Reamy and Haycox

[2014] FCCA 2993

FEDERAL CIRCUIT COURT OF AUSTRALIA

REAMY & HAYCOX [2014] FCCA 2993

Catchwords:
FAMILY LAW – Children – relocation – allegations of family violence.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Jurchenko & Foster [2014] FamCAFC 127
Mallahan & Mallahan [2010] FamCA 631
MRR v GR [2010] HCA 4
U v U (2002) 211 CLR 238

Applicant: MR REAMY

Respondent: MS HAYCOX

File Number: BRC 1476 of 2013

Judgment of: Judge Howard

Hearing dates: 17, 18 November 2014 and 17 December 2014

Date of Last Submission: 17 December 2014

Delivered at: Brisbane

Delivered on: 23 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Middleton

Solicitors for the Applicant: Couper Geysen Family & Animal Law

Counsel for the Respondent: Mr Shoebridge

Solicitors for the Respondent: Tubaro Lawyers

Counsel for the Independent Children's Lawyer: Mr Tolton

Solicitors for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

1. That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on Friday 16 January 2015.

2. That the Independent Children’s Lawyer and the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on Friday 23 January 2015.

3. That in the event the Independent Children’s Lawyer and the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1476 of 2013

MR REAMY

Applicant

And

MS HAYCOX

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant father was born on [omitted] 1967.  The respondent mother was born on [omitted] 1972.  The parties began living together in about June 1991.

2. There was a period of separation during 2012 and the parties separated on a final basis on 17 November 2012.

3. The relationship had therefore lasted approximately 21 years.

4. The parties settled their property proceedings and orders were made on 16 July 2013.

5. The parties have three children, namely:

   a)[X] born [omitted] 1998;

   b)[Y] born [omitted] 2002; and

   c)[Z] born [omitted] 2005.

6. All three children live with the mother.  [X] and [Y] refuse to spend any time with the father.  The father does not seek a parenting order requiring either [X] or [Y] spend time with him.

7. This parenting dispute revolves mainly around the child [Z].  During school term [Z] currently spends alternate weekends with the father from 5:00pm Friday until 4:00pm Sunday, and each Wednesday from 4:30pm until 7:30pm.

8. The father filed an amended initiating application on 10 November 2014.  In that document the father sought an order that [Z] live with him.  Further, the father sought orders that would see [Z] spending time with the mother for one half of school holidays and on some other weekends if the mother was living in Victoria.  In the event the mother remained living in Brisbane then the father sought an order that [Z] would live with the father and spend alternate weekends with the mother from after school Friday until 5:00pm Sunday – as well as every Wednesday afternoon from after school until 7:30pm and one half of the school holidays.

9. In the mother’s response filed 12 April 2013 the mother sought, inter alia, the following orders:

   “13. That the mother is at liberty to relocate the children to live in the State of Victoria.

   Regular time

   14. That the children live with the mother.

   15. That while the father is living in Brisbane, the children spend time with the father in Victoria for no more than 3 consecutive nights, on weekends, long weekends or school holidays as proposed by the father in writing, 28 days prior to spending time.

   16. That should a child or children request, the mother shall facilitate the child or children travelling to Brisbane to spend time with the father as agreed between the parties.”

10. Each parent sought various other incidental orders in relation to parenting.  It is not necessary to restate those orders in detail in these Reasons for Judgment.

11. In deciding this parenting case the Court must, of course, have regard to the legislative framework set out in the Family Law Act 1975. 

Section 60CA

1. Section 60CA of the Family Law Act 1975 provides:-

   ““SECTION 60CA  CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER

   60CA    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 60CC

1. Section 60CC sets how a Court is to determine what is in a child’s best interests. The primary considerations are stated in s.60CC(2) and s.60CC(2A). Those subsections state:-

   “Primary considerations

   60CC(2)    The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

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

   60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

2. In this particular case there are extensive allegations made by the mother of family violence perpetrated by the father during the course of the relationship.  According to the mother, this family violence was directed at her personally and also, on occasions, by the father towards the children.

3. The father has denied the allegations of family violence. At the outset and within a consideration of s.60CC(2)(b) – it is necessary for the Court to consider the allegations of family violence made by the mother and to make findings concerning those allegations.

4. In addition, and within a consideration of s.60CC(2)(b) the Court must consider the need to protect the child [Z] from harm – including emotional and/or psychological harm – from being subjected to or exposed to the negativity towards the father which (I find) is expressed or supported by the two older siblings ([X] and [Y]) and the mother. I will refer in more detail to relevant findings in this regard later in these Reasons for Judgment.

5. The mother has alleged that over a long period of time the father was responsible for family violence against both her and the children.

6. In the mother’s affidavit filed 29 October 2014 (the mother’s trial affidavit) the mother has detailed a significant history containing allegations of family violence.  The allegations made by the mother are as follows:-

   “32. In 1992/93 on or about Christmas, the father was in the car with me driving.  He was very drunk and he slumped himself on me whilst laughing.  I pushed him off me so that we would not have a car accident.  He then did the same thing.  Again I pushed him off me, this time with more force.  He then punched me in the eye.  I swung back at him as the car was still moving.  He then punched me in the face and made me stop the car, which I did.  He then threatened to throw me out of the car and leave me there.  I begged for him not to do that and managed to convince him.  When we arrived home I ran from the car and hid behind a neighbour’s fence for about an hour until I guessed the father must have fallen asleep.  The next day I noticed that I had a black eye.

   33. The father’s physical violence continued through the rest of the relationship up until the children were born.  He would regularly hit me, push me and throw me.

   34. I have seen the father punch each and every one of the eight glass framed pictures on the wall in the lounge in 1996.  In that same year he also punched me many times.  Once, whilst at home, he punched me in the side of the head.  He has even committed such violence which could have easily resulted in my death by pushing me down a flight of stairs causing me to fall and land on my right hip area.  Although the flight was three steps, there were no railings.  He also, that year, swung and hit me in the side of the head with the Yellow Pages.

   35. The father also regularly abused me verbally.  He often called me a ‘fat bitch’, ‘stupid fat bitch’, ugly fat bitch, fucking stupid bitch, “fucking bitch” and “I fucking hate you, you fucking ugly bitch”.

   36. Often, but less regularly, he would call me, “Slut”, and “Cunt”.

   37. The vulgar name calling of me by the father continued after the children were born and throughout the rest of the relationship.  The children were subjected to hearing most of this.  On one occasion, more recently, on 7 November 2012, just before the father finally left the former matrimonial home, the father came home in his truck late at night and was making too much noise to cause the waking of the children.  I told him this.  His response was to yell at me, “Fuck off and go back to bed”.

   38. The father had no hesitation to physically assault me in front of the children.  The children seeing their father do this to their mother must and will likely have a long lasting emotional and psychological affect on the children.  I am concerned how this might affect their future relationships with other people when they are adults.

   39. Examples of other events include the following:

   (a) In 1998, the father kicked me in the upper thigh because he disagreed with me about something.  He resorts to violence very easily.  He did this whilst I was carrying [X] on my left hip.

   (b) In 2000 he threw me against a bedroom door handle hurting my spine.

   (c) In 2003 he threw a knife at me.  He had been sitting down for dinner.  We were discussing something.  He got angry at me and then stood up and threw the knife.  The knife narrowly missed me because I had ducked just in time.

   (d) He threw a fork at me with such force that it missed me and hit the ceiling causing the ceiling to be chipped.

   (e) In 2003 the father and the two children and I were driving the car sightseeing.  Along the way there were two female hitchhikers.  He said he wanted to stop and pick them up.  I did not agree.  He then stopped the car and forced me out of the car, leaving me alone on the side of the road without my purse or phone.  He drove off without me with the children in the car.  This would, I believe, have been a very traumatic experience for a 5 year old and a 1 year old to witness happen to their mother.  About 10 minutes later the father returned in the car and told me to get in.  The children were crying hysterically, so I sat in the back seat with them.  I have no doubt that this incident would have never been forgotten by [X].

   (f) In 2008, the father and I with the children were driving the campervan home from a family holiday in Victoria.  The children needed to stretch their legs and have something to eat and we needed a place to park the van for the evening.  I suggested to the father to take the turn off to Newcastle.  We could not find an overnight parking place and drove around looking for one.  The father became increasingly frustrated by this.  He began yelling at me.  He said, “Alright, where now, this was your fucking idea”.  The children and I were afraid and remained silent.  When we ended up in a dead end street, he stopped the care and got out and walked to the passenger side of the van and yelled and swore at me for 45 minutes.  The children and I were terrified.

   (g) In 2009 the father rode his quad bike in such a dangerous and intentionally reckless manner.  He drove the bike at me and the child [Y] at a very fast speed whilst we were standing nearby.  This was near the driveway area near the carport.  [Y] and I were sprayed with decomposed granite as he swerved just a few meters from us.  Both [Y] and I were frightened by this action.

   (h) On 26 February 2012, in front of the children [X] and [Z], the father said to me, “I wish you were dead”.

   (i) Over the years, the father had said things to me such as “I wish you were dead”, “I want you dead”, “Just die”, and “I should just fucking kill you”.

   (j) On 21 March 2012, the father picked up a book that [Z] was doing his homework on, and slammed it down on the table because the father felt that [Z] was taking too much time to do his homework.  He also yelled at [Z] about it.  [X] asked her father why he had done that to [Z].  The father then, in response, swore at his daughter.

   (k) In early 2012, the father punched the kitchen wall and then pushed me very hard against the kitchen bench, and ‘mock’ head butted me.

   40. The father’s anger and violence includes violence toward other people.  The father is easily tipped off into anger without control.  I recall in 1995, during a camping trip to [omitted] Island when the father punched an elderly man in the face.  The man was easily in his late 60’s and may have even been in his 70’s.  The father’s violence to this elderly man was triggered by a very minor incident.  This elderly man had driven past us causing water to be splashed onto the father’s Ute.  The father had pursued this man, punched him in the face and then took the man’s keys from his car and threw them into the ocean.  After the incident, the father showed no remorse nor demonstrated to me that he had gone over board.  It was clear that he considered what he had done as being legitimate.  However, he was later charged by the Police.  He told me that he was sentenced with a good behaviour bond.  I have noted from the Family Report that Ms B reported the father has a criminal history yet failed to mention this serious violent crime.  I also note him being reported by Ms L as saying that he had previously been convicted for crimes of dishonesty, even at the age of 25 years.  The father never revealed these things to me.

