Redican & Redican

FEDERAL CIRCUIT COURT OF AUSTRALIA
Redican & Redican [2021] FCCA 22

File number(s): NCC 1897 of 2019

Judgment of: JUDGE TERRY

Date of judgment: 19 January 2021

Catchwords: FAMILY LAW – parenting arrangements for children aged 13, 11 and 8 – mother proposing that the children live with her in Brisbane – father proposing that the children live in Town B either in a substantial and significant time arrangement if the mother also lives in Town B or with him if she does not - where the mother alleges that the father engaged in coercive and controlling violence during and after the relationship – where there is simply no sign of coercive and controlling family violence - where the ideal outcome would be for the parents to live near each other and for the children to spend substantial and significant time with each of their parents but where this outcome is not available because the mother is not willing to live in Town B and the father is not willing to relocate to Brisbane - where the children have a good relationship with the father and have all at different times expressed a preference to live in Town B - where the mother and her family are hostile to the father and where there is a risk of this either undermining the children’s relationship with the father or causing the children psychological harm if they live with the mother in Brisbane - where if a choice has to be made between the competing proposals it is in the children’s best interests to live with the father in Town B – where the presumption in s. 61DA applies and where it would not be in the children’s best interests for the presumption to be rebutted – parents to have equal shared parental responsibility for the children.

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 65DAC

Cases cited: Mickelson & Mickelson [2020] FCCA 2986

Number of paragraphs: 308

Dates of hearing: 9, 10, 11 and 19 November 2020

Place: Newcastle

Counsel for the Applicant, appearing on 9, 10 & 11 November 2020: Mr Brakell

Solicitor Advocate for the Applicant, appearing on 19 November 2020 Ms Dawson

Solicitor for the Applicant: Dawson & Co. Solicitors

Counsel for the Respondent: Ms Dart

Solicitor for the Respondent: Everingham Solomons Solicitors

ORDERS

NCC 1897 of 2019

BETWEEN:
MS REDICAN
Applicant

AND:
MR REDICAN

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

19 JANUARY 2021

THE COURT ORDERS THAT:
1.All previous parenting orders concerning X born in 2007, Y born in 2009 and Z born in 2012 (“the children”) are discharged.
2.The mother and father shall have equal shared parental responsibility for the children.
3.The children shall live with the father.
4.The children shall spend time with the mother:
During the school terms:
(a)On any weekend during the school term which coincides with Friday or Monday being a public holiday or a pupil free day for all 3 children, with such time to be exercised in Brisbane (or such other location nominated by the mother). In the event that the mother nominates to exercise such time in Brisbane, the father will deliver the children to and collect the children from C Street, Suburb D QLD at the commencement and conclusion of such time.
(b)In Town B on the weekends following the conclusion of Week 1, Week 5 and Week 9 if the mother travels to Town B. To facilitate such time the mother will collect the children from school at the commencement of such time and return the children to school at the conclusion of such time, NOTING THAT the mother may extend the period that the children are in her care during such periods to periods of up to 7 days on each occasion upon 7 days written notice to the father.

During the school holidays following the conclusion of terms 1, 2 and 3:
(c)From 10.00am on Saturday following the last day of the school term for a period of 10 nights, with the mother to collect the children from the father's place of residence at the commencement of time and the father shall collect the children from C Street, Suburb D QLD at the conclusion of such time.

During the school holidays following the conclusion of term 4:
(d)With the mother from 2.00pm on the day which is the midpoint of the school holiday period to the first day that the children attend school for the new school year commencing from the holiday periods following the end of term 4 in 2021 and each alternate year thereafter;
(e)With the mother from the last day of school to 2.00pm on the day which is the midpoint of the school holiday periods commencing in 2022 and each alternate year thereafter:
(i)The midpoint of the school holiday period is calculated from the last day that the children attend school for the year to the first day that they attend school for the new year:

(f)If there are an uneven number of days in the school holiday period the children shall spend an additional day with the mother;
(g)The mother shall collect the children from the father's place of residence at the commencement of time and the father shall collect the children from C Street, Suburb D QLD at the conclusion of such time.
(h)The mother shall also spend time with the children at such additional or alternate time agreed between the parties.

5.Communication
(a)The parties are to facilitate any reasonable request for the children to communicate with either parent at any reasonable time of their choosing.
(b)The children shall communicate with the mother each Sunday, Tuesday and Thursday between 8.00pm and 8.30pm with the mother to initiate the call.
(c)The children shall communicate with the parent whose care they are not in on a special occasion (such as the parents' birthday, Easter Sunday, and Christmas Day) from 8.00am to 8.30am with the parent whose care they are in to initiate the call.
(d)Such communication shall be by way of telephone, FaceTime or other video call as nominated by the parent initiating the call from time to time.

6.Each party to keep the other party advised of their email address, telephone contact number and mobile telephone number and notify the other of any change to situation.
7.In the event that the children have been admitted to hospital or consulting a doctor in hospital either case or in an emergency, accident, illness or otherwise the father/mother shall as soon as possible notify the other of such admission or illness.
8.Neither party shall denigrate the other/or members of their family or friends, in the presence of the children nor permit any other person to do so.
9.Neither party shall discuss any court proceedings involved with the other in the presence of the children nor permit any person to do so.
10.The mother and father shall:
(a)Keep each other informed of all matters concerning the health of the children including names of medical practitioners and health professionals who attend the children from time to time and shall authorise such persons to provide each other with such information that may be sought by each parent from time to time and the father and the mother shall be hereby authorised to seek such information:
(b)Keep each other informed with the children's current school or proposals of changes of schools and authorise the principals of such schools to provide each other with such information concerning the children as may be requested by each parent from time to time and each parent shall be hereby authorised to receive that information;

11.Both parents shall be at liberty to attend any school, sport and/or extracurricular activity which the children or any of them may be involved in from time to time and to attend irrespective of whose care the children may be in that day.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Redican & Redican is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY:
Introduction

These are parenting proceedings concerning X, shortly to turn 14, Y, even more shortly to turn 12 and Z who is 9.
The children live with their mother in Brisbane pursuant to interim orders made in August 2019. Prior to that the parents both lived in Town B and the children were living in an informal substantial and significant time arrangement.
The principal issue in dispute is whether the children should remain with the mother in Brisbane or should live with the father in Town B.
It is a no win situation for the children. They have at various times expressed a preference to be in Town B, but they would also prefer to spend frequent time with each of their parents. That package is not available to them, because Town B is over seven hours from Brisbane and neither parent is willing or able to live in the other parent’s preferred location.
The mother proposed that the children live with her and spend time with the father every third weekend from Friday to Sunday during school terms in the Brisbane/Town E region, for the first half of the Term 1 & 3 school holidays, the whole of the Term 2 school holidays and from the first Monday after the youngest child’s school term finished at the end of Term 4 until 4 January the following year.
The mother proposed that she have sole parental responsibility for all matters concerning the residence, education and medical needs of the children and that parental responsibility otherwise be shared.
It was the mother’s case that the father perpetrated coercive and controlling violence during the relationship and that this continued. She said that his attempts to control her had sapped her confidence, undermined her parenting capacity and impacted on her mental health and that his manipulative, controlling behaviour compromised the children’s wellbeing.
At the time of the family report interviews the mother was proposing that the children spend only supervised time with the father. The family report writer noted that the children had a close relationship with the father and did not support this, and at trial the mother proposed that the children spend time with the father as outlined above.
