Rushbrook and Rushbrook
[2018] FCCA 1846
•10 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUSHBROOK & RUSHBROOK | [2018] FCCA 1846 |
| Catchwords: FAMILY LAW – Parenting – mother seeks to move with the children from Suburb C to Suburb A where maternal family is – father and family based in Suburb C – parties agree they cannot afford to live in a suburb between the two. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), s60CA, 60CC, 60CC(3), 65D, 61DA(1), 61DA(2). 61DA(4), 64, 65DAA ,65DAA(1), 65DAA(2), 65DAA(3) |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 275 |
| Applicant: | MS RUSHBROOK |
| Respondent: | MR RUSHBROOK |
| File Number: | MLC 9387 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 29 - 31 January, 1 February and 13 April 2018 |
| Date of Last Submission: | 13 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Pearsons Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Walmsley QC |
| Solicitors for the Respondent: | NOH Legal Pty Ltd |
| Counsel for the Independent Children's Lawyer: | Mr Burns |
| Solicitors for the Independent Children's Lawyer: | Robert Halliday & Associates |
ORDERS
That the Applicant Wife and the Respondent Husband have equal shared parental responsibility for the children of the marriage, [X] born 2006 and [Y] born 2010 (“the children”).
That the children live with the mother, provided that the mother lives within a 15 kilometre radius of the children’s schools.
That the children spend time with the Father during school terms as follows:
(a)From Thursday after school to Friday before school in Week 1; and
(b)From Thursday after school to Monday before school in Week 2.
The Father otherwise spend time with the children as follows:
(a)For one half of all school term holidays as agreed and failing agreement the first half commencing from the conclusion on the last day of the term until 5:00pm on the middle day of the said holiday period;
(b)For one half of the long summer holidays as agreed and failing agreement for the first half;
(c)From 11:00am on the Saturday preceding Father’s Day until 6pm on Sunday;
(d)On the Father’s birthday from after school until 7:00pm if a school day and from 10:500am to 5:00pm if a non-school day;
(e)On the children’s birthdays for a period of 2 hours at times to be agreed if the children are not in the Father’s care and in default of agreement from 5:00pm to 7:00pm; and
(f)Half of all religious holidays at times to be agreed and in default of agreement from 2:00pm to 7:00pm in odd numbered years and from 9:00am to 2:00pm in even numbered years.
The Husband’s time to be suspended as follows:
(a)From 11:00am on the Saturday preceding Mother’s Day until 6pm on Sunday;
(b)On the Mother’s birthday from after school until 7:00pm if a school day and from 10:00am to 5:00pm if a non-school day;
(c)On the children’s birthdays for a period of 2 hours at time to be agreed if the children are not in the Mother’s care and in default of agreement from 5:00pm to 7:00pm;
(d)Half of all religious holidays at times to be agreed and in default of agreement from 2:00pm in odd numbered years.
That each of the parents be able to obtain copies of all school notices, newsletters, reports and school invitations and that both parents be entitled to attend school functions including parent teacher nights, sports days and other activities normally attended by parents at the children’s schools.
The Mother and Father shall inform each other as soon as practicable if the children or either of them require medical treatment or are prescribed prescription medication, provide full details of the treating Health Professionals involved in treating the children and each parent be at liberty to contact any of the said Health Professionals about the children’s treatment.
The Mother and Father be restrained by injunction from:
(a)Denigrating the other party or any member of their family to or in the presence or hearing of the children or permitting any other person to do so;
(b)Discussing these proceedings to or in the presence or hearing of the children or permitting any other person to do so;
(c)Using corporal punishment on the children or permitting any other person to do so.
That in the event that either party has a significant or special event they seek the children to attend that they provide the other parent with 14 written days’ notice of their desire to attend with the children. Make-up time will be provided the following weekend in the event of a variation to the time arrangements.
That the parties inform each other of any changes to email address, landline and mobile numbers within 48 hours.
That where changeovers do not take place at either of the children’s schools the father shall collect the children at the Mother’s residence at the beginning of the Father’s time and the Mother shall collect the children from the Father’s residence at the end of the Father’s time.
IT IS NOTED that publication of this judgment under the pseudonym Rushbrook & Rushbrook is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9387 of 2015
| MS RUSHBROOK |
Applicant
And
| MR RUSHBROOK |
Respondent
REASONS FOR JUDGMENT
The mother seeks to relocate with the children [X], born 2006, aged 12, and [Y] born 2010, aged seven, from Suburb C to Suburb A. Whilst the distance between the suburbs is only some 50 kilometres, it was the agreed position that if the father remained in Suburb C and the mother moved to Suburb A, it would not be reasonably practicable for the children to be in an equal or substantially shared care arrangement because of the time required to travel between the homes due to the traffic. It was also common ground that neither party is able to afford to live in a suburb between Suburb C and Suburb A, those suburbs are closer to the Melbourne CBD and therefore more expensive and sought after.
It is the mother’s case that she feels isolated and unhappy in Suburb C and wants is the support of her family in Suburb A. She will not move without the children.
It is the father’s case that the children are settled in Suburb C and have friends and family nearby. He works close to home and is available in case of an emergency.
The Independent Children’s Lawyer (“the ICL”) supports the father’s case.
The parties started living together when they married on 2003. They separated in July 2014.
The parties agree that their marriage was a traditional one. The father was the breadwinner and the mother was the primary parent and homemaker.
The parties were able to settle the property proceedings but not the parenting proceedings.
Initially, the mother was also reliant on the affidavit of Ms C and the ICL was seeking to call Dr E, [Y]’s paediatrician. Fortunately, the parties decided that these witnesses were not necessary as it was evident from [Y]’s latest school report that she is now progressing well at school, regardless of how her early developmental difficulties were categorised, and does not need any early intervention aids or integration aids.
At the end of the hearing each parent submitted that the other parent’s case was selfish. That oversimplifies the parents’ cases and motivations. Both have legitimate reasons for seeking the outcomes they want. They each believe that their proposal is in their children’s interests as well as in their own. What is in the best interests of the children cannot always be easily separated from their parents’ interests.
History of the proceedings
This matter first came before me on 2 November 2015 as a result of an application filed 7 October 2015 by the mother.
On 2 November 2015, I ordered that the parents and the children attend a Child Inclusive Conference on 4 November 2015 and come back before me on that same day. The parents also agreed to interim consent orders that they have equal shared parental responsibility for the children, the children live with the father, and the mother spend time on that same day with the children for one hour supervised at a play centre.
When the matter returned on 4 November 2015 I appointed an Independent Children’s Lawyer. After hearing the evidence of the Family Consultant the parents agreed to interim consent minutes which saw the children return to live with the mother and spend time with the father, and that the parents attend a Post Separation Parenting program.
The matter returned before me shortly after on 9 December 2015. On this occasion I ordered a Family Report, a conciliation conference and set the matter down for Final Hearing. The parties also agreed to interim property orders on that day.
The matter was originally set down for a three day final hearing commencing on 18 April 2017.
I note that my trial directions include a standard order as follows:
The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 and an updated financial statement upon which they intend to rely at trial on or before 28 days before the final hearing.
Neither party filed their documents for 18 April 2017 in compliance with my trial directions. The mother filed her trial affidavit a day late and the father filed various documents up until 11 April 2017, which was one week prior to the final hearing.
When parties responded to a compliance check by my Chambers several weeks before the hearing they indicated that the estimate of three days remained but that the matter may spill into a fourth day. When parties attended on 18 April 2017, I was advised for the first time that the matter may require five days. I adjourned the matter to 29 January 2018 with an estimated hearing time of five days.
The matter was listed on 21 November 2017 for call over before His Honour Chief Judge Alstergren. As part of this process, all parties were sent a letter which included a call over information sheet that the parties were required to fill out. On the information sheet under the heading “Additional Priority Indicia” there are two questions which parties are required to answer. The first reads “Was the matter ready to proceed and previously listed for hearing but not reached?” and the second “Has the matter previously been listed for trial and been adjourned as it was not ready to proceed?” All parties, including the ICL, answered yes to the first question and no to the second question. This was blatantly incorrect as the matter had been adjourned due to the incorrect estimate for the length of the final hearing and non-compliance with court orders with respect to filing evidence.
Another question on the call over information sheet reads “Is an updated family report sought?” Both the mother and the father answered no to this question. The ICL responded:
Yes – the Court may require an Updated Family Report in the event the matter does not settle prior to school term one commencing in 2018. The previous Family Report is over 12 months old.
Chief Judge Alstergren made orders on 21 November 2017 that parties attend a property mediation and adjourned the matter to the compliance list on 22 January 2018.
