WELL NO NOT EVERYTHING IS ABOUT YOU.
Mother:         Yet I have not even been there.
[J]:                EXACTLY READ WHAT YOU HAVE JUST WROTE   AND YOU WILL UNDERSTAND.
As the conversation continues and becomes even more hostile, the mother brings up J’s sexual assault allegation, questioning whether this was a lie. As J attempts to avoid the discussion the mother says: “You told me that [Y] done something to you, want me to refresh your memory”. The mother’s role in this conversation is emotionally abusive and reprehensible.
On 8 June 2006 the Court ordered that the children be separately represented. The Legal Aid Commission of New South Wales appointed Ms Haga. Ms Haga represented the children in the first proceedings.
The proceedings came before the Court on 31 August 2006. On that occasion, Ms Haga appeared for the children, Mr Clarke with the father and Ms Riddle with the mother. The parties entered into consent orders which are set out below.[12]
[12] Exhibit “K”
1.      That all prior orders relating to contact are vacated.
2.      Pending the final hearing of the proceedings the mother shall have contact and spend time with the child [T], born […] April 1995 as follows:
(a)From 5.00 pm on 1 September 2006 until 5.00 pm on 4 September 2006.
(b)Not more frequently than fortnightly, from at least 9.00 am Saturday until 5.00 pm Sunday, commencing 5.00 pm Friday if the child is willing, upon the mother giving the father at least 10 days notice of her ability to exercise contact as provided.
(c)Such other times as the parties may agree.
3.      It is noted that the child [B] born […] November 1993 may also attend such contact and spend time with the mother if he wishes.
4.      During the contact referred to in these orders the mother, and any child attending contact, shall stay overnight at the home of the mother’s mother at […] and the mother shall not endeavour to remove either child from the State of New South Wales.
5.      For the purposes of contact, the parties will deliver the child or children to the offices of the Family Relationship Centre, High Street, Penrith and collect them from such centre, and to the extent that any intake procedure is required to enable such delivery and collection, the parties will do all things necessary for such intake.
6.      The father shall ensure that the child [T] is not left alone with the brother [Y] born […] January 1989.
7.      With the consent of all parties, these proceedings shall be dealt with under the provision of the Less Adversarial Trial Procedures and shall be dealt with accordingly.
8.      That the matter be placed into the list of cases awaiting allocation of a hearing date in the Less Adversarial Trial list.
9.      That the mother and father file the relevant questionnaire within 21 days.
10.    It is noted that the child (or children) will have sufficient clothing with them for the duration of contact and the mother shall ensure the clothing is returned.
The significance of these orders is that the mother no longer had orders for contact with B and concerning T, could see her for a few days in September 2006 and then no more than two days each alternate weekend. This was conditional upon T staying overnight at her maternal grandparent’s home. The mother was restrained from removing the children from New South Wales. Throughout the hearing the mother maintained the father refused to allow her to spend time with the children in O in Queensland. She denied any knowledge of these orders claiming her solicitor signed them without her authority. Only when presented with the original documents to which her signature is affixed did the mother agree she had consented. Faced with this irrefutable evidence the mother said she signed the orders without first reading them saying she would never have signed orders which so limited her time with the children. I do not accept her evidence and am satisfied that she was fully aware of the nature of the consent orders and disavows knowledge of them in order to promote her case theory.
The mother made no attempt to see T or B in accordance with the 31 August 2006 orders. Nor did she contact the father’s solicitor to spend time with the children in O. During a few telephone calls with T, the mother asked T if she wanted to visit her in Queensland. Given that the father was legally represented, it is surprising that the mother attempted to negotiate contact arrangements in conflict with the orders through T.
On 30 October 2006 the father was charged with two counts of common assault and entering a building with intent to commit an indictable offence[13]. At Y’s request the father accompanied him to a house where Y had been living to retrieve money owing to his son. Drugs were involved in some fashion. In retrieving the money the father assaulted the two occupants, each of whom was in their early twenties. The father claims he acted in self defence. As he was the only person charged I do not accept his evidence. On 21 March 2008 the father was convicted as charged. In relation to the assault charges he was placed on a 12 months s 9 bond and is required to attend anger management counselling and accept Probation and Parole supervision. In relation to the other conviction he received a five months suspended prison term with duplicated reporting and counselling provisions.
[13] Exhibit “S”
The father and his present partner Ms H met in March 2007. Although not cohabiting they spent a large amount of time in each others homes.
On 8 June 2007 the Court made the following orders:
1.      That in addition to the contact ordered by Justice Stevenson on 31 August 2006, the mother shall spend time with the child [T] born […] April 1995 for not more than five consecutive nights in any proclaimed New south Wales public school holiday period provided the mother shall spend the majority of that time and certainly each overnight time at the home of her parents at […].
2.      That neither party shall discuss the proceedings with the children or in the presence or hearing of the children nor encourage, allow or permit any other person to so do.
3.      That the father is to himself do all things, or through the offices of the Independent Children’s Lawyer, to obtain a report of the attendance and participation by the children [T] and [B] born […] November 1993 in the PANOC (Physical Abuse and Neglect of Children) course undertaken by the children. That report, as soon as it is available, is to be provided to the court counsellor who is to prepare a family report in this matter.
4.      That leave be granted to the parties to approach the listing director to obtain a hearing date for the conclusion of this matter for five days.
5.      That the parties are to file and serve all material upon which they seek to rely by no later than 28 days prior to the date fixed for hearing.
6.      That a Family Report is prepared which addresses:
(a)the need to protect the children from violence;
(b)the views expressed by the children and any matters underlying those views;
(c)the nature of the relationship of the children with each of the parents and other significant adults;
(d)the willingness and ability of each parent to facilitate and encourage a relationship between each of the children with the other parent;
(e)the likely effect of any change on any child;
(f)the practical difficulty and expense of spending time with each parent;
(g)the capacity of each parent;
(h)the attitude of each parent towards the children and the responsibilities of parenthood;
(i)any other matter as the counsellor finds necessary.
(7)       That liberty is granted to either party and the Independent Children’s     Lawyer to restore the matter to the list upon giving 72 hours notice.