It was the mother’s case that no weight should be place on any wish the children expressed to live in Town B because it arose from manipulation by the father.
The father proposed that the children live in Town B. He proposed that if the mother returned to live in Town B (which when the trial commenced he believed she intended to do if the children lived in Town B) the children live with her and spend five nights per fortnight during school terms and half of the school holidays with him.
He proposed that if the mother did not return to Town B the children live with him and spend time with the mother in Brisbane if there was a long weekend during school terms, in Town B on up to three occasions each term, for the weekend and for up to seven days if the mother proposed it, for ten nights during the Term 1, 2 and 3 school holidays and for half of the Christmas school holidays.
The father sought an order for equal shared parental responsibility.
The father denied engaging in coercive and controlling family violence. He said that it was the mother who had always been in control. He told the family report writer that she was “an assertive, dominant and headstrong woman…who had always “called the shots in the family.”[1]
[1] Family Report paragraph 55
The father said that on most occasions he had gone along with her decisions but he could not go along with her decision for the children to live permanently in Brisbane, both because it was not what they wanted and because of the mother’s attitude to him. She was so hostile to him that if the children remained living with her either their relationship with him would be undermined or they would suffer emotional harm as a result of struggling to reconcile their love and affection for him with the mother’s view that he had no strengths whatsoever as a parent.
The father acknowledged that there was a possibility that the children would not settle when the reality of their new living arrangements sank in, but his counsel submitted that the father was an empathic parent and that of the two parents he was the one most likely to deal appropriately with the situation if any of the children expressed a wish to change their living arrangements.
The evidence
The mother relied on her Amended Initiating Application filed on 18 August 2019, her affidavit filed on 31 October 2020 and the affidavits of her brother Mr F and her psychologist Dr G filed on 31 October 2020.
The father relied on his Amended Response filed on 2 November 2020 and his affidavit filed on the same day.
A Family Report was prepared by Ms H, a Family Consultant and it was released to the parties on 13 December 2019. Ms H also conducted a Child Inclusive Child Dispute Conference on 19 September 2019 and asked in her report that the Memorandum she prepared following that conference be read with the report.
Dr G was not required for cross-examination but the other witnesses were cross-examined.
Both parties prepared a tender bundle. As discussed during submissions there was overlap between the content of the bundles but I have had regard to the contents, which mainly contain the children’s counselling and school records.
Background
The mother and father met in 1999 when they were 26 and 31 respectively. The father was living in Sydney and the mother in Brisbane. They formed a relationship and in due course decided to engage in a joint venture to operate the J Company. They commenced living in Town B in 2000 and married in 2002.
The parties have three children: X born in 2007, Y born in 2009 and Z born in 2012.
The parties purchased a home in Town B which was about 100 metres from the J Company and they worked together in the J Company until X was born. The mother was thereafter the children’s primary carer although she continued to work in the business. The father worked full time in the J Company throughout the relationship.
The mother created the impression in her affidavit that she was required to work non-stop looking after the children and in the J Company with no assistance from anyone. The father gave unchallenged evidence about things he did in the home including cleaning, yard work, shopping for groceries, running errands and reading to the children and putting them to bed. He also gave evidence about the fact that from the time of X’s birth the parties had a baby sitter to assist with the children one or two days a week.
I accept that the mother was the children’s primary carer but I also accept that the father was more involved with the children and the home than the mother was willing to concede. The strong and positive relationship between the father and the children, which was evidenced in their K Counselling Centre counselling notes and at the family report interviews, is unlikely to be the result of the father only spending time with the children since separation.
The parties made frequent trips to Queensland throughout their marriage. The mother grew up in Brisbane and her parents and two of her brothers still live there and the father’s family live in Town E. After the children were born the parties usually had a two week holiday in Suburb L in January and July each year and they would also spend time with the mother’s family in Brisbane and the father’s family in Town E.
In July 2018 the parties had their usual holiday in Suburb L. Shortly after they returned the mother told the father that she wanted some space. She would have liked the father to move out but he was hopeful that the marriage could be saved and he did not immediately do so. However he moved out on 26 October 2018 and went to live in the J Company.
After separation the children lived in the former matrimonial home with the mother and spent time with the father. The father said that the children spent time with him at the J Company on weekends but moved around a lot between the parents. He said that he also had Y and Z in his care after sports on Wednesday. The mother did not provide any detail about the time the children spent with the father.
Text message exchanges attached to the father’s affidavit show the parents co-operatively parenting the children at this time, but unbeknown to the father the mother was telling others that he was a perpetrator of family violence. In November 2018 she arranged for the children to see a counsellor at K Counselling Centre in Town M. The Counsellors notes record that they were informed that “X’s Dad was very controlling and was emotionally and physically violent toward his family.”
The father said and I accept that he did not find out about the counselling until the following year, when X told him when they were driving past K Counselling Centre that he was seeing a counsellor there.
X was due to start high school in 2019. The parties had previously discussed him attending high school in Town B.
In early January 2020 the mother informed the father that she had enrolled X as a boarder at N School in Town M. The father did not immediately understand that the mother intended that X would start at School N in 2019 and when he rang School N to make inquiries about the enrolment he was told that they could not talk to him about X’s enrolment, which is not surprising as the mother had not included any information about him on the enrolment form.
Later in January X told him that he had been accepted as a boarder at School N to start immediately and wanted to attend. The father was not happy about X going to boarding school at that age but when X said that he wanted to go he did not stand in the way of it and X started at School N at the beginning of the 2019 school year.
X sometimes came home on weekends and there is evidence of the father driving to Town M to take him out on other weekends and to participate in his football matches. Y and Z continued to spend time with the father as they had been doing.
The parties agreed that the children would spend the first week of the mid-year school holidays in 2019 with the father at Suburb L. The mother travelled to Brisbane while the father and the children were at Suburb L and at the end of the holiday the father delivered the children to the mother in Brisbane and returned to Town B.
On 20 July 2020 the father received an email from the mother’s solicitor informing him that the mother had been diagnosed with cancer and was receiving treatment in Brisbane. The email said as follows:
We are instructed:-
1.   Our client is undergoing a surgical procedure in Brisbane now and won’t be returning to Town B until further notice;
2.   Accordingly, the children are not returning to Town B tomorrow as previously planned and the children will not be at school on Monday, the schools have been advised accordingly;
3.   The timeframe for our client and the children’s return to Town B is not yet known.
Accordingly, our client won’t be able to facilitate your time with the children tomorrow as previously planned. [2]
[2] Mother’s affidavit Annexure G.
On 28 July 2019 the father was served with an application for parenting orders which the mother had filed in the Federal Circuit Court on 23 June 2019. In that application the mother proposed that the children live with her and spend no time with the father, although she indicated that she might amend her proposal depending on the recommendations in a family report.
On 30 July 2019 the mother sent an email to School N advising them that X would be staying with her in Brisbane for the remainder of the year. She said as follows:
It is my intention, once I have been given clearance by my oncologist that I return to Town B and X return to continue his education with School N….X has also made it quite clear that he wishes to return and continue his education with School N.

