Prince and Walsh

[2012] FamCA 275

FAMILY COURT OF AUSTRALIA

PRINCE & WALSH [2012] FamCA 275

FAMILY LAW- CHILDREN- PARENTAL RESPONSIBILITY - RESIDENCE - Whether it is in best interests of children for parents to have equal shared parental responsibility – Where there is high conflict between the parents – Where the father seeks sole parental responsibility - Where the father seeks to relocate with the children – Where relocation is sought to a location several hours away from current location – Where regular time with mother is found to be destabilising  and not in best interests of children – Where sole parental responsibility is found to be in best interests of children and father is allowed to relocate with them – Where school holiday time only with the mother is considered in children’s best interests

Family Law Act 1975 (Cth) s 60B(1), s 60B(2), s 60CA, s60CC(2), s60CC(3), s60CC(4), s60CC(6) s61DA(2), s61DA(4) and s 65D

APPLICANT: Ms Prince

RESPONDENT: Mr Walsh

INDEPENDENT CHILDREN’S LAWYER: Damien Carter

FILE NUMBER: BRC 8241 of 2009

DATE DELIVERED: 30 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 April 2012

REPRESENTATION

FOR THE APPLICANT: Ms Prince in person

FOR THE RESPONDENT: Mr Walsh in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Solicitors

Orders

1. That all previous parenting orders are discharged.

2. That the children, B, born … October 1996, and W, born on … January 1999, (“the children”) shall live with the father.

3. That the father has sole parental responsibility for the children subject to the obligation to inform the mother in writing of any decision he makes in respect of major-long term issues (as that term is defined in s 4 of the Family Law Act 1975 (as amended)) in respect of the children.

4. That the father is at liberty to relocate the residence of the children to Town C during the second week of the June/July school holidays, 2012.

5. That until the father relocates the residence of the children to Town C the children shall spend time with the mother on each alternate weekend from after school Friday until 5:00 pm on Sunday commencing on Friday 11 May, 2012, as well as in the first week of the June/July school holidays, 2012.

6. That after the father relocates the residence of the children to Town C the children shall spend time with the mother for all of the first half of Queensland gazetted school holidays, save that in 2013 and alternative years thereafter they shall return to the father’s care at midday on 23 December and go back into the mother’s care at midday on 2 January thereafter, staying with her until they have spent half of those December/January school holidays with the mother.

7. For the purposes of determining half of the school holidays, the school holidays shall be deemed to commence at midnight at the end of the last day of school each term and to conclude at midnight at the beginning of the first day of school each term with the children to be delivered by the father to the mother’s care at midday on the first day of each school holidays and, save as otherwise provided for herein, collected by the father from the mother’s care at midday on the day on which the exact half way point of the holidays falls, and should the exact half way point be at midnight then the children shall be collected from the mother at midday the next day.  

8. The children shall transition from the father’s care to the mother’s care and from the mother’s care to the father’s care outside the Town D Police Station unless otherwise agreed between the parties in writing in advance, save for on the Friday afternoons remaining in the current school term where they are to go into the mother’s care where transition can occur by the mother collecting them from school.

9. The children shall communicate with the mother at their discretion but the mother shall only initiate unsolicited communication with them on two occasions each week.

10. The father shall keep the mother informed as to the health and educational progress of the children including as to the names and contact details of medical practitioners who may treat either or both children from time to time and as to the name and address of any school attended by either or both children and this Order is authority for any such medical practitioner or school to provide the mother with any information she may request of them that they are lawfully able to provide.

11. The mother and the father shall keep each other informed as to their residential address, landline and mobile telephone numbers and shall advise the other within 24 hours of any change to those details.

12. The Independent Children’s Lawyer is discharged.

13. Pursuant to s 65DA(2) and s 62B, 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prince & Walsh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8241 of 2009

Ms Prince

Applicant

And

Mr Walsh

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The two brothers, 15 year old B, born in October 1996, and 13 year old W, born in January 1999, have lived with their father, Mr Walsh, since shortly after their parents separated in 2003. They were initially placed in their father’s care by the Queensland Department of Communities (Child Safety) in 2003 after being removed from their mother’s care. After a hearing in this Court, Jordan J made final orders on 29 July 2005 that included an order that provided that they continue to live with their father.

