Randall and Adams

[2013] FMCAfam 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RANDALL & ADAMS [2013] FMCAfam 5

FAMILY LAW – Parenting matters – 3 children always been in the primary care of Mother – Father seeks residence and sole parental responsibility orders – issue of Mother’s capacity to comply with Orders – children showing developmental problems attributed to conflict between parents – substantial non-compliance with Orders by Mother – ability of each parent to facilitate and encourage the children’s relationship with the other parent.

Family Law Act 1975, ss.60B(1), 60CA, 60CC, 61DA, 65DAA, 68L, & 117

MRR v GR (2010) 240 CLR 461
VR v RP (2002) 167 FLR 385
W and G (No 2) (2005) FLC 93-248

Applicant: MR RANDALL

Respondent: MS ADAMS

File Number: SYC 6475 of 2009

Judgment of: Pascoe CFM

Hearing dates: 29, 30 & 31 May 2012, 29 & 30 October 2012 & 3 & 21 December 2012 and 18 February 2013

Date of Last Submission: 3 December 2012

Delivered at: Sydney

Delivered on: 25 February 2013

REPRESENTATION

Counsel for the Applicant: Mr Othen

Solicitors for the Applicant:

Counsel for the Respondent: Ms Winfield

Solicitors for the Respondent: Katie Smith Solicitor

Solicitor for the Independent Children Lawyer: Ms Harland

THE COURT ORDERS THAT:

1. All previous parenting orders in this matter are discharged and that the following orders apply on a final basis.

2. The parties have equal shared parental responsibility for the Children, being [Y] and her twin [X] born [in] 2006 and [Z] born [in] 2009.

3. The Children live with the Mother as follows:

   (a)During the School terms:

   (i)During the first and second school terms in 2013 the children spend time with the Mother in three (3) night blocks commencing on Friday after school and finishing on Monday before school. This block time is to commence with the sixth weekend after the school term begins and continue on each alternative weekend there after.

   (ii)During the third and fourth school terms in 2013 and for the 2014 school terms, subject to the Mother’s compliance with the Orders given by this Court, the children spend time with the Mother in five (5) night blocks commencing on Wednesday after school and finishing on Monday before school. This block time is to commence with the second Wednesday after the school term begins and continue on each alternate week there after. 

   (iii)During the 2015 school terms, and for all school terms thereafter, the children shall spend, subject to the Mother’s compliance with the Orders given by this Court, equal time with both parents with changeover to take place at 5 pm on each Sunday.

   (b)During the school holidays:

   (i)In 2013, and for all school holiday periods there after, the Mother shall spend time with the children for half of the first, second and third term school holidays, for the first half in years ending in an odd number, and the second half in years ending in an even number.

   (ii)For the purposes of Order (3)(b) the term “school holidays” does not include the “Christmas holidays”.

   (c)During the Christmas holidays commencing in December 2013, and for all Christmas holiday periods thereafter, the Mother shall spend time with the children for the first half in years ending in an odd number, and the second half in years ending in an even number.

   (d)For the purposes of Orders (3)(b) and (c):

   (i)Each school holiday and Christmas holiday commences at 9.30 am on the first Saturday after the term prior ends.

   (ii)Each school holiday and Christmas holiday ends at 5.00 pm on the Sunday immediately before the following term commences.    

4. The Children live with the Father at all other times not specified in these Orders.

5. In addition to the time that the children spend with the parties as set out in these orders, on the following occasions of special significance the children shall spend time with the parties as follows:

   (a)Notwithstanding any other order, from Christmas Day 25 December 2013 onwards the Mother shall have care of the children from 2pm on Christmas Eve until 2pm on Christmas Day in even numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years.

   (b)That notwithstanding any other order, from Christmas Day 25 December 2013 the Father shall have care of the children from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in odd numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in even numbered years.

   (c)If Mother’s Day falls on a day when the Mother does not otherwise have care of the children, the Mother will have care of the children from 9.00 am until 6pm on Mother’s Day notwithstanding any other order.

   (d)If Father’s Day falls on a day when the Father does not otherwise have care of the children, the Father will have care of the children from 9.00 am until 6pm on Father’s Day notwithstanding any other order.

   (e)The Children spend time with the parent in whose care they are not otherwise in on [Y] and [X]’s birthday each year, and should the twins’ birthday fall on a school day, then from the conclusion of school for three hours, and should their birthday fall on a non-school day, then for a period of four hours with specific times to be agreed, but failing agreement from 1.00 pm until 5.00 pm.

   (f)The Children spend time with the parent in whose care they are not otherwise in on [Z]’s birthday each year, and should [Z]’s birthday fall on a pre-school/school day, then from the conclusion of school for three hours, and should his birthday fall on a non-pre-school/school day, then for a period of four hours with specific times to be agreed, but failing agreement from 1.00 pm until 5.00 pm.

   (g)In the event the Children are not otherwise in the Father’s care on his birthday each year, and the Father’s birthday falls on a pre-school/school day, the Children are to spend from the conclusion of school, three hours with the Father, and should the Father’s birthday fall on a non-pre-school/school day, the Children spend a period of four hours as agreed between the parties, but failing agreement from 1.00 pm until 5.00 pm.

   (h)In the event the Children are not otherwise in the Mother’s care on her birthday each year, and the Mother’s birthday falls on a pre-school/school day, the Children are to spend from the conclusion of school, three hours with the Mother, and should the Mother’s birthday fall on a non-pre-school/school day, the Children spend a period of four hours as agreed between the parties, but failing agreement from 1.00 pm until 5.00 pm.

6. Any handover which does not take place at school or pre-school shall take place at McDonalds Family Restaurant [B] unless otherwise stated in these Orders.

7. The Mother be restrained from attending the school at times when the Father is to collect or deliver [X] and [Y] from or to school unless it is necessary for the purposes of the handover of [Z].

8. Either the Father or either or both of his parents may conduct handover of the children on the Father’s behalf.

9. The Father is restrained from relocating with the children to any location outside of the Central Coast area of NSW.

10. Except in the event of an emergency, the parties are to communicate by electronic mail or through a communications book unless the parties otherwise agree.

11. The Mother release to the Father any of the children’s passports that she may have in her possession within seven (7) days of delivering the Children to the Father.

12. The Father shall ensure that [Z] is enrolled in a suitable day care program for at least one day per week commencing in February 2013.

13. In the event any one or all of the Children require any emergency medical care whist in the care of either party, each party be at liberty to ensure that that child or the Children receives all such appropriate medical care and shall advise the other party as soon as practicable of all treatment received by the child or Children in any hospital or by any Medical Practitioner.

14. The parties are to provide the other party with copies of medical records relevant to the Children as and when they come into their possession.

15. The Mother continue to attend upon her psychologist, Ms S, or such replacement psychologist as recommend by Ms S or the Mother’s General Practitioner at such frequency and for as long as recommend by the psychologist.

16. The Mother is to keep the Father advised as to the name of her treating Psychologist and as to when the Psychologist advises treatment is no longer required for more than 6 months.

17. The Mother notify the Independent Children’s Lawyer of the contact details for her psychologist and the Independent Children’s Lawyer provide copies of Dr V’s and Dr R’s reports, these Orders and Reasons for Judgment to the Mother’s psychologist.

18. Upon implementation of Order (17) the Independent Children’s Lawyer’s appointment be discharged.

19. Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of any of the children.

THE COURT NOTES THAT

1. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6475 of 2009

MR RANDALL

Applicant

And

MS ADAMS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders arising out of a long and chequered history of litigation between the parties. The application concerns the welfare of two twins, [Y] and [X] born [in] 2006 (aged 6), and [Z] born [in] 2009 (aged 3) (collectively “the Children”).

2. The matter has been before the Court in numerous applications since 2009 and past orders have been made by FM Walker and FM Monahan. The present matter arises out of a remittance from the Full Court of the Family Court of Australia on appeal from the Orders of FM Monahan made. Pursuant to this referral MR RANDALL (“the Father”) filed an amended application on 22 March 2012 seeking orders that the children live with him and that he have sole parental responsibility. This application was filed after the Father discontinued his fourth contravention application against the Mother relating to past parenting Orders.

3. MS ADAMS (“the Mother”) opposes these Orders and sought Orders which in effect would finalise the parenting arrangements made on an interim basis by me on 1 June 2012.

4. During the course of the Hearing the Mother withdrew her application for Orders to allow her to relocate to Cairns with the Children and so I will not deal with that issue.

5. The Independent Children’s Lawyer (“ICL”) provided a case outline which contained a useful summary of the main issues in dispute. Those issues cited as being central to the dispute were:

   a)Whether or not previous parenting arrangements discharged and an order for sole parental responsibility should be made in favour of the parent with whom the children primarily live;

   b)The ability of each parent to facilitate and encourage the children’s relationship with the other parent;

   c)The attitude of each parent to the responsibility of parenthood;

   d)Whether the children should live primarily with the Mother or the Father;

   e)What time arrangements should be put in place for the non-resident parent;

   f)If the children’s living arrangements are to be changed, should the Mother’s time be supervised for a period and if so on what conditions.

6. The case is made somewhat more complicated by the Father’s irregular work rosters. The Father is currently employed as an [omitted]. The Father’s roster requires him to work on a two month rotating cycle. During the first month he has a minimum of nine days off and his [omitted] schedule is reasonably stable. During the second month he also has a minimum of nine days off, however, his [omitted] schedule is less stable and subject to change. The Father’s work commitments usually require him to be away from Sydney for three to five days at a time.

7. In considering the best interests of the Children, it was also necessary to have regard to the Children’s relationship with [W], born [in] 1996. [W] is the son of the Mother and Mr C, whose relationship ended before the Mother re-partnered with the Applicant in these proceedings.