On 8 August 2019 the mother enrolled X in O School in Brisbane and at or about the same time she enrolled Y and Z in P School in Brisbane. She made no attempt to discuss these enrolments with the father and she left blank on each of the enrolment forms the section requesting information about the children’s father.
There were discussions between solicitors about interim parenting arrangements and the father indicated that he was willing to agree to the children remaining with the mother in Brisbane provided she returned by January 2020. In response the mother’s solicitor sent the father’s solicitor a letter dated 9 August 2019 in which she said as follows:
Regrettably our client can’t commit to her and the children returning to Town B to live by January 2020. Our client has stage 3 Cancer. She commences chemotherapy on 26 August 2019 for a period of 6 months, meaning she would complete her treatment in about March 2020 due to follow up post-chemotherapy testing. Our client cannot control what will happen over the coming months and into the New Year. But she had indicated she wishes to return to live in Town B where she has built her life until now.[3]
[3] Mother’s affidavit Annexure L.
On the basis of the mother’s assertion that she intended to return to Town B once her treatment was completed the father consented to the children remaining in Brisbane with her and on 19 August 2019 interim parenting orders were made which provided for the children to live with the mother and spend time with the father each alternate weekend during school terms from 5.00pm on Friday to 3.00pm on Sunday, which required the father to travel to Brisbane, and for half of the school holidays.
On 19 September 2019 the parties and the children took part in a Child Inclusive Child Dispute Conference in Brisbane conducted by Ms H, a family consultant employed in the Brisbane Registry.
At that conference the mother maintained that she had been a victim of coercive and controlling family violence perpetrated by the father. Ms H recommended the preparation of an urgent family report. An order was made for that to occur and Ms H conducted interviews for the report on 25 November 2019.
At the family report interviews the mother informed Ms H that she had changed her plans and intended to remain in Brisbane with the children once her treatment was completed. The family report writer conveyed this information to the father.
The report was released on 13 December 2019. The report writer recommended that the children live with the mother and spend unsupervised time with the father.
The parties could not reach any agreement following the release of the report and in due course the matter was listed for trial.
Between September 2019 and August 2020 the father spent time with the children in accordance with the interim orders save for a period around the start of the pandemic which coincided with the Term 1 school holidays in 2020. During term time that took place by him collecting the children from Brisbane and spending time with them at Town E, the Region Q or the Region R. The children spent time with him in Town B during the school holidays at the end of 2019 and the mid-year school holidays in 2020.
On 9 August 2020 Queensland closed its border to NSW residents. The border was still closed at the time of trial and the father was having only telephone communication with the children.
The mother’s circumstances
When the mother first went to Brisbane she lived with her parents but at the time of trial she was living in rented accommodation in Suburb S. She is working part time as a health care worker.
The mother’s cancer is in remission. However she has been diagnosed with a medical condition which requires ongoing treatment and management.
The parties settled their property matter not long before the parenting hearing commenced. The consent orders provided for the mother to retain the former matrimonial home in Town B and the father to retain the J Company. The mother was to receive a cash sum and the father was obliged to refinance some business loans.
The mother signed a twelve month lease on the former matrimonial home in June 2020 and at trial she said that she had no present plans to sell it.
The mother intends to remain living in Brisbane. She is happy there. Her parents and two of her brothers live there, she has friends of long standing there and she has been able to obtain a job which utilises her qualifications.
The mother perceives many advantages for the children in remaining in Brisbane. It was her case that they would have better educational opportunities and that there were a better range of extra-curricular activities on offer.
The mother was very clear at trial that she would not under any circumstances return to live in Town B. She said that living in Town B would have a deleterious effect on her mental health and that she could not again subject herself to living in the same town as the father who continued to perpetrate coercive and controlling family violence.
It was also the mother’s case that this would also be detrimental for the children, because it would mean that they spent too much time with a man who manipulated, controlled and emotionally abused them.
The father’s circumstances
The father is living in a rented 3 bedroom home in Town B. Z and X share a room when they visit the father and Y has her own room. The home is a two minute drive from the J Company and a four minute drive from School T and School U where the father proposes the children attend school if they live in Town B.
When they lived in Town B the children were doing a range of extra-curricular activities including sports and hobbies. The father said that they would be able to resume those activities if they returned to Town B.
The father continues to work full time in the J Company but was confident that he could make appropriate arrangements for the day to day care of the children if they lived in Town B.
It was put to the father by the mother’s counsel during cross-examination that he could move to Brisbane if he wished, and in submissions the mother’s solicitor said that if he did so he could participate more readily in the children’s school and extra-curricular events. However the father said that he could not move to Brisbane or to somewhere in that vicinity. He said that he could only do so if he sold the J Company and that was not readily achievable for the right price at present.
I have no reason to believe that the J Company could be easily sold or that the father could relocate and easily obtain employment in the Brisbane area, and the suggestion by the mother’s counsel during cross examination and by the mother’s solicitor in submissions that he should consider doing so rather than trying to force the mother to return to Town B is curious. It is antithetical to the mother’s case to suggest that she would welcome the father being close at hand, spending frequent time with the children, visiting their schools and being present at their extra-curricular activities.[4]
[4] See for example Family Report paragraphs 27 & 32 and see also Exhibit 19 to the father’s affidavit which is a letter sent by the mother’s solicitor to the father’s solicitor on 2 June 2019.
The children’s best interests
Any orders I make about the children must be determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the children’s best interests.
S. 60CC (2) contains the primary considerations which are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
S. 60CC (3) contains the additional considerations. I often start by making findings about them because those findings inform the findings I make about the s. 60CC (2) matters and I intend to do that in this case.
The first of the additional considerations is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) which the court thinks are relevant to the weight it should give to the children’s views.
The father said that when he was taking the children back to the mother after they had spent time with him they all asked him about returning to Town B.
He said that during a telephone call with Z on 21 April 2020 Z told him that he could not wait to get back to Town B and requested the father to come and pick him up. He said that Z told him that he wanted to go to school in Town B with his old friends and did not like school in Brisbane. The father said that Z had said something similar on at least 10 occasions since August 2019.
He said that on 8 October 2020 during a conversation with Y she told him that she was confused about why they had to be in Brisbane with the mother when they could be at home with the father in Town B.
I accept the father’s evidence that those things were said but I cannot put weight on them. They might express a true and unwavering wish but they might also be things said in the moment or things said to please a parent.
There is however other evidence about the children’s views.
The children were interviewed by the family report writer in November 2019. X was positive about both his parents and told the report writer that he wanted to spend equal time with them. Later in his interview he said that he:
…. missed spending more time with his father, and, that he wanted to “Make it (the time he spends with his mother and father) a bit even”.[5]
[5] Family Report paragraph 82.
X discussed the options of attending boarding school at School N or attending School T in Town B and the family report writer went on to say as follows:
X did “Not want to think about” living permanently in Brisbane. He wants to live in Town B. “Brisbane has always been a holiday destination to me. It’s not my home. It will be sad to stay here and not go back to where my mates are (and) the house I grew up in”. [6]
[6] Family Report paragraph 84.
Y was positive about both her parents and her views are best encapsulated in the following passage from the family report:
About Town B, Y told me she missed School U; her friends and teachers. She missed going to the local pool and also missed spending more time with her father. Y told me that she would miss her friends, cousins and other family in Brisbane if she went back to live in Town B. Y volunteered “I wouldn’t like” to live permanently in Brisbane.
When exploring possible living arrangements with Y, she thought spending weekends with her father was “Not fair on dad and I would miss him”. She thought living a week with her mother and then a week with her father would be “Good. I will miss them both but I know that I would see them again in a week”.[7]
[7] Family Report paragraph 95 & 96.
Z spoke positively about both his parents and the family report writer said as follows:
Z explained that they moved to Brisbane so that his mother could get treatment for her cancer. He told me she has “Five more bottles” of chemotherapy left. Z thought that “We’ll go back to Town B” when his mother finished her chemotherapy treatment.
Z told me he would feel “Pretty sad” if he lived in Brisbane permanently. Z told me that he would be “Happy” to go back to their old living arrangement, which was to live a week with his mother and then a week with his father in Town B.[8]
[8] Family Report paragraph 106 & 107.
The family report writer said as follows about the children’s views:
Due to my opinion that the father has involved the children in the parenting dispute and played upon their loyalties to him I do not consider that their wishes should be accorded significant weight. This would also be the case if the Court finds that the children have been exposed to coercive controlling violence as described by the mother.[9]
[9] Family Report paragraph 126.
I will consider later in the judgement whether the children have been exposed to coercive controlling violence but there is no foundation for the opinion of the family report writer that the father had involved the children in the parenting dispute and played upon their loyalties to him.
The family report writer did not explain why she came to that view, but trying to fathom it out, there is nothing to suggest that the father had worked on the children to get them to say that they would prefer to live in Town B. Why would he have, when up to the date of the interviews it was common ground that they would be returning to Town B once the mother’s treatment was finished?
There is also nothing to suggest that the father had played upon the children’s loyalties to him to make them say that they wanted week about or for time to be “more even.” Those views are consistent with the good relationship the family report writer observed between the father and the children and the things the children repeatedly said to their counsellor at K Counselling Centre in 2019 and indeed in 2020.
The mother arranged this counselling (she said at the suggestion of the school but nevertheless she arranged it) without the father’s knowledge. She gave the counsellor her version of what had happened during the relationship and the counsellor debriefed with her after the sessions. Some of the counsellor’s notes suggest that the counsellor tried hard to obtain information from the children about concerns raised by the mother.
Nevertheless the children said nothing to the counsellor which suggested that the father was manipulating or pressuring them about anything.
X did not express any concern about spending time with his father. He was often not very forthcoming with the counsellor even when she “probed/pushed him a little.” When she directly asked him on 11 June 2019 “how he was coping with the back and forth between mum and dad“ he said “fine”, “good” and “no problems”.
In a telephone interview with X in February 2020 he told the counsellor that he was enjoying Brisbane but would love to be in Town B and missed Town B. He said that he liked seeing both parents and spending time with both parents.
During interviews with the counsellor in March 2019 Y said that she worried about and missed Mum when at Dad’s and did the opposite when at Mum’s. On 12 April 2019 she said that it was difficult living between Mum and Dad’s as she missed both parents.
On 14 October 2019 during a telephone call with the counsellor she said that she was anxious about her living arrangements and that she had made some friends but missed her friends in Town B.
On 20 February 2020 she told the counsellor that she had liked seeing both parents during the holidays and missed her Mum a lot when away for 4 weeks.
Z told the counsellor in February 2019 that it was upsetting that his parents were not together and that he was spending time with both parents.
On 30 April 2019 he said that he was sometimes excited about seeing Dad and then at other times would rather stay at Mum’s and vice versa.
On 8 May 2019 he said that things were fine and he enjoyed spending time with Mum and Dad equally and was missing X who was then at boarding school.
On 29 November 2019 in a telephone call with the counsellor he said that he liked seeing both parents and enjoyed spending time with both parents a lot, and he said something very similar on 21 February 2020.
X and Y have occasionally said things which suggest that they feel sorry for the father and perhaps this underpinned the family report writer’s opinion that the father was involving them in the parenting dispute. X felt the father was unfairly treated at separation in having to move out of the former matrimonial home. X and Y were both of the view (correctly) that the father would have liked the parents to be back together. However they are older children who might be expected to form views about how their parents are feeling and to feel sympathy for their parents. What is conspicuously missing from the evidence is any suggestion the father played on that to get the children on his side, let alone to try and turn them against their mother.
There is some more recent evidence about the children’s views. On 21 July 2020 the mother sent an email to the counsellor who was seeing Y and Z. She said that the children had spent the first ten days of the holidays with the father in Town B. She said that the first week back they were fine but in the second week:
I had all three children saying they wanted go back to school in Town B.
The mother told the counsellor that the father had organised for them to spend a whole day at their old school in Town B. She also said that Y had begun saying that she didn’t like the water in Brisbane and that Town B water was better.
When Mr F was asked about the children’s wishes in cross-examination in November 2020 he said as follows:
X has said a few time lately “I want to move back to Town B.”
I will return later to the issue of family violence but I do not accept that the children’s views should be given no weight, and the evidence about their views supports findings that:
(1)They have no difficulty with Town B as a place.
(2)They have consistently expressed a wish to live there rather than in Brisbane.
(3)They miss their father and have no problem with spending substantial and significant time with him.
(4)They also wish to spend substantial and significant time with their mother and miss her when they are not with her.
What is missing however is any evidence about the children’s views concerning the issue in dispute at trial, namely whether they would should live with the mother in Brisbane or the father in Town B.
Neither party suggested that further information about the children’s views should be obtained before the case was decided, and given that they have a good relationship with both of their parents and that they miss one when they are with the other, seeking their views about this issue could well have been unfair to them and might have been unproductive.
I must consider the nature of the children’s relationship with each of their parents and any other persons such as grandparents of the children.
The family report writer observed a very similar interaction between the children and each of their parents.
She commented that the mother was appropriate with the children. She said that they were excited to see her after spending time with their father and that X approached the mother and gave her a hug. She said that the mother divided her time between the children.
She commented that the father was appropriate with the children. She said that they were excited to see him and gave him a hug and that Z was openly affectionate with the father, for example putting his arm around the father’s neck. She said that the father divided himself between the children.
The family report writer noted in her report that the mother had always been the children’s primary carer and that this was an important consideration in deciding where the children should live, but in terms of their observed and stated attachments at the family report interviews and during the counselling sessions there is nothing to choose between the parents.
The children spent time regularly with the mother’s family during holidays prior to the parties separating and have spent more frequent time with them since they have been living in Brisbane. No issue of concern was raised during the proceedings about the nature of those relationships from the children’s perspective. No issues were raised about the nature of the children’s relationship with the father’s family.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children, and to spend time with and communicate with the children.
The mother has taken every opportunity to make decisions for the children, spend time with them and communicate with them.