On 15 January 2018, the ICL issued subpoenas to Victoria Police, Ms M Psychologist, and Suburb D Hospital. All three subpoenas had a return date of 29 January 2018, which was the first day of the trial. It is impractical for solicitors to issue subpoenas that have a return date that is the commencement of the trial, as this does not allow for the documents to be released or inspected prior to the trial. This results in parties seeking to have the matter stood down to inspect subpoenas. This is not an effective use of court time.
When the matter returned on 22 January 2018 in the compliance list the parties had, to their credit, settled property proceedings on a final basis. Neither party nor the ICL raised in court on 21 November 2017 or 22 January 2018 that an updated Family Report may be sought. Seeking an update at that late stage could have risked the hearing dates having to be moved again.
Despite the matter already having been adjourned from a final hearing for a period of nine months, both the mother and the father again did not comply with my trial directions for filing. The mother filed her affidavit on 18 January 2018, eleven days before the trial, and the father filed his affidavit on 24 January 2018, five days before the trial.
Conduct of the trial
After discussions between the parties on 29 January 2018, I was advised that Dr E and Ms C, psychologist, would not be required for cross-examination. This is something that could have been decided prior to the first day of trial, particularly as parties had only attended court one week earlier for the compliance hearing.
The father sought to rely on the affidavit of his father Mr S filed 11 April 2017, which was prepared without the assistance of an interpreter. When Mr S was sworn in on the fourth day of the trial it was apparent that he had great difficulty engaging with the questions that had been asked of him. Counsel for the father advised that it was due to nerves. After several minutes of cross-examination, the mother’s Counsel submitted that it was apparent that the witness could not understand English. I determined that if the witness was to be cross examined it was necessary that an (language omitted) interpreter be organised. At this point of time, I raised with the parties that the fact the affidavit had been prepared without the assistance of interpreter was an issue. I stood the matter down briefly for the father’s Counsel to confer with his client.
Despite the issues that I raised, the father wanted his father to be cross-examined. Counsel for the father asked if the Court was willing to provide a (language omitted) interpreter for the witness. I declined this request to spend public funds on an interpreter due to the very late nature of the request. It is the usual practice to require parties to arrange and pay for interpreters for witnesses in their case. The Court arranges and funds interpreters for parties to the proceedings. I again raised the concern about the weight that I would be able to put on the affidavit when it had not been prepared with the assistance of an interpreter. Counsel for the father elected to organise a private interpreter for the witness, so I adjourned the matter to the following day. I indicated to parties that we would be commencing with the Family Report writer’s evidence at 10:00am and then we would return to the father’s father.
Counsel for all the parties requested that they be permitted to send the Family Report writer Exhibit E, the case notes of Ms M, the mother and father’s latest trial affidavit, and the ICL’s case notes. I granted this request.
The matter resumed on the fourth day with the evidence of evidence of the Family Report writer Ms S.
Counsel for the ICL began by asking Ms S if she had looked at the documents that had been sent to her the night before. Ms S advised that they were all quite large documents and that she had not had a chance to go through them properly. This again is something that Counsel could have raised earlier in the trial, which would have allowed Ms S more time to consider these documents.
Ms S was asked if there was anything that she wanted to add to her Family Report after having considered the further documents. She said “the main thing I would add, Your Honour, is that it has been 18 months since I prepared the report. As a result [X] has certainly aged and matured…that is a significant period of growth. I also understand that [Y]’s development…has really improved. They are kind of two different children now from the ones that I met”.
Counsel for the ICL asked Ms S how that related to her report, and she said “It makes future and current recommendations difficult because I don’t know [the children] at the moment”. She further raised that there was another significant issue in the fact that it seemed that the mother had been undertaking counselling with improvement since the Family Report interviews. Ms S stated the report had a range of limitations with regards to these two issues. Ms S agreed with Counsel for the ICL’s proposition that the Family Report was not current. Ms S further said it seemed that there had been significant changes in three of the four people that she had interviewed since she had released her report.
Counsel for the mother requested that he be permitted to raise matters in the absence of the witness. He submitted that Ms S was not comfortable in making recommendations in light of the further material. He raised that in those circumstances her report could not be accepted as evidence and that she could not be asked any further questions with respect to her recommendations as it would involve speculation.
Counsel for the mother submitted that in this case there were other experts, such as Ms M who had seen the children since the release of the Family Report, upon which the Court could rely without the benefit of Ms S’s report. He further submitted that the Court could make appropriate determinations without the assistance of Ms S’s evidence.
Counsel for the father submitted that there is obvious value in the evidence of Ms S as the Court had seen fit to order a Family Report. He agreed with Counsel for the mother that Ms S was not comfortable in making recommendations.
I raised the issue that no party had sought an updated family report at the call over or the compliance check. Counsel for the ICL stated that this was because the documents in this proceeding had come in after the compliance check and that until they had been filed no one had been aware of the improvement by [Y] and the mother.
I expressed my concern that I was faced with an expert who was saying that the Court could not put much weight on her evidence as both the mother and the children would likely present differently to when they had been previously interviewed.
Counsel for the father said that the other alternative would be a further Family Report. He submitted that the mother was now seeking interim orders in the guise of final orders. He argued that rather than abandoning or not giving much weight to the Family Report, the Court would find more utility in a further report to assist in its determination.
I raised concerns that this would result in a delay in the proceedings and would also potentially result in the matter requiring further Court time as it may be necessary to cross-examine the parties further.
Counsel for the mother said that if there were an application for a further Family Report that it would be opposed. Counsel for the father submitted that it would be helpful if Ms S could prepare a further report and encouraged the Court to grant the request. I advised to the parties that I would need assurances as to whether or not granting the request would result in significantly more Court time.
Counsel for the ICL stated that he had spoken with his instructor and he had expressed concern of the validity of the report. He said that his instructor had met with the children but no forensic examination had taken place. I asked Counsel for the ICL why this issue had not been raised earlier in the week when I had another parenting matter that could have started. Counsel for the ICL submitted that it was only necessary for Ms S to reinterview the children. I was forced to remind him that she had specifically stated that she also thought that the mother would present differently.
After confirming Ms S’s availability to update the Family Report on a very short turnaround and my ability to list it at short notice, I granted the request for an updated family report and adjourned Ms S’s evidence until 13 April 2018. I again note here that none of the parties had flagged in the previous three days of hearing that there was an issue with the Family Report.
The Language Omitted interpreter for the father’s witness was booked at 12:00pm. Despite there being another matter waiting to be heard, the father’s Counsel remained insistent that it was necessary to cross examine Mr S. After standing down for approximately an hour to wait for the arrival of the interpreter, I resumed the proceeding shortly after 12:00pm. Counsel for the father then submitted at this late stage that they no longer sought to rely on Mr S’s affidavit.
The issue with the conduct of this matter is the push on effect it has had on other cases waiting to be heard. The waiting times in this Court is the comment of much recent discussion and it is matters such as this that contribute heavily to the lengthy delays. Due to this matter being adjourned from its original final hearing dates and then having to be heard on a part heard basis, it has used excessive amounts of the Court’s resources, including further court time resulting in other matters losing their place in the queue, an additional family report, and an Independent Children’s Lawyer who has had to remain on the record for much longer than originally anticipated.
The comments of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 275 as per French CJ at [5] are relevant here:
5. In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.
At the time the trial commenced the spend time with arrangements were disjointed. The parties agreed to amend them and entered into further interim consent orders when the matter adjourned part heard on 1 February 2018. Those orders provide for orders made on 4 November 2015 to be varied with regards to the time the father spends with the child, and for the commencement of time to occur either at school or the mother’s home.
The second family report was released on 26 March 2018 and posted to parties that same day. The hearing resumed on 13 April 2018. The mother filed an application in a case returnable on that day seeking to re-open her case in order to call her mother and sister as witnesses. That application was not proceeded with after the father’s counsel indicated that he would not ask the Court to draw an adverse inference as a result of the mother’s sister and mother not being called. The hearing concluded that day.
The mother’s evidence
The mother relied on:
· her trial affidavit affirmed and affirmed on 9 January 2008 and filed 10 January 2018;
· the affidavit of her brother Mr I affirmed and filed 18 January 2018, and;
· the affidavits of Ms M filed 30 October 2015 and 6 October 2016.
The mother described the efforts she has made to find work in the Suburb C area. She is seeking part-time work during school hours. She has a (qualifications omitted). She has some (employment omitted) experience but has not worked in paid employment for 10 years. I accept the mother’s evidence about her attempts to find work.
The mother also gave evidence about her research into rental accommodation in Suburb A and Suburb C with the assistance of her brother.