2. Jordan J’s orders also provided for the two brothers to spend time on a regular basis with their mother, Ms Prince.  There was a gradual introduction of the time they were to spend with her from the date of the order through until July 2006. From that time on, Jordan J’s order provided for them to spend time with her each alternate weekend from after school Friday until the commencement of school Monday and half of all school holidays.

3. On 15 September 2009, the mother sought to change the boys’ living arrangements.  She filed an application in the Federal Magistrates Court, Brisbane, in which she sought orders that provided for equal shared parental responsibility and for the boys to spend equal time living with each of their parents.

4. On 23 April 2010, the father filed a Response in which he sought orders discharging Jordan J’s previous orders, providing for the parents to have equal shared responsibility for the said children but with the children to continue living with him and with him being allowed to relocate them with him from Town D, where they were then living, to Town C.  That same day Federal Magistrate Burnett, after hearing the parties’ competing applications, made orders appointing an Independent Children's Lawyer and transferring the matter to this Court.

5. On 12 November 2010, the father filed an Amended Response in which he sought orders somewhat different from those he previously sought. The principal difference was that he now sought sole parental responsibility instead of equal shared parental responsibility.

6. The matter was then case managed by a Registrar and listed for a first day of trial before Justice Barry on 29 March 2011.  In March 2011 the trial management directions were varied and the matter was eventually listed for a first day of trial before Justice O’Reilly on 4 May 2011. 

7. On 4 May 2011 Justice O’Reilly directed that an Application in a Case then foreshadowed by the mother, in which she was going to seek an increase in the time that the children were spending with her, if filed, be listed for hearing on 14 June 2011.  No such application was filed and on 20 July 2011, Registrar Kane made trial directions that included a direction that each of the parties file and serve affidavits of evidence in chief by 19 August 2011.  The mother was to file her own affidavit, an affidavit by her mother, Ms E, an affidavit by her sister, Ms F, an affidavit by her partner, Mr S, an affidavit by Mr G, a friend of the family, and an affidavit by the children’s general practitioner. It is presumed that the directions referred expressly to those persons based on the expressed intention of the mother, stated at the time, to rely on evidence from each of them. Certainly, at trial, that direction having been brought to the attention of the mother, the mother did not assert contrary to that presumption.

8. On 31 August 2011, Registrar Kane extended the time within which the parties were to comply with her 20 July 2011 direction in respect of the filing of affidavits of evidence in chief. The parties were then given until 5 October 2011 to do that. 

9. The father complied with those trial directions and filed affidavits of evidence in chief by himself and his partner, Ms J.  The mother filed no affidavits at all.  On 26 October 2011, Murphy J set the matter down for trial for two days commencing on 10 April 2012.   Murphy J’s orders included a notation that the mother remained non-compliant with trial directions and that consideration be given by the trial judge to hearing and determining the matter on an undefended basis.

10. When the matter came before me at 10.00 am on Tuesday, 10 April 2012, the applicant mother appeared and was unrepresented. The respondent father appeared and was also unrepresented and the Independent Children's Lawyer was represented by experienced counsel. 

11. The respondent father relied upon the affidavits of evidence in chief that were filed on 30 August 2011 in accordance with the trial directions.  He also relied on a further affidavit that he had sworn and filed on 26 March 2012 which contained a short amount of evidence relating to recent developments in respect of the boys.

12. The ICL relied upon a report prepared by psychiatrist, Dr M, in April 2011, in addition to three reports by the consultant social worker, Mr H, prepared in September 2010, September 2011 and as recently as early April this year.  Each of those reports had been commissioned by the ICL.  The ICL also tendered into evidence a bundle of documents extracted from Queensland Police Service records, Department of Communities (Child Safety) records and Education Queensland records that had been produced pursuant to subpoena prior to the trial. Ultimately, I was greatly assisted by these expert reports and the opinions proffered by the two experts.

13. The mother had filed absolutely no affidavit material pursuant to the trial directions and informed the Court that she had simply had no time to do so.  Additionally, she said she had been unable to obtain legal representation, privately or through Legal Aid, and that she did not know how to prepare affidavits.  I determined, having regard to the length of time that this matter has been pending in this Court, the trial directions I have already referred to that had been made in July and varied in August 2011, of which the mother confirmed that she was acutely aware, and the expert evidence that I had already read, that I should proceed to hear and determine the competing applications that were listed before me notwithstanding the fact that the mother had put no evidence before the Court. 