The mother has sidelined the father in terms of decision making about major long term issues for the children since separation and he has let that slide but he has made a considerable effort to spend time with the children. He spent time with them regularly when they lived in Town B. After X started at School N he would go to Town M on Sunday when X did not come home on the weekend to take him for a drive and out for lunch. When X began playing football on Friday evening the father drove to Town M to pick him up and take him to the match, help with the pre-game organisation and watch the match. He took the children on the holiday to Suburb L in July 2019.
Since interim orders were made in August 2019 the father has travelled to Queensland each alternate weekend and spent the weekend with the children in Town E or on the Region Q or the Region R. This involves him leaving Town B at Thursday lunchtime and returning to Town B on Sunday afternoon. The children also spent time in Town B for 26 days in the Term 4 2019 school holidays and a week in the Term 2 school holidays.
The border closure arising out of the COVID 19 crisis meant that at the time of trial in November 2020 the father had not seen the children since 9 August 2020 but he has always been reliable in communicating with them at the times provided for in the court orders.
I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father is paying $3,130.00 per month child support pursuant to a private child support agreement. The mother said that this was grossly inadequate because the children’s school fees vastly exceeded this amount and she also had to meet living costs and the costs of uniforms and all the ancillary expenses in relation to their school attendance.
I cannot make an adverse finding against the father in this regard for two reasons. One is that the mother chose the children’s school without any consultation with him and the other is that there is no evidence of her asking him to contribute to the fees. She did seek an order in these proceedings for him to do so but it was not in proper form, in other words, a departure application, and that is not the fault of either the court or the father.
I must consider the likely effect of any changes in the children’s circumstances, including the likely effect of any separation from either of their parents or any other child or children with whom he or she has been living.
The children will have to adjust to a change no matter order I make. They will either live in Brisbane and all prospect of them returning to Town B will be extinguished, or they will live in Town B, with the father and at a distance from the mother.
The mother said that it would be beneficial for the children to live in Brisbane because it offered better educational opportunities and a better range of extra-curricular activities. However there is no evidence which would allow me to compare the alternatives and find that one is better than the other and it really comes down to perception and personal preference.
The mother was brought up in Brisbane, a city. It is her preference to live there and she considers its schools and extra-curricular options to be superior. The children were brought up in the country. They were being appropriately educated and were doing a range of extra-curricular activities in Town B and this can occur again in the future.
The mother said that it would be detrimental for the children to live with the father because he was a perpetrator of family violence and negatively influenced and controlled the children and that it would be beneficial for the children to remain in Brisbane because the father’s opportunities to do those things would be limited. I will not be able to make a finding about this until I make a finding about the family violence allegations.
The father said that a change which saw the children living with him in Town B would be beneficial because the children would be living where they preferred to be and he would appropriately parent them.
He would ideally like the children to be able to spend frequent time with both of their parents, but he said that it would be detrimental for the children to remain with the mother in Brisbane because she did not support the children’s relationship with him and their relationship with him could be undermined if they continued to live at a distance from him.
I cannot make a finding about this either until I make further findings about the s. 60CC (3) matters and about the s. 60CC (2) matters and I will have to consider the likely effect of a change in the children’s circumstances as part of my final determination.
It is relevant to note however that the children are going to face an adjustment no matter what decision I make, and the capacity of each parent to be empathic to the children and take appropriate steps to assist them if they are distressed and upset about the change is a relevant consideration.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Town B and Brisbane are over seven hours driving distance apart. This is too much travel for the children on an ordinary weekend and neither parent proposed it. The father did propose that if the children lived with him he would bring them to Brisbane during the term if it was a long weekend. The mother proposed that if the children lived with her the father spend time with them every third weekend provided that the father did the travelling.
The amount of time the children are able to spend with each parent will be more limited than it would be if they all lived in the same town but that arises from the parent’s choices about where they wish to live and I cannot change it by any orders I make.
I must consider the capacity of each parent and any other relevant person to provide for the needs of the children including their intellectual and emotional needs.
The mother
The mother provides well for the children’s day to day and intellectual needs. They are properly fed, dressed and housed, they are being properly educated and the mother has engaged them in extracurricular activities.
Around the time of separation the mother had some problems with X’s behaviour. She had an argument with him when she was driving in the Region W with the children. She made X get out of the car and then drove off. Y and X told the father about this incident which X said he found quite frightening.
Y told the father that the mother went into X’s room that evening and hit him with a wooden spoon. The mother denied that but I am satisfied that the father is accurately recounting what he was told.
X became angry with the mother on the day of separation. The mother said that he physically attacked her. The father said that he shaped up to her but did not physically attack her. Whatever occurred it was rapidly defused by the parents.
Later in 2018 the mother engaged X in counselling and he commenced boarding school in early 2019. His behaviour has settled and there were no reports of any recent or ongoing issues between X and the mother.
The mother was diagnosed with cancer in mid-2019. She underwent treatment and is in remission. She has been diagnosed with a medical condition which requires ongoing treatment and management but she is dealing with that appropriately. Her physical health issues do not impact on her parenting capacity.
The mother has had some mental health issues. In November 2018 she was referred to Dr G, a clinical psychologist, under a mental health plan from her GP who opined that she had Generalised Anxiety Disorder and Dr G said that she had symptoms consistent with that diagnosis.
Dr G first saw the mother in Town M in January 2019. She has since had 23 sessions with her, conducted via Telehealth since the mother has been in Brisbane.
Dr G said that when she first saw the mother she presented as “restless and on edge, fatigue, muscle tension, disturbance with daily functionality.”
It is the mother’s case that the issues with her mental health arise out of her being a victim of family violence. She told Dr G that she felt controlled in her relationship with the father and said that:
The anxiety was an expression of losing her identity within that relationship. Ms Redican also expressed fear related to her husband as to potential consequences should she separate from the relationship.[10]
[10] Dr G affidavit paragraph 6 sub-paragraph 5.
The father expressed a concern about the mother’s mental health to the family report writer and expressed concern about how she reacted to stress. He mentioned the maternal grandmother’s illness and legal action against AA in respect of the J Company as stressors.
In final submissions the mother’s solicitor said that Dr G was of the view that the mother was a victim of family violence, which if true would validate the mother’s view about the reason for her mental health issues. However that is not correct. Dr G reported how the mother was feeling and why she considered that she felt that way. She did not express an opinion about whether the mother had been a victim of family violence. She said that the mother maintained a fear response at times when dealing with her ex-husband and required encouragement to assert her needs, but this was simply the mother’s narrative.
I cannot make a finding about the reasons for the mother suffering from Generalised Anxiety Disorder. Exposure to family violence and controlling behaviour could cause that but if I find that has not occurred it must have some other genesis. Whatever the cause of it, I accept that the mother’s mental health could be adversely impacted on if she returned to live in Town B where she clearly does not wish to live. The extent if any to which that would impact on her parenting capacity I am unable to say but it is not an issue I need to grapple with because the mother does not wish to return to Town B for a number of reasons and will be remaining in Brisbane.
My concern about the mother’s parenting capacity wherever she lives is about her capacity to provide for the children’s emotional needs.
The mother is insistent that the father manipulates and emotionally abuses the children and that there are problems in his relationship with them. She told the counsellor at K Counselling Centre that the father was manipulating X and that he was viewing his Dad’s behaviour throughout the separation and since through rose-coloured glasses;[11] that the father was making all three children and herself self-conscious about their weight; [12] and that the children were distressed and anxious when they came back from the father’s care.
[11] Father’s tender bundle page 58.
[12] Father’s tender bundle page 60
It is apparent from the notes that the K Counselling Centre counsellor looked hard for signs of the things the mother described but after repeated individual interviews with the children over many months none are apparent. There is no sign of problems in the children’s relationship with the father in the Child Inclusive Child Dispute Conference Memorandum or in the Family Report and there is no sign of it in the notes of the counsellor who saw Y and Z in 2020. The children have consistently reported a different reality to the reality reported by the mother.
There are a number of examples of the mother being unable to consider things from the children’s perspective. She was critical of the father for arranging for the children to attend their old schools for a few days during the two school holidays they spent with him in Town B. The tenor of her case was that this was manipulative and was designed to influence the children to prefer Town B and unsettle them.
The mother has clearly never thought about this from the children’s perspective. When they left school in Town B at the end of Term 2 2019 they had no inkling that they would not be returning at the end of the holidays. They had no opportunity to say goodbye to their friends, classmates and teachers. Not surprisingly the family report writer who saw the children in November 2019 said as follows:
All three children told me they were excited to return to Town B for the Christmas holidays with their father because the father has arranged for them to go to their former schools and see their friends.[13]
[13] Family Report paragraph 69.
The father’s decision to take the children to their old schools was child focussed and welcomed by them and the mother’s criticism of the father over this issue is an example of her interpreting events through a narrow prism and failing to consider other possible interpretations.
Another example of the mother showing a lack of capacity to consider things from the children’s perspective was that at the time of the family report interviews in November 2019 she was proposing that the children spend only supervised time with the father. The family report writer said as follows:
The mother said she changed her original proposal for the children to spend weekend and holiday time with the father proposal to them spending supervised time with him because she wanted to protect them from the father’s controlling behaviours towards them, and, the impact [...] this has on their emotional wellbeing and her parenting. She thought the children would initially be resistant to this but believed they would adjust quickly given their ease of transitioning from living in Town B to Brisbane.[14]
[14] Family Report paragraph 47.
The suggestion by the mother that the children would adjust quickly to spending supervised time with the father flies in the face of the evidence.
The mother’s suggestion that the children easily transitioned from living in Town B to living in Brisbane also flies in the face of the evidence, including the information in the children’s counselling notes and the revelation by Mr F’s during cross-examination that X had very recently expressed a wish to go back to Town B.
Another example of the mother being unable to consider things from the children’s point of view arises from the fact that after she moved to Brisbane she enrolled the children in a number of extra-curricular activities including enrolling Y in dance on Friday afternoon. She did not consult the father before she did so and she was highly critical of him for not agreeing to Y attending dance on the Friday afternoons which fell on his weekends. She did not suggest that she had spoken to Y about it and Y was upset about it. She was critical of the father because she did not agree that the children’s time with him should be prioritised over an extra-curricular activity.
The mother’s strong need to control the children’s telephone communication with the father is contrary to what the children want and is having an impact on them.
On 29 May 2020 the mother told the counsellor Y was seeing in Brisbane that Y was taping her conversations with her father on her iPad. The mother said that when she asked Y about this she told her that she replayed the conversations and listened to them.
The counsellor raised this with Y on 16 June 2020. Y told her that she had found a solution to missing her Dad; she was recording his phone calls and playing them back. Y said that she had told Mum and Dad about this. She was asked if she could not just ring her father more often and she said that when she asked to do so her mother said it was too late or just said no.
The counsellor told the mother that she thought this was innocent and that Y had found a way to stay connected.
It is clear from this that Y had to find a way to sooth herself when she missed the father.
The mother has repeatedly accused the father of being manipulative but she is not above being manipulative herself. In a bid to ensure that X did not have frequent telephone communication with his father she took his phone and told him that it was at the Telstra shop for repairs. At trial she said that she had been obliged to restore it to him because he was the only one of his peers who did not have a mobile phone and was finding that difficult but that she was putting boundaries about its use in place in her home.
Unless I find that the mother has been the victim of coercive and controlling violence this evidence suggests a concerning inability by the mother to walk in the children’s shoes, consider things from their perspective and provide for the children’s emotional needs.
The father
The father is a capable adult who would be well able to provide for the children’s day to day needs if they lived with him. He is renting a home close to the school he proposes they attend. The children are all older children and I am satisfied that the father would be able to make appropriate arrangements for their day to day care if they lived with him in Town B. I am satisfied that he would ensure that they attended school and were reengaged in extracurricular activities in Town B.
The father has completed a number of parenting courses including “Building Connections”, “Parenting on Purpose” and “Keeping Kids in Mind.” He set out in the affidavit what he said he had learned from the courses. In one part of his affidavit it sounded like a recitation of the course content.[15] However in a different part of his affidavit he described applying some of the things he learned in the courses when interacting with X after X started at School N.
[15] Father’s affidavit paragraph 182.
The mother expressed the opinion to the family report writer that the father was emotionally abusive of the children, was involving them in the parenting dispute and was trying to use them to control her. The family report writer accepted the mother’s opinion and said as follows:
Research and experience suggests children of perpetrators of coercive controlling violence are viewed as extensions of them, as possessions and that perpetrators tend to exercise an authoritarian parenting style, which characterised by high demands and low responsiveness. The father appears to exhibit some of these characteristics, by for example, prioritising his needs above them, being ‘image conscious’ and expecting the children to conform to his expectations and not challenge his authority are examples of this. The mother and father’s description of his disciplining and routines are however incongruent with an authoritarian parenting style.[16]
[16] Family Report paragraph 117.
These are serious flaws in this analysis of the situation.
There is no evidence that the father is prioritising his needs above the children’s and the comment about the father being “image conscious” is curious. I can only assume that it is based on the mother’s complaint that the father upset X by talking to him about his weight and that the father was regularly weighing the children which was making not only X but all of the children and her uncomfortable about their bodies.
The mother made this complaint to the K Counselling Centre counsellor and the counsellor tried hard to get something out of X about it but on 1 April 2019 she said as follows:
X did not openly talk about his anxiety surrounding his weight or his dad’s pressure regarding loosing (sic) weight and eating well etc. which I thought he might when I asked him about the topic. After speaking to X’s mum last week she let me know that X had finally opened up to her about this and how it was making him anxious and upsetting him.[17]
[17] Father’s tender bundle page 12
There is no independent evidence that the father upset X by talking to him about his weight or that he said anything which might make any of the children “image conscious” and it is of considerable concern that although she attached it to her trial affidavit the mother did not directly bring to the courts attention, or indeed to the attention of the report writer or the counsellor in Town M, the text message the father sent to her about the issue.