History of the Matter

1. The parties met in 2005. In that same year the Father accepted a position with [omitted], based in Cairns. Both parties moved to Cairns in February of 2006 and commenced cohabitation. They did not marry.

2. The twins, [X] and [Y], were born in 2006 while the parties resided in Cairns.

3. In August 2007 the Father accepted employment with [omitted] and moved to Sydney. The Mother remained in Cairns with the twins and [W].

4. After moving to Sydney the Father purchased a property at [address omitted]. In 2008 the parties and the twins (and [W]) moved into this property and continued cohabitation.

5. In 2009 [Z] was born.

6. In July of 2009 the parties separated. Since separation the Children remained living with the Mother and [W]. The Children, but not [W], visit their Father on a somewhat intermitted basis. This is partly due to the unpredictable nature of the Father’s work rosters and, as will be discussed below, partly due the Mother’s behaviour and attitude towards parenting Orders.

7. The Father initially resided in a southern suburb of Sydney after the relationship ended but has recently moved to the Central Coast in order to reduce travel time between the Children’s two homes.

8. The Father commenced proceedings on 8 October 2009 in the [omitted] Local Court seeking, inter alia, to restrain the Mother from relocating with the Children to Cairns.

9. The matter was heard again by the Local Court on 23 October 2009 and interim orders were made by consent between the parties. An order was also made that the matter be transferred to the Federal Magistrates Court in Sydney.

10. On 15 December 2009 the matter came before FM Walker and the parties were ordered to attend a conciliation conference and a post-separation parenting assessment with Relationships Australia.

11. On 26 March 2010 the Father filed a contravention application which was heard on 14 April 2010. The application was adjourned for further directions 21 May 2010.

12. On 21 May 2010 FM Walker made orders again adjourning the contravention hearing to 4 June 2010. On 4 June 2010 her Honour made orders for the Children to spend “compensatory time” with the Father.

13. The Father subsequently filed a further contravention application on 16 May 2010, which was amended on 1 June 2010 and filed again as an Amended Further Contravention Application. This application was not dealt with by FM Walker, but rather came before FM Monahan for final hearing on 23 August 2010.  

14. Final judgment in the matter was delivered by FM Monahan on 9 May 2011. His Honour made, inter alia, Orders that:

    a)The parties have equal shared parental responsibility for the children and that the children live with the Mother (Orders 2 and 3);

    b)The Mother be restrained from relocating from the Central Coast area or Greater Sydney (Order 4);

    c)Failing agreement between the parties the father see the children for up to 10 days in a 28 day cycle and half of the school holidays with special graduating time arrangements for [Z] (Order 5);

    d)Changeovers occur as agreed between the parties, or failing agreement, at McDonalds Family Restaurant, [B] (Order 6);

    e)The Children be removed from the Airport Watch List and the parties be permitted to take the children out of New South Wales and/or Australia on holidays and the Mother and Father are to each retain one of the twin’s passports in their possession and release it to the other upon request. [Z]’s passport is to alternate between the parent’s possession on an annual basis (Orders 12 and 13); and

    f)The Father pays the Mother the sum or $200 per week by way of spousal maintenance (Order 37).

15. Orders 19-36 related to the division and settlement of property between the parties.

16. The Mother subsequently appealed these Orders and the appeal was heard by the Full Court of the Family Court of Australia on 14 October 2011. Justices Coleman, May and Thackray, in a joint decision, allowed the appeal in part and consequently referred the parenting matters back to the Federal Magistrates Court for rehearing.

17. In the interim period between the Full Court decision and the rehearing of the matter, the Full Court made orders that FM Monahan’s Orders, made 9 May 2011, were to operate as interim Orders.

18. On the 14 November 2011 the matter came before FM Kemp who adjourned the matter to 17-19 April 2012 for final hearing on the remitted parenting matters before me. His Honour also made Orders that the parties and the children of the relationship attend upon Dr V for the purpose of preparing a Family Report.

19. Pursuant to section 68L of the Family Law Act an Independent Children’s Lawyer was appointed to advance the children’s interests in the rehearing on 13 April 2012.

20. The matter was heard on 29, 30 and 31 May 2012. However, after hearing evidence over those three days it was decided that the Mother should undertake a mental health assessment, to be conducted by Dr R on 28 August 2012. The parties were then to return to the Court for final submissions. The matter was therefore adjourned and Interim Orders were made on 1 June 2012. Briefly these Orders required:

    a)The Children to live with the Mother and set out a regime where the Children visit the Father on days elected by the Father, provided he gives the Mother seven days notice of the arrangement.

    b)That changeovers occurred at the Children’s school or at McDonald’s Family Restaurant, [B]. Order 5 also granted the parties the ability to arrange such other locations for changeover as they see fit. However, the history of the matter to date suggests that McDonald’s, [B] has been the normal place of changeover.

    c)That the Mother, under Order 7, is also restrained from attending the Children’s school when the Father is collecting the twins unless it is necessary for the purposes of handing [Z] to the Father or collecting [Z] from the Father.

    d)That the Father, under Order 8, have liberty to take the children to Tasmania during his time with the Children during school holidays, provided however that [Z] does not spend more than four nights away from his mother.

21. The Court reconvened on 29 October 2012 to admit Dr R’s evidence, which was not contested, and final submissions. At the final hearing the Father was represented by Mr Othen of Counsel and the Mother by Ms Winfield, also of Counsel. Ms Harland, solicitor, appeared as the ICL. However, the Mother’s counsel requested a further adjournment arguing she had not had time to get adequate instructions relating to new material the Father had filed. Leave was granted by the Court and the matter was adjourned until 30 October 2012. In this final hearing the Father gave evidence of further contraventions by the Mother and the Mother gave evidence in reply. Orders were then made for the parties to forward final submissions to the Court in writing.

22. Counsel for the Mother subsequently filed an application for the Mother’s case to be reopened which was heard on 3 December 2012. Leave was not granted.

23. The parties further appeared before the Court on 20 December 2012 for a directions hearing and Orders were made by consent for the 2012-2013 Christmas holiday period.

1. On 18 February 2013, the Independent Children’s Lawyer appeared, by consent, on behalf of all parties to report on the parties’ compliance with the Orders made on 21 December 2012. Ms Harland reported that the parties had been advised that they would need to appear before the Court if they wished to raise any concerns regarding non-compliance with Orders. She reported that the parties had not expressed any concerns which they thought warranted returning to Court and that the Orders had been satisfactorily implemented.

History of Children’s Care

1. It is common ground between the parties that the Mother has been the primary caregiver to date and that she has provided good physical care. The parties differ, however in the extent to which the Father has been involved in the care of the Children and the possible harmful effect of the Mother’s behaviour on the Children.

2. According to the Mother the Father has always placed his career before the children. The Mother says that when the Father accepted his current position with [omitted], which necessitated the move from Cairns, the Father told the Mother “I want to go to further my career”.[1] However, the Mother concedes that when the Father was at home, and not resting, he did play a positive role in looking after the children.

   [1] Affidavit of Ms Adams sworn 9 May 2012, [24].

3. The Mother also says that since separation the Father has continually failed to take opportunities to spend time with the children and has not involved himself in important decisions concerning the Children, for example, the Children’s medical arrangements.

4. The Father says that prior to separation he was very involved in caring for the children when he was at home. He says he was “the person responsible for nigh-time feed and nappy changes” and for bathing, dressing and supervising the children.[2]

   [2] Affidavit of Mr Randall sworn 22 March 2012, [8].

5. The Father says that although both parents can meet the children’s physical needs, their emotional and psychological needs have not been met by the Mother.

6. Since separation, the Father says the Mother has continually refused to facilitate a relationship between him and the Children. This has made and continues to make it very difficult for the Children to develop a meaningful relationship with their father or with their paternal grandparents.

7. The Father also says that the Mother has made unilateral decisions in relation to the Children and does not involve him in any significant way. According to the Father, the Mother removed both twin girls from their pre-school in August 2011 without consulting him.[3] He also says that the Mother only nominally involved him in deciding which pre-school [Z] was to attend.

   [3] Ibid, [169].

8. Certainly I accept that on the basis of the evidence presented at trial, the Mother has regularly acted in a manner which frustrated the Father spending time with the his children. I will deal with this issue fully under the relevant parenting considerations.

Family and Psychiatric Reports

Family Report

1. A Family Report in this matter was ordered by FM Kemp on 14 November 2011. This report was completed by Dr V on 26 April 2012 and admitted as evidence during the May 2012 hearing. In preparing the 2012 report and reaching her conclusions, Dr V made reference to:

   a)Interviews and observations of the Father, [X], [Y], [Z] and Ms R (the paternal grandmother) conducted on 3 March 2012;

   b)Interviews and observations of the Mother, [Y], [X] and [Z] conducted on 12 March 2012;

   c)A telephone interview with [X] and [Y]’s school teacher; and

   d)Affidavit material before the Court.

2. Dr V identified several issues as being at the heart of the dispute between the parties. These issues related to the Children’s attachment relationships and the capacity of the parents to relate in a child focused way.

3. In their interviews, both the parties made reference to ongoing difficulties with the implementation of the Orders made in 2010. Dr V noted that the Mother perceived the Orders as being a form of control on the Father’s part and believed she was being unfairly treated.

4. For his part, the Father expressed the view that he felt harassed by the Mother and frustrated with the number of communications he received.

5. According to Dr V the Father continued to express concern that his current relationship with the Mother seemed to be a continuation of what he had experienced in the past. That is, episodes of physical and verbal violence with many threats to destroy him and his career.