She proposes that the children attend School B. She says the fees are between $1500 and $1800 a year which she would pay with the assistance of her family. The children have cousins at that school. They would be able to attend School in Suburb B.
The mother feels intimidated and controlled by the father. The text messages annexed to the mother’s affidavit support her claims about the father unilaterally deducting funds from the maintenance, putting her down and undermining her. He insults her English language ability and suggests that she needs others to interpret things to explain things to her.
The mother says she continues to be the primary carer of the children because although the current arrangement is that the children spent eight nights in her care and six nights in the father’s care, she collects the children in the afternoon from school every day including on the father’s nights. On Mondays and Thursdays she collects the children from school and the father collects them from her at 6:00pm. On Fridays the father collects the children from the mother at 9:00pm. That arrangement has been disruptive for the children and [X] in particular has found the Friday night arrangements stressful.
The mother said these dealings with the father has affected her mental health.
The mother said that the night before the first family report interviews she felt anxious and pressured by the court proceedings and worrying about the future for herself and the children. She became overwhelmed. She was dizzy and did not know what to do. She did not have family nearby so she called an ambulance. She agreed she asked [X] to call the father. She agreed that she demanded the children return later that night as she was feeling better and her sister was with her. She said she did not disagree when the father suggested that the children stay with him overnight so she could rest. She says she thought it was a good idea.
Exhibit A are the children’s school reports. Both reports show that the children have been improving at school. Many of [Y]’s earlier problems have resolved and the concerns Dr E had that [Y] was autistic has dissipated. The mother says she will continue to work with the medical professionals.
The mother agreed that both children are doing well at school and that [X] is very attached to his school and the leadership position he has at his school is very important to him. She agreed he would be upset and it would be hard for him to change schools but he would settle and he would adapt. She said she thought it would take a couple of weeks or months. The mother went on to say that in the beginning it would be hard for everyone but the children would settle into a routine. They have cousins at the school she is proposing they attend and they would make friends.
The ICL’s counsel also cross-examined the mother about the ICL’s interview with the children shortly before the final hearing. [X]’s views were clear that he does not want to move. He has friends at his current school. He is very proud of being selected for a leadership program where only 10 children are selected. The mother agreed that [X] has been promoted within his school class this year.
The mother was dismissive of [X] not wanting to move. She believed he would adjust. The mother was unable to identify any detriment to the children in moving to Suburb A.
The mother agreed it was a mutual decision to raise the children in the religion faith and that there are a number of holy days they celebrate. The orders provide for the parties to share these holidays.
At times, she had to be warned to answer the questions she was being asked during cross examination.
My impression when the mother was giving evidence was that although she said she had thought through how difficult the changes in home, school and environment would be for the children that she was downplaying these difficulties. It is also my impression that the mother does misinterpret and overreact to what the husband says at times. However, the father is also insensitive and does speak down to her. The mother has some difficulty separating the children’s interests from her own. She did not impress as having given serious thought to the challenges the children, particularly [X], may face with the relocation. I do not think she has thought about it from the children’s perspectives.
The mother’s family supports
The mother says she has family support in Suburb A which includes her mother, her brother, and her sister, who has three children aged 12, 11 and 6. She also has step siblings who have children of similar ages to her children. She says she spends most weekends in Suburb A. The mother says the children enjoy playing with their cousins.
She says if she lived in Suburb A it would be easier for her to obtain employment as she would have family assistance if there was an emergency or she was running late to pick up the children from school. She says in Suburb C she has to contact the father and he is not always able to assist. She is also uncomfortable living in Suburb C because the father’s extended family lives there and they are not warm towards her. She feels they undermine her. She says the father relies on his family heavily to help him with care of the children.
The mother says that there are family events in Suburb A every week. She does not go to everything as the children get bored. She goes to Suburb A regularly. She agreed that the distance between the two suburbs is about 50 kilometres. It can take an hour to an hour and a half to drive as she goes the long way as she is not confident driving with big trucks and the toll road is expensive.
The father’s evidence was inconsistent with respect to the mother’s family. On the one hand he said that when they were together her family would belittle her, yet on the other hand he said he encouraged her to get assistance from her siblings.
The father also gave evidence that the mother said she was separating from him if they did not move closer to her mother and sister in October 2014. The father said he was upset and it was a shock to him. When asked if he accepted that the mother had felt separated from her family for a long time, he said it was not an issue during the marriage and he did not know why it was all of a sudden. This is yet another example of the father’s insensitivity, when he has of the benefit of having his family very close by.
Mr I
The mother’s brother Mr I gave evidence in support of the mother. He says he has had to travel to Suburb C to give his sister practical support and has also been providing financial support including with her legal fees.
He says he will continue to provide her with practical and financial support whether or not she remains in Suburb C. He would prefer her to move to Suburb A as her family is there. He also has contacts with real estate agents in Suburb A whereas he does not have those contacts in Suburb C.
He was cross-examined about the text messages between the parents. He referred to the week before when the parties were at the court for the property proceedings. He and the mother were waiting for the lift to leave the court and within two minutes the father sent the mother a text. What is clear here is that the complaint is the timing of the communication not the content. It was about a non-urgent parenting issues. This is a good point as it is another example of insensitivity on the father’s part.
The father’s evidence
The father relied on his trial affidavit filed on 1 April 2017 and his affidavit in reply filed on 24 January 2018.
The father says that he and his mother were at [X]’s birth to support the mother and her family was not. He says that [X] was not a good sleeper and that this had an impact on the mother’s mental health. After [Y] was born the father says the mother’s mental health was poor and Ms M came to the house once a week for a year.
The father says that the mother, the children and he shared a close relationship with his parents throughout the relationship. He denies that his family was ever abusive to the mother. He says the mother never complained to him about his family.
The father says he completed a mental health first aid course at (omitted) in 2011 and that based on that he has been able to detect symptoms of depression and other “behavioural abnormalities” with the mother.
The father says that in 2014 their marriage began to deteriorate and that the mother’s mental health worsened in about September or October 2014. He says the mother threatened to harm herself and the children.
The father said he could not move to Suburb A as it would be too far from his work. He currently lives seven minutes away from his work. In addition, there are costs of the moving and travelling. The father works at (employer omitted). He typically works from 8.30am to 5:00pm or 5.30pm. If he starts late, he finishes late. If he starts early, he finishes early.
The father says [X] is well settled at school. [Y] is also doing well at school.
The father says he was not aware that Ms M saw [X] for counselling at the time.
The father said that last year [X] was invited to apply for a leadership position at school which involves sitting an exam which 200- 300 children sat. He said it is comparable to being an ambassador to the school and they go to a leadership group once a week. He said he has not made any investigations as to the school the mother was proposing in Suburb A and has not looked at any other schools in Suburb A. This was also telling as my impression is the father is very limited and rigid in his views and it is easy to see why the mother finds him overbearing at times.
The mother’s counsel put to the father that the website for School A refers to student leadership and student voices in various opportunities for children.
The father moved into his parents’ home at separation. The mother and children remained at the former matrimonial home. From July 2014 to September 2015 he saw the children on Fridays or Saturdays. The mother was the children’s primary carer.
The father said it was his normal procedure to beep his car horn from outside the mother’s home to let the mother and the children know he was there to collect the children.
Counsel for the ICL asked the father about the divorce and the mother’s evidence in her affidavit that the husband unilaterally obtained this on 26 December 2014 and handed her the divorce certificate a few days later, which was witnessed by his father and his sister’s husband. The father tried to deflect from the questions and tried to suggest that he had raised it with the mother. I do not accept that. The father has also been insulting of the mother. It begs the question why he felt was necessary to send her an insulting text about (omitted).
In many of his answers during cross examination the father was critical of the mother and dismissive of her concerns about [X]’s behaviour and says he does not know what goes on in her home.
[Y]’s haircut
The father says he arranged a late birthday party for [Y] on 2015 at Play Centre. He wanted her to feel good for her party so took her to a salon to get her hair trimmed and styled and her nails done. Later he received a phone call from his father telling him that the mother was at their house and was yelling and swearing in (language omitted).
The mother says that [Y] had not had her hair cut since birth and that it was customary for the mother to be involved in her child’s first haircut and keep a piece of her hair. She says she had discussed this with the father previously and that he knew she was looking forward to it. On 1 August 2015 when the children were returned to her care by the father she noticed that [Y] had had a haircut. She says she was very upset as this had occurred without her knowledge and permission. She says [Y] told her that the paternal grandmother was involved.
The mother said that she was shocked that the father had had [Y]’s hair cut. She said he had never cared about [Y]’s hair before and knew how much she loved her long hair. He should have told her or involved her in it.
