RUTTLEDGE & RUTTLEDGE
[2014] FamCA 805
•18 September 2014
FAMILY COURT OF AUSTRALIA
| RUTTLEDGE & RUTTLEDGE | [2014] FamCA 805 |
| FAMILY LAW – CHILDREN – With whom the children live and spend time – Whether the children are at risk of emotional harm as a result of their exposure to the significant parental conflict and family violence – Whether the children are at any risk in the mother’s care – Weight to be given to the children’s views in light of their alignment with the father – Whether the father has alienated the children from the mother |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Ruttledge |
| RESPONDENT: | Ms Ruttledge |
| INDEPENDENT CHILDREN’S LAWYER | Ms Doris Chan, Solicitor |
| FILE NUMBER: | BRC | 13255 | of | 2007 |
| DATE DELIVERED: | 18 September 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 15 to 17 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Middleton |
| SOLICITOR FOR THE APPLICANT: | Schultz Toomey O’Brien Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Moore |
| SOLICITOR FOR THE RESPONDENT: | C Guilfoyle & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
It is ordered that:
The Father shall have sole parental responsibility with respect to “major long term issues” as that expression is defined in the Family Law Act 1975 (Cth) in respect of the children, B born … 2002, T born … 2004 and N born … 2005, save that prior to making the sole ultimate decision about any such issue, the Father shall:
(a) notify the Mother in writing prior to making decisions about any major long term issues;
(b) invite the Mother to indicate her views in writing;
(c) consider, by reference to the best interests of the children, any such response from the Mother prior to making any such decision; and
(d) advise the Mother in writing as soon as reasonably practicable of his ultimate decision.
Notwithstanding the provisions of Order 1 hereof:
(a) the Mother shall be responsible for the daily care, welfare and development of the children when they are living or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the children when they are living or spending time with him.
During the time the children are with either parent, that parent shall:
(a) respect the other parent's privacy and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully and refer to the other parent as "Mum", "Dad", "Mummy" or "Daddy" (to the exclusion of any future partners or step-parents) as the case may be;
(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent to or in the presence of the children;
(d) not use physical discipline upon the children, nor permit any other person to physically discipline the children.
The children live with the Father.
Commencing Friday 26 September 2014 and until the children resume school, the children spend time and communicate with the Mother from 3.00 pm Friday to 9.00 am Monday each alternate weekend with the changeovers to occur, prior to the recommencement of school, at Hungry Jacks, Town P.
Once the children have resumed school, they are to spend time and communicate with the Mother each alternate weekend from after school Friday to before school Monday and for that purpose:
(a) the Mother shall collect the children from school on Friday afternoon;
(b) at conclusion of contact the Mother deliver the children to school;
(c) in the event Friday is a public holiday or a pupil free day, then the Mother shall collect the children from school at 3.00 pm Thursday;
(d) in the event Monday is a public holiday or a pupil free day, then the Mother is to deliver the children to school at 8.30 am Tuesday;
(e) neither parent shall attend changeover time with either their current partner/spouse or any future partner/spouse or that partner’s/spouse's children;
(f) any medications and written doctor's information, instructions and information sheets which the supplying parent shall request from the doctor and pharmacist are to be exchanged at changeover;
(g) no parent shall video or audio tape record any changeover.
All other changeovers shall occur at Hungry Jacks, Town P.
Holidays
The Mother shall spend in odd numbered years the first half of the school holiday period with the children from 9.00 am on the first Saturday of the holidays until 9.00 am on the second Saturday of the holidays and in even numbered years the Mother shall spend the second half of holidays with the children from 9.00 am on the second Saturday of the holidays until 9.00 am on the third Saturday of the holidays.
The Father shall spend in odd numbered years the second half of the school holiday period with the children from 9.00 am on the second Saturday of the holidays until 9.00 am on the third Saturday of the holidays and in even numbered years the Father shall spend the first half of holidays with the children from 9.00 am on the first Saturday of the holidays until 9.00 am on the second Saturday of the holidays.
The school holiday period shall start on Friday of the last week of school at 4.00 pm and end on the last Sunday of the holiday period at 4.00 pm.
Christmas School Holidays
For the Christmas school holidays for 2014 the children shall spend time with the Mother pursuant to Order 8 hereof with changeover to occur at Hungry Jacks, Town P.
The parent that does not have the children in their care for Christmas Day/Boxing Day shall spend time with the children from 12.00 pm Christmas Day to 12.00 pm Boxing Day with handover to occur in front of the police station.
The children spend time with the Mother from 9.00 am to 4.00 pm on Mother's Day and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
The children spend time with the Father from 9.00 am to 4.00 pm on Father's Day and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
The Mother undertake to continue her medication and treatment including any counselling or other psychological therapy as directed or recommended by her general practitioner from time to time or counsellor/psychologist as the case may be.
Neither parent shall denigrate the other parent (or that parent's family or friends) to any other person, particularly any other person involved in the children's education, medical treatment or extracurricular activities.
Each parent shall keep the other informed of their change of address, mobile telephone number and provide each other three (3) days prior notice of such change, provided that any communication required pursuant to this Order is conducted via SMS save for in the case of an emergency.
In the event of an emergency the party with the children will contact the other as soon as practicable as to the detail of that emergency involving the children.
The Mother shall administer any and all medication prescribed by a medical doctor to the children while they are in her care.
The process to be used for resolving disputes about the terms or operation of these Orders is as follows:
(a) they shall consult with a Family Dispute Resolution Practitioner or Counsellor to assist with resolving any dispute or reaching agreement about changes to be made;
(b) they shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c) in the event that they cannot agree on a Family Dispute Resolution Practitioner, or Counsellor, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d) the Father shall choose one (1) of the listed practitioners within seven (7) days of receipt of the list;
(e) if the Father fails to choose then the Mother may choose.
Save and except for any application for contravention of these Orders, before an application is made to this Honourable Court for a variation of these Orders to be taken into account the changing needs and/or circumstances of the children or the parties, each party is to take the steps referred to in Order 20 hereof.
Pursuant to s 65L of the Family Law Act 1975 (Cth) the Father shall cause the children to attend an interview with Ms C at her rooms at 1.30 pm today, 18 September 2014, for the purpose of Ms C explaining to the children in the Father’s presence, these Orders and that the Orders made for the time they are to spend with the Mother each alternate weekend are in conformity with the Orders that the Father himself asked this Honourable Court to make.
In the event that an application for contravention of these Order is filed, that
application shall be referred by the Registrar to the Honourable Justice Kent for the purpose of an urgent listing of the hearing of such application before Justice Kent if possible.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruttledge & Ruttledge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 13255 of 2007
| Mr Ruttledge |
Applicant
And
| Ms Ruttledge |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
These Reasons for Judgment are delivered orally today after the completion of submissions at 5.00 pm yesterday, the third day of the trial of these proceedings.
In these circumstances, I apologise in advance to the parties for any infelicity or inelegance of expression. I have determined the risk of this gives way to the need to deliver the Reasons promptly in this longstanding litigation. Moreover, whilst I have read and considered all of the affidavit evidence relied upon by any party to the proceedings, including the affidavits of witnesses not required to give oral evidence or to be cross-examined, as well as the extensive subpoenaed material, I do not propose to traverse or specifically advert to each piece of such evidence.
As is reflected in the judgment of Coleman J in Wen & Thom [2010] FamCAFC 81 upon his Honour’s review of the authorities, it is not the role of a trial judge to adjudicate upon each and every disputed issue of fact raised by any party to litigation, nor is it necessary to the determination of the litigation to resolve each and every disputed issue. That is particularly significant in a case such as this, where the parties have been engaged in litigation for a lengthy period.
These proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children B, born in 2002, who is currently 12 years of age; T born in 2004, who is now 10 years of age; and N, born in 2005, who will shortly turn 9 years of age.
The parties seeking competing parenting orders are the children’s father, Mr Ruttledge (“the father”); their mother, Ms Ruttledge (“the mother”); and the Independent Children’s Lawyer appointed pursuant to s 68L of the Act to independently represent the children’s interests in these proceedings (“the ICL”).
The sad and central feature of this case is that as a reflection of the extent of conflict between the parents, they have been engaged off and on in litigation in the then Federal Magistrates Court and then this Court since late 2007. Given the length of that period, having regard to the respective ages of the children, it may fairly be observed that conflict, and significant conflict, between their parents has been a central feature of the lives of each of these children to date. That conflict and that litigation culminated in this trial.
At the outset of the trial on the first day, for reasons then given which I need not repeat here, I determined that it was not legitimate for the intervention in the proceedings by the paternal grandparents to continue. I mention that here simply because it is clear on all the evidence that the parental conflict has involved extended family members, including the grandparents on each side. The central issues which crystallised as at trial may be summarised as follows:
· whether the children are at risk of emotional harm as a result of their exposure to the significant parental conflict and family violence;
· whether that risk can and should be addressed by altering the children’s present living arrangements primarily with the father to living primarily with the mother with some moratorium of time and communication with the father; or living on an equal shared care basis with both parents;
· whether the children are at any risk in the mother’s care;
· the mother’s parenting capacity and whether the mother has the capacity in her current circumstances to viably manage and deal with a change of the children to primarily living with her or to equal care with her, and the prospective consequences of such a change in terms of the reaction or likely reaction of the children to such a change;
· the children’s views and alignment with the father, and whether the father has alienated them from the mother and will persist in conduct that contributes to the children’s alignment with him and disengagement from the mother;
· the allocation of parental responsibility in the face of the parental conflict, and having regard also to N’s particular needs.