6. The Father also indicated that the children had disclosed to him that the Mother hit them and that they observed fights between the Mother and [W]. He states that [X] told him that the Mother had bitten her as punishment for biting [Y].

7. Dr V noted that the Mother referred to the Court Orders as being “grey” and impossible for her to live her life around.[4]

   [4] Family Report dated 26 April 2012, [25].

8. The children’s paternal grandmother also attended these interviews. According to Ms R (snr) the children have told her that they are chastised by their mother if they speak positively of their father and they are often afraid that they will be punished when they return to their mother after spending time with the Father, especially if they have not spoken with her on the telephone.

9. Dr V expressed the opinion that the Mother lacks insight as to how her behaviour affects the children and that she does not appreciate the inappropriateness of her actions. The Mother had also acted to thwart Court Orders. Further, there seemed to be no abatement of the tension between the parties since her last report, written almost two years earlier.

10. Perhaps most disturbingly, Dr V concluded that [Z] was now displaying the symptoms of an insecure avoidance attachment pattern. This partly could be attributed to the lack of any continuity in his relationship with his father at important times in his life. Dr V noted that this problem would need to be addressed, as a lack of secure attachment in the first three years of a child’s life is likely to have a negative impact on that child’s relationships throughout the course of their life.[5] 

    [5] Ibid [60].

11. Dr V’s noted:

    Mr Randall seems to be the parent who has the greater child focus. His interactions with the children were relaxed and child focused was he was [sic] attentive and affectionate towards them.[6]

    [6] Ibid [62].

12. Dr V’s recommendations were as follows:[7]

    [7] Ibid, [66]-[72].

    It is recommended that an Independent Children’s Lawyer be appointed for the children.

    It is recommended that parental responsibility be granted to the parent with whom the children are living.

    Unless further evidence comes before the Court and providing the Court is convinced that Mr Randall can secure suitable arrangements for the children, it is recommended that the children live with their father. In such scenario, it is recommended that the time the children spend time with their mother initially be supervised by a Contact Centre and that the supervision requirement be lifted once Ms Adams provides evidence to the Court of her engagement with appropriate services as listed above [sic]. It is also recommended that

    
    

    Mr Randall seek therapeutic intervention to assist him and the children with the transition.

    If the children continue to live with the mother, it is recommended that she receives intensive support from a Family Support Service such as Brighter Futures. It is recommended in this case, that the children spend no less than the time they currently spend with their father.

    It is recommended that both parties refrain from either involving or exposing the children to any inappropriate and non child focused conversations about the dispute or the other parent.

    It is recommended that the parties do not come into contact with each other.

    It is recommended that [Z] attend an age appropriate service such as play group or day care for at least one day per week.

13. I will refer to Dr V’s evidence, both in her report and the oral evidence given at the hearing, in more detail later in this judgment. I accept most of her recommendations either in whole or in part, but not all.

Psychiatric Report

1. During the initial proceedings in May 2012 the matter was adjourned to allow the Mother to undertake a psychiatrical assessment. This assessment was conducted by Dr R on 28 August 2012 in compliance with Order 11 made 1 June 2012. Following a four hour consultation, Dr R produced a report containing a number of observations.

2. Dr R concluded that the Mother did not appear depressed nor to have a psychotic illness. However, the Mother did feel that the Father had been “bitter and nasty” during the Court proceedings.[8] The Mother contended that she is “trying to do the right thing” for the Children and include the Father, however he tried to exclude her.

   [8] Psychiatric Report dated 28 August 2012, 4.

3. In the course of the interview the Mother indicated that she has a limited support base and has become estranged from her sister after discovering that she had been supportive of the Father since separation.

4. When asked to describe herself, the Mother thought of herself as normally having a “sunny disposition, not suffering fools…suffer foot in mouth…say it like it is, what I see is the truth [sic]”.[9]

   [9] Ibid 5.

5. It also became apparent that the Mother found her pregnancy with the twins a very traumatic experience. Dr R noted that the Mother had sought some support for her mental health after the birth and commenced taking antidepressants. It would appear that these issues also persisted after the birth of [Z] in 2009.

6. With regards to the Mother’s anger, Dr R recorded the Mother as pondering:

   if she feels anger. She reflected she gets frustrated and does not hide it: she will say what the problem is with an angry/stern, raised voice and glare but does not get in a rage has not been out of control.[10]

   [10] Ibid 7.

7. From this consultation Dr R noted that the Mother appears to have chronic Major Depression:

   She experiences significant distress, as evidenced by her unresolved grief (around the trauma of her twins’ pregnancy, loss of relationship with their father), lowered mood (without biological symptoms of depression) and anxiety (Manifest as insomnia with obsessional thinking, minor checking compulsion) with marked stress and tension around this Court matter.[11]

   [11] Ibid 9.

8. Dr R also opined that the Mother has mental health and characterlogical vulnerabilities which could compromise her parenting capacity. These difficulties, according to Dr R, were not beyond treatment and it was recommended the Mother work with a psychologist to assist her to reflect and gain insight into her own behaviour and the origins of the behaviour in her past experience.

9. I note that Dr R made no further observations as to the Mother’s parenting style or its likely effect on the Children. It is, however, implicit in her report that the Mother’s current issues have the potential to adversely affect her parenting skills and by implication, the Children.

10. This report was simply tendered as evidence and was not tested by any of the parties in Court. None of the parties wished to call Dr R to give oral evidence.

Submissions by the Parties

1. Ms Harland, the Independent Children’s Lawyer (“ICL”), submitted that of primary concern in this case is the fact that previous sets of Orders, including the Orders made on 1 June 2012, have not worked. The “crux of the case” according to Ms Harland is the Mother’s inability to facilitate and encourage the Children’s relationship with the Father. In her opinion the Children were only going to have a relationship with the Father if their living arrangements were changed.

2. Ms Harland submitted that the Mother has shown limited understanding of the communication problems between the parties and continues to contact the Father in counter-productive ways. It was her assessment that the communication problems and the conflict between the parties was likely to mean that any order for equal shared parental responsibility would only lead to further conflict.

3. Ms Harland also submitted that the twins have been inappropriately involved in the conflict between the parties, calling one of the Father’s former partners “Faggie” when they know it is a “rude” word. It was also submitted that the Father has been insensitive at times towards the Mother.

4. At times, according to Ms Harland, both parents have prioritised their own needs above those of the Children. The difference is that the Father showed insight and a capacity to reflect whereas the Mother did not.

5. Ms Harland also submitted that the Mother in cross-examination in May and October hearings demonstrated that she knew she had breached Orders. She defended her actions in May by repeatedly saying the Orders were not fair. In October she defended her behaviour by saying she did what she thought was in the best interests of the Children.

6. Ms Harland further submitted that the Mother was strongly on notice by the end of the May 2012 hearing that non-compliance with the Interim Orders could have significant impact on the outcome of the case. This did not appear to influence her behaviour.

7. She submitted that the Court cannot be confident that the Mother will not continue to refuse to comply with Orders unless living arrangements are changed. It was acknowledged that the Father remains untested as the resident parent. However, it was submitted that his evidence showed he had a capacity to reflect and to be emotionally in tune with the Children’s needs.

8. Ms Harland did not accept Dr V’s recommendation as to supervision of time with the Mother and submitted that it would be too traumatic for the children to be moved from the Mother’s primary care to seeing her on a supervised basis.

9. Counsel for the Father, Mr Othen, referred to the Full Court decision in VR v RP[12] and noted that the Court has the power to interfere with or diminish parental responsibility where the welfare of the child will be clearly advanced by that order being made.

   [12] (2002) 167 FLR 385, 389-390.

10. Mr Othen submitted that there are credible allegations of family violence perpetrated by the Mother which displace the presumption under s.61DA of the Family Law Act. It was also submitted that the Mother has proven she is unable to cooperate with the Father and continually breaches Court orders thereby causing all previous arrangements to fail.

11. The Mother, it was further argued, uses parenting arrangements as an opportunity to maintain her emotional connection with the Father. It was submitted that the Mother in unable to foster and encourage a relationship for the children with their father.

12. Mr Othen pointed to the report of Dr V and submitted that if the Mother is to continue in her present behaviour, the Children face the risk of becoming alienated from their Father and the relationship could be lost.

13. Mr Othen submitted that this necessitates that the primary caregiver should have sole parental responsibility. As it would not be proper for the Court to remove the Father’s responsibility because of the Mother’s poor conduct, the Father, therefore, should be given primary care and sole responsibility for the children.

14. Mr Othen argued that a change of residence in favour of the father is required if the children are to maintain a meaningful relationship with both their father and their mother.

15. Although such an arrangement has not been tested it was submitted by Mr Othen that the Father is able to act in a child focused way, he loves his children and he bears no malice towards the Mother. These points were relied upon as giving the Court confidence that once the Children are in the Father’s care he will actively promote their relationship with their Mother.

16. In reply Ms Winfield, counsel for the Mother, submitted that the Father’s proposed living arrangements were too uncertain. In Ms Winfield’s submission the past orders made by the Court had worked for the parties. It was submitted that the Court should continue to allow the parties to have equal shared parental responsibility for the Children and that the Children live with the Mother.

17. Ms Winfield, submitted that the Father had been unable to make fixed arrangements in the past. It was argued that due to the Father’s work commitments, the children would not be able to live with him without considerable help from “nannies and grandparents”.

18. Ms Winfield also used her final submissions to complained about inadmissible material despite the Court having dealt with these issues as they arose at the hearing. She emphasised that the Father did not appreciate the Mother’s finer qualities.

19. Ms Winfield subsequently sought leave of the Court to make further final submissions. Leave was granted and further written submissions were filed in Court on 3 December 2012.

