Purcell and Smith

[2010] FamCA 1203

FAMILY COURT OF AUSTRALIA

PURCELL & SMITH  [2010] FamCA 1203

FAMILY LAW – CHILDREN – Separated siblings – Equal shared parental responsibility – Parentage testing procedures – With whom a child lives – Religious differences

APPLICANT: Ms Purcell

RESPONDENT: Mr Smith

INDEPENDENT CHILDREN’S LAWYER: Coleman & Greig

FILE NUMBER: PAC 5097 of 2009

DATE DELIVERED: 23 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 21, 22 and 23 September 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mount Druitt & Area Community Legal Centre

SOLICITOR FOR THE RESPONDENT: Self Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Levy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coleman & Greig

Orders

1. That all previous parenting orders be discharged.

2. That the mother and father have equal shared parental responsibility for the children, J born … June 1996, N born … August 1999 (“the boys”), E born … June 2001 and C born … October 2003 (“the girls”) (collectively “the children”).

3. That the children live with the father. 

4. That the children spend time with the mother as follows:-

   4.1during school terms each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday;

   4.2during 2011 and 2012 the girls shall spend one additional weekend in each calendar month with the mother;  such additional weekend to be nominated not less than fourteen days in advance by the mother.

   4.3notwithstanding any other orders, on the Mother’s Day weekend from 6.00 pm Friday to 6.00 pm Sunday;

   4.4half of term one and term three actual school holiday periods from 6.00 pm on the last day of the school term to 6.00 pm to the day being the mid point of the school holiday period;

   4.5all of the term two actual school holiday period from 6.00 pm on the last day of school to 6.00 pm on the last Sunday prior to the commencement of school;

   4.6failing agreement otherwise, from 5.00 pm 25 December 2010 until 5.00 pm 4 January 2011 and from 10.00 am 14 January 2011 until 5.00 pm 27 January 2011 and thereafter for four weeks of the Christmas school holiday period each year and failing agreement, for the second, third, fifth and sixth week of the Christmas school holiday period commencing at 6.00 pm on Sunday and concluding at 6.00 pm the following Sunday;

   4.7notwithstanding any other order, for one day during the following Islamic festivals:-

   4.7.1Eid-Ul-Fitr; and

   4.7.2Eid Ul-Adha.

   4.8in the event that the children are not otherwise living with the mother pursuant to these Orders, from 5.00 pm 25 December to 10.00 am 27 December in even numbered years commencing on 25 December 2012 and from 5.00 pm 23 December to 10.00 am 25 December in odd numbered years commencing in 2011.

5. That notwithstanding any other order the children shall live with the father from 10.00 am 24 December to 5.00 pm 25 December in even numbered years commencing in 2012 and from 10.00 am 25 December to 10.00 am 27 December in odd numbered years commencing in 2011.

6. That for the purposes of orders 4.1, 4.2 and 4.6 (during school terms) the mother shall collect the children from the home of the father at 6.00 pm and deliver the children to the home of the father at 6.00 pm on the Sunday.

7. That for the purposes of orders 4.4, 4.5 and 4.6 the father shall deliver the children to the home of the mother at 6.00 pm on the last day of school and the mother shall deliver the children to the home of the father at 6.00 pm Sunday the following week.

8. That for the purposes of order 4.7 the mother shall collect the children at 6.00 pm on the day prior and deliver the children to the home of the father at 6.00 pm on the day.

9. That the father shall ensure that there is no sexually explicit and/or “Adults Only” rated material in his home such material to include but not be limited to books, magazines, DVDs and electronic games.

10. That the parties are restraining from attempting to convert the children from the Christian faith.

11. That each of the parents may provide all reasonable information that the children request in relation to matters of religion and faith and each is restrained from criticising the faith of the other in the hearing or presence of the children.

12. That the parties are restrained from speaking or teaching the children any other language other than English until the children have been assessed or diagnosed that they have no learning disorders or speech impediments or speech delays.

13. That the children are not to be relocated outside of the Sydney area, bounded by Sutherland, Campbelltown, Penrith and Hornsby, without the written consent of the other parent.

14. That the parties authorise the children’s schools to make available to each party all documents, newsletters, reports, notices, photographs etc from the children’s schools, sporting and social groups or other bodies that the children may be involved with, at each party’s own expense.

15. That the father shall be entitled to enrol each of the girls at a school convenient to his home and thereafter each of the parents is restrained from changing the enrolment of the children or any of them without the prior written consent of the other parent.

16. That the parents shall consider the wishes of J in consultation with each other in the matter of time to be spent with each of his parents; and likewise the wishes of each of the other children as each one turns 14 years of age.

17. That each parent take all necessary steps to participate in the “Keeping in Contact” programme and to continue in that programme as long as it is recommended by the relevant counsellors.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5097  of 2009

MS PURCELL

Applicant

And

MR SMITH

Respondent

REASONS FOR JUDGMENT

Background

1. These are competing applications for parenting orders by the parents of four children.  They are J born in June 1996, N born in August 1999, E born in June 2001 and C born in October 2003.  The children have not lived together as a group since 2006 when their parents separated.  The two older children (the boys) have lived with their father and the two younger children (the girls) have lived with their mother. 

2. The father lives in the home of his own mother in the northwest suburbs of Sydney.  The mother has remarried and has two children to that marriage, R born in April 2007 and H born in March 2010.  The mother lives with her husband in the eastern suburbs of Sydney. 

History

1. The father, Mr Smith, was born in 1976.  He was 34 years at the time of hearing.  The mother was born in 1980 and was 30 years at the time of hearing.

2. The parties met in mid 1995 when the mother was 15 years and the father 19 years.  Within a very short period of time the mother was pregnant.  J was born three weeks after his mother turned 16 years of age.

3. Initially, the parties lived in the home of the maternal grandparents, however, they were obliged to leave that home. The reason for the forced departure related to the criminal record of the father.  In or about 1994 the father was charged and convicted of sexual assault.  The father was in a relationship with the young woman in question who was apparently under the age of consent.  The father was sentenced to two years periodic detention.

4. The mother says that she and her family had been totally unaware of the offence, conviction and sentence of the father.  The father had regularly left the home at weekends but she had not known why and did not ask.

5. The maternal grandmother was fostering children at the time the young couple came to live in her home.  Apparently a mandatory check on the background of the father was undertaken and his criminal conviction was reported to the maternal grandmother.  For that reason the parties left the home of the maternal grandparents and moved to live, initially, with M Smith, the brother of the father and then to the home of the paternal grandmother.

6. The parties were married in February 1999 when the mother was 18 years and the father 22 years.  Their second child, N, was born in August that year.  During the pregnancy with N the parties purchased a home in the outer west of Sydney where they lived together for almost seven years.  The parties’ third child, E, was born in 2001 and the fourth child, C, in 2003.  The mother was by then 23 years of age.

7. By late 2005 the marriage was breaking down and in January 2006 the parties separated.  At that time the mother took the younger children, E and C, then aged 4 and 2 years, with her.  The parties agreed that the older children, J and N, should stay with the father so that they could continue in their school.

8. The mother in 2005/2006 had become interested in the Islamic religion and subsequently converted and was at the time of hearing a practicing Muslim, as is her current husband. 

9. The father is a Catholic, as the mother had been prior to her conversion.  All four of the parties’ children were baptised in the Catholic faith.

10. In 2006 the mother travelled to Egypt.  The parties agreed that E and C would live with their father and brothers while the mother was away. 