(8)That the Independent Children’s Lawyer be granted liberty to issue such further subpoenas as she sees necessary.
It is noteworthy that these orders extend the amount of time the mother could spend with T by making provision for school holiday periods of up to five days. Any school holiday periods remained constrained to New South Wales and, if occurring overnight required T to stay at her maternal grandmother’s home. The mother made no attempt to spend time with T pursuant to these orders.
The mother next saw T in July 2007. The parties agreed that in the period leading up to the Family Report interviews, T would spend a few days with her mother at the maternal grandmother’s home. Following the interviews on 3 July 2007, T returned to her father.
On 18 September 2007 B and T started school at P High School. Until then both children attended W High School. When they changed schools T was in year 7 and B was in year 8.
By late October – early November 2007 the father and Ms H were living together. Ms H moved into the father’s rented home in outer Sydney.
These proceedings were listed for a five day hearing commencing 29 October 2007. The mother did not attend the hearing. On that occasion the following orders were made:
1.      That the Minute of Order prepared by the Independent Children’s Lawyer shall become Exhibit “A”.
2.      That by consent, orders are made in accordance with paragraph 3 only herein set out as follows:
That pending further order the father do all acts and things necessary to ensure that the children [B] and [T] are at no time left in the presence of their brother [Y] without such time with the brother [Y] being supervised by the father personally.
3.      That the father’s legal representative and the Independent Children’s Lawyer approach the listing director forthwith to obtain a hearing for two hours not before 14 days from today for the purpose of dealing with the matter on an undefended basis in the event the mother again does not appear.
4.      That the father’s legal representative write forthwith to the mother at the address disclosed by her former solicitors in their Notice of Ceasing to Act filed on 16 October 2007 attaching copies of the father’s affidavit sworn 24 October 2007, the affidavit of Ms H sworn 24 October 2007 and the affidavit of Mr NR sworn 24 October 2007. The letter is to advise the mother that if she does not attend on the next occasion either in person or by legal representative it is highly probably that orders will be made in her absence against her interests.
5.      That the Independent Children’s Lawyer write to the mother at the address disclosed by her former solicitors in the Notice of Ceasing to Act filed on 16 October 2007 enclosing a copy of the Minute of Order being Exhibit “A” in today’s proceedings and advising the mother that if she does not appear on the next occasion It is highly probably that orders will be made in her absence at least in accordance with those sought in the Minute of Order of the Independent Children’s Lawyer.
6.      That the aforementioned letters are to be written once the future court date has been allocated and made known. Each letter is to clearly contain and advise the mother of the date and time listed.
7.      That the costs of the father and the Independent Children’s Lawyer of today be reserved.
B was suspended from school between 8 and 11 November 2007. His suspension related to persistent misbehaviour, including using foul and abusive language to his music teacher.
The next court date was 30 November 2007.
On 29 November 2007 the mother sent a letter by facsimile transmission to the court.[14] Attached to the letter is a hospital discharge summary, relating to her admission to O Hospital between 7 and 10 September 2007. The discharge summary reveals that the mother was hospitalised following a tachycardia episode. In her letter the mother explains her failure to attend the hearing in terms that she was in hospital and had been refused legal aid. As the attached hospital records reveal, the mother was discharged from hospital five weeks prior to the hearing. The mother gives no explanation for her failure to advise the other parties and the court that, for whatever reason, she was unavailable. In the event, the mother appeared by telephone on 30 November 2007 and indicated she pressed her application that B and T live with her. The mother’s failure to attend the hearing is inconsistent with her claim that the children are gravely at risk with their father and better off in her care.
[14] Exhibit “G”
In March 2008 the father and Ms H’s daughter R was born. R is Ms H’s only child. Not long after R’s birth, the father and his family moved to a new rented home in Sydney’s suburbs.
J had a baby daughter in early April 2008. In response to J’s request that they do so, the father and Ms H were with her throughout labour. J did not ask the mother to attend. Whilst at the hospital, the father learned that J had nowhere to live with her baby. With Ms H’s ready agreement he invited J to move into their home; which she did on 8 April 2008. J’s presence in the household led to tensions, particularly between her and Ms H. Ms H tried to impose reasonable household rules and instil in J appropriate child rearing skills. Because the father works fulltime, day to day running of the household primarily falls upon Ms H.
On Friday 25 April 2008, J and T went flat hunting. Ms H required T to return home before dark. J and T were late arriving. Upon their arrival Ms H grounded T. Both girls challenged Ms H’s authority and J was particularly offensive. J called Ms H “a pub slut” and punched Ms H in the face. When the father arrived home the house was in an uproar. When J refused to apologise to Ms H he told her she would have to leave. J refused, shouting abuse at him at such volume the neighbours came outside. Eventually the father told J unless she left he would call the police. J has an outstanding warrant and, upon hearing this, took her baby and left. The father contacted J’s Department of Community Services’ case worker so that arrangements could be made for her to go into a youth refuge, presumably one of the four she previously lived in.
After J left the father spoke with T about her misbehaviour and asked her if she wanted some “time out”. T said she did and the father suggested that if she wished him to, he would contact the mother and see if arrangements could be made for T to see her. T agreed and the following morning the father called the paternal grandmother. The father says he said to the paternal grandmother: “[T] wants to see her mum for a while. How about we meet at the police station so there’s no trouble”. They discussed arrangements and the father recalls saying: “If she needs any more clothes or anything let me know and I’ll bring them over to you”. T packed her own bags and the father delivered her to her grandmother at the Police Station. This occurred at the end of the April school holidays and the father expected T back for school on 29 April 2008. He did not give the maternal grandmother a return date or time and relied upon her and the mother to abide by the orders. This meant that T was to be returned by 5.00 pm Sunday or immediately prior to the resumption of term.
The maternal grandmother says the first she knew of T coming to her was on Saturday 26 April 2008 at around 11.30 am when she received a telephone call from the father asking her to collect T from the Police Station. In response to her inquiry as to why, the maternal grandmother says the father replied that T was going to live with her mother. Although she does not say so, the maternal grandmother gave the father the impression that she agreed to collect T in about 20 minutes. During the interregnum, the maternal grandmother telephoned the mother. This is the first the mother knew of any arrangements being made for T to spend time with her. The maternal grandmother told the mother that the father said: “He did not want her any more and that she was going to live with her mother”. The mother instructed the maternal grandmother to collect T and telephone her when T arrived.