20. This further submission added little other than to assert that Dr V’s report relied on assumptions. The rest of the submission proceeded to restate each of the points made in the Father’s final submission followed by statements such as “is not supported by the evidence” or “exaggerated”. No explanation was given to justify how these conclusions had been reached or why the Court should accept them.

Dr V’s Oral Evidence

1. Dr V gave oral evidence on 31 May 2012. I deal with her evidence in detail because her report and recommendations are significant in this case. I will also refer to it later in this judgment.

2. Dr V remained adamant throughout cross-examination that the Mother lacked insight and was emotionally disconnected. Dr V also expanded upon what she meant by the term “insecure avoidance attachment pattern” when used in relation to [Z]’s behaviour. She commented that during the interview process [Z] had not made any contact with his Mother which was unusual for a child of his age. Dr V explained that when a child does not display the usual patterns of behaviour it raises concerns as to what extent a parent has been emotionally available and responsive to a child’s needs.

3. Dr V also explained that when she observed the Father with the children, on a separate day from the Mother, there were different but equally worrying signs. She said that in this interview [Z] was “overly clingy” and refused to leave his father for even a short amount of time. These are signs of an anxious attachment relationship which may be caused by the protracted periods where [Z] does not see his father.

4. Importantly, Dr V again stressed there were very serious consequences if things do not change. If [Z] does not form any primary attachment within the first three years of his life then it will become much more difficult for him to form relationships and trust others throughout the rest of his life. According to Dr V’s evidence it could also have implications for the child’s capacity to love and to be loved.

5. Again Dr V commented on the effect the non-verbal acrimony between the parents was having on the Children. The Children are witness to this acrimony which can potentially lead to high levels of anxiety making them more likely to suffer mental health issues, including serious problems such as depression, anxiety and difficulties with cognitive development.

6. Dr V observed that [Z] was already displaying some signs of difficulty with cognitive development, with limitations in his speech which were not normal for children of his age.

7. Dr V was referred to her report which noted that the Children are of an age where they are very egocentric and this to some extent has sheltered them from their parents’ conflict. The age of the Children currently allows them to maintain a relationship with each of the parents despite one undermining the other. However, Dr V expressed the opinion that it will become much harder for the Children to do this as they get older if the conflict does not abate. This is especially the case with the twins who will reach seven years of age in 2013.

8. Dr V concluded her oral evidence by reaffirming the recommendation in her report, namely, that the Children need to have an unbroken relationship with the Father where they know that they will see him, regularly under an arrangement they know will be honoured.      

Relevant Law in Relation to Parenting Matters

1. The current proceedings were commenced in March 2012. Amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply.

2. The legal principles which govern parenting proceedings are set out in Part VII of the Family Law Act as it provided before the amendments which commenced 7 June 2012. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to have regard to the best interests of the child as the paramount consideration.

3. Section 60B(1) enumerates the objects of Part VII as ensuring the best interest of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. In determining the best interests of the children, the Court must consider those primary considerations outlined in s.60CC(2) together with those matters, titled “additional considerations”, set out in s.60CC(3). The Court must also consider whether each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (see subsection 60CC(4)).

5. The question then turns to parental responsibility for the children. In answering this question the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility.

6. This presumption does not apply in cases of abuse or family violence (s.61DA(2)), and it may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility (s.61DA(4)).

7. In making parenting Orders either for equal shared parental responsibility or for substantial and significant time the Court must have regard to the considerations set out in s.65DAA of the Act.

8. When considering whether equal time or substantial and significant time is in the best interests of the children, the Court must also consider and make findings as to whether such time is reasonably practicable (see s.65DAA and MRR v GR (2010) 240 CLR 461).

9. “Substantial and significant time” is defined by s.65DAA(3) and “reasonable practicality” is defined by s.65DAA(5) of the Act.

Primary Considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents

1. I accept Dr V’s evidence that both parents feature significantly as attachment figures and sources of the Children’s emotional nurture. It is clear that the Children both desire and need each party to be meaningfully involved in their lives.

2. At issue, therefore, is whether the Children can have a meaningful relationship with their father as well as their mother under the current living and parenting arrangements and if not, what changes need to be made.

3. When considering this issue I accept the evidence that it would seem optimistic at best, given the history in this case, that the Mother would willingly comply with any Order to increase the amount of time the Father is to spend with the Children. I am deeply troubled by the fact that despite all the warnings give to the Mother about non-compliance and all my attempts to encourage her to forget the past and comply with the Orders made on 1 June 2012 (which were modified to try and remove the problems she previously indicated as contributing to her non-compliance) the Mother’s still failed to comply with Orders for reasons I will deal with later in this judgment. The Children did not spend time with the Father as contemplated by the Orders and conflict continued unabated.

4. The Father, on the other hand, has displayed a level of understanding as to the importance of the Children maintaining their relationship with each parent and has expressed a desire to facilitate this. His move to the Central Coast to be near his children is evidence of his commitment.

5. Any orders made by this Court must ensure that so far as possible the children have the benefit of a meaningful relationship with each parent and therefore significant weight but be placed on any factor that may prevent this from occurring. Clearly, this means that Orders must take into account the Mother’s conduct and Dr V’s observations as to the effect of that conduct on the Children. It is important and I accept

   
   

   Dr V’s evidence that the children want a relationship with both parents and that both are important to them and to their on-going development.

6. On a more positive note, the ICL attested at a hearing on 18 February 2013 that the Orders which I made on 21 December 2012 had been complied with and that the parties had not seen any need to come back to the Court. This is important because it indicates that the Mother is capable of complying with Orders and able to do so. It is encouraging that she appears to have taken heed of my comments which I made on 21 December 2012 as to the seriousness of Dr V’s recommendations.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. “Abuse” was narrowly defined in section 4 of the Family Law Act, at the relevant time for this case, as meaning sexual abuse or an assault of a child which is an offence under law. Such abuse is not present in this case.

2. “Family violence” was defined in section 4 of the Family Law Act (at the relevant time) as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.

3. There was some evidence given by the Father of conduct that fits within this definition. The Father alleges that the Mother has mood swings and could turn violent if she did not get her own way. In support of this claim the Father gave evidence that the Mother has on occasions punched him.[13]

   [13] Affidavit of Mr Randall sworn 22 March 2012, [13].

4. The Father also gave evidence that the Mother has made statements to the effect that “I can kill [the Children] and there’s nothing you can do”.[14] On another occasion the Mother is said to have commented “if you get the children I will slit their throats”.[15]

   [14] Ibid [17].

   [15] Ibid [49].

5. Although the Children did not report any direct incidences of violence they did comment to the Family Report writer that the Mother smacks them hard when they misbehave. The Father on the other hand “growls” at them.[16]

   [16] Family Report dated 26 April 2012, [43].

6. In 2009 the Father commenced proceedings to obtain an apprehended violence order (“AVO”) against the Mother, however this was discontinued. The Family Report writer also points out that there have been ongoing threats of AVO proceedings between the parties.

7. The Mother denies the Father’s allegations and in final submissions made the point that the Father cannot have taken them seriously, even if they were true, as until his most recent application he continued to accept that the Children reside with the Mother.

8. I am satisfied that there is considerable tension between the parties and on highly emotional and stressful occasions this may have resulted in the Mother being aggressive towards the Father.  I am also satisfied that this aggression involved unwanted physical contact. However, there was scant evidence given in either affidavit or oral form at trial in relation to these episodes which appear to have occurred around the time of separation in 2009. No evidence was given that the behaviour has continued. I note the Mother’s submission that if the Father was truly apprehensive about either his safety or that of the Children’s then he would have pursued this issue at the hearing. This does not appear to be a case where the relationship was defined by continuous violence but rather a few sporadic incidents which occurred within a limited and highly stressful period of time. I am satisfied that such behaviour does not present a threat to the Children and that it is unlikely to reoccur in the future especially if Orders which operate to minimise conflict between the parties.

9. I do not discount the evidence of Mrs R (snr) as to the Mother smacking the children and their concern about speaking well of their father. This is a factor I have taken into account in determining their living arrangements.

The Relevant Additional Considerations

Any views expressed by the children and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the children’s views

1. The children did not express any views. In any event they are, especially in the case of [Z], very young. Unfortunately [W], although not affected by the Orders, may have had views which were relevant but he was not available to see Dr V and no evidence was given as to his views or the relationship between him and other children. This was despite my urging them to do so.

The nature of the relationship of the child with (i) each of the children’s parents; and (ii) other persons including any grandparents or other relative of the children

The Mother

1. Despite the fact that the Children all desire and need both of their parents, the evidence of the Children’s relationships with their parents and extended families presents a somewhat bleak picture. Dr V gave evidence at the May 2012 hearing that there were some disturbing signs of insecure avoidance patterns, particularly in relation to [Z], between the Mother and the children. The Family Report writer opined that this may raise concerns that the Mother has not been emotionally available and responsive to the Children’s needs.

2. Again, in the interviews conducted in August 2012, Dr V found the Mother’s lack of interaction with the Children reason for concern. The Family Report writer found the Mother to be withdrawn and non-communicative with the children during the observations. Dr V commented that this behaviour was all the more worrying given that the Mother knew she was under observation.

3. Although the Mother did point out that she was quite unwell the day of the interview I find that her behaviour fits within the pattern she has shown to this Court in past instances. It is also consistent with the former Family Report written in 2010 and with Dr R’s observations in her report.

4. Dr V also noted that the Children have little contact with their maternal extended family. She writes:

   Ms Adams’s family unit presents as an extremely closed system with very little support and one would have to question whether it would become even more closed should she relocate.[17]

   [17] Family Report dated 26 April 2012, [55].