The text message reads as follows:
Hi, please have a look at the skin on X’s hip and buttocks area he has started to get stretch marks. X has had a 10% weight increase since the beginning of this year (51-56kg). I have spoken to him about the importance of his health, please support me on this there is a history of diabetes on my side of the family.[18]
[18] Mother’s affidavit annexure D
A finding that the father expects the children to conform to his expectations and not challenge his authority is also not open on the evidence, indeed one of the complaints the mother made about the father to the family report writer was that:
….he was unstructured and adopted the role of friend above that of parent with the children. [19]
[19] Family Report paragraph 43
The father did not try to interfere when he found out the mother was taking the children to counselling in Town M and he readily consented to Y and Z attending counselling in Brisbane. There is not a single piece of evidence of the father expecting the children to conform to his wishes or to do things he had chosen for them in preference to something they wanted to do. If this is intended to refer to the fact that the father decided not to take Y to dance, given the evidence about the extent to which Y misses the father it is not surprising that she would prefer to spend time with him when he drives up on weekends rather than attend a dance class. There is no basis for rejecting out hand Y’s statement to the family report writer that she was comfortable with this because she could catch up on what she had missed at later lessons.
There is also no sign of the father treating the children as an extension of himself and disregarding their own wishes. The father did not want X to attend boarding school in 2019 but when X told him that was what he wanted he did not stand in the way of it or make any fuss about it and he supported X by visiting him regularly in Town M and involving himself in his football games.
The mother also did not assert that the father was ever pushy about the time he spent with the children when they were living in Town B and insistent that it happen on particular days or involve a particular number of nights.
There is merit in the submission by the father’s counsel that the father displays empathy for the children and does not behave in a controlling way with them.
The mother made a number of other complaints about the father, including that he had made a decision the mother disagreed with about X’s skull, failed to agree to the children getting glasses, told X he would turn gay if he went to boarding school and suggested that X might suffer an awful fate if he went to Country BB. There was no medical evidence to support a finding that the mother was right and the father wrong about the treatment of X’s skull, the issue of the children getting glasses was not explored at trial as far as I can recall and the other matters were denied by the father and I cannot be satisfied that the mother’s version of events should be preferred.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
X is almost 14 and is at an age where children like to start having a say in how their world is ordered. Even on the mother’s case he has been expressing a wish to return to Town B. If the wishes of a child of this age are overridden there is always a risk that they will take action to get what they want.
There is no sign of X rebelling and to an extent that is speculative, but his maturity, which in the context of this section of the Act must mean where on the spectrum he is between infancy and adulthood, is a relevant consideration.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
Matters relevant to this consideration have been and will be discussed but making a specific finding about this consideration will not assist me.
I must consider any family violence involving the child or a member of the child’s family.
Family violence is defined in s. 4AB of the Family Law Act. It provides as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
S.4AB (2) provides examples of behaviour which may constitute family violence but it is not difficult to think of other behaviour which may coerce or control a family member or cause them to be fearful. A threat to commit suicide if the other party ends the relationship may do it. Coercion and control can also be subtle. A word or a look may be enough to control someone who has previously suffered the consequences of not doing what the perpetrator wanted. For a child, a hand on a belt without anything being said or words of warning such as “You don’t want to make me angry” may be sufficient to control them if they have previously been flogged by a parent.
The report writer summarised the mother’s case about family violence as follows:
The mother claimed family violence occurred between her and the father throughout their twenty year relationship. She described the father’s extremely controlling behaviour started when X was born. The mother provided multiple examples. These included allegations that the father controlled and monitored her movements, determined with whom she could associate, and isolated her from friends and family. The mother claimed she was not allowed to have friends until X was in pre-school. The mother said she felt guilty and anxious about letting people down when the father did not allow her to attend events, such as funerals. The mother claimed the father had previously accused her of having affairs, including with a lesbian. The mother claimed the father refused to leave the family home in June 2018 despite her asking him to do so repeatedly, until October 2018. She described this four month period as being a “Terrifying” time for her. She claimed the father denigrated and belittled her; alleged she drank too much, needed a psychiatrist, and was fiscally irresponsible, and, that the children were scared of her. She claimed the father took her fuel card, stalked her and demanded to see her psychologist. She stated the father has allegedly made recent comments that her cancer is “Not that bad. She’s swimming and malnourished” and that he continues to enter her property and water the plants. The mother’s interpretation of this is that the father is still attempting to assert power. The mother became extremely upset and told me she blamed herself for putting her and the children in this position because she was raised to be a strong and independent woman. [20]
[20] Family Report paragraph 36.
In her trial affidavit the mother said as follows:
Mr Redican controlled nearly every aspect of my life. He dictated the duration and timing of my visits to my family in Brisbane with the children, the work I did at the J Company, I wasn’t allowed to attend family funerals because he expected me to work at the J Company and he strongly discouraged my involvement in fundraising and community work which I really wanted to do. I wasn’t able to participate in general, normal functions and community activities.
I was responsible for all the domestic duties including caring for the children, doctors’ appointments, house cleaning, mowing the lawn, cooking, washing, ironing, schooling, sports, social activities for the children, painting and general home maintenance.
I put my career as a health care worker on hold to raise the children and didn’t return to it as I worked with Mr Redican in the J Company which is a business we set up in Town B.[21]
[21] Mother’s affidavit paragraphs 7 to 9.
There are several significant problems with all of this.
One is that the mother’s “evidence” is in fact a series of conclusions and submissions. She gave no dates, rarely referred to any periods of time, made no attempt to recollect in a general sense words that were said and rarely gave examples or little stories to illustrate her claims and sometimes relied on second hand hearsay such as something her friend Mr CC or the real estate agent who was sent to value the former matrimonial home told her the father had said.
The allegation about the mother putting her career as a health care worker on hold is not indicative of coercion by the father. The mother did give up her career as a health care worker to work in the J Company but the parties agreed to construct and operate the J Company. Nothing the mother said suggested that the father pressured her into agreeing to be part of this venture and kept the pressure up for the next 17 years. The only finding open to me is that giving up her career as a health care worker was a choice the mother willingly made.
Another problem is that some of the allegations were inaccurate or even untrue.
The mother said that she was not allowed to attend family funerals, but when she was cross-examined it turned out that she was only referring to one funeral and she agreed that there was a story behind that.
The father gave detailed evidence about his involvement in domestic duties including caring for the children and doing internal and external work on the home which I accept.
No evidence emerged at trial to support a submission by the mother that the father dictated the duration and timing of her visits to Brisbane, which occurred on numerous occasions over a period of seventeen years. As the father’s counsel pointed out in submissions, the mother was able to travel to Brisbane frequently during her mother’s illness in 2017 and 2018 and his unchallenged evidence was that on four occasions he looked after the children in Town B while she was away.
The mother did not give any evidence in support of the submission that the father discouraged her involvement in fundraising and community work which she really wanted to do and the evidence suggests that this submission is without foundation. The father gave detailed evidence about the mother’s social and community involvement in Town B, including the names of some of the people involved[22] and this evidence was not challenged during cross-examination.
[22] Father’s affidavit paragraphs 50 to 58.
The mother was on the board of directors of Town B Pre-School between 2016 and 2019. She told the family report writer that she had a strong support network in Town B and was active in the community.[23] There is a similar reference in a letter dated 22 November 2019 prepared by DD Health Centre which says as follows:
She remains connected to the Town B community as a result of her work with and within the community there and has a strong friendship base.
[23] Family report paragraph 28.
The mother did not suggest nor is there a suggestion to this effect anywhere in the evidence that the father insisted on tagging along when she met friends or attended meetings or that he questioned her about what had happened when she went out or went to meetings.
I cannot place weight on the mother’s bare assertion that she found it difficult to relax with the children because the father would follow behind her when she was with them, as if supervising how she was interacting with them. When? How often? In what context?
The evidence does not support a finding that the mother could not go anywhere without the father. She was asked in cross-examination about taking the children to the Show in Town B and there was evidence about an occasion when she took the children for a drive in the Region W shortly before separation. She did not suggest that she had to ask the father’s permission before doing such things.
The mother claimed that the father insisted on her money being paid into an account he set up, and monitored her spending and that she was not able to make cash withdrawals.
The father disputed this. He said and I accept that the mother had her own bank account and that he was not aware until he read the mother’s affidavit dated 26 June 2019 that she was receiving Family Tax Benefit. He said that this was because it went into the mother’s account and she operated her own account.
There was a significant omission from the mother’s evidence about monetary matters which means that I cannot find that her version of events about these matters should be preferred to the fathers.
The mother made no mention in the body of her affidavit to the fact that on she was a signatory to the business account and that on 22 October 2018 she drew a cheque for $300,000.00 and deposited it into her account.
The father was told about this by the bank manager. When he asked the mother about it she handed him a letter from her solicitor informing him that she had withdrawn this amount and also asking him to move out. There is reference in the letter to the mother having the use of a business credit card for purchasing groceries, fuel and for use in purchasing items for the children.[24]
[24] Father’s affidavit annexure 2.
The mother told the father that she would put the money back but on 23 October 2018 she returned $260,000.00. She told him that she was keeping the remaining $40,000.00 because she owed her parents money and she wanted to buy a second hand car although the father noted that she had the use of two motor vehicles.
The father not unnaturally asked the bank manager to remove the mother as a signatory to the business account following her removal of the money but he did not respond to what she had done with anger or threats.
Some of the evidence the mother gave to illustrate coercion and control by the father is capable of more than one interpretation. She said that the father told her he would never agree to a divorce. The father agreed that he told her that he did not want the marriage to end. This is not an uncommon reaction by one party at the time of separation; parties are often at different points of accepting that a marriage has ended or should end.
The father asked the local parish priest to come around to the house and he wanted to attend on the mother’s psychologist with her, but these actions were in the context of his wish to save the marriage. They were not welcomed by the mother and she felt under pressure as a result, but is this family violence?
A refusal by one party to move out of the home after separation can be part of a spectrum of coercive and controlling family violence[25] but the father’s actions in this case do not have that flavour. As is not uncommonly the case while the mother had reached the point in July 2018 of wanting to separate the father had not. It was not “violent” of him to refuse to leave the home when the mother told him that she wanted to separate. She had the option moving out if she did not wish to remain living under one roof with him but she did not do so. She patiently worked on getting him out of the home and was eventually successful in doing so.
[25] Mickelsen & Mickelsen [2020] FCCA 2896 paragraph 279.
The mother complained in her affidavit that when the father moved out he “didn’t move away, he simply moved across the road from my house (100 metres away) and lived in the J Company sleeping in the basement”. However she attached to her affidavit a copy of the letter from her solicitor which she handed to the father on the day of separation and it includes the following:
We are instructed to propose that you move out of the home into the J Company, EE Street, Town B which is what you indicated to our client you would do. Our client is very conscious of the children not being exposed to any conflict or other situation which could be detrimental to them in any way. For that reason, we request you move immediately to the J Company and ensure this occurs when the children are present at school to avoid any impact on them. We trust you will honour our client’s request to move out for the sake of her and the children.[26]
[26] Mother’s affidavit paragraph 22 and Annexure B.
The mother said that she felt that the father was monitoring her movements after separation but she gave only two examples. She referred to an occasion when they were living under one roof when he said that he didn’t see her car in front of the house or down the street and asked where she had been. She also referred to an occasion when friends of hers and a pool attendant told her when she went to the pool that the father had been there looking for her.
The father agreed that he had asked the pool attendant if the mother was at the pool and about the times she attended but he said that it was so that he could ensure that he did not attend at the same time. I accept this evidence. There was no evidence of the father actually attending any location when the mother was there and speaking to her, let alone harassing her. He may have asked why her car was not at the house on one occasion but this could all too easily have an innocent explanation.
There are many parts of the mother’s evidence which suggest that the father just could not win. In her affidavit she said that on 20 July 2019 she told the father through her solicitor that she had cancer and that she and the children could not return to Town B.[27] She then said:
On 22 July 2019, Mr Redican sent a reply email to my solicitor’s email offering to send me flowers and wishing me well. At no point at this time, knowing my condition, did Mr Redican offer to take care of the children.
[27] Mother’s affidavit paragraph 78.
The content of the email the mother’s solicitor sent to the father on 20 July 2019 and other actions by the mother around that time including filing an application seeking that the father spend no time with the children make clear that the mother would never have agreed to the father looking after the children while she received treatment in Brisbane.
The mother complained that the father consistently asked X about her health progress and her test results but she was insistent that the father not communicate with her directly and that he only communicate with her through her solicitor. It was not unnatural that the father asked X how the mother was going, and if he had shown no interest in her health or progress that would no doubt have been another cause for criticism.
The mother’s brother Mr F gave evidence in support of her case that the father was controlling but his evidence is not helpful.
Mr F described the mother and father working happily side by side in the J Company prior to the birth of the children. He claimed that after their birth he never saw the father change a nappy, feed the children, play with them or help his (sic) mother in the household but he spent very little time with the mother and the father.
Mr F claimed that on an unspecified occasion when the mother and father were visiting Brisbane the mother told him that the father would not approve if he took X the shops and that the mother said that X was not allowed to go with him because the father would not approve. I cannot place weight on such evidence. There is a very high risk that it is a selective or inaccurate account coloured by the strong dislike of the father which permeates his affidavit.