14. The trial proceeded with the mother being cross-examined by the father and by counsel for the ICL, notwithstanding not having filed affidavit evidence. The father was later cross-examined by the mother and counsel for the ICL. The psychiatrist, Dr M, was cross-examined by the mother and the social worker, Mr H, was cross-examined by the mother.

15. The matter concluded in slightly less than one day. 

16. At the end of the trial, counsel for the ICL submitted that this Court should make an order conferring sole parental responsibility upon the father and further parenting orders that included the children living with the father and the father being allowed to relocate their residence to Town C.  Counsel for the ICL further submitted that it would be in the best interests of the boys for orders to be made providing for them to spend time with their mother for half of Queensland school holidays.  The father urged me to make similar orders.  The mother argued that the boys not be allowed to be relocated to Town C and that they live half the time with her or, alternatively, that they  at least continue to live with their father in the local area and spend time with her in accordance with the existing orders.

17. I have determined to make orders largely in accordance with the submissions made on behalf of the Independent Children's Lawyer and supported by the father. 

The Principles to be Applied

1. Part VII of the Family Law Act 1975 (“the Act”) sets out the statutory framework within which parenting orders are to be made by the Court. The Court is given discretionary power to make such parenting orders as it thinks proper.[1]  In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration[2] and must apply a rebuttable presumption that it is in the best interests of a child for its parents to have equal shared parental responsibility in respect to that child.[3] The Court must, having regard to the objects of Part VII[4] and the principles underlying those objects[5], consider certain express “primary” considerations[6] and “additional” considerations[7] in determining what is in the child’s best interests. The Court must also consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in respect of some further particularly identified matters[8].

   [1]Family Law Act 1975 (Cth) s 65D.

   [2]Family Law Act 1975 (Cth) s 60CA

   [3]Family Law Act 1975 (Cth) s61DA

   [4]Family Law Act 1975 (Cth) s 60B(1)

   [5]Family Law Act 1975 (Cth) s 60B(2)

   [6]Family Law Act 1975 (Cth) s60CC(2)

   [7]Family Law Act 1975 (Cth) s60CC(3)

   [8] Family Law Act 1975 (Cth) s60CC(4)

2. The presumption referred to does not apply in circumstances of abuse or family violence[9] or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility for that child.[10]

   [9]Family Law Act 1975 (Cth) s61DA(2)

   [10]Family Law Act 1975 (Cth) s61DA(4)

3. If an equal shared parental responsibility order is made the Court must consider whether the child spending equal time with each parent is in the child’s best interests and is reasonably practicable. If satisfied as to both, then the Court must consider making such an order and, if not, then must consider whether the child spending substantial and significant time with each parent is in the child’s best interests and is reasonably practicable. If satisfied as to both of those matters, the Court must then consider making such an order (s 65DAA).[11] Determination of the reasonable practicability of equal time or substantial and significant time with each parent is made by reference to the factors identified in s 65DAA(5).

   [11]Family Law Act 1975 (Cth) s65DAA

4. If an equal shared parental responsibility order is not made then the Court may make such parenting orders as it considers proper by regard to the best interests of the child.

5. The determination of competing parenting orders applications in which one parent seeks to relocate the residence of the children to a different part of the State or a different part of the country or a different part of the world, is done in accordance with the same principles just outlined and pursuant to the same statutory pathway.  In determining the appropriate parenting orders to make, the Court must have regard to the competing proposals of the parents but, of course, it is not limited to the consideration of only those proposals.  In this case, in addition to the three proposals already identified as put forward by the parties, another option available to the Court would be, of course, to make orders that the children live with the mother and spend time with their father, thus allowing him to move to Town C without them, if he still considered that appropriate.  No one advanced that as a realistic proposition in this case, but I suspect that the mother simply did not propose it because she had not thought of it.  I mention it simply to demonstrate that all possible options for the future parenting of these children have been given consideration by the Court on the hearing of this matter. 

The Evidence and my Findings

1. The mother and father commenced their relationship in or around 1992 and separated on a final basis in 2003.  When their relationship commenced, the father was only 17 and the mother was only 15. She had experienced a traumatic upbringing, exposed to abuse. Each of them had poor relationships with members of their own families.

2. There is much conflict between them as to the nature of their relationship during the time they were living together as a couple.  The father asserts that the mother suffered from a chronic problem with drug abuse and that she has mental health problems. He asserts these led to her being increasingly paranoid and violent towards him. The mother concedes her own drug addiction but asserts that the father also had drug problems and that she was the victim of acts of physical violence perpetrated by the father.  Matters reported by Mr H as having been told to him by the mother at least support a finding that the mother was indeed abusive to the father during their relationship.