11. The mother was absent from Australia for approximately seven weeks.  During that time she married Mr S under an Islamic ceremony in Cairo.  On her return from Egypt and without prior notice to the father, the mother collected E and C from their day care centre and took them back to live with her.  She was soon after served with an Application by the father for residence of all four children.

12. On 8 November 2006 orders were made by consent pursuant to which J and N, the older children, lived with their father, and E and C, the younger children, lived with their mother.

13. In April 2007 the mother gave birth to the first child of her current marriage, R.  Four months later Mr S arrived in Australia on a “Fiancé Visa” and the parties were married in Sydney in October 2007.  Subsequently, in March 2010, the second child of the marriage, H, was born. 

The Applications

1. The history of applications over the last 12 months is a reflection of the level of conflict between the parties.  The mother filed an Initiating Application on 30 October 2009.  At that time she sought equal shared parental responsibility, that the four children live with her, that the father spend time with the children supervised in a contact centre progressing to day contact at defined times after the completion of a “community based sex offender treatment program”. 

2. On 12 January 2010 the father filed a Response seeking the return of the older child, J, to his care and otherwise asking for confirmation of the status quo, that is the division of the children, the two older with the father and the two younger with the mother and arrangements for periods of time so that the children would be together each weekend in the two different households.

3. On 20 January 2010 the father filed an amended Response in similar terms but seeking an order that the parties be restrained from enrolling any child at a school other than a Christian school without the written consent of the other party.

4. On 26 August 2010 the mother filed an amended Application seeking orders being a confirmation of the status quo, that is the two older children with their father, the two younger children with her and with joint parental responsibility for long term decisions and alternate weekends and holiday times so that the children were together as much as possible.

5. On 31 August 2010 the father filed an Amended Response seeking shared parental responsibility, residence with him and alternate weekends, half school holidays with the mother so that the children were together at those times.

6. Finally, on the morning of the hearing the father sought a different set of orders contained in the Minute of Order which became Exhibit 1 in the proceedings.  The Minute sought orders for shared parental responsibility, that the children live with the mother during school terms three out of four weekends, for half of two of the term holidays and all of the second term holiday and for four weeks during the summer holidays and at other special times as defined.

7. The mother continued to seek the orders set out in her amended Initiating Application filed 26 August 2010.

Affidavits

1. The mother relied on the following documents:-

   a)Application filed on 26 August 2010;

   b)Notice of Child Abuse or Family Violence filed on 4 November 2001;

   c)Affidavit of the mother sworn on 30 November 2009;

   d)Affidavit of the mother sworn on 8 January 2010 and filed on 15 January 2010; and

   e)Affidavit of the mother sworn on 11 February 2010 and filed on 15 February 2010.

2. The father relied on the following documents:-

   a)Amended Response filed on 31 August 2010;

   b)Affidavit of the father sworn and filed on 30 November 2009 and filed on 1 December 2009;

   c)Affidavit of the father sworn on 19 January 2010 and filed on 20 January 2010;

   d)Affidavit of the father sworn and filed on 15 February 2010;

   e)Affidavit of the father sworn and filed on 15 September 2010;

   f)Affidavit of GD sworn on 18 August 2010 and filed on 14 September 2010;

   g)Affidavit of SG sworn on 1 September 2010 and filed on 14 September 2010;

   h)Affidavit of Ms F sworn on 13 September 2010 and filed on 14 September 2010;

   i)Affidavit of Ms F sworn on 23 September 2010 and filed in Court on 21 September 2010;

   j)Affidavit of the paternal grandmother sworn on 10 September 2010 and filed on 14 September 2010;

   k)Affidavit of W Smith sworn on 7 September 2010 and filed on 14 September 2010; and

   l)Affidavit of Ms D sworn on 20 September 2010 and filed in Court on 21 September 2010.

3. The Independent Children’s Lawyer relied on the following documents:-

   a)Magellan Report dated 4 December 2009; and

   b)Orders of 8 November 2006.

The Evidence

The Applicant Mother, Ms Purcell

1. The mother relied on a Notice of Child Abuse or Family Violence filed 4 November 2009 in which she set out the alleged risk of abuse as follows:-

   “1. The father ([Mr Smith]) has condoned, permitted or enabled a child or children of the marriage to have access to pornographic material.

   2.The father ([Mr Smith]) has condoned and permitted one or both of the female children of the marriage to sleep overnight in the same bed as the father.”

2. The Application of the mother for ongoing separation of the children appeared to be an implicit acceptance that the children were not at risk in the care of the father.  However, the mother continued to express concerns about the level of supervision in the father’s home and the exposure of the children, potentially, to inappropriate material.  In her case outline document the mother submitted that there was sufficient evidence for the court to find that there is:-

   “an unacceptable risk that the children may suffer abuse if the children live with or spend substantial time with the father (unless adequately dealt with by orders that ensure there is no access to sexually explicit or inappropriate adult oriented material).”

3. The following four points were submitted:-

   “A.The father has condoned, permitted or enabled a child or children of the marriage to have access to pornographic material on a regular basis.

   B.The father has condoned and permitted one or both of the female children of the marriage to sleep overnight in the same bed as the father.

   C.The father has demonstrated a tendency to “sexualise” the children in a manner inappropriate to their age and level of maturity.

   D.The father has demonstrated an attitude promoting the “sexualisation” of the children in a manner inappropriate to their age and level of maturity.”

4. The mother was cross examined initially by counsel for the Independent Children’s Lawyer in circumstances where the father was representing himself.  The mother agreed that the father could have unsupervised time provided there was an order on a final basis as had been made on 15 February 2010 by Judicial Registrar Johnston (as he then was), on an interim basis.  Namely that:-

   a)the father be restrained from exposing the children to any pornographic material, and

   b)that the father provide each of the children with a bed and ensure the children sleep in their own beds whilst spending time with him. 

   This apparently represented a level of trust in the father that he would comply with those orders although that trust and confidence was not evident in the answers that the mother gave.

5. The mother spoke positively about the father’s friend, Ms F, and the paternal grandmother.  She was brief in her answers and to the point.

6. The mother was cross examined at some length about the financial circumstances of her household.  The total income per fortnight was $1,350.  She and her husband, she said, also had savings of $2,000.  Rent was $350 per week, the mother ran a car which cost about $50 per week and food was $165 per week.  Accordingly, having paid the rent, covered food and car expenses, the household had $110 per week to cover all household bills and every other expense of the household.   The mother said that there were no debts, certainly no credit card debts.

7. The mother agreed that there was very little money to spare but said that they were going very well and that the household was careful, as indeed they would have to be with such limited funds.

8. The mother’s husband is presently unemployed having left his employment to assist the mother and the children around the time of the birth of the child, H, in March 2010.

9. The mother was asked about E and N in particular in relation to some learning difficulties.  She said that she had realised that E was lagging behind in reading three weeks before the hearing and three to four months prior for her maths.  She agreed that N was also lagging behind in writing and spelling but she said she had been able to deal with N’s diagnosed dyspraxia by getting him to speech and occupational therapy when he was aged two to three years.

10. The mother agreed that the father had taken the children to occupational therapy when they were younger but was not prepared to concede that he had been proactive in the interests of the children, rather she thought that he obtained assessments for them as they were needed for Court and not because an assessment was necessary for the children’s progress.  She did concede that the father took the children to therapy when they needed it.

11. The mother said that during the marriage she had always taken the children to what they needed.  I have formed the impression that the mother was somewhat frustrated that she could not do as much for the children as she had been able to do in the past, perhaps for financial reasons:  the position was unclear.  

