Shannon and Cairnes

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHANNON & CAIRNES

[2017] FCCA 2956

Catchwords:
FAMILY LAW – Parenting dispute about young children – father seeking change of primary residence as last resort – mother having exceptionally poor record of non-compliance with court orders – mother failing to get children to school – whether final orders should be made or mother be given a final chance to comply – change of residence certain to be traumatic – on balance preferable to make interim orders and review in 6 months’ time.

Legislation:

Family Law Act 1975 (Cth) ss.11F, 60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MS SHANNON

Respondent:

MR CAIRNES

File Number:

DGC 2482 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

14 & 15 November 2017

Date of Last Submission:

15 November 2017

Delivered at:

Dandenong

Delivered on:

15 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Jenkinson

Solicitors for the Applicant::

Perry Weston Lawyers

Counsel for the Respondent:

Ms Shannon, In Person

Counsel for the Independent Children’s Lawyer:

Mr Lynch

Solicitors for the Independent Children’s Lawyer:

Peter Lynch

ORDERS

The matter be adjourned to this Court in the duty list before Judge Burchardt on 9 July 2018 at 10.00 am.
There be general liberty to apply to the parties.
The mother attend upon a psychologist or counsellor.
The father and mother be restrained from:
(a)Allowing the children X and Y from watching age-inappropriate video games;
(b)Having in their possession any age-inappropriate video games;
(c)Denigrating the other parent to or in the presence of the children; and
(d)Discussing these proceedings with or in the presence of the children.
(e)Engaging in counselling for the children unless so order by the Court.
The mother and father ensure that the children attend each school day punctually.
The father be restrained from:
(a)Taking the children hunting; and
(b)Exposing the children to any firearms.
The mother enrol in and complete a Parenting After Separation course and provide proof of same to the Independent Children’s Lawyer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2482 of 2013

MS SHANNON

Applicant

And

MR CAIRNES

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of two young children, X, born (omitted) 2007 and Y, born (omitted) 2011. The applicant father, who originally only sought to spend time with the children, now seeks that the children live with him and that the mother be excised for a period of time, following which there be supervised time. The mother seeks that the children, who have always lived with her, continue to do so and spend time with the father. The Independent Children’s Lawyer’s primary submission is that the mother should be given one last chance to cooperate with court orders about the children spending time with the father and in the alternative as a secondary position supports the father’s position for a change of residence.
For the reasons that follow, and not without hesitation, I am going to adopt the first proposal put by the Independent Children’s Lawyer. The mother needs to understand in the clearest possible way however that this is her last chance. Any continuation of her past conduct will lead to the children being placed in the father’s care.

Agreed or Uncontroversial Facts.

The parties were in litigation which concluded with final orders made before Judge Phipps on 9 February 2015. A spend time regime was put in place which accommodated the father’s then fly-in fly-out work in Western Australia.
These proceedings commenced on 21 December 2016, and as earlier indicated the father sought essentially that the children spend time with him in a fashion attuned to the fact that he had now returned to Victoria in July 2016.
The father was born on (omitted) 1979 and works as a (occupation omitted). The mother was born on (omitted) 1984 and is unemployed. They commenced a relationship in 2006 and despite various periods of separation, they married in 2013 and separated eight months later in August 2013 when the mother left the family home to live with her parents. The children spent only sporadic time with the father thereafter.
The mother lives in (omitted) and the children attend (omitted) Primary School. An Intervention Order taken out by the mother in 2014 following an alleged threat to kill was ultimately withdrawn.
On 22 March 2017, the first return date of this tranche of litigation before the Court, I ordered a section 11F report and appointed an Independent Children’s Lawyer. The appointments for the 11F conference were set on 11 July 2017. The father attended but the mother failed to do so.
On 31 March 2017, I made further orders by consent (with, by then, the assistance of the Independent Children’s Lawyer) whereby the children spend time with the father commencing 8 April 2017 and each alternate weekend thereafter from 9 am Saturday until 6 pm Sunday. The paternal grandmother was to be in substantial attendance and I further ordered that the father ensure the children only play age appropriate video games. This order was made to address a concern of the mother that the children had been watching violent adult video games.
On 29 May 2017, the father filed a contravention application.
When the matter next returned to court on 17 July 2017, the mother did not attend. She had by then also not attended the section 11F conferences due earlier in the month. Judge McNab directed the mother to file and serve a response and affidavit by 4 August 2017 and left the contravention hearing listed before myself on 8 August 2017.
The mother did not comply with the order as to the service of documentation. On 8 August 2017, I heard the contravention application and found that the mother had contravened extant court orders without reasonable excuse by failing to make the children available on 15 April 2017, 22 April 2017, 6 May 2017 and 20 May 2017. I also ordered a family report. I ordered the mother to engage and complete parenting skills organisation and provide proof of same to the Independent Children’s Lawyer and the applicant.
It should be noted that I also on 8 August 2017, listed the matter for trial on 14 November 2017 before myself. The mother was represented by the duty lawyer and no objection was taken to my hearing the trial.
At the commencement of this trial, the mother then being unrepresented, I directed the mother to the duty lawyer to see if there was any objection to my continuing to hear the matter. When the duty lawyer appeared, I was informed that there was no objection by the respondent mother to my hearing the matter.

The Parties’ Affidavit Material

Almost all the affidavit material has been filed by the father. In part it sets out the matters which I have set out above as uncontroversial. Additionally, I note that in all of his affidavits the father’s essential complaint is that he is not getting to see the children as he should do pursuant to court orders. He makes a number of complaints about the mother’s failure to attend either at all or on time and the resultant difficulties in his collecting the children. He deposes to such time as he did have being largely at the last moment and not, in fact, on designated weekends. He deposed that he always adjusted his affairs where in any way possible to take the children even on short notice.
In many ways the gravamen of his complaints is set out at paragraph 7 of his affidavit filed 24 July 2017 as follows:
In the 7 months that these proceedings have been before this Honourable Court, I have become increasingly frustrated with Ms Shannon’s continued failure to comply with orders made by the Court which has resulted in X and Y being made available to spend time with me on only three out of a possible 9 occasions pursuant to the Interim Orders made by the Court on 31 March 2017. I have however, on very short notice, been permitted by Ms Shannon to spend time with X and/or Y on weekends when they were supposed to be in Ms Shannon’s care according to the current Interim Orders, being 26-28 May 2017 and 9-12 June 2017.
This affidavit supported the father’s application for a change of residence, and he went on to detail the schooling and other arrangements he would put in place in the event that the children came into his primary care.
In his affidavit, filed 3 October 2017, the father returned to his complaints that the children were not properly attending school. Annexures MB5 in respect of X and MB6 in respect of Y update earlier material showing substantial non-attendance or late attendance at school by both children.
On 16 October 2017, the father filed a Further Amended Initiating Application in which he seeks not only that the children live with him, but that they spend no time with the mother for the first eight weeks thereafter. Only supervised time was contemplated once that time has elapsed. In part, the accompanying affidavit is a recapitulation of earlier material, but it continues the father’s concerns about school attendance and the mother’s failure to comply with court orders for the children to spend time with him. He further deposed that he has completed, at Relationships Australia, a parenting after separation course (exhibit MB6 to the affidavit).
It should be noted that in his affidavit filed 3 August 2017 the father disclosed, of his own motion, a recent difficulty in relation to possession of a firearm which, however, resulted in his being fined without conviction.
The mother’s only affidavit, sworn in support of her response filed 9 November 2017, refers to the father’s threat to kill. She also referred to X making disclosures that the father was exposing him to violent video games and sexual activities between his father and his then girlfriend. She confirmed, however, that she had withdrawn her 2014 Intervention Order application.
The affidavit goes on to depose, in general terms, the father’s inappropriate lack of involvement with the children when they were in his care, his alleged lack of real desire to spend time with the children and alleged sexualised behaviour on X’s part. The mother appended a number of drawings by X which do indeed show very disturbing violent images. The mother asserted in the affidavit that this was a result of the violent videos to which X had been exposed. She further deposed to a recent complaint by X that his father had touched his doodle, which had led to a visit from the SOCIT unit on 30 October 2017 and a referral to the Department of Health and Human Services.
The mother confirmed that she had not undertaken the parenting course as previously ordered “as I have had to deal with a multitude of other problems on a day to day basis”.
It should be noted that the Department of Health and Human Services provided a response to the most recent allegations made by the mother on 15 November 2017, and the Department does not propose to take any action.