Statutory Framework
Part VII of the Act, s 60A to 70Q, provides the statutory framework in which the Court exercises its power to make parenting orders. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objective are achieved (s 60B(1)) and the principles which underlie those objections (s 60B(2)). Section 60B(1) provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act requires that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) requires that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order” as defined in s 64B of the Act. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Importantly, that presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2), and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child, then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend time with each of the parents, and if it is, to consider that order, and if not, the Court must consider whether it is in the best interests of the child and reasonable practicable to make an order for substantial and significant time with each of the parents. “substantial and significant time” is defined in s 65DAA(3) of the Act.
I interpolate here that no party took issue with the proposition that the presumption referred to does not apply in this case, because there are reasonable grounds to believe that a parent of the child has engaged in family violence within the meaning of the Act. Without detailing all of the relevant episodes of family violence that arose on the evidence, there was at the time of the parents’ separation an ugly confrontation between them over a video recorder, which culminated in a physical engagement between the parents when, I find, the mother held the father in some kind of headlock. That was witnessed by the children, and there cannot be any doubt that it was an episode of family violence within the meaning of the Act.
There have also been ugly confrontations between the parents at changeovers involving physical altercations, including, for example, what is reflected in exhibit 6, being the statement of Ms W to the police dated 16 November 2010. Without detailing the whole occurrence, it involved the mother punching Ms W in the presence of the children, and even on the mother’s account in oral evidence before me, she pushed Ms W. The event occurred in the presence of the children, given that it occurred at a changeover. Likewise, a physical confrontation ensued between the parents at a changeover at Hungry Jacks in 2012, again witnessed by the children. I am therefore comfortably satisfied that there are reasonable grounds to believe that these parents engaged in family violence within the meaning of the Act, and that such family violence constituted family violence as defined in s 4AB of the Act.
Aside from the feature that the presumption is, I find, rebutted by reason of family violence, it follows from my findings in relation to the best interests of the children set out later that it would not be in the best interests of these children for their parents to have equal shared parental responsibility. Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility, and the requirements include parents making a decision jointly about long-term issues. Such an order requires the parents to consult each other in relation to the decision to be made and to make a genuine effort to come to a joint decision about the issue.
I am comfortably satisfied in this case that for a long time, these parents have simply been unable to communicate in any meaningful way concerning issues of concern about the children and the evidence in the case, particularly from each parent, does not persuade me of any realistic prospect that in the future that is likely to change.
The operation of the statutory framework to which I have referred and the manner in which the Court approaches its application, including the determination of the s 60CC “best interests” considerations, is well-settled by authority (see, for example, Goode & Goode (2006) FLC 93‑286; MRR v GR (2010) 240 CLR 461; Sayer & Radcliffe and Anor (2013) 48 Fam LR 298; and Cox & Pedrana (2013) FLC 93-537).
Whilst substantial amendments to Part VII of the Act took effect from 7 June 2012, which, inter alia, significantly widened the definition of “family violence” as it now appears in the amended Act, the guidance or guidelines provided by the cases referred to is not materially affected by the amendments to Part VII, save only that it is to be now kept in mind that s 60CC(2A) requires greater weight to be given to the second of the two primary considerations referred to.
Relevant Background
The father is 38 years of age, having been born in 1976. He currently works part-time in his father’s business, Business D, in an administrative role. The mother is currently 37 years of age, having been born in 1977. She is a homemaker who is in receipt of a disability support pension due to her cognitive impairment, which will be discussed further later. The father currently resides in Town P with the subject children and his partner, Ms E, who filed an affidavit in the proceedings but was not required for cross-examination.
The father reported to Ms C that he and Ms E have been involved in a relationship since September 2013, but at the time of Ms C’s most recent interviews (on 20 August 2014) the father and Ms E had only then recently commenced cohabitation. Given the unchallenged evidence of Ms E, I am satisfied that this is a stable relationship, and that both Ms E and the father intend that this relationship have some permanency.
The mother is currently residing in Town P with her partner Mr F. The mother has been in a relationship with Mr F since June 2012, and they have been living together since March 2013. Mr F works on a casual basis in the hospitality industry in Town P. Mr F has two sons from a previous relationship, namely G, now aged five, and H, now aged four, who mainly live with their mother but live as part of the household of Mr F and the mother for three weekends out of four from Friday to Sunday and for half of the school holidays.
The mother and her partner Mr F are expecting the imminent birth of their child, due to be born in a little over a month on … October 2014. The mother has one now adult child from a previous relationship, namely J, who recently turned 18 years of age, having been born in September 1996. J has not lived with the mother now for some years, and was cared for by the mother’s parents in Town K in recent years.
The mother and father commenced their relationship in May 2001, began cohabiting in June 2001, and married in July 2004. Their divorce was pronounced in December 2010.
The parents separated for the first time on 2 November 2007 when they were then living on the Sunshine Coast. At that time and without the father’s consent, the mother relocated herself and the children from the Sunshine Coast to Town K, where her parents then lived and still live. Whilst on one level it is understandable that upon separation the mother would seek the support of her parents, the fact is that the Sunshine Coast and Town K are separated by a geographical distance of about 900 kilometres, and a travel time by car in excess of 10 hours.
As at November 2007, the children were aged five years, three years and two years respectively, and it is obvious that, separated by that distance and time, there would have been little prospect of the children maintaining their relationship with the father whilst he lived on the Sunshine Coast and they lived at Town K. In any event on 3 December 2007, the father instituted proceedings in the Federal Magistrates Court (as it then was) for a recovery order. Faced with those proceedings, the mother returned with the children to the home, and indeed, on or about 28 December 2007, the parties again commenced living together and seemingly attempted a reconciliation.
That reconciliation was short-lived, and again, on or about 11 February 2008, the mother left the home with the two younger children and returned to Town K. B refused, I find, to accompany the mother and his younger siblings. As will be discussed, that action by the mother occurred notwithstanding the contents of the first of the family reports in this matter prepared by Mr L, and further reference will be made to the relevant content of that report in this respect. Again, it can be said that there were obvious difficulties in the father maintaining a relationship with the two younger children in the circumstances presented, and moreover, the mother’s conduct resulted in the siblings being separated, with all the consequences of that for their relationships.
Thus it was that again, in February 2008, the father filed a further application for a recovery order of the children. That succeeded in the children being returned to his care, and about some five months or so later, the mother also returned. Since then, both parents and the children have lived in the Town P area to which they had moved.
On 18 September 2009, final parenting orders were made by consent in the then Federal Magistrates Court. In summary, those orders provided for the children to spend three days with the father and then three days with the mother, albeit there was a provision that the children spend school-day afternoons when in the mother’s care with the father for the purpose of them attending to their homework.
Somewhat surprisingly against the background referred to thus far, in about November or December 2009, the parents attempted another reconciliation. Again, this attempt was short-lived, and on 13 February 2010 the parents separated on a final basis.
On 28 April 2010 the father filed an application for parenting orders, including an application for variation of the final orders that had been made in September 2009. Yet again on 31 January 2012, final parenting orders were made by consent of both parents in the then Federal Magistrates Court. Those orders provided for the parents to have equal shared parental responsibility and, in summary, for the children to live with each parent on a week-about basis and for half of school holiday periods. By that time, perhaps unsurprisingly, the children were apparently in need of psychological counselling, which commenced with Ms M, to assist them in dealing with the conflict between the parents and the disruption in their lives produced by the parental separations referred to. As is apparent from these proceedings, those intended final orders also broke down. By 11 September 2012, the father filed an application for enforcement of the orders that had been made on 31 January 2012, and on 19 November 2012 Coates FM (as his Honour then was) ordered that the 31 January 2012 orders be suspended as regards B and T, and transferred the proceedings to this Court.
It was on 25 February 2013 that an Independent Children’s Lawyer was appointed to independently represent the interests of the children in these proceedings. It was also on 25 February 2013 that an order was made for the children to spend time with the mother from 8.00 am to 1.00 pm each Saturday and Sunday for three weekends out of four, with changeovers to be supervised at O Contact Centre at Town Q, or to occur at the Town P Police Station, given that there was by then an established history of the children being exposed to significant conflict between their parents at changeovers.
As at this trial, the children were living primarily with the father. They had experienced supervised time with the mother at O Contact Centre at Town Q, which then extended to time outside of the supervised setting, albeit that changeovers continued to occur at O Contact Centre. The time periods for the children to spend time with the mother were extended. Thus it seems that as at trial, the mother was spending about five hours each Saturday with only two of the children in circumstances where, from about April of this year, B was refusing to participate in time with the mother.
That refusal commenced in or about April of this year, and B maintained his refusal despite the efforts of staff at O Contact Centre to encourage him to visit with his mother. At a subsequent point the staff at O Contact Centre, having been unsuccessful in having B visit the mother, advised that there was little point in B being brought to the centre for changeover and that this was upsetting for B. Thus the position has been that at least since April 2014, only T and N have been spending time with the mother.