Mr F expounded at length in his affidavit on his opinion that the mother was a victim of coercive and controlling family violence perpetrated by the father and he went as far as to say as follows:
In my experience, Mr Redican’s behaviour is typical of a respondent in a domestic violence relationship, where he projects an extremely nice and presentable person to family and friends, however after seeing Ms Redican’s emotional decline, his behaviour is controlling and I believe he has the potential to pose a physical threat to Ms Redican. If Ms Redican was not residing in Brisbane, but was residing in close proximity to Mr Redican he would make every attempt to exert his influence over her financially, emotionally and physically.[28]
[28] Paragraph 66 of Mr F’s Affidavit.
The family report writer considered that the mother was genuinely fearful of the father and her psychologist Dr G expressed the same view but those opinions were based on things the mother said. Some of her post-separation actions are consistent with her fearing the father, such as making a report to police in Town M in 2018 when she believed the father was stalking her as a result of his telephone call to the swimming pool and asking where she had been when her car was not at the home, refusing to communicate with the father after relocating to Brisbane and insisting that changeovers happen at Mr F’s home and that the father not be told her address. However a number of her post-separation actions do not suggest fear of the father. This includes her decision to write herself a cheque for $300,000.00 drawn on one of the business accounts.
The father said that on 28 March 2020 he sent a text message to the mother saying words to the effect:
Are the children okay for the holiday pickup, I am out the front of Mr F’s.
The message he got back was:
I don’t have to respond do I? Fuck him
The mother agreed that the message was sent. She said that it was intended for her brother Mr FF and she sent it to the father by mistake.
This incident suggests that the mother is not fearful of the father but contemptuous of him.
The father annexed to his affidavit a number of text messages exchanged between the parties immediately after separation which paint a very different picture of their communication to the picture the mother wanted to the court to accept. There is no sign in those exchanges of the father trying to coerce or control the mother or of the mother being fearful of the father.[29] The text messages repay careful reading in their entirety but I include the following passages to give a flavour of what flowed between the parties:
[29] Father’s Affidavit Annexure 10.
(Mother 12.47pm on 29 October 2018)
You are right. The children seem to be doing ok. Thanks for your support regarding this. I don’t want to be a financial burden. I will do my best to get a job to help pay my way. Please understand I will need help with mortgage. What were your thoughts re finances.
…
(Mother 12.48 pm on 29 October 2018)
Ms GG, Mr HH’s mother would like to have X over one afternoon this week. Please let me know what you think.
(Father 2.35pm 29 October 2018)
Just that we budget and be careful with our money (like we have been), just while the J Company is going slow which wont be forever.
Maybe we need to discuss it.
I can do a plan (budget) from the information we both collected this year to use as a starting point if you like. Let me know what you think.
At any rate please don’t worry about finances, everything will be looked after as needed. You are important to me, and to our children, trying to hurt you in any way is the same as trying to hurt them and I’ve never had any such thoughts. I will have your backup gas bottle ready to go later [sic], let me know when I can bring it over and hook it up?
(Mother 2.47 PM 29/10/2018)
Thank you. Budget wise, I was thinking the same. Please let me know when you have an idea of budget.
Gas bottle, this afternoon if you like. That way the babies might want to go over with you after school. I’m just about to go and pick them up.
I have to go to Town JJ with Y tomorrow for a school thing. Would you be ok with the boys tomorrow morning from 7.30am? We won’t return until 4ish so you’ll have to do school pick up and drop off. Is this ok?[30]
[30] Annexure 10 of the father’s affidavit.
Another exchange on the same day was as follows:
(Mother 8.35 PM 29/10/2018)
X is on his way over. Could you please send him back home.
(Father 8.38 PM 29/10/2018)
I can’t see him anywhere.
(Mother 8.45 PM 29/10/2018)
It’s ok. He’s here. He wasn’t happy with me asking him to go to bed. All’s good and settled.
(Father 8.46 PM 29/10/2018)
Thanks.
I accept that I need to be careful not to explain away each of the mother’s individual complaints and fail to consider what they might mean if they were looked at as a whole. I accept that a person could be charming in public and in the witness box but be a completely different person in private. However considering the evidence as a whole I cannot, on the balance of probabilities, find that the father coerced or controlled the mother prior to separation and it is impossible for me to find that he has done so since separation.
The father politely asked the mother to put the $300,000.00 back and she returned most of it but it was not unreasonable for him to ask that such a large sum be returned to the business account.
Absent that the mother has been the one in control since separation.
It took her a little while to persuade the father to leave the house but that is not uncommon and he did so after three months. The mother did not have to apply for a sole occupancy order.
In November 2018 the mother took the children to counselling without telling the father and when he found out about it he did nothing to interfere. She enrolled X in School N because she wanted X to attend and the father did nothing to try and stop it. She wanted to keep the children with her in Brisbane when she became ill and the father agreed. She chose their schools and their extra-curricular activities in Brisbane and all the father did was contact the schools and arrange to have a look around and ask for access to their school reports. The father consented when the mother wanted Y and Z to attend counselling in May 2020.
How has the mother been coerced or controlled?
The family report writer said as follows:
The father described the mother as being an assertive, dominant and headstrong woman. He asserted she “called the shots in the family”.
The evidence about the events following separation strongly support a finding that this was the case. During submissions the mother’s solicitor agreed that this was the way the mother presented in the witness box and said that these were the qualities the father sought to deprive her of during the relationship!
I cannot find on the balance of probabilities that the mother has been a victim of coercive and controlling violence.
I must consider the implications of any family violence orders.
No family violence orders have ever been made. The family report writer was in error in saying there was a Protection Order in place between the parties.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
There is a risk of further proceedings in this matter. I consider it unlikely that either parent would institute further proceedings in this court simply because they were disgruntled with the orders but X and Y are almost 14 and almost 12. If they do not settle after orders are made they may resist returning to the father after a holiday visit with the mother if they are living with the father or returning to the mother after a holiday visit with the father if they are living with the mother. The children are compliant children but older children can sometimes become quite insistent on ordering their own world, and these parents are not well placed to sort the matter out by agreement if that happens.
I must consider any matter the court considers relevant but there are none.
I now return to the primary considerations and the first of those is the benefit to the children of having a meaningful relationship with both of their parents.
X, Y and Z will benefit from having a meaningful relationship with both of their parents, a relationship which allows each parent to spend time with the children, show an interest in their activities, offer them guidance and support in their endeavours and simply let them know that they are loved.
Distance alone will not prevent them having a meaningful relationship with both of their parents but I have considerable concern about the mother’s capacity to facilitate that kind of relationship between the father and the children.
The mother told the family report writer that there were no strengths about the father’s parenting. When she was asked in cross-examination if the children had a good relationship with their father her response was:
I would say it was sound.
The mother has taken control of all educational decisions since separation. She did not include any information about the father on any of the enrolment forms she completed and she actively sought to prevent him obtaining information from the children’s schools in Brisbane.
When the father indicated that he was going to visit the children’s schools in Brisbane in September 2019 the mother had her solicitor write to the schools informing them that the mother was concerned the father might run across the children when he visited and that she did not wish that to occur. The letter to X’s school went on to say:
I note our client is the fee payer and there are no orders that the father have access to X’s scholastic information. Our client requests that any request by the father for that information is denied.[31]
[31] Father’s Tender Bundle page 265
The same was said in the letter sent to Y and Z’s schools.
The Principals of the schools obtained a copy of the interim orders and sought legal advice. They were advised to allow the father access to information normally provided to parents, including copies of school reports, and he has been given access to the school portals. Y and Z’s school also told the mother that they needed the father’s consent to Y and Z seeing a counsellor at the school and at her request they contacted the father obtain his consent.
The father told the family report writer that he thought that the extended maternal family were intent on undermining the children’s relationship with him. The family report writer was dismissive of this claim but while I cannot speak for the whole extended maternal family, the evidence of Mr F confirms that he has a poor if not hostile view toward the father.
Mr F agreed that he did not think that the father had much to offer the children and he bruited about the idea that if the mother returned to Town B she would be at risk of family violence from the father, including physical violence.
There is not a shred of evidence that there has ever been any physical violence or that there is any likelihood of it occurring in the future.
The K Counselling Centre notes record that when the mother engaged the children in counselling in November 2018 K Counselling Centre were informed that she was a victim of family violence at the father’s hands, including physical violence. The mother did not allege at trial or to the family report writer that the father had ever perpetrated any form of physical violence, and I cannot disregard the possibility that K Counselling Centre made a mistake when they wrote this down, but the fact that Mr F made this unfounded claim in an affidavit which was filed in the mother’s case for this hearing causes me to be concerned that perhaps it was not a mistake and that the mother did make this claim, and this in turn causes me to be concerned about what picture of the father the children might be given if they continue to reside in Brisbane with the mother after final orders are made.
The mother’s solicitor submitted that the court should not be concerned about the mother’s attitude to the father because she had always complied with court orders about him spending time with and communicating with the children, there was no evidence of her denigrating the father to the children or in their presence and the children, at least as far as the information in the family report went, did not appear to have picked up on her strongly negative attitude to the father. As a result it was open for the court to find that her attitude to the father would not impact on the children’s relationship with him if they lived with her in Brisbane.
I am not sure that the mother has fully complied with court orders about communication. Order 14 of the orders made on 8 October 2019 provided as follows:
That the children have telephone communication with the father:-
(a) Each Tuesday and Thursday from 7-7.30pm; and
(b) At such times as any of the children express a desire to do so.
The mother proposed that the same order be made on a final basis but the notes of Y’s conversation with her counsellor on 6 June 2020 suggest that the mother has not permitted the children to ring when they have expressed a desire to do so and her control of X’s mobile phone suggests that she does not have a free and easy attitude to the children communicating with the father.
Leaving that aside, it is one thing to comply with the letter of orders through gritted teeth and another to facilitate time because value is perceived in the children having a relationship with the other parent and the mother sees no value in the children having a relationship with the father. She was clear to say that he had no parenting strengths.
The report writer was of the view that the mother’s compliance with orders was evidence that she had demonstrated willingness to support the children’s relationship with the father notwithstanding her concerns about the father negatively influencing them. She also considered that the mother was not letting her feelings about the father shine through when she was with the children. She said as follows in her report:
The mother was appropriate with the children. She responded warmly to X’s questions about his father.[32]
[32] Family Report paragraph 113.
However this is not supported by the report writer’s account of the conversation between X and the mother about the father which was as follows:
X asked his mother “did you see dad” twice. The mother said “No” and “It’s ok” the second time. X asked his mother “Would you have said hello to him?” to which she responded “Of course”. X then commented “I wish we’d spent more time with dad”.[33]
[33] Family Report paragraph 111.
It is difficult to see how this can be assessed as the mother responding warmly to X’s questions about the father.
The children have a strong relationship with their father and to date the mother’s attitude to him has not affected how they feel about him. It might be that the risk to the children of living with the mother is not that their relationship with the father will be undermined but that they will feel themselves under emotional strain and will not be able to be themselves with the mother because they perceive that she does not value /disapproves/strongly dislikes their father.
In her report the family report writer referred to the exchange between X and the mother mentioned above and said as follows:
It was concerning for me that X appeared anxious about the mother seeing the father during the family report interviews as demonstrated by his comments to her during the observation.[34]
[34] Family Report paragraph 116.
It is open to question whether this correctly interprets what happened. An alternative explanation is that X was anxious about the fact that he perceived that the mother did not like the father whereas he was keen to spend more time with him.
The father does not have a hostile attitude to the mother and there is no sign of him attempting to influence the children against her.
The family report writer suggested that the children could be subtly influenced against the mother if the father made them feel sorry for him but this would only be the case if they also blamed the mother for the way he was feeling and there is no sign of this. The way in which the children related to both of their parents at the report interviews and the things they said about them both to the report writer makes it clear that the children are not siding with the father and blaming the mother for the marriage breakdown.
The father can be relied on to ensure that the children continue to have a good relationship with the mother if they live with him.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
The children are not at risk of being exposed to or subjected to abuse, neglect or family violence by either parent or in the care of either parent.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them, absent a finding that one of the parents has engaged in abuse of the children or family violence.
There has been no abuse or family violence and the presumption applies. It can be rebutted however if the court is satisfied that it would not be in the children’s best interests for it to apply.
The mother proposed that she have sole parental responsibility for decisions concerning the children’s residence, education and health and that the parents otherwise share parental responsibility. During submissions her solicitor said that the proposal about having sole parental responsibility for residence was only so that she could stay in Brisbane; she had no intention of relocating anywhere else.
The mother said that she was terrified of the father and could not communicate with him directly and that the parents would not be able to agree about matters concerning education and health. It was her case that she had chosen good schools and good extra-curricular activities for the children and had appropriately arranged counselling for them and they would be well looked after if she was in charge of decision making in these areas.
The mother’s solicitor did not say so but a solution to the problem of the mother using this order to prevent the father obtaining information about the children would be to make specific orders allowing him to obtain information from service providers.
However an order that the mother have sole parental responsibility for the children would be problematic if the children lived with the father in Town B, and an even bigger problem is that an order for sole parental responsibility could mean that a false picture of the father was created in the minds of service providers.
The order itself might send a message to others that there must be something wrong with the father, and there is a high risk that the mother would seek to negatively influence service providers against the father. This would not only influence the way they treated him and the information they gave him, it could have adverse consequences for the children.
It is gravely concerning that when the mother arranged counselling for the children in Town M the K Counselling Centre notes recorded that the father was physically and emotionally violent towards his family and the mother. I do not accept that the father has perpetrated family violence let alone physical family violence, and if a counsellor is given incorrect background information it may influence the way counselling is conducted. It may mean that the children are not listened to because the counsellor interprets all their answers and actions through the prism of what they have been told, or it may mean that the counselling is directed to trying to obtain disclosures consistent with those allegations.
It would not be in the children’s best interests for their father to be viewed with suspicion and as a potential source of trouble by their school, counsellor or health providers, nor would it be in their best interests for major long term decisions to be made about them without the alternative viewpoint he can offer.