The Family Report

The family report by Ms B traversed the residential circumstances of the parties which are unremarkable. She noted that Ms Shannon works as a (occupation omitted) on Saturdays from 9 am till 2 pm and as a (occupation omitted) on Sundays from midday till 3 pm. Maternal grandparents or friends of Ms Shannon’s look after the children on these occasions. Ms B noted that the children had been supposed to spend time with their father after the interim orders made on 8 August 2017, including a week during the September to October term holidays, but that all time had been ceased. Having noted the past history of the relationship and previous litigation which is set out largely in the agreed matters above, Ms B noted the parties’ positions. I note that at paragraph 20 the father confirmed that it was his intention that his parents would assist with the care of the children some afternoons and/or mornings during the school week whilst he is at work, and at paragraph 21 the mother wished for the children to live with her and had “no proposal for any spend time arrangements with Mr Cairnes”.
The report then traverses the interviews with the parents. The father (paragraphs 31-32):
…presented as a pleasant, well-spoken man who was cooperative, child focussed and reasonable in his approach to matters regarding the children’s welfare. Perhaps most obviously, Mr Cairnes appeared tired and ‘fed up’ with the drawn bout nature of his attempts to achieve stability and consistency for X and Y and what he regarded as the mother’s persistent failure to facilitate his time with the children.
Mr Cairnes described a long-standing disjointed and unpredictable pattern of time spent with Y and X, he said completely controlled by the mother. Mr Cairnes said he will often arrive at the changeover point to collect the children only for them not to be delivered by Ms Shannon; he said it was also very common for the mother to either not respond to his text messages seeking to confirm time arrangements or she will randomly message him to tell him the children will not be spending time, but with no explanation as to why.
The report noted the father’s concern about the children’s poor school attendance without valid reason and his belief that he could offer the children a more structured and age appropriate home environment (paragraph 34).
The report noted the father’s concern that the mother had sought to undermine him to the children by way of denigration and fostering a negative, dismissive view of his family (paragraph 35). At paragraphs 37-38, the report noted:
Mr Cairnes was quite certain that should the Court support his application for primary care of the children Ms Shannon would not accept this or be compliant with any orders made; he said the history of the matter clearly indicates the mother’s lack of regard for Court Orders and he had no confidence he would return the children to his care at the conclusion of whatever time-spend arrangements were in place for her. Despite this, Mr Cairnes made no suggestion the children should not spend regular time with their mother and he could readily articulate the importance for X and Y of having the opportunity to enjoy a relationship with Ms Shannon.
Mr Cairnes acknowledged that if the children were to live with him they would miss their mother; he said he believed Y would miss Ms Shannon more than X, who he believed would probably want a 50/50 shared care arrangement if he had the choice. Mr Cairnes expressed a deep frustration that matters had reached a point where he feels there is no viable option other than to seek primary care for Y and X due to his serious concerns about their future development (or lack thereof) in the mother’s care and the lack of disregard Ms Shannon has for him in his role as the children’s father. He said if Ms Shannon was able to provide the children with a stable and well-functioning home environment, consistently facilitate time and foster a positive view of him he would support X and Y remaining in the mother’s primary care. He remained extremely doubtful that this would ever occur.
At paragraph 39, Ms B recorded that during a feedback it was reported to the father that the mother had made an allegation against him of sexually inappropriate behaviour which had been reported to police. He was incredulous at this. At paragraph 40 he traversed an incident of earlier reporting in relation to alleged sexual behaviour, including X putting a finger in his bottom while in the bath.
I note that paragraph 41, in relation to the latest development, the father describes himself as “Angry, exhausted and at the end of his tether”, but:
Despite his upset, Mr Cairnes remained focused on the impact on the children and his concern that this may lead to further litigation and a delay in the conclusion of the proceedings.
The report goes on to traverse the interview with the mother who (paragraphs 42-43):
presented as highly emotional and rather uncontained in demeanour. Whilst not aggressive in manner, she struggled to engage appropriately, frequently interrupting and talking over the report writer; she had difficulty in answering questions directly, often veering off on tangents unrelated to the subject at hand. At times Ms Shannon’s information was disordered, particularly in relation to her allegation regarding possibly sexually inappropriate behaviour by Mr Cairnes. It was not possible to gather a comprehensive, coherent account of this allegation.
Even before being seated, Ms Shannon began to make an allegation that X had recently disclosed to her that Mr Cairnes had been sexually inappropriate with him and Y by touching their genitals on one occasion whilst they were in the bath, approximately 3 years ago. She said she took X and Y to (omitted) Police Station on 3 October 2017 for X to report this alleged incident.
Ms Shannon said during X’s interview with the police, Y heard what was being said and reportedly “screamed” at X “no, he didn’t”.
I note that the earlier report in 2014 of possible sexual abuse was reported to the police and the DHHS, who did not take the matter any further than initial inquiries.
The report traversed the mother’s failure to attend section 11F interviews and noted a number of different explanations provided. Similarly, she made numerous explanations as to why the children had such poor attendances at school. I note that at paragraph 49, inter alia, she said:
She then said there were also some occasions when she was too ill to take the children so they remained home with her; on other occasions it was because Ms Shannon was tired from work and needed to have a sleep-in or it was because the children simply took too long to get ready in the mornings and “I’m not gonna force them if they’re taking too long – we’re not morning people”.
The mother complained of the father’s alleged occasional bad language to her, her own somewhat isolated social circumstances, and I note further at paragraph 53:
Ms Shannon was reminded that in line with the orders the children were supposed to be spending the imminent weekend with Mr Cairnes (assessment took place on a Friday) and was asked if she would allow this to go ahead. Ms Shannon said she would not allow this, stating “I’m keeping my kids safe at all costs”.
The report went on to note the poor interpersonal relationship between the parents and then dealt with the interviews with the children.
At paragraph 59, the report-writer noted:
X’s presentation raised a question as to whether or not he may require assessment to determine if he has any additional developmental or emotional needs. He was exceptionally literal in his thinking and became easily frustrated if he was asked to repeat himself for clarity.
X spoke very positively about his mother and was happy and safe at home with her (paragraph 60). X acknowledged he missed a lot of school but was not sure why, but that he was achieving good grades and had a lot of friends and enjoyed school (paragraph 61).
X thought that “It wouldn’t be very fun” for he and Y to live with their father because they were living most of the time with their grandparents and would be travelling back and forth between the two homes. He knew this because his mother had told him this would be the case (paragraph 61). I note that in the same paragraph, X reported his mother not liking his father and being angry at him.
At paragraphs 62-63, the report noted:
X offered contradictory views regarding his father, stating that he enjoys his time with his father and believes he does not have enough time with him to be then making what appeared to be rote statements that it was “boring” at his father’s home because Mr Cairnes does not take the children out very often. He then listed a range of activities that he enjoys doing with Mr Cairnes such as playing footy, going to the park and playing XBox together.
X said he missed his father and expressed some confusion as to why he and Y do not spend regular time with him. He thought this was possibly because he sometimes said to his mother he did not want to spend time, but also because his mother tells him he does not have to go and asks him to stay home with her. X had a strong view that it was his right to make decisions about any spend-time arrangements and it was “my free choice” whether or not he would see his father.