The Father’s Case and Proposed Orders
Despite the fact that B has not been spending time with the mother since April of this year, and on the father’s case has adamantly refused and continues to refuse to spend any time with her, the father sought orders as at the outset of this trial which would see an immediate commencement of all three children, including B, spending alternate weekend time with the mother. Challenged about that in cross-examination, the effect of the father’s evidence was that he acknowledged fault on his part in things he had done historically and an intention to change his conduct.
Allied with this apparent conflict, there was the father’s evidence in his affidavit to the effect that he held “very grave concerns” about the safety of the children when in the mother’s household. Again, challenged about that in cross-examination, the father reiterated that he had adopted, in effect, now, a different view. Whilst the father’s evidence on this topic was at times difficult to follow and internally inconsistent, he identified some features as leading to the change in his approach. The effect of his evidence was that he had taken into account the views expressed by Ms C in her most recent report.
He had also received a letter from the Department of Communities, Child Safety and Disability Services (“the Department”), which the Department addressed to both parents expressing a conclusion to the effect that the children were being emotionally or psychologically harmed by the conduct of the parents and their conflict. N and T had continued the visits, and the father referred to the apparently satisfactory nature of the visits from their perspective as another feature which had given him pause for thought. The father was also
cross-examined on this aspect, given the contents of Ms C’s most recent report, in which she set out what seemed to be the consensus view of the father and his own parents in relation to issues of safety in the mother’s household.
It can fairly be said that Ms C’s summary of those views was that the father and his parents maintained, as at the time of her interviews, significant concerns about the children’s safety in the mother’s household in circumstances where those interviews took place only last month. These dynamics gave rise to Ms C, the family report writer, being recalled to give further oral evidence in circumstances where she had given oral evidence as the first witness in the trial.
Ms C gave oral evidence to the effect that she had always held to the opinion that the father had the capacity to control the attendance of the children for time with the mother. The effect of her evidence was that the father had historically chosen not to exercise this control, albeit that with respect to B, Ms C made observations to the effect that he so identified with his father that he felt he was not allowed to have a relationship with his mother. In circumstances where B had refused visits with the mother since April 2014, Ms C’s further evidence referred to was to the effect that if orders were made as sought by the father, the father would be capable of exercising the control referred to by ensuring that B attended upon the ordered time with his mother.
The Mother’s Case and Proposed Orders
Before dealing specifically with the orders sought by the mother and her case, it is to be observed that in the course of these proceedings there are no less than five family reports that have been produced. There are at least three significant interventions by the Department, numerous interventions by police, and evidence sourced from counsellors of the children or statements made by the children to persons other than the parents.
The central propositions advanced in the mother’s case may be paraphrased and summarised as these:
a)The mother has historically been a primary care figure for the children, and even in periods when the parties have been separated, she has been a significant carer or equal carer.
b)Despite the numerous interventions by police or the Department, there has never been any hard evidence of any physical harm to the children when in the care of the mother caused by any form of abuse of them.
c)The pervading dynamic over the history of the matter, particularly since 2010, is the father’s conduct in:
i)relentless criticism of the mother to the children;
ii)inculcating or encouraging in the children the view that they are at risk when in the mother’s care, including from her partners;
iii)inculcating or encouraging the children to align themselves with him so as to interfere with their attachment with, and views of, the mother; and
iv)inculcating or encouraging the children to express views positive of him and negative of the mother.
d)That a contributing feature of these dynamics is the involvement of the father’s own parents and the views they hold.
e)That the Court ought not regard the father’s proposed orders or the father’s assertions in oral evidence as to his change in approach as being any more than the father paying “lip service” to the need for change.
The mother thus sought orders for the children to live with her with a moratorium of time and communication with the father to restore the
child-mother relationship.
As already noted, there have been five family reports prepared in this matter. Those reports contain a chronological history of the issues in the proceedings and many of those issues resonate with the relevant s 60CC considerations. I therefore propose to make reference in some detail to each of those reports.
The first of those reports is the report of Mr L dated 24 December 2007. As will be understood, that report followed the event in November 2007 when the mother left the family home on the Sunshine Coast, taking the three children to Town K, as earlier referred to.
At paragraph 28, relevant to the history of conflict between these parents, Mr L makes reference to a domestic violence application made by the mother. It is there recorded that the mother acknowledged that there had been no physical violence “beyond a one-off, minor incident” during the relationship. At paragraph 39, Mr L noted that it appeared to be an automatic expectation on the mother’s part that, having effected a separation, she ought be able to retain majority care of the children whilst living in Town K. Mr L noted:
The father’s approach seems to be more flexible in that he is prepared to move to a neutral spot such as [Town P] or [Town Q] and to have a three days on-three days off arrangement of caring for the children …
Mr L noted at paragraph 41 his opinion that the children clearly love both parents and extended family members. Notably, Mr L recorded, with respect to the children:
If anything [B] favours his father and the option of [School R], which is reflected in the letter from his school. This is one matter where young children are clearly closely bonded to both parents and therefore there ought to be relatively regular interchange between the two households if the parents are to remain separated in the longer term.
Mr L opined that if the “extreme geographical” feature remained, it was his opinion that the children ought to live with the father at the Sunshine Coast. I record the following extracts from Mr L’s report, commencing at paragraph 47:
47. It is felt that the mother’s offer of mainly school holiday contact to the father is unacceptable in terms of the emotional welfare of the children. The three children clearly have a close relationship with their father, which is indicative of his having been closely involved with their day to day life throughout. In addition there are the wishes of five year old [B] which gives further credence to the father’s involvement with the children.
48. The preparedness of the father to accept a compromise solution is reflective of his stated desire not to shut the mother out of the children’s lives. Furthermore, flexibility is indicated in the preparedness of the father to consider a shared arrangement whereby every three days or so the children move between households. The reasoning behind such a short time frame is related to the potential for the mother to struggle on an every day basis over an extended period, given her acknowledged deficits with memory and therefore managing everyday affairs.
49. It should be noted that if the parents reconcile in this instance and there are further separations that it would be preferable for the children to remain with the father at separation and not be dragged from existing schools and other support to travel back to [Town K]. In this instance, to take [B] out of his school at the start of November would seem to have been a most untimely event.
50.The conundrum for the mother is also the strength of the father’s argument in that it is difficult to envisage her caring for the children geographically removed from the support of her family. In other words from a day to day perspective the record and the presentation of the parents suggest that the father is the more capable parent overall.
In his conclusions, Mr L expressed the view that it was in the best interests of the children that if the geographical distance remained, it would be the best option for the children to remain living primarily with the father on the Sunshine Coast. If the geographical problem was removed, he opined that the best option was the children experiencing care from both parents on a weekly basis. It was Mr L who recommended a relocation to the Town P/Town Q area by both parents so as to facilitate a revolving shared care arrangement.
In circumstances where Mr L had noted in his report, as referred to, the effects of the mother’s relocation of herself and the children to Town K, in terms of contribution to conflict between the parents, not to mention the effect upon the children, the mother did, as earlier noted, again relocate herself to Town K, this time with the two younger children, in February 2008. As noted, that again led to the father having to institute proceedings for a recovery order. It is notable from the opinions expressed by Mr L, which I accept, that even at that early stage B seems to have commenced to align himself with the father. Notably, Mr L did not detect in the father, as at that time, any concerted plan to exclude the mother from the children’s lives or to limit her involvement. Indeed, despite the mother’s conduct in removing the children, the father was reasonably proposing a shared care arrangement.
Mr L’s second report is dated 29 March 2009. He records in that report that the parents had relocated to Town P after Christmas 2007 and had settled in that area. Mr L records in that report the mother’s departure from the household on 12 February 2008, taking the two younger children with her. He further records the return of the younger children in response to the proceedings initiated by the father.
Notably, even after this second relocation despite the content of Mr L’s first report, Mr L records that when the mother moved to Town P around the middle of August 2008 and had set up her own household, the children began to spend equal time with both parents on a three day on, three day off arrangement.
By the time of his second report, Mr L had received the neuropsychology report prepared by clinical neuropsychologist, Ms S, in May 2008. At paragraph 15 of his second report, Mr L records the relevant findings and conclusions made by Ms S in relation to the neuropsychological testing of the mother. He specifically noted:
· In terms of overall level of intellectual function, that is capacity to understand and explain ideas both verbal and nonverbal, [the mother] performed at a level equivalent to the bottom 3% of the standardisation sample.
· On the processing speed index she scored in the extremely low range (2nd percentile).
· She demonstrated a very limited ability to conceptualise and express information in an abstract fashion.
· Again, the clinical observation suggested a high level of concretism in her interpretation of problems and limited ability to correct herself when she had made an error.
· This suggests that her memory skills are poorer than would be expected by virtue of her overall intellect. This is consistent with the everyday observations offered by her mother of significant forgetfulness.
· Of greater concern however was that she found it almost impossible to adhere to the rules of the task.
· On the verbal fluency test, [the mother] performed surprisingly well scoring in the average range.