5. Due to this “closed system” and the lack of evidence presented on the matter, it is hard to determine whether the Children have any relationship with their maternal grandparents. It was the Mother’s submission that “both parties have extended families they see from time to time”. However, I find this statement unconvincing in the light of other evidence. In particular, there was evidence that the Father has encouraged a relationship between the children and their maternal aunt.

The Father

1. Although the children have a “sporadic” relationship with their Father which involves a lot of uncertainty, it was Dr V’s evidence that the children still derive a substantial degree of security and comfort from this relationship.

2. In contrast to the Mother’s interview, Dr V reported that in the interview with the Father and the Children:

   Mr Randall sat on the floor with the children. [Y] and [X] chose the activities that interested them and began to play alongside their father. Mr Randall was encouraging and affirming and followed their lead in play.[18]

   [18] Ibid, [44].

3. Dr V also notes in her report that on several occasions during the course of the observation the girls initiated affectionate contact with their father and sat on his lap.

4. It is apparent from the evidence that the Father is much more aware of the emotional needs of the Children and relates more closely to them in this regard. I find that the Mother whilst clearly a capable parent, who takes care of the children physically, is less able to foster their emotional wellbeing. I give weight to my findings as to the relationship between the Children and their parents and the wider family.

The Paternal Grandparents

1. Ms R (snr) also attended the interviews with her son (the Father) and was observed has having a good and affectionate relationship with the children. Again [Y] was observed initiating affectionate contact with her grandmother and sitting in her lap while the Father read a story to all three children.

2. Given the obvious strong affection the children have for their father and paternal grandmother it is indeed unfortunate they have only be able to maintain minimal contact. No evidence was given concerning the Children’s relationship with their paternal grandfather other than he has accompanied his wife on numerous occasions to visit the Children and the Father.

[W]

1. I have previously referred to [W] and it was disappointing that there was no evidence as to his relationship with his step brother and sisters. Evidence was given, however, that [W] has a close relationship with the Father (whom he called “dad”) and used to participate in activities with him. This relationship ceased when the relationship between the parties broke down. I accept this evidence.

2. [W] was also not interviewed by the Family Report writer. The Court was told this was because of confusion on behalf of the Mother, as to the dates and also because she was not aware of the need to take [W] to the interview. Unfortunately, this leaves me in a position where I am unable to take into account the Children’s relationship with [W] other than to the extent there was some evidence given by the Mother, in response to questioning by me, that [W] has a good relationship with his siblings.

3. As noted previously, the Father also gave evidence that he had had a close relationship with [W], who called him “Dad”, before the separation. However, the Father now has no relationship with [W].

4. I did not think it appropriate to Order any further family report to deal with [W] specifically. Firstly because this would likely extend the litigation, secondly because none of the parties sought to adduce any evidence as to the Children’s relationship with [W] despite my encouraging them to do so. It was disappointing that the Mother did not seem to think this was an important issue and gave no evidence about it despite [W] living with the Children all of their lives and presumably being impacted by any change in their living arrangements.

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

1. Dr V stressed the need for the children to have both parents involved in their lives and there to be an abatement of the current conflict. She points out, in respect of the latter, that the parents appear to be unable to relinquish the conflict and facilitate a good relationship. Dr V makes the point that the Children are able to pick up on the conflict between the parents even when the parties refrain from talking to each other in the presence of the Children. In situations where there is no verbal conflict, the evidence given during the hearing demonstrated clearly that a latent “tension” between the parties exists of which the Children are aware. Dr V referred to this tension as placing the Children in a position of conflicting loyalties which is taking an emotional toll on them.

2. In the case of [Z], the tumultuous and unpredictable relationship between his parents can be identified as one o the issues underlying his lack of secure attachments. This is a matter of grave concern in considering the best interests as it has the potential to affect his ability to form relationships throughout the course of his life.[19]

   [19] Family Report dated 26 April 2012, [60].

3. As mentioned above, the twins are currently at an age where they are very egocentric and this has to some extent shielded them. However, I accept Dr V’s evidence that it will become harder for the twins to deal with the conflict between their parents as they get older with consequent detrimental effects on their psychological health.

4. Clearly, the Children’s best interests are served by their being able to have an unbroken relationship with both of their parents and not forced to take sides in an adult conflict.

5. I agree with the ICL and counsel for the Father that the ability and willingness of the Mother to support the Children’s relationship with the Father is a significant problem in this case.

6. There is a pattern identified in the Family Report and the evidence at the various hearings that the Mother refuses to comply with Court Orders. It would appear that the Mother fails to understand the importance of facilitating a relationship between the Children and their father. Whether this is deliberate or otherwise, the negative effect on the Children is the same.

7. I accept the evidence that under the current Orders and for some previously, the Mother has continually refused to facilitate a relationship between the Father and the Children whilst noting that the Orders I made on 21 December 2012 to deal with the Christmas holiday period were complied with.

8. One example of the Mother’s failure to put the Children’s needs ahead of her own feelings can be found in the Mother teaching the Children to call the Father’s girlfriend “Daddy’s bitch”.[20] This cannot be seen as supportive or appropriate behaviour likely to encourage a relationship between the Father and his Children.

   [20] Ibid [16].

9. There was also evidence, referred to by both the ICL and counsel for the Father that the Mother has displayed a pattern of making appointments for the Children on the Father’s days with them and then insisting she be present at the appointments. The most flagrant of these behaviours occurred when the Mother booked a dental appointment for the Children months ahead and knowing it was in the Father’s time and thus prevented the Father from taking the Children to visit his family in Tasmania. No attempt was made to change the appointment although the Mother did acknowledge in cross-examination that she could have done so. This was a direct violation of the Orders made on 1 June 2012 by this Court. It is somewhat surprising that the Mother’s Counsel in final submissions sought to use the Mother’s behaviour on this occasion, and the Father’s refusal to attend the dental appointment, as evidence that the Father did not care about the Children’s health.

10. The Father also said that the Mother’s practice of accompanying him to all medical appointments concerning the Children was diminishing his relationship with the Children. This is because it reduced his role in the Children’s eyes and effectively prevented him from engaging in developmentally critical activities.

11. Apart from those medical appointments that have been booked on the Father’s days, the Father says the Mother has otherwise been unwilling to involve him in decisions concerning the Children’s long-term care.

12. The Father gave evidence that he was given a choice of two schools for the twins, via electronic mail, and the Father agreed to one of the options. There was no “discussion”. In the Father’s words:

    She [the Mother] decided and the decision was made and I agreed. Yes, I had no problem with it – what she had chosen.

13. The problem here is not that the Father did not agree with the school but rather the limited role the Father was allowed to play in what is a very important decision in a child’s life.

1. As already mentioned, the Mother unilaterally made the decision to pull the twins out of their school in August 2011. There are also instances where the Mother has withheld the Children from the Father in an attempt to gain leverage over the Father and obtain information on the Father’s personal life.

2. Though the Mother’s breaches are often represented as her taking decisions in “the best interests of the children” it is apparent that little consideration has actually been given to the Children’s emotional needs. The Mother has simply taken it upon herself to decide what is in the Children’s best interests even if this involves deliberate breaches of Court Orders. Dr V concludes that the Mother has “conducted herself in a way designed to alienate the children from the Father”.[21]

   [21] Family Report dated 26 April 2012, [53].

3. The issue of non-compliance with Court Orders has been the central issue in pervious proceedings between the parties. As pointed out by counsel for the Father, the Mother freely admitted to breaching orders when in the witness box during the October hearing.

4. The Mother, in her evidence, stated that she found Court Orders “very hard to interpret and [they] create many difficulties for me and the children”.[22] The Mother also gave evidence that she believed it acceptable to change Court Orders where she believed it was in the Children’s best interests to do so.[23]

   [22] Affidavit of Ms Adams sworn 9 May 2012, [40].

   [23] Ibid [65].

5. During cross examination the Mother made it clear that where the Court Orders came into conflict with her opinion on a matter, her opinion would take precedence. The Mother concluded her evidence in Court with the following reply to the question of what would she do if the orders did not suit her:

   Firstly, I would try and work something out with the father, and if he insisted on taking the children – and I didn’t think that they were physically able to, then I would keep them at home, because I would think that was in their best interests.

6. Given the Mother’s evidence the Court can have no confidence that she will comply with future Orders. Nor can I be confident that she is willing to (nor perhaps able) to facilitate a relationship between the Children and their father. However, the fact that the Mother did comply with the Orders of 21 December 2012 does give me some reason to believe that she has developed some awareness of the seriousness of her position and what Orders mean.

7. On the Father’s part, I note that there have been times when he has been insensitive towards the Mother. However, I am encouraged by the Father’s apparent awareness of his failings and the remorse he showed in the witness box. I also note that the Father has made significant attempts, despite the Mother’s hostility, to maintain contact between the Children and their maternal family as well as his own family, which is encouraging.

8. I accept the evidence given by the Father as to the Mother’s conduct in relation to fostering a relationship between him and his children. I find that the Mother lacks the capacity to facilitate a meaningful relationship between the Father and Children. Indeed, it would seem that she has done her uttermost to ensure such a relationship does not develop. The unrelenting stress of this continual battle between parents is not only taking a toll on the parents but more worryingly appears to be stifling [Z]’s development and causing great anxiety for all the Children.

9. I place considerable weight on these findings.

The likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living

1. The Children have never been apart from their Mother for a substantial period of time. Since the separation they have also only had limited and infrequent contact with the Father.