   41. Although we had been separated under the same roof since 30 April 2012, the father had moved out for almost three weeks in June.  Whilst the father has been away, with the understanding that he was not returning, the children had managed to try having their two dogs stay inside the house at night.  They loved these dogs dearly and enjoyed their company at night.  The dogs were well behaved and house trained.  When the father returned three weeks later, beside this causing the children some confusion, it also caused the children more distress by the way the father acted upon seeing the dogs in the house.  The father, upon seeing the dogs, became angry and yelled at me to remove the dogs.  I explained the situation and that the children loved the dogs inside.  The father would have nothing of it and commenced swearing at me and calling me “a fucking bitch”.  He was yelling constantly to get the dogs out.  The children were crying by this time and the dogs were frightened.  The father actually picked up one of the dogs and threw it out the back door.  He did this cruel act against the harmless animal in front of the children.

   42. The father has been cruel to the animals in the past.  I have seen the father kick all of the dogs.  On one occasion I saw the father, whilst wearing steel capped boots, kick a Golden Retriever (named [omitted]) in the hip.  The dog yelped in pain.

   43. On 20 July 2012, the father threatened the children that he would sell the dogs and kill the other pets including the cats and chickens because they cost too much to feed.  The father seemed to get pleasure out of the reaction he had caused to the children.  I say this because even though the children were clearly upset, he continued saying that he was going to sell and kill animals.

   44. Our son [Z], at just the age of 6 years in early 2012, witnessed his father spit on my face whilst I was holding [Z]’s hand.”

7. The father has denied all of the allegations detailed above by the mother – except that he does admit that an incident occurred on [omitted] Island but denies punching the man in the face.

8. The Court must therefore decide which party is telling the truth in relation to the allegations of family violence.

9. I note the following in relation to the mother’s allegations:-

   a)in paragraph 33 of the mother’s trial affidavit the mother notes that the father’s “physical violence continued through the rest of the relationship up until the children were born”;

   b)in paragraph 38 of the mother’s trial affidavit she states, inter alia, “the father had no hesitation to physically assault me in front of the children”.  When the children were interviewed by Ms L (on two separate occasions) they did not give any details of ever witnessing the father physically assaulting the mother.  The older children – especially [X] were particularly vocal in their negativity towards their father.  The mother did not say what age the children were when they witnessed the physical assaults on her by the father.  But the inference from paragraph 38 is that they were at an age where they were likely to remember.  The children were given every opportunity (during the sessions with Ms L and Ms B) to provide information to independent experts on this particular topic – but the children did not do so.  The inference to be drawn therefore is that the father did not perpetrate physical violence against the mother in front of the children.  Alternatively if it did occur the children have forgotten that such violence took place;

   c)at the end of the second day of the hearing (Tuesday 18 November 2014) – I invited the parties to explore the possibility of putting before the Court any further evidence in relation to the allegations of domestic violence.  I was particularly requesting that the parties obtain (if possible) some evidence that would provide independent corroboration one way or the other concerning the allegations of family violence.  No such evidence was led by either party;

   d)in paragraph 39 of her affidavit the mother includes “examples of other events”.  The mother details a list of abusive and, violent and antisocial behaviour by the father.  I note what the mother had to say in paragraphs 39(h) and (i).  In those subparagraphs the mother stated:-

   “39(h)On 26 February 2012, in front of the children [X] and [Z], the father said to me, “I wish you were dead”.

   39(i)Over the years, the father had said things to me such as “I wish you were dead”, “I want you dead”, “Just die”, and “I should just fucking kill you”.”

   e)in paragraph 39(i) the mother has not detailed when the father said those words to her.  But in paragraph 39(h) the mother has specifically noted 26 February 2012 as the date on which the father stated – in front of the children [X] and [Z] – “I wish you were dead”.  This is only nine months before the final separation.  At that stage [X] was about to turn 14 years of age.  [X] is an intelligent teenager.  [X] has been interviewed/seen by Ms L and Ms B on several occasions.  Opportunities were given to [X] during those sessions for her to describe to Ms L and Ms B any of the father’s abusive or antisocial behaviour.  If the father had stated in front of [X] in February 2012 the words which the mother alleges – I am sure [X] would have recounted that incident to one of the independent expert witnesses.  [X] has made no such comment.

10. The mother has detailed in paragraph 40 above (in quotation marks) the incident which occurred during a camping trip on [omitted] Island in 1995.  The mother maintains that the father punched an elderly man in the face and detailed the incident in paragraph 40 of her trial affidavit.

11. In an affidavit filed 10 November 2014 at paragraph 4 the father stated:-

    “My Responses

    4. Paragraph 40.  I am not a violent person.  I recall the incident to which [Ms Haycox] refers.  I recall that [Ms Haycox] and I were driving along the western side of [omitted] Island along the beach, it was high tide and there was only enough room for one car.  A local taxi came from the opposite direction so I drove down into the water to give him room as I was on the right hand side of him.  He had plenty of beach but chose to drive right beside us in the water at a speed of about 30-40kmph.  Our windows were down and water filled the car, we were both wet.  I turned the car around and pulled up beside him up on the beach where he had stopped and asked why did he spray us with water, he replied “that’s what happens over here mate” I called him an asshole, pushed him in the shoulder and threw his keys in the water and then left.  I was charged with an offence.  When I attended at Court, the duty solicitor advised me “if you want to fight it a Barrister will cost you around 700-1500 and you will have to come back or if you plead guilty it will be over today”.  I was in my early 20’s so chose to plead guilty to save money and avoid having to go back to Court.  [Ms Haycox] is aware of the circumstances surrounding this decision as she was present when the incident occurred.”

1. In relation to this incident – it seems that it may have occurred in 1996 and not 1995.  In the father’s police history there is contained a record of his offences including criminal offences.  The father appears to have pleaded guilty to a charge of assault occasioning bodily harm.  It seems that incident occurred on 15 November 1996.  The father was also charged with stealing on that date.  The stealing charge related to the father throwing the other man’s car keys into the water.

2. The father was cross-examined about this incident by Mr Shoebridge of counsel on behalf of the mother.  I had an opportunity to observe the father answering the questioning on this particular issue.  The way in which the father answered the questions in cross-examination on this issue and his demeanour in the witness box when answering those questions has led me to conclude that the father lacks insight in relation to the inappropriateness of his own actions which took place on the beach at [omitted] Island in 1996. 

3. The mother had stated in paragraph 40 of her trial affidavit, inter alia:-

   “It was clear he considered what he had done as being legitimate.”

4. The mother also stated that the father showed no remorse and that the father failed to demonstrate to the mother that he had gone overboard in his response.

5. The mother says that the father had pursued the other man.  The father admits that he turned his own car around and (essentially) followed the other man up on the beach and pulled up beside him.  I accept the mother’s version that the father pursued the other man.

6. The father’s manner and demeanour in the witness box when answering questions on this issue show that still, after all these years, the father considers that his actions on that day on the beach at [omitted] Island are justified.  Clearly his actions on that day were not justified.  The father overreacted to a significant degree.  The father committed the criminal offence of assault occasioning bodily harm when he lashed out violently and struck the other man involved in the incident.  I accept the evidence of the mother that the father in fact punched the other man in the face and then took the man’s car keys out of his car and threw those keys into the ocean.

7. The father maintained that he had only pushed the other man in the shoulder.  I reject that evidence of the father.  The father maintained that he only pleaded guilty to save money.  I consider that this indicates that the father showed no remorse at the time and continues to show no remorse in relation to the incident.

8. As noted, the father lacks insight into the inappropriateness of his actions that day on the beach on [omitted] Island.

9. Many of the allegations of violence made by the mother against the father occurred (according to the mother) when other people were not around. 

10. The incident that occurred on [omitted] Island on 1996 involved another member of the public.  It is a matter of record and it is contained in the father’s criminal history record. (That document is exhibit 3 in the proceedings).

11. Even though that incident occurred a significant period of time ago it indicates that the father did have (at least in 1996) an anger management problem.  The father maintains that he has never had an anger management problem and that his actions in 1996 at [omitted] Island were justified.  In particular, he sought to justify his actions because of the amount of water that had been splashed into and onto his motor vehicle.

12. The family saw Ms L in 2013 and Ms L provided a family report dated 6 June 2013.  That report is annexed to an affidavit sworn by Ms L and filed on 12 June 2013.

13. In that report the father failed to tell Ms L about the [omitted] Island incident.  He failed to tell Ms L that he had been convicted of assault occasioning bodily harm.  When the parties saw Ms L again in 2014 the father did not tell Ms L about that [omitted] Island incident.  Further, when the family saw Ms B (to assist with therapeutic counselling) the father did not mention the [omitted] Island incident.

14. Those independent experts were not aware of that history.

15. The parties in this case separated on a final basis in November 2012.

16. The children and the parents were interviewed by Ms L in June 2013.  At that stage [X] was aged 15 years.  I note the following paragraphs from the report of Ms L dated June 2013:-

    “7.20 When asked if her father ever got angry or hit her or hurt her physically, [X] said “I don’t recall.  I know he’s gotten angry at me quite a few times when I’ve been sticking up for mum”.  When asked what happened, [X] said “like if mum would ask if we could go down to Tasmania for instance for a holiday he would start swearing and yelling and I would try and stick up for her and then he would say shush or he would just tell me to stop speaking because I don’t know anything”.

    7.21 When asked what else her parents argued about, [X] said “money, even trivial things like what… I know its not really trivial, but what school we would be going to”.  When asked if her father supported the home schooling, [X] said “no”.  When asked if it was her mother’s decision, [X] said “she definitely asked him and I suppose he partially agreed but he didn’t like it”.

    …

    7.23 When asked about her parents arguing, [X] said “dad definitely yelled and swore and was quite physical”.  When asked how, [X] said “he would throw the pillows off his bed at us and slam doors and… yeah stuff like that”.  When asked if her mother yelled or screamed, [X] said “no, she didn’t swear.  She never really started yelling.  I think it was probably a few times that she did raise her voice but I think she was as shocked as perhaps us kids were”.

    7.24 When asked about alcohol, [X] said “dad drank on a weekly basis”.  When asked if she ever saw her father drunk, [X] said “yes”.  When asked about this, [X] said “he would go all droopy and red eyed and puffy and stuff and it would be like he’s very unwell the next day and when he got home”.  When asked if this was Friday and Saturday, [X] said “Thursdays, Fridays, Saturdays and Sundays and occasionally when he moved back in Mondays and Tuesdays”.  When asked how long he was gone for, [X] said “the whole night”.  When asked how long her father had moved out of the house for, [X] said “three weeks”.  When asked how she felt during those 3 weeks, [X] said “free, better than when he was living there”.  When asked if she missed her father, [X] said “no”.”