· On the measure of general intellect, [the mother] was performing in the borderline range. Her memory test performances were significantly below this, scoring in the extremely low range.
· In a supportive environment with help she may well be able to function independently but she would require a good deal of structure and assistance.
I interpolate here that Ms S’s full report and test results were in evidence before me. In summary, because of the mother’s meningitis illness suffered in childhood, she suffers a global level of cognitive dysfunction on the assessment of Ms S, which I accept. In summary, the test results and Ms S’s opinion is to the effect that the mother is of borderline intellectual ability with extremely low memory and is at the borderline line or extremely low range of executive function.
I also interpolate here that Ms C, in her reports and opinions, expressed some surprise at the level of results reflected in this testing. That seemed to follow that the presentation of the mother to Ms C and the history that the mother has a demonstrated capacity to function on an everyday basis.
Likewise, there was a report and oral evidence from Ms U an occupational therapist who had undertaken some testing of the mother which indicated that the mother was more functional in everyday life than Ms S’s testing would seem to reflect.
It is the case that the occupational therapist was in oral evidence prepared to defer to the opinions of Ms S, given the qualifications of the latter and the nature of the testing undertaken by the latter. In this respect, Ms S had expressed the view in her report that, in terms of prognosis, it was unlikely that there would be much change in the mother, given the longstanding nature of her condition and the feature that the cause of it had been occasioned in childhood.
On this topic, it seems clear on the evidence as a whole that the mother has developed methods of dealing with her dysfunction, including by the writing down of appointments and the like and the use of her mobile phone for reminders. It is equally clear though, I find, that when under stress, the mother may not cope as well.
Returning to Mr L’s second report, at paragraph 32 Mr L records being impressed, “… at how both parents have seemingly moved forward.”
He noted, in particular, the father appearing to adopt a more understanding approach to the difficulties experienced by the mother in day to day life. Mr L opined that in light of the neuropsychometric testing, the father’s expressed concerns were placed in “A slightly different light.”
Notably, at paragraph 35 of his report, Mr L recorded this:
Apart from [N] experiencing some difficulties with anger, the children are thriving. They are healthy, exuberant, affectionate, thriving at school. They seem to look to their father as being the primary figure in the family but are equally affectionate and communicative with both parents. The parents acknowledge that the mother is less consistent with discipline and routine, and that is apparent to the independent observer. [N] in particular, appears to have his mother’s measure, which may be what is contributing to some unruly behaviour at kindergarten, although one obviously must not discount the upset he has felt as a result of the upheavals in his life over the past 18 months or so.
In circumstances where, at the time of this report, both parents were based in Town P, Mr L opined that they ought adopt a three day on/three day off care arrangement or an equal time care arrangement with the children in the event of further separation.
As already noted, the parents entered into consent orders on a final basis on 31 January 2012. Notably, those orders provided for the parents to have equal shared parental responsibility and for there to be a shared care arrangement on a week about basis. It would thus seem that, despite all that had occurred to that point, at least as at January 2012, both parents recognised the benefits for the children of a shared care type arrangement.
The third and final report prepared by Mr L is dated 12 November 2010. The interviews for that report took place in circumstances where the parties had attempted a reconciliation in November 2009, which lasted only until February 2010. As already noted, when the parties separated on 13 February 2010, this was their final separation. At paragraph 4 of this report Mr L records events which occurred at the time of separation concerning the video camera. As already noted, this was an episode of family violence within the meaning of the Act given the physical confrontation that ensued between the parents, and to which the children were subjected. As at the time of that report the father had formed a relationship with his then partner, Ms W and they were cohabiting. It is clear that by this stage significant conflict was ensuing between the parents.
For example, at paragraph 8 Mr L records the father informing him that the father had taken the children to the Town P Police Station on some four or five occasions “because they were coming home consistently with new marks.” The report records the police taking photographs of the bruising and, according to the father, the police had investigated, including by means of interviewing the children, these events. The police had referred the father to the Department. By that stage the father had taken B to the Department and also had taken B and T to the local hospital and he reported to Mr L that the hospital had documented bruising on the children and had sent information on to the Department.
Notably, at paragraph 15 of his report Mr L records the father’s admission to Mr L to “… stripping down the children upon their return to his home in order to check for bruising.” When that was put to the father in cross-examination he asserted to the contrary in the sense of giving evidence to the effect that all that he did was check the children at bath time. I reject the father’s evidence in this respect given the clear documentation by Mr L of his admission. At paragraph 12 of this report Mr L records this:
[Senior Constable V] of the police child protection unit at [Town P], informs that the father has brought the children into the police station on five or six occasions, that he has interviewed the children twice at school, formally interviewed the mother on the basis of allegations and some small bruising to the back of [B]. Senior Constable [V] informs that police are unable to take the matter any further due to the mother not making any admissions and due to the contradictory versions of the children.
By the time of that report, as is recorded at paragraph 37 of Mr L’s report, it was the father’s proposal that the children live with him for the majority of the time. He was, however, proposing that the children spend every second weekend with their mother from Friday 5.00 pm until Sunday 5.00 pm. At that stage the father was emphasising structure for the children and school needs and routine. Notably, at paragraph 45 of his report Mr L records this:
On 20.06.10 Coordinator of the [X] Kindergarten, [Ms Y], wrote a report at the father’s behest which was unfavourable to the mother … Interviewed for the purposes of this report, Ms [Y] emphasises that the current 3/3 system is not working, whereas before she could predict that unfavourable behaviour from [N] would be whilst in the mother’s care, there is an even-handedness about the situation, with the mother really trying harder, and the father seemingly enmeshed in complaints regarding her care. [N’s] behaviour can be aggressive and disruptive, and as a result he has not developed any really strong friendships over almost two years in the group. His behaviour can vacillate from being crying and upset, to aggressive, to being fine. There is a definite need for therapy for [N] and for the parents in their handling of him. She has been concerned regarding the father discussing adult issues in front of [N]. She has been concerned regarding [N] referred [sic] to [Ms W] as “good mummy” and to [the mother] as “bad mummy.” Scratches to [N’s] face have been explained as being the result of fighting amongst themselves. Having fallen apart after the separation, particularly when the father acquired a girlfriend, the mother has really pulled herself together, and is now better organised and more communicative than in the past.
I accept the accuracy of what is recorded by Mr L. The concerns are obvious when there is a recording of N referring to his kindergarten teacher to the father’s partner as “good mummy” and to his own mother as “bad mummy.” As is recorded in paragraph 47 of Mr L’s very thorough report, he also engaged with the principal of School Z where B was then in grade three and T was in grade one. Mr L records the observation of the principal that the children were leaving freely and happily when the mother collected them from school and noted that when the mother takes them out to the car, “Invariably the father will approach and want to discuss adult issues.”
The principal had noted “some fractious moments between the parents.” The principal related to Mr L no apparent fear of the children of their mother and that they were equally happy to leave school with either parent. Mr L opined at that stage that B was maintaining a position of preferring to live more with his father. Whilst he did not then seem to have any complaint regarding the mother’s household, B had some issues with the mother’s then partner, Mr BB, but he had no issues with the father’s then partner, Ms W.
As at that stage T’s position was that she preferred a 5/5 arrangement. Mr L did not detect in T any issues with coping with both households. At paragraph 51 of that report Mr L noted that at the point of changeover back to the mother, during his interviews, of the three children, Ms W delayed the changeover by calling back N for a “protracted farewell” and Mr L recorded that she referred to herself as “mum” during that event. In that report Mr L opines that the “three day/three day arrangement” was not serving the children’s interests. Mr L opined that the arrangement was too disjointed given the added requirement for the father to be involved with the children’s homework.
Notably, at paragraph 56 Mr L records:
Whilst the parental styles are markedly different, with the father far more inclined towards routine and structure, it is felt that the father’s ongoing carping and a lack of confidence in the mother’s abilities is the major disruption to current routine.
Relevant to the mother’s cognitive dysfunction, Mr L observed at paragraph 58 of his report, the outcome of his discussions with the mother’s “[CC Medical Centre] Practice nurse.” Mr L recorded:
The [CC Medical Centre] Practice Nurse believes that by feeling less under stress and strain, in separation, the mother’s ability to cope on an everyday basis has improved. … There was a deterioration around the time of (this) final separation and when the father established a relationship with his current partner, butt [sic] with the support and involvement of the aforementioned supports, the mother has settled into independent living and has gained in confidence plus competence.
Mr L records the following important information at paragraph 61 of his report, in relation to the father:
There is evidence of his labouring/reciting the mother’s misdemeanours and deficits to anyone who will listen, including in the presence of the children at times. This pattern has most been reflected in the behaviour of [N] at kindy where he is regarded as a volatile, changeable child, who has not been able to cement good friendships over a two year period, due to lapsing into aggressive, insensitive behaviour towards his peers. The Coordinator of the centre has tried to curb the father’s carping about the mother in [N’s] presence. Whereas previously, Ms [Y] felt that [N] was more settled when in his father’s care, this is no longer the case, with good and bad days being when based with either parent.
Further evidence of damaging psychological practices was noted when N spoke of “good mummy” and “bad mummy” at the child care centre.