I note that paragraph 65 of the report said:
Of significance, at the conclusion of the interview X was asked if there was anything else he would like to add to his information. It was only at this point he exclaimed that he had to tell the report writer “Dad touched my rude part – I just remembered I talked about it with Mum and the policeman”. X said he thought this happened “about 2 times” when he was “5 or 7 or 6”. He said this also happened to his sister, it happened when they were in the bath and that it had never happened again since that time. Of further significance was that despite disclosing this alleged incident, X was certain that his father had never done anything that caused him to feel scared or worried.
The report then deals with Y. The report noted at paragraph 66:
Some of her initial answers appeared rote in nature and it was noted she used almost identical language to that of her brother in describing the allegedly negative aspects of spending time with Mr Cairnes. These responses were incongruent with views she expressed later in the interview when she appeared more comfortable and confident.
Despite complaining about boredom with her father, the report noted at paragraphs 67-68:
Despite this, Y said that she misses her father, would like to spend more time with him and she gets very sad when her mother stops her and X from spending time with Mr Cairnes. She said it is her mother’s decision and that she and X do not see their father, but she did not know why her mother does this; Y said when she tells her mother she is sad because she is missing Mr Cairnes, her mother tells her “bad luck” and ignores her.
Y was quite sure that her mother does not like her father because she hears her say “nasty things” about Mr Cairnes; she does not know how Mr Cairnes felt about Ms Shannon. Y said her father has never done anything to make her scared or worried and she thought she might actually want to live with him because she misses him so much and because this would mean she could start at a new school and make new friends. She said this would be good because some of her friends are mean to her. Y said another benefit of this would be living in a home where there was no shouting. She said her mother “gets a little bit angry” and shouts at her and X; she said her father does not do this.
The report noted that the children asserted good relationships with both their parents, although X appeared aligned to his mother to some degree (paragraph 71). Both children spoke positively about their relations with the paternal grandparents, but did not identify the maternal grandparents as relationships of significance (paragraph 72).
The report then moved to the observations of the interactions between the parents and the children. The children were very pleased to see their father who “managed the children’s competing demands for his attention with confidence and dexterity” (paragraph 74). The relationship between them was entirely satisfactory and the report noted at paragraph 75:
No signs of discomfort, reticence or fear was shown by the children, and they were very reluctant for the observation to end. Warm embraces were shared with Mr Cairnes when he departed and each child and father voiced their love for each other.
The interaction with the mother was less successful. She insisted on playing with one child at a time, leading to arguments between them. Within a relatively short time, the children were shouting at each other and Y began to cry. At paragraph 77, the report noted:
Ms Shannon made no attempt to halt the argument between the children and continued to try to play a game with X and to push Y away. When Ms Shannon scored a goal, she declared that it was Y’s turn and X should stop playing. X then became very angry and upset, started to cry and stood with his face pressed against the wall and yelled at his mother “Mean, you’re so mean”. Ms Shannon did not respond to this. Due to the level of upset both children were experiencing with no sign of the difficulties abating, it was decided to end the observation prematurely.
Under the heading “Evaluation”, the report noted at paragraph 79:
The most pertinent concerning theme in this matter is the mother’s longstanding and persistent attempts to deny the father a relationship with X and Y by way of preventing time taking place or allowing regular communication with them. Ms Shannon has displayed a lack of regard for Court Orders over a number of years and has consistently failed to recognise the potentially serious implications of her actions for X and Y’s emotional and psychological wellbeing and the damaging impact on the relationship with their father.
At paragraph 80, the report continued relevantly:
At the time of assessment their relationship appeared to have broken down to such a degree that there may be limited capacity for repair, particularly in the event Ms Shannon continues to thwart the relationship of the children with their father and should she continue to exhibit what could be considered paranoid behaviour in making allegations against him.
The report noted at paragraph 81 that some of the children’s responses may have been prepared given the similarity between the children’s and mother’s accounts about quality of time spent with their father. At paragraph 82, the report noted:
Of significance in this assessment was the marked contrast in the parents interactions with the children and their respective capacities to meet X and Y’s needs during the observations. It is acknowledged that the children had not seen Mr Cairnes for a significant period of time prior to the assessment. Whilst this could have had a bearing on the extent of the children’s obvious happiness to see their father, it could also have had the opposite effect, causing the children to demonstrate reticence in seeing Mr Cairnes, particularly in light of the current allegation against him. That the children displayed such delight at spending time with Mr Cairnes and were deeply reluctant for time to conclude speaks to the quality and strength of their bond with him. This potentially bodes well for their future relationships with him, be this in Mr Cairnes’ primary care or the mother’s. Mr Cairnes impressed as being able to manage the high level of emotion displayed by the children, physically engage with and offer comfort to them, whilst ensuring that their time together was enjoyable, child focussed, and did not become overwhelming for either child.
The report continued at paragraph 83:
In a similar vein, it is acknowledged that the children lived with Ms Shannon and had attended the Registry with her on the day therefore one would not expect to receive such an emotive response from them upon spending time with her. Nevertheless, the mother’s awkward engagement with the children, her lack of insight into how to simultaneously include both children in play and avoid conflict, and the subsequent rapid deterioration in the children’s mood and behaviour was remarkable… It was evident she had minimal capacity to recognise or meet the children’s emotional needs, and her lack of empathy for their distress was of significant concern.
At paragraphs 84-86, the report relevantly continued:
It is of particular note that even within the Court setting, Ms Shannon was unable to appropriately modify her behaviour and this raises questions as to whether her interactions with the children outside of such a setting may, in fact, be even more concerning in nature.
It is apparent from both X and Ms Shannon’s reports that Ms Shannon had allowed him to wield an excessive degree of influence in making decisions as to whether or not to spend time with Mr Cairnes. Given the history of this matter there is a strong possibility X felt encouraged by Ms Shannon to decline to see his father on some occasions and the report that the children had made comments to Mr Cairnes that they do not have to spend time if they do not wish to – and that the mother has told them this is the case – supports this possibility.
The curious timing of the most recent allegation against Mr Cairnes (just 3 days prior to the family report interviews) is potentially pertinent. Due to the recency of the allegation, no Police records were available to provide details of X’s reported disclosure or to indicate what action, if any, the Police intended to take. This information is likely to be relevant to future directions regarding the children’s living arrangements. It was noteworthy that in spite of the seriousness of this allegation it was the last X chose to share in his interview and appeared to be very much an afterthought for him. Relevant also was Ms Shannon’s information that Y had strongly protested her brother’s report to the police and furthermore that neither child demonstrated any reluctance or discomfort in their father’s presence during observation. The veracity of the mother’s allegation, particularly in light of the conflicting and incomprehensible account she offered, remained in question.
The report went on to note that the mother’s accounts of the children’s non-school-attendance was problematic. The report noted that the father had taken a particularly child focussed approach to parenting matters, and would not undermine the mother in contrast to her behaviour (paragraph 89).
In paragraph 90, the report noted:
The children’s reports of the mother preventing time with their father (and in spite of at least Y’s express sadness in this regard), Ms Shannon’s lackadaisical attitude towards children’s schooling and socialisation, her apparent reliance on the children – and in particular X – as a source of emotional support and her lack of boundaries in sharing her negative views regarding the father paint a picture of a psychologically damaging environment for X and Y that will almost certainly be exacerbated and compounded should the children remain in their mother’s primary care and in light of her lack of insight into any of the named concerns.
The report noted that the father’s application for primary care arose essentially out of his dissatisfaction with the mother’s conduct in the proceeding and went on to recommend that in the event that the children were to move to the father, he have sole parental responsibility.
The report went on to recommend, in terms, sole parental responsibility for the father and that the children live with him. It was recommended that the children thereafter spend no time with the mother for one month, apart from weekly phone calls supervised by the father. Then a limited time for the mother was to be reintroduced. Ancillary orders about the notification to their schools and so forth were also recommended.