17. The evidence given by [X] to the family report writer – not terribly long after the final separation – certainly corroborates the mother’s version of events – in some respects.  In particular, [X] has confirmed that the father had anger management problems.  The father would yell and swear.  The child said that the father was “quite physical”.  But when specifically asked about that all that [X] could offer was that the father would “throw the pillows off his bed at us and slam doors”.  [X] made no reference whatsoever to the father ever physically assaulting her.  [Y] did refer to being pushed or thrown onto a bed by her father.  [Y] informed Ms B of that fact.  [Y] had indicated to Ms B that there was quite a history of the father’s physical violence but when pressed on the topic she could only come up with one incident and that was the pushing onto the bed incident.

18. The mother has maintained that the father drank alcohol to excess.  The mother described in graphic detail some of the consequences of the father’s excessive drinking including:

    a)the father consuming so much alcohol that he would vomit on the floor of the house; and

    b)the father drinking so much alcohol that he did (on more than one occasion) mistake a drawer for the toilet and urinated in the drawer. 

19. The mother had to clean this mess up.

20. The child, [X], saw the mother cleaning up the father’s vomit on one occasion.  The details are contained in paragraph 6.36 of the first family report prepared by Ms L.  The evidence continues in paragraph 6.37:

    “6.36 Nevertheless, she said she stayed for the kids as “I could not have them” according to the father if she left.  She said “in 2011/12 it got to the stage where his drinking had gone to an incredible level.  He was drinking beer and spirits then.  He was suffering vomiting and diarrhoea and he was urinating against the bedroom door and twice he pulled out a drawer and urinated on the clothes”.  She said she reached a point after cleaning vomit out of the carpet where she told him “I’m not cleaning up after you anymore”.

    6.37 She said [X] was particularly upset on one occasion when she saw her (the mother) cleaning the floor.  She said she told [X] that her father had just been sick but [X] “broke down” and said she had no respect for him.  She knew it was alcohol induced”.  She said “it got to the stage where it was a couple of nights a week”.  She said he had an incredible capacity for energy and he was a hard worker but he could drink too.  She said his body was slowing down though and he was not as strong”.  She felt that his mates never saw the negative side of his drinking.”

21. As noted above, [X] was asked directly by Ms L about the father’s consumption of alcohol and in paragraph 7.24 of Ms L’s report – Ms L has reported [X]’s comments.

22. The father denies that he drank excessively.  The father denies that the amount of alcohol he consumed was inappropriate.

23. I have come to the conclusion that the mother’s version of events in relation to the father’s consumption of alcohol is more likely to be correct.  The father has failed to demonstrate insight into the impact of his consumption of alcohol upon the family. 

24. Whilst Ms Susan L’s first family report is dated 6 June 2013 the interviews in fact took place on 27 May 2013.  The father left the former matrimonial home for the last time on 17 November 2012.  At the time of the family report interviews at the end of May 2013 the events of late 2012 would have been fresh in the minds of the parties.  Further, the events would have been fresh in the minds of the 15 year old child [X].

25. The father sought to maintain (on more than one occasion) during his evidence that “things had been fine” between him and the children prior to separation.  The father has argued that the mother has undermined his relationship with the children.  The father maintains that the mother has turned the children (especially the two girls) against the father.

26. But a consideration of [X]’s responses to Ms L a mere seven months after the final separation provides an insight into this family.  [X] was aged 14 years and six months at the time of final separation.  At the time of the family report interview in late May 2013 [X] was aged 15 years.  If the father’s behaviour and conduct within the family home (prior to separation) had been reasonable – I do not consider that the child could have been turned against him in such a short period of time following final separation.  I consider it much more likely that [X] gave a fair and truthful account of her observations of the father prior to the separation when she spoke to Ms L in May 2013.

27. I have concentrated mainly on the comments and observations of [X] at this point in time.  That is because of her age.

28. There was also a conflict in the evidence relating to the injury and subsequent death of one of the family’s dogs.  The mother was not actually present when that incident occurred.  I do not consider it necessary for the Court to make particular findings as to precisely how the dog suffered the injury which led to its death.  But I do accept that the father inappropriately and in a manner which was clearly not child focused – ignored the problem (preferring to concentrate on a plumbing/drainage issue) and left the dog in distress and pain.  This was causing the child [Y] a great dealt of anxiety.  It was her dog.  The father insisted upon waiting for the mother to return to the family home and then it was the responsibility of the mother to take the family dog to the vet.  The inevitable occurred and the dog had to be put down.

29. Furthermore, I accept the mother’s evidence that the father would, on occasions, drink excessively with his friends in the shed adjacent to the family home.  I accept the mother’s evidence that the music would be very loud and the children would all sleep on the floor together with the mother in one particular bedroom to escape the noise.  Again, the father acted in a manner that was not child focused.  The father acted in an inappropriate manner.

30. I am concerned that the mother has made specific allegations that the children had witnessed various events and that the children had heard the father threaten the mother.  I am concerned because the mother’s evidence in that regard is not supported by what [X] said to Ms B and Ms L.  I have come to the conclusion that the mother is not a good historian and in some respects has embellished her version of events.  However I am in a position to conclude that the father was responsible for instances of family violence.  I do accept the mother’s contentions that instances of family violence occurred.  I reject the father’s blanket denials.  I am only prepared to make the following findings of fact in relation to the allegations made by the mother concerning family violence perpetrated by the father. Unless specifically stated herein – I do not accept the allegations made by the mother.  The findings are as follows:

    a)prior to the time that the children were born the father did, on the occasions to which I am about to refer – physically assault the mother.  I accept that the father struck the mother as referred to in paragraph 32 of the mother’s trial affidavit.  I also accept that the mother struck the father as referred to in that paragraph.  I accept that the father struck the mother in the side of the head once in 1996.  I do not accept that he struck her with a telephone book.  I do not accept that the father repeatedly punched the mother during 1996 as alleged in paragraph 34 of the mother’s trial affidavit.  The mother had a supportive family.  It is more likely than not that she would have told her mother if this was occurring.  She did not do so.  The mother’s stated reason for not leaving the father at an earlier point in time (prior to 2012) was that he would not let her take the children.  But the first child was not born until May 1998 and if the father had been physically assaulting the mother on an ongoing basis as alleged by the mother prior to 1998 – on the mother’s own evidence there was no reason for her to stay.  That is, she had no children with the father at that point in time;

    b)the children have no memory of ever witnessing the father physically assault the mother.  It did not occur in 2012 and it did not occur within [X]’s memory.  It is more likely that not that, since the time that [X] was born (in [omitted] 1998), there were two instances when the father physically assaulted the mother (as referred to in paragraphs 39(a) and (b) of the mother’s trial affidavit).  Apart from those two instances I do not accept that the father physically assaulted the mother after May 1998.  The mother referred very often in the evidence to the fact that her mother and “Mr M” were very supportive.  I have concluded that if there were ongoing instances of the father physically assaulting the mother after [X]’s birth – the mother would have mentioned it to her own mother – or to Mr M.  She did not do so and there is no adequate explanation from the mother in that regard;

    c)I reject the mother’s evidence contained in paragraph 39(h) of her trial affidavit (note paragraphs 29(d) and (e) herein).  If the father had made such a threat in 2012 – I am convinced that [X] would have told Ms L and/or Ms B.  I have also concluded that the father did not say the words referred to in paragraph 39(i) of the mother’s trial affidavit.  These are instances of the mother’s embellishment;

    d)the only time the father physically assaulted the children was when he once (towards the end of the marriage) pushed or threw the child [Y] onto a bed;

    e)my finding in the last subparagraph is subject to the further finding that the father did on at least one occasion slam doors and throw pillows at [X] (and possibly [Y]);

    f)the father consumed alcohol to excess during the relationship – but especially so towards the end of the relationship during 2012;

    g)the father’s excessive alcohol consumption – especially during 2012 compounded his anger management issues;

    h)the father was prone to swearing, yelling and angry outbursts – and this increased during 2012; and

    i)the father would swear and yell with angry outbursts in front of the mother and the children and this increased during 2012.

31. Having regard to the findings that I have made I have come to the conclusion that the father did perpetrate family violence within the meaning of that term as used in the Act.  Much of the family violence which the children remember took place during 2012.  This was the year that the parties separated.  It was clearly an extremely emotional and stressful time for both the mother and the father.  The father was consuming alcohol to excess and this only exacerbated the problems.  Most of the girls’ unhappy memories relate to the father’s yelling, swearing and angry outbursts.  This occurred primarily in 2012.

32. As already referred to (in paragraphs 21(b) and 21(e) herein), in some respects the mother has embellished her allegations against the father.  This is not in any way to excuse the behaviour of the father.  Some of his conduct was deplorable.  His conduct in failing to manage his own anger issues (especially during 2012) and his failure to control his consumption of alcohol during 2012 – are probably the two main issues which are the root cause of the two daughters’ attitude towards him.

33. Ms L gave her opinion (which I accept) that, notwithstanding the family violence, therapeutic counselling with the assistance of Ms B should have been sufficient to assist the children to rebuild their relationship with their father.  But the lack of progress made in the counselling sessions with Ms B is very concerning and requires closer examination.

34. Ms B swore an affidavit in February 2014 and it was filed on 21 February 2014.  That affidavit annexes a report from Ms B.  Ms B recommended the appointment of an Independent Children’s Lawyer.  Some of her concerns are stated in paragraph 2.1 and include the following:

    “ ● The very real risk of estrangement of [Z] from his father;

    …

    ● The fact that there are no school teachers involved with the children to provide any independent evidence as to the children’s adjustment, coping skills and educational achievement on a day to day basis (for instance any changes in [Z]’s demeanour after he has seen his father);

    ● The mother’s resistance to [Z] being seen by me with his father – to the extent that I felt the need to arrange to see [Z] with his father when the father had him overnight or for dinner on a Wednesday evening rather than rely on the mother to bring him in and encourage the sessions with the father;

    ● The mother’s regular emails to me which all focused on the father’s allegedly poor behaviour during his time with [Z] and [Z]’s resultant distress, this information having mostly allegedly been conveyed to her by [Z];

    ● Differing claims by [Z] – e.g. telling me privately that he had fun with his father when camping – from what he is apparently telling  his mother privately;

    ● [Z] appearing happy with and affectionate towards his father when seen with his father, whilst the mother and the girls reported that he expressed a desire not to go with his father for contact and that he appeared emotionally distressed before and on returning from time with his father;

    ● Claims by the mother that she was sure the father was drinking alcohol in breach of orders (denied by the father) when [Z] was in his care and that she based this on reports to her by [Z];

    ● Concerns that [Z] is being quizzed over his time with his father and possible influenced to say thing to me to please his mother;

    ….