The mother’s unwillingness to communicate with the father is a problem, but there are not too many major long term issues which will need to be decided and the evidence suggests that the parents are not likely to disagree about the choice of school for the children unless X returns to Town B and the mother wishes him to be enrolled in School N.
If the mother is unwilling to communicate directly with the father then there are alternatives open to her. She could engage a mediator, or she could engage a lawyer to deal with a specific issue if it arose. She has the means to do that if necessary. In addition s. 65DAC of the Family Law Act requires parties to consult with each other and attempt to come to an agreement when a major long term issue arises, it does not require them to come to an agreement.
The family report writer was concerned about the capacity of the parents to share parental responsibility. She said as follows:
I do not consider the mother and father have the capacity to co-parent constructively with each other due to the mother’s reported compromised mental health and parenting capacity as a consequence of her experience of the father’s coercive controlling violence, whether real or perceived. This is due to my belief that the mother’s vulnerabilities are likely to be triggered if the mother is required to communicate with the father.[35]
[35] Family Report paragraph 128
The mother does suffer from anxiety and as a result has vulnerabilities. However I cannot find that she has mental health issues or vulnerabilities as a result of the father perpetrating coercive and controlling violence, and it would not be in the children’s best interests for the father to be cut out of decision making in their lives because of a perception by the mother that she has been the victim of family violence.
An alternative solution, if communication with the father was likely to be impossible for the mother, would be to make an order that the father have sole parental responsibility for the children, so that he did not bother the mother by trying to communicate with her about major long term issues. However the father did not seek that, that possibility was not canvassed at trial and it would be problematic if an order was made for the children to live with the mother.
The parents will have to have some channel of communication in the future regardless of the order made about parental responsibility, because day to day issues could arise in relation to the children such as a parent running late for changeover or a medical emergency. I am going to make an order for the parties to have equal shared parental responsibility and trust that the fact that the mother can engage a third party to discuss major long term issues with the father on her behalf will provide sufficient relief for her.
The recommendations in the family report
The family report writer recommended that children live with the mother. She did not support the mother’s proposal that the children spend supervised time with the father and recommended that they spend time with him every second weekend or as frequently as the father was able to facilitate in the event the children lived in Brisbane and for half of each school holiday period.
She recommended that the children telephone the father twice a week.
Recommendations in a family report always deserve careful consideration but I have a number of concerns about this report.
It is troubling that early in her report the family report writer stated that there was a Protection Order (or Apprehended Domestic Violence Order as it would be called in New South Wales) in place for the protection of the mother from the father.
There has never been a family violence order in this matter and it is difficult to see how this error crept in, because in the Child Inclusive Child Dispute Memorandum the family report writer prepared two months earlier she commented that there were no protection orders and the police have not intervened in family disputes.[36] However the fact that the family report writer believed that one existed when she wrote her report raises a concern in my mind about whether this influenced her view that the father was a perpetrator of family violence.
[36] Child Inclusive Child Dispute memorandum page 2 5^th dot point.
The report writer was impressed by the mother’s summary of what she had endured during the relationship, which she felt supported a finding that the father had perpetrated coercive and controlling family violence, but she did not reflect on the fact that there were inconsistencies between the mother’s summary and other information the mother gave her. One example was that the mother told the family report writer that the father controlled and monitored her movements, determined with whom she could associate and isolated her from family and friends.[37] However she also told her however that she had a strong support network in Town B and was active in the community.[38]
[37] Family Report paragraph 35.
[38] Family Report paragraph 28.
There are throw away lines in the report which are critical of the father which have no underpinning in the evidence. For example the report writer said:
Information provided by the mother and X suggested X’s physically abusive and defiant behaviour was heightened around the time the parents separated, and, apparently triggered by his concern for the father’s welfare, which the father may have capitalised upon.[39]
[39] Family report paragraph 118.
Capitalised on how? To do what? X was not sitting there during the family report interviews firmly in the father’s camp and rejecting the mother or even making critical comments about her.
There are passages in the report which are theoretically sound but do not describe the situation in this particular family. For example the report writer said as follows:
It is not uncommon for children who are used as tools to assert control often form an alliance with the perpetrator for a range of reasons, which can include self- protection due to fear, them being coerced or rewarded and to give them a sense of control or power. Children are also emotionally manipulated, in the case of the father, through him apparently exhibiting a victim mentality. They are also likely to experience confusion, divided loyalties and are vulnerable to loyalty bids by parents.
There is no evidence that these children have been used by the father as tools to assert control over the mother. It did not happen prior to separation, even on the mother’s case, and it has certainly not happened since separation.
The children have not formed an alliance with the father; they are equally attached to both of their parents and I do not accept that there is any evidence of the father exhibiting a victim mentality. There is no evidence that he has been making any loyalty bids or that the children have divided loyalties.
This passage is simply not applicable to the facts of this case.
The family report writer was to an extent alive to the possibility that the mother had not been the victim of family violence. That is apparent in the following passages:
I do not believe a ‘week about’ parenting arrangement as proposed by the father would be in the children’s best interests based upon the mother’s experience of family violence, regardless of whether it is real or perceived, the different parenting styles adopted by the mother and father as well as the father’s influence and involvement of the children in the parenting dispute.[40]
[40] Family Report paragraph 127
………………………..
I do not consider the mother and father have the capacity to co-parent constructively with each other due to the mother’s reported compromised mental health and parenting capacity as a consequence of her experience of the father’s coercive controlling violence, whether real or perceived. This is due to my belief that the mother’s vulnerabilities are likely to be triggered if the mother is required to communicate with the father. [41]
[41] Family Report paragraph 128
Very different considerations apply if the family violence is real or perceived. If it is only perceived the concern the father raised about the mother’s mental health, which the report writer considered was an example of him disparaging the mother, becomes relevant.
The family report writer conceded in cross-examination that if the court did not come to the same view as her about whether family violence had occurred then it could not place weight on her recommendations. I have not come to that view and I therefore cannot place weight on the recommendations.
Conclusion
I intend to make an order that the parents have equal shared parental responsibility for the children, and as a result I am required by s. 65DAA of the Family Law Act to consider whether equal time, or alternatively substantial and significant time, would be in the children’s best interests and reasonably practicable and if so to consider making an order of that kind. However both possibilities are ruled out by distance and I intend consider the matter within the parameters set by the parents.
The matters which support an order being made that the children live with the mother are that she has always been their primary carer and she competently cares for them on a day to day basis in terms of feeding and clothing them, sending them to school and organising extra- curricular activities.
The children talk from time to time about preferring to be in Town B but they have been living in Brisbane for 18 months now. They have settled in the schools the mother has chosen for them and Y is reportedly content with the mother’s choice of a high school for her for next year. The children may well adjust if they are ordered to live with the mother, even if remaining in Brisbane is not their first preference.
The children clearly miss their father but they will be able to see him during school holidays and if he continues to travel to Queensland they will also be able to see him during school terms. The mother complies with court orders about time and about telephone communication at least insofar as it is ordered to occur at fixed times. Y in particular would like to speak to the father more and the mother is unlikely to facilitate that but Y has come up with a strategy to sooth herself when she misses her father.
The mother’s strong desire to exclude the father from any involvement in the children’s education, including from obtaining information about their progress at school, is concerning but I intend to make an order for equal shared parental responsibility, which will give him standing in the eyes of anyone who sees the orders, and I can make specific orders which allow him to obtain school records, attend the children’s schools, obtain medical records and for the avoidance of doubt attend extra-curricular activities and obtain information about those activities.
The disadvantage of the children living with the mother however is that she has openly stated that she considers that the father has no parenting strengths and she is unlikely to do anything more than strictly comply with orders. This had an impact on Y in May 2020. She came up with a solution to sooth herself but she had to come up with that herself after she perceived, correctly in my view, that the mother would not allow her a skerrick more than calls at the times fixed in the orders. The mother has been forced to give X’s phone back to him, but there could be problems ahead given X’s age if she puts too many restrictions on his phone usage.
The mother lacks empathy for the children. She is unable to reflect on the possibility that their relationship with the father is very different to hers and that they do not perceive themselves as controlled and coerced by the father. She is unable to walk in the children’s shoes and because of that her capacity to help them settle if they continue to feel some resistance to living in Brisbane rather than Town B is limited. The mother’s solution to the children expressing any ambivalence about being in Brisbane or being unsettled after visits with the father is to try and limit their communication with their father, which fails to meet their needs.
The mother’s entrenched view is that the father has nothing to offer the children. She does not like him and the exchange between the mother and X during the family report interviews which I referred to suggests to me, although it did not to the report writer, that X may already feel uneasy about that.
The father’s counsel submitted that this could negatively impact on their relationship with their father but it could also simply cause them psychological stress if they spend the majority of time with their mother and are exposed for the majority of the time to a situation where the best that can be said for the mother’s willingness to support their relationship with the father is that she complies with court orders.
The mother’s strongly negative, and on the basis of my findings inaccurate, view of the father is shared by Mr F who went so far as to express the unfounded opinion that the mother was at risk of physical harm from the father. There is a risk that the children will become aware of the hostility emanating from the mother’s brother toward the father which would also cause them stress and confusion because it does not match their experience of the father.
The father is untried as a full time carer for the children but they are older children and he is a competent adult. He has a plan about the schools they will attend. He said and I accept that they will be able to attend extra-curricular activities as they were before they left Town B.
The children like Town B and they have all at various times expressed a wish to live there. They will be returning to a familiar place and living with a parent with whom they have a good relationship.
The disadvantage of the children living with the father is that they are going to miss their mother. However the father, unlike the mother, can be relied upon to allow the children to have liberal communication with their mother and he has a positive attitude about her. The children will not hear anything negative about the mother in the father’s household.
I also accept the submission by the father’s counsel that of the two parents the father is the parent who is likely to deal in an appropriate and child focussed way with a situation which could arise of one or more of the children deciding after they have tried Town B without the mother for a while that they would prefer to live with her in Brisbane.
In an ideal world these children would be able to spend substantial and significant time with each of their parents. If they were seeing their father five nights per fortnight which he proposed should the mother return to live in Town B, and there was an order for equal shared parental responsibility and he was able to liaise with their schools and be involved in some of their extra-curricular activities, while the mother’ attitude to him would still be of concern the children might be able to treat it as background noise.
However the mother has a right to live where she chooses and she wants to live in Brisbane. The idea of living in Town B is intolerable for her. She perceives, perhaps correctly, that to return to Town B would have a negative impact on her mental health and she will not return. The children therefore cannot spend substantial and significant time with the father and given the choices available in those circumstances I am satisfied that an order that the children live with the father is the order which is in their best interests.
The orders
The order that the children live with the father comes into effect immediately. The parents will have to take steps to implement it but they should not need a specific order to enable them to do that.
The father put forward a reasonable proposal about the children spending time with and communicating with the mother. The mother did not seek to be heard against it and I will make orders about the children spending time with and communicating with the mother as proposed by the father.
I intend to largely make the ancillary orders sought by the father which cover all the usual orders about parties being able to obtain information about schooling and medical issues, being advised of medical emergencies and the like.
One of the “usual” orders sought by the father was that each party keep the other advised of their residential address, email and telephone contact numbers.
The mother said that she did not want the father to know her address. As I observed during the trial it is unlikely that this can be kept secret given the children’s ages and I do not accept that the mother would be at any risk from the father if he knew where she lived, but the mother is sensitive about this issue and it is not information the father needs. I therefore intend to order that each parent keep the other advised of their telephone number(s) and email address.