When the maternal grandmother arrived at the Police Station, the father and T were sitting together waiting for her. Before collecting T, the maternal grandmother spoke with Senior Constable C. Senior Constable C confirmed that she was able to take T. In her affidavit, the maternal grandmother said Senior Constable C said that he: “Had spoken to [the father’s] solicitor and that it was okay to take [T] because her dad stated that he did not want her”. In her oral evidence the maternal reports the Constable saying: “its okay, [the father] was on the phone to his solicitor and it’s okay”. Senior Constable C did not speak to the father’s solicitor and denies telling the maternal grandmother he had. As far as Senior Constable C was concerned, the child’s delivery was a private matter and the police’s sole involvement was that the parties arranged changeover at a police station. There was no obvious breach of the peace and he was in effect a bystander. If T was upset this was not obvious to him. On this issue there is a significant difference between the maternal grandmother’s affidavit and oral evidence. Senior Constable C’s written report and oral evidence are consistent. Combined with his neutral position these factors persuade me that where his and the maternal grandmother’s evidence conflicts, I prefer Senior Constable C’s.
Once T was with her grandmother, T and her grandmother agreed T had been sent to her grandmother so that she could live with her mother. The mother spoke with T and asked her if she wanted to come to O in northern Queensland. T agreed and said she wanted to do so immediately. Using her neighbour, who is a Department of Child Safety Officer, as a sounding board and facilitator, the mother booked a one way flight from Sydney to Queensland departing that evening. In accordance with her friend’s advice, the mother contacted Senior Constable C and asked him to document the day’s events. He declined, pointing out that these events were not police business. The mother says that during this conversation Senior Constable C told her he had spoken with the father’s solicitor who confirmed the child’s permanent placement with her mother. Many aspects of the mother’s evidence are troubling and as I have earlier found, in a number of instances, designed to mislead. I do not accept Senior Constable C made the remarks concerning conversations, which did not take place, with the father’s solicitor. Dissatisfied with Senior Constable C’s response, the mother complained to the Sergeant on duty. As later directed, Senior Constable C wrote up his notes of the day’s events. He had already recorded the events in his police notebook and the records are unaffected by delay.

T arrived in O at about 9.00 pm Saturday. Curiously, given the orders restrained the mother from taking T out of New South Wales, the mother did not contact the father before doing so. By virtue of her lengthy involvement in family law proceedings, including proved contravention applications, even if the mother thought via third parties she had the father’s agreement, she well knew the importance of obtaining his actual consent and appropriate variation. In any event, the mother took two weeks off work so as to organise T’s schooling and settle her in.
When she arrived, T was suffering from a toothache and on 29 April 2008 the mother’s husband took her to the dentist. The dentist decided the tooth required removal and referred T to another dentist. During this consultation the dentist concluded that T: “Requires some other restorative dental treatment”.[15]
[15] Exhibit “P”
On 1 May 2008 the mother drove T into O. On the way T spoke happily to her stepfather. During the drive, J telephoned T. The mother noticed a change in T’s demeanour and told her: “Tell [J] you have to go [T]”. T complied and as soon as the mother pulled into O the child alighted from the car and ran off. T ran into O Police Station and asked for their help to return to her father. Using the other children as intermediaries, the father had been attempting to contact T. T told J she was in Queensland and wanted to come home. Upon learning this and armed with the relevant orders, the father drove to N. He went to an address which he understood the mother used for business and to her last known residential address. The mother had no continuing connection with either address and the father was unable to find her. He then attended N Police Station. While he was at N Police Station T arrived at O Police Station. Apparently N Police Station was in contact with O Police Station for advice about retrieving the child. Upon learning T was at O Police Station, the father retrieved T. The mother also attended O Police Station and demanded to see T. T refused to see her mother as a consequence of which, O Police refused the mother’s request. T happily returned with her father to Sydney since when she has not seen her mother.
In preparation for this hearing on 11 June 2008 the Independent Children’s Lawyer individually interviewed T and B. The Independent Children’s Lawyer provided a statement concerning her discussions with T about what occurred in April 2008.[16] The Independent Children’s Lawyer says:
[T] said words to the effect of: ‘I had been out looking for a house with [J]. We were supposed to be home before dark, and we were late and weren’t home before dark. I was grounded. I was being disrespectful to [Ms H]. Dad asked me if I wanted to go and see mum.’ I can’t recall exactly what [T] then said, but to the best of my recollection it was that she had sworn at [Ms H], and her father and [Ms H] were upset about this. [T] also said words to the effect of: ‘Dad took me to the police station. Nan picked me up from there. I was at home at nan’s for about an hour, and I had to fly up to mum’s. I didn’t want to go up. I wanted mum to come down.’
I then asked what it was like when she got to her mums. [T] said words to the effect of: ‘I was giving mum the silent treatment for a couple of days.’
I then asked [T] if she went to school in Queensland. [T] said words to the effect of: ‘She took me to some school to get some information. I told her I had a school. Mum said: ‘No one wants you.’ I walked off and walked away, but I had to go back to her because I had no money.’
I then asked [T] how she had gotten home. She said words to the effect of: ‘I told [J] I wanted to come home and mum wouldn’t let me. I went to the police station. Dad flew up and collected me at the station.’
I asked [T] how her time had been at her mother’s. She said words to the effect of: ‘Mum kept saying no one wants me and saying rude things about [Ms H].’
[16] Exhibit “V”
T’s version of events is more closely aligned to the father’s than the mother’s, particularly in relation to the basis upon which T went to her grandmother and is against any notion that the father sent her to the mother permanently. The difficulties which subsequently arose result directly from the parties inability to communicate and horrible relationship.
B was suspended from school for three days on 20, 21 and 22 May 2008. His suspension related to his behaviour on public transport on the way to school, in particular applying graffiti.