Change of School

1. In relation to the school which E and C attended, the mother had changed the girls’ school from an outer west school to an eastern suburbs school.  She said that she had done so because she was not happy with the girls’ schooling in the outer west and also because her husband had been offered work in the eastern suburbs area.  The mother did not tell the father of her intention to move or discuss with him the schools that the children would attend.  

2. The evidence of Mr S (referred to later in these Reasons) did not support the proposition that he had been offered work in the eastern suburbs area.

3. I do not accept the evidence of the mother that she moved the girls school because she was not happy with their schooling or because her husband was offered work in the eastern suburbs area.  I find that the mother and her husband chose to move to the eastern suburbs area and enrolled the girls at the local school accordingly.

1. The mother agreed that she had not considered moving closer to where her older children lived and mentioned that she had been excluded from the father’s decision about a school for J.  She quickly conceded that a tit for tat basis for not telling the father about the girls’ school was not particularly good for them.

The Welfare Check

1. The mother gave puzzling evidence about an incident on 7 March 2010.  She had asked the father to return the girls to her on Sunday evening rather than directly to school as the orders provided.  The father declined.  On the Sunday evening of that weekend the mother rang the police and asked them to attend the father’s home for a welfare check.  The mother knew that the father would be returning them to school on the Monday morning.  The children had been in the father’s home since the Friday evening and there had been no apparent problem.

2. In answer to the question of why she rang the police the mother said that she was concerned that they did not have the equipment that they needed for school.  She agreed that she hadn’t supplied the equipment and that was why she knew.  She gave as another reason that she was worried about whether the girls had separate beds in the father’s home.  The girls had already spent two nights in the father’s home when the mother made the call to the police.

3. The mother conceded that her decision to call the police had not been a particularly good one in retrospect.  I do not accept that the motive of the mother for calling the police was concern about the safety of the girls.

4. Shortly after this event, the mother gave birth to her daughter, H.  The father attended the girls’ Public School to collect the girls on 19 March 2010.  They were not at school.  The mother was in hospital giving birth to H and had arranged for her mother to look after the girls.  If the mother felt any regret in retrospect at not having spoken to the father in advance of her confinement to ensure smooth arrangements for the care of the children, particularly E and C, there was no evidence to suggest that.

Exposure of the children to adult material

1. In September 2009 the mother had a conversation with N where he spoke of himself and his two sisters being given a magazine showing naked people.  The mother made, what the paternal grandmother described as, a “frantic phone call” to her about the matter.  Unhappily, and I will come to this later in the judgment, the father was dismissive of the mother’s concerns.  She phoned him at work and he told her to put her concerns in writing.  She did in a very detailed email.  The father did not respond in a helpful way. Most unfortunately but understandably, the mother came to the conclusion that the father was hiding undesirable conduct of all kinds.  She then ceased to comply with the Orders.  She did not provide the girls for contact nor return the boys to live with their father pursuant to the Orders.

2. The mother overreacted and indeed in submissions at the conclusion of the hearing her solicitor conceded that she had.  I also accept that the father failed to properly respond, as he conceded in his final submission.

3. It is now clear that two of the children were shown or picked up a particular magazine in the father’s house.  The mother conceded that she now knew the magazine in question was not pornographic. 

4. It is also clear that at some time J was shown explicit pornographic material on the internet by his older cousin, A, or perhaps it was done as a joint venture between the boys. 

5. The mother gave detailed evidence of what N had told her that he had seen on the internet and of what J had told her that he had seen.  This detailed evidence was not included in her Affidavits.  She said that in May 2009 N had told her:-

   “[J] and I saw porn on the internet with [A]”.

6. She said that in mid September 2009 N had told her about a game that he had watched where there was explicit sexual activity including oral sex.  At the same time J told his mother about seeing explicit sex in a porn video.  It is impossible to know exactly what happened and when, however, it seems likely that the three boys, J, N and their cousin A who is a member of the household in the paternal grandmother’s house, were unsupervised in the afternoons on many occasions and they had access to a computer and were able to view pornographic material.  Sensitively handled, this could have been stopped and guidance provided by the father.  It may be that N has continued to refer to “seeing porn on the internet” because he has a tendency to be dramatic.

7. I note that at paragraph 54 in the family report the family consultant says this about an interview with the paternal grandmother:-

   “[The paternal grandmother] said she often took [N] to school and he would occasionally walk home.  She said [J] caught the bus to school.  [The paternal grandmother] said that [J] was usually home by 4.15 pm.  [The paternal grandmother] said she did supervise the children when they were at home.  She said that one of the children’s fathers were occasionally at home in the afternoons.”

8. The mother very fairly conceded that she believed that the two older boys had been looking at pornographic material on the internet and involving N and that it had not been a deliberate involvement by the father.  She expressed the view that Zoo magazine was not appropriate as a means of sex education and she is entitled to that view.  It is most unfortunate that these incidents have taken on the significance that they have and I accept the submission of Mr Levy for the Independent Children’s Lawyer that the parents’ reactions and lack of reaction has done considerably more harm than the actual viewing of the material.

9. Ultimately, the father learned of the latter matter in March 2010 after therapy between J and his therapist, Ms D.  It was clear that this viewing of explicit pornography had taken place on or before September 2009 at the time when the mother’s concerns were at their highest.  It seems to me that the mother did have a proper basis for concern and the father did not enquire into the matter at that time, dismissing the mother as an alarmist. 

10. This is a very clear case of the parents failing to trust each other and communicate in the interests of their children.  It also led to the acceleration of these proceedings, the matter being classified as a Magellan case and the children being interviewed accordingly.  The children, particularly N, have felt the consequences of the mother’s fears and the father’s dismissal of them.  N felt quite guilty for having brought the matter of the magazine which was shown to his sister to the mother’s attention and it may be that the father was critical of N for having done so. He probably shared with N his concerns that the information would lead to trouble for him in Court.  Both parents have let the children down in relation to these matters.

11. I note that the evidence of the mother was that there had been no discussion between herself and the father about sex education for the children and that in her view that would come to her if they wanted to know things.  She said she knew they would get information at school and that she didn’t know how inquisitive any of her children were about sexual matters.

12. I formed the clear impression that the mother was uneasy about speaking to her children about sexual matters and was alarmed by the possibility that they had seen inappropriate material.  Of course, as a responsible parent she should indeed feel alarmed at the prospect of her children seeing pornographic material and she took appropriate steps to encourage the father to find out what was happening in his own household.  However, it is a matter for concern that the mother has made the decision to leave it entirely to the school to provide sex education for all of her children. 

Religion

1. The mother was also extensively cross examined about religion.  The mother presented in Court in Islamic dress, that is a full length dress and a scarf revealing her face.  She has embraced her new faith and I accept her evidence that it had brought order and deep satisfaction into her life.  She said she wouldn’t see any difficulty if their father taught the children Catholicism and she taught them about Islam.  However, I think the mother has struggled with this concept.  She converted to Islam in 2006.  She said she prayed in the Mosque and at home although mostly at home.  The Mosque perhaps once per month.  She said she prayed with the children and she herself prays five times per day.  She allowed the children to join in or not join in as they chose.

2. However, I think what the mother has not been able to do is to be clear with the children.  That is to say words to the effect of ‘I am a Muslim and Bubba (the words the children use for her husband) is a Muslim and so are [R] and [H] but you children are Christians.  I used to be a Christian and I have converted.  That is something you can think about when you are older but for now you belong to one religion, I belong to another one and that is fine.’  I heard no evidence of that kind of clarity in the mother’s household.  Rather I formed the impression that the mother is really hopeful that all the children, but particularly E and C, might take up her faith.  There is nothing to be criticised in that hope if the mother does hold it.  However, the mother has not appreciated the potential confusion for the children.   In the mind of E the two different faiths represent the right and wrong of adult life and that she has to choose.