Mr L opined, an opinion I accept, that over the course of time allegations of the father being controlling and dogmatic had been borne out, and that the father had become determined to assert being the superior parent by a long way. In that respect, Mr L opined as to the father at paragraph 62:
Unless he can desist from such approach, then the Court will be forced to make a decision regarding majority care. If the mother’s profile continues to be raised, in conjunction with continual carping from the father, then the majority decision might need to be in the mother’s favour. One way or the other, the emotional pressure needs to be lifted from the children. [B] is a highly-strung lad, while [T] is genuinely even-handed and ought to be allowed to enjoy such position. If the children’s wishes and attachments are taken into account, it is felt that the situation remains deadlocked with [B] more in favour of dad, [N] possibly more in favour of mum, and [T] divided.
Mr L opined, an opinion which I accept, that the children’s loss of faith in their mother was produced by the father highlighting her inadequacies. Mr L ultimately concluded that a continuation of shared care for the children was warranted. He suggested the trial of a week about arrangement. He opined that there was a need for further structure in the mother’s household and routines with the intervention of professional assistance.
It can thus be seen that, at least by this report dated 12 November 2010, it ought to have been abundantly clear to the father that potential damage was being caused to the children by his exposure of them to criticism of the mother or highlighting her inadequacies. In this context, there is force in the submission on behalf of the mother as to whether the father as at trial had genuinely altered his view or stance in light of more recent events or evidence, when it is the fact that he had the benefit of this report by Mr L now almost four years ago.
Balanced against that, I have already referred to the feature that as at January 2012, both parties consented to orders providing for equal shared parental responsibility and for there to be a week about shared care arrangement, that is, it would seem that despite what Mr L addressed about the father in his November 2010 report, as at January 2012, the father was accepting of the position that the children’s interests were served by an equal time arrangement. Regrettably, as is clear, the equal time arrangement put in place by the January 2012 orders ultimately failed.
Following the January 2012 orders referred to, it was in September 2012 that a significant series of events occurred. On 8 and 9 September 2012, both parties recount a series of events which resulted in T running away from the mother’s home and going back to the father early one morning. That was in a period that the children were spending time with the mother pursuant to the orders. Mr F gives his account of this event in paragraphs 55 to 64 of his affidavit filed 29 January 2014. It is also referred to in Ms C’s report dated 26 October 2013 at paragraphs 42 to 45.
In summary, T telephoned the father on the evening of 8 September 2012 requesting that the father pick the children up. On the father’s account, which I accept on this point, he refused and told the children to have a good time with the mother. Notwithstanding this, it was on the following morning, on 9 September 2012 at approximately 6.00 am, that T walked from the mother’s residence to the father’s residence and arrived on the father’s doorstep, having walked a distance of some 800 metres between the two residences and was refusing to return to the mother’s residence.
The mother reported to Ms C that she woke up that morning to discover T was not in her bed. Shortly thereafter, she received a text message from the father that T was with him and that he would return her once she had settled down. On her version, the father did not return T to her care. This episode provides evidence of the capacity of these parties to overreact and to engage authorities when that, in hindsight, was unnecessary. For her part, the mother reported this incident to the police as a kidnapping. That is, in circumstances where she knew from the father that T was with the father and, as noted, the father had expressed an intention that if he could he would get T to return, he would do so once she had settled down.
The mother’s involvement of the police resulted in the police attending at the mother’s home and speaking to N and B, and it seems that B then expressed a desire to return to the father’s home. The police thus delivered B to the father while N stayed with the mother.
For his part, it was on 11 September 2012 that the father filed an application for enforcement of the orders made on 31 January 2012. It is clear that the existing care arrangements disintegrated from that point. In the result, on 19 November 2012 Coates FM, as his Honour then was, suspended the January 2012 orders with respect to both B and T.
In her oral evidence, the mother was unable to identify any particular reason as would explain T’s apparent election to leave her care and return to that of the father. On the mother’s version, on the day preceeding the morning when T ran away, she seemed to the mother to be “just as happy as usual.” This episode involved the police being involved so that the children were well aware that the police had been involved in this episode. On the day following, the father picked up all the children from school and it was, as noted, in circumstances where there were other ways that might have solved any issues that would have been less confronting for the children.
Not long after that, in March 2013, there was another event that assumed some significance. On that occasion, it would seem that B suffered a split lip whilst Mr F was engaging in play activities with the children. Mr F deals with this episode in paragraphs 10 to 12 of his affidavit. On the father’s version, B returned home with a split lip and the father took him to the doctor. B then allegedly reported to the doctor that Mr F had picked him up, and thrown him on to the lounge and “Someone’s knee hit his mouth causing the injury.”
That version is referred to at paragraph 55 of Ms C’s report dated 26 October 2013. From the same report, it can be seen that the mother reported to Ms C that, on the day in question, Mr F was “play wrestling” with B and B accidentally hit his mouth with his own knee in the course of that play. Mr F reports that while he was playing with the children, he had picked T up and dropped her on to the couch and then B came to him:
From his right-hand side and so he turned around, picked him up and dropped him on the couch next. As [B] fell, his knee hit his lip.
I am comfortably satisfied on all of the evidence that this episode involved no more than the play-wrestling, or a bit of rough house play in the manner described by Mr F. However, the father took a different view and either he or his parents involved the police. The police visited Mr F some three days later and it seems that, at least on Mr F’s version, the father was attempting to have Mr F charged for the assault of B. These events only need to be described for it to be realised the potential impact upon the children, and particularly B, in terms of alleged safety issues with respect to the mother’s household and interaction with Mr F.
The next event of significance might be referred to as “the steps incident” which occurred in September 2013. In summary, N fell down the steps whilst in the care of the mother. There is some conflict between the accounts of the parties as to the circumstances surrounding this incident. On the mother’s version, it was an accident that occurred when Mr F closed a gate located at the top of the steps which caught N off balance causing him to fall backwards as he was coming up from behind. Mr F deposes to a similar version of events, however states that the reason for N’s fall was because Mr F had not realised how close behind him N was.
As to the version that the gate actually hit N this comes from MS C’s report as recorded in paragraphs 45 to 47 of her report dated 30 August 2014. However, in oral evidence, Mr F confirmed, and I accept, that it was not possible for the gate to actually strike N and that what was involved was N being startled by the slamming of the gate causing him to lose balance. As a result of N’s fall, the mother contends that he had a bruise on his back which she treated with an icepack. The mother maintains, and I accept, that following the event, N appeared to be fine and was playing again shortly afterwards.
On the father’s version, he contends that N returned home with significant bruising on his back and shoulder and N purportedly told the father that Mr F had “pushed him down the stairs”. I interpolate here that I am not satisfied that there was any such conduct by Mr F. It may be that that is what N told the father, but this highlights the conflict that was occurring when the children were saying things to the father that he too readily embraced. The father took N to the doctor and subsequently, the police and the Department were involved in an investigation at that doctor’s instigation. It appears that initially Mr F may have been charged by the police with respect to this episode, but it is equally clear that the police elected not to pursue any charge. It is clear on the subpoenaed material ultimately that both the police service and the Department concluded that this incident was, indeed, an accident.
I observe here that from Ms C’s more recent interviews in August 2014, it is plain that at least the father’s own father does not accept the outcome of the relevant investigations resulting in a conclusion that all that was involved was an accident. It is clear that Ms C obtained a version from the paternal grandfather which makes it abundantly clear that the paternal grandfather maintains some view to the effect that something untoward happened and that it was a failure of either the police or the Department that the matter did not proceed properly. It is clear that the father in this case is exposed to the views of his own father.
Following the steps incident in September 2013, the father unilaterally suspended the children’s time with the mother. In December 2013, the children commenced spending supervised time with the mother at O Contact Centre with the intention to gradually increase time to unsupervised day visits at her home. The father had maintained that it was necessary to suspend time because the children were “terrified” of the mother and needed supervision in order to rebuild their relationship with her. That contention is reflected in paragraph 19 of Ms C’s report of 30 August 2014.
I should note at this point that the mother was offering undertakings with respect to time proceeding in the absence of Mr F whilst the matter was under the investigation of the relevant authorities. Despite the undertakings that she offered in this respect, the father refused to facilitate time in circumstances where there was no suggestion whatsoever that the mother had done anything untoward. In his oral evidence, the father was left to concede that it was a lack of trust on his part of the mother in the undertaking she proffered that resulted in him maintaining the stance he did.
As already observed, ultimately, it was in April 2014 that B commenced to refuse to see the mother and that has remained the position. I should also record as one example of the father making things far more difficult than they needed to be is in relation to N’s attendance at soccer during 2013. At paragraph 102 of her affidavit filed 30 January 2014, the mother records that on 8 May 2013, she requested of the father via a letter from her solicitors that changeovers occur at the police station at Town P instead of at O contact Centre at Town Q. This request was based on the feature that N was missing soccer games on the weekends that N was spending time with the mother.
The mother records at paragraph 103 of that affidavit that the reply received was to the effect that it would be “very rare” for N to miss out on soccer games and a further letter on 2 July 2013 asserted that:
On those few occasions that [N’s] game is early, he will only miss the first half.
