RIBERA & PILGRIM

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIBERA & PILGRIM

[2019] FCCA 36

Catchwords:
FAMILY LAW – Parenting – where there is a history of parental conflict – where both parents seek to relocate with the children – whether the father has caused the children to become aligned with him – whether the mother has harmed the children in the past and whether she continues to physically discipline the children and threaten the children – with whom the children should live – whether an order for equal shared parental responsibility is in the children's best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117, 117(2), 117(2A)

Cases cited:

Hawkins & Roe (2012) 47 Fam LR 526

Penfold & Penfold (1980) FLC 90-800

Applicant:

MS RIBERA

Respondent:

MR PILGRIM

File Number:

TVC 819 of 2016

Judgment of:

Judge Middleton

Hearing dates:

2 to 5 October 2018

Date of Last Submission:

5 October 2018

Delivered at:

Townsville

Delivered on:

15 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Fellows

Solicitors for the Applicant:

Ruhl Family Law

The Respondent appearing on his own behalf

ORDERS

That all previous orders in relation to the parenting of the children be discharged
That the father have sole parental responsibility for the children [X] born …2004, [Y] born …2006 and [Z] born …2010 (the children) including but not limited to:
(a)children's education (both current and future);
(b)children's health;
(c)the children's religious and cultural upbringing.
In exercising his sole parental responsibility and before making a decision the father is to:
(a)inform the mother about the decision to be made;
(b)consult with the mother and seek her input;
(c)appropriately consider the mother's views and input;
(d)upon making a decision, inform the mother within 24 hours of the decision having been made.
Notwithstanding orders 2 and 3 both the mother and father shall have sole parental responsibility for the children during periods when the children are living with them.
That the children live with the father and the father is permitted to relocate the children's residence to the Region 1 area.
That the children spend time with the mother as follows:
During the school term:
(a)During the children’s school term the mother is permitted to spend up to two (2) weekends each term with the children in Region 1, with the mother to provide the father 14 days’ notice of her intention to travel and spend time with the children. The mother is permitted to spend from after school Friday to before school Monday or if Monday is a public holiday or pupil free day before school Tuesday with the children.
School Holiday periods even number years
(b)during the end of term one school holidays from the day following the last day that the children are required to attend school with the children to arrive in Canberra on that day before 6:00pm until the Saturday prior to the recommencement of school with the children to arrive in Brisbane on that day at a time before 2:00pm.
(c)At the end of term two school holidays from the day following the last day that the children are required to attend school with the children to arrive in Canberra on the day before 6:00pm, until the Saturday prior to the recommencement of school with the children to arrive in Brisbane on that day before 2:00pm.
(d)From 2019 during the end of term four school holiday period from the day following the last day that the children are required to attend school, with the children to arrive in Canberra on that day by 6:00pm until 4 January 2020 with the children to return to the father and arrive in Brisbane by 2:00pm on that day.

School Holiday periods odd numbered years
(e)At the end of term one school holiday period for the first half of the school holiday period from the day following the last day the children are required to attend school with the children to arrive in Canberra on that day before 6:00pm until the day that is seven nights later, with the children to arrive in Brisbane on the eighth day before 2:00pm.
(f)End of term two school holiday period from the day following the last date the children are required to attend school, with the children to arrive in Canberra on that date before 6:00pm, until the Saturday prior to the recommencement of school, with the children to arrive in Brisbane on that date before 2:00pm.
(g)During the end of term three school holidays, from the day following the last day that the children are required to attend school, with the children to arrive in Canberra on that date before 6:00pm, until the Saturday prior to the recommencement of school, with the children to arrive in Brisbane on that date before 2:00pm.
(h)During the end of term four school holidays, meaning the holiday period commencing in the odd-numbered year from 4 January with the children to arrive in Canberra on 4 January before 6:00pm, until the Saturday prior to the recommencement of school with the children to arrive in Brisbane on that day before 2:00pm

Communication of the parties
(i)that the telephone communication occurs as follows, provided that the mother is living in Canberra and the father is not living in Canberra;
(i)When the children are with the mother, the father is at liberty to contact the children by telephone or Skype at any time between the hours of 5:00pm and 8:30pm ACT time on weekdays and at any time before 6:30pm (ACT time) on Saturdays and Sundays. The father is to send a text message to the mother by 4:00pm that day indicating whether he will be contacting the children that night.
(ii)when the children are with the father, the mother is at liberty to contact the children via telephone or Skype on each Tuesday, Thursday and Sunday evening between 6:30pm and 8:00pm (Queensland time).

Travel expenses

That the:
(a)mother is responsible for meeting the costs of flights associated with children travelling from Brisbane to Canberra at the commencement of the children's time with the mother in accordance with these orders;
(b)father is responsible for meeting the costs of flights associated with the children travelling from Canberra to Brisbane at the expiration of the children's time with the mother in accordance with these orders;
(c)mother is responsible for meeting the costs of flights for her to travel to spend some time with the children in accordance with these orders during school terms.
In the event that flights to Sydney are less expensive than flights to Canberra at the time that flights are booked the children may fly between Sydney and Brisbane and the following is to apply;
(a)the mother is to inform the father, within 21 days of the children's departure to spend time with her that she will be paying for the flight from Brisbane to Sydney
(b)the mother is to provide the flight itinerary for each child in accordance with order 7(a), or 8 (a) as the case may be, to the father within 14 days of the flight departure
(c)the father is to provide the flight itinerary for each child in accordance with order 7(b) to the mother within 14 days of the flight departure; and
(d)the mother is to drive the children between Sydney and Canberra, provided that the flight the children are to catch does not depart or arrive at Sydney earlier than 10:00am.
The father is to be responsible for collecting the children from Brisbane airport and delivering them to Brisbane airport at the commencement and expiration of the children's time with the mother.
That the father and mother shall do all acts and things and sign all documents within 14 days of request from the other to do so to obtain a passport for each of the children with the costs of obtaining a passport to be shared equally between the parties.
That the children's passports shall be held in the possession of the Federal Circuit Court registry in Brisbane, unless it is otherwise agreed they will be held by a parent.