Travel Arrangements

1. The mother said it would be inconvenient to collect the boys from school, that it was hard to get them.  She acknowledged that her husband could collect C and E while she went to collect the boys but she was reluctant to do so.

2. I do not consider that the mother does not wish to spend as much time as possible with her sons rather I think there is some reason within the mother’s household that is a practical impediment.  On that basis it is more appropriate for the parties to share the travel with the father delivering the children to the mother’s home on Friday evening and the mother returning the children to the father’s home on Sunday evening.

Concerns of the Mother

1. The mother was asked whether her own early relationship with the father was, in her view, relevant to the decision about where the children lived and spent time.  She said that she thought it was.  The concerns of the mother are contained in her Affidavit filed 30 October 2009 in paragraphs 13 to 17.  The concerns amount to the mother’s view that the father had an inordinate interest in sexual matters and as being critical of her for not being interested at the same level.  The mother says that the father looked at pornographic material on a daily basis and wanted her to participate in that activity with him.

2. There was clearly a high level of incompatibility between the parties about their sexual relationship.  This is readily understandable given that the mother was pregnant with her first child at 15 years and that both parties were teenagers when they married.  As each subsequent child was born no doubt the mother had a greater commitment in terms of time and energy to their care and this increasingly became a source of dissatisfaction and conflict between the parties.

3. The parties went to a counselling service over the issue where both parties aired their unhappiness and dissatisfaction with each other but there was no resolution.  I consider that the mother was also affected by the father having been convicted of a sexual offence arising from an earlier relationship and that she had not been told about that by the father even as he served periodic detention.

4. I came to the conclusion that the mother regarded the father as deceptive as to his conduct and somewhat deviant in his level of sexual interest.  In my view there is no basis for findings in that regard, however, I do find that that is the mother’s view of the father.  At the same time I do not consider that it is a firmly held view rather one that is activated by incidents of a sexual nature.

5. The mother travelled to Egypt in 2006 to meet Mr S.  All of the children stayed with their father during this time.  Her evidence was that she really felt that she needed some time on her own to sort her thoughts out.  She also said this:-

   “I had a hard year in 2005.  It wasn’t until 2006 that I became a more responsible person.”

6. The evidence makes it clear that the mother went through considerable emotional upheaval in 2005 and 2006 in ending her marriage and taking up a permanent relationship with Mr S and ultimately sponsoring Mr S to live in Australia after they were married.  I do not accept that the mother would have left the children with the father if she had been genuinely concerned for their safety in his care.  I think it likely that the mother knew she needed time away from the children, time for herself, and that her instinct was that the children should be with their father whilst she did that, whether in Australia or overseas.  That instinct having been based on the fact that they had been safe in his care, together with her, to that point in time.  The fact that the father was living in the home of his mother would also, in my view, have had a bearing on the mother’s thinking.  It is to the credit of the mother that she made the arrangement for the girls to live with their father and brothers whilst she was overseas.

Combining the siblings

1. The mother’s evidence was that she did not consider it would be better for the children if they all lived in the same home.  I have no doubt that if the children had not already been separated for four years the mother would be pressing residence in respect of all four of them.  I take the view that she made a genuine decision based on the older children being settled in their father’s home and in particular settled at school.  This resonates with her original decision that she should care for the pre-school aged children while the older ones should stay with their father in order to remain at their school.  I also got the impression that the mother would now be somewhat overwhelmed, both emotionally and financially, by having all six children in the household on a permanent basis no matter how welcome their presence would be.

2. The mother was cross examined by the father.  She denied that she wished to:-

   “ostracize the girls from the father”

3. Her answer was “no, not at all” which I accept.

4. She was then questioned about allegations of the children being exposed to sexually inappropriate material in the father’s home.  The father asked this question:-

   Q:       “Did I ever expose the children to pornography?”

   A:“No, but you did make accessible your workshop which was fully covered with naked women in sexual poses and you would say when we were in the bedroom together things like ‘will you go away we’re having sex [J] ”.

5. There was no challenge by the father to this response by the mother.  I consider it highly likely that the father behaved in that way.  The immaturity of the father in the early years of the parties’ relationship was evident in the way that he gave his own evidence and I will come to that later in this judgment.

2006

1. The mother travelled to Egypt between 27 July and 24 September 2006.  When she returned she went home that evening and the following day collected the two girls, E and C, from their pre-school at 2.00 pm.  She conceded she had not told the father she was going to do that.  Her evidence was that her own parents had advised her that the father would be unlikely to return the girls to her.

2. She further conceded that it had been an extreme measure to take the girls in that way but in answer to a question by the father:-

   “you didn’t let me see the boys.”

3. In my view this situation is an example of the immaturity of the mother at that time.  She had been away for a period of two months and removed the two girls without reference to their father.  There then followed a period of three weeks where each parent was deprived of the ability to see two of the children until a Court determined the matter.  I consider that it is likely that the mother came back from Egypt with a settled negative view about the father and an intention to keep herself as separate from him as she could at the expense of communication about the four children.

4. The mother has continued with this negative attitude towards the father and has been unable to distinguish between the negative view she has of the father with particular reference to his sexual conduct with her, from the positive aspects of his commitment to the children and parenting.  This has been greatly to the detriment of the children as a group.

Care of the children

1. The mother referred to having taken E to speech therapy in 2006 and not afterwards.  She also said that she hadn’t taken any of the children to the dentist other than N prior to separation.

2. In relation to N, the father put the proposition that he had arranged psychological therapy and sessions for the children with a doctor in Sydney, that J had had a session with a doctor and a group session had then been scheduled but N returned to the mother’s care before it could take place.  The mother said she had taken N to the family doctor at a local medical centre.  She also said she had taken the girls to a psychologist for counselling, particularly C in relation to an incident with her brother J.  I will come to that incident later in this judgment but I consider that the mother has been more alert to indications that C and E have been exposed to sexually inappropriate conduct and material then she has been to their general psychological wellbeing and learning difficulties, particularly in the case of E.

3. The mother was cross examined further by counsel for the Independent Children’s Lawyer in relation to the matter involving C.  There had been a notification on 29 July 2010 and J was interviewed on 24 August 2010.  A risk assessment was undertaken and the Department of Human Services concluded that it was unlikely that any abuse had occurred and probably the incident related to J assisting his sister putting on pre-school nappies, pull-ups.  The mother agreed that that was the conclusion of the Department and said she had not included the incident in her Affidavit because it was “not important”.

4. Exhibits from JIRT reveal that there had been further allegations by the mother that C was wetting her pants at a worrying level and that the father had had no clothes on at times when the children were in his presence.  It is a matter of some concern that these matters were not raised in the Affidavit but of greater concern that they were raised directly with the Department of Human Services rather than the father.  I conclude that sometimes the mother feels no trust and confidence in the father at all, both as to his behaviour with the children and in his willingness to communicate with her.  There is some substance in her lack of confidence that the father would communicate with her about any concerns that she has.

Religious instruction at school

1. The mother conceded that when she had enrolled the two girls at a Public School in respect of E she had described her religion as “Islamic Family” and in respect of C “Muslim”.  In respect of C also parenting care one was Mr S with a reference to him as “dad”.  The mother agreed that E had learned some chapters and verses, Soras, from the Koran and had also learned to refer to Jesus Christ as “the Prophet”. 