The children left P High School on Friday 30 May 2008 and the following day started at JN High School. Although the father swore an affidavit on 29 May 2008 he failed to mention that the children were changing schools. In this affidavit he spoke of both children being settled and performing well at P High School. Ms H’s evidence was to similar effect. In this regard their evidence is designed to hide B’ school misbehaviour and avoid any suggestion that there are signs the younger children are starting to mirror their elder sibling’s behaviour.

General Law in parenting cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)       to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order: Goode and Goode (2006) FamCA 136. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the Court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
The applicable standard of proof is the civil standard. If the Court is asked to make a positive finding that abuse has happened it does so by reference to s 140(2)(c) Evidence Act 1995 (Cth) and on the basis that the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. If the Court determines it cannot or should not make a positive finding there has been abuse it must determine whether, by reference to s 140 Evidence Act there is an unacceptable risk of it. This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components which go to make up that conclusion need not each be established on the balance of probabilities. The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page [2007] FamCA 1235. These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92-800.
The risk assessment findings address part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors: see M v M (1988) 166 CLR 69.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. See A v A (1988) FLC 92-800.

The mother’s circumstances

The mother lives with her husband in a home they own at N. If she hasn’t already, the mother will shortly stop work. She and her husband are expecting their first child together in September 2008. Following their child’s birth, the mother has no plans to return to paid employment, or at least not for the first two years of her baby’s life. The father’s husband works fulltime nearby in a trade. He works fulltime on a monthly roster. His days are long with the longest number of days continually worked being five. When working, the mother’s husband stays at or near his workplace and the mother is at home.
When this hearing started, the mother had not filed an affidavit from her husband and did not intend that he would give evidence. With my encouragement, the mother’s husband prepared a statement[17] and gave evidence by telephone. The mother’s husband gave his evidence in a calm and considered manner. He describes a previously turbulent life, with long term substance abuse effecting aspects of recall. He has had no criminal convictions since 1997 and since the first hearing has not had complaints about his behaviour to police. His current occupation required a national police clearance check[18] before he could work as in his current job. So that it is clear, I prefer the Department of Child Safety’s assessment of the mother’s father’s behaviour on 17 June 2004 with Y to Y’s allegations. Without J giving evidence, it is difficult to fully evaluate her allegations concerning the incident on 25 January 2005 against the mother’s husband’s evidence. However, the mother’s husband’s evidence was compelling and on balance I prefer his evidence concerning his lack of involvement in the incident with J on 25 January 2005 as compared to her documented account. The mother corroborates her husband’s evidence. Once the Child Safety Officers arrived at the property however, there are independent observers of the mother and her husband’s behaviour. Regarding that day and their subsequent attendances upon the Department of Child Safety, I consider it more likely than not that the mother’s husband backed up his wife in her aggressive, and at times intimidating, demands for information. The effect of these findings is that although I am satisfied that the mother’s husband, when sorely provoked and particularly when provoked by loyalty to his wife, is capable of verbal and intimidating conduct. This is out of character.
[17] Exhibit “L”
[18] Exhibit “P”
In July 2000 the mother and her husband were born again into Christianity. Since then they have attended Fellowship meetings two or three times a week and are actively involved in their church. Both try to live Christian values and substance abuse, bad language and anti-social behaviour are in the past. During the first hearing, the mother’s husband accepted the advice of the Independent Children’s Lawyer that he should not directly intervene in the mother’s disciplining of the children. He has not physically disciplined the children since. The mother’s husband strongly supports his wife’s quest to have the children returned to her and is confident they will settle in.
The mother’s husband has three children by his former wife. Apparently theirs was a difficult separation and he has not had contact with these children for many years.
The mother’s parents and extended family live in Sydney’s western suburbs. At least annually the mother visits her parents and they have regular telephone contact. Once the father and children moved to his parent’s home, the children lived reasonably close to the mother’s parents. Notwithstanding this, none of the five children has had regular contact with them. Although the evidence does not suggest that the father has taken positive steps to maintain the children’s relationship with their maternal relatives, it also reveals that the maternal family, at least since 2002, has been similarly passive. The maternal family have made no requests of the father for contact with the children for at least the last four and a half to five years.
Since 2002, other than the incident with police on 25 January 2005, the mother has had no difficulty with police and has not been convicted of further offences.

The father’s circumstances

The father lives with his partner Ms H, their daughter R and T and B in a suburb of Sydney. Shortly prior to R’s birth, Ms H stopped paid working in a supermarket and the father is now the family’s sole wage earner. He works fulltime in the transport industry. Between 2002 and 2007, he worked regularly, but commonly in part-time positions. Twice he was sacked when he was unable to work because he needed to retrieve the children from the mother. The father and Ms H say theirs is a happy relationship. Both deny the mother’s domestic violence allegations and there is no first hand account that suggests this could be disingenuous.
After the first hearing, the father entered into a relationship with Ms Z. It is unclear whether the father and Ms Z ever cohabitated. The mother found Ms Z pleasant to deal with and, as I have earlier found, J spoke favourably of Ms Z’s support. Ms Z has two daughters, JZ and GZ. JZ is the father’s child. Ms Z was pregnant with GZ when their relationship ended. Ms Z has never asserted that GZ is the father’s child and he is not recorded on her birth certificate. The father has not seen JZ since separation and has never seen GZ. After their relationship failed, the father attended a relationships centre on three occasions attempting to establish a framework for discussion with Ms Z enabling him to have contact with JZ. When Ms Z refused to cooperate, the father decided against further action. Ms Z swore an affidavit in support of the mother’s case. When the mother was unable to produce Ms Z for cross examination, even via telephone, Ms Z’s affidavit was rejected.

T’s willingness to contemplate “time out” with her mother in April 2008 illustrates that she does seek a relationship with her. The circumstances of her return demonstrate that the circumstances for their spending time together are important to her and being kept away from her father and life with him is unacceptable. The probability is that provided T is confident that visiting her mother does not keep her away from her father and siblings or expose her to her mother’s antipathy towards her father she is interested in spending time with her mother. Unless the mother is willing to tolerate T’s views, it is highly likely T’s views will harden against further contact with the mother.
By s 60CC(3)(b) I am required to consider the nature of the children’s relationship with their parents, grandparents and other significant people.