3. On separation, the mother apparently formed a relationship with another man and left Queensland and travelled to Victoria with him, taking the children with her. Seemingly not in issue at all is the fact that the children were removed from the mother’s care soon thereafter pursuant to State child protection laws and placed into the father’s care.  They have lived with him principally ever since.

4. The mother remained in a relationship with the same man until 2007. This was notwithstanding the fact, as she reported to Mr H, that he was extremely violent to her. In 2007, the mother was imprisoned for several months. According to the father, she was arrested after a high speed police pursuit, with the children in an unregistered motor car and driving whilst disqualified. However, Queensland Police Service records tendered into evidence set out the mother’s criminal history.  It reveals that in 2007 the mother had been charged with four counts of unauthorized dealing with shop goods and one count of failing to dispose of a needle and syringe and that on three occasions she had failed to attend court to answer those charges, in breach of her own bail undertaking. She was obviously arrested at some point, pursuant to a warrant that had issued, and taken before the Magistrates Court, where, in May 2008, after having served approximately three months in prison, having been denied bail, she was convicted of those offences and another one of stealing and immediately released, her pre-sentence imprisonment being declared to be her time served.

5. The mother began seeing the boys again upon her release and, at the same time, entered into a new relationship with another man. In fact, she and the new partner moved into a home not far from the residence in which the father lived with his new partner and the boys.  The mother’s uninvited attendances at the father’s home, accompanied by her new partner and others, led to a significant increase in conflict between her and the father. In fact, the boy, W, reported to Mr H that on one such occasion “lots of people tried to get Dad and threw glass bottles … all I heard was glass smashing and people running through the backyard.”

1. Both boys reported to Mr H at the interviews for the first report that they did not like the mother’s new partner. Mr H also knew him from another family assessment he had done and expressed the opinion that any conflict between the mother and him would “scarcely be contained”.

2. Mr H expressed the concluding view in his first report that the boys had enjoyed far more stability in the father’s care than they would have experienced in the mother’s care. They had though, in all these circumstances, still retained a bond with their mother, who they wanted to keep seeing. However, Mr H said that he considered a shared time arrangement to be “contraindicated”.

3. By the time of the second report prepared by Mr H, the parties had been assessed by Dr M. The psychiatrist observed that she was unable to make an AXIS I diagnosis but expressed the opinion that the mother was possibly still continuing to abuse substances. She ultimately offered the opinion that the mother likely has a histrionic personality disorder, which she described as a pattern of excessive emotionality and attention seeking. In contrast, she noted the father did not present with any psychiatric illness.

4. In his second report, Mr H records the mother as having told him that she was actually being treated for post-traumatic stress disorder and also obsessive compulsive disorder. At the trial, the mother maintained that she had been diagnosed, multiple times, as suffering from post-traumatic stress disorder. She effectively challenged Dr M in cross-examination in respect of her opinion about histrionic personality. She asked the doctor, as well as she could, whether the symptoms the doctor considered in forming her opinion could be just as attributable to a diagnosis of post-traumatic stress disorder. Dr M answered in the negative, but she conceded that histrionic personality disorder and post-traumatic stress disorder can co-exist in a person and went on to stress that they manifest themselves in totally different ways.

5. There is no reason for me not to accept Dr M’s evidence and her opinions. The mother put no evidence before me that would cause me to even consider doing anything other than that and my own observations of the mother in Court confirmed that she presented in the manner that Dr M described was symptomatic of histrionic personality disorder.

6. Mr H, in his second report, observed that the mother had, since the first report, again changed partners. She was, at the time of that second report, in a relationship with another man and had been for several months. She is recorded as having told Mr H that they intended to marry and have a child and that she did not consider such decisions to have been hastily made. She was aware that the new partner had spent time in prison, attributing that to stealing offences, but was observed by Mr H to “act vague” about this subject. Queensland Police records revealed the partner’s criminal history to include imprisonment in 2001 for armed robbery with actual violence in company and more recent convictions for drug offences. When this was pointed out to the mother during the trial, she confidently asserted that she had managed to keep the partner out of trouble since they began their relationship and that he was now a changed man. I cannot say that I was necessarily reassured by the mother’s apparent confidence.  