The father disagreed with the mother’s characterisation of a major incident in August 2015. He said the haircut was not a major incident. The mother’s reaction was to the haircut was. He agreed that at the time he knew she was the primary carer and he was spending irregular time with the children.
The father denied knowing that the first haircut was important to the mother. He said she never mentioned it to him. The father said the mother loved to trim [Y]’s hair at home. The father said this was exactly what he did by getting her split ends trimmed. The father conceded that [Y] had not been to the hairdresser before. This contradicted his evidence at [46] of his affidavit filed 6 April 2017 where the father said the hair was trimmed and [Y] had had her hair trimmed before.
The father said he was not aware of there being a tradition of the mother being present for a girl’s first haircut and in any event she only had her hair trimmed and it was not her first visit to a hairdresser. He said it was so she could get her hair styled for her birthday. [Y] had asked for her hair to be curled. The father said that it was never an issue with respect to [X]. This is disingenuous of the father. He would be well aware of the difference.
The father said the paternal grandmother was not involved with taking [Y] to the hairdresser. I think the mother assumed she was.
It is clear from the session notes of Ms M that the mother was worried about the father taking [Y] to the hairdresser as on 29 June 2015. Ms M recorded the mother being distressed by [Y] saying to her that her aunt (the father’s sister) was saying nasty things about her. The mother texted the father. The father texted back saying she should stop cutting [Y]’s hair at home with scissors and should take her to the hairdresser. Ms M recorded that the mother was now terrified that the father planned to take [Y] to the hairdresser. This supports the mother’s evidence about this issue.
After finding out about the haircut the mother went to the paternal grandparents’ house where the father was living and knocked on their door. She says the paternal grandfather opened the door and told her to get lost. She banged on the door. The police attended the home after the father contacted them. The mother says she was very angry as she felt that it was another attempt by the father and his parents to undermine her. She says she should not have attended their home and regrets it.
After this the father applied for an intervention order (“IVO”) against her. The mother says that the father attended her home on 13 August 2015 and told her that he wanted a shared care arrangement with the children. The mother says he was waving the intervention order as he approached her front door and said “I’ll fix you up” and “I’m taking the children”. The mother said she felt that she had no choice but to let him take the children. The mother then applied for a cross intervention order against the father.
The mother said she was not aggressive when she went to his parents’ house and she did bang on the door. When asked why she was so angry she said it was not true that she had had [Y]’s hair trimmed before. She said she blames the father and the paternal grandmother for doing it without the mother present and taking that excitement away from herself and [Y].
The mother denied staying outside the father’s parents’ home for 15 minutes before the paternal grandfather came outside. The mother denied swearing at his parents and using abusive language. She said she regrets going to their house that night and says she made a mistake. She admitted to kicking their door but not as violently as they described.
The mother’s counsel suggested to the father that the only incident between the father and the mother was a heated phone call. The father said that he applied for the IVO and included the children on it because the mother threatened him. He said he was doing to protect his parents as well.
In cross-examination the father said he did not instigate taking out an IVO against the mother. Again, this contradicts his affidavit at [48] where he says he did apply for it on 7 August 2015 on an ex parte basis. The mother filed a cross-claim. The incident about the haircut happened on 1 August 2015. The incident with [Y] on the toilet seat did not take place until October 2015. He sought that the children be included on the IVO. The father said he could not recall applying for it. The mother said that on 13 August 2015 the father attended he home telling her he wanted shared care of the children and waving the IVO. The mother’s counsel put to the father that he said to the mother “I’ll fix you up. I’m taking the children.” The father denied saying that. He said he said “I’m here to pick up the children.” The father said he could not recall exactly what he said.
The mother’s counsel suggested that if the mother had threatened him he would have told the police that. He suggested that he went to her house with the IVO to threaten her. It is significant to note that the mother was not cross-examined about this. I prefer the mother’s evidence about this issue.
The mother made a cross application for an IVO against the father.
Eviction notices
After separation the mother and children remained living in the former matrimonial home which is owned by the husband’s parents.
On 3 September 2015, the mother received text message from the father stating that his father wanted her to move out of the home as soon as possible. The mother annexed the text the father sent her on 3 September 2015 which read “My father wants his house back so you need to move out asap. … You will receive the notice in writing.”
The IVO application and cross-application were listed for mention on 8 September 2015. The parties resolved both by way of mutual undertakings. They also agreed to a parenting plan.
The mother filed her initiating application on 7 October 2015. The father’s father sent the mother a letter dated 28 October 2015 requiring her to vacate the home by 28 November 2015. The father agreed that he and his father talked about it beforehand. The timing of this is significant. Court proceedings had just begun and the father was well aware that the mother was reliant on Centrelink benefits. This would have placed enormous pressure on the mother.
The mother’s counsel also suggested to the father that he and his parents told the mother she could stay in former matrimonial home, which is owned by the father’s parents, until [X] starts high school. The father agreed.
The father was asked what impact he thought sending the text message advising the mother she needed to move out of the home would have had on her, who he had already acknowledged was anxious, and at that time was the primary carer of the children.
The father acknowledged that he talked to his father about it before sending the text message. He said that his father was aware that eventually the mother would need to leave the home. He said they made the agreement when they were getting along but that changed when she abused his parents.
The mother’s counsel suggested to the father that could only be to intimidate her. The father said that was not his intention. However, this action was followed by the father attending the home with the IVO just days before. The father must have known that these incidents would be distressing for the mother. He does not appear to have given much thought to how the mother’s distress would impact on the children.
Somewhat incredibly, when the mother’s counsel suggested to the father that there is nothing more intimidating than receiving an eviction notice, the father said he had received all sorts of documents and this was no different. This is disingenuous. He again said it was not intended to be intimidating. This is a refrain that the husband used elsewhere as well. At best the father lacks sensitivity and insight. At worst he knew his conduct would be unsettling and intimidating for the mother. After all he was aware that the mother was an anxious person and was reliant on Centrelink benefits. Did he turn his mind to how she would find rental accommodation for herself and the children at short notice? The children would have been aware of the mother’s heightened stress during this period which would have been difficult for them.
Toilet training incident
The trial affidavit of the mother says that on Wednesday 21 October 2015 she was toilet training [Y]. She says that the father was always messaging her about toilet training and it made her feel like she was not doing a good job. She said [Y] was incredibly difficult to toilet train and at times would have a tantrum on the toilet when she was trying to train her.
The mother says that about 10:00pm that night she took [Y] to the toilet and says that she was being difficult by not wanting to sit on the toilet and when she did she was crying hysterically. The mother says [Y] began swaying back and forward violently screaming and in that process banged her back a few times on the toilet seat as it fell forward. She says [Y] sustained the bruising to her back during that tantrum and that she did not notice it until the next day. It is clear from her affidavit that the mother does not take responsibility for what happened.
The mother complains in her affidavit that the father threatened her and that he would make allegations against her to have the children taken from her.
On 23 October 2015, she was served with a Victoria Police Safety Notice issued by Victoria Police. She complains that the father alleged she had unmanaged mental health issues. The children were removed from her care. The father agreed he told the police that the mother had mental health issues. He said he could not remember if he referred to her not taking her medication.
The mother was cross-examined about this incident. The father’s counsel put to her that she blames the father. She answered that before the incident he had been messaging her telling her that she needed to toilet train [Y]. He was not encouraging. She says she would not have let her emotional state and anxiety get out of control if the father had not been pressuring her.
She denies hitting [Y]. She said the father pressured her and he made her feel like she was not a good mother. She said she made a mistake. She agreed [Y] had significant bruising on her lower back and she said she should have ignored the father’s comments and not pressured [Y]. She said she forced her to sit on the toilet and not move. She said she was holding her thighs so she would not fall. She said she was not aware of the bruising at the time.
The father’s counsel put to the mother that she knew that the police, including the Sexual Offences and Child Abuse Investigation Team (SOCIT) and DHHS all concluded that the injuries were not accidental. She said that what had happened was accidental. She then conceded that she knew that she had said that [Y] has very sensitive skin and that she did not hit [Y].
The father’s counsel also put to the mother the comment by the report writer that it would be in the mother’s and the children’s interests that she take responsibility for what she did. The mother said she did not remember reading that. He then asked if she understood that she did something wrong. She replied that she regretted what she did, making [Y] sit on the toilet but she did not hit her. She said the father used to see [Y] throwing tantrums on the toilet as it was a problem for years. She said the father and his family kept making comments about it.
The father’s counsel put [49] of the first family report to the mother. The mother said that both parents should be blamed. The father pressured her and she pressured [Y].
The father said he called the police about the incident on the advice of his GP. He took [Y] to the GP because of the bruising.