From the children’s discussions with the Family Consultant, it is apparent that each feels closer to the father than the mother. B’s closest relationship is with his father. Although T identified her paternal grandfather as her closest friend and the person to whom she is closest to in the family, the observation session demonstrated she genuinely values her relationship with her father.
The Family Consultant saw the children with their mother before seeing them with their father. She reports on her observation of the children with their father as follows:
When [the father] entered the room, [T] squealed, ran and jumped on him. [The father] asked the children if they had had fun. [T] complained that she had attempted to call him while she was with her mother however her mother had not allowed her to. The children and [the father] readily engaged in a family task of building a tower. The children’s mood noticeably lifted and all three talked animatedly. Once the task was completed they spent time in free play. They all played ten pin bowls. The play was loud and energetic with much laughter and conversation. The mood was relaxed and happy. [The father] perused the board games and he and [T] choose to play ‘Yatzee’ which all three sat down to play. [T] showed her father her art work, which he praised. They continued to play ‘Yatzee’ for the remainder of the observation. The children were relaxed and responsive to [the father] and vice versa. [B] asked [T] if she had fun at their mother’s and she replied ‘not really.’ [B] was curious about what they did there however [the father] changed the topic and their focus returned to the game. The observation reflected positive parent/child interactions.
There is a chasm between the warmth and affection the children displayed with their father in the family report process and their interaction with their mother. The counsellor opines, that B resists a relationship with his mother: “As she has essentially attempted to sabotage his sense of safety, security and identity.” Having lived with his father for the last six years, B’s views of his father are irreconcilable with his mother’s opinions of him. B sees the father as his only “real” father and feels emotionally supported by him. Although B is at an age where he is no longer emotionally dependent upon his parents and peer relationships are particularly valuable, B has a close relationship with his father which the boy values. Having regard to B’s behaviour towards her in the family report process and the years during which the mother and B have not seen or spoken to each other, it was more than a little surprising that the mother refused to accept the proposition that her relationship with the children is at best tenuous.
The father’s counsel explored with the Family Consultant his suggestion that the mother’s relationship with the children is at best tenuous. Insofar as T is concerned, the Family Consultant agreed. She explained that T desires a relationship with her mother but is unable to work out how to go about it. This observation does not relate to practical issues or T perceiving a need to battle her father’s opposition to it. Her conundrum relates to her inability to have her mother recognise T’s position viz a viz family relationships and deal with a parent who is intent on forcing a relationship and world view entirely different to hers.
Even considered from the mother’s perspective the fragile nature of her relationship with the children is apparent. The mother told the Family Consultant that if the children remained with the father she would not see them again. Although she cavilled with the Family Consultant quoting her as saying she would “cut them off”, she used those terms and identical concepts during the hearing. At the end of the hearing, after days of prevarication the mother said she is willing to spend time with the children provided they visit her at O. Her insistence upon O is interesting. I have no difficulty accepting the mother’s proposition that giving the children the opportunity to spend time with her in her own home increases the potential for better interaction in a theoretical sense. The reality however is that the O option probably makes both children anxious. Apart from their attitudes towards spending time with their mother, both children are acutely aware of the difficulties faced returning home. If the mother had real insight into the difficulties she has in her relationships with her children, she would in the first instance at least, be willing to spend time with them in a setting in which they are more comfortable. Namely at her parents home.
In her oral evidence, the Family Consultant addressed the children’s relationship with each other. This required particular consideration because the mother indicated that the Court should consider separating the siblings. The Family Consultant describes the children as having close relationships with each other. In a difficult childhood, the one constant fact of their lives has been each other. She explained that in an unstable family separating the children and depriving them of this constant is concerning and although she did not say it, I infer contraindicated. The Family Consultant saw B and T as having solidarity between them. Nothing in the evidence suggests that the children regard the possibility of separation from each other as acceptable. Notwithstanding that the children are different genders and there is a two year age gap, I am satisfied that the children have close relationships with each other and would not happily accept separation.
The children like Ms H and have a friendly relationship with her. Ms H regards herself as standing in the mother’s place within the family and fulfilling a mothering role with the children. Although phrased somewhat inelegantly, I did not deduce that Ms H in effect pretends she is the children’s mother. Rather, in a family where the children have none or virtually no contact with their mother, and she is a fulltime homemaker, she has a vital maternal role in the children’s life. As the events of 25 April 2008 demonstrate, Ms H’s relationship with T is still settling down. With time it will strengthen and is likely to continue to improve. Events such as those which occurred on the last Anzac Day weekend are rare and unlikely to recur.
Neither B nor T spoke positively about their stepfather. He and B are estranged and during B’s minority, his strong stance against his mother and the stepfather indicates that rapprochement is highly unlikely. As recently as this year, T related companionably with the stepfather. Provided he is willing to maintain a neutral stance or tolerate T’s view of the family, their relationship might be amenable to improvement. Unfortunately, his role in revealing that B’s father is someone other than the father is a barrier to progress.
T has a strong relationship with her paternal grandfather and, if unable to see him regularly, would feel his loss deeply. B also has a good relationship with his paternal grandfather. The father appreciates this in a way the mother does not.
Neither child has a close relationship with their maternal grandparents. This is evident from the children’s failure to maintain even telephone contact with them. If the children live with their father this is unlikely to change but, at least as far as T is concerned, probably would if the children live with their mother.
The Family Consultant was not asked to explore in detail B and T’s relationships with their elder siblings. The elder children did not participate in the family report process. As I earlier found, the three elder children are seriously disturbed. K and J have each made serious attempts to take their own lives. During this hearing Y was charged and bail refused. Neither of his parents knew the nature of the charges. These three troubled children appear to have engaged in serious anti-social behaviour and are not good role models for their younger siblings. The father is determined that the younger children are in the future protected from their older siblings’ harmful influences. Even although the elder children need his support, where there is a conflict between their interests and B or T’s, the younger children’s will take priority. These are terrible choices for any parent to face. B and T have lived with their father while their elder siblings have flouted the family’s rules and on numerous occasions, one or other evicted from the family home. In terms of familial relationships, it is likely that the elder children are incapable of emotionally healthy relationships within the family. This is a situation which applies whether the children live with their mother or their father.