Overseas Travel

If either party intends to travel overseas with the children then both parents will sign and/or provide authority for the release of the passports from the court registry within 72 hours of the travelling parent satisfying the conditions in these orders.
The parents agree that they may each be at liberty to take the children overseas during the children’s school holiday periods that they each spend with the children in accordance with these orders, provided that the advice provided by the Commonwealth Government's Department of Foreign Affairs and Trade (presently available on the website SmartTraveler.com.au) for that country does not recommend a level III “reconsider your need to travel” or level IV “do not travel”.
Not less than eight (8) weeks before the commencement of any such intended overseas holiday the travelling parent shall deliver to the other parent a full written itinerary of the proposed holiday in writing, including as follows;
(a)The date of intended departure from Australia.
(b)The date of return to Australia.
(c)Names of all cities and countries and places where the children shall be accommodated during the duration of the holiday.
(d)The names, addresses and telephone contact details of the accommodation or requesting party's relatives with whom the children shall visit or stay during the holiday.
Not less than two (2) weeks before the date of departure the travelling parent is to provide the other parent with a copy of the return airline tickets or e-ticket confirmation showing the date of departure from Australia and return to Australia for the children and the travelling parent.
The travelling parent is to within 72 hours of returning to Australia deliver the passports to the registry where they are being held in accordance with these orders or to the parent if an agreement has been reached for a particular parent to hold the passports.
The travelling parent shall return the children to Australia not later than that return date as set out within the set itinerary, unless for reasons outside of the parties control (i.e. weather event) as referred above.

General

Each parent notify the other parent of any change of address, telephone number, including mobile telephone number or email address within 48 hours of any such change occurring.
That the father and mother authorise the children’s school to provide the other parent copies of all school reports and any other reports on the child's progress and behaviour issues and school newsletters and parent letters and this order is authority for the school to provide copies of such documents.
That each parent be restrained and an injunction issue restraining each parent from denigrating the other parent or the other parent’s partner to or in the presence of the children and both parents use their best endeavours to ensure that neither person denigrates the mother or the father or the respective partners to or in the presence of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 819 of 2016

MS RIBERA

Applicant

And

MR PILGRIM

Respondent

REASONS FOR JUDGMENT

This is a parenting application concerning three children, [X] born …2004, aged 14; [Y] born …2006, aged 12; and [Z] born …2010, now aged eight.
The mother, Ms Ribera was born …1978 and was 40 years of age at the time of trial.
The father, Mr Pilgrim was born …1973 and was aged 45 at the time of trial.
The parties’ commenced living together in 2001, married on …2005 and separated on a final basis on 20 August 2015.
The father has re-partnered and now lives with Ms L.
The mother has re-partnered and is now married to and lives with Mr M.
The eldest child [X] reportedly identifies as a pigeon from time to time. No formal diagnosis or any real exploration of this issue had taken place at the time of trial.
The middle child [Y] was sexually abused by the mother’s oldest son from another relationship Mr N when she was between the ages of 2 to 6 years.
Both the mother and father now wish to relocate away from Townsville. The mother wishes to live in Canberra with all of the children and the father wishes to live in the Region 1 region, with all of the children.
The mother alleges that the father has caused the children to become aligned with him through his actions and/or lack of insight.
The father alleges that the children have all reacted to the mother’s alleged violence and abuse towards them in the past.
Both parents concede that there is no effective parental communication or cooperation for the benefit of the children, both parents however, seek an order for equal shared parental responsibility.

The Issues

The issues for determination are as follows;
a.   whether the father has caused the children to become aligned with him;
b.   whether the mother has harmed the children in the past and whether she continues to physically discipline the children and threaten the children;
c.   with whom the children should live;
d.   whether an order for equal shared parental responsibility is in the children's best interests.

The Material

The mother relied on the material as set out in her case outline.
The father relied on the material as set out in his case outline.
The parties relied upon the following reports;
a.   Child Inclusive Conference Memorandum dated 16 November 2016;
b.   Child Inclusive Conference Memorandum dated 13 March 2017;
c.   Family Report dated 28 July 2017;
d.   Family Report dated 28 June 2018;
e.   Report of Ms O annexed to her affidavit sworn on 7 August 2018;
f.   affidavit of Ms P sworn 6 August 2018.

The Law

Guided by the objects and principles as set out in section 60B of the Family Law act I am tasked with making orders that are in the best interests of the children.
Pursuant to section 60CA it is the children's best interest that is my paramount concern.
In determining what is in the children's best interests, I must consider the matters as set out in section 60CC of the Family Law act.
As both parents seek an order for equal shared parental responsibility, I must have regard to the provisions of section 61DA. In the event that I make an order for equal shared parental responsibility, the provisions of section 65DAA are triggered.
Accordingly, I must consider whether the children spending equal time with both parents is in the best interest of the children and consider whether the children spending equal time with each of their parents is reasonably practicable and if it is, consider making an order for the children to spend equal time with each of the parents.
In the event that I am not satisfied of both of those matters, then I must consider whether the children spending substantial and significant time with each of their parents would be in their best interests and consider whether the children spending substantial and significant time with each of their parents is reasonably practicable and in the event that I am satisfied as to both of those matters then consider making an order for the children to spend substantial and significant time.

The Evidence

This matter ran over a four-day period. The mother was represented and the father was self-represented. The mother filed an affidavit consisting of 119 pages with annexures totalling 331 pages.
Perhaps, in circumstances where the father was self-represented, it was not surprising that the father filed an affidavit consisting of 431 paragraphs and relied upon a previous affidavit filed in September 2017 with regards to the annexures attached thereto.
Notwithstanding the voluminous material, the cross-examination of the mother focused upon her relationship with the children and their views that they did not wish to live with her.
The cross-examination of the father focused upon the father ‘aligning the children to him’, his mistrust of the mother, his views of the mothers parenting capacity and his continued belief that the children may be caused some harm in the mother's care in the future.