2. Changing the primary caregiver arrangements would be likely to have serious behavioural consequences as noted by Dr V. This is why the Court has traditionally taken a cautious approach as is observed in the case of W and G (No 2):

   Judicial interference in the performance of an aspect of parental responsibility should occur only as a last resort or where the welfare of the child will clearly be advanced by the order being made.[24]

   [24] W and G (No 2) (2005) FLC 93-248, [123].

3. Clearly changing the children’s residence is a last resort. I am particularly concerned about the effect on [Z] who is very young and has spent most of his life with the Mother. A change in residence would no doubt mean a difficult period of adjustment for the Children but this must be weighed against the long term consequences if the current situation were allowed to continue. I believe the Orders I have made will minimise any difficulties for the Children, especially for [Z].

4. I am also concerned that any relationship the Children have with their half-brother, [W], is likely to be affected. As referred to elsewhere in this judgment, there was little evidence given on this point at the final hearing, despite the fact that during the trial I pointed out the omission to the parties and requested further evidence be given. Despite this, I believe that the Orders I have made will facilitate an ongoing relationship between the Children and their step-brother because of the time they will continue to spend with the Mother.

5. I accept that a change in the Children’s care arrangements will require some initial adjustment. This is clearly a situation, so often encountered in children’s matters where there is no easy answer and it is necessary to weigh up a range of potentially negative impacts on the children when determining what is in their best interests. In this case, although there is no doubt as to the Mother’s commitment to the Children and her capacity to care for them physically is the Children’s psychological health that is at risk if the Mother remains the primary carer and the Father is not intimately involved in the Children’s lives.

6. I am confident that changing the Children’s primary residence to the Father’s for a period whilst maintaining regular contact with the Mother will help alleviate some of the problems outlined above. I am also satisfied that the long term effects of the change will be positive and that any interruption or adjustment period will be transitory and the Orders I have made will cause the least possible disruption while ensuring the best interests of the Children.

7. The Orders also take into account the fact that on the evidence, the Father’s capacity as a parent is largely untested. There is no certainty as to how his work roster will impact on the Children’s care, nor the level of his commitment to change his working life, to the maximum extent possible, to meet the needs of the Children.

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

1. I note that when the case was before the Full Court the Mother was still seeking to relocate to Cairns and the Father’s living arrangements were not clear. The Father previously lived in accommodation two hours away from the Mother’s residence and asserted that it was important to secure some geographic distance between the two households. His living arrangements were also only temporary and evidence as to where the Father finally intended to reside had not been given. The situation now is entirely different, the Mother no longer seeks to relocate and the Father has now moved to the Central Coast, purchasing a property in close proximity to the Mother’s residence and the Children’s schools. I find that there is no longer any issue of practical difficulty or expense preventing the Children maintaining a personal relationship with each of their parents on a regular basis.

The capacity of: (i)  each of the children's parents; and (ii)  any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs

1. I accept that the Mother loves her children very dearly and has done all she can to provide physically for them. However, I also accept the Father’s concerns about the Mother’s capacity to meet the Children’s emotional and psychological needs. These concerns were clearly outlined by Dr V and accepted by the ICL. Dr V noted in her evidence that the Mother was riddled with ambivalence and many of her actions are not foregrounded in the Children’s needs.[25]

   [25] Family Report dated 26 April 2012, [52].

2. I accept Dr R’s evidence that the Mother’s lack of insight may be caused by her harbouring “chronic, unresolved depression”.[26] I also accept Dr R’s assessment that these difficulties are not beyond treatment and I am encouraged by the evidence that the Mother intends to continue seeing her psychologist, Ms S. While, at some future point, and following treatment, the Mother may be able to come to substantially resolve these issues, at present I am inclined to accept

   
   

   Dr V’s assessment. The evidence given by the Mother at both the May and October hearings was consistent with the finding that her lack of self-reflection continues to inhibit her ability to provide for the Children’s emotional and psychological needs. There was no convincing evidence given of this lack of insight abating any time soon.

   [26] Psychiatric Report dated 28 August 2012, [37].

3. Numerous examples have already been outlined of how this inability to meet the emotional needs of the Children is affecting their development. Not the least worrying of these is the negative effect it is having on [Z]’s cognitive development.

4. The Father’s ability to meet the Children’s physical, emotional and intellectual needs remains largely untested. This is one of the many difficulties in this case and is the reason why I am not inclined to make an abrupt change of the Children’s residence from the Mother to the Father. Counsel for the Father submitted that the Court could be in no doubt that the Father is able to act in a child focused way, that he loves his children, and that he bears no malice towards the Mother. I also place some weight, when considering the Father’s capacity, on Dr V’s observation that the Father seems to be the parent who has the greater child focus.

5. Counsel for the Mother submitted that the Father finds his work arrangements complicated and that they cause him stress. For these reasons it was submitted that the Father does not have the capacity, or at least has not demonstrated such a capacity, to meet the needs of the Children.

6. The Father’s work roster does indeed create some difficulty in terms of placing the responsibility of primary care with him. I accept Dr V’s evidence that if the Children were to live primarily with the Father and that placement subsequently broke down, the disruption would be extremely damaging for he Children. I have sought to mitigate this danger in the Orders I have made which maintain the Children’s contact with their Mother and ensure that she remains an important part of their lives. The Father’s capacity to care for the Children is, therefore, very much contingent on the Father being able to secure suitable arrangements for the Children’s care while he is at work.

7. The evidence presented by the Father was that he is prepared to take time off work to assist the Children settle in and that there is some willingness on the part of his employers to assist where possible.

8. In addition to the arrangements proposed by the Father I also note that the paternal grandparents are available to help the Father with the Children. The Children’s good relationship with their grandmother has already been commented on and it would seem that the Children would benefit from the ability to continue to develop a relationship with their paternal grandparents. In this regard I accept the evidence given by Mrs R (snr) that [X] and [Y] have in the past said words to the effect of “I want to stay with Daddy for 100 days and I want Nanny to stay here too”.[27]

   [27] Affidavit of Mrs R sworn 21 March 2012, [29].

9. Currently the paternal grandparents reside in [omitted] in Tasmania. Mrs R (snr) gave evidence that she presently works 10 hours per week over two days, on a flexible arrangement with her employers.[28] I note that her employers are willing to allow any changes to Mrs R’s work arrangements required to assist the Father in the care of the Children. I also note that the Children’s paternal grandmother has given the Court an assurance that she is willing to terminate her employment if she is needed to help with the Children on a more permanent basis. I also accept the evidence that the paternal grandparents have to date travelled to Sydney on numerous occasions to assist in caring for the Children. The Father is able to secure discount flights with his employer which makes this solution all the more viable.

   [28] Ibid, [41].

10. I agree with the ICL’s assessment that the Father “gave his evidence in a straight forward manner” and that Mrs R “was an impressive witness”. I am confident that both the Father and the paternal grandmother have the capacity to provide for the Children’s needs.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

1. All three children in this case are very young. Currently the twins are six years of age and [Z] is three. Clearly the Children are far too young to be involved in the adult conflict between the parents and Dr V has given telling evidence on the consequences it is having. Both parents have at times inappropriately involved the Children in the conflict. However, I draw attention to the comments Dr V made in her report in relation to this issue:

   The twins need to be alleviated immediately of the role they play in the parents’ dispute and their energies must be focused on their academic proficiency and activities with their peers. The manner in which they were poised to make disclosures about their father’s friend in front of their mother on the day of the interview was most poignant and very telling of the emotional load that must be on their shoulders. This is juxtaposed against the very natural way they played and spoke about their experiences in each household when they attended with their father.[29]

   [29] Family Report dated 26 April 2012, [59].

2. As I have canvassed elsewhere in these reasons I also find the attachment difficulties [Z] is having very disturbing. Dr V pointed out:

   The next stage of development for [Z] is one when he will need reinforcement for taking initiative and, in order to achieve this, he must be given the freedom to play, to ask questions, to use imagination and choose activities that are challenging and of interest and not related to the parental dispute.[30]

   [30] Ibid, [61].

3. Dr V also comments that at present [Z]’s linguistic skills appear to be deficient for a child of his age. This assessment, the Court was told, raises concerns about [Z]’s play and possible lack of stimulation. Activities such as play group and day care were the recommended solution to these problems.

4. I give significant weight to the findings I make under this heading.

5. Also with regards to [Z]’s need for stimulation I find that it would be in [Z]’s interest to attend a suitable day care program for at least one day per week. Accordingly, I have made Orders to this effect.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents

1. The Mother raised concerns that the Father has not taken proper interest in the Children’s heath and well being and has not offered to assist with medical procedures the Children require.

2. The Mother also says that the Father has failed on numerous occasions to take the opportunity to spend time with the children, placing his career first. If this was the case it would also be relevant to the s.60CC(4) consideration of the extent to which each parent as fulfilled or failed to fulfil his or her responsibilities as a parent.

3. One example, given by the Mother, of the Father failing in this regard is the event that unfolded in the July 2012 school holidays. I recount the facts of this particular occasion below. Although there was dispute between the parties on the differing interpretation of the event, there was no dispute over how events unfolded.

4. During the July holidays the Father nominated 5.00 pm 11 July to 5.00 pm Sunday 15 July 2012 as the days he wished to see the children. The process of nomination was in accordance with the Interim Orders made by this Court on 1 June 2012. However, the Mother responded to this nomination with the request that the Father take the children on 10 July also. The Father responded that neither he nor his mother (Mrs R snr) were available that day. The Mother then made further attempts to renegotiate the nominated time and day suggesting 4.00 pm or 3.00 pm on 11 July 2012 would be better times. The Father advised that 5.00 pm would be the earliest he could arrive due to work commitments. A chronology provided by the Mother then simply states “Father collected children at 9.30am” 12 July 2012.[31]

   [31] Mother’s Written Submissions 30 November 2012, 5.