By s 60CC(3)(c) I am required to consider the parents ability to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother says the father destroyed her relationships with K, Y and J and is intent on the same outcome for the younger children. She says history demonstrates the father cannot be trusted to promote the children’s relationship with her. It was not within the domain of this hearing to reconsider how it is that the elder children’s relationships with their mother were so damaged by the time the first hearing finished. The point which the mother misses, however, is that in the intervening years she has had contact with the elder children and although they could have remained in her care, all decided not to. The elder children’s failure to maintain ties with their mother in circumstances where this was possible is consistent with the relationships being irreparably harmed and the mother’s inability to constructively re-engage her children.
The mother impressed me as driven to persuade all five children to her view of the family’s history and acceptance that the father is a violent spouse who physically and emotionally abused the family. This is not the children’s stance. If the mother has been the victim of the father’s campaign to destroy her relationship with the children, she now is intent on a tit for tat approach. Notwithstanding the children’s strongly expressed views to live with their father, the mother says if they live with her neither child can see him. This is consistent with the mother’s pattern of refusal to comply with orders in particular, her obligation to return the children to their father. I am strongly satisfied that if the children lived with their mother she will not only fail to promote their relationships with him, but they will be actively undermined.
The mother has such a black view of the father, she has distorted her decision to not see the children and turned it into a mantra that he has undermined her relationship with them. It is beyond dispute that the father complied with the June 2002 orders until mid 2003 and the cessation of the arrangements for the children to spend time with their mother occurred when she decided not to see them. Since then, whenever the mother has sought face to face contact with the children in accordance with operating orders, she has seen the children. While I accept the mother’s contention that the father and elder three children are unsupportive of her relationship with B and T, the state of her relationship with the younger two children is primarily attributable to her failure to maintain contact with them. This is a finding to which I attach considerable weight.
The father is tired of continuing litigation and aggressively expressed his irritation with it. The appalling nature of the parties’ relationship was apparent throughout the mother’s cross examination of the father. Each was sarcastic, bombastic and rude towards the other. The father had nothing positive to say about the mother and obviously believes she has pursued her own interests in preference to the children’s. The children’s discussions with the Family Consultant reveal that each is aware of the father’s antipathy towards the mother, which situation arises because he has revealed his views of her to them. The mother’s persistent failure to return the children has placed real emotional and financial strain upon the father. Understandably, he is irritated by the mother’s accusations that he failed to make the children available to her when, as I have already found, responsibility for this rests with the mother. Nonetheless, in spite of his negative views of the mother, in her Department of Community Services interview J spoke of being required, I infer by the father, to respect her mother. During the family report process, the father diverted B from his critical comments to T about the mother. The father’s approach seemingly involves the children receiving mixed messages concerning his view of the mother, but at least it occasionally includes some positive elements.
During submissions, counsel highlighted the mother’s awful discussion with J as evidencing her determination to force the children to accept her negative views of the father. The mother was positively gleeful as she forced the father to concede J called him an “arse hole”. As she discussed her recent contact with the elder children, the mother delighted in recounting unpleasant comments these children made concerning the father. The father says, and I accept, that if the children live with the mother she is highly likely to engage in the same conduct she accuses him of. If she does there is a real likelihood the father, Ms H and the elder children will abandon their “mixed messages” approach to the younger children in favour of overtly hostile criticisms about the mother. This scenario would quickly result in the children decamping from their mother and align even more strongly with their father.
Section 60CC(3)(d) is one of the pivotal issues in the proceedings. There is a strong connection between this and s 60CC(3)(a) and (b). This sub-section concerns the likely effect of any change in the children’s circumstances, including separation from his/her parents, a child or other person with whom the child has been living.
If the children remain living with their father, their circumstances are unchanged. Each of the children is content with their current living arrangements and neither seeks change. The father’s proposal reflects the children’s views and delivers an outcome acceptable to each of the children.
The mother’s proposal involves dramatic changes to the children’s lives. Basically, the children would leave everything which they hold dear. Both children are at an age where peer relationships are important. Although the children recently changed schools, they have friends in their local community, established sports activities and are basically content with their social milieu. More importantly, the children would be separated from their father and other family members. Even if it is physically possible to coerce B to abide orders that he lives with his mother, he is unlikely to stay. The Family Consultant said B is likely to run away from his mother. The mother disagrees and says that with counselling B will quickly settle in with her and the benefits of changing his environment outweigh any reluctantly acknowledged difficulties. A point the mother misses is that B sees no advantage to living with her and his distress at being separated from his father is real. If the mother took the same approach with B which she took with Y physical conflict between them will quickly. B is likely to seek police help and, provided he does not feel that in obeying the Court orders his father abandoned him, B would return to his father. There is however an unacceptably high risk that B may fear that returning to his father involves discovery and consequential return to his mother. Because this outcome is so unacceptable to B, there is a real risk he may hide from both parents. However one examines the situation, placing B with his mother involves grave risks to B emotionally and physically. The mother’s refusal to even pay lip service to these possibilities demonstrates how profoundly lacking in insight she is to B’s views and their poor relationship.
T has already once run away from her mother. The mother gives no credible explanation for her blaming J for T leaving. Having discovered a method for safely running away from her mother, T is highly likely to take the same route if ordered to live with the mother. While it is probably easier to physically coerce T’s initial cooperation with orders that she lives with her mother, short of keeping T a prisoner in her mother’s home, it is virtually impossible to force her to remain. It is likely that quite quickly the mother and T would be in serious conflict and, as the mother’s behaviour towards J on 25 January 2005 demonstrates, physical conflict may follow. Although the risk T, in order to avoid living with her mother, may run away from both parents is less likely than it is with B, the risk is not so inconsequential it can be ignored. For a girl T’s age the risks involved as a runaway are obvious and the Court would be failing its obligations to this child if it took steps from which she felt this was her only option.
I am strongly satisfied that changing the children’s circumstances in the manner the mother suggests involves grave risks to both children. There are no commensurate risks if the children remain living with their father. These are findings to which I attach significant weight.
Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent. The mother lives and will remain in northern Queensland. The father lives in a suburb of Sydney and will remain living thereabouts. Because of the distances involved, whatever contact the children have with the parent with whom they do not live, will occur during school holidays. Although I do not have precise details concerning the parties’ finances, their overall circumstances indicated each is of modest means. The mother is entirely reliant on her husband for his financial support. The father solely supports Ms H, R and the children. By this I mean the mother pays virtually no child support and her first financial contribution to the children’s day to day expenses occurred recently when the Child Support Agency intercepted a $600 payment. Nonetheless, the parties are able to afford cheap airfares.
Both children are of an age where they can comfortably manage unaccompanied air travel.
Regular telephone communication is feasible. The father is content for the mother to have the children’s mobile telephone numbers and speak to them whenever she wishes. The mother wants to use the father’s landline telephone number. Because he and Ms H do not want to face the possibility of speaking with the mother and, from their perspective unwarranted unpleasantness, the father resists the mother calling the children on his home landline. The risk of a hostile exchange between the adults is high and can only be stressful for the children. Consequently, although the cost of mobile telephone communication is higher, it is the only practical solution. It also addresses the mother’s concern that the father and Ms H disrupt her conversations with T and gives the children and mother the maximum opportunity for privacy.

Although these practical issues influence the structure of my orders concerning possible arrangements for the children to spend time with their mother, it is the children’s views, relationships and risk issues which ultimately determine the structure of those arrangements.
Section 60CC(3)(f) focuses on the parties’ parenting capacity. Parenting capacity is both a theoretical and applied concept. By this I mean the Court is concerned to understand the parties’ capacity to parent particular children. A parent may be highly competent with one child yet lack the capacity to parent another. The mother’s decision in 2002 that the elder children should remain with their father and that there be no orders for her to have contact with them indicates that, for whatever reason, she realised she lacked the capacity to parent those children. This was not an issue of her willingness, but recognised that the elder children were so estranged from her that she could not connect with them and hence lacked the capacity to meet their emotional needs. Although I have no doubt that the mother has the desire and theoretical capacity to provide these children with shelter, education, religious guidance, superior standards of personal hygiene and an appropriate moral framework, the children’s resistance to living with her is a fundamental barrier to her ability to meet their emotional and intellectual needs and detracts from effective parental authority and capacity.
Because of the superior nature of the children’s relationship with their father, they accept his parental authority and guidance in a manner they reject from their mother. So it is clear, I do not accept one of the central planks to the mother’s case, namely that the father is overwhelmingly responsible for the elder children’s difficulties. I do not accept that the elder children’s difficulties illustrate the father’s limitations as a parent. As the first hearing demonstrated, both parties contributed to the elder children’s difficulties and it is irresponsible for the mother to attempt to rewrite history. The mother claims that if the father is a competent parent, even if she contributed to the damage to the elder children, by being in his sole care, the damage could have been undone. The evidence does not support this hypothesis. The father worked closely with the Department of Community Services and other professionals and tried to help the elder children recover form the traumatic consequences of life with their parents. Clearly he and those working with the children were unsuccessful. The mother ignored that when the children came to her, she was no more successful. Indeed, the physical violence between she and J might justify a conclusion that she was even less successful. The mother should recognise that the bad outcomes for the elder children are a tragic indictment upon both parents.
Notwithstanding these findings, I have real reservations about the father’s parenting capacity. He is capable of verbal abuse and physical violence. All children use foul language and are capable of antisocial behaviour. As the children’s[20] website pages reveal foul language appears commonplace. I have no doubt the children have witnessed similar behaviour from their father. The father does, however, have the demonstrated capacity of providing the children with adequate accommodation, ensuring they attend school, maintain friendships and are happy enough. Having regard to his rejecting behaviour shown with the older children, the younger two are likely to be concerned that they may be rejected if they seriously contravene the father’s rules. Particularly in relation to the children’s emotional wellbeing these matters are highly concerning. However, in the difficult circumstances of this case he provides adequate parenting and for these children his parenting capacity is superior to the mother’s.
[20] Exhibit “M”
There are no section 60CC(3)(g) factors which require further consideration.
Aboriginal and Torres Strait Islander issues do not arise.
Section 60CC(3)(i) concerns the parties attitudes towards their parental responsibility. The mother’s failure to maintain face to face contact with the children supports the father’s contention that for many years she has failed to fulfil her parental responsibility. It is unarguable that for years the father alone has attended to the children’s needs. As J pointed out in her 2006 internet discussion with the mother, the mother has not involved herself in the children’s lives in a meaningful way for years. Although the father’s parenting has been compromised, he has cared for the children and generally done his best to fulfil his parental responsibility.
Sections 60CC(3)(j) and (k) relate to family violence. The parties agree theirs was a violent relationship to which all children were exposed. This issue loomed large in the first hearing and is addressed in Collier J’s decision. His Honour was satisfied both parties were victims and perpetrators. His Honour’s decision does not suggest that the nature and extent of the violence each inflicted differed. This hearing focussed on subsequent events. There is no evidence that since March 2002 the father has been violent towards the mother or her to him. The mother has been violent with J and thrown water over Y. When the father pushed J out of his house in April 2008 he was violent. Excluding the incident with Y these were very difficult situations in which both parents were responding to their children’s violent behaviour. Here one sees the oft commented upon “cycle of family violence” in operation. When the hearing started the mother identified a number of affidavits from deponents who she said would give evidence that since March 2002 the father frequently physically abused the elder children and Ms Z. None of these witnesses was willing to attend court and their affidavits were rejected. The effect of this is that since March 2002, other than as discussed above, there is no evidence the father has been violent towards his partners or the children.
There is no violence in the mother’s relationship with her husband.
There are no current family violence orders.
On balance I am satisfied there is now no obvious difference in the probabilities the parties will expose the children to family violence. The difference lies in the risks of direct and possibly physical conflict between the children and their parents. This risk is considerably higher with the mother than with the father.
As far as possible, the Court should make orders least likely to lead to further litigation. As this case demonstrates litigation is stressful, for parents and children. If the Court orders the children to live with their mother, future proceedings are certain. The children will not cooperate with such an outcome and enforcement or variation proceedings will follow. Similar issues arise if orders require the children to spend time with their mother against their wishes. This family have lived in the shadow of litigation since 2000. The children need relief from further conflict and both discussed with the Family Consultant their concerns that continuing litigation between their parents has in effect stood in their way from moving on with their lives. These are all matters which weigh in favour of the father’s case and warrants reasonable weight.