The Exhibited Material

The exhibit ICL1 is a letter from Ms S, who is a psychologist, dated 5 November 2014. It was written in the context of the then current Intervention Order application by the mother. The report noted that in May 2014, X disclosed that he had been encouraged to participate in inappropriate sexual activity by the son of his father’s friend. It noted that both X and Y had reported being exposed to adult rated video games, which had caused X to develop nightmares and act out aggressively. Y reported sitting beside her brother while the games were played. The report noted that a report to child protection had recently been closed.
Exhibit A1 is an update of the children’s school attendance. It is sufficient to say, subject to dealing with the evidence as I shall shortly, that this shows a pattern of non-attendance by the children even in the September to November periods.

The Evidence Given at Court

What follows is taken from my notes. It is not, of course, a transcript, but records those aspects of the evidence that I found significant.

The Evidence of the Father In-Chief

Without objection the father gave further evidence-in-chief. He is a (occupation omitted) by profession. He last had time with his children for a couple of days on Melbourne Cup weekend but had not otherwise recently had time. He went to changeovers and telephoned, but there was no response. He would wait for half an hour.
He was asked questions about paragraph 5 of the wife’s most recent affidavit filed on 9 November 2017. He denied not contacting the mother appropriately. He said he called numerous times, and this was sometimes successful and sometimes not. He denied a failure to feed the children properly. He said he took the children (omitted) and to movies. He cooks for them steaks, roasts and hotdogs. He does not allow violent video games. He sometimes dozes off on the couch for five to 10 minutes.
He said the mother had known of his return to Victoria. He told her that he was back and was looking to have more time with the children. The children have played non-age rated games before court orders. He thought the mother had no problem with this, and he was the same. Since the court orders have been made he has taken the games off X. On one occasion X found a game, but he took it off him. They now get age appropriate games, such as (omitted).
The father had been contacted by X on one occasion, and the mother said, “Do you want him or not?”
He was examined further about the sexualised behaviour incident in 2013, referred to at paragraph 21 of the mother’s affidavit. He said the children were having a bath together. Mr C is the father of the child, A, involved in this incident. Mr C’s wife was giving him a bath. A had showed X how to put his finger in his anus. The police had told the father of this, and he spoke to the mother. A has not seen X since then.
The father denied that the children came home in dirty clothing and looking untidy. He completely denied touching X on his doodle. He said he knew nothing about this alleged incident, which was completely untrue. The father denied having no contact with the children’s schools in the past. He denied being unable to parent the children when they were in his care.

The Father under Cross-Examination by the Independent Children’s Lawyer

The father confirmed he had read the mother’s affidavit the previous night. When questioned about video games he said he had stopped these since the court orders.
He said the children usually do something in the morning. His son plays games in his bedroom for several hours in the evening. His door is usually open, and the father checks two to three times during this two hour period. On Saturday mornings the computer is turned off. They usually watch a film in the lounge. Sometimes X will play video games on Saturday evenings. The violent games are in the father’s room, to which X has access. X has not accessed any violent games in the last six months. He has spent about six weekends with his children this year and no time in the school holidays. The children run up and jump into his arms when they see him and are not resistant at all.
The father said that he accepted that X had drawn violent drawings. He is directing his energies to support. He takes X to see a counsellor and talks to him himself. He would facilitate further counselling. He has not been contacted by SOCIT about the recent allegations, nor has the Department of Health and Human Services contacted him. There was DHHS contact in 2013 to 2014 arising from the allegations about children in the bath. He has never heard anything about it since. He had contacted the police, who told him the children were not to see each other, and there had been no contact with A since then.
The father confirmed that he has not re-partnered. He works full-time from 7 am until 3.30pm, and leaves his home about 5 am to beat the traffic. It is a one hour drive. He takes one to one and a quarter hours to get home. His mother will come round in the morning from (omitted) where she lives, and he has to be on the road by 4.30am. His mother will drop the children to school, and if she were not available, he can get the kids to before school care at 6.00am - 6.30 am. He has spoken with his boss and has some flexibility in working hours. He said his mother was in her fifties. He proposed to pick the children up after school, or alternatively his mother would.
The father confirmed that (omitted) Primary School is close to his home, and the children could go there this year. He has not spoken to the mother about school. The children will see his parents when they live with him. He has one brother who has no children, who lives near the father’s house. The children have friends at their current school, which is a long way from where he lives. He has no connection with (omitted) where the mother lives.
The father had undertaken a Parenting After Separation course. It was held over three nights, once per week for two hours. It was about the children’s emotional welfare, and how they think psychologically. He found it useful. It explained why children get frustrated.
The father proposed, if the children lived in his care, to take time off work until the children were settled. He would take one to two weeks off, although he had not spoken to his boss about this yet. He would support counselling if the children needed it. When it was put to him that he might undertake an age appropriate parenting course he said he was prepared to do it.
He was taken to his disclosure of his recent difficulty arising out of firearms possession. He has a firearms license and received a diversion as a result of the incident. He has not been shooting for four to five months. There was no real reason for this. He had his license one to one and a half years ago for hunting but has not taken the children with him. He would agree that there would be an order that he not take the children hunting.
When the Independent Children’s Lawyer put it to him that he was seeking an order for sole parental responsibility and was asked what it meant, the father replied that he would have sole responsibility for decisions in the children’s lives. This included medical decisions. He would never exclude the mother. He would have to communicate with the mother. There has been no extant communications with the mother for some time.
X likes playing sport and wants to play cricket. He has not made enquiries yet as to this. He would get a netball team for Y. He has rung (omitted) School to get emails. He has contacted the school by telephone four to five times and now gets photographs and school reports. He obtained reports for the third term this year, which was the first report he had received. He confirmed that the mother had withdrawn an Intervention Order application in 2014.
There was no cross-examination by the mother and no re-examination.