Family Violence
The mother says that during the marriage she was subjected to emotional, psychological and financial abuse by the father and his family. The father and his mother made her feel worthless. She says the paternal grandmother said to her “you are lucky to be in a family” and “you should accept whatever conditions and restrictions we say”. The mother also says the father would call the names in front of the children including “stupid” “mental” and “animal”.
The father denies this.
The father alleges that during the marriage and since separation there have been occasions where the mother has been physically and verbally abusive towards the children.
At [45] of his trial affidavit he refers to an incident involving [X] in 2011. He says he heard the mother shouting at [X]. When he went to check he says the mother was screaming at [X] and stomping on his stomach. It took him about 30 minutes to comfort [X]. When he asked the mother what happened she said [X] doesn’t listen to her.
The mother denied any other physical punishment of the children. She denied [X]’s accusation that she jumped on his stomach in 2014. She also denied breaking [X]’s iPad twice.
The mother gave evidence that [X]’s iPad is about 10 years old. It got a little crack in the screen so she arranged for it to be replaced. The second time [X] was playing with his cousins at the mother’s sister’s house. [X] told her that his iPad had broken again. She told him not to worry about it as it was very old and she would get him a new one. She does not know why [X] is saying she broke it. I accept the mother’s evidence.
DHHS involvement
Ms S refers to the DHHS involvement with the family in her first report. DHHS became involved with the family as a result of the toilet training incident. She says DHHS was concerned about the mother’s parenting capacity and emotional competency. It assessed the father as being protective.
Exhibit D is the DHHS file.
The mother was cross-examined about the DHHS case note dated 10 December 2015 which recorded that the mother denied intending to step on [X]. She may have tripped over him. [X] told the DHHS worker that he did not want to be hit, screamed at or yelled at by his mother. The mother says she does not know who told [X] to say those things. He knows she is not abusive towards him. When he grows up he will understand the sacrifices she made.
Mother’s mental health
The father says he noticed that the mother was having mental health issues after [X]’s birth because he had done mental health first aid training. He arranged for the mother to see Ms M. Ms M attended the home for sessions with the mother, assisting her with managing post-natal depression. She also assisted the mother with her anxiety. Ms M started seeing the mother again to assist her with depression and anxiety which Ms M noted was complicated by “marital discord.”
The mother said that she has not lost control since the divorce. She said she has learnt to be calmer and enjoy things she missed out on during the marriage. She says she changed as now they are divorced she can be her own person.
Ms M
Ms M is a psychotherapist and mental health nurse. She has been treating the mother and also treated [X] for a period. In her report dated 29 October 2015 she says the mother has only presented as anxious with respect to the marital breakdown and managing the care of the children between the parents.
Her report reads as though she is an advocate for the mother and talks about her concern that the children have been removed from their primary carer. This is not surprising given that her role as the mother’s therapist over a long period of time. I do not place any weight on her opinions with respect to the parenting arrangements.
She says that the mother is recovering well from post-natal depression and is a good enough mother. The mother does have an intrusive style of parenting which they have been working on. Ms M thinks it comes from her desire to be a good parent. The mother had found [X]’s behaviour challenging at times, particularly after separation when he blames the mother for things changing at home.
In her report to the mother’s referring GP on 1 January 2015, she records the mother provides a family history which suggests her parents were emotionally unavailable and that her mother does not give her much support. She said her family has been a bit more supportive since the marriage breakdown.
Counsel for the ICL cross-examined the mother about Ms M’s reports. The mother agreed that she trusts Ms M’s comments and observations.
In her report dated 1 January 2015, Ms M recorded that the mother presents with black and white catastrophic thinking. She felt worthless in the eyes of the father and his family and felt unsupported. Counsel for the ICL suggested to the mother that whatever the father says she will think it is negative. The mother said she is always careful and on alert when communicating with the father and she fears that there is something behind it. She feels that the father will report any mistakes she makes to the police so she is careful about that. She says she will never trust him but the dispute is between him and her, not the children.
When Counsel for the ICL suggested to the mother that she is still thinking in black and white terms, she said that the father is not nice and is not polite. Counsel for the ICL pointed out that her responses about the father reflect the observations Ms M made that the mother sees things in black and white terms.
Ms M’s notes of her session with the mother on 31 May 2016 record that the mother seemed primed for attack and sees things in terms of winning and losing. The mother agreed that maybe she did. She said she has grown a lot since then. Her family and friends have noticed that she has changed and now deals with life and issues differently. She said that whilst it has helped her deal with the current difficulties, she has not fully overcome them when the father sends her messages. She said his messages are not straightforward. He suggests that she does not understand things and that she should ask her brother. She believes that is not right. She gave an example of recent communication from the father with respect to who buys what things for the children. He says he has explained things to her several times and she should go speak to her brother. The mother says there is no need for him to say that as she is polite and respectful. She says she communicates in a straight forward way getting straight to the point. She is trying to live a simple life.
Page 104 of the mother’s affidavit contained an example of the text messages she receives from the father. That communication from the father was not good communication. He referred to having to explain things to her ten times and making deductions from her maintenance payments. This is highhanded. The mother has spoken to Ms M on several occasions about how stressed and anxious the texts make her feel. Ms M has been assisting the mother with cognitive behavioural therapy.
Ms M was cross-examined. She has not seen [X] in sessions for some time. She thought it was when he was in prep or grade 1. As her records confirm, her memory is faulty as to when she last saw [X].
Initially she saw the mother through Suburb D hospital and conducted home visits. The father was concerned for the mother. She said she saw the father a few times when he happened to be home.
Ms M said that in early years of seeing the mother the focus was different. In more recent years, they have been focusing on her mental health in the context of bring a single mother. More recently she has helped the mother deal with the stressors post separation and helped her with cognitive distortions and dealing with the stress she feels in dealing with the communication between her and the father.
The mother continues to see Ms M. She sees her every few weeks. At the end of her last report she said that the mother was managing well and did not need to see her unless there was a change of circumstances. The mother said that was not current and that Ms M never said she should stop seeing her but rather it was the end of year break. The mother says she is doing well with Ms M’s help. She last saw her in January 2018.
Ms M recorded in her session of 24 January 2018 that she did not need to see the mother again unless the mother had further problems. The mother had limited family supports when she was seeing the mother early on, but now the mother has good family support, especially from her mother and brother.
[X]
The mother says that [X] has been negatively influenced by the father and his family denigrating her to him. She gives several examples of what she says [X] has said to her including:
a)“you are not a good parent”
b)“you are mental”
c)“go away you are not good, I do not want you in my life”
d)“money grabber”
The mother says he expresses these negative views when he returns form spending time with his father. She says she doesn’t approach him for the first 20 minutes or so and he gradually settles.
The mother also refers to text messages between the father and [X] which are concerning. The mother found exchanges on [X]’s iPad on an app called hangouts. She sets out examples of these exchanges at [46] and annexure R12 of her trial affidavit:
20 November 2016
Mr Rushbrook: “What’s news?”
[X]: “Y [[Y]] has a lost (sic) of mosi bites”
Mr Rushbrook: “Shit, from what?”
[X]: “But mu(m) is treating the stings if she was the best doctor in the world”
Mr Rushbrook: “haha”
7 November 2016
[X]: “..if u can out [put] ur angry face as well as ur persuasion mind to convince mum to let me take the iPad so I can show u the footage cuz she’s not letting me take the iPad”
18 January 2017
[X]: “She said that shes never taking me to ur house and [Y] saw you”
Mr Rushbrook: “Cool. She has too. U know what you need to doo”
[X]: “wat”
Mr Rushbrook: “She can’t just trap u like animals at home. Must take u out and do things”
19 January 2017
[X]: “Sorry she cme in my room”
Mr Rushbrook: “It’s fine man. Don’t let her bust u. U can always say u were chatting with your friend”
[X]: “Nice idea”
The father was cross-examined about the messages between [X] and the father. Again, the father says his intention was not to undermine the mother’s parenting. This was a common refrain of the father’s in response to cross examination about his behaviour.
The mother also says that [X] has told her that the paternal grandparents tell him that she has mental health issues and is an unfit mother.
The mother also says that the father video records her during changeovers. She says she approaches the car to assist with their bags but that the father send her texts not to approach the car and threatens to bring it up in court.
Counsel for the ICL put to the mother that whenever [X] says something to her that she does not like she believes the father put [X] up to it rather than it being because of her own behaviour. The mother replied that she does not do anything to [X] and sometimes the way [X] talks to her is the same way the father used to talk to her. She feels it is the father standing in front of her and it reminds her experience of being married. I find that [X]’s behaviour is most likely a combination of a variety of reasons.