The Mother

As is often the case the mother's affidavit material is full of complaints about the father and about his attitude towards her and the children.
It is clear that the mother holds the very firm view that the father has sabotaged her relationship with the children. It is clear that the mother blames the father for the relationship that she now has with the children.
The mother’s counsel sought leave to lead further evidence in chief from the mother when she was called for cross-examination. Leave was granted as the mother’s counsel had informed the father of the evidence that would be led and the father did not object.
The mother gave evidence that her relationship with [X] had been reunified since approximately October 2017, and that in the September 2018 school holidays [X] stayed with her for the entire holidays and only went to his father's for breakfast. Her evidence was that [X] now wished to spend more time with her.
The mother conceded that she had pressed for an Expressed Wishes Report to be prepared.
It is not in dispute that the children had been living in a week about arrangement since 17 January 2018.
The mother conceded that she had informed the father on numerous occasions that she would not force the children to live with her in Canberra if they expressed a wish to live with their father.
The mother did not agree that the children had expressed a wish to live with the father but ultimately after being taken to the reports and acknowledging that the children, particularly [X] and [Y], have consistently reported wanting to live with their father, the mother said she just wants what is best for the children.
The mother conceded that at one point in time she did pinch [Y]’s skin as she was frustrated, but indicated it was something she regretted.
The mother did not accept that she yells and raises her voice at the children.
The mother admitted that she allowed her brother, the children's uncle, to move in with her and that there was an incident involving [X]. The mother's version of the incident was that the brother inappropriately disciplined [X], whereas the father's belief, based on [X]’s alleged reports, is that the uncle dragged [X] around the garden by the scruff of the neck showing him where he had failed to weed the garden properly.
The child [Y] had reported that the uncle had touched her on her vagina in December 2017. The mother said she was shocked by the allegations.
When asked whether she believed [Y], the mother said “if [Y] says something happened, something happened".
[Y] was interviewed by police. A summary of the record of interview between the Queensland Police and [Y] dated 22 December 2017 is Exhibit 6. The summary records that the police could take no further action in relation to the complaints as [Y] could not provide further detail into the alleged incident when asked for specifics. All the child could tell the police was that the uncle had put his hand on her vagina under her underpants and when asked how “did this happen?”, the child said on a number of occasions I do not know.
The mother immediately, January 2018, provided an undertaking that the uncle would not be in the presence of the child and had him leave her home.
The mother conceded that the child did not make the disclosure to her but had made the disclosure to her father.
The mother agreed that the child had concerns about moving down to Canberra with her.
Exhibit 7 is a USB containing a recording of two incidents. The recordings were made by [X].
It was put to the mother that she was repeatedly slapping [Y] in one of the recordings. The mother said, “No, I was clapping my hands. It was a stressful day".

It was put to her that [X] had taken a photograph of marks on his neck and sent them to his father. The mother acknowledged that this had happened. When asked as to how [X] got the marks on his neck the Mother said she did not know.
The mother was asked again why did she smack [Y] and she said that she was fighting with [X].
I have heard Exhibit 7. The first incident involves the child [Y] getting ready for a shower. The child can be heard squealing after the mother tells her to get out of her clothes, the child squeals again when the mother comes back to tell her that she has had enough and slapping noises can be heard.
During this incident the mother in a raised voice calls the children “spoilt brats”, and says “I'm not going to put up with your rubbish" and “start your crap at your father's house”.
I formed the view that the mother was out of control and that she was aggressive and demeaning to her children. Having heard the interaction between the mother and [Y], I am satisfied that it was more probable than not that the mother was slapping the child not as she says, repeatedly clapping her hands.
The child [Y] has some bladder control issues. The second incident involves the mother's reaction to the child when the child says that she needs to go to the toilet.
The mother says to the child in a very aggressive tone “if you pee in my car I'll flog you. If you sit there and piss yourself. I will flog you." The mother then goes on to yell at motorists saying “move people" and “fucking stop" the child was repeatedly saying that she did tell her mother that she needed to go to the toilet.
In both incidents it is clear that the mother is very aggressive in her manner towards the child, and even more worryingly it is very clear that the child is clearly distressed and yet the mother persists.
The mother further conceded that [X] had attempted to harm himself so as to avoid going to school on days where he knew his mother would be picking him up. On one occasion she attended school and [X] refused to go with her and so she left the school.
The mother conceded that she had not registered at [X]’s school, but for in the last three months, and that she had not contacted the school. Furthermore, the mother did not know who the children's dentist were until approximately three months prior to trial, notwithstanding that the children had been living in an equal time arrangement since January of that year.
The mother was asked why she had withheld the children from the father and her response was because [Z] had told her that the father had hit a dog in the head with a hammer and killed it and suggested that the father had poisoned a dog with Panadol in the past.
The father challenged the mother as to whether she could prove that the father had poisoned a dog in the past. The mother said she could because she had text messages to prove this. Exhibit 5 is a copy of the text messages. Having perused the text messages, I am not satisfied that there is any proof that the father poisoned a dog with Panadol or that he hit a dog in the head with a hammer and killed it. I am satisfied that the father killed an animal on advice from council officers and that the animal that was killed had been mauling chickens in the father's yard.
The mother conceded that her son Mr N had been in the presence of [Y] after she was abused by him. The circumstances were that the mother, her mother and [Y] had all attended a local shopping centre. The grandmother and [Y] were in their car when the grandmother saw the brother. The grandmother got out of the car went over and hugged Mr N and spoke to him for approximately five minutes. The grandmother then told the child not to tell her father.
The mother told the child's counsellor that she was very upset by the incident and I accept that.
The father withheld [Y] and attempted to arrange interviews between the child and the mother so that they could be reunited and the child's concerns put at ease.
A perusal of Ms O’s notes shows that the child was concerned as at 28 April 2016 that if the mother found out that she had told her father about seeing Mr N, that she would “be mad at me, she will yell at me or pinch me and also grandma will be angry that I broke her promise".
During the cross-examination of the mother, I found her to be very evasive and at times deliberately avoiding answering questions. It was clear that there was a distinct lack of respect from the mother towards the father.

Mr M (mother's partner)

Mr M provided an affidavit filed on 6 August 2018.
His evidence is that he is in a loving relationship with the mother that he has a good close bond with all three children and that he enjoys his time with them.
He provides evidence as to why he is required to move to Canberra in order to take up employment. He acknowledges that he and the mother have spoken to the children about their desire to live in Canberra. It is his evidence that the children have said they want to move to Canberra.
Mr M gives evidence that he has witnessed the father frustrating the relationship between the mother and children, in particular telephone calls. He also gives evidence that the children have been with him and the mother when they were supposed to be with the father on the father's requests.
Mr M gives evidence about the allegations of sexual abuse between [Y] and Mr K. His evidence confirms the facts in relation to when the disclosure was made, the police involvement and their travel to Town A.
Mr M confirms that Mr K has not been in the presence of the children since before 21 December 2017. His evidence is, however, that [Z] would like to see Mr K’s son, [W] again and he has informed [Z] that he might be able to see [W] at some stage in the future. Notwithstanding that evidence, he confirms that it is his intention that the children will continue to have no contact with Mr K moving forward.
Although Mr M was cross-examined by the father, he was only asked one question and nothing turns on the answer provided.