2. In re-examination the mother said that E had not learned Soras in Arabic.  This is in direct conflict with the evidence later given by the paternal grandmother and also a friend of the father’s.  I find that the mother was defensive and evasive in relation to religious instruction in her home and I am left with the impression that she has been hopeful that E and perhaps C would absorb enough religious instruction to become attracted to the Islamic faith.  Whilst this is completely understandable given the mother’s commitment over the past four years to her new faith, it is not in keeping with what has been ordered to date nor is it a recognition of the commitment that the mother made at the time when each of the children were born to their being raised in the Christian faith, particularly Catholicism.

Mr S, The Mother’s Husband

1. Mr S was born in Egypt in 1977.  Mr S had been present in court throughout the proceedings.  He had not filed an affidavit and when questioned by counsel for the Independent Children’s Lawyer, gave evidence that there had been no consideration of his being a witness in the proceedings until the proceedings commenced.  Mr S gave evidence as a result of a request by the court for him to be made available to answer questions.  A handwritten affidavit was filed in Court (Exhibit “M-1”). Accordingly, his evidence has less weight in controversial areas where he had had the opportunity to be present during evidence that his wife gave.

2. In 2006 Mr S left Egypt leaving his parents and brother in Cairo.  He had not been previously married and has no other children.  He had formed a relationship with the mother on the internet over a 12 month period in 2005/2006. He does not yet have Australian citizenship or permanent residence.  His immigration status is provided by his spouse visa.  He was unemployed at the time of the hearing having ceased full time work during his wife’s pregnancy in 2009/2010 in order to help her care for the children when the child H was born and thereafter.

3. Mr S gave his evidence in a forthright and considered way.  He said that in the 2009 tax year he earned between $37,000 and $40,000 and had not yet filed a tax return for the 2010 tax year.  He is thinking of starting his own business, perhaps in 2011, in information technology.  Mr S has a Bachelor Degree in information technology from Cairo University.

4. At the same time Mr S said that he had been more recently trying to obtain employment, unsuccessfully so far, and that one successful job offer had broken down over a disagreement about salary.  He denied any criminal convictions in Egypt or Australia.

5. Mr S was thoughtful about the separation of the four children of his wife’s first marriage.  He said he thought that N had some issues with his sisters and that the parties would do better to leave the children in the current arrangement working as two teams of couples for an ongoing stable environment.

6. Mr S said that he considered there was still a risk to the children in the father’s home through a lack of supervision and the father’s attitude to sexuality which Mr S defined as seeing materials not appropriate for their age.  However, he also agreed that he and his wife had considered the orders that she was seeking together and that there was no proposal for supervision of the father at any time when the children were in his care.  I accept, however, the statement that the mother had it in mind that the paternal grandmother would be present in the home as the mother formulated her proposal.  Mr S described himself as a religious moderate, meaning, in effect, that he practiced his own faith but did not force it on others.

7. Mr S also said E had asked questions about the Islamic faith and he had explained things to her.

8. Mr S presented as a well educated, thoughtful and genuine person.  His relationship with the father is a good one.  I find that there is a benefit to all of the children in an ongoing association with Mr S.  He was cross examined by the father and revealed a good understanding of the different developmental stages and needs of the two older children, J and N.  He described activities such as bike riding, playing soccer, chasing and wrestling, that N liked to play video games and LAN networking while J was more interested in downloading music and You Tube. 

9. I accept the evidence of Mr S that if all four children came to live in his home they would be welcome and he would make every effort to assist in their care.  I consider that that will be equally true for holiday and weekend time.

The Father, Mr Smith

1. The father lives in the home of his mother, the paternal grandmother, aged 71 years.  His brother, W Smith, aged 43 years, has also lived in the home with his son, A, aged 14 years.  W Smith has two other younger children, daughters, who live with their mother and visit the home on a regular basis.  W Smith was intending to move out with his son and live independently at the time of the hearing. 

2. The father is currently unemployed and on Centrelink benefits.  He gave up his employment two weeks before the hearing to concentrate on the litigation.  He intends to return to paid employment.

3. The father agreed he had not been a regular churchgoer during his marriage to the mother.  However, he had become concerned when the mother became interested in the Islamic faith.  He could not understand it.  In his view, the mother developed an obsession with Islam.  The father said that the mother’s conversion to Islam was one reason for his proposal for change of the residence of the children but not the only reason.

4. The father also agreed that he had initially agreed to the separate arrangements for the children.  As late as January 2010 he proposed that that division continue.  He now believes that he could give the girls better care, medical treatment, role modelling, time with their brothers and a more balanced life.  He said the mother was not a good role model and that while one of her choices was Islam that is not what he wanted for his children.   He also thought that as a role model she did not demonstrate being communicative, happy, easy going, negotiable, reasonable and dedicated.  He thought she did not have the ability to care for their health requirements.

5. The father was concerned that the girls might be coerced into the Islamic faith.  He described his daughter E blocking her ears when listening to the radio and asking for it to be turned off because it was “bad” (in the moral sense).

Children’s exposure to adult material

1. The father denied the proposition that children under eleven years might be disturbed by images of naked adults.  He thought it would be confronting but not disturbing.  He agreed that he had had a suitcase with pornographic videos and pornographic magazines containing explicit sexual material.  He said he had given the suitcase to his brother and when asked where the suitcase was his answer was “here at Court”.  I had the impression that there was some amusement value for the father in giving the impression that the suitcase which he had with him at Court still contained the pornographic material.  This created an impression of immaturity.

2. The father said that he had asked his brother to dispose of the contents of the suitcase and that his brother had assured him that that had been done.  He agreed that the material could still be somewhere in the household.

3. The evidence that the father gave was rather worrying in relation to his willingness to speak directly to his sons about matters of concern.  For instance, a complaint had been made by E about A going into the bathroom when she and C were in the bath.  The father did not speak to A directly.  He spoke to both his brother and his mother about the issue and relied on them to deal with it.  He also said:-

   “It’s my brother’s job to correct him, not mine.”

4. A more serious example was in relation to the mother’s concerns in September 2009.  The mother first of all rang the paternal grandmother raising concerns that the children had been shown explicit sexual material.  The grandmother, on her evidence, spoke to her son about this but he did not contact the mother directly.  The mother then rang him at work and said that the girls had said they had been shown pornography.  On his own evidence the father’s response was:-

   “Can you put your complaints in writing.”

5. The mother did so in an email, annexure “C” to the Affidavit of the father sworn 30 November 2009.  In that email the mother indicated that she was going to retain J and N and not provide the girls for time with their father as a result of her concerns.  The father replied in an email sent 27 September 2009 which said simply:

   “Your actions contravene the Family Court Orders.  You should desist in this action immediately.  If you do not there will be action taken in the Family Law Court where I will be seeking a number of amendments to the current Orders.”

6. Not surprisingly the matter escalated and on 7 October 2009 the mother sent a further email of some five pages, annexure “D” to the Affidavit of the father sworn 30 November 2009.  She set out many matters in close detail, particularly in paragraphs 3, 4, 5, 6, and 7 of that email. 

7. It became clear over the course of the hearing that two things had occurred in the father’s household:  the two girls had, on evidence of the father and his then partner, Ms F, been shown a magazine, “Zoo Magazine”.  They had also been shown an art book with pictures of naked adult females.