Counsel for the ICL was critical of the mother interfering with [X]’s privacy. The mother says she bought the phone for [X] to talk to his father. She said she checked it to make sure he was not going to websites that were inappropriate for his age. She was not searching for the messages she found between father and son. I do not share these criticisms of the mother in this regard. Parents need to be aware of what websites their children visit and what social media their children engage in. It is too easy for children to access inappropriate material and to be exploited.
Ms M provided a report with respect to [X] dated 24 May 2015. [X] presented “as an angry and distressed young boy.” He did not willingly attend the session and his mother had not prepared him at all. He blamed his mother for his father leaving. She observed that [X] was angry, hostile and uncooperative with his mother and that the mother was intrusive in style, and noted an example that the mother would touch him without a cue from him. She says initially [X] was angry at his mother. By the last session [X] was able to express a more balanced view of his parents. With respect to therapy with [X] and the mother together, she said the main issue was working on personal space, boundaries, and respect of privacy. She was also working with the mother on dealing with [X] in an age appropriate manner, giving him space and privacy and not monitoring calls between [X] and his father.
Ms M provided a further report dated 30 August 2016. She reports one concern with respect to [X] is that he made statements during the sessions that seemed beyond his understanding, such as saying his mother needs to see a psychiatrist. She also said that [X] seemed quite bothered by the moving between households and said his parents fight about clothes which is also stressful for him. He says his parents argue all the time over texts.
She conducted 6 sessions with [X]. By the last session he appeared more settled and less depressed and angry with his mother.
The father was cross-examined about the section 11F report dated 4 November 2015 where the report writer expressed some concerns that [X] was using words that the boy his age wouldn’t normally use, such as saying his mother needed to see a psychiatrist, and said that he may be aligned with his father and paternal grandparents and exposed to denigration of the mother. The father said that they don’t talk about the mother in front of the children at all. That of course sends its own message to the children about the paternal family’s view of the mother.
The father said that [X] had been to a lot of medical appointments with the mother. The father agreed that he has said to various people, including DHHS and police, that the mother needs help for her mental health. The mother’s Counsel suggested that [X] picks up on the father’s attitude towards mother. The father said [X] picked up on everything and that the problem is that the mother takes rational discussion as an attack.
The father denied hearing [X] say disparaging things about his mother and said he would not know why [X] would say negative things about his mother. He said he thinks the mother denigrates him.
I do not accept the father’s explanations. I am satisfied that [X] has picked up on negative comments the father makes about the mother.
The father claims to have learnt a lot from the parenting course and that he was previously not aware of the impact of the conflict on the children. I do not accept the father’s evidence that his negative and undermining comments to [X] and his texts were isolated.
Both children must be aware of the father’s negative attitude towards the mother. Given this they would not be likely to say positive things about the mother in his care. In one instance the father explicitly encouraged [X] to lie to the mother. When the father was confronted with his texts he made various excuses including that the tone of voice is absent from messages.
Communication between the parties
The mother annexes a series of text messages between herself and the father to her affidavit where he accuses her of breaching orders and says he will contact authorities. His complaints include the mother attending School during his time. The father is insulting to her and saying things like “I am sick of trying to help you understand basic English” and “Maybe u should listen and respond rather than sit there and not be able to understand…u need help. Please see a doctor urgently. I feel sorry for these children…u keep embarrassing them.” He also texted her that he was going to send someone around to mow the grass and deduct it from the spouse maintenance. He makes similar comments with respect to getting [X]’s iPad fixed. I note in this instance he unilaterally deducted money from her spouse maintenance on the basis that she owed him money for her share of supplied for [X]. He also unilaterally deducts things from her maintenance payments including school books and clothes for the children.
During her cross-examination the mother also complained that the way the father communicates with her is hard to cope with. He is condescending towards her and asks her to get her brother to help her. She said he suggests she is not smart enough to understand these things.
The father did not agree with the proposition that he and the mother are unable to communicate appropriately. He said he believed he communicates normally and has tried to move on the best he can. He said he can only do so much from his end.
The father’s counsel suggested to the mother that whenever the father criticises her conduct she takes it as abuse even when he is raising an issue of concern. She said that she believes its abuse. It is not innocent and she can tell when he is raising an appropriate concern as she will answer those. She said not every message is abusive. The mother agreed that most of the time she sees his criticism as abuse. She acknowledged that she has received assistance for anxiety and depression and continue to sees her psychologist. She rejected the suggestions that she overreacts and misinterprets things.
The father agreed with the mother’s counsel that that the mother is an anxious person.
The mother conceded when cross-examined that the father agreed to her having extra time with the children during the long school holidays as she was going on a family holiday with her family. She agreed that there are other instances where the father had agreed to changes to parenting arrangements via text messages. She said that in the past she had had a lot of problems trying to co-parent with the father but that currently there aren’t any problems. She then corrected that statement and said there are still problems. She said she had to send multiple texts before the father agreed to arrangements so she could go to her step-sister’s engagement party. The mother then said she feels the communication is a struggle and that she never knows what he is going to say which she finds difficult. She tries to be respectful at all times. She said this is just one of the issues. She said the father has not been fair with respect to her family occasions and that she has missed many family occasions. She agreed that this was not in her affidavit.
The father said that he learnt from the parenting course to look at things from the children’s point of view and that he should sometimes let things go. He said from his perspective he thought the conflict was over until he heard the mother give evidence at the trial. He thought that their communication has improved over the past couple of years. This is inconsistent with the texts that the mother has annexed to her affidavit. The mother herself says that not every communication is inappropriate but it is clear that it times the father continues to be insulting and puts her down. The father does not take responsibility for his own conduct.
The father did the parenting course in 2016. Well after this was completed the father has continued to communicate at times with the mother in ways that are insulting and condescending. He would benefit from professional assistance in this regard.
The mother says that she and the father cannot co-parent as he is hostile towards her and puts her down. She complains that he often suggests that she does not understand things and that she needs others, such as her brother, to explain things to her.
The family reports
Ms S prepared two reports and was cross-examined.
In her first report Ms S commented that she did not have access to current reports from SOCIT, DHHS or (omitted) Medical Centre.
At the time of the first report [Y] had been diagnosed with having traits consistent with autism spectrum disorder, language delay and compromised social skills.
One issue which flavoured the first family report was the incident which occurred the night before. The father received a call from [X] asking him to pick up the children from the mother’s home. The mother asked [X] to do this. The mother called an ambulance as she was feeling anxious and panicked and she was taken to hospital. The father offered to take the children home. The mother said she felt the pressure building up on her. She felt dizzy and scared. The father says that the mother called him at 11:00pm that night asking him to return the children to her. The father managed to negotiate with the mother to return the children to her the next morning so she could take the children to the family report interviews.
The father expressed concern about the mother’s parenting and psychological stability. He referred to her being intrusive and babying the children. He opposed the mother’s relocation proposal as he was concerned that the mother would not ensure his relationship with the children. In addition to this he did not believe the mother had close family supports. Currently, he is close enough to the mother’s home that if there is a problem he can monitor the situation and step in. He said the children are happy and settled in Suburb C where they enjoy close relationships with their paternal grandparents and friends. They are settled and enjoy their school.
The father also expressed concern that the mother was dismissive of [Y]’s diagnosis.
The report writer described the mother’s presentation as pressured, which could be due to anxiety. The DHHS workers noticed the same presentation.
Ms S also said that the mother had trouble considering alternative perspectives that were not consistent with her desired outcome. The mother is a devoted parent.
The mother expressed concern that the father was brainwashing the children and that there was too much going back and forth between the two houses during the week which was tiring for the children.
The mother says that the move closer to her family will make her happy and will be good for her mental health. Her family will love her more and if she is happier the children will be happier.
The mother believed that DHHS and the medical and forensic experts got it wrong. She blamed the father for pressuring her about toilet training [Y] and sending her abusive messages. Ms S refers to the SOCIT assessment which found the bruising on [Y] was consistent with hand and fingertip marks. The medical reports and Victorian Forensic Paediatric Medical Service (“VFPMS “) assessment also found it to be non-accidental and inconsistent with the mother’s version of events.
Ms S also records DHHS’ concerns about the mother’s parenting capacity and emotional presentation. DHHS assessed the father as being protective.
The mother also disagreed with [Y]’s diagnosis (and as it turns out she had some basis for that) and blamed the husband for [Y]’s delayed development. She blames the father’s violence causing her to be depressed and not focus on the children.
The mother told Ms S that she would not relocate without the children. Regardless of whether she was allowed to relocate or not, she was seeking that the father spend time with the children on alternate weekends, special days and school holidays.
The father proposed that the interim arrangements remain in place. If the mother moved to Suburb A, he sought the children live with him and spend alternate weekends and school holidays with her.