The Evidence of Ms M

Ms Cairnes is the paternal grandmother. She adopted her affidavit as true and correct. She confirmed in evidence-in-chief that she is going to do the morning run. The father works a nine day fortnight. She can provide other help if needed. She will get up at 4.30 and get to the father’s place by 5 o’clock. She will get the children’s lunches ready and get them to school. She will do this as long as it takes, even if it is for many years. She would stay at the father’s house if she needed to. She was available to pick the children up in the afternoon. She would take the children to sports during the school holidays, and she has a good relationship with the children.
Under cross-examination by the Independent Children’s Lawyer (the mother elected to put no questions) Ms Cairnes confirmed that she is 64 years old. She is in good health and is married. Her husband can help. He is 68 and retired. She can get the children to (omitted) Primary School. And she could also pick them up at night if required. She confirmed she has a very good relationship with the children.

The Evidence of the Mother

In opening the mother said that she was happy if the father had the children every fortnight and half holidays but wanted the children to remain in her primary care.

The Mother under Cross-Examination by Counsel for the Father

The mother confirmed that she was proposing time from Friday after school until Sunday about 4 pm and sharing the holidays.
When asked what equal shared parental responsibility meant the mother said it meant equal time with the children. She said it meant children were looked after in the appropriate way. Decisions would be discussed. She said the father cannot discuss things with her, and she had not discussed primary school when she chose it. There had been no discussion about counselling. She had discussed X’s tonsils with the father several times. This was now rescheduled and he was on the waiting list. She said the father refuses to talk to her at handover. Sometimes when the father phones to talk to the children she speaks to him. There have been six handovers in the last twelve months, and the children have not spent more than 10 times with their father in the last year. She conceded that there had been perhaps a month where the children had not spent any time with the father. She agreed she had not discussed her relocation to (omitted) with the father, because communication between them was poor.
She said equal shared parental responsibility would work by the father seeing the children and being more involved with them. She was asking the father to talk to herself properly.
Note worthily she said, “It’s all because of him. I’ve done nothing.” She said she had always been civil to the father in regards to the children. Orders for special times such as Easter should continue. She was not yet sure about supervision. She said she would be sure if the police and DHHS dismissed the current complaints.
It was put to her that she had agreed to orders in 2015 for unsupervised time, and the mother replied she was not 100 per cent sure. She had concerns. She was taking a chance. She had called DHHS several times because of the children’s behaviour when they returned from the father.
In evidence not in her affidavits she said that the children would come back and behave inappropriately. They were acting out in sexual ways. Also, X was acting out in violent ways. I would interpolate and say that this evidence had all the appearance of being made up on the run.
The mother said Y is not now exhibiting sexual behaviour. She said she had done her affidavit in a hurry and not put in everything.
She had not responded to the father’s solicitor’s invitation to attend mediation as this was pointless. The children can go overnight unsupervised. Video games have been going on for many years. They had played games once when she was supervising X. She had told the father many times this was a problem. Friends brought the games over to show her. She thinks X played (omitted) with her. She had no confidence the father would comply with court orders. She said it was not true that he had telephoned the children when he was in Western Australia. He only rang one night before he was due to have the children. She had missed some calls maybe once or twice. She has answered when he has called from a blocked number, although she had hung up once. She lets the father speak to the children every time. He is lying when he says he rang many times.
When it was put to her that between July 2016 and December 2016 the children only visited their father twice the mother said they refused to go, especially X.
The mother conceded that X had rung at about 8 pm one night wanting to see the father. She said X would chop and change his mind. She said words to the effect, “If the children are happy to go, I would say yes, you can go.” If X said he did not want to go, she would ask why, and he would say it was boring. She would just tell the father that X did not feel like going. She would not send the children if they did not want to go. She said, “If children do not want to go and will not give you reasons, you have to keep them safe and they not go.”
She has told X he doesn’t have to see his father. She does not tell X to stay home. She says he would not tell the truth to a stranger (a reference to the family report writer). She has told Y that she is not going. She was okay after the Cup Day weekend. She could not say why the children had not seen the father since. Y says she misses her father but does not say she wants to spend more time with him. She does not say she is sad missing the father. Sometimes she is sad, and she asks what is wrong. She does say bad luck but only said this on one occasion.
She denied that on Father’s Day 2016 she had told the father that they were down at the beach. She had had a phone call the day before and told the father to collect the children from her house. She had not enough petrol to go to (omitted). He hung up. He had telephoned her when she was at the beach.
The mother confirmed that the children had not spent much time with the father in 2017. They did not wish to go. On return before that their behaviour had been concerning. She had ignored mediation, because the previous mediation was unsuccessful. The children had not spent time with the father on Y’s birthday, as she was unaware that his was required.
She was late to return change over in February 2017 by 10 minutes. She rang the father, and he said he was five minutes from home. He had said, “Now you will have to come to my place,” so she went there. After that she had sent an email telling the father he would get no more time with the children until court. She said this was because of violent video games. The children were hungry on return. She had not told the father this, as he ignores her every time. X was angry because she took his phone, and she rang the father and said, “X wants to live with you.” She spoke with X and thereafter told the father that X changed his mind. The father asked to talk with X, but she hung up on him. She had asked if he would come and get X, and he said he would leave at once. The mother could not remember being at court in March 2017. She had not mentioned sexualised behaviour nor video games on that day. She said she was not well on that day.
When cross-examined about a boil on X’s leg, she said he needed antibiotics when he returned. The children have not spent time with the father after the March 2017 orders. They had seen him twice in March to April 2017. This because of videos and clothing issues. They had not spent time at Easter either. She sent the children on 8 April 2017, because they wanted to go. Thereafter they did not see the father that month. The last weekend in May took place because, “They requested it, and I allowed it.” She said she was giving the father chance after chance, because she is not 100 per cent sure. Children went in mid-June, and it was not his weekend. She said “if they request, I will them ask to go. The children ring him. This is appropriate. They are old enough.”
She had been concerned about time spent on 30 June 2017 but was not 100 per cent sure. She wanted the children to have a relationship with the father.
When asked why she had not attended the section 11F interview in July, she said she did not know what it was in regards to and had a lot of things going on.
The mother conceded being aware of the contravention application and its outcome. She had been told to obey the new orders. She understood these orders, but she did not agree with them. Children were not available on 8 September 2017, because they did not want to go. She was just protecting her children. X did not want to go, and Y followed him. X refused to go, but she told X, “See how you go. It might be different.” She did not send Y on her own. She did not tell the father that the children were not going, and he went to (omitted). X did not tell her why he did not want to go, and she still does not know why. She is not sure if things will be okay with the father. X knows she doesn’t mean it if she says things are okay. She can’t give X a full commitment.
The mother conceded the children were not made available during the school holidays. X had said he did not want to go. She said, “You need to tell me. I need to know now. What has your father done to you to make you not want to go?” X said the father touched him on his doodle. The children went for two days with the father in late September 2017. She let the children go just before the Melbourne Cup. They told her they wanted to go.
The father is mates with A’s father, and the mother is concerned about this. She does not know what happened on that day in 2013. She said, “They’re my children, and I have to look after them.” She said that if they did not want to go, you would have to wonder why.
It was put to the mother that the children had missed a lot of school, and the annexure MBC4 was put to her. She said the children have health problems, and on two days she had herself been sick. She said the children were doing very well at school. She conceded that the children have missed at least one morning per week. On one day there was snow at (omitted). She said children can be slow in the morning, particularly Y. She said she had struggled with this in the past but is now on top of it. Y was sick on approximately half of her late arrivals.
The mother said that when she receives court documents, she cannot conceal her feelings, and the children see this. The children see her crying. Sometimes they all stay at home together. It is hard to get the children dressed. She has not completed a post separation parenting course.
Sometimes the children say good things when they return from the father, and she says this is good.
The children are in counselling. She has a pile full of X’s drawings at home. Counselling has just started at school once per week.
The mother has said that she does not like the father. They just don’t get along. The children tell her the father says bad things about her. This assertion is not in her affidavit.
When asked if there was anything good she could say about the father, she said she was pleased when the father takes the children places.

