SHANNON & HUMPHRIES

[2016] FCCA 2384

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHANNON & HUMPHRIES [2016] FCCA 2384

Catchwords:
FAMILY LAW – Parenting orders – three children – with whom the children shall live – best interests – family report – allegations of violence – allegations of mental health issues – consideration of s.60CC of the Family Law Act 1975 (Cth) – children live with the Applicant father – children spend time with Respondent mother.

Legislation:

Family Law Act 1975, ss.60CC, 60CC(2), 60CC(3), 60CC(3)(d)(i), 62G

Applicant: MR SHANNON

Respondent: MS HUMPHRIES

File Number: DGC 1131 of 2014

Judgment of: Judge Hartnett

Hearing dates: 21 April 2016, 22 April 2016, 27 April 2016 and 13 May 2016

Delivered at: Melbourne

Orders made: 9 September 2016

Delivered on: 13 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Jenkins

Solicitors for the Applicant: Harwood Andrews

The Respondent:	In Person
Counsel for the Independent Children's Lawyer:	Mr Pavone
Solicitors for the Independent Children's Lawyer:	O'Halloran Davis

THE COURT ORDERS THAT:

1. All existing orders in relation to the children X born (omitted) 2006; Y born (omitted) 2008 and Z born (omitted) 2011 (‘the children’) be discharged.

2. The mother and father have equal shared parental responsibility for the children save that the father have sole parental responsibility for the children’s medical and dental needs.

3. The children live with the father.

4. The children spend time and communicate with the mother as follows:-

   (a)During the school terms each alternate weekend from 6:00pm Friday until 6:00pm Sunday and if Monday is a non-school day to 6:00pm Monday, commencing on a date to be agreed between the parties but within two weeks of the date of these orders;

   (b)for one half of each school term holidays as agreed between the parties and failing agreement every first half of such holidays from 12:00pm Saturday until 6:00pm on the mid Saturday;

   (c)for one half of the Christmas school holidays at times as agreed between the parties, and failing agreement for the second half of the Christmas school holiday period in 2016 and each alternate year thereafter save for the Christmas Day/Eve provision in order 4(e) herein with the children to be returned to their father’s care at least 48 hours prior to the commencement of the school year. Otherwise failing agreement and in the Christmas school holiday period 2017 and each alternate year thereafter for the first half of the Christmas school holiday period save for the Christmas Day/Eve provision in order 4(e) herein.

   (d)if the children are not otherwise with the mother on Mother’s Day from 6:00pm on the Saturday immediately prior to Mother’s Day until 6:00pm Sunday;

   (e)from 3:00pm Christmas Day to 6:00pm Boxing Day 2016 and each alternate year thereafter and in 2017 and each alternate year thereafter the father’s time with the children be suspended from 3:00pm Christmas Eve to 3:00pm Christmas Day so that they spend time with their mother.

   (f)by telephone each Monday and Wednesday between 5:30pm and 7:00pm (Victorian time) with the father to ensure that the children are provided with a landline or mobile telephone (appropriately charged and with credit) on which to take the call instigated by the mother. The father shall notify the mother by 5:00pm on the relevant Monday and/or Wednesday if the number on which the children can be called is to be different from their usual number. The father shall ensure that all calls can be taken by the children or any of them in relative privacy;

   (g)on each of the children’s birthdays (subject to the mother being able to travel to the location where the children are living):-

   (i)if a weekday for a period as agreed between the parties and failing agreement for two (2) hours from 5:00pm until 7:00pm;

   (ii)if on a day that the children would not otherwise spend time with the mother for a period as agreed between the parties and failing agreement for four (4) hours from 10:00am to 2:00pm;

   (h)at such other and further times as agreed but to include in the event the mother relocates her residence to the (omitted), each Wednesday during school terms from after school until 7:30pm, the mother to collect the children from school and return them to the father’s residence or such other place as agreed between the mother and father.

5. Regardless of whose care the children are in, the parent whose care they are in shall ensure that the children attend pre-arranged and notified sporting, social and other extra-curricular activities.

6. The children’s time with the mother for the purposes of alternate weekend time shall be suspended from the conclusion of school on the last school day to the commencement of school on the first school day of the next term and in the event that the children’s schools have different conclusion dates and commencement dates, time will be suspended from the later last term date of the elder two children and shall commence on the earlier first term date of the elder two children. The children’s time with the mother will also be suspended, if they are in her care, from 6:00pm on Saturday immediately prior to Father’s Day to 6:00pm on Father’s Day.

7. For the purposes of alternate weekend contact, time spent with the mother by the children will commence on the first weekend after the commencement of the school term regardless of when the last period of alternate weekend time took place before the school holiday period commenced.