    ● Concerns about [Y]’s distress on talking about the family situation and particularly her father – for example, her claims that he is “quite violent” but her inability to recall more than one violent incident towards her when he allegedly threw her on her bed after a small misdemeanour, suggesting that her view of him as violent may not be one formed only as a result of her own experience with him;

    ● In contrast, [X]’s unemotional and intellectualised but perhaps pseudo-mature statement of reasons that she does not want to see her father and sees no problem with not having a father for the rest of her life;

    ● Hearing the mother’s words emanating from the girls in particular, but on occasions also when talking to [Z];

    ● The father’s distress (difficulty holding back tears on occasion) when discussing his concerns for his children should they not have a father in their lives and his loss of contact with the girls;

    ● The mother’s extreme distress at times to the point of sobbing and difficulty talking when discussing the prospect of the father having unsupervised time on an ongoing basis with [Z] with or without the girls;

    ● The impact on the children of such highly charged emotions – particularly in respect of the mother.”

1. Ms B stated further under paragraph 3:-

   “3. OTHER CONCERNS:

   3.1 Since writing the email of 12 September 2013, a number of issues have arisen and further galvanised my opinion regarding the need for an ICL to separately represent the best interests of [X], [Y] and [Z].

   ● The mother has taken [Z] to see another psychologist, Mr S, without the knowledge or consent of the father and without discussing it with me, despite obviously feeling comfortable to regularly email me about other parenting issues (particularly the negative impact of the father’s alleged behaviour of [Z]);

   ● [Z] told me that he tries to keep both parents happy by telling them what they want to hear and that as both parents are never present at the same time he didn’t think it mattered what he said to each parent.  He agreed that if he had a friend who found himself in a similar position, he would advise him to do the same thing;

   ● The mother has this year supplied [Z] with a mobile phone so that he can call her when he is feeling uncomfortable at his father’s house and I am concerned about the pressure this is placing on [Z] by encouraging him to be deceitful with his father;

   ● Independently of knowing about the mobile, the father reported to me that [Z] had told the father’s partner’s daughter that he was supposed to phone his mother on arrival at the father’s residence so she could come and collect him.  When I asked the father what phone [Z] would use in such an instance he said [Z] had free access to the landline.  He told me [Z] didn’t have a mobile phone (suggesting that the father was not at this stage aware of the mobile the mother had given the child to take on contact weekends);

   ● Both the mother and [Z] have reported to me that the father has breached the Orders by drinking when [Z] is in his care, but [Z] has, when gently challenged on the facts, retracted his story and given details of an alternative scenario in keeping with the father’s claims;

   ● I am extremely concerned about the impact of this polarisation on [Z].” 

2. Ms B then concluded with the following opinions:-

   “3. OPINION:

   3.1 The purpose of writing this brief report is to alert the ICL, Family Report Writer and the Court to the issues which have arisen during counselling and which give me concerns in respect of the children’s emotional wellbeing.

   3.2 It is not my role to generate overarching recommendations, but I would suggest that the Report Writer look at the issue of homeschooling in the light of all the concerns expressed above.

   3.3 I would also suggest that any counselling for the children which is not agreed on by both parents or ordered by the Court has the potential to be destructive rather than supportive to the children.  Having said that, no counselling is going to achieve a positive outcome if both parents are not genuinely committed to the children’s best interests.”

3. The concerns raised by Ms B reflect poorly upon the mother.

4. I note that Ms B stated at page 129 of the transcript (in answering a question from counsel for the mother) from line 20, as follows:-

   “MR SHOEBRIDGE: You see, you were asked questions about whether or not Mum had anything positive to say about the father.  And you said, well, no, she didn’t.  If Mum’s reality was that of a person who had been punched to the head, spat on, who had had to clean vomit off the carpet, who had had to clean the clothes that were urinated on, who had had to sleep on the floor with her children to escape the father’s drinking buddies or the noise that they were making – if the mother’s reality of her relationship with [Mr Reamy] was that, it might not be surprising if, in the absence of the children when she was asked about the father, she didn’t have many positive things about him, mightn’t it?

   MS B: Absolutely.”

5. That evidence from Ms B really only explained why the mother would be stating negative opinions about the father to another adult in the absence of the children.  However, I have come to the conclusion that the mother is expressing negative opinions and negative emotions about the father in the presence of the children including in the presence of [Z].  I do not believe the mother’s denials in this regard.

6. Ms B gave evidence by telephone link on Tuesday 18 November 2014.  When being questioned by Mr Tolton of counsel on behalf of the Independent Children’s Lawyer Ms B gave the following evidence (from page 115 of the transcript, line 23):-

   “MR TOLTON: Now, did you receive any emails from the mother that were positive in nature about the father’s relationship with [Z]?

   MS B: About the father? No.

   MR TOLTON: Nothing at all?

   MS B: No.  Look, you know, there might have been comments saying, look, I'm wanting to encourage [Z] to see his father.  I would do nothing to discourage [Z] with his father – more about her attitude to [Z] seeing his father, but, then, in fact, all the comments about the father, about [Z] with his father, about [Z]’s attitude to seeing his father were all exclusively negative.  There was nothing positive about that.  She would never say, look, [Z] had a lovely time with dad this time or [Z]’s looking forward to going camping or nothing of that nature.

   …

   MR TOLTON: Okay.  Now, you talk in that dot point about [Z] telling you privately that he had had fun with his father during his time with him?

   MS B: Yes.

   MR TOLTON: And he had relayed a different story to his mother?

   MS B: Yes.

   MR TOLTON: Did that happen on several occasions while you were talking to him – talking to the parties?

   MS B: At least two occasions.

   MR TOLTON: Now, that seems to suggest that there’s some sort of suppression by [Z] of his feelings or emotions when he returns to his mother after contact with the father?

   MS B: Well, [Z] told me very clearly – I made a note somewhere – I've been right through all these notes;  it’s a very thick folder, but he did actually make a comment about finding it difficult to tell mum when he was having fun with dad because mum would upset.

   MR TOLTON: And, Ms B, the very fact that [Z] seems to be suppressing his emotions or his feelings after he has spent time with his father, something that has been going on for approximately two years since separation, are you able to comment upon the long-term effect upon [Z] suppressing these emotions or suppressing these feelings?

   MS B: Well, [Z] is being required to compartmentalise his – his feelings and his attitudes to be one thing with mum and another thing when he – or another person when he’s with dad.  I've seen no clear evidence, really, or no evidence at all that he doesn't feel free to talk about mum or his sisters when he’s with dad.  That doesn't mean that that isn't the case.  But I certainly haven't seen the evidence of that in the time that I've been seeing the family, but it is quite stressful for a child to have to, you know, put on an act when they're with a parent, a parent whom they trust and who should be providing them with security and the freedom to just be themselves, so, yes, it can have quite a negative impact.

   MR TOLTON: Having to compartmentalise his feelings, is that likely to have any impact upon his emotional development?

   MS B: Look, it’s very difficult to look into a crystal ball, but, you know, as a psychologist, I see people who’ve had all sorts of backgrounds, and some of them actually develop great resilience as a result of negative experiences as children and – and some – for some it has quite a negative impact on them for the rest of their lives.  But let’s just say it’s certainly not ideal for a child to be having to worry about these sorts of things, to be having to worry about, you know, how parents are going to react to what he says and to be stressed by that.  He shouldn't be having to think about that.  He should be able to just focus on the developmental tasks of his stage in life, and, you know, focus on his school work, focus on his social development, his emotional development – all of that without having to worry about who’s going to upset with him and to be fearful of whatever, whether it be upsetting a parent or getting into trouble from a parent – whatever the case may be.  That’s not – not something that’s good for children.

   MR TOLTON: Is it compounded by the fact that he may have the same difficulties with his sisters?

   MS B: Yes, I – I would think so.  I think, you know, if this is going on in the household, and there were certainly warning signs to me that the girls were very much mouthpieces of mum as well, that, you know, [Z] would have that sense of being, well, required to behave a certain way and being the odd one out, should he say something positive about dad.

   …

   MR TOLTON: Now, just in relation to the counselling, can you tell the court why it ended?

   MS B: Why it ended?  It ended, I guess, because I took the view that it wasn’t good for the children.  I agonised over the action that I took, because, as most of – people involved in family law would realise, I’ve been actively resisting writing reports and giving evidence for about the last two years, so I just was of the view that the children were very much in the middle of a dispute and that the counselling was being derailed, if you like, and being used – attempted to be used as part of the litigation process, and, just in relation to that, if I can refer to an email from the mother to me on 4 September 2013 where she says, amongst other things:

   I have asked if I should be taking [Z] to see you since our second appointment back in early August, I think it was.  I believe there is some confusion (or perhaps I’m the only one confused, and no one has explained things to me) as to what reporting is going to occur in order for Ms L to make a further set of recommendations to Howard J.  Please set me straight if I am getting this wrong, but my copy of the orders seems to say that you are able to do therapeutic counselling for [Z], but you are not required to write a report for us; is this right?  I have asked [name omitted] if she will ring you to check this.  If it is not your role, I would very much like the court to appoint an independent child psychologist to report [Z]’s views back to Ms L.  If you are unable to do the reporting, I would very much like to ask that someone is appointed when we go back to Howard J on 17 October.  If there’s a right way to do this, I want to do what is right for the children, but because I’m so ignorant of how everything works, I’m relying on the advice I get from lawyers.”

7. The purpose of Ms B’s involvement was to provide therapeutic counselling to assist the children to cope with the dispute and to try to help everybody to move on.

8. Ms L concluded (in her second report) that [Z]’s time with his father should be increased not decreased.  Ms L further said it was of significant concern that [Z] “simply shut down on his return to his mother and his sisters after time with his father and family particularly in relation to this time being positive”.

9. The older children have a negative view of the father.  They will not spend time with him.  But the child, [Z], still does enjoy spending time with the father.  It is highly likely that [Z], being the youngest child, either does not remember or was shielded from the family violence which did occur when the parents lived together. 

10. Unfortunately, the child [Z] seems quite torn.  He tells his mother one thing.  He tells his father something different altogether.  I accept that the child [Z] does have an enjoyable time when he goes to spend time with the father.