Ms O

Ms O provided an affidavit filed on 8 August 2018 containing all of her evidence in chief.
Ms O counselled the children for the following periods of time:
a.   [X] between 18 December 2015 and 11 August 2016;
b.   [Y] between 14 April 2016 and 21 July 2016; and
c.   [Z] between 14 April 2016 and 21 July 2016.
Ms O confirms that both parents attended at some of the children's appointments.
Ms O notes that both parents on occasions told the other parent that Ms O had said something to them in relation to the other parent the children or their ongoing care that Ms O did not say.
Ms O provides evidence that on 11 July 2016, she forwarded an email to both the mother and father and in that email she essentially stated that the conflict between the parents was negatively affecting the children and they should not be speaking negatively of each other within the children's hearing. At that time [Z] and [Y] were living with the mother and [Z] was living with the father.
Ms O’s evidence is that she continually recommended that the parents improve their communication with each other for the benefit of the children.
On 19 August 2016, Ms O became aware that [X] no longer wished to see her and she provided the father and his partner with options related to [X] seeing another counsellor. Ms O indicated that the father should discuss any change with the mother.
On 25 August 2016, Ms O received an email from the father advising her that an appointment had been made for [X] to see a counsellor at Centrecare. On 8 September 2016 the father sent an email to both Ms O and the mother advising them that [X] would be attending Centrecare for counselling moving forward.
On 13 September 2016, Ms O was subpoenaed to “provide all of her clinical notes, file notes and writings, SMS messages from or to, emails and appointment dates and appointment reports in relation to both the parties and the children.” Ms O gives evidence that she provided all the requested material to the court.
In October 2016 she received a call from the father indicating that he was dissatisfied with her production of documents under subpoena and suggested that she had not produced all documents and that she had withheld documents that she had obtained from Centrecare before starting counselling sessions with [Y]. It is Ms O’s evidence, and I accepted that she did not at any stage obtain documents in relation to [Y] from Centrecare.
In relation to [Y], the clinical notes provided by Ms O indicate that on 28 April 2016, the child was concerned that the mother would be mad at her, yell at her or pinch her as a result of the child disclosing having seen Mr N.
The notes on 27 April 2016 also indicate that the child reported “I am scared that mum will be angry and sad that I told dad and I will get in trouble by her, she will yell and pinch me".
The clinical notes in relation to appointments with Mr Pilgrim indicate that on the 19 August 2016, both the father and his partner felt that it would be best for [X] to have no contact with his mother due to the child's fixed and stubborn views about the mother. The notes confirm that it was the father's view that the child needed time out from his mother and some help through counselling before he could spend time with her.
The clinical note of 9 July 2016 confirm that Ms O:
“informed him that the way that he and Ms Ribera are behaving is having a detrimental effect on the children and they may be feeling like they need to take sides. He seemed reluctant to accept this, or to acknowledge that he has somehow played a part in how the children are reacting. Instead he continued to want to emphasise that it was Ms Ribera’s behaviour and Ms Ribera’s “craziness" that has turned [X] away from her."
Clinical notes with regards to [X] indicated on 6 August 2016 in a joint session between the mother and [X], [X] said to his mother “if you stop hurting me like pinching me, stomping on my foot and uncle Mr K pushing on my neck I would come back but I don't want to now."
Furthermore, the note indicates that [X] had witnessed his mother biting his father and that he was really scared the night of their separation. The mother during that session apologised to [X] saying “[X], I apologise for you seeing that you should never have been exposed to that. I am sorry you had to see that."
The notes clearly indicate that [X] had a preference for living with his dad and not seeing his mother for some time.
The clinical notes of 3 August 2016 provide detail in relation to the allegation that Mr K had inappropriately disciplined the child. The notes indicate that his uncle had held onto the back of his neck in a very forceful manner because the uncle had asked [X] to do something and he had not done it well enough and he was “dragging me over by my neck to make me do it again."
The clinical notes of 18 July 2016 and 18 December 2015 both provide detail from [X] that he does not like it when his mother pinches him.
Page 66 of Ms O’s affidavit is an email from Ms O to both parents, the email outlines Ms O’s frustration with both parents in the following terms:
“Ms Ribera your email to me outlined that you had spoken to [X] about his options and he has chosen to go with Mr Pilgrim. That was not agreed on the proposal I sent to the both of you on 21 July. My understanding is that this week would have been your week Ms Ribera with the kids so whatever the normal routine would be for [X] should have been in place for yesterday's pickup after school. I am also concerned that the change of the plan was not discussed with Mr Pilgrim but rather left up to [X] to make a decision about, when I've just tried to be really firm about giving [X] the message that parent make decisions about his living arrangements, not him. If there was much better communication between the both of you, yesterday's incident could have been dealt with much better.”
Ms O continues in her email as follows:
“the both of you need to stop attacking each other's parenting and also each other as a person. I think that you both need to refrain from talking negatively about each other when the children are in your care. This is influencing the children's attachment to each of you and it is emotionally damaging to the children's welfare.”
Ms O was cross examined.
Ms O conceded that she did not believe there was any one particular incident which caused a change in the children's relationship with their mother. Her evidence was that the father was not encouraging the contact between [X] and his mother.
Ms O was of the view that Mr Pilgrim was slowing things down in relation to [X] and his mother because he was of the view that no contact between the mother and [X] was necessary until such time as [X] had received appropriate counselling.
Ms Ribera conceded that both she and the mother had worked at Employer at the same time. She acknowledged that there would have been some professional interaction but that there was no personal relationship and that she had no recollection of the mother until she turned up for the first appointment. She gave evidence that she told the father that, in her view, there was no conflict.
When cross-examined by the father, Ms O confirmed that she had made a report as a result of being informed that [Y] had had contact with Mr N.
Ms O confirmed that [X]’s relationship with his mother was strained when she first saw him some four months after separation.
Ms Ribera confirmed that the father probably did ask her if there was anything he could do to bring about a change in the relationship between [X] and his mother.
Ms O confirmed that it was her view that [X]’s reasons for not wanting to see his mother were historical from a time around separation and a little bit before.
Importantly, having perused Ms O’s notes and having considered the entirety of her evidence, there is nothing contained therein to support the allegation that the father has been actively alienating the children from their mother.
What is clear is that both parents due to their inability to put their children's interests first have created a situation where the children's attachment to each of the parents is being influenced and the children's emotional welfare was being damaged as a result.
Furthermore, both [X] and [Y] had outlined reasons for being frightened of their mother. Both children report being pinched, smacked and verbally abused.
In my view all of these factors led to the older children ultimately deciding to live with their father. They felt safe in his care.