5. There were numerous other occasions with similar facts and which were used in a similar fashion by the Mother to assert that the Father placed his career before the Children.

6. From this evidence counsel for the Mother deduced that the Father “could have seen them [the children] if he had been prepared to make a small concession.”[32] Ms Winfield also submitted that “the Court can have no confidence the Father will put the children before his work commitments”.[33] I find this a somewhat contrived construction to arrive at based on the evidence presented. 

   [32] Ibid 7.

   [33] Mother’s Written Submissions in Reply 3 December 2012, 4.

7. The Mother’s submission omitted to mention was that there was no requirement in the Orders for the Father to make a “small concessions”. Order 3 simply stated that:

   the children spend time with the father during the July 2012 school holidays for a period of up to six days, provided however that [Z] is not to be away from the mother for a period of more that four consecutive nights. The days are to be nominated by the father with at least seven (7) days written notice.

8. Apart from the issue of non-compliance the delay in picking up the Children, caused by the Mother’s unwillingness to cooperate, also prevented the Father from taking the Children to Tasmania as planned. This trip was designed to facilitate the Children spending time with their paternal grandparents and was the subject of Order 8 of the Orders made 1 June 2012. There was a great deal of time spent on this issue at the Hearing on 29-31 May 2012.

9. The Mother did not dispute that there had been a failure to comply with the Orders. A letter by the Mother, attached to the Father’s Affidavit, sworn 18 October 2012 and marked with the letter “C” brings further clarity to the Mother’s attitude in this matter. In relation to the holiday time nominated in July the Mother replied to the Father, “did you simply think that emailing me your intended days with the children and NO further information was all I needed to know? / Are you kidding me or what?” She then went on to say:

   I’m happy for you to take the children from Wednesday-Sunday, however, I don’t agree with the times you made. 5pm is when they have their dinner.

10. Both the ICL and counsel for the Father made submissions that the Mother has continually thwarted the Father’s attempts to spend time with the Children.

11. Far from the Father not displaying a responsible attitude to parenting, it would appear that the evidence given by the Mother is more relevant to the s.60CC(4)(b) considerations. I find that the Mother has continually placed qualifications on or booked appointments for the Children during the Father’s time. This clearly amounts to a failure to facilitate the Father spending time with the Children.

1. Counsel for the Mother also made reference to the Father’s refusal to pay for surgery for [X] with the inference that the Father was not concerned with the Children’s heath. According to Counsel [X] requires her tonsils to be removed, though no evidence to corroborate this assertion was presented to the Court. In the absence of such evidence I accept the Father’s evidence that he has not received any specialist or doctors’ report. I also accept the Father’s evidence that he has attempted to contact the specialist and asked for information but has been unsuccessful in obtaining this information.

2. Under these circumstances the Father’s attitude is understandable and I do not accept the assertion that his behaviour demonstrates an irresponsible attitude to the Children’s welfare.

3. Rather, I am not satisfied on the basis of the expert evidence and the evidence as to the Mother’s conduct to date that the Mother is not able to put the children’s needs ahead of her own any more than she has been in the past. She appears to still suffer from what Dr R described as “characterlogical vulnerabilities” which compromise her parenting capacity and attitude to parenting. I am also not persuaded that the Mother has yet reached the stage where a change in behaviour will certainly occur. Rather change is likely to occur gradually and over a long period of time. Nevertheless I am encouraged by her compliance with the Orders of 21 December 2012.

4. On the basis of the evidence I find that the Father is more likely to perceive and to act in the children’s best interests rather than using them as pawns in a battle between the parents.

Any family violence involving the children or a member of the children's family

1. I have already addressed the issue of family violence above and do not intend to make any further remarks.

Any family violence order that applies to the children or a member of the children's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

1. There were proceedings in 2009 for the Father to obtain an apprehended violence order against the Mother. However, the action did not proceed further after the Mother gave an undertaking to not harass the Father any further. Given the paucity of evidence on this issue it is difficult to give it any weight.

2. Accordingly I do not place much weight on this factor.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. These are proceedings that have been on going for a number of years and there is evidence that the proceedings are having a detrimental effect on both the parties and the Children. It would, therefore, be preferable to make an order that would bring closure to the matter.

2. The Mother’s previous disregard for Court Order prevents the Court having any confidence in her ability to comply with the existing regime despite the comments of her counsel that the Orders were working. No change would likely mean continued non-compliance applications to the Court by the Father and cause the proceedings to drag on indefinitely as has been the pattern to date. This is a most unsatisfactory position for the Children.

3. It appears, therefore, that it is preferable to make an Order for a change in living arrangements, initially, in favour of the Father whilst maintaining the Children’s ongoing and important relationship with the Mother and that is least likely to result in further proceedings. In my opinion the Orders I have made encourage the parents to make the new Orders work rather than continually return to the Court. In this regards I note that it has been beneficial to have evidence that the parties were able to work together and comply with the Orders of 21 December 2012.

Any other factor or circumstance the court thinks is relevant including the extent to which each of the children’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, and to spend time with the children, and to communicate with the children; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the children and spending time with the children and communicating with the children; and has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children

1. I have fully considered these matters in other sections of this judgment. I note that there is no evidence that either party is unable or unwilling to provide for the physical needs of the Children. The primary issue here is their psychological wellbeing.

Parenting Responsibility

1. The Court is required under s.61DA to apply the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children. The presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in:

   a)Abuse of the child/ren or another child, who at the time, was a member of the parent’s family (or that other persons’ family); or

   b)Family violence.

2. I have already noted above that I find there is cause to believe that family violence has occurred between the parents in this case. The Court, therefore must determine whether the presumption in favour of equal shared parental responsibility has been rebutted in this case.

3. I note that the incidents of reported violence occurred more than three years ago now and there have not been any further incidents of physical violence. I was also encouraged to see that at the 20 December 2012 directions hearing the parties seemed to have come to some accord on parenting arrangements for the Christmas period. The parties reached this agreement on their own accord and apparently in a civil manner. I also am encouraged that the Mother is now seeing a psychologist and that the Father gave evidence he harbours no malice against the Mother. It would not appear that there is no longer any threat of violence between the parties and I find the presumption stands.

4. I find Dr V’s evidence that the Children continue to view each parent as an attachment figure convincing. Accordingly it is in the Children’s interests for each parent to be involved in the long-term decision making concerning the Children’s welfare. There is also a risk that in the circumstances of the case, if one parent were to be given sole parental responsibility, the other might be marginalised in relation to important decisions affecting the children and this would simply add to the problems of conflict and alienation.  

5. I have not accepted Dr V’s recommendation and the submission of the ICL that the Father be given sole parental responsibility. I also did not accept Dr V’s recommendation that the Children only see their Mother under supervision for a period of time. This is not a decision I have taken lightly, especially in view of the high level of conflict and miscommunication between the parties. However, the difficulty I face is that no evidence was placed before the Court as to the affect such a radical change would have on the well being of the Children. There is no evidence as to how a transition to the Children primarily living with their father will affect them and I have been mindful of the detrimental effects of a breakdown in a relationship with their mother. It is in my opinion, not in the best interests of the Children to suddenly be in a position as a result of Court Orders where they cannot see their Mother, who has been their primary carer, except under supervision. Nor does it seem to be in their best interests for the Mother, who has clearly taken care of their physical welfare to be suddenly excluded from the major decisions affecting their lives. There is no evidence that the Mother has caused or will cause any physical harm to the Children. In fact the evidence is that the Mother’s decisions in relation to the Children’s physical wellbeing and education are appropriate and in their best interests. The damage caused by the Mother’s behaviour is primarily psychological and certainly so far as the twins are concerned, is potential future damage which I have sought to remove by changing the residence arrangements for the Children. I have also made Orders for the Mother to continue her treatment regime and I am mindful of

   
   

   Dr R’s advice that the Mother is capable of change. Further, given the Father’s travel commitments it would seem both logical and in the Children’s best interests for me to make Orders which facilitate the closest possible relationship with both of their parents while seeking to minimise any adverse effects upon them. This is especially the case if for some reason the Father’s work schedule becomes a major problem.

6. In making my decision as to joint parental responsibility I am mindful of the conflict between the parties and the communication difficulties which have occurred in the past. However, I accept the Father’s evidence that he believes it important that the Children have a close relationship with both parties and that he is willing and able to facilitate such a relationship. I have also noted the compliance by both parties with the Orders of 21 December 2012. The guiding principle for me is the best interests of the Children, rather than the ease of the parents.

7. As noted above, I am mindful of the evidence from Dr R that the Mother is capable of dealing with her characterlogical vulnerabilities and that she wishes to do so. The Mother is continuing to seek treatment. It would be unfair and quite inappropriate to make Orders which would in effect punish the Mother for mental illness by removing her from any significant role in the Children’s lives or meaningful time with them.

8. As I have determined that the s.61DA presumption applies, s.65DAA will also apply. The High Court in MRR and GR[34] points out that s.65DAA requires two considerations of whether, first, an equal shared time arrangement is in the children’s best interests, and secondly as a separate consideration, whether it is reasonably practicable. The Court’s power to consider making an equal time order only arises if the two limbs of the section are made out. In the words of MRR and GR:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that considerations may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two proceeding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.[35]

   [34] (2010) 240 CLR 461.

   [35] Ibid, 466.

9. The same applies if the Court determines not to make an equal time order and substantial and significant time arrangements fall to be considered.