8. As a completely separate matter, both J and N, together with their cousin, A, had accessed explicit pornographic material on the internet at an unknown time but probably between May and September 20009.  Because the father did not make direct enquiries into these incidents and also because he failed to respond to the mother’s level of concern, the consequences of these incidents continued to grow.  Ultimately, a Notice of Abuse was filed and the matter was included in the Magellan program.  A recommendation was made that the matter be removed from the Magellan program and during the course of the hearing I consider that the mother came to understand exactly what had occurred in the father’s home.

9. As previously stated, it is a matter of great regret that the parents did not communicate directly on these issues and that the father was initially dismissive of the mother’s concerns.

10. In her email of 7 October 2009 the mother says this at paragraph 5:0

    “This serious issue (exposure to pornographic material) was important enough to call you at work at any time of the day, I was surprised however to have you reply to these very worrying details with such careless and lack of concern even at times belittling the situation saying ‘good, good, put it in writing’ .. ”.

11. I consider that there is substance in the mother’s complaint to the father.  In fairness to the father he conceded in his final submissions that this had been an error of judgment on his part and that he, as well as the mother, had not handled the matter in the best possible way for the children.

12. Again, the father found out in March 2010 from a counsellor that his son J had accessed explicit pornographic material that had upset him in company with his cousin A.  The father had already put filters on at least two of the three computers in the house by that time but he did not have a direct conversation with J or A about the matter relying on his brother and mother to address the matter.

13. The evidence of the paternal grandmother was that she had spoken to the boys and said that accessing pornography was unacceptable and it was not to happen. 

14. I consider that the father failed to address the matter in a fatherly way.  It may be because of his own conceded interest in viewing pornography himself that had kept him from having a frank discussion with his sons about what the acceptable limits of conduct were in the household.  However, I do not consider that the father in any way encouraged or allowed the accessing of pornographic material by his sons nor did he expose C and E to pornographic material by allowing them to view Zoo Magazine and an art book with adult nude figures.

15. I do consider that the father was insensitive towards the children knowing as he did that their mother was highly likely to disapprove of the girls seeing that material and that they would be caught in the cross fire of their parents’ very different values.

16. The father gave evidence that his brother W would be moving to a new home “within a few weeks” and that his plan was to continue to live in the home of his mother with whichever children were living with him for at least the next 12 months.  He said he would have the two girls attend N’s school if they came to live with him and that they would attend after school care in the afternoon unless he or his mother were able to collect them.  He anticipated being back in the workforce within two months at which time he considered he would need the after school care service.

17. I accept that the father is likely to be back in employment quite soon after the conclusion of these proceedings and is likely to continue to be employed.

The father’s relationship with Ms F

1. The father had previously been engaged to Ms F but the relationship had recently been broken off.  He said the engagement had been ended mutually and he agreed that she had been reluctant to marry him with the prospect of the household being themselves and the four children.  Ms F was unsure if that would work for her.

2. The father expressed himself as hopeful about the future of the relationship with Ms F but it was really outside the scope of his thinking.  I took that to mean that he was giving priority to the arrangements for his children over the relationship.  That is to his credit.

3. The father gave evidence about his son, N, having told his mother that he had been to China and that the mother had believed him.  During the course of this questioning the father was both grinning and blushing in a way that suggested that he had found N’s story entertaining in the way of a practical joke or “wind up”.  This is another minor example of the father’s immaturity in relation to managing the children’s relationships with both parents.

4. The father also described the behaviour of his daughter E as “more unusual than is normal for her”.  He agreed that E had always had unusual behaviour.  When asked to describe it he gave as examples:-

   “barking at cars, hopping around in circles, staring at a wall, turning away from another person and huddling up in a ball”

   The father then stopped and asked “Do you want me to go on?”

5. The father was asked whether E had learned something in relation to Islam which was a cause of concern, for instance, her modesty about anybody else entering the bathroom when she was in there.  The father said no, his concern was that his daughters would choose to follow the Islamic faith.  He said as a Christian it was his mission to ensure the spiritual guidance of his children.  He said he knew the law did not discriminate between religions.  He then went on to clarify by saying:-

   “The problem here is the confusion of faiths, not that they’d grow up Islamic.”

6. I accept that the father has a genuine concern that a competition between faiths would cause confusion and therefore cause harm to his children.

7. In re-examination, effectively of himself, the father said that he had never objected to the mother taking the children to Islamic events and celebrations and that his intention was to return to employment as soon as possible to assist the mother having heard about her straitened financial circumstances.  He emphasised that child support would be payable and that his employer was keen to have him back.  These statements were made on the basis of two younger children remaining with the mother.

The paternal grandmother

1. The paternal grandmother is 71 years old and in good health.  She impressed as a loving grandmother who was somewhat overwhelmed by having two of her adult children and at times, seven of their children, as members of her household.  That is not to say that her children and grandchildren have not always been welcome in her home.  Clearly, they have.

2. The paternal grandmother was willing to make concessions.  She conceded that her son had not matured at the same level as the mother and that she had enjoyed a good relationship with the mother, continuing after separation.  She referred to an incident where the mother had raised some bullying by the paternal uncle and his son A of N and she had been able to address that issue.   It is of note that the mother chose to call on the assistance of her former mother in law rather than the father in these issues.

3. The paternal grandmother freely conceded that the mother was a good carer and a good mother, however, she said she thought the mother had changed quite a lot, that she was Islamic now and when the children came they did seem a little bit different.

4. The paternal grandmother believed the children did have a reasonably close relationship but she did not see there would be any damage to relationships if they continued in separate households.  She thought there would be a benefit to them by being raised in the one household and identified the benefits as being their religion, just being together and being brought up in the same way.  However, she very fairly said that the consequences for two each of the children being raised in different households would be “nothing too traumatic”.

5. I formed the strong impression that the paternal grandmother did not engage in conversations with the father or her other son, W, of a personal level very often.  She said she had never seen her son in possession of pornographic magazines, DVDs and videos.  She had not seen either C or E sleep in their father’s bed although sometimes they got into her bed.  She agreed that she was aware of her son’s earlier criminal offence before he met the mother and that she had gone to court with him.  She said she had never discussed that offence with the mother and it had not been raised by her.  She assumed that the mother knew about it but her evidence was that to the best of her knowledge the mother knew about it because her son had not been allowed to remain in the home of the maternal grandparents after his criminal record came to light as a result of the maternal grandmother having foster children in the home.

6. As stated earlier in this judgment, the mother and father began living together when the mother was 15 years and the father 19 years, the mother being pregnant with the father’s first child.  At least so far as the paternal grandmother is concerned, there was very little conversation about the conduct of the father.  Again, the paternal grandmother said that when the mother contacted her in September 2009 about the children having seen pornography on the internet, she told the boys that she didn’t approve of internet pornography.  That appears to be the only step that the paternal grandmother took.

7. I was left with the impression that as much as possible the paternal grandmother sought not to interfere as she saw it in any way with the way her two sons were raising their children and would be unlikely to change her approach in the future.  That is in no way critical of the paternal grandmother.  She presented as a loving grandmother who simply did not enquire into issues of parenting between her sons and their children.

Ms F

1. Ms F was born in 1966 and is accordingly ten years older than the father.  She has young adult children and was assessed to be child focused by the Family Consultant, Mr P.  I formed the impression that Ms F had found the conflict between her partner and his former wife difficult to manage at times and the needs of the four children quite demanding.

2. Ms F presented as a mature person and a responsible parent.  She made concessions as necessary including her own accessing of adult magazines and related material.  I accept that she was taking the responsible approach when she responded to E’s questions about the magazine which led to so much trouble between the parents later.