Ms R

Ms R had seen the family on four separate occasions dating back to November 2016. Ms R had prepared two child inclusive conference memorandum and two family reports.
The first memorandum provides evidence that at that time, 16 November 2016, [X] did not want to spend time with his mother and he gave reasons that his mother had been bad to him ever since he was five or six and he claimed that his mother pinched him, called him “dumb as dog shit” and stomped on his foot.
Both the other two children were reportedly sad at the separation between their mother and father and [Y] acknowledged that she was scared that her mum and her nanny that would get upset about her disclosure regarding having seen Mr N.
At the subsequent child inclusive conference on 13 March 2017, [X] was still adamant that he would not be seeing his mother and that he liked living with his father and that he does not get hit if he does something wrong at his father's.
[Y] thought the equal time arrangement was kind of nice because she got to see both her parents. [Z] also liked living with both of his parents.
At the time of interviews for the first family report in July 2017, [X] was still adamant that he did not wish to see his mother, [Y] was living with the father and spending time with the mother and indicated that she enjoyed that, as was [Z].
Ms O’s evaluation at paragraph 226 is as follows:
“the narratives of family members indicate the presence of physical, sexual, and emotional abuse, hatred, anger and secrecy, physical and emotional cut-off, lack of respect and psychological harm of children. Moreover, these themes are intergenerational with common features and behaviour patterns emerging as a result of individual's experiences within their family structure. Attempts to address these issues legally and/or therapeutically appear to have encountered entrenched behaviour patterns and resistance to change."
Ms R continues at paragraph 228;
“each adult views the other as the problem and thinks the other needs to change. This risks getting caught up in a circle of hostility."
It was Ms R’s view that the data suggested that Ms Ribera may be more aggressive in her expressions of anger, for example, yelling and hitting while Mr Pilgrim presented a more passive picture.
Ms R was of the view that the father's own personal history of abuse may have impacted upon [X], in particular in a negative way. However, she opines:
“Thus, the critical incidents described by [X] may be a contributing factor in the adolescence's rejection of his mother. [X] spoke of witnessing interparental conflict. This in itself may place the child in a loyalty bind between their parents and can induce guilt, sadness, mistrust, withdrawal or defensive actions. Children who feel caught in such a bind may eventually align with one parent and exclude the other parent from their lives."[1]
[1] paragraphs 236 and 237 Family Report 28 July 2017
Ms R was also of the view that to date each adult had demonstrated little capacity to foster a relationship between each child and the other parent.[2]
[2] paragraph 265 Family Report 28 July 2017
At the interviews in April 2018 for the preparation of the report dated 28 June 2018, Ms R noted that all of the children enjoyed a loving close bond with both of the parents in particular the relationship between [X] and his mother had improved considerably.
Ms R was of the view that the children love each of their parents and that each of the children had reported a good relationship with both parents.
It was her view that the parental conflict was still the main pervasive factor interfering with these children's lives.[3]
[3] paragraphs 184, 187 Family Report 28 June 2018
The children had been living in an equal time arrangement since January 2018 and appeared to be coping well and liking it. As a result, the father was happy for an equal time arrangement to continue. It was a recommendation of the family consultant Ms R that the equal time arrangement did continue. However, subsequent to the family report being released both the mother and father have decided to relocate to different parts of Australia.
Ms R was cross-examined. She gave evidence that she did not think that the father was encouraging the relationship between [X] and his mother and that he was very reluctant to do so and did not have any insight into the damage that may cause [X] moving forward.
Ms R confirmed her view that a child caught in conflict may become aligned to one parent as a coping mechanism.
Ms R conceded that if [X] felt the need to support his father's emotional well-being and the move to Region 1 did not work out, that that might be a risk to the child. Ms R confirmed her view that the equal shared care arrangement was in the whole working well with all of the children.
When asked whether the court could be confident that the father will encourage a relationship with the mother and all of the children moving forward Ms R said, “there is information that he has done so and he can do so."
When pressed as to whether she was concerned about his ability to encourage such a relationship, Ms R said “Mr Pilgrim is more willing than unwilling to promote the relationship."
Ms R confirmed that it was her view that the mother had limited capacity to improve the relationship between [X] and herself and offered a number of hypotheses as to why [X] had reunited with his mother including that initially [X] was aware of the parental dispute, and that some of his views were based upon his own experience.

Her view was that once the father had become more directive with [X] that assisted, that the day time exposure with the mother was positive, that Ms L’s encouragement of [X] was also positive and that [X] had started missing his mother and the fact that Mr M was working in …employment industry, something [X] is very interested in, were all factors that may have caused the change.
When asked by the father who was to blame, Ms R said, “you could debate what percentage you each should have."
Ms R said that she believed both [X] and [Y] would feel closer to the father regarding emotional responsibility. She stated that [Y] talked about feeling safe with the father and that [X] had felt close to him since separation. She believed both [X] and [Y] had been caught in the loyalty bind, but that they both identified the father's home as the emotional home base.
Ms R was concerned that if the children's views were not listened to, they might begin to question whether they can trust authority in the future.
Ms R was not in favour of the express wishes report but said now that the children have been put in the position to nominate who they wish to live with another problem has been created if those wishes are not listened to.
Ms R conceded that the children had never complained of feeling stressed in the father's home nor had they expressed feeling hassled and, but for a short period of time where [Y] felt a little unsafe in the father's home, none of the children had complained of feeling unsafe in his home.
Having considered all of the evidence of Ms R, I am satisfied once again that the parents inability to put their parental conflict aside for the benefit of the children has caused psychological harm to all of the children.
I am satisfied that it is predominantly as a result of the parental conflict that [X], in the main, became aligned to his father. Whilst I acknowledge that the father at times was reluctant to encourage [X] to spend time with his mother and that he as a result lacks some insight, I am not persuaded that the father has deliberately set out to alienate the child from his mother.
In my view both parents have played a major part in the family dynamics in which they and their children are now placed.
Furthermore, I am satisfied that the father was doing all that he could, taking into account his lack of insight, to try and repair the relationship between [X] and his mother and ultimately to encourage [X] to have a relationship with his mother.
I am satisfied that both he and his partner Ms L ultimately persuaded [X] to have a relationship with his mother and that had they not done so there was little chance that [X] would have a relationship with his mother at this time.
The observation sessions reported by Ms R between [X] and his mother indicate that the mother also had very limited insight into what she could do to assist [X] in having a relationship with her.