I certify that the preceding three hundred and eight (308) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.
Associate:
Dated: 19 January 2021

[2021] FCCA 22

19 January 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Standing

Remedies

File number(s):	NCC 1897 of 2019
Judgment of:	JUDGE TERRY
Date of judgment:	19 January 2021
Catchwords:	FAMILY LAW – parenting arrangements for children aged 13, 11 and 8 – mother proposing that the children live with her in Brisbane – father proposing that the children live in Town B either in a substantial and significant time arrangement if the mother also lives in Town B or with him if she does not - where the mother alleges that the father engaged in coercive and controlling violence during and after the relationship – where there is simply no sign of coercive and controlling family violence - where the ideal outcome would be for the parents to live near each other and for the children to spend substantial and significant time with each of their parents but where this outcome is not available because the mother is not willing to live in Town B and the father is not willing to relocate to Brisbane - where the children have a good relationship with the father and have all at different times expressed a preference to live in Town B - where the mother and her family are hostile to the father and where there is a risk of this either undermining the children’s relationship with the father or causing the children psychological harm if they live with the mother in Brisbane - where if a choice has to be made between the competing proposals it is in the children’s best interests to live with the father in Town B – where the presumption in s. 61DA applies and where it would not be in the children’s best interests for the presumption to be rebutted – parents to have equal shared parental responsibility for the children.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 65DAC
Cases cited:	Mickelson & Mickelson [2020] FCCA 2986
Number of paragraphs:	308
Dates of hearing:	9, 10, 11 and 19 November 2020
Place:	Newcastle
Counsel for the Applicant, appearing on 9, 10 & 11 November 2020:	Mr Brakell
Solicitor Advocate for the Applicant, appearing on 19 November 2020	Ms Dawson
Solicitor for the Applicant:	Dawson & Co. Solicitors
Counsel for the Respondent:	Ms Dart
Solicitor for the Respondent:	Everingham Solomons Solicitors

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	19 JANUARY 2021