The Mother under Cross-Examination by the Independent Children’s Lawyer

The mother confirmed she had taken out an Intervention Order application including herself and the children. She was frightened of the father but had not sought a further Intervention Order.
The pictures done by X annexed to her affidavit were done this year. The last picture was in March. It had been going on for years. He had been shouting at the father and swearing at him. The other drawings were done this year or last year. There have been no drawings since March 2017. It was possible this was because he was no longer seeing video games, or it might be because he was not spending time with the father.
The children commenced counselling recently after X’s disclosure. It was the same organisation as Ms S but a different counsellor. Counselling with Ms S was in 2014 for about six months. Ms S had said the children needed extra help. She thought the children were okay, so she did not seek further help and had stopped after orders made in February 2015.
The present counselling has taken place at school, but she had not told the father about this. She would comply with orders about counselling.
She made a complaint to the police in October 2017, and this was that father had touched X’s doodle.
The school attendance of the children was poor this year. The mother has not undertaken a parenting course but would do so if ordered to. There were problems with finances. She disagreed with the family report.
She confirmed paragraph 27 of the report that she had been to the doctor with court papers because of stress. She is not on a mental health plan now. This was last year. She is not depressed now and is not taking medication. When taken to paragraph 45 of the report, the mother confirmed that she has had suspicions about the father for years. She is still not sure about him. She would accept the Department of Health and Human Services and SOCIT reports.
When taken to paragraph 51 of the report she confirmed that she keeps to herself. Her close friends are not in (omitted) but in Melbourne. The children have friends who come to the house. She does not get along with her own parents all the time. She tends to argue with her mother. She does not see her father, who is a hard worker. She has a brother in (omitted) who has three children, and the cousins get along well.
X is going to play football next year and is currently (omitted), which is a church activity on Fridays. She is paying off a mortgage on her home where she has been for four years and will stay there.
When it was put to her that the family report showed that the children wanted to see their father, the mother said she was not sure about that. She said the children say what they think people want to hear. She did not accept what the children had said to the consultant.
She disagreed with the possibility raised by the family report writer that X might need assessment. He is quite clever. He is just frustrated. She speaks to X’s teacher once, twice a week.
When taxed with the observations of Ms B about her time with the children, the mother said she did not believe she had a problem controlling the children. The counsellor only saw them for a short time. The children play up, because they think they can get away with it. The children do fight for her attention. Ms B’s account was not a completely accurate one.
The mother was aware that the family consultant supported the father’s position. She was aware that this was because she did not comply with court orders. When she was asked what assurance there could be that she would comply with court orders, she said she would comply. She understands the seriousness. She knows orders are serious, but the children’s best interests are most important.
In re-examination the mother said she was happy for the father to see the children, as long as they stay with her. It would be traumatising for them to move school.

The Evidence of Ms B, the Family Report Writer

Ms B adopted her report, and it was tendered as exhibit M1.
Ms B confirmed that she had read the most recent affidavit filed, but she did not change her recommendations.

Ms B under Cross-Examination by the Independent Children’s Lawyer

Ms B confirmed that she had not asked what time the father left for work, but when told that he would be leaving at 5 am and the grandmother looking after them thereafter, Ms B said this did not raise concerns so long as they were in good care by the grandmother. It was an unwieldy situation for the grandmother but not for the children. She was aware the children were undertaking counselling but not more than that.
Ms B was of the view that it would be beneficial not to attend counselling until SOCIT/DHHS enquiries were completed, and if they did, it would be better with a new counsellor. The current counsellor should be restrained in the meantime. Counselling should only be considered after receipt of reports from the DHHS and SOCIT.
Ms B confirmed that the mother had reported that she was on a mental health plan due to experiencing depression. That is what she had reported to her. The mother presented as a cause for concern. There appeared to be problems with her emotional health, and she would benefit from support, and Ms B recommended the assistance of a psychologist.
Ms B had found her observation of the mother with the children particularly concerning. It only lasted about 12 minutes and it had to be ended early because of the children’s distress and the mother’s response.
Ms B confirmed the children had good relationships with both parents. She had concerns with the mother on the day. It might not always be like this. The mother was very anxious on the day.
Ms B confirmed that she did not recommend joint parental responsibility for the reasons in her report. The parents cannot communicate effectively. The change of residence was justified, even though it was an extreme measure. The children would be affected by the change of residence. The father presented very well. He was totally child focused, even despite the recent disclosures to SOCIT/DHHS. The father responded very well about these latter matters, even though only told on the day.
The father in part was exasperated by the mother’s failure to comply with court orders. He would support the children’s relationship with the mother if the mother complied with court orders. Ms B had no confidence the mother would be able to reflect on her conduct. She has been noncompliant for years. She was not confident the mother would change. The children have been in the middle of the dispute for years. She was happy for the mother not to spend time with the children for four weeks following the change of residence, and was concerned that the mother might not comply with the change of residence. (omitted) contact centre would take six months. The change would distress the children and the mother. She was now concerned even with unsupervised time for the mother.