Ms P

Ms P was not cross-examined however provided evidence by way of affidavit filed on 6 August 2018.
Annexure 1 is a treatment report prepared by Ms P on 15 March 2017. At paragraph 10 she says this:
“this plan is predicated on the assumptions that children should have the opportunity to enjoy a healthy relationship with both parents and that adult conflict can polarise a child's relationships including rejection of one parent. ……the experience of rejection of a parent is conceptualised as a maladaptive coping strategy to manage anxiety and fear."
Ms P gave some insight as to why some children may become aligned with other parents. She said;
“further along the continuum, children may form alignments with one parent as a reaction to separation. Some children, especially young adolescents, make an alignment with one parent against the other for a number of reasons – anger and hurt at the parents decision to separate and the manner of leaving the family, moral indignation of the parents behaviour, worry and sympathy for the left behind parent, and untenable loyalty conflicts and guilt that make the choice a relief."
[X] was an adolescent at the time of separation. [X] has complained about the mother’s violence towards the father at the time of separation and [X] has been assessed as worrying about his father's emotional well-being as a result of the separation.
Furthermore, Ms P gave this opinion;
“when children who resist contact with or reject a parent completely, it is imperative to identify the reasons for the resistance or rejection. Children may become realistically estranged from one parent when there has been a history of family violence or abuse/neglect. While these children may resist contact with a parent, this is due to experiences of trauma, resulting in anxiety and fear. At the same time, it is normative for these children to long for and desire a relationship with their parent, and experience, confusion, grief and loss."
[X] reports a history of family violence and he reports being abused by his mother in terms of derogatory comments pinching stomping on feet and other acts of abuse. Ms P continues as follows;
“If [X]’s reports of his parent’s relationship are accurate, it is quite possible that Ms Ribera has engaged in behaviour that failed to meet [X]’s needs in the way he needed. She may have been unable to be effectively child focused and engaged in discipline that was harsh or punitive. … [X] is not ambivalent and does not see any value in re-establishing a relationship. It is of concern that he is unable to generate possible benefits to do so, and if his statements regarding his father are accurate it is also concerning that his father has not encouraged him to identify these benefits."[4]
[4] paragraph 34 Ms P’s affidavit filed 6 August 2018
At paragraph 42, Ms P opines as follows;
“within this context, it is quite likely that [X] has experienced multiple occasions where both parents failed to support his relationship with the other parent. In this context, he is likely to have been unable to feel a sense of emotional safety and secure connections with both parents.”
Ms P is of the view that it is overly simplistic to consider that one parent alone can cause a child to reject a parent.[5]
[5] paragraph 46 Ms P’s Affidavit filed 6 August 2018
I too believe it is overly simplistic, particularly having regard to the circumstances of this case and the family dynamic that has played out to suggest that one parent alone has caused [X] to reject his mother.
It is important to note that at paragraph 49 of Ms P’s affidavit she states:
“Mr Pilgrim is the person who is best able to influence [X] and assist him in identifying the benefits of re-establishing a relationship with his mother. This is a critical first step, and in the event that Mr Pilgrim is unable or unwilling to engage in this therapy there is limited confidence that sessions with [X] will serve any purpose."
Clearly, [X] has a meaningful relationship with his mother once again. Without the influence of his father, either alone or in concert with his partner Ms L, there is in reality, in my view, no real chance that [X] would have this relationship to date.
While I am satisfied that both parents have engaged in troubling behaviour that has not met their children's best interests. I am satisfied that at the time of trial the father had done all that he could, again noting his lack of insight and some parenting deficits, to encourage and promote the relationship between [X] and his mother.
The fact that [X] spent more time with his mother in the recent school holidays is testament to the fact that [X] now feels comfortable having a relationship with his mother.
Having considered the evidence of Ms P, I found it to be most insightful and indeed many of the hypotheses she put forward were evident in this family's dynamic.
I am satisfied that [X] formed a negative view of his mother based upon his personal experiences and that initially that negative view was reinforced by his father.
I am also satisfied that over time his father through the assistance of therapeutic intervention, reading of various reports, and the assistance of his partner came to realise that he needed to convince [X] that a relationship with his mother was in his best interests.
I am satisfied that the father believed he was doing all that he possibly could since the time of separation however, his ability to take positive steps was impaired by his own feelings towards the mother and his at times, lack of insight.
Furthermore, the mother’s reaction to the situation involving [X] was equally unhelpful in encouraging [X] to have a relationship with her. She too lacked appropriate insight but over time gained that insight through therapeutic counselling and the benefit of reading various reports.

The father

As was the case with the mother's affidavit, the father's affidavit is full of negative comments about the mother's parenting capacity. The father, it seems, was focused on painting the mother in a bad light so as to achieve his desired result. The father was cross-examined.
The father conceded that he believed there was a strong possibility that the mother would procure a relationship between the children and Mr K and Mr N. He furthermore conceded that he believed that the mother lacked parental capacity.
The father was taken to a Facebook post that he had shared, the post was in the following terms,
“when your ex texts you”
“Do you still hate me. Yup, on a scale of 1 to 10 if I had a gun with two bullets and was in a room with Hitler, bin Laden, and you I would shoot you twice.”
The father indicated it was a joke. The father conceded that his daughter [Y] was a friend of his on Facebook, but that he did not think she had seen it.
A perusal of the Facebook interaction reveals that not only did his daughter [Y] see the post she responded to it by saying “ha ha ha ha ha ha very funny.”[6]
[6] paragraph 360 of the wife's affidavit
Clearly this is a glaring example of the lack of insight that the father has from time to time.
The father gave evidence that he believed the mother was an unfit parent because she had reunited [Y] with her abuser Mr N and allowed a sexual predator into her home.
The father could not be shaken in his belief that the mother allowed [Y] to be reunited with Mr N, despite the child saying that it was her and grandma that were alone. Neither can the father be shaken in his belief that the child was sexually abused by Mr K.
A factor that influences the father's opinion in this regard is his belief that Mr K showed pornographic material to Mr N at and around the time Mr N sexually assaulted [Y] when she was a young girl.
The father conceded that he believed Ms R’s report was flawed that Ms P’s report was flawed, he believed Ms R was biased in favour of the mother and in real terms the cross examination on this point led me to believe that the father became very dissatisfied with anybody that disagreed with his view in relation to what was best for the children.
The father conceded that he and his partner had a separation approximately 5 to 6 weeks prior to the trial for a period of 2 to 3 days. He said that it was “a build-up of pressure of all that was going on, the constant battle with [X] and his mother, accusations that were being levelled at him, renovating a home seven days a week and a lot of other pressures.”
The father gave evidence that his partner was leaving on the Saturday following the trial to reside in Region 1 and that he would leave after I made my decision.
The father conceded however that it was a recent change to his case for him to relocate with the children to Region 1. He gave evidence that the reason why he was moving to Region 1 was to be with his partner and that she was leaving to live in Region 1 because the father of her children wanted to live on the Region 2.
The father conceded that on or about 2 July 2018 he agreed for the children to move to Canberra. It was at a time when he and Ms L had separated. The father also gave evidence that he had suggested that the equal time arrangement could continue if he were to reside in Canberra.
The father was cross-examined as to his ability to earn income and support the children should they reside with him and his answers satisfied me that the father would be able to support the children financially.
The father conceded that there was a dispute in relation to Christmas holiday time that had resulted as a result of him not reading the consent orders properly. Furthermore, that as a result of the dispute the father was no longer in agreement for the children to spend the extended time with their mother.
The father further conceded that it was at around this time, namely 21 December 2017 that the child [Y] made a disclosure about her uncle Mr K indecently assaulting her.
The father agreed that the mother had very shortly thereafter provided an undertaking that the children would not come into contact with Mr K, but that notwithstanding that undertaking he refused to allow the children to go to their mothers.
Despite the police closing the file without charging Mr K, the father is absolutely of the belief that [Y] was sexually assaulted by Mr K.
The father conceded that he made a mistake and error in judgement concerning the events around December 2017 and in particular in taking the children back to the mother's home on 23 December 2017 in circumstances where he accepted that it could have become very volatile in the presence of the children.
Having assessed the father's evidence in its entirety, I am satisfied that he, like the mother has a mistrust and somewhat lack of respect for the mother.
I am satisfied that he forms entrenched views that cannot be shaken with objective independent evidence and that as a result, the relationship between he and the mother has become challenging to the detriment of all of the children.
However, I am satisfied that the father is an honest historian and that he was acting protectively due to his concerns about the children. His concerns are no doubt impacted upon by his lived experiences as a child and young adolescent.
I am not satisfied that the father has maliciously intended to interfere with the relationship between the mother and children. I am satisfied that the relationship between the children and their mother has been impacted upon by various factors, all of which have been outlined in my reasons previously and that each of the parents should take equal responsibility for the family dynamic that is in play currently.