There is considerable overlap between sections 60CC(3), (4) and (4A). The mother says she has been denied the opportunity to participate in decisions concerning the children’s schooling and other major long term issues. I accept the father has denied her this opportunity and his stance has nothing to do with the children’s best interests. It has arisen as a direct consequence of the parties’ grossly dysfunctional relationship and their inability to discuss the children’s circumstances. Curiously, the mother unashamedly said she would not consult the father if the children lived with her. That is she would not consult him in the future because he had refused to consult her in the past. This demonstrates the parties’ complete inability to communicate and their total inability to rationally discuss their children’s future. The children cannot be held to ransom because of their parents’ refusal to address their relationship difficulties and focus on problem solving issues for the children as they arise. Reality indicates there is little prospect of improvement and whichever parent has the children’s primary care requires sole parental responsibility. This is the only way that appropriate and timely decisions can be made for the children.
As I have earlier commented, the father supports the children with virtually no financial contribution from the mother. There is no doubt the father has maintained the children in difficult financial circumstances and the mother’s failure to contribute appropriately warrants unfavourable comment.

Conclusion

By section 60B(1)(a) the Court is required to ensure that children have the benefit of a meaningful relationship with both parents, to the maximum extent consistent with the child’s best interests. In Mazorski v Albright (2007) 37 Fam LR 518, Brown J concluded that a meaningful relationship “Is one which is important, significant and valuable to the child.” The phrase is qualitative not quantitative. In closing remarks, counsel for the Independent Children’s Lawyer highlighted that the Court cannot change history or people. As I have earlier found, B has no relationship with his mother and does not want one. He interprets his mother’s decision to stop seeing him as abandonment and in the intervening years has increasingly repudiated his relationship with her. The years of no contact have irreparably damaged their relationship and it is now impossible to establish a relationship between B and his mother without taking steps inimicable to his best interests.
Similar issues arise with T, although the strength of her views and hence associated risks are less extreme than apply to B. Provided the mother respects T’s views and does not perpetuate her overt antagonism of the father, it is possible T and the mother may retrieve their relationship. Timing and circumstances are critical. The longer the periods T spends with her mother the greater the risk of overt antagonism towards the father. The mother’s forthcoming baby provides a happy family event with the baby’s presence likely to make it easier for T to engage her mother. Presumably the mother will focus more on T and the baby than T’s relationship with her father. While the father opposes T spending time with her mother in Queensland, he does not oppose T seeing her mother or speaking with her. At the end of the hearing, he was prepared to contemplate a “one strike and you’re out” approach to T visiting her mother in Queensland. By this I mean that in the event orders are made for T to visit her mother in Queensland, if the mother refuses to return T on time, those orders are discharged.
The mother’s baby is due in September 2008. New South Wales school holidays occur approximately four weeks after the baby’s anticipated arrival. Although T does not wish it, I will give the mother the opportunity to spend time with T in Queensland during the end of term three 2008 school holidays for one week. The totality of the circumstances maximise the mother’s chances for reconnecting with her daughter. Between now and then, the mother should commence counselling with an appropriately qualified professional therapist who has access to this Court’s judgments and the various reports prepared for each hearing. Although the mother denies she requires counselling and receives all the guidance she requires from her pastor and God, she clearly requires expert practical advice about how to manage her relationship with T. It will be disastrous if the mother approaches this visit with T using the same principles she applied with J and Y.
It is not possible to ensure the children’s lives are devoid of the various risks mentioned in s 60B(1)(b). Irrespective of with whom the children live there is a risk exposure to abuse and family violence. When provoked both parties are capable of using bad language and physical violence. Although bad language is unusual in the mother’s home the probability that the children may find themselves at odds with her indicates the risk of family violence in her home, for example of the type used with J, is higher than if the children live with the father. As the incident which resulted in the father’s conviction earlier this year demonstrates in the father’s care the children are more likely to see unprovoked violence towards others
In addressing s 60CC(3) my findings address the remaining s 60B objects. Nothing more needs to be said regarding these.
I am persuaded that there should be no orders requiring B to spend time with the mother.
T’s desire for a relationship with her mother indicates that orders enabling her to spend time and communicate with her are appropriate. The orders will provide for the mother and T to spend time together during T’s school holidays twice annually in Queensland. During the other two school holidays the mother may spend time in New South Wales, or Queensland if T agrees. Four visits annually to Queensland are highly unlikely to find favour with T. Twice annual visits supplemented by periods in New South Wales, strikes the right balance between T’s views, promoting her relationship with her mother and minimising the opportunity for conflict between them. Upon T turning 15 years, all orders for contact and communication with the mother will be conditional upon T’s views. If their relationship has repaired and improved, T is likely to welcome future contact with her mother which the father will facilitate. If in the intervening years it has continued to deteriorate, by the time T is 15 years she should be freed from the stress involved in maintaining a relationship which has failed.
The mother’s failure to pay child support makes it inappropriate to require the father to contribute to the costs of air travel. This will be the mother’s responsibility. With her husband’s financial backing she should be able to afford twice annual return air trips for T between Sydney and Queensland.
There remains a suite of implementation orders designed to facilitate communication of travel related and key parenting issues. So as to reassure T and the father that the Court understands their concerns the mother may again refuse to return T, if she fails all orders enabling her to spend time with T without further order are discharged. This approach should make it easier for the father to secure T’s co-operation in visiting her mother.
Finally there are no orders requiring either party to attend counselling or therapy. These parties are well aware of the vast array of counselling facilities available to them. If either was genuinely interested in improving their attitudes, parenting capacity and lessening the hostility between them they would have embraced these services previously. I do not believe that ordering these parents to attend counselling or therapy would achieve anything. My hope is they will but responsibility for this rests solely with them.
For these reasons the orders identified at the beginning of this judgment are in the children’s best interests.

I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date:

[2008] FamCA 572

11 July 2008

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