11. This is a most difficult situation for young [Z].  His older sisters are clearly quite vocal in the mother’s household.  The older sisters are expressing negative opinions about the father.  The mother maintains (essentially) that she does not express negative opinions about the father to the child [Z].  I do not believe the mother in that regard.  I find that [Z]’s older sisters and the mother are all expressing negative opinions about the father to young [Z].  It may well be that the older sisters are more vocal in the expression of their negative opinions.  This seems to be especially so in relation to the child [X].  I accept the father’s evidence that, at changeover (when returning to the mother’s care after spending time with the father), [Z] walks towards the mother with shoulders slumped – as though he is putting on a whole different demeanour by way of an act for his mother and sisters.  This is as if to say – “I am returning from dad’s place, I feel down and I had no fun”.  This is in fact contrary to the truth.  I accept the evidence of the father and his partner Ms F to the effect that [Z] is happy, relaxed, comfortable and has an enjoyable time when spending time with the father on alternate weekends.  But [Z] feels the need or the pressure from the mother and his older sisters to portray for them (the mother and the sisters) an image that he does not enjoy his time with his father and he only attends at his father’s residence under sufferance.

12. Given the vocal nature of the negative opinions expressed by his older sisters – I can well imagine that [Z] would be immediately unpopular with his older siblings if he returned from spending time with his father and announced that he had been enjoying himself.  So, as noted, young [Z] paints a negative picture to the mother and his older siblings when he returns from time with the father.  The child, the older siblings and the mother all need counselling to assist with this situation.  I must say though that I am very concerned in relation to this particular issue.

    
    

    Ms L, the family report writer, gave evidence by telephone link on Wednesday 17 December 2014.  Ms L had referred the family to Ms B for therapeutic counselling to assist the family and to rebuild the relationship between the children and the father.  Ms L expressed the view that she is very worried that Ms B was not able to assist the family.  It is apparent from the cross-examination of the mother by counsel for the father (Mr Middleton) that the mother continually forwarded information to Ms B during the counselling process.  The mother basically, interfered or tried to interfere with the counselling process.  The mother was trying to influence the outcome.  As noted, I have found that the father was responsible for family violence which occurred in the family home when the parents were still living together.  Somehow and luckily for the child [Z], he was either shielded from those instances of family violence or doesn’t remember what occurred.  I say that this is lucky for [Z] because as Ms L stated in her evidence – there is a much better outcome for children (and in particular boys) if they are able to enjoy a good relationship with their father.  The father has changed.  The father no longer drinks alcohol to excess.  I accept his evidence and the evidence of Ms F in that regard.  The father, in his new relationship, is not prone to angry outbursts.  The father is not committing acts of family violence within his new relationship.  Ms F was an impressive witness.  This was acknowledged by all parties including counsel for the mother (Mr Shoebridge).  The way in which the father conducts himself now is very different to the way he conducted himself during the relationship with the mother.  Not only that – it is crucial to note the evidence of Ms L (which I accept) to the effect that the negative opinions being expressed by the mother and the older sisters in the mother’s household to [Z] about the father has created a situation which is more detrimental to [Z] than the family violence which the father is responsible for during the time that the parents lived together. [Z]’s exposure to the negativity towards his father within the maternal household is emotionally compromising for [Z] and detrimental to his well-being.

13. It is also important to have close regard to the evidence provided by

    
    

    Ms B.

    “MR MIDDLETON: Yes.  You commented that – when you were being asked questions by my learned friend that the mother would say that she encouraged [Z]’s time with the father?

    MS B: Yes.

    MR MIDDLETON: But then she would provide a lot of information about why the father was no good, to paraphrase?

    MS B: Yes.

    MR MIDDLETON: Is it fair to say that her words were not consistent with her opinion of dad?

    MS B: Yes.

    MR MIDDLETON: And that there was some incongruence there?

    MS B: There was.

    …

    MR MIDDLETON: Okay.  Did you form any opinion – and if you didn’t, please let the court know – as to whether [Z] was being asked questions by the mother upon his return from dad?

    MS B: Look, I – I wasn’t there.  It’s possible [Z] went home and, you know, sort of let – let fly with the – a diatribe of information without being prompted, but it certainly seemed to me that he – he was probed for information, because the emails would start flowing often – you know, after he had seen dad, there would be emails to me, and they would be full of information about what allegedly occurred during [Z]’s time with dad.

    MR MIDDLETON: All right.  Your report indicates, I suggest, that you had some concerns about the mother’s behaviour around the children through this process; is that a fair thing to say?

    MS B: It’s certainly fair to say that there were very worrying indications that the children were being heavily influenced by mum and that this was all the more significant because they weren’t going off to school every day, they weren’t mixing with other people, they weren’t being observed on a day-to-day basis by teachers and the like, a very closed sort of environment there with mum with who – influencing them twenty-four-seven, basically.

    MR MIDDLETON: Just in relation to that, having worked with the family and seeing the dynamics within the family, are you able to offer an opinion as to whether, in your view, the mother could effectively facilitate a meaningful relationship with the father?

    MS B: I would have grave concerns that – that that could occur.  The possibilities, in my mind, and there may be others, were that [Ms Haycox] was either, you know, genuinely of the view that the children were at terrible risk in the father’s care or there might have been another motive about keeping the children away from dad.  But either way, she really didn’t seem to entertain the idea of an ongoing close relationship between dad and any of the children – not just the girls, but [Z] as well.

    MR MIDDLETON: And with that in mind, knowing that part of the mother’s case is that she be permitted to relocate to Melbourne with the children, in your view will [Z]’s relationship with his father be worse off or better off if he moved to Melbourne or Victoria?

    MS B: I have absolutely no doubt that [Z]’s relationship with his father would be worse off if there’s a move to Melbourne.  I’m very happy to express that view.  That’s not a recommendation in any way, obviously - - -

    MR MIDDLETON: No?

    MS B: --- but I feel like I can give that answer.

    MR MIDDLETON: And did you raise your concerns about the mother with the mother?

    MS B: Yes.

    MR MIDDLETON: Are you able to offer an opinion as to whether you have the sense that she had some insight into her behaviour and perhaps words, and how that might affect the children?

    MS B: We talked about the possibility of there being some mental health issue which she dismissed as a possibility.  We talked about, you know, family histories of depression, that kind of thing.  I think it would be fair to say that her view was that she was going through an extraordinary period of stress and that, you know, once through that extraordinary period of stress and once able to move on and live a normal life, she would be fine and that the distress was really being generated by her dealings with the father and his – you know, the difficulties he was causing her, because for part of the time I was seeing the family, they were still locked in negotiations over property as well and, you know, it certainly is a very stressful time and that was her view that this would all be sorted once it was behind them.

    MR MIDDLETON: And do I take it from that then that she was determined in her view and perhaps dismissed another point of view?

    MS B: Look, I think – and I’m relying on my memory here – I’m not going back to the notes to answer this, but my recollection is that she did tend to dismiss the – the amount of distress displayed in front of me and I obviously questioned her about how much of this the children were witnessing and, you know, the impact this could be having on them.

    HIS HONOUR: Sorry, do you mean, Ms B, the mother sobbing and showing distress?

    MS B: Yes.  Yes.  Yes.

    MR MIDDLETON: Right?

    MS B: Because it seemed to me that she was so distressed that there would have to be some evidence of this – if it was real distress – and I mean, there was the thought, I would have to say – crossed my mind, is this real distress or is this feigned, it was so extreme.  But if it was real distress, then how could this be masked at home?  How were the children being protected from witnessing this?  And she assured me that they didn’t see her in that sort of distressed state.

    …

    MR SHOEBRIDGE: You agree with me.  You were initially engaged for the purposes of therapeutic counselling with this family, weren’t you?

    MS B: I was.

    MR SHOEBRIDGE: And would you agree with me, as a therapist, you would approach the process differently in terms of note‑keeping, for example to the approach you would take if you were accepting a brief to prepare a family report?

    MS B: Yes, yes, absolutely.

    MR SHOEBRIDGE: And does it follow that the type of notes that you would take are less in quantum and perhaps less comprehensive than the notes you would take if you were interviewing people for a family report?

    MS B: Look, I do take a lot of notes, probably a corollary of having written reports for so long.  So there is a lot in the notes that I take, but you’re quite right:  that they are different.  They’re more free-flowing.  The process is more free-flowing.  It is much more structured in a family report interview.  So it’s – it is quite difficult to go back through them and – and collate, you know, the – the points that – that you need from the notes.

    MR SHOEBRIDGE: And is it fair to say another difference between what you would do in preparation of a report, for example, versus what you would do in therapeutic counselling would include the application of tests?

    MS B: Yes, I would.  Yes.  Not all report writers do, of course.

    MR SHOEBRIDGE: And am I right in saying one of the purposes of the psychometric tests is to try and flush out the likelihood of someone giving you false positive answers or answers that are inconsistent?

    MS B: Yes.  Yes.  That was one of the reasons that I always like to administer psychometric personality assessments to each of the parents.

    MR SHOEBRIDGE: So in the therapeutic process you’re very much limited to your own subjective interpretation of what you’ve seen in the counselling?

    MS B: Well, I would say it’s more than subjective.  It’s educated and based on experience as well.

    MR SHOEBRIDGE: Sorry, I didn’t mean to be rude.  Subjective, given the qualifications that you have?

    MS B: Absolutely, yes.

    MR SHOEBRIDGE: Did [Ms Haycox] tell you that the father, late in their marriage, regularly got drunk, so drunk, that when he came home he would vomit on the carpet and on the walls and on the curtains in their room?

    MS B: She didn’t specifically tell me that, no.

    MR SHOEBRIDGE: If the children saw even a portion of that sort of behaviour, that might explain, particularly in relation to the girls, some of their attitudes, mightn’t it?

    MS B: Well, unless they’re not telling me those things for some reason it’s somewhat inconsistent with the things they did tell me, which was basically that dad was a non-entity and not there, so I do have a little bit of a struggle with that.  But yes, if they did see all of that and if, for some reason, they’ve not – they’ve chosen not to share that with me when they’ve been given the opportunity to talk about it, then you know, it would explain their attitude.

    ….

    MR SHOEBRIDGE: Now, because you haven’t seen Ms L’s second report, you wouldn’t be aware that [Z], when asked, told Ms L that Dad talks about Mum?

    MS B: Mm.

    MR SHOEBRIDGE: And that in Dad’s household, just about every time he visits Dad, Dad says Mum has been a bad Mum and I’m going to take you off her?

    MS B: Mm.

    MR SHOEBRIDGE: If Dad was saying those words or anything like those words, that’s the sort of thing that might have a confusing effect upon a young boy, would you agree?

    MS B: It would.

    MR SHOEBRIDGE: You agreed with me about the strength of the bond between the mother and the children.  You would agree with me, wouldn’t you, [Z]’s primary bond must be with his Mum, mustn’t it?