3. Ms F said the engagement between herself and the father was off but they continued as friends.  She was uncertain as to what the future would hold for the relationship.  She had clearly enjoyed a good relationship with the paternal grandmother visiting that household most evenings after work.  Ms F had not taken it upon herself, quite understandably, to speak to the boys about their use of the computer for accessing material or for any other reason.

4. Interestingly, in re-examination, Ms F said that on one occasion E had blocked her ears one evening when she and the father were putting the girls to bed.  The father had asked E to hear a bible reading.[1]  Ms F said that on that occasion when E had blocked her ears she had recited an Arabic prayer and the father had then not forced the issue.

   [1] paragraph 78 Affidavit 13 September 2010 of Ms F

1. She said that E regularly referred to things as “bad” and would turn her eyes away such as at a puppet show where a puppet skirt fell down showing underwear and stockings, and at a public pool where the children had gone swimming.  She said E regularly said about clothes, food, music and movies “this is a bad place, are there bad things here?”

2. E had painted a picture which she told Ms F was:-

   “what I’m going to wear when I get a bit older with a scarf covering my face and you can only see my eyes.”

3. E was regularly concerned about whether the food that was served was Halal. 

4. There was a turning point in June 2010 between Ms F and the father.  It was J’s birthday, in June 2010.  Ms F asked him if he had got a call from his mother and he responded:-

   “No, over at mum’s they don’t celebrate birthdays.”

   She had said “that’s a shame”.

5. It was at that time the father said he felt that he needed to make an application to have the girls live with him as well as the boys.  Ms F frankly in her Affidavit stated[2] that she had thought the girls might live with them when they were older at the time when she became engaged to the father.  He having made the decision to pursue residence with all four of them, their engagement was terminated.

   [2] paragraph 85 Affidavit sworn 13 September 2010

6. I find that Ms F was a truthful witness who has a positive influence on all the children.

Family Consultant, Mr P

1. Mr P was shown the updating proposal of the father providing for more weekend and holiday time with the mother if the children came to live with him.  Mr P said he saw no risk to the children in either household, not from exposure to any inappropriate material in the father’s household nor from any aspect of the mother’s household.  He did not think that the mother had difficulties in caring for the four children in her household and had no concern about her capacity.

2. Mr P made it very clear that the issue for the children central to all of their difficulties was the conflict between the parents.  For instance, he was asked on behalf of the Independent Children’s Lawyer:-

   Q:“Are there issues for the children arising from the parent’s religious differences?’

   A:“Not the faiths as such but the conflict over names.”

3. Mr P rejected the notion that the particulars of the two different faiths were what were causing E in particular difficulty such as programs on television and radio, non Halal food and E reciting Soras from the Koran.  Mr P was clear that his concern was “the conflict, not the domain of it”.

4. Mr P confirmed that E appeared to struggle with which set of values to go with.  I unreservedly accept this evidence.  It seems clear that the parents have been competing for the children.  They have not been providing clear guidelines about who the children are and how they differ from each of their parents.  The children have been left uncertain about what is acceptable to each parent.

5. Mr P felt there might be a benefit to the children living in one home but agreed that his report suggested that the status quo might be the least worst outcome.  He thought C would cope better than E with a change.

6. What Mr P also made very clear was that the proposals for change were in his view “shifting the deck chairs” and that unless the parents resolved their conflict the children will have difficulties wherever they live.  He said that the high level of conflict between the parents was impacting on the children’s relationships with each other and that if the conflict did not stop their ongoing exposure to that conflict would lead to problems relating to mental health, depression, anxiety, somatising complaints, relationship difficulties, employment difficulties and problems simply being part of society.

7. Mr P repeated and emphasised his recommendation that both parents participate in the “Keeping in Contact” program which provides ongoing support to parents which he felt they would need for at least six to twelve months from commencement. 

8. His view of the mother’s filling in of the enrolment forms for C and E noting Islamic Family as a religion and referring to Mr S as “Dad” merely highlighted the lack of respect by the mother for the father.  He noted that both parents lacked the capacity to act respectfully towards each other although the children themselves all showed a respect for each of their parents.  J, in particular, expressed a wish to Mr P that his parents would show respect for each other.

9. Most worryingly, Mr P’s evidence suggested that E’s exposure to the conflict between her parents may have formed her personality so that she will engage that way with others in any relationship.  I take this to mean that E may regard conflict as normal in her own personal relationships.

10. Mr P made this helpful comment:-

    “The father blames the mother for starting the conflict.  He overlooks his role in continuing it.”

11. I accept the evidence of Mr P that both parents need help in order to accommodate the changes in their lives and to restore a respectful relationship with each other.

The Law

1. In this matter the court is asked to make parenting orders. Section 61DA of the Family Law Act1975 (“the Act”) requires that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in :-

   a)abuse of the child or another child who at the time was a  member of the parent’s family (or that other person’s family) or

   b)family violence.

   In this matter the presumption applies there being no reasonable grounds to believe that either parent or any other person in either of the households has engaged in abuse of the child or family violence.  I consider that the children’s exposure to adult material in magazines and CDs does reflect a lack of adequate supervision by the father, at least in the case of the boys with their cousin.  In the case of the girls, there was a misunderstanding between the parents based to a great extent on the father’s unwillingness to respond to the mother’s initial concern (about Zoo magazine) in a reasonable and open way.  However, I am satisfied that nothing that has occurred in the father’s household amounts to abuse of the children.  There is a benefit to the children in both their parents having an input into the major decisions in their lives, particularly with reference to their health, education and religious faith.  The children will be exposed to the religion and culture of each of their parents as they grow up.  The girls will need careful and sensitive support when they first come to live in their father’s household with their brothers.  E in particular may feel guilty for deserting her mother.  If E continues to show an interest in the Islamic faith it will be a matter for both parents to allow her to express that interest and to explain to her that it will be a matter for her when she has grown up as to which faith she follows.

2. Section 65DAA of the Act requires the court to:-

   a)consider whether children spending equal time with each of the parents would be in their best interests;

   The children have a loving and affectionate bond with both their parents.  Naturally, the boys are a little closer to their father having lived with him for more than four years.  Likewise, the girls are little closer to their mother having lived with her for four years.  However, there is no doubt that the children have a good relationship with each other marked by sibling disputes which are inevitable and in this case partly a product of separated households with very different rules.

   b)consider whether the children spending equal time with each of the parents is reasonably practical; and

   It is not reasonably practical for the children to spend equal time with each of the parents.  They are geographically distant.  The mother has two young children to care for and cannot do an extensive amount of travelling. It would be unrealistic to expect the children to travel long distances to school in each alternate week.  Further, the parents do not enjoy a good relationship and do not communicate well.  There are numerous examples of their disrespect or latitude to the authority of the other parent.  The impact of such an arrangement on the children would be adverse.  Their education would be negatively affected.  The older children, especially J, is unlikely to submit to such an arrangement.

   c)if it is, consider making an order to provide for the child to spend equal time with each of the parents.

   I do not consider that equal time is appropriate.

3. Section 65DAA(2) requires the court to consider whether the children spending substantial and significant time with each parent is in their best interests. 

   It is possible for the children to spend substantial and significant time with each of their parents and it is very much in their interests to do so.  There will be a period of adjustment for the younger children, the girls, and it is for that reason that the orders provide for one additional weekend per month for the next two years.  This is also the case because of the relationship between the girls and their younger sisters, R and H.  The four girls are close and will miss each other.  The children will benefit from extended holiday time with their mother and step father and there will gradually, in my view, be a strengthening and deepening of the sibling relationships between all six children.