However, as the mother deposes in that affidavit, N’s games were always scheduled to commence at 9.00 am. Even in oral evidence, the father attempted to assert that the games start times could be variable but it was demonstrated in cross-examination through production of the relevant official schedule, that all of N’s games were scheduled to commence at 9.00 am. The significance of this is that the travel distance from Town P to O Contact Centre is about 25 minutes. The relevant time of changeover in the relevant period was at 8.30 am. That meant that allowing for time delay at changeover N would not get to the soccer game, at best, before virtually the start of the game and more likely after his game had already started.
The obvious solution, as was put to the father during his cross-examination, would have been for N to have simply been taken to his soccer game shortly before 9.00 am by the father and for the mother to be in attendance at the game to be able to take N into her care at its conclusion. I do not accept that the father lacked the intelligence or sophistication to recognise the obvious solution that this provided. Rather, N was subjected to the charade of having to travel 25 minutes from Town P to the changeover centre at O Contact Centre and immediately travel the same journey in reverse for 25 minutes to get to his soccer game. Little wonder that changeovers assumed such significance at least in N’s mind.
I am comfortably satisfied that the position had well and truly been reached that the father and paternal family members, including his own father, embraced and reacted to what were in truth minor matters and blew them out of all proportion in terms of the involvement of authorities and in terms of the children being exposed to unnecessary conflict and the involvement of those authorities. That noted, it is fair to say that in a September 2013 weekend there must have been some significant conflict over the weekend produced by the fact that Mr F’s children, G and H, were present on that weekend. That is so because it appears that a notification about G was received by the Department on 5 September 2013.
It seems to be accepted that there was some argument between N and G on that weekend but of significance is that Mr F’s children were also the subject of a notification to the Department with respect to events on that weekend. Mr F gave evidence that it has not been necessary to seek formal court orders for his own children to be spending three weekends out of four in his household. His evidence was to the effect that he had a reasonable working relationship with the mother of G and H. However, there is an obvious concern that it was only 12 months ago that the Department were involved with respect to Mr F’s children and Ms C’s report dated 30 August 2014 refers to involvement of the Department with respect to Mr F’s children since about 2010.
I emphasise here that there does not appear to be any evidence of any substantiated risk flowing from any of that, but the significance is that there have been notifications made to the Department about Mr F. There is obvious disruption caused to any household when a department becomes involved in investigating any complaints even if they be fabricated or of no substance.
Ms C undertook her family report process for the purposes of her first report in August 2013. Her first family report was completed on 26 October 2013.
Notably as at that stage, Ms C records in paragraph 7 the event concerning T having run away in September 2012. Ms C records that at that stage it was in early 2013 that orders were made requiring the children to visit on Saturday and Sunday for three weeks out of four and that T did continue to visit but that B stopped visiting as at March 2013. Ms C records that throughout the relevant period, N had continued the week about arrangement. As is recorded in paragraph 10 of that report, the father was expressing the belief to Ms C that the children should live with him on a full-time basis and that he should have sole responsibility for decision making about their welfare.
Whilst the father asserted that he wanted the children to have “contact with their mother”, he was unsure about the form this should take. The mother’s position at that stage was that the arrangements should revert to the week about system which, in her view, had worked well. The mother asserted that this regime had only broken down since she had commenced a relationship with Mr F. As at the stage of the first report of Ms C the paternal grandparents had taken steps to intervene in the matter. As at that stage the father had been in a relationship with one Ms AB but they had separated earlier that year and she was not involved in Ms C’s report process. At paragraph 40 the father is recorded as telling Ms C that he has always had problems with the children going to stay with their mother but this had become worse in about June 2012.
It is notable that, as already recorded, the relationship between the mother and Mr F commenced in 2012, albeit that they had not commenced living together until March 2013. According to the father, T told him, as at June 2012, that she did not wish to “go anymore” in terms of visits to the mother. It may well have been T’s true reaction to the mother’s new relationship but it seems to me this is yet another example of the father embracing information adverse to the mother, coming from the children, without any reality testing of the source of such information.
It is in the same paragraph of the report that the father is reported as telling Ms C, “The children have repeatedly told him that they don’t like Mr [F].” The father, as is recorded at paragraph 47 of this report, told Ms C that in early October B and T refused to go to their mother. There was a “scene” at Hungry Jacks on that occasion. All family members and, importantly, the children were involved in that event. It seems that the event descended into B and T “screaming” that they did not want to go to their mother with the father supporting their wishes and the mother attempting to make the children accompany her. The police were called.
Yet again these children had the experience of an ugly confrontation with their parents and the involvement of the police.
Paragraph 74 of this report contains the following description of the mother:
[The mother] has an affable, genial manner. I am conscious of the neurological assessment undertaken some years ago. At surface level, I find it difficult to correlate her presentation with the poor functioning outlined in the Report. Her independent living skills are sound and she appears to manage the day-to-day demands of running her home and getting the children to school etc. I have wondered whether she manages better nowadays because she has been left alone for a couple of years to work out her own ways of doing things.
In relation to Mr F, at paragraph 77 Ms C says this:
Mr [F] has an unusual social manner, seeming to present with some characteristics found in the autistic spectrum. He is predominately self-focussed and he has a propensity to chatter aimlessly about irrelevancies unless redirected to the question. He describes himself as a ‘big kid,’ and I would say that this term aptly summarizes his description of his activities with the children.
I should say in relation to that, I do not suggest that Mr F demonstrated the kind of behaviour referred to by Ms C in giving evidence at trial. What I mean by accepting Ms C’s description is that I accept her opinion that that is how he presented to her. Notably, in her discussions with the paternal grandparents they reported to Ms C that B doesn’t visit with his mother “because he doesn’t want to get abused.” The paternal grandparents referred to the March event where B sustained a split lip. They told Ms C (at paragraph 88):
[B] said that [Mr F] had done it. They didn’t know any of the detail about what happened and they suggested that I would need to speak to [B] about this. If there were any disparities between [B’s] account and that of [the mother] they would have no difficulty in accepting the child’s description over [the mother’s] description.
There is then a recounting by the paternal grandparents of a series of incidents which, if true, would involve the mother in perpetrating serious acts of violence against B. Notably, this was not pursued in cross-examination of the mother at trial. It is plain, from the passages in Ms C’s report referred to, that the paternal grandparents were maintaining highly negative views of the mother and her capacity to care for the children and, indeed, were advancing matters so as to place questions upon the safety of the children when in her care.
Ms C undertook interviews of each of the children. In her assessment Ms C opines that it is arguable that the father was never prepared to accept the children living with the parents on a week-about basis. In my judgment, it is likely that the father has taken any statement adverse to the mother at face value and acted upon them. He has certainly “run with” any allegations of untoward conduct by the mother or, more particularly, by Mr F, without any reality testing of any account given to him by the children.
Notably, at paragraph 145 of her report, Ms C records of the father that, whilst he was conscious of Mr L’s earlier comments about his chronic complaints about the mother he “…couldn’t help himself and he still cannot see anything positive about [the mother].”
I accept Ms C’s opinion to the effect that it is probably the case that the father failed to set firm limits upon the children so as to ensure that they visited their mother in circumstances where the children were allying themselves with the father by reason, at least in substantial part, of his own conduct and the views held within his household, as reflected by what the paternal grandparents told Ms C.
Notably, at paragraph 146 Ms C opined, and I accept:
The polarization within this family is entrenched and it extends to grandparents. The paternal grandparents hold the same view of [the father] as [the mother] does. The paternal grandparents’ attitude and view of [the mother] mirrors that of [the father].
It is instructive to note, at this point, that in September 2013 N received a formal diagnosis of attention deficit hyperactivity disorder and displayed patterns of oppositional defiance behaviour. Even this was laid at the door of the mother by the father. At paragraph 150 of her report Ms C records the father as implying that N’s challenging behaviour was due to the mother’s parenting. I accept Ms C’s opinion, expressed in paragraph 150, that the father was not examining any hypothesis. That he himself was contributing “to the mayhem” by refusing to insist upon the children going to their mother.
In terms of her assessment of the children’s views at that stage, Ms C records, commencing at paragraph 158 of her report, as follows:
158I note Mr [L’s] comment in November 2010 that [B] was closer to his father, [N] to his mother and that [T] was divided in her affections. In my opinion, this continues to be the case.
159Mr [L] referred to how [the father] was outspoken in his criticism of [the mother] – often in front of the children – and that this was undermining their confidence in their mother.
160It is my view that 11-year-old [B] is heavily aligned with his father and he is unlikely to resume a meaningful relationship with his mother in the near future unless [the father] fosters this.
161[T] conveys that she loves both of her parents. She says that she doesn’t want to spend more time with her mother than the present Orders allow.
162She was particularly cautious and guarded when speaking about this however and I am disinclined to place much weight on this because of the likelihood that her expressed wishes are compromised by the views that her father and grandparents hold about her mother.
163That said, it is probably fair to say that the die [sic] is cast and she, like her brother, feels it necessary to align with her father.
164My individual session with [N] was not reliably enlightening regarding his wishes. If his actions demonstrate his feelings and attachments, we can reasonably conclude that he has been happy in his relationship with both parents.