    MS B: Well, one would hope so.  He’s with her most of the time and, you know, one would assume so.

    MR SHOEBRIDGE: Given your experience, generally, in family law, you can agree with me, can’t you, that that is a serious step to move a young boy from the home where he has his primary bond, isn’t it?

    MS B: It’s a serious step.  Yes. 

    …

    MR SHOEBRIDGE: No.  So he didn’t tell you about being charged and dealt with for assault occasioning bodily harm when he was a younger – still married to [Ms Haycox], but back in 1997?

    MS B: No.  He didn’t.

    MR SHOEBRIDGE: All right.  And because you haven’t seen the reports, you wouldn’t know that the suggestion is that he got annoyed with a man who drove past on the beach and splashed, on his case, a lot of water, into his ute.  So he pulled up next to the man, got into a fight with him.  And on one version, punched him in the head.  Or on the other version, shoved him hard.  Enough, in the end, to get charged with assault occasioning bodily harm.  That sort of behaviour seems inconsistent with his presentation to you, from what you’ve described?

    MS B: I’ve got no evidence of that.  But, then, you know, I don’t know how old he is now.  I guess he’s in his 40s or something, isn’t he?  So one would hope that he has matured and learnt more self-control than he had if he was a - a very young man in his 20s.  I don’t know.

    …

    MR SHOEBRIDGE: I will withdraw the question and rephrase it, your Honour.  If his Honour is satisfied that [Z]’s relationship with his Dad is strong, that of itself seems inconsistent with the concern about Mum’s capacity to facilitate a meaningful relationship, wouldn’t it?

    MS B: Not necessarily.

    HIS HONOUR: Ms B, it’s Judge Howard here.  Look, just following on from what Mr Shoebridge just asked you about, if – if I were to find that the child had a strong, close and loving relationship with his father, that is, [Z], all right ‑ ‑ ‑?

    MS B: Yes.

    MR SHOEBRIDGE: Does that not tend towards the conclusion that the mother is not speaking to [Z] negatively about the father?

    MS B: Look, there’s so many variables.  Based on what I saw – and that’s really all I can comment on here – I would say that it’s despite what’s going on with mum, rather than because of it.  And, in my experience, if a parent is being negative about another parent one of two things tend to happen.  This is a gross generalisation, but the children can become totally alienated, totally aligned with the parent who is saying the negative things and take on board their attitudes and views, or there’s a risk for that parent – that the children will go in the other direction because they don’t cope well with hearing that negativity, so I don't feel – I don’t feel equipped to really make a comment on that.”

1. Having regard to Ms B’s evidence and also noting the mother’s evidence (so far as it is relevant to these issues) – I have come to the conclusion that the mother intentionally derailed the therapeutic counselling process.  Ms B had conducted 16 sessions with various members of this family.  But Ms B made the drastic decision to cease counselling.  I find as a fact that this occurred because of the mother’s interference, meddling and negativity.  The mother, it seems, is having a very difficult time in getting past her own personal negative opinion of the father.  The mother was seeking to prevent the father from having unsupervised time with [Z].  The mother’s actions in this regard were intentional.  The consequence of the mother’s actions was to completely derail the therapeutic counselling process.  The mother did not act in a child focused manner.

2. The father lacks insight in relation to the impact upon the family of his conduct during the course of the relationship.  On the other hand, the mother lacks insight into the damage she is doing to [Z] (and the older children) by her campaign to derail Ms B’s counselling and the mother’s ongoing negativity towards the father.

3. The family had sessions with Ms B between 9 July 2013 and 5 February 2014.

4. The mother had also taken the children to counselling at a place called “WAVSS”. Apparently this stands for, “Working Against Violence Support Services Inc”. This counselling service is situated at [omitted].  The subpoenaed material is contained in exhibit 1.  Only those particular pages that have been flagged (F1-F8 (flagged on behalf of the father) and M1-M3 (flagged on behalf of the mother)) form part of the actual exhibit.

5. At a counselling session on 18 June 2013 with [Z] – the counsellor – [Ms A] has noted (F6 part of exhibit 1):-

   “I asked ([Z]) to think about something that he is worried about or uncomfortable with when he’s at dads.  [Z] took a long time to answer and it was clear that his anxiety levels had risen.  He had tears in his eyes and his face was flushed.  Eventually he was able to identify that he doesn’t think that the house that dad takes him to has any hot water because their system blew up and [Z] doesn’t think that they have fixed it yet.”

6. The mother was present with the child during this session.  The mother’s evidence (from page 242 of the transcript) notes that the father was living in a campervan at the time.  The mother was cross-examined by counsel for the father (Mr Middleton) about this issue from page 242 at line 24:–

   “MR MIDDLETON: The house didn’t have hot water?

   MS HAYCOX: I can’t remember the exact wording of what [Z] said.  I’m sorry.

   MR MIDDLETON: Not dad flogs me.  Not dad yells at me.  None of that is in there.  Would you accept that?

   MS HAYCOX: Yes.  Absolutely.”

7. This evidence confirms my conclusion that [Z] feels safe and secure in his father’s house.  If his greatest fear (as at June 2013) was that there was no hot water at the father’s residence – then he really doesn’t have any great concerns at all.  I do note that at that time the father was living in a campervan.  He no longer lives in a campervan.

8. Of particular concern to the Court is the extreme anxiety suffered by the child as a result of the questioning by the counsellor.  The anxiety seems to have been heightened (I infer) by reason of the fact that the mother was present during the counselling session.  The mother had been prompting or urging the child to tell the counsellor about some of the matters that the child had apparently mentioned to the mother the previous evening.

9. The counsellor was not called as a witness at the trial.  I do not know the qualifications of the counsellor.  I do not know the surname of the counsellor.  All that the Court has been told is that her first name is, “Ms A”.

10. Further, the handwritten notes of the counsellor (Ms A – “Ms A”) of 19 August 2013 (F8 exhibit 1) referred to a disturbing incident.  The counsellor notes:-

    “To finish, ([Z]) decided he would like to do another burning ceremony.  He drew pictures of dad (with a beer can) and dad’s girlfriend [first name omitted] (with a cigarette).  He made the pictures look funny and having laughed about them he decided he didn’t need to say anything to them.  We took the pictures outside and burned them safely in a big saucepan.”

11. The first disturbing aspect in relation to this note of the counsellor is that this was clearly not the first time that there had been a “burning ceremony”.

12. No evidence was led at the trial to explain what possible benefit to the child there might be in burning an image of his father (and his father’s girlfriend).

13. The mother knew about the burning ceremony.  That is to say she knew about the burning of the image of the father.  The mother maintains that she did not know that the child had burned an image of the father’s partner.  The mother said that she was surprised when she heard that the child had burnt an image of his father.  The mother did not indicate whether or not she was aware that there had been more than one burning ceremony.  The mother was asked about this incident on 17 December 2014 by Mr Middleton (counsel on behalf of the father) at page 244 of the transcript:-

    “MR MIDDLETON: Did you at the time not see that those actions were potentially harmful to [Z] psychologically?  Did you not see that?

    MS HAYCOX: No, I didn’t.  No.

    MR MIDDLETON: Do you see it now?

    MS HAYCOX: No.  I don’t.”

14. Not only did the mother not see that it was potentially harmful to the child – the mother continued to take the child to see that counsellor.  He saw that same counsellor again on 26 August 2013.

15. The burning ceremony was at the suggestion of the counsellor.  The burning ceremonies occurred more than once.  One can only wonder at what possible harm or damage may have been caused to the child by allowing the child or encouraging the child to burn an image of his own father.  But this event does highlight – once again – the mother’s lack of insight.  Upon hearing of the burning ceremony of the image of the father – the mother did not immediately cease the counselling sessions between the child and the counsellor, “Ms A”.  The mother expressed “surprise” at the burning ceremony – not “alarm”, “distress”, or “worry”.  In addition, the mother did not (in August 2013) see that the burning of the father’s image was an event that was potentially harmful to [Z].  Even now, more than one year later when there’s been a good deal of unsupervised time between [Z] and the father and [Z] has come to no harm whatsoever – the mother still is not able to see that burning images of the father under the supervision of the counsellor in August 2013 was potentially harmful to [Z].

The Evidence of Ms L

1. Ms L first interviewed the family in May 2013.  Ms L’s first report is annexed to her affidavit filed 12 June 2013. 

2. From paragraph 8.11 – under the heading, “Conclusions and Recommendations” Ms L stated, inter alia:-

   “8.11 It would benefit them [X] and [Y] to be the subject of counselling until otherwise directed by a counsellor, such as Psychologist and Social Worker Ms B, with the parents sharing the costs in this regard.  If the counsellor was of the mind that reintroducing them to their father at some point would be in their best interest that would be a matter between the girls and the counsellor.  That could involve the father participating in sessions but at this stage it is unlikely the girls would agree to that.

   8.12 It would also benefit [Z] to participate in such counselling with each of the children seeing the counsellor individually particularly to empower [Z] to have his own views and to separate those from the dynamics around his sisters’ relationships with their father.

   8.13 [Z] presented as an anxious child who initially was negative and resistant in relation to the father.  He conceded though that he has concerns in relation to what is best for him in terms of time with this father and the positions of his sisters.  He was ambivalent about having time with his father and was confused about what regimes would be workable.  He is not of an age or sufficiently mature or emotionally adept to meaningfully appreciate or decide what is in his best interests.

   8.14 He warmed to his father once with him and slowly engaged with him and enjoyed an outing with him and the paternal grandparents.  Having some clarity and reassurance from his father that he would not take him from his mother assisted him to relax.  He presented as having difficulty sharing with his mother and sisters any happy experiences regarding his time with his father.

   …

   8.18 On the reports of both parents the father did suggest to the mother at the point of final separation in 2012 that she and the subject children relocate to live in Melbourne to have the support of the maternal grandmother in particular, as the mother has no family, friends or supportive network in Brisbane.  It was undisputed that the father changed his mind in this regard.

   8.19 However, the father did state during the interviews for the Family Report that he would reconsider relocation if he was confident that his relationships and time with the subject children and he and the mother relating more positively.

   8.20 The indications from the parents are that their relationship is unlikely to improve significantly.  The mother indicated significant personal compromise as a result of the relationship and would benefit from ongoing counselling in this regard, to which she agreed.  She also indicated that she has been able in the past to prioritise the children’s needs and that she would relate to the father to some degree for their best interests.

   8.21 The father indicated that he blames the mother for compromise in his relationships and time with the subject children.  The indications are that the father would also benefit from counselling around these issues.”