7. Significantly, the new partner did not attend upon Mr H for an interview although Mr H had requested his attendance. The mother said that it had been impossible for him as he would “lose his job if he attended”. At the trial though, the mother gave oral evidence that she and the new partner were in fact starting up their own business and that it was that which prevented the new partner from attending upon Mr H for the interview. The mother gave varying accounts over a short period of time in the witness box as to how long this business had been operating, ranging from only four months to around a year. There was no better explanation offered as to why the new partner was not with her at Court for the trial. In fact, the father challenged the mother as to whether the relationship is still current. The mother asserted that it is. If it is, the mother’s failure to ensure that her partner attended upon Mr H or gave evidence to this Court did not assist her case.

8. In his second report, Mr H noted that the mother was then asserting a need to change the parenting arrangements because the father physically abused the boys at home and did not care for them properly or take care of their educational needs. He observed that the father remained in the same employment in healthcare as he had been in at the time of the first report and that he was still in a relationship with Ms J. The child of the father and Ms J, a little boy, was three years old at the time of the second report. There is, at least, demonstrated stability in the father’s relationship with Ms J.

9. For that second report, Mr H interviewed the two boys individually and also with their parents. He pointed out that each of the boys told contrasting stories about the alleged abuse at the hands of their father. The older boy, B, denied any such abuse but the younger boy, W, said that his father had been abusive to him. Mr H was sceptical of the truth of the information he was getting from W. He opined that W, who, the evidence establishes, is a boy with a lot of educational, developmental and behavioural problems, was being subject to some pressure from both parents in respect of what he was to say to Mr H during the interview. However, he expressed the opinion that there was more concerted pressure from the mother in this respect. I am satisfied it is likely that W has been put under some pressure from his mother to tell Mr H that his father abused him. I am not satisfied that his father has abused him.

10. Both parents agree that W is emotionally immature for his age and is quite a challenge when he misbehaves and becomes determined and impulsive. I am satisfied that the father manages this in a committed, appropriately child focused way. His partner, Ms J, apparently struggles with W’s behaviour but the two of them, I am satisfied, do work together as a couple to manage that behaviour. Mr H expressed the view that the father appeared “particularly cogent” when accounting the history of the boy’s asthma problems and his behavioural issues and how he dealt with them.

11. Mr H did not offer the assessment that the children are neglected in the father’s household as the mother would have the Court accept. He did though express the view that W’s difficulties are such that proper management requires particular attention to detail by both parents and good communication between them. I accept that assessment and agree with Mr H’s opinion that the required level of communication between the parents is not available in this case.

12. Mr H again proffered the view that the boys should not live in a shared time arrangement between the parents. He described the mother as “a very unstable woman with a fixation upon the children’s relationship with their father which borders on the obsessional”. I am satisfied, after having observed the mother in Court during the course of the trial that Mr H’s assessment, sadly, is accurate.

13. The mother made much of allegations that the boys have run away from the father’s care to live with her on at least three occasions over the last fifteen months. One of those was early last year. One was immediately after the interviews for Mr H’s second report and the last time was earlier this year. She asserts this supports her position that the boys are treated badly by their father and that they would prefer to live with her. I do not accept that it does.

14. The father certainly accepts that the boys went to their mother’s home and were not returned to his care for some weeks on two occasions last year and that the same thing happened with W again earlier this year. He does not accept that the actions are reflections of the boys’ dissatisfaction with his care, but regards them as more of a knee-jerk response by them to his managing difficult behavioural issues, where their mother is encouraging them to react that way. Despite the mother’s protestations that she sought, on each occasion, to meet with the father and discuss the problem and reach some satisfactory conclusion, I am convinced that the boys’ actions, in going on each occasion, were responses to the mother’s encouragement of them to act that way and her enmeshment of them in her emotional plight and that she did not really seek any outcome on each such occasion other than having them continue to live with her. I consider that she has quite selfishly encouraged the boys to act in this disruptive way without regard for its impact upon them.  That was clearly Mr H’s opinion and I accept it.

15. I do not consider that the boys’ actions support a finding that the father does not care appropriately for them or that they actually would prefer to live with the mother. Indeed, the evidence is that B happily remained in his father’s care on the most recent occasion that W went to his mother’s home, continuing to go back and forth between his parents’ homes for the whole time that W remained at his mother’s home. W ultimately returned to his father’s care after the intervention of Mr H and the ICL and without any real opposition.