Ms L

Ms L provided evidence in the form of an affidavit filed on 11 January 2018. The evidence in chief contained within the affidavit goes to the events between 21 December 2017 until 5 January 2018. Those events obviously concern the allegations raised by [Y] and the actions that the father took in response to those.
Ms L was cross-examined, she conceded that she was a party to the suggestion that the parents all sit down with the children and discuss possible outcomes with regards to their living arrangements. She believed that it was a good idea for all of the parents and the children to have this discussion.
Ms L was otherwise cross-examined in relation to her move to the Region 1 area and nothing turns on the questions asked or the answers given.

Expressed Children's Wishes Report

The report of Ms S was admitted into evidence as Exhibit 1 and neither party sought to cross examine the report writer. As a result the evidence contained within the report remains unchallenged.
[X] expressed the view that he wished to live with his father, [Y] expressed the view that she wished to live with her father and [Z] wants live with each parent an equal amount of time.
It is important to note the conclusion reached by Ms S and in doing so it is my hope that the parents reflect upon that conclusion, and upon their responses to their children's needs and alter the way in which they respond to their children moving forward.
Ms S’s conclusion is as follows;
“the interview responses of [X], [Y] and [Z] indicate all three children are experiencing severe cognitive dissonance over their parents decision to leave Townsville and live in different states. The children cannot reconcile this dilemma internally and it is causing significant levels of distress, anxiety and depression in each of them. Whilst [X] and [Y] are able to express their views that each would prefer to live with their father, their overall responses indicated that being put in a position of having to choose one parent over the other was extremely distressing and violated the sense of fairness, equity and love they feel for their parents. [Z], like many children at his developmental level is unable to cognitively and emotionally cope with this dilemma and is still grieving the separation of his family.”(My emphasis added)
As I have indicated in my reasons to date, the fact that these children were being exposed to and experiencing significant levels of distress, anxiety and emotional upheaval had been highlighted to these parents repeatedly over the course of litigation by, without exception, every single expert they had engaged in.
Their desire to “win” at all costs blinded them to the reality that their actions were causing their children to suffer harm. This is a tragedy for these children and as I say I hope that when they read these reasons, and now that the litigation is over, they take the time to reflect and make positive changes to their responses to their children's needs.

Assessment of the evidence in light of the legislation

The evidence establishes that there is a benefit to all of the children in having a meaningful relationship with both of their parents. The evidence also establishes that the children are now all having a meaningful relationship with their parents and their ages are indicative of them being able to maintain that meaningful relationship notwithstanding the fact that their parents will now live in different states.
There is evidence that the mother has been violent towards the children in the sense of her discipline. I am satisfied that she has yelled and screamed at the children, pinched the children and has physically disciplined the children in an inappropriate manner.
However, I am also satisfied on the evidence that the mother has changed her discipline practices and that the children now feel safe in her care. For that reason, I do not see there is a need to protect the children from physical harm from being in the mother's care.
Both parents through their own actions have caused psychological harm to the children.
The evidence establishes that both parents have lacked insight into their children's needs and that both parents have put their unwavering desire to win well above the needs of their children.
The evidence further establishes that the parents are beginning to learn that their past behaviours were not in the best interests of the children and I am satisfied that moving forward the evidence supports a finding that they will both now, particularly that there is no further litigation on foot, put their children's needs above their own desires.

Additional considerations

[X] has been expressing a desire to live with his father since separation. [Y] over time has indicated a preference to live with her father and [Z] has at all times been undecided or wanting to live with both of his parents.
The evidence establishes that both [X] and [Y] feel more emotionally supported in the father's home. It also establishes that they feel somewhat responsible for their father's emotional well-being. Whilst that may be an unfortunate by product of this family's separation it is nevertheless a reality.
Now that all of the children have been somewhat forced to express a view, I am mindful of the risk that Ms R raised, in that, if their wishes are not now followed this may cause further issues relating to trust of authorities into the future.