Discussion and Determination

1. Evidently the current parenting arrangements are not working and as Dr V has reported, this is adversely affecting the Children. I agree with the ICL and counsel for the Father that a move now to an equal time arrangement would not be in the best interests of the Children as the Court cannot be confident that the Mother will allow an uninterrupted relationship with the Father. Further, it is quite clear that an equal time arrangement can only work where the parents are capable of communicating effectively without conflict and hostility which adversely affects the Children. This has not been the situation in this case except for the 2012 Christmas holiday arrangements. Here the Children need an arrangement which minimises the potential for conflict, provides a secure home and maintains an ongoing relationship with both parents. Whilst accepting that the parents are capable of communicating in a child focused way although they may take time to do so.

2. As I have determined that this is not a case where equal time is appropriate, at least initially, I must consider whether it is in the Children’s best interests, and reasonably practicable, for them to spend substantial and significant time with each parent. Section 65DAA(3) defines “substantial and significant time” as being when, and only if:

   (a)   the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events of special significance to the parent.

3. Both the ICL’s and the Father’s proposed arrangements satisfy this definition.

4. As mentioned above this is a case where the Children require both parents to have meaningful involvement in their lives. There is also evidence to suggest that the Mother requires professional assistance to manager her own psychological health issues and to help assist her in ensuring she is able to understand and meet the Children’s needs.

5. The question for the Court, therefore, is whether it is in the Children’s best interests to live primarily with the Father, or primarily with the Mother. I note that this is a very difficult issues and that there is no easy answer. It is a question of weighing up the competing advantages and disadvantages and arriving at the solution that best suits the interests of the Children.

6. There is no doubt that the Mother is devoted to her children and has, to date, provided well for their physical welfare. She would appear to have suffered from post-natal depression. The difficulty is that a lack of insight as to the consequences of her behaviour is seriously affecting the capacity of the Children to bond with their father with potentially grave psychological consequences for the Children in the future. This is exacerbated by the high levels of conflict which appear to have resulted in [Z] not having a primary attachment to either parent and the threat of a similar fate for the twins. This is clearly not in their best interests. [Z]’s situation is of particular concern and requires immediate attention.

7. The Father in my opinion has tried very hard to maintain a relationship with his children in the face of severe difficulties and the hostility of the Mother towards him. This hostility was demonstrated in many of the communications between the parties put into evidence before the Court. I formed the conclusion that he too genuinely loves the Children and that he is more likely to positively ensure that they continue to have an on-going relationship with their Mother.

8. There was a lot of evidence given about the restrictions of the Father’s work roster and there is no doubt this will create problems for him. However, as previously stated, there was evidence that his employer, [omitted], is prepared to assist him where possible. The Father accepts that having the Children may affect his career. It is to his credit that he places his children ahead of his career. It is also not uncommon for children to grow up in circumstances where parents have difficult work rosters. What is important is that the Children feel safe and supported. The paternal grandmother was a reassuring figure and I felt sure that she would play a constructive role in maintaining a secure, nurturing environment for the Children and be there for them when the Father was at work.

9. I also note, at this juncture, Dr V’s assessment that the Father is the parent with the greater child focus and his:

   is the proposal that is more likely to enable the children to maintain a relationship with both parties. Although this is an untested option…there are some indicators that the children would benefit from a much greater involvement on his part in their lives.[36]

   [36] Family Report dated 26 April 2012, [62].

10. The ICL also supports this proposal.

11. I am confident that changing the Children’s living arrangements to one where they live primarily with the Father for the next 22 months will significantly assist in abating the conflict between the parties and assist in making both parents available to the Children.

12. This arrangement is reasonably practicable, in logistical terms, since the parents live in close proximity to one another and to the children’s school and pre-school.

13. When considering whether an arrangement is reasonably practicable, however, s.65DAA(5)(c) also requires the Court to have regard to:

    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind…

14. The parties in this case have had considerable problems with communication in the past. In cross-examination the Father gave evidence that he had received up to 96 emails in the space of five months from the Mother. This figure must be read in light of the relatively short amount of time the Father had actually been with the Children and past Orders restricting communication to that which is essential to the welfare of the Children. The Father also gave evidence that he “can’t handle the enormous amounts of contact that is happening” and he feels “completely saturated”. There was also evidence of a number of telephone calls being made by the Mother to the Father although this was not greatly elaborated on.

15. The parties now live in close proximity and the proposed arrangements ensure that the Father will be entrusted with organising the Children’s daily lives over the fist 22 months. The Children will also, on a graduating basis be spending substantial and significant time with the Mother. As both parents will be in regular contact with the Children there will be less need to communicate via electronic mail or other means. I have also ordered that the parties communicate only by means of a communication book except in emergencies. I find that the Mother’s continued therapy into addressing the issues behind some of these communication flaws will also assist in preventing the problem occurring in the future.

16. In my opinion the parties are capable of improving their communication. I am encouraged in this regard by the parties’ constructive conduct in agreeing to share time arrangements over the 2012/2013 Christmas holiday period and making those Orders work. Whilst I think it important to minimise the potential for conflict between the parties, I do not think it appropriate that there be no contact between them given the age of the children and all the other factual circumstances discussed above.

17. As discussed above, it was put to me by Dr V that the Mother’s time with the children should be supervised, at least initially. This recommendation was not supported by any of the parties to the proceedings. I do not believe it is in the Children’s best interests to suddenly see their Mother, who has been the primary caregiver, only for very limited periods under supervision. This is likely to cause more stress and anxiety for them. It is also likely to significantly add to the Mother’s stress and thereby adversely affect the Children. There is no evidence to satisfy me, besides some foolish comments reported by the Father, which the Mother denied making, that she presents a real risk to the Children. I would not like to see her role diminished by imposing a supervised regime unless there was clear evidence (which I have not found) that it was in the best interests of the Children to do so. Further, I want the Mother to have the comfort of knowing that if she continues with counselling and there is further improvement in her capacity to understand the needs of the Children, both physical and psychological, and compliance with the Orders, she can spend greater periods of time with her children. It may also be the case that by not having the Children all of the time the Mother may be relieved of some pressure and that this will assist her.

1. In granting the Father primary residence for a period I note that there will be a period of adjustment required for the Children and that there may be some resultant grief from being removed from the Mother.

   
   

   Dr V suggested the Children may even experience some withdrawal symptoms that might manifest themselves in “acting out” behaviour, although I think such problems will in fact be mitigated by the Orders I have made. I urge the Father to ensure he spends significant and uninterrupted time with the Children, particularly [Z], early in the transition and that he pays particular attention to their needs. This may require the Father to secure leave from work for the initial transitional period. I note that when the Father is not present because of work requirements, the paternal grandmother who is a significant figure in the Children’s lives will be there to take care of them. I note that Dr V does not make any adverse comment on the Father’s work schedule. It is also important that [Z] in particular does not feel that his Mother has withdrawn or been taken away from him and the Father should pay particular attention to [Z]’s needs.

2. I also note Dr V’s assessment that it would be imperative that the Children receive professional therapeutic support and assistance through this time. This is important even though I did not accept all of Dr V’s recommendations.

3. In light of the evidence and the issues dealt with above it is in the Children’s best interests for the change in residence to be a three stage process dependent upon the Mother’s willingness to comply with the new regime. Initially the Children will spend a three (3) night block with the Mother each fortnight throughout the first and second school terms during 2013. The Mother’s time with the Children will be graduated to a five (5) night block each fortnight throughout the third and fourth school terms of 2013 and for all school terms in 2014. In 2015, again provisional on the Mother’s compliance, the Mother’s time with the children will graduate to an equal time basis. I have determined that the school holiday periods should be shared equally.

4. This is a regime that is not punitive to the Mother but deals with the damage to the Children’s psychological development noted by Dr V. It also gives the Mother an opportunity to keep improving whilst maintaining her contact with her children. Given I have formed the very strong conclusion that the Mother loves her children very much and is unlikely, in my view, to want to inflict any physical harm on them and that the Mother is capable of developing some insight as to how her behaviour might affect the children. I believe these arrangements are in the best interests of the Children.

5. This is a case where any decision is likely to cause stress and disruption for the Children and their parents. It is to be hoped that both parents will be capable of putting their own differences aside and working together to assist the Children in the transition.

Costs

1. Counsel for the Father made an application for costs in relation to the delayed start to the hearing on 29 October 2012.

2. Section 117 of the Family Law Act deals with costs. Ordinarily each party to the proceedings shall bear his or her own costs (s.117(1)). However, the Court is given a discretion under s.117(2) of the Act to make an order for costs where there are circumstances that justify doing so. As required by s.117(3), when making an order for costs I must have regard to the factors listed in s.117(2A).

3. I have had regard to the subsection 117(2A) factors and find that the conduct of the Mother’s counsel left a great deal to be desired, and that the proceedings were in some respects necessitated by the failure of the Mother to comply with previous orders of the Court. I have also had regard to the fact that the Mother has been unsuccessful in her claim.

4. However, these considerations are out weighed, in my opinion, by the financial circumstances of the parties. On 30 October 2012 the Mother filed a financial statement at the direction of the Court. In this evidence the Mother claims her total average weekly income to be $1,250. This figure consists partly of $500 child support and $200 spousal maintenance support paid by the Father each week.  The remaining $550 consists of Government welfare payments to the Mother.

5. The Mother also lists expenditures and liabilities which are substantial given the modest asset pool and appear to mean that she is in a negative financial position at the end of each month.

6. I find that the way the Mother’s case was conducted significantly added to the Father’s costs and is to be regretted. However, having regard to the above evidence relating to the Mother’s finances it seems that no cost order against the Mother would be able to be met.

7. The Father’s application for costs is therefore denied.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Date:  25 February 2013