Ms S observed that the parents were respectful and friendly with each other when they met in the waiting room. The children were comfortable and happy with both parents. [Y] would not participate in an interview.
[X] was interviewed on his own. Ms S found him to be “independent, articulate and mature.” He remembered his parents arguing. They did not hit each other or throw things. He knew his parents did not get along. He experiences his father as being more attentive and emotionally responsive. He experiences his mother as more distant and not listening to him. He said his mother would get angry at times. He felt loved by both his parents. He enjoyed spending time with his paternal grandparents. He did not enjoy going to Suburb A as much.
[X] said he wanted to live with his father and his mother knows this. He identified positive and negative aspects about living with his mother. She helps with homework and arts and crafts, but is disorganised and always late. He did not want to change school and move to Suburb A. He wanted to apply for school captain the next year.
The interactions between the children and the father were positive. The mother’s was initially also positive but Ms S observed she then focused solely on [Y] and was engaging with her in an intrusive manner. She did not pick up on [Y]’s cues. However, the children were comfortable and close with their mother and did not appear afraid of her.
Ms S expressed concern about the mother’s inability to accept responsibility for injuring [Y]. Whether it was a momentary loss of control or not, there remained a risk that under stress she may lose control again. She did not know if the mother’s presentation was because of mental health issues, her reported experience of family violence, or if it was her usual personality.
Ms S found the father to be child focused and more accepting of [Y]’s diagnosis and committed to engage her with various supports.
Ms S acknowledged that [X] may have been overtly or covertly influenced by his father and his parents but did not see evidence of this.
Ms S did not support the mother’s relocation proposal. A continued shared arrangement would benefit the children but the arrangement in place was fragmented and the children should spend longer periods with both parents. She recommended that the parents retain equal shared parental responsibility.
Ms S prepared an updated family report which was released on 26 March 2018.
Ms S also observed the parents and children again.
The mother said that the current parenting arrangements could remain in place if the father also moved to Suburb A
Ms S noted that the parents are suspicious and mistrustful of each other. They do not communicate well and have different parenting styles. The mother is more emotionally invested and tends to intrude into the children’s personal spaces. Ms S expressed concern that this style of parenting may stifle independence and cause conflict at home when the children mature. The father is more encouraging of independence, especially with respect to [X].
She was also concerned that the parents have not been able to protect the children from the conflict and from adult issues which may lead to the children developing emotional and psychological problems in the future.
Ms S found the mother to be friendly and more self-assured. She became argumentative when exploring options that were not in line with her preferred outcome. She acknowledged the importance of the father’s relationship with the children. She was a proud and loving mother.
The mother told Ms S the relocation would benefit her and was therefore in the children’s best interests. Her family would be able to provide her with practical and financial assistance. She did not want to stay in Suburb C as she did not like being in close proximity to the father’s family. She felt uncomfortable at school events as she was there on her own with several members of the father’s family.
The mother acknowledged that [X] did not want to move to Suburb A but she thought he would easily adjust. The mother could not identify any negatives with respect to the move and also thought the father’s influence over the children would lessen if they moved.
The mother said she would remain in Suburb C if not allowed to move with the children but expressed concern about whether the father’s family would continue to support him and concerns about any future partner of the father.
The father told Ms S that he remained opposed to the relocation. He referred to the children’s connections with family, friends, their school and their activities including Hobbies. He was concerned that both parents would not be able to be actively involved in the children’s activities. If the mother moved he wanted the children to live with him but said his preference was for the mother to remain living in the Suburb C area. The father complained that the mother contacts the children excessively and at unreasonable times when they are in his care.
[X] was interviewed and was confident. He understood the point of the assessment and was aware of his parents’ ongoing conflict about the relocation. He spoke proudly about his school and his performance. He was proud that he had been voted literacy captain by his peers and teachers and also spoke of the school’s music, sports and leadership program. If they moved to Suburb A he would miss his friends at school and (nationality omitted) school on Saturdays where he had friends and his cousins also attended. He did not like the maternal grandparents’ home at Suburb A. Most of all he was concerned that he would not be able to see as much of his father despite his mother’s assurances.
He referred to the parents arguing and that his father felt that his mother “does stupid things on purpose” and is always late on Fridays. He described Fridays as the worst days of the week. [X] thinks the mother deliberately delays getting [Y] ready after (hobby) on Friday night, keeping the father waiting in the car which makes him frustrated. [X] finds it stressful and it makes him anxious.
He told Ms S that he does not want to spend less time with his father and this was his own idea and not his father’s.
[Y] was shy and it was hard to engage her. She told Ms S that she loves both her parents. She says they do more activities and have more fun with their father, whereas they do a lot study with their mother. She referred to visiting her friends and cousins when with her father.
Ms S recommended against the relocation. Whilst the mother’s desire to be near her family and create distance between herself and the father may be understandable, it was not child focused. It would be a significant change of environment for the children including their home, school, family and social structures. She views the father’s active weekly involvement with the children as a protective factor. She recommended that the children remain living with the mother and spend time with the children from Thursday to Monday in one week and Thursday to Friday in the other week, as well as special days and half school holidays.
Ms S said her recommendation in her second family report that there be a 5/9 fortnightly arrangement in favour of the mother was not based on increasing the mother’s time but on introducing a more child friendly routine and allowing the mother to have full weekends, which neither parent had sought at the time of the first family report. It provides the children with a base at their mother’s home whilst allowing both parents to be actively involved with the children.
The mother’s counsel suggested to Ms S that the parenting arrangements in this case are unique as the mother is involved in the children’s care for a substantial amount of time when the children spend overnights with the father because the mother collects the children from school and feeds them and then the father collected them from her. Ms S said she recorded that especially the Friday nights were part of that disruptive routine for the children.
Ms S said she did not find any evidence of the father alienating the children. She said that every parent, whether they are in court proceedings or not, influences their children and that that is part of what parents do. She said it was clear that the children loved both their parents and that she did not see any sense of alienation. The observations in the section 11F report were put to her. She pointed out that they were not her observations and were not her assessment. The mother’s counsel also put Ms M’s observations of [X] from her session where she notes her concern that [X] was blaming of the mother and saying things that seemed beyond his comprehension. Ms S said this may have been happening in 2015 but it was not what she observed when she was involved with the family in 2016 and recently. She said that [X] had developed into a mature young man with a strong sense of identity. She said it was in the interests of the children that they spend substantial and significant time with both their parents.
Ms S did not agree with the proposition that if the Court found that the mother was anxious and that the father had been making denigrating comments towards her and encouraging [X] against her that this would be a reason to support relocation. She said she would be concerned for [Y] as she had experienced earlier trauma and had made great gains but was still vulnerable developmentally and was concerned that the move may have a detrimental effect on [Y].
She said [X] identifies his school community and family as important to him. Ms S also said that she felt that the children should remain in close proximity to the father’s family given DHHS involvement. She lacked confidence in the mother being able to manage on her own without respite.
Ms S expressed concern that a similar incident to the toilet training incident with [Y] could occur again as the mother had taken limited responsibility for it. When an incident as significant as that happened the father needs to be there to monitor the mother and children.
Ms S said that the toilet training incident would have been traumatic. She said that the mother showed no genuine effect. She said that the mother presented as vulnerable and with a more egocentrically driven desire to relocate which is understandable.
Ms S accepted that the mother would be happier if she moved to Suburb A but that it was an unknown for the mother and the children. She was sure that the mother would be happier but that does not necessarily transfer as an improvement and benefit for the children. She was also concerned that [X] would become defiant if he had to move. It could affect his sense of identity and self-esteem.
She agreed that if the parents can’t communicate well that is not in the children’s best interests. The biggest problem for the children is the conflict between the parents. They need to be protected from this at changeovers.
Ms S was cross-examined by the father’s counsel. She said that [X] has a very strong sense of his capacities. This has been reinforced for him by his peers voting for him. He has a strong sense of community amongst his peers and at (nationality omitted) school. It is not just based on his academic skills but his complex sense of who he is in his community, school and culture.
Ms S said the mother became argumentative when she raised any issue about the relocation being against [X]’s wishes as she tended to focus on the benefits to her rather than any detriment to the children. The mother was quite vague about what it would look like with children being in her primary care with the children only seeing their father on alternate weekends unless he moved as well. The mother believed that the issues between her and the father would lessen if they moved.
Ms S said that [X] would pine for his father if he was only seeing him on alternate weekends and that [Y]’s interactions with the father indicated that she would also miss him. Ms S was very clear that it was in the children’s best interests to remain in Suburb C.
My impression is that the mother lacks some insight with respect to the move and possible challenges of that life and also some inability to separate to the children’s interests from her own.