I accept Ms C’s opinions as at that time in terms of her assessment of the views of the children. In that same report, Ms C opined, and I accept, that the paternal grandparents were strongly aligned with the father and that they were incapable of speaking about the mother in any balanced way.
Ms C opined that at that stage a shared care arrangement was “…no longer an option …” on the basis of the lack of parental cooperation, with no likelihood of that improving. Ms C also opined that the parenting styles varied greatly between the two households, and I have no doubt of that in light of all the evidence in the case.
Ms C opined that, overall, the father is likely to have stronger parenting skills in terms of consistency and routine and that the children presented as having a stronger connection with him than with their mother.
Ms C opined that the father is more capable than the mother of making informed, long-term decisions about the children’s welfare.
Critically, Ms C expressed this opinion, which I accept, at paragraph 170 of her report:
His relentless criticism of [the mother] and his lack of insight in his contribution to these problems is the biggest deficit in his parenting and causes me to have serious reservations about him.
Ms C canvasses the options as they then presented and suggested as a safeguard that stipulations be placed upon the father by the Court that the children must visit with their mother. On the basis of her assessment, the father is a, “strong and capable parent.”
Ms C was of the opinion that the father could exercise his authority over them (the children) to ensure that they comply. I note that this is consistent with Ms C’s evidence in the second instalment of that oral evidence during the trial, as earlier referred to. Ms C also expressed the opinion in that report that the father ought have sole parental responsibility for the children upon the condition that the father keep the mother informed of all pending decisions “…and allow her to voice her views on these.”
Ms C concluded, by way of recommendations, that the children should live with the father and spend time with the mother every second weekend from Friday afternoon until Monday morning, as well as half of the school holidays. She recommended that, “[the father] is to exercise his parental authority to ensure that this happens” (that is, time with the mother).
As already noted, Ms C undertook further interviews only last month for the purpose of the second of her reports. I have already made references in the preceding discussion to some of the contents of Ms C’s second report. For the purpose of that second report, Ms C considered the events surrounding “the Steps incident.”
Ms C also had regard to the assessment undertaken by Ms DD of the Town P office of the Department of Child Safety in October 2013. At paragraph 24 of her report, Ms C records the extent of the involvement of the Department as a result of notifications.
As earlier referred to, Ms C records in her second report, commencing at paragraph 28, what she saw as the consensus or combined views of the father and the paternal grandparents. The united view was that the children should live fulltime with the father and that there was no point in attempting to make B visit with his mother against his wishes. They expressed a view that the mother’s time with T and N ought be constrained to daytime contact every second weekend without overnight visits and that “… the children would be happier if Mr [F] were not present during such visits.”
Mr F was not cross-examined at any length about the involvement of the Department with him and his children. I note that at paragraph 46 of her second report, Ms C records Mr F becoming defensive and argumentative when she attempted to interview on this topic. Mr F’s explanation, as recorded, for the notifications was that his eldest son (a reference to G), “… has been lying and playing him and his mother off each other.”
It is notable that Mr F reported to Ms C that at one point his eldest child was taken into foster care, with Mr F advising Ms C this was because the child’s mother “… wasn’t coping at the time and he was working long hours.”
As earlier noted, the position has been reached that it seems Mr F’s children reside primarily with their mother but visit Mr F on three weekends out of four.
Commencing at paragraph 50 of her second report, Ms C canvasses with the children their views. Notably in relation to B, at paragraph 55 Ms C records B telling her:
…that he doesn’t want to see Mum at all. If the judge were to say that he had to go, he wouldn’t. He said, ‘I refuse to go.’ Asked how Dad would react to him refusing to go if the Judge said that he had to, he said he didn’t know. He said that he wouldn’t be worried about Dad’s reaction.
Ms C observed that B was “disconnected” from this part of the conversation and she formed the view that B was “going through the motions” as she put it.
In relation to T, Ms C expressed the opinion that she could not be confident that what T told her was a true expression of her wishes.
In relation to N, Ms C tested him about an expressed view that he did not wish to stay overnight with his mother, but N was unable to provide any specific reason, simply saying, “I just don’t want to.”
In relation to matters of safety in the mother’s household, Ms C opined that it is the adults in the Ruttledge family rather than the children who are “terrified.” I accept that opinion.
In terms of the children spending time in the mother’s household. Ms C records of the father and his parents:
They are driven by an implacable mindset that sees danger lurking in every corner in [the mother’s] household. They are open to any of the children’s complaints and they magnify the seriousness of cuts and bruises sustained at [the mother’s] home. They are not open to counsel about seeing events differently from any external source.
Critically, at paragraph 71 of her report, Ms C expresses the opinion which I accept that it is the father and his parents’ views and actions regarding the children’s safety with their mother that:
… has caused serious emotional developmental damage to the children’s relationship with their mother. The message they give the children is loud and clear; [the mother] and Mr [F] cannot be trusted.
Whilst Ms C noted that the children’s overall school performance had improved, she considered it not possible to say whether this was because of their experience of life in the father’s household or whether it is because their exposure to the parental conflict has been reduced because of the limited amount of time they had seen their mother. Ms C expressed the opinion, which I accept, that these children have been over-interviewed. I also accept her opinion, expressed at paragraph 78, that:
These children need a break from the relentless crossfire between their parents that has now been going on for seven years. They need to be allowed to be children.
I am satisfied that Ms C had full and complete regard to the impact of the father’s conduct and that of the paternal grandparents, in terms of the criticisms of the mother shared with the children and their obvious involvement in knowing the views held by the Ruttledge adults. Nevertheless, it was Ms C’s recommendation that the children continue to live with the father but spend regular time unsupervised with the mother, including visits every second weekend from after school on Friday to before school on Monday.
Ms C opined that the high level of inter-household conflict mitigates against the effectiveness of joint decision making in terms of parental responsibility and recommended that if the Court orders the father to have sole parenting responsibility, it would be important for the mother to be informed of decisions.
In her oral evidence – particularly in the second instalment – Ms C was asked to consider the alleged change in position of the father. She was tested concerning the father’s capacity to control the children actually attending ordered time with the mother and thus, on that basis, that the father had the capacity to ensure that the children would observe whatever orders the Court might make. In summary, the effect of Ms C’s evidence was that a distinction was to be drawn between orders as sought by the father and his capacity to control the children observing those orders as compared with orders that went beyond the father’s support of them. Tested in cross-examination about the father’s capacity to ensure that the children complied with orders that the children reside primarily with the mother or on an equal time basis, Ms C described this as a “bridge too far” in terms of the father ensuring that the children spent such time. I accept Ms C’s opinion.
Section 60CC Considerations
Much of the preceding discussion and many of the findings already made resonate with one or more of the best interest considerations expressed in s 60CC. I need not repeat specifically those findings.
I am satisfied that these children would benefit from having a meaningful relationship with both of their parents. It is clear on the evidence that each parent has the capacity to provide the children with different benefits. The evidence supports the conclusion that the father is a capable parent in terms of providing structure and routine, and the mother is more than capable of engaging the children given her qualities and positive qualities of personality.
The mother’s case, in essence, is that a meaningful relationship with her will only be achieved if the children primarily reside with her or at least there is an equal time or shared care type arrangement. I am not satisfied that that is so. I am satisfied that there are clear foundations for there to be a meaningful relationship between each of the children and the mother and, indeed, it is clear that T and N have maintained such a meaningful relationship with her despite all the conflict and interruptions to that relationship.
I am also satisfied that on the history of past care arrangements, there are the foundations for a meaningful relationship between B and the mother to be re-established. I am satisfied that orders seeing the children spending alternate weekends and half holiday time with the mother will preserve and maintain a meaningful relationship between the children and the mother and, indeed, both parents.
In terms of the second of the primary considerations, I find that there is no need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence when in the care of the mother.
In relation to that consideration, I am satisfied that there is a need to protect the children from the ongoing psychological harm caused by conflict between their parents as well as the harm or potential harm caused by any continuation by the father of his past conduct in the respects referred to. In my judgment, if there is any continuation of the father conducting himself so as to diminish the mother or to further align the children with him at the mother’s expense, there would need to be a revisiting of orders that see the children in his primary care.
I emphasise at this point, also by reference to the further discussion about best interest considerations, that there is a fine balance in this case between the adverse consequences for the children of a fundamental change in their care arrangements now and the question of a meaningful relationship with the mother and the need for protection referred to. For reasons further discussed, I am of the view that at the current time, that balance lies in favour of the orders I have made but I emphasise that those orders include a provision for the matter to be returned to the Court on an urgent listing basis should there be a contravention application filed.
The father should be in no doubt that if his evidence proves to be “lip service” rather than reflecting a true and genuine intention to alter his behaviour, then the balance may well lie in a different direction if this matter returns to Court because of a failure of the children to spend time with their mother.
In terms of the views expressed by the children, it seems to me that these should be dealt with in turn. With respect to B, I do not accept that the negative views he has expressed about the mother or about spending time with the mother are a true reflection of his own views uninfluenced by the father or by the fact of his alignment with the father. I do accept that B, for a significant period, has consistently expressed the view that he wishes to primarily live with the father. On the school reports, B is obviously a capable and intelligent student. He is now aged 12 years and five months.