3. Both the mother and the father were advised that they should receive ongoing counselling.  I do not consider that either parent has properly followed that advice.  Both of these parents lack insight.

4. It is not sufficient for the parents to point to the counselling provided by Ms B.  That counselling was specifically directed to the question of a re-introduction – particularly of [X] and [Y] with the father.  The counselling from Ms B was specifically designed to assist the children in reconnecting with the father.  I do not consider that it was Ms B’s role to counsel the father and the mother in relation to their own individual adult issues.

5. As at May 2013 [Z] presented as “an anxious child who initially was negative and resistant in relation to the father.”  But Ms L noted that [Z] “warmed to his father once with him and slowly engaged with him and enjoyed an outing with him and the paternal grandparents.”  [Z] also “presented as having difficulties sharing with his mother and sisters any happy experiences regarding his time with his father.”

6. Ms L saw the family again in March 2014.  By that time Ms B had prepared a report (February 2014).

7. It is interesting to note that in her initial report (annexed to the affidavit filed in June 2013) Ms L had given support to the mother’s relocation with the children to Melbourne.  But by the time of the second report – and with the benefit of having had two sessions with the family and also having the benefit of Ms B’s report – Ms L had changed her recommendation.  Ms L no longer supported the mother’s proposal to relocate to Victoria.

8. Ms L stated from paragraph 7.1 – by way of recommendation:-

   “CONCLUSIONS AND RECOMMENDATIONS

   7.1 The aforementioned subject children, [X], [Y] and [Z] were presented to the interviews in a well cared for manner.  They appeared to be a closely bonded sibship and they were secure in the care of their mother.

   7.2 It is noted that this Updated Family Report should be read in conjunction with the previous Family Report prepared in this matter by this report writer as that report contains a comprehensive history of the background and issues which are still relevant in this matter.

   7.3 It is also noted that the report prepared by Psychologist/Social Worker, Ms B, outlines a number of issues and concerns which are consistent with issues raised in the previous Family Report.

   7.4 In particular, it is noted that there has been little or no progress made in this matter since the report prepared by this writer.

   7.5 In this regard, specifically the relationships between [X] and [Y] and their father have not progressed at all.  [X] and [Y] continue to be staunchly of the view that they will not have anything to do with their father and intervention by Ms B has not been able to assist this.

   7.6 [Z] continues to express concerns in relation to his relationship and communication and time with his father consistent with that outlined in the previous Family Report, despite the involvement of Ms B.

   7.7 In this regard, it is noted that there is an inconsistency in [Z]’s presentation when observed with his father by both Ms B and this report writer and his reports in relation to communication and time with his father.  In this regard, it is noted that [Z] warms to his father and enjoys time with him and he has also been observed in the context of this Family Report with his step mother and step sister who now reside with the father.

   7.8 To this extent, [Z] has presented as comfortable in the care of his father, step mother and his step sibling; and there were no concerns observed as a result of the process of the Family Report that would warrant him having supervised time or no time with them.

   7.9 [Z] has presented his views with regard to not wanting a relationship or communication and time with his father in a consistent manner though he has been unable to explain any specific reasons for wanting no communication or time with his father and/or his family.

   7.10 Similarly, when [Y] was interviewed she was unable to specify any particular reasons, especially since the previous Family Report, that would account for her not making any progress with regard to any communication or time with her father.  Similarly, [X] simply reiterated the concerns expressed previously.

   7.11 It is noted that the mother has consistently stated that she simply wants the best interests for the subject children and she will support whatever views they have.  She was observed during the process of the Family Report to encourage the subject children, particularly [Z], to express his views and to talk openly about enjoyment with his father and family if this was the case.

   7.12 It was of significant concern that [Z] simply shut down on return to his mother and sisters after time with his father and family particularly in relation to this time being positive.  [Z] was unable to acknowledge any positivity with regard to his father and family and refuted opportunities for positivity to be relayed to his mother and sisters, such as by way of a photo taken by the report writer during the observation which showed [Z] smiling and laughing when playing with his father.

   7.13 The indications are that [Z]’s primary difficulty at this juncture is being torn between the parties and being unable to transfer any information regarding either environment to the other.

   7.14 It is highly likely that if [Z] is feeling as torn as he is because his sisters will not have anything to do with their father and he does not want to upset his sisters and/or his mother.

   7.15 Whilst the mother has raised concerns as to the safety, both physically and emotionally in his father’s care, there has been no intervention by welfare or police authorities or any specific child protection concerns that would justify any claims that [Z] has been harmed or is likely to be harmed in his father’s care.

   7.16 The indications at this time are that [Z] should have increased time with his father, not decreased.  In this regard it is suggested that he spend alternate weekends with his father until Monday before school.

   7.17 With regard to the schooling issue, it is noted that all three children had been home schooled.

   7.18 [X] has essentially completed her schooling and is reportedly progressing well.  She presented in a confident manner.  She is now undertaking TAFE studies so this is no longer a concern with regard to her.

   7.19 It is suggested that as [X] is almost 16 years old that she not be the subject of future Court proceedings and/or Court Orders and that her wishes in relation to her father be respected.

   7.20 [Y] is completing the year 7 curriculum and [Z] the year 3 curriculum under the supervision of their mother and is reportedly progressing well.

   7.21 [Y] reportedly has special needs in particular, Asperger’s’ Spectrum Disorder, though she is not engaged with any formal interventions or professionals in this regard, other than the treating paediatrician.

   7.22 She is also so compromised emotionally and lacking in confidence it seems that she would need to be independently assessed by a Psychologist, such [Mr B], who is specialised in schooling to determine how her schooling needs should be best met.

   7.23 It is noted that [Y] is unlikely to move in relation to changing her views regarding her father and pushing this matter further at this point is a waste and stressful.  Her being subject to Court Orders now regarding communication and/or time with her father seems not useful.

   7.24 The father’s concerns with regard to [Z] being in formal school are noted and he has indicated that [Z] has said to him that he would enjoy being in school.  Certainly his step sister is and if they were to attend school together this would likely be comfortably facilitated from the point of view that [Z] would have his step sibling at the same school.

   7.25 The indications are that there would be benefits for [Z] in attending a formal school such as [S] School where he attended previously.  Certainly these would be possibly from an educational point of view, given that his mother is not a trained teacher; that there are no formal authorities involved in his education; and that he would have social and peer interactions and so forth.

   7.26 [Z] has no special needs.  He currently attends [sport omitted] training in a club situation and he is apparently coping with this.  He is a much more outgoing child it seems, certainly when in his father care than when observed when in his mother care and with his sisters.

   7.27 It is strongly suggested, therefore, that he be assessed by someone such as Psychologist, [Mr B] who specialises in schooling matters; and that consideration be given to him attending formal mainstream schooling.

   7.28 It is also suggested that both parents facilitate the schooling when [Z] is in their care and that if/when he commences formal school that handovers occur in this context.

   7.29 It is also strongly suggested that special days be shared such that the father has [Z] from Friday after school until Monday before school on Father’s Day weekends and that he also has him from 5.00pm Christmas Day until 5.00pm on Boxing Day each year for Christmas celebrations.

   7.30 It is also suggested that [Z]’s birthday be shared equally by the parents and that the time frames for this be specifically stated in Court Orders so that negotiation between the parents does not have to occur.

   7.31 It is suggested that school holidays for [Z] be equally shared between the parents from now; with handover times specifically stated from 10.00am on the day after school finishes until 10.00 am on the middle Saturday of the school holidays.

   7.32 It is also suggested though that the mother have the opportunity, to travel with the children overseas from end 2014 on an occasion for up to 6 consecutive weeks; and that the father sign passport applications in this regard as soon as possible.

   7.34 It is also suggested that any other travel undertaken by either of the parents, particularly the mother, overseas with [Z] occur during her holiday time with the children.

   7.35 It is suggested that the father have authorities to liaise with and obtain information in relation to the subject children from professionals involved with him and that he participates in appointments separately from the mother as he so desires and makes these arrangements for himself.

   7.36 Given the above suggestions, it is suggested that the mother not be able to relocate to Melbourne with the subject children.”

1. His Honour went on further to state from paragraph 27 of the decision in Mallahan & Mallahan [2010] FamCA 631:-

   “27. In my view, it remains the case that, as I said in the earlier decisions referred to:

   ● A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.

   ● A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.

   28. But, other matters there referred to must now be reconsidered.  In particular, while factual findings about best interests will drive many of the matters crucial to be considered in arriving, ultimately, at a decision about appropriate orders (for example, whether, in appropriate cases, the presumption of equal shared parental responsibility is rebutted), it is also in my view necessary to make distinct findings about reasonable practicability.

   29. Findings about best interests might be seen to have a predominant relationship with the child; findings about reasonable practicability might be seen to have a predominant relationship with the parents.  Writing in the Australian Law Journal after the decision in MRR, Dr Dickey QC has said:

   In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents.  The interests of the child do not override the interests of the parents; they have to co-exist with them.  The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.

   (Reflections on MRR v GR (2010) 84 ALJ 296)

   30. The court is bound to consider carefully the proposals of the parties but, in ultimately making parenting orders, is not bound by the parties’ proposals; an obligation exists to formulate (subject to procedural fairness considerations) orders considered to better meet the best interests of the subject children.  (See AMS v AIF (1999) 199 CLR 160;  U v U (2002) 211 CLR 238).  Section 65DAA, as it seems to me, legislatively endorses that approach.  The obligation created by the section is an obligation to consider the matters there enumerated - independent of the proposals of the parties – in circumstances where an order provides, or is to provide, for the parties to have equal shared parental responsibility.”

2. Murphy J has referred to the interaction between s.61DA and s.65DAA (on the one hand) and s.60CC on the other hand. His Honour has also specifically highlighted how it is that a Court is to consider – in the context of the various sections of the Act – a party’s proposal to relocate.

3. Having regard to the comments of Murphy J and noting the interplay of the various sections of the legislation when considering a relocation proposal – it is appropriate at this juncture to have regard to s.61DA and s.65DAA of the Act.

Section 61DA

1. In relation to the two older children, [X] and [Y] – the parties agree that there should be an order for sole parental responsibility. In relation to the child [Z] it is necessary for the Court to consider whether or not there should be an order for equal shared parental responsibility. Section 61DA of the Act states:-

   “Section 61DA

   Presumption of equal shared parental responsibility when making parenting orders

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

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

   (b) family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

2. I have come to the conclusion that the presumption does not apply in this case.  To start with, there has been family violence.  I have already made findings in that regard. 