16. Although I was a little concerned about the father’s attention to the boys’ daily attendance at school because the school records put before me appeared to show that they sometimes miss school days and are late to school to their disadvantage, it was not totally clear to me that this was not somehow linked to the conflict with the mother in recent times. That issue aside, I am otherwise satisfied that the boys’ day to day needs are adequately provided for in the father’s home and that this is the case despite receipt of minimal financial assistance from the mother. The father has demonstrated appropriate attention to the health needs of the boys, particularly W who suffers quite seriously from asthma. I am equally satisfied that the boys do not face an unacceptable risk of physical or emotional abuse being cared for principally by their father.

17. Significantly, Mr H concluded his most recent report as follows:-

    In my view, [W] is a boy who is under the emotional control of his mother. This is partly because he is the more vulnerable of the brothers and an easier target for her. His mother is an erratic and impulsive person who desperately seeks to retain the boys with her. The high reliance she places on the account of [W] is because it is the accounts [sic] that she prefers, given that it fits with her needs.

    [W] is a difficult child to manage. He would be a challenge in any household. I note that one difference between the parents is that [the mother] buys things for the boys and relates to them much like a friend, rather than a mother. [The father] has a far more authoritative manner with them and it appears apparent that he attempts to keep [W] in control.

    I fear that [W] is heading for an adolescence of even worse magnitude than his childhood, if this pattern continues. Already, the problems are there. He needs structure and control and he needs to spend as much one-on-one time with his father as possible.

    My view is that – if [W] were to reside with his mother – it would cause irreparable emotional harm and significantly impede his adolescent development. Already this development has been impeded.

    It is relatively evident that there will be further such incidents [running away to his mother]. A continuation of this pattern will merely lead to extreme disruptions in school and attachments and continue to re-enforce the problems that have affected these children up until this point in time.

18. Mr H observed this family over a period of approximately eighteen months. His observations greatly assist me in determining that it would be in the boys’ best interests to let the father relocate with them to Town C. When Mr H gave oral evidence during the hearing, he expressed the view that if the father is allowed to relocate the boys to Town C that the maintenance of the boys’ relationship with the mother would best be addressed by providing for them to spend time with her during school holidays. It was his view that would also provide, importantly, for the maintenance of a stable routine in respect of their schooling, which is clearly very important for them at this point in their lives.

19. The mother displayed quite a bit of emotion at the trial, particularly when the possibility of the boys relocating to Town C was discussed. Her responses were inconsistent though as that matter arose during the course of the day. Initially, when asked in cross-examination when she would see them if the boys moved to live in Town C, she responded by saying “never, not unless [the father] could pay for them to come down”. Later, she insisted she would move to Town C if the boys were relocated there, with no apparent thought for her current circumstances, including her current relationship. I was not convinced she actually meant that. She was erratic, emotional and completely unrestrained during the hearing. This was reflective of what the experts opined about her and, I am satisfied, is indicative of how she would behave in life generally, particularly when confronted with a crisis. The boys would be well served by having respite from this. The father’s proposal provides for this. That is, I understand, the principal basis for the submission made on behalf of the ICL supporting the father’s proposal. In my view, there is merit in the proposal.

20. During the course of the trial, the mother asserted that the boys, through her, are of Aboriginal descent. She made the point that the father does not accept this and, effectively (although she did not express her position so clearly), that, by living with him, they are therefore denied a connection with Aboriginal culture and the right to develop a positive appreciation of that culture.

21. If a child is an Aboriginal child, ss 60CC(3)(h) and (6) require me to consider the child’s right to enjoy his Aboriginal culture and the likely impact any proposed parenting order will have on that right. The difficulty in this respect in this case is that the father quite fervently denied the mother’s assertion. He asserted that the mother’s claimed Aboriginality is something that she never asserted during their relationship and is something that has only emerged since their separation. He asserted that he has never seen any proof that the boys are of Aboriginal descent.

22. As the mother put no affidavit evidence at all before the Court, I was left having to consider her assertions made orally during the trial. I was not satisfied on the balance of probabilities that the boys are of Aboriginal descent or that the mother herself maintains any real connection with Aboriginal culture. I am, therefore, comfortable when making the orders that I do that ss 60CC(3)(h) and (6) are not applicable to this case.