8. Changeovers take place at such location as agreed between the parties and failing agreement at (omitted).

9. The mother and father by injunction are restrained from engaging in or encouraging inappropriate adult conversations with the children and specifically are restrained from initiating conversations with the children about the other parent’s activities or whereabouts.

10. The mother and father are restrained by injunction from denigrating the other parent in the presence or hearing of the children or allowing any other person to do so.

11. The mother and father be restrained by injunction from discussing details of these proceedings with the children.

12. Both parties are free to attend any event ordinarily attended by a parent, regardless of whether the subject children are in their care at that time.

13. Each of the mother and father, their servants and/or agents are restrained from discussing issues in dispute between the mother and the father in these proceedings in the presence or hearing of the children.

14. The mother and father must ensure that the children are not exposed to physical or verbal violence, either by them or any other person.

15. The mother and father shall, as soon as practicable, inform the other of any urgent medical treatment affecting the children whilst in their care and shall authorise any such provider of medical treatment to provide to that parent all information usually provided to a parent. The mother is otherwise not to take the children to or arrange for any medical attendances for the children given same is by these orders the sole responsibility of the father.

16. The father provide to the mother, as soon as practicable, information as to any health appointments of the children arranged by him and information as to the outcome of any such appointments.

17. The father sign all necessary documents to authorise the children’s schools, child care or kindergarten to provide to both parents all information usually provided to the mother including but not limited to newsletters, parent/teacher interviews, school photo order forms and any other notice normally provided to a parent.

18. If the parties have not otherwise done so in the last 12 months, each as soon as is practicable but within six months attend a Post Separation Parenting Course and provide proof of completion of that course to the other.

19. The Independent Children’s Lawyer is dismissed.

20. All parenting applications are otherwise dismissed.

AND THE COURT NOTES THAT:

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 are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1131 of 2014

MR SHANNON

Applicant

And

MS HUMPHRIES

Respondent

REASONS FOR JUDGMENT

1. These proceedings, ongoing between the Applicant and Respondent to which the Independent Children’s Lawyer became a party, involved the seeking of both property and parenting orders. The relationship between the Applicant and Respondent was a de facto relationship. Joined to the proceedings, prior to the making of orders for the appointment of an Independent Children’s Lawyer on 16 March 2015, was the de facto mother’s father, Mr H. Mr H loaned or gifted to the de facto parties the sum of $160,000 in or about August 2010. These monies were applied by the de facto husband and wife to purchase a real property situate at Property C in the State of Victoria (‘the Property C property’). The Property C property was registered in the joint names of the de facto parties. Mr H took up residence with the de facto parties in the home located thereon. Mr H’S claim in the proceedings, as set out in his response filed on 22 July 2014, supported by affidavit evidence sworn on 21 July 2014, was settled as between the de facto parties and Mr H (the then Second Respondent joined by order of 7 July 2014) in the making of consent orders on 21 April 2016, being the first day of the trial in this matter. Those orders provided, relevantly, as follows:-

   “1. The amount held in trust by Harwood Andrews in the sum of $16,296.39 be paid, in its entirety, to the Second Respondent’s solicitors forthwith.

   2. Otherwise the Second Respondent’s response to the initiating application filed 22 July 2014 to be dismissed.

   THE COURT DIRECTS THAT:

   3. The Minute of Consent Orders signed by the parties and marked ‘Exhibit A’ remain upon the Court file.

   AND THE COURT NOTES THAT:

   A. The Applicant and the First Respondent agree today that the sum of $30,000 was owed to the Second Respondent and the amount referred to in order 1 herein is in partial satisfaction of the debt, which otherwise remains outstanding.

   B. The First Respondent still insists that the debt was $60,000 but is consenting today to ensure that the Second Respondent receives some money.”

   The litigation continues between the Applicant and Respondent as to property matters. This has been given a further listing date as the parties seeming resolution of the matter during the trial has fallen away. These reasons for judgment are as to the competing parenting applications of the de facto mother and father and go to the orders which shall be made by the Court with respect thereto. The orders which the Court makes are those essentially as sought by the father and the Independent Children’s Lawyer.

History – Evidence of Applicant and Respondent

1. The Applicant and Respondent have three children: Y born (omitted) 2006 (‘Y’), X born (omitted) 2008 (‘X’) and Z born (omitted) 2011 (‘Z’) (collectively ‘the children’).

2. The Applicant de facto father (‘the Applicant’) was born on the (omitted) 1978 and is now aged 38 years. The Respondent de facto mother (‘the Respondent’) was born on the (omitted) 1985 and is now aged 30 years. The Applicant and Respondent met in (omitted) where the Applicant was employed as a (occupation omitted). He was so employed for approximately 10 years before commencing employment at the (employer omitted) upon the Applicant and Respondent’s move to (omitted). The Applicant was thereafter a (occupation omitted) in (employer omitted) until employed in the (omitted) industry from shortly after the birth of Y until approximately June 2014. Thereafter the Applicant ceased fly in-fly out work in the (employer omitted) in Western Australia and continued his employment with (employer omitted) from a Melbourne base. Whilst the Applicant has engaged in these positions of employment in the relevant period, the Respondent has been engaged, since the birth of the parties’ children, in home duties and importantly the care of the children.