3. In addition, there is evidence that the parents have not been able to communicate at any reasonable level.  I am hopeful there will be some improvement in communication in the future – with the assistance of Ms F.  But so far as matters stand at the moment – the level of communication is abysmal.  In those circumstances – the lack of communication and the high level of animosity between the parents is sufficient for the Court to conclude that it would not be in the best interests of [Z] for the parents to have equal shared parental responsibility in relation to his upbringing.

4. Mr Middleton of counsel on behalf of the father and Mr Shoebridge of counsel on behalf of the mother have conceded that there should be an order for sole parental responsibility in favour of the parent with whom [Z] will be residing predominantly. This is also supported by Mr Tolton, counsel on behalf of the Independent Children’s Lawyer.

5. Therefore, there will be no presumption of equal shared parental responsibility. Indeed, on any analysis, noting the lack of communication and the high level of animosity between the parents – it simply would not be in the child’s best interests for there to be shared parental responsibility (whether operating by way of a presumption or otherwise).

6. Section 65DAA is therefore not applicable. The two crucial subsections – s.65DAA(1) (dealing with equal time) and s.65DAA(2) (dealing with substantial and significant time) are only applicable if a parenting order is to provide, “that a child’s parents are to have equal shared parental responsibility for the child”.

7. Even if I am wrong in that assessment – there should not be an order for equal time.  It is not in the best interests of the child.  If both parents lived in Queensland it would be reasonably practicable.  If the mother lived in Victoria it would not be reasonably practicable.

8. In relation to substantial and significant time for the reasons that I have already stated herein – such an order would be in [Z]’s best interests and would be reasonably practicable provided both parents lived in Brisbane.  It would not be reasonably practicable if the mother lived in Victoria and the father lived in Queensland. 

9. In my view there is no need for the Court to provide any further reference at this stage to s.65DAA.

10. Murphy J in Mallahan (supra) continued further from paragraph 37:-

    “37. The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:

    ● First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;

    ● Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;

    ● Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;

    ● Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;

    ● If the presumption is rebutted and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA).  (As the Full Court put it in Goode, the enquiry about best interests is “at large”);

    ● If the presumption is not inapplicable or not rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:

    ○ Make findings as to whether the subject children’s best interests are best met by an order for equal time; and

    ○ Make findings as to the matters prescribed in s 65DAA(5), and, as a result;

    ○ Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and

    ○ If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;

    ● If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D;  s 60CA; s 65AA).”

11. The relevant dot point is, of course, the fourth dot point above from paragraph 37 from Murphy J’s decision.  In this case the presumption for equal shared parental responsibility is rebutted.  In addition, I have concluded that it is not otherwise appropriate.  There should not be an order made for shared parental responsibility between the parents.  Accordingly, the Court must “make findings about best interests relevant to a determination about what ultimate orders are in the best interests of these particular children in their particular circumstances…(as the Full Court put it in Goode, the inquiry about best interests is, “at large”)”.

12. That is the approach the Court has adopted in this particular case.

13. I have come to the conclusion that [Z]’s best interests will be served if he lives primarily with his mother.  That is because he is primarily attached to his mother.  But [Z] will be (on the evidence of Ms L – and supported by Ms B) better off if he can have a relationship with his father.  To put it another way – that is in [Z]’s best interests.   Because the mother does not support the child’s relationship with the father the only way to achieve this is to ensure that the child spends a significant amount of time each fortnight with the father.  The other alternative is for the child to live with the father – but I have come to the conclusion that in the particular circumstances of this family and this child ([Z]) it would cause too much upheaval for him to change his primary residence.  In this regard I note the opinion of Ms L from her second report that [Z] should live with the mother and spend alternate weekends with the father.  But Ms L’s evidence given at the trial made it clear that she had in mind an extended weekend and Ms L suggested five nights per fortnight.

14. All parties had an opportunity to be heard on that issue.  The Court accorded each party procedural fairness.

15. It was submitted on behalf of the mother that the Court was bound to accept one of the proposals put forward by the parties.  Either the father’s proposal that the child live primarily with him in Brisbane or the mother’s proposal that the child live primarily with her in Victoria.  In my view such a contention is not correct.  It does not accord with the explanation of the law relating to relocation cases post MRR as outlined by Murphy J in Mallahan (supra).  As His Honour noted in paragraph 39 of that decision the Court “must (subject to procedural fairness) formulate proposals, independent of the parties, consistent with findings about the children’s best interests.”  His Honour referred back to U v U (2002) 211 CLR 238.

16. I note that during the course of the evidence the mother stated that if the Court determined that [Z] should spend alternate weekends with the father or that [Z] should live with the father – the mother stated that she would not leave Queensland.  I do note that this is not a “proposal” by the mother.  However it is, to my mind, a piece of evidence which must be taken into account by the Court when balancing the various factors for consideration in determining the best interests of the child [Z].  By taking this piece of evidence into account by determining [Z]’s best interests – I do not consider that the Court is in any way acting contrary to any principle referred to by the Full Court in the recent decision of Jurchenko & Foster [2014] FamCAFC 127.

17. One of the decisive issues on best interests in this case is the fact, it seems to me, that the mother is not willing to support [Z]’s relationship with the father.  It seems to me to follow as a matter of logic that if the mother is permitted to relocate [Z]’s residence to Victoria – then the mother’s unwillingness to support [Z]’s relationship with the father will be compounded by the tyranny of distance.

18. The negativity in the mother’s household towards the father (emanating from the older sisters and the mother herself) can only be counteracted if the child sees the father on a very regular basis and for relatively significant periods of time.

19. In those circumstances, I have come to the conclusion that the best interests of [Z] will be served if he remains living in Brisbane and living primarily with his mother.  The child should spend five nights per fortnight with the father to commence from the commencement of the first school term in 2015. 

Education

1. It is apparent from the report of Ms S (annexed to an affidavit filed 17 October 2014) that the best interests of [Y] and [Z] will be served by their returning to be educated in the mainstream schooling system. 

2. Towards the conclusion of the trial (on day 3) the mother conceded that [Z] would commence school in 2015 in a mainstream school.  This is another example of the mother’s lack of insight.  Ms S’s independent report has been available for some time and the mother persisted throughout the trial (until towards the end of day 3) with the submission that [Z] should be home-schooled.  It is clearly not in [Z]’s best interests to be home-schooled.  I do not recall if there was any submission made on behalf of the mother concerning [Y].  [Y] should not be home-schooled either.

3. Insofar as the children’s education is concerned – one element to consider is the need for the children to spend significant time away from the mother.  If the children are educated at home by the mother then, of course, then that significantly restricts the amount of time that they could be spending elsewhere.  And I do note that whilst it is said that [X] is doing well – Ms S points out that [X] has had the benefit of a significant amount “of mainstream schooling compared to [Z] in particular and does not have the additional challenge that [Y] does in so far as the implications of ASD for reading and responding to social cues in accordance with societal norms.” 

4. I have also noted above that in paragraph 90 of her report Ms S has noted that [X] was “more cognitively mature at the time of her parents’ separation”.  That is another reason, of course, why I have placed significance upon [X]’s comments made to Ms L in the first and second family reports.

5. I have come to the conclusion that the submission made by Mr Shoebridge, counsel on behalf of the mother, is correct in relation to schooling.  Whilst the father wanted an order that [Z] attend [S] School (supported by the Independent Children’s Lawyer) I note that the mother lives some considerable distance away from [S] School in the suburb of [N].  I do not think it is reasonable to require the mother to move much closer to [S] School – notwithstanding the father’s offer to pay the private school fees at [S] School.  I referred earlier to the unusual and (I would say unfortunate) evidence on behalf of the father that he is not prepared to pay private school fess for [Z] at any other college.  In my view therefore the mother will have sole parental responsibility for [Z] – because as conceded by counsel for the father and counsel for the mother – as the primary resident parent the mother should have sole parental responsibility for [Z].  It is the mother who should decide [Z]’s school. 

Conclusion

1. Notwithstanding some of the father’s conduct during the relationship (as outlined above) the reality is (I find) that the child [Z] now does enjoy spending time with the father and has a good relationship with the father, his new partner Ms F and Ms F’s child [A].

2. It is the opinion of Ms L and Ms B (and I accept the opinion of both of those experts), that [Z]’s relationship with his father should be encouraged and facilitated.  Both of those experts have concluded that such an approach is in [Z]’s best interests.  I accept their opinions.  It is clearly in [Z]’s best interests for his time with his father to be increased, encouraged and facilitated.  This, of course, can only occur if the child [Z] is living in South-East Queensland.

3. The generally negative view of the father within the mother’s household really, essentially means that [Z]’s residence cannot be relocated away from South-East Queensland.  He needs to have significant exposure to the father and to the father’s household in order to counteract any negative views expressed within the mother’s household.

4. It is to be hoped that, with the assistance of counselling, [X], [Y] and the mother will be able to assist [Z] in his relationship with his father.

5. Further, and for their own benefit, [X] and [Y] really do need more significant therapeutic counselling to help them deal with their own issues in relation to the father.  These comments are not directed to [X] and [Y] being required to spend time with the father.  But for their own good in the long term they must be given every opportunity to properly and appropriately address these issues with an appropriate professional.

6. The orders will therefore provide for [X] and [Y] to live with the mother.  The mother will have sole parental responsibility for those children.  They will not be required to spend time with the father.

7. [Z] will also live with the mother.  [Z] will spend alternate weekends with the father from after school Wednesday until before school Monday.  Changeovers will take place at school (when it is school term).  I do note that both the father and the mother proposed block time of five nights per fortnight with the father if the Court concluded that the best interests of [Z] were served by [Z] being primarily with the mother in Brisbane.  I also note that the primary submission by the Independent Children’s Lawyer was for [Z] to live with the mother in Brisbane and spend five nights per fortnight with the father – as well as holiday time and other time.  The Independent Children’s Lawyer opposed the mother’s request for permission to relocate [Z]’s residence to Victoria.  Further, the Independent Children’s Lawyer did not support a change of residence to the father.

8. Communication between the mother’s household and the father’s household will be by email between the mother and Ms F.

9. It was imperative for this family that this matter be resolved finally prior to Christmas 2014.  It is essential because [Z] and [Y] will need to be enrolled in mainstream school.  It is a matter for the mother as to which school she decides enrol [Z] and [Y].

1. The Independent Children’s Lawyer should send to the Court proposed orders reflecting these Reasons for Judgment.  Prior to sending in those proposed final orders the Independent Children’s Lawyer should consult with the legal representatives for the mother and the father.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Howard

Associate: 

Date:  23 December 2014