The Parenting Orders

1. I am quite satisfied that the statutory presumption that it is in the boys’ best interests for their parents to have equal shared parental responsibility is rebutted in this case by the history of family violence between the parents. Further, the obvious enmity that exists between them and their demonstrated inability to be able to work together persuades me that conferring equal shared parental responsibility on them is not in the best interests of these boys. I do not accept that the two parents could negotiate any major long-term decisions without further conflict arising. There is no evidence that persuades me that the shared responsibility order made by Jordan J in 2005 has proved beneficial to these boys.

2. My orders provide for the boys to continue living principally with their father. If the father and his partner continue to hold to the view that Town C is where they want to live then they will be permitted to relocate the boys to that place. I am satisfied that it is likely that the father will move there and take the boys there to live. He has researched employment prospects there and considers them to be favourable. He has researched prospective schools and programs for the boys and, for appropriate reasons, considers them suitable to the boys’ needs. He has also made appropriate enquiries of W’s treating medical specialist as to the availability of suitable treatment in Town C. The father’s current partner would also benefit from the move to Town C, gaining much needed support from members of her family who live there. The positive impact of that would flow through to the father and the boys.

3. I am satisfied the mother has no insight into the impact of her destabilisation on the development of the boys and that there is unlikely to be any improvement in this regard in the foreseeable future.  Granting equal shared parental responsibility and putting in place a shared parenting regime with the two parents continuing to live near to each other would simply perpetuate circumstances where the boys’ lives continued to be subject to erratic destabilisation by the mother. That would continue to have serious impact on their schooling as it already has in the last eighteen months. That would not be in their best interests. I will not be making an equal shared parental responsibility order.

4. I am convinced that it is in the boys’ best interests for their father to have sole parental responsibility for them, allowing him to get on with the very difficult task of parenting the two teenage boys without the destabilising influence of having to co-parent with the mother on a day to day basis or in respect of major long-term decisions.

5. I am satisfied that of all the available parenting proposals the one proposed by the father that involves him moving to Town C with his partner and their young son as well as the two teenage boys is the one that best serves the interests of the two boys. It best protects the boys from further psychological turmoil that very frequent time spent with their mother is likely to cause. The maintenance of the relationship with their mother will be provided for by orders that they spend time with her in the school holidays. Whilst providing optimum stability during school term, such visits will ensure that the boys, particularly W, do not begin to inappropriately idealize their mother as Mr H was concerned might happen if they do not spend any time with her.

6. I will make orders that provide for the boys to spend half of their school holidays with the mother and for the father to bring them down to her and to come back and collect them from her at the end of the time. The boys will spend the first half of each holiday in each year with the mother. That is what the ICL submitted is the most appropriate provision, thus allowing the father time to recover the boys and get them home in time for school if the mother seeks to hold them over at the end of the visit, as was submitted, and I accept, is a risk. 

7. The father will likely be concerned that such orders place all responsibility on him to get the boys down to Town D for the holiday visits and back to Town C when they finish, but I am satisfied it is the best way to ensure that the boys actually do get to come down and spend time with their mother and that they actually do go home to the father at the end of the holiday visits.

8. My orders will provide for the boys to spend each second Christmas festive period with their father so they can also get to spend that generally joyous time for families at home with their father, step-mother and younger brother every second year.

9. The evidence satisfies me that the mother provides mobile telephone capability to the boys. I am sure she does that so that she can communicate with them whenever she wants to and to facilitate their contacting her whenever they want to. I was a little troubled by this fact but the father did not express any significant concern about it, considering that it gives him the ability to contact the boys also when they are with their mother. I propose making orders that allow the boys to contact the mother at their discretion but to limit the mother’s unsolicited communication with the boys to two occasions each week. I consider that necessary to provide for undisturbed stability.

1. My orders will set out how the holiday time the boys spend with the mother is to be calculated and when it is to start and finish. They will provide for transitions to take place outside the Town D Police Station. I generally do not consider that an ideal location for transitions of care but in this case I consider that the volatility of the mother’s personality warrants such a requirement. The mother is far more likely to be appropriately restrained at such location.

2. My orders also provide for the parents to keep each other informed of their residential addresses and phone number and for the father to keep the mother advised as to the boys’ health and education. The mother has shown interest in the schooling of the boys and, as I expect that to continue, the orders I make will facilitate her contact with the school the boys attend and the provision of relevant information to her.

3. I make the orders set out at the outset of this reasons for judgment.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 30th April 2012.

Associate:   

Date:  30 April 2012