Their views are important having regard to their age however, the weight that I give their views must be tempered by the circumstances in which they have come to form those views.
The evidence establishes that the children now have well-formed relationships with both of their parents, consisting of a loving and secure attachment and that they have well-formed relationships with both of their stepparents.
[Y] in particular has formed a good relationship with Ms L’s daughter however I note that Ms L’s daughter will be living with her father in Townsville for some indefinite period and that this relationship will be altered as a result.
Both parents have taken every opportunity afforded to them to spend time with and make decisions regarding each of the children. Both parents have made unilateral decisions along the way based upon their own perceptions of the need to protect various children from time to time.
There was no evidence to suggest that either parent has failed to maintain any of the children financially and nothing turns on this.
As a result of both parents’ proposals, there will be a significant change in the living arrangements of the children.
The disadvantages of the change in living arrangements are equal with regards to both proposals. The children will live the majority of the time with one parent and will live either in Canberra, a place relatively unknown to them, or in Region 1, a place relatively unknown to them.
In real terms the children's need for emotional security is the defining factor which sways in favour of one parent's proposal over the other. All of these children will no doubt feel a loss and a sense of grief after having spent a considerable period of time living on an equal basis with both of their parents.
The capacity of the individual parent’s ability to meet the emotional needs of the children is an important factor in deciding this case, as is which of these parents the children lean towards in order for their emotional needs to be met.
As a result of the intended relocations of both parents there will be a practical difficulty and expense resulting. The father conceded that it is appropriate for both parents to pay equally in the cost of travel for the purpose of the children spending time with both parents and the mother also has proposed that the costs of such travel should be met equally. I am satisfied that that is an appropriate order.
I am satisfied on all of the evidence that the father's ability to meet the needs of the children including emotional and intellectual needs slightly outweighs the mother's ability.
The two older children report feeling emotionally secure in the father's home and the evidence of the observations made between the children and their parents by Ms R confirm for me that the children gained more comfort in their father's care than that of their mother.
Both [X] and [Y] use phrases such as “he listens to me” and “he understands me.” It was perhaps telling that [Y] made a disclosure to her father and not her mother in relation to her uncle Mr K. The mother accepts that if [X] said something happened, it happened.
It was evident throughout the proceedings that [X] had identified as a pigeon for some period of time. The parents could not reach agreement as to whether he needed to be assessed. The mother says it is concerning, the father treats it as a joke and his partner considers it concerning.
Ms R thought it was concerning and needed further investigation. If the behaviour continues I am of the view that [X] should be assessed. However, I am not persuaded that I should make an order for [X] to be assessed because there is no evidence that this behaviour on the part of [X] has interfered with his social interactions, or his schooling. That is, there is no independent evidence that [X] is identifying as a pigeon and that this is causing him some form of emotional upheaval or dysfunction.
None of the children are Aboriginal or Torres Strait Islander.
I have said a great deal about the parent’s attitude towards their responsibility of parenthood that they have demonstrated. Each of them have engaged in behaviour that has impacted negatively upon the children and they have done so as a result of their unwavering desire to win this case. Hopefully my comments will dwell in them for some time and cause a change to the attitude that they may demonstrate in the future towards their responsibilities as parents.
I am satisfied on the evidence that the incidence of yelling derogatory comments and physical harm by the mother to the children actually occurred. In those circumstances those incidents amount to family violence in the mother's home. That family violence contributed to [X]’s refusal to spend time with his mother. It also caused [Y] to feel unsafe at times in the mother's home and to be concerned that if she were to get in trouble the pinching and yelling would again commence.
The evidence however does not satisfy me that there is a real likelihood of family violence occurring in the mother's home in the future. I am satisfied that she regrets her actions and that those actions occurred at a time during early parental separation. There is no evidence that the mother continues to behave in that manner, nor is there any evidence that could persuade me that she is likely to reengage in that behaviour.
The totality of the evidence satisfies me that I can have confidence that the father will continue to facilitate and encourage a relationship between the mother and children and that the mother will also continue to facilitate and encourage a relationship between the father and the children.
It was a submission of the mother through counsel that the father had sabotaged Ms R’s work. I am not satisfied that the father did that. The father informed Ms R that [X] was feeling pressured by Ms R’s constant recommendation that he spend time with his mother. He spoke to Ms R about this and Ms R provided him with advice about potentially seeking the assistance of another counsellor.
I am satisfied on the evidence that the father could see that [X] was feeling pressured and rather than simply stop the counselling, he sought the assistance of a further counsellor to assist [X] in understanding his emotions.
It is not the case where the father stopped the time with Ms R because she was supporting a relationship with the mother, rather it is the case that the father was placing [X]’s needs above the needs of reunification at that time. Once again this may show a lack of insight. However what is not in dispute is that despite the father's actions regarding Ms R, the father continued to encourage [X] to have a relationship with his mother and he now has a meaningful relationship with his mother. For those reasons I cannot accept that the father was sabotaging Ms R’s work.

Parental Responsibility

As the parents were separating the evidence supports a finding that the arguments and disputes in the family home increased. However, having considered all of the evidence regarding those disputes and conflict, I am not satisfied that I could make a finding that there was family violence between the parents.
I have however made a finding that the yelling, derogatory comments, and inappropriate physical discipline of the children amounted to family violence. In those circumstances, the presumption found at section 61DA (1) of the Family Law act does not apply.
Both parents agree that their ability to communicate is very limited. In circumstances where the children will live in a separate state to one of their parents and the parents have failed in the past to reach agreements about important matters relating to their children's wellbeing, I am not satisfied that an order for equal shared parental responsibility is an order that is in the best interests of the children.
The evidence of all of the experts is consistent in that the parental dysfunction has been the cause of much emotional upheaval for these children. In those circumstances it is counterintuitive to make an order for these parents to have equal shared parental responsibility where there is no evidence to support a finding that they will be able to cooperatively parent for the benefit of the children.
I am of the view however that it is important that the parent with whom the children reside have sole parental responsibility and that, in exercising that sole parental responsibility, they must advise the other parent of a decision that they are going to make, seek the other parents input, appropriately consider the other parents input and advise the other parent of the ultimate decision made once made.
As I am making an order for sole parental responsibility the provisions of section 65DAA are not triggered and perhaps more importantly in circumstances where these children will live in a different state to one of their parents an equal time order and a substantial and significant time order are not orders that are in the best interests or reasonably practicable for these children.
For these reasons I am satisfied that the orders I have made are in the best interests of the children.

COSTS

The mother sought an order that the father pay the costs of Ms P.
The basis for seeking costs was as a result of the father initially requesting that Ms P be made available for cross examination and thereafter, during the trial stated that he no longer wanted to cross examine her.
Section 117 of the Family Law Act sets out that each party to the proceeding shall bear their own costs. The general principle is subject to section 117(2).
In Hawkins & Roe[7] considering the issue of costs in parenting cases, the Full Court said:
13. “In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.
14. “In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.”
[7] (2012) 47 Fam LR 526
I am required to make a finding of justifying circumstances as an essential preliminary matter if I am to order costs.[8] In doing so I must have regard to the matters set out in section 117(2A).
[8] Penfold & Penfold (1980) FLC 90-800
The father is currently between jobs although says he could maintain the children and I accept that. The mother lives with her husband in Canberra and he supports her.
Neither party is in receipt of legal aid.
The main thrust of the mother’s application for costs is based upon the father’s conduct in changing his mind about cross examining an expert witness.
The father was self-represented. He had no experience in the conduct of trials. He ultimately, after having been involved in conducting his trial for a day decided that he did not wish to call the expert. That is not unreasonable in my view. Indeed by not calling the expert for cross examination it could be argued that he had decided to not waste the courts time by pursuing irrelevant issues.
The proceedings were not necessitated by the failure of either party to comply with previous orders of the court.
The mother has been wholly unsuccessful in the proceedings.
There was no suggestion that an offer had been served on the father.
It is relevant that the father, as a result of my orders, will now have the majority of the financial responsibility for the children.
For these reasons I am not persuaded that there are circumstances that justify the making of an order for costs.

I certify that the preceding two hundred and thirty nine (239) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 15 January 2019

[2019] FCCA 36

15 January 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies

Standing