Ms B under Cross-Examination by Counsel for the Father

Ms B said the contact centre would be a safety net for the children. The parents should enrol in a contact centre now, and there should be some time with the mother in the meantime.
Ms B did not have significant concerns of X playing video games for one to two hours. It was typical of a child of his age. The arrangements with the grandmother would be acceptable if there was a consistent routine. The mother’s behaviour at assessment was a concern, and in particular her lack of response to the children’s distress. There would be a concern if the mother had sole parental responsibility, because she disregards the father in the children’s lives, but there still needs to be an order for sole parental responsibility as the parties cannot communicate. Important decisions should be notified in writing.
If there was a change of residence the children would be distressed. There were possible problems settling them into a new school, and this would affect the children. She nonetheless stood by her recommendations. The children would need professional supports if there was a change of residence and the father was to take time off work.
Ms B repeated that it almost took significant prompting from her for X to refer to the police report.
Boring was a phrase used by the mother and both children in a markedly similar way. She believed that the children were truthful in saying that they wished to see their father.
X’s drawings are concerning and violent. Ms B could not say what caused them. The children have only lived with their father for small amounts of time. X would benefit from therapeutic support at an appropriate time.

The Submissions of the Parties

The Independent Children's Lawyer put, as a primary submission, that the matter should be adjourned for six to 12 months, and the current orders in place should be continued. He noted the absence of a SOCIT report. The family consultant had not been challenged by the mother (who did not cross-examine her). Final orders would depend upon what happened between now and then. There was an alternative submission. If the matter was not to be adjourned, he supported the recommendations of the family consultant.
Counsel for the father urged the court to finalise the matter sooner than later, pointing to the time and expense involved. If the children were to live with the father, then this should be done before next year. The children should be brought to the Registry to explain the orders. Counsel confirmed that she sought the orders set out in her outline of case at paragraph 11. She qualified this by saying that the period of exclusion for the mother could be as short as four weeks, and pressed that the parties enrol at Berry Street forthwith. She sought that special occasions be as per the extant orders.

It was submitted the father was a considered witness who admitted his problems with his firearms licence and with videos. He had tried mediation and this was a last resort. The mother had still not improved even after the contravention findings. The mother has nebulous fears of the father only. The father will facilitate a relationship with the mother. He has taken the children in the past at short notice. The father did not oppose the minute of orders put forward by the Independent Children's Lawyer, save for the order prohibiting hunting on an ongoing basis. He has no intention to do so, but this would be a final order.
The mother's evidence showed her searching for answers and was, at times, contradictory. The sexualised behaviour alleged by Y had only been mentioned in the witness box. The family consultant was clear, and was even more so after seeing the mother's affidavit. The mother has not undertaken a post-separation parenting course, and there should be final orders. The mother agreed with the Independent Children's Lawyer's ancillary orders but, otherwise, sought that the extant order orders remain.

The Statutory Pathway

The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”

Equal Shared Parental Responsibility

The father seeks an order for sole parental responsibility, but it should be noted that this order is sought in the context of his proposal that there be a change of residence. The Independent Children's Lawyer submits that the extant orders should remain, and these include an order for equal shared parental responsibility. The mother had but little to say about the matter. Although there are, of course, historical allegations of significant family violence, the fact is that the mother did not proceed with her application for an Intervention Order in 2014.
I am simply not able to make a finding as to whether or not the mother's allegations of a threat to kill her are true. Other than this, the only real questions of violence are the alleged assault by the father recently inasmuch as the father is said to have touched X's doodle. It should be noted that the incident in 2013 - in which it would appear that the child, A, for reasons wholly unexplained chose to exhibit inappropriate behaviour and encourage X to adopt it - never had anything to do with the father. The uncontradicted evidence of the father was that this took place while the wife (or partner) of A’s father was supervising a bath. The matter never went anywhere with SOCIT and can, in my view, be treated as essentially irrelevant. Its relevance, to the extent that it has any, is that it is still at the forefront of the mother's fears about the father in circumstances where, as I find it, it never had anything to do with him in any event.
The real question as to shared parental responsibility lies in the fact that the parties have a total incapacity to communicate in a sensible way.
I have no doubt that each party genuinely feels this is wholly the fault of the other. That is what the mother said in terms, and the father's evidence suggests that that is his view also. In my view, the parents are not to be rewarded for their poor behaviour. The solution lies in appropriate counselling and education to enable them to start to behave, for the first time in many years, as responsible adults. There is no proper basis upon which, in my view, the presumption as to equal shared parental responsibility can be set aside.

Equal Shared Time

There is no question that equal time is not indicated in this case. Neither party has sought it. The parties' poor interpersonal relationship would make it wholly impracticable, as would the tyranny of distance between the children's schools, and the difficulty of multiple enrolments and the like. It is not necessary to say more than it is blindingly obvious that equal time is inappropriate in the children's best interests. Substantial and significant time is once again, to an extent, made difficult by the distance between the parents' homes. In the particular circumstances of the case, the spend-time regime is best addressed by reference to the matters in section 60CC of the Act.

Section 60CC(2) - The Primary Considerations

Everyone agrees, in principle, that it is appropriate that the children have the benefit of a meaningful relationship with each of their parents. The reason question is the need, or lack thereof, to protect the children from the father. It is as well to have this aspect of the case out at this point. In truth, the mother has lingering suspicions about the father. That they are lingering is illustrated by the fact that notwithstanding her concerns, she does, on occasions, permit the children to spent time with the father when they want it.
She says she would be reassured if her current complaints to DHHS and SOCIT were to be dismissed. The report to DHHS has already been dismissed. We await the report from SOCIT. That is the position in the mother's mind. It is not the position in mine. I have seen and heard the father in the witness box through not a wholly insignificant amount of time, even though the mother elected not to cross-examine him. He has denied, in emphatic terms, that he has ever misconducted himself with the child.
On the mother's own version of the events, X only made the revelation to her when she had, effectively, cross-examined him into it. I note further, and entirely consistent with this position, that X only raised the issue with Ms B when she more or less had to cross‑examine it out of him herself. I have no doubt that this incident did not occur. It is something X has made up to suit his mother's insistent questioning. The mother's view that the failure of the children to tell her why they did not want to go to see the father meant that there must be something concealed is simply an absurd paranoia.
It is all too obvious that the reason the children do not tell her why they do not want to go and see their father is because they do wish to do so, but appreciate so strongly that the mother does not want them to and they do not wish to discuss it further with her. It is quite clear that the mother has embroiled these children significantly in the case and goes so far as, in effect, to discuss the court proceedings with them in some detail. I note Ms B's observation that the mother's language and that of the children about the father's time being "boring" was said in almost identical terms.
I am not going to go so far as to find that the mother has deliberately coached the children, but there is no doubt that they have picked up on what she has told them from time to time. It is high time somebody said to the mother, as I hereby do, that the father is not a risk to his children. He has not sexually abused X. He was not complicit in the 2013 incident. Any reluctance, on the children's part, to go to their father comes from the mother's own views and fears.