4. The primary considerations for determining what is in a child’s best interests are set out in section 60CC. 

   Section 60CC(2)(a) The benefit to the children of having a meaningful relationship with both of their parents

5. The children do have a meaningful relationship with both of their parents.

   Section 60CC(2)(b) – the need to protect from physical or psychological harm

6. None of the children have experienced physical or psychological harm.  E, in particular, is suffering from the conflict between the two families and her developing internal conflict over which set of values she should adopt. 

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

7. J is now fourteen years and six months old.  He attends a Catholic College and wants to stay there.  In his interviews with the family consultant J said he thought he may need to be protected from pornographic material, and violent video games at his father’s house.  J said there was no filter on the internet, and pornographic magazines were left where he could reach them but that there were no pornographic DVDs or tapes.  He referred to having heard the sounds of sexual activity from the bedroom of his father and his father’s partner, Ms F.  I take this to be a view by J that he is not ready to be engaged with adult sexuality and that he is hopeful that his father will behave more like a father and less like an older brother in these matters.  J is content in his father’s home but would like his parents to be more respectful of each other.  J enjoys the company of his step father, Mr S, but there is no doubt that he wishes to remain living with his father and visit his mother on a regular basis.

8. N is now eleven years and four months old.  He has been anxious through the conflict and the way his parents have fought with each other.  N said (paragraph 64) I tried to kill myself with string and related this to long standing stomach aches he had been experiencing.  It seems likely that N is an anxious child.  N indicated to the family consultant a preference to live with his mother in order to assist her with R and H. N said he did not get on with C and E:-

   “They always annoy me and copy me.”

   It seems likely that part of N’s preference for living with his mother related to the fact that he did not get on so well with his cousin A and that he did not think that his brother got on too well with A either.  This matter will be resolved by W Smith and A ceasing to be members of the household.

9. E is now nine years and six months old.  She expressed a view which involved a careful plan for sharing herself out between her parents:  Monday, Tuesday, Wednesday, half Saturday and half Sunday with her mother, Thursday, Friday, half Saturday and half Sunday with her father.   This is a sad reflection of how torn E feels in her loyalties to each parent.

10. C is now seven years and two months old.  In the view of the family consultant, C’s most positive relationship was with her brother J.  She referred to herself has having two mums and two dads.  She expressed a view that she would prefer to live with her father:-

    “cause it’s fun at grandma’s”

    Significantly she still wanted to live with her father even if he did not live at her grandmother’s house.

11. It does seem that all of the children feel well connected into both households.  J’s view should be given considerable weight given his age, maturity and the thoughtfulness of his responses.  The three younger children have been affected by the dispute between the parents over an issue which was allowed to assume too much importance which is the exposure of the children to adult reading material.  It is of significance that the children identify their relationships with each other as the most significant ones.  These relationships should be supported by Orders which allow the children to be together.

    Section 60CC(3)(b) The  nature of the relationship of the children with:

    (i)       each of their parents; and

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

12. The children enjoy good relationships with each of their parents, Mr S, Ms F and the paternal grandmother.

    Section 60CC(3)(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

13. The parents have not shown a willingness to facilitate and encourage close continuing relationships.  Each parent would say that they have facilitated contact but the communication is poor and but for the fact that the paternal grandmother was available to both parents, relationships between the two households could have broken down entirely.

14. One of the key recommendations of the family consultant was that the parents and, as needed, their partners and other significant supports, participate in a post parenting orders program, such as Keeping Contact.  I accept the evidence of Mr P that it is the conflict between the parents which is destructive for the children and that none of the issues which have given rise to that conflict are in themselves a problem for the children.  So religion and information about adult sexuality have been used as tools by each parent to damage the other.  In fact, if the parents did what J asked of them, which was to respect the values of the other parent and that parent’s household, all of the children would be happier.

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

    a)        either of their parents; or

    b)any other child, or other person (including any grandparent or other relative of the children), with whom they have been living

15. A change in the children’s circumstances will have an affect on all four children.  The boys will find that their lives are changed when their younger sisters come to live permanently and they will learn more about each other.  N is likely to be less irritated with his sisters when they are together on a daily basis. The girls will of course miss their mother and step father and particularly their little sisters.  However, they are well used to spending extended periods of time in their father’s household and were cared for by their father and grandmother at the time of separation.  It is to the mother’s credit in fact that the children were placed with their father when she travelled overseas to meet Mr S and it is also a sign of her confidence in the ability of the father, with his mother’s help, to care for them

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

16. The children should be able to telephone the other parent at any reasonable time.  The parents both drive.  There should be not practical difficulty with maintaining contact.

    Section 60CC(3)(f) The capacity of the children’s parents and any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs

17. Each parent has the capacity to provide for the needs of the children, including their emotional and intellectual needs.  The mother was very young when she had her first child and matured quickly with the birth of four children by the time she was 23 years.  The father matured much less quickly, even on the evidence of his own mother.  He is a young man of 34 years with the care of four children, the oldest of whom is well into adolescence.  I accept that it was a painful decision for the father to have to effectively choose his four children over the possibility of continuing his relationship with Ms F.  I also accept that that was a sign of the father’s deepening maturity and a commitment to his children.  The father will take seriously the need for the children to be properly educated.  He has the capacity to understand that the girls will be distressed in the early stages of the change of household and will need his time and understanding.

    Section 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant

18. The children are aged fourteen, eleven, nine and six years.  Their young parents separated four years ago.  They were left in the care of their father while their mother travelled overseas to Egypt to meet her now husband.  Subsequently their mother has converted to Islam and has immersed herself in her faith.  The children now have two little half sisters and a step father, all of whom share their mother’s Islamic faith.  The two households they have been living in are very different and the adults in each household have criticised the other with the exception of the paternal grandmother, to her great credit.  N has become anxious through this time and E has shown signs of stress and the development of personality characteristics which will be unhelpful to her in all her relationships as she grows up.  She will need help from her parents, particularly in the form of acceptance of their differences.

    Section 60CC(3)(h) If the children are Aboriginal or Torres Strait Islander

19. Not applicable.

    Section 60CC(3)(i) The attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

20. Both parents have shown considerable commitment to their children.  The father will have a very significant burden in effectively being a sole parent with the financial care of his four children.  It is unlikely that the mother will be able to pay very much in the way of child support in the near future.

    Section 60CC (3)(j) Any family violence involving the children or a member of the children’s family

21. Not applicable.

    Section 60CC(3)(k) Any family violence order that applies to the children or a member of the children’s family:

22. Not applicable.

    Section 60CC(3)(l) Whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children

1. There has been ongoing litigation about the children.  Reuniting them as a group of siblings in the care of their father and paternal grandmother will hopefully bring that litigation to a conclusion.  The children will be having substantial and significant time with their mother and younger half siblings.  To leave the children divided between the households would be to continue the possibility of litigation based on misunderstandings and divided loyalties which have fuelled proceedings to date.

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

2. In this matter, the separation of the parties and the mother’s subsequent conversion to Islam and marriage to Mr S, was a tremendous shock to the father and his family and to the children.  They have all been caught in the conflict that has been generated by this shock.  Each parent has been critical of the other parent and has not stopped to consider that the children have accommodated the changes more readily than the adults and actually continue to consider themselves as very much a part of both families.  Hopefully when the parents have had an opportunity to get assistance through the post parenting course in understanding this perspective they will each learn to be positive about the strengths in the other household and be willing to communicate directly with each other privately and in the absence of the children about any matter of genuine concern.

I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 December 2010.

Associate:     

Date:              23 December 2010