Submissions
Counsel for the ICL said he was troubled by the behaviour of both parties. With respect to the father his concerns are about the timing of the eviction notice and the notice and timing of the divorce. He remains concerned about the mother’s lack of willingness to accept responsibility for [Y]’s injury.
He said notwithstanding these difficulties, it appears that the parents have been acting civilly and that the environment for the children has become more stable. To move the children at this stage would be breaking something that has taken a long time to mend and the children themselves are clearly content with the current arrangements.
He also submitted that if there was not regular time with the father the children would not be able to maintain a meaningful relationship with their father. That submission is inconsistent with the evidence. On either case the father would still be seeing the children regularly although it would certainly be reduced.
The father’s counsel submitted that given that the mother was now considering that any move would not occur before the end of the school year, what she was really seeking was the Court make interim orders. His submission is misconceived. It is not uncommon for the Court to be asked to make orders providing for increasing periods of time and to make orders that do not commence at the time of judgment but at a future date, including relocations[1]. It is sometimes said that parenting orders are never truly final because children’s circumstances change. Really this means that there may be further parenting proceedings in the future. That is not akin to the orders being interim orders.
[1] See for example Goodner v Jeppesen [2012] FamCA 463 and Heath v Hemming (No.2) [2011] FamCA 749
The father’s counsel conceded that at times the father has acted inappropriately and sent inappropriate texts but said the children now have a close relationship with both parents. He characterised the father’s inappropriate behaviour as historical. I reject that submission as it goes against the weight of the evidence.
The father wants an arrangement where he has the children six nights a fortnight and says that that would be create the minimal disruption to the children’s life. This is not what the family report recommends. The father appears to ignore the level of involvement the mother has had with the children on a daily basis during the school week. The orders the father proposed also do not allow the mother to have a whole weekend, which is all the more important if she remains in Suburb C given that her family is in Suburb A and that she visits them regularly. The father ignores the involvement the mother has had with the children after school on the nights the children have stayed with him.
The mother’s counsel supports a 9/5 arrangement. He said the Friday nights is quite problematic as the father does not collect the children from school on Fridays. He said that the mother wishes to move for family supports but if she is not able to move she will prioritise children’s needs over her own even though she does not enjoy living in Suburb C. He says in contrast the father’s attitude is that his home is his castle and he is not prepared to move. He pointed out that any relocation move is a significant adjustment.
He submitted that it would be a significant adjustment for both children if the mother were permitted to move with them to Suburb A but that this is an issue in every relocation case and that both children would adjust and could benefit from new relationships.
Counsel for the mother submitted that she has had a long and genuine held desire to move to Suburb A. The father’s conduct during and after the relationship has been controlling. The father knows that the mother is an anxious, vulnerable and insecure woman yet does things such as cutting [Y]’s hair without consultation and then a short time later tells she has to move out of the home.
He also referred to the father’s denigration of the mother and involvement of the children in the dispute, and submitted the Court cannot form the view that the father will suddenly change this behaviour if he is successful. He submits that [X]’s views are unpredictable given the father’s alignment of him.
The mother’s counsel also submitted that the Court cannot form the view that the father will suddenly change and support the mother. Unless the father gains some insight and consciously works on his communication style with the mother and ensuring that he and his family give the children positive messages about the mother, which they have failed to do to date, this is likely to continue. I am of the view that the parents would benefit from a parenting orders program which would provide them with counselling to assist them to improve their communication. I will not make such an order. I note that the mother has been receiving continuing supports it from Ms M and am satisfied that she will continue to do so she feels she needs it. The father would also benefit from individual counselling to assist him in in gaining insight into his communication style and inappropriate involvement of [X] in the dispute and his negative views of the mother.
The mother’s counsel submitted that the Court should find that the nature of the parents’ relationship during the relationship is characterised by the verbal abuse from the father and his family. The evidence does not go as far as that but certainly I’m satisfied that the father was overbearing and boorish at times. At times post separation the father’s conduct towards the mother was poor and would have added to the mother’s distress and would have negatively impacted on the children. The timing of the eviction notices reflects particular poorly on the father as does his conduct with respect to the divorce and I do not accept the father’s evidence about these points.
He submits that since the toilet training incident there been no inappropriate conduct by the mother, so the suggestion by the family consultant that the mother needs monitoring is “nonsense”, particularly as her recommendation is that the mother the children live with her nine nights a fortnight.
I accept the submission insofar as I do not find that the mother needs monitoring. Whilst the mother has avoided taking responsibility for that incident, this must be seen in the context of her anxious personality and feeling that she is under scrutiny and under threat. The father has also failed to take responsibility for his actions in many instances which I have referred to throughout these reasons.
Legal Principles and their application to the facts
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions. It is not necessary to repeat the findings that I made earlier.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3).
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
In this case all parties seek an order that the parties have equal shared parental responsibility. I am satisfied that it is in the children’s best interests to make this order. Both parents have valuable input to provide for the major decisions of the children’s benefit.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph [13] of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
I am not satisfied that it is in the children’s interests for them to spend equal time with each parent. No party seeks that order. It is in the children’s interests that they spend substantial and significant time with each parent and that each parent be actively involved in their school and other activities.
[X] has expressed strong views. He is mature and articulate. He has given good reasons as to why he does not want to move to Suburb A. I place weight on his views. [Y] is young and did not express strong views.
The children have close and loving relationships with both parents and their extended families.
This case has been characterised by the parties as a relocation case. The Family Law Act does not define what constitutes as a relocation case. Relocation cases are not a different species of parenting case[2]. The focus is on the impact of the change of arrangements on the children and the ability of the parents to remain actively involved in all aspects of the children’s lives as both parents have been in this case. This would not be characterised as a relocation case at all if there were affordable suburbs for the parties between Suburb A and Suburb C.
[2] See Cowley v Mendoza (2010) 43 Fam LR 436
I reject the submissions made by both parents’ Counsel that either parent is selfish in their desires. Their positions are much more nuanced than that and it is artificial to entirely separate a parent’s desire and happiness from the children’s. I find that the mother is genuine in her wish to relocate to Suburb A to be closer to her family and that she is genuine her views that this will be positive for herself and the children. I also accept that the father is genuine in his views that the move would be detrimental for the children. The case is a finely balanced one.
I find that both parents have taken the opportunities to be involved in the decision making for the children, to spend time with the children and communicate with the children. I am also satisfied that both parents are generally able to provide for the children’s physical, emotional and intellectual needs, subject to the comments I have made elsewhere in these reasons.
The orders that the mother proposes would involve a significant change to the children’s living arrangements and would require multiple adjustments for them. Whilst mother now proposes that any relocation would not take place until the end of the school year it would still mean significant adjustments for the children and [X] in particular would find a change of school and distance from his peer relationships difficult. That would not assist the mother addressing [X] is sometimes negative attitude towards her. Whilst the children would be able to spend more time with their maternal extended family including cousins and is likely that the mother would feel more supported and happier, the move may not be the panacea the mother thinks it would be.
Both parents have shown that they take the responsibilities of parenthood seriously and are dedicated to their children.
Having the children remain in Suburb C is less likely to lead to further proceedings as the children are well settled and I am satisfied that the mother’s family will continue to give her emotional and practical support while she remains in Suburb C.
Weighing up the evidence and balancing the considerations that I must make pursuant to Part VII of the Family Law Act, I find that it is not in the children’s best interests to permit the mother to move with the children to Suburb A, changing children’s school and significantly reducing the time they spend with the father and his extended family. The orders submitted by the father’s Counsel seek a restriction on the mother living more than a 10 kilometre radius from the children’s school. The mother’s Counsel referred to a 15 kilometre radius in his closing submissions in the event I find against the mother’s proposal. A 15 kilometre radius is appropriate as it still allows for the children to spend significant and substantial time with the father.
There are no concerns about practical difficulties and expense of the children spending time with their parents if they remain in the Suburb C area. They would not be able to spend as much time with their father if they move to Suburb A.
I am satisfied that it is in the children’s best interests that they live with their mother for 9 nights a fortnight and spend 5 nights a fortnight with the father during school terms. This reflects the reality that the mother has always been their primary carer and has had significant daily involvement in their care even during the father’s time. I find that it is in the children’s best interests for the changeover to take place via the children’s schools rather than continue the current arrangements which have been somewhat disjointed and require the parents to come into frequent contact at changeovers. The father gave evidence that his work arrangements are flexible. He will need to step up during the time the children are in his care on school nights and not rely on the mother to pick them up from school and take them to their activities. He has the benefit of the assistance of his family living locally.
For the reasons I have given I am satisfied that the orders I make are in the children’s best interests.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 10 July 2018
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