I am satisfied that whilst B would observe orders for time with the mother supported by the father, a different result may well obtain in the event that orders were made requiring him to spend time with the mother beyond those in contemplation or supported by the father. In this respect, I canvassed during the trial the potential for different orders being made with respect to B as opposed to the other two children. The mother was firmly of the view that all three children should be the subject of the same orders, and it was not in her contemplation that there be distinctions made as between the children in terms of the parenting orders that were made or the time provided for in such orders.
It seems to me that has significance in circumstances where B at his age and level of maturity is clearly aligned with the father, and I am satisfied that it is his own genuine view or preference that he live primarily with the father. Emphasis was made by the mother on the closeness of the relationship between all three siblings, and I accept that to be so. I accept it would not be in the best interests of these children for orders to be made that differed as between them as to the time they spend with each parent. On that basis, any proposal to the effect that the younger children spend more time with the mother than B would not seem to be feasible or in the children’s best interests.
As regards B, one clear reason for not accepting the negative views he reportedly expresses about the mother is what occurred in relation to Mother’s Day this year. I am satisfied on the evidence that B surreptitiously prepared a Mother’s Day card for his mother and placed it within a similar card prepared by T for the purpose of T conveying it to the mother. I am satisfied that B was at some pains to ensure that his father not find out about this.
That is clear evidence, in my judgment, of B retaining a bond with and affection for his mother and that he does not feel able to express that or give vent to that because of his alignment with the father or some desire to show loyalty to the father in what he identifies as the dispute between his parents. For the same reasons, I am satisfied that is a basis for concluding that if fostered by the father, B will spend time with the mother as is ordered. If he does not that will be, I am satisfied, a failure by the father rather than a reflection of B’s true views.
I am satisfied on the expert evidence that T’s views as expressed are likewise influenced by the alignment factor. Underlying T’s stated views, it seems clear enough that she would accept spending the time ordered as contemplated by the father and the ICL on an alternate weekend basis and as recommended by Ms C. I do not accept it to be T’s genuinely held view that she does not wish to spend overnight time with the mother. I am comfortably satisfied that the father can readily cause T to comply with orders for her to spend overnight time with the mother.
In terms of N’s views, it is clear that he has maintained a relationship with the mother, and as earlier referred to, even after B and T had changed their position, N was continuing to spend time with the mother on the equal time arrangements as earlier ordered. I am satisfied that N would readily embrace the opportunity to spend more time with the mother in circumstances where he was permitted to do so by promotion of that by the father and by reference to the actions of his older siblings.
I am satisfied that the children have positive relationships with both of their parents and that outside the influence of the father, there is no reason to question the nature of the relationship between the children and their mother as being other than positive. I am concerned that the nature of the children’s relationships with the paternal grandparents is in and of itself a matter of potential influence of them. It will obviously be a matter for the father in the exercise of his parental responsibility and the control he has with respect to the children to ensure that they do not act upon any influence of the paternal grandparents. As will be noted, orders have been made for each party to act to ensure, to the extent they can, that such actions do not occur.
This is not a case where either parent has taken or failed to take opportunities to participate in decision making about major long-term issues in relation to the children or to spend time with them or to communicate with them. The only reservation in the case of the mother would seem to be her failure to involve herself more actively in N’s diagnosis and treatment. In this respect, it was the mother’s evidence overall that she was not accepting of N’s needs for medication as assessed by his own paediatrician.
N has been receiving medication since about September or October 2013 for his diagnosed attention deficit hyperactivity disorder and the oppositional defiance patterns of behaviour he was exhibiting. It is clear that there has been a pleasing response by N to the medication and it is clear that his performance overall has improved. I do not accept the submission on behalf of the mother that all she seeks to do is pursue some alternatives but would subscribe to the view that N continue with his medication if there were no suitable alternative. In my judgment, the mother’s frank concessions in her oral evidence were to the effect that she did not accept N required the medication and that she would prefer the views of a psychologist (if they coincided with her own views) rather than the present diagnosis and treatment of N’s treating paediatrician.
There is no issue that both parents have fulfilled their obligations to maintain the children and no issue was agitated against that proposition at trial.
In terms of the likely effect of any changes in the children’s circumstances, the fundamental difficulty with the mother’s proposal is that it is at best speculative to consider that the children would readily accommodate the change the mother seeks. As proposed at the outset of trial, the orders outlined in her Case Information document would see the children moving into the mother’s sole care and responsibility, with a moratorium of time and communication with the father. In my judgment, one likely effect of that change is that any real prospect of B successfully re-establishing his relationship with the mother would fail. In turn, it seems to me that that would produce fundamental difficulties for the other siblings.
In this context, and whilst it is necessarily hypothetical, it is of significance that the mother will soon give birth to her child with Mr F. Part of the mother’s household for three weekends out of four are G and H, who are aged five years and four years respectively. The evidence is littered with references to the challenges the mother confronts by reason of her global cognitive dysfunction. I am satisfied that the effects of that are more prominent when the mother is placed under stress. In my judgment, it cannot be readily concluded that these children would readily accept the change to their care arrangements that the mother’s primary proposal seeks. I do not accept that the mother would likely have the capacity to deal with the issues that might emerge if one or all of the children acted out in defiance of placement in the mother’s primary care.
In circumstances where the evidence reveals that at one point Mr F’s own older child was placed in foster care, rather than with either parent, I harbour concerns as to the extent to which Mr F is likely to be able to give assistance to the mother in terms of parenting of children outside of the capacity to engage in play and fun activities with children.
In my judgment, the father has a demonstrated capacity to provide for the needs of the children, including their emotional and intellectual needs, in all respects, save and except for the fundamental caveat as to his capacity to provide for their needs in terms of their relationship with the mother. I reiterate that if after these orders are made there is demonstrated a continuation by the father, despite his evidence to the contrary, of past conduct concerning the mother as earlier referred to, the father’s lack of capacity in this respect will be fundamental to any reconsideration of this matter.
In terms of characteristics of the children, the particular characteristic with respect to N is that he has a history of sometimes difficult behaviours, and it is important that he experiences a continuation of the medical care and treatment he has received as a result of the involvement of his paediatrician.
I have already dealt at some length with parental attitudes to the children and to the responsibilities of parenthood which each of the parents demonstrates. I have also already dealt with the question of family violence.
In my judgment, it is preferable to make the order that would be least likely to lead to the institution of further proceedings in circumstances where this litigation has subsisted now, off and on, for some seven years.
In my judgment, on the important proviso that the father carries through with the intentions he has expressed on oath to alter his behaviour and act differently in future, the orders I make are those which would be least likely to lead to further proceedings. In contrast, in my judgment, if orders were made as proposed by the mother, it would seem to me to be inevitable that there would be a continuation, or at least the institution of, further parenting proceedings in relation to the children. In my judgment, it is more likely than not that if orders were made as proposed by the mother, there would be a failure of those orders in the sense of the children’s responses to those orders, either immediately or over time in the short term.
I accept the opinion that was expressed by Ms C in her oral evidence, to the effect that it is now, as she put it, “crunch time” in terms of the father desisting with the negative aspects of his conduct historically concerning the mother. In my judgment, it is in the best interests of the children overall that the benefit of the doubt be given to the father for him to have the final opportunity to carry through with his stated intentions in terms of the future and his future conduct concerning the mother. That plainly would meet the best interests of these children because it would follow on my findings that the orders for them to spend the time they will with the mother will be followed through.
In my judgment, the father has a superior capacity to that of the mother insofar as routine and stability is concerned, particularly in relation to the children’s education. There is evidence, which I accept, that at times the mother has not ensured the children, or one or other of them, complete homework tasks, and I am satisfied that the father is astute in this respect.
In my judgment, it is particularly important in a case such as this, where children have experienced for so long such a high level of conflict between their parents, that at the very least they achieve their potential in terms of their education, with all that offers them in their future adult lives. This is not to say that the mother has no capacity to provide them with routine or stability, or no capacity to assist with the children’s educational needs, but it is the fact that her own education was limited and, increasingly, as the children become older, it will be important that their educational needs are met, including the routine and supervision necessary to ensure they attend to their homework and educational needs.
In my judgment, were I not persuaded of there being prospects and positive outcomes for the children of the father altering his behaviour, then there would be no option, despite all the adverse consequences of it, other than to place the children in at least an equal care arrangement with the mother, if not her primary care. However, on balance, I am persuaded that there is now sufficient onus upon the father to carry through with the evidence he has given, and to exert the control which I am satisfied he has in relation to the children spending time with the mother as ordered.
Notably, whilst this litigation has subsisted for a long time, it is the fact that this is the one and only trial of the parenting proceedings and parenting applications to date.
In my judgment, there is some force in the submission by counsel for the father that he is not a particularly intelligent or sophisticated individual, with all due respect to him, and I suspect that the trial proceedings themselves have provided a steep learning curve for the father. If I am wrong about that then, within the orders I have made, there is the provision for the matter to return to Court, and for the Court to have to consider variation of the orders now made, in the event that a contravention without reasonable excuse is established on the part of the father.
For these reasons, I am satisfied that the orders I have made meet the best interests of these children.
I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 September 2014.
Associate:
Date: 18 September 2014
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