Section 60CC(3)(a) - The Additional Considerations

The children's views, in my view, have been expressed unequivocally. Although the children expressed some rote objections to spending time with their father, their behaviour, when seen with him by Ms B, leaves simply no room for doubt. The children clearly do wish to spend time with their father and have, indeed, asked to do so on the occasions when the mother has permitted them to go and spend time with him. Both children describe positive relationships with their parents to Ms B and with one another.

Section 60CC(3)(b)

The children have, as just indicated, positive relationships with their parents. I note that X was described as appearing aligned with his mother to some degree, but this was not maintained throughout the interview. And it seems plain from his actual interaction with his father that he has a good relationship with him. I note that the children spoke positively about their relationships with their paternal grandparents, but did not identify their maternal grandparents as relationships of significance.

Section 60CC(3)(c)

Both parents have done, it seems to me, their best in participating and making decisions about major long-term issues in relation to the children, and to spend time and communicate with them. The mother has been their primary carer throughout their lives and, in a sense, this tells that side of the story completely. For all her limitations, she has plainly done her best for the children. The father, contrary to the mother's denials, has always wanted to spend time with his children and communicate with them.
I accept that he telephoned them from Western Australia when he worked there. I also accept that he has done everything he properly can to spend time and communicate with them, both when he was living in Western Australia and since his return to Victoria. His strenuous prosecution of his case to judgment speaks volumes for his commitment. Indeed, it is noteworthy that he is only now seeking a change of residence because of the mother's repeated failure to comply with the extant orders.

Section 60CC(3)(ca)

There is nothing to suggest that either parent has failed to fulfil their obligations to maintain the children.

Section 60CC(3)(d)

It is plain that a change of residence would be traumatic for the children. Everyone seems to agree that this is so. It was Ms B's view. And it should be noted that Ms B was an excellent witness, giving evidence within her area of expertise, and that she was not moved, in any meaningful way, by questions. The father himself accepts that a relocation would be traumatic and, indeed, proposes to take several weeks off work at the start. He accepts that counselling would be necessary. Given that X is not without his difficulties at the present time as indicated, if nowhere else, by his drawings, the trauma of relocation is to be approached even more cautiously than otherwise might be the case.

Section 60CC(3)(e)

The change of residence proposed by the father would undoubtedly involve a considerable amount of practical difficulty to the children. They would have to change schools. Their routine would be markedly different. They would, in effect, in large part, be being cared for by the paternal grandmother. I should, however, make it clear, that I find Ms Cairnes to be an excellent witness who was plainly truthful. I have no doubt that she not only is committed to those things that she has said she will do, but that she will do so indefinitely should this be required. Accordingly, while - as Ms B said - the proposed arrangements in the father's care would be unwieldy for the grandmother, I have no doubt that they would be satisfactory for the children.

Section 60CC(3)(f)

Both these parents have had their weaknesses in the way in which they have sought to care for the children. The father's permission for X to look at the quite disgusting video games that he undoubtedly was allowed to look at, (those being illustratively annexed to the mother's most recent affidavit), speaks volumes. Allowing a child aged 10 and under to look at something like (omitted): The Third, which contains "strong sexual and crime themes, violence and coarse language" just defies belief.
To his credit, however, the father has ceased these games since the court orders made earlier. And it would appear that the drawings made by X have stopped since March of this year. The prohibition on inappropriate video gaming appears, by and large, to have been effective.
The mother's care of the children, likewise, is open to significant criticism. The fact that the children have an appalling attendance record at school scarcely seemed to concern the mother. At times, she appeared to simply assert that this was because they were poor morning people, particularly Y.
Education is critical to a child's development. Attendance at school is required by law. The mother's abject failure to get the children to school speaks strongly against her, and she will have to raise her game significantly. Contrary to her denials, I do not think she has yet done so. Likewise, I do not accept the somewhat paltry excuses she gave. Illness on her part or Y’s part simply does not explain the enormous number of days or part days missed.

Section 60CC(3)(g)

I have just made criticism of the parents' conduct in part. This speaks to a certain lack of insight and immaturity on each of their parts. Nonetheless, it needs to be noted that these are persons who are, essentially, law abiding. The father's interests in life seem very much attuned to his own outdoors persona. He likes hunting, camping, fishing and the like. These were the matters he first volunteered as being what he had taken the children to. He needs to think a bit more about his daughter's needs as well to attune himself to her developing needs as a girl.
The mother's lifestyle is, in one sense, unremarkable. She is paying off her own home and has been, effectively, a full-time mother. Her incapacity to understand, however, that getting children up in the morning, and getting them to school is important suggests an insouciance in her approach to her lifestyle more generally.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

Once again, the matters that might be considered under this subsection have already been dealt with. A failure to properly supervise video games is exceptionally off-putting, and a failure to get children to school likewise. These do not, to my way of thinking, require further elucidation. Nonetheless, absent these qualities, and absent their mutual like and mistrust, both of these parents love their children, and have a genuine desire for the best for their children.

Section 60CC(3)(j)

Leaving aside the allegations of sexual misconduct, which I have already dealt with, there is no meaningful assertion of family violence beyond a now-historical event in 2013 in respect of which I have not been able to make a decision, in any event.

Section 60CC(3)(k)

There are no family violence orders in place, and the only one applied for was withdrawn in 2014.

Section 60CC(3)(l)

In the context of this case, this is important. If I make final orders, then the Independent Children's Lawyer supports the orders sought by the father. The Independent Children's Lawyer, however, favours interim orders only with the mother, in effect, to be given one last chance. Although it could be set out at much greater length, in the ultimate, in my opinion, the position is clear. Everyone agrees that taking the children out of the mother's primary care and into the father's would be a traumatic matter for them.
I have already observed that X is not without his difficulties. In my view, while I retain a considerable doubt as to whether the mother really appreciates how important it is for her to obey court orders and to get the children to school on time, these risks should be accommodated for a further six months during which the matter can become clearer. The risk of the inevitable emotional trauma to the children in the event of a change of residence is something the court would only undertake as an absolute last resort. It is not appropriate that it be taken now.
Nonetheless, the mother is on clear notice. Any further failures to send the children to the father, in accordance with the extant court orders and/or failure to get the children adequately to school will, almost certainly, result in a change of residence when the matter comes back to court. This is her last chance. She had better take it.

Section 60CC(3)(m)

There are no other relevant matters.

Conclusion

The court has acceded to the position of the Independent Children's Lawyer's primary position. I will be making the orders proposed by the Independent Children's Lawyer.

I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 15 December 2017

[2017] FCCA 2956

15 December 2017

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Family Law

Civil Procedure

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Injunction

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