3. The parties commenced their cohabitation in (omitted) 2005 in rental accommodation in (omitted). They separated for a short time in May 2009 and again in October 2011 for some months following the Applicant perpetrating an assault upon the Respondent. The Applicant admitted that his drinking caused problems between he and the Respondent at that time. That admission was in some respect forced on him given his loss of licence on more than one occasion, subsequent driving without a licence and dependence on the Respondent to drive him for many years. The Applicant also claimed to suffer from stress and to be marginalised by the Respondent in respect of their caring of the children at that time. The actual assault occurred when the Applicant had become angry after the Respondent revealed she had an affair with the Applicant’s best friend. The Applicant agreed to go to an anger management course, as stipulated by the Respondent but more tellingly as a condition imposed upon him in respect of a charge of unlawful assault proceeding against him in the Magistrates’ Court. The Applicant and Respondent could not resurrect the relationship following this assault and finally separated on the 25 May 2012, after a period of cohabitation of approximately six years and two months.

4. At the time of separation the parties were residing in the Property C property which they had purchased in approximately August 2010 for $312,000, with the assistance of the monies provided by Mr H and a bank loan. Upon separation the Applicant left the former matrimonial home and took up a separate residence. That separate residence, at those times when the Applicant was not residing in Western Australia, was a property known as and situate at Property S which had then recently been acquired by the Applicant and Respondent. The circumstances surrounding that purchase were difficult for the Applicant and Respondent. The Respondent’s father had sought to purchase the property in his name before attempting suicide. The Applicant and Respondent completed the purchase in their joint names, albeit it was not a property which they desired ownership of and ultimately caused them some significant financial distress. The Applicant remained in occupation of that property for about 12 months before moving to the neighbouring suburb of (omitted) for 12 months. It was during this time the Applicant entered into an 18 month relationship with Ms M. That relationship ended amicably. Ms M observed the Applicant to have a close, warm and competent parenting relationship with his children and that is accepted by the Court in respect of that period of the Applicant’s and children’s lives. Thereafter, the Applicant commenced to live in Melbourne (June 2014), residing in different apartments in the city. The Applicant then commenced his current relationship and moved in to Ms Y’s home in (omitted) for three months before obtaining rental accommodation in (omitted) around the time of the trial.

5. The Respondent and the children remained in occupation of the former matrimonial home for approximately two years. The Respondent continued her role as the children’s primary care giver, a fact not disputed by the Applicant and indeed a care giving role supported by him. The Applicant described the Respondent, in evidence in these proceedings, when cross-examined by her and in relation to the years they were together as “a brilliant mother. You looked after our children, you cared for our children, you loved them, you were there for them, and we worked together…”. It is no surprise therefore that given that view, although it had been tempered somewhat by some of the Respondent’s behaviours following separation and the fact of the Applicant’s absence in Western Australia, in relation to which the Applicant sourced the means by which to pay significant child support payments to the Respondent, the Applicant was content to enter into consent parenting orders in 2013. He hoped, if not entirely confident as to, the orders would promote the children’s best interests.

6. The parties entered into final parenting orders on 20 August 2013. Those orders acknowledged the primary care giving role of the Respondent, and the work related absences of the Applicant. They provided for the Applicant and Respondent to have equal shared parental responsibility for their children and for the children to live with their mother and spend time and communicate with their father. Communication by telephone was frequent. Time spent with was dependent upon the Applicant’s work roster as can be seen from the orders which are, for completeness sake, included below:-

Orders

“1. That the Mother and Father have equal shared parental responsibility for the children of the relationship, namely X born (omitted) 2006, Y born (omitted) 2008 and Z born (omitted) 2011 (“the children”).

2. That the children live with the Mother.

3. That the children spend time and communicate with the Father as follows:-

(a) From 8:30am the day after the Father returns home from work until 5:00pm the day preceding the Father’s return to work, but for not more than 5 nights.

(b) Upon the Father giving the Mother not less than 21 days notice, for two separate blocks of not more than 10 nights during the Father’s periods of annual leave at times to be advised by the Father.

(c) By telephone each Tuesday, Wednesday, Thursday and Sunday between 6:30pm and 7:00pm

(d) From 7:30pm 24 December 2013 until 2:00pm Christmas Day 2013 and each alternate year thereafter.

(e) From 2:00pm Christmas Day 2014 until 7:30pm Boxing Day 2014 and each alternate year thereafter.

(f) Such further and other time as the parties may agree.

4. That each party be solely responsible for the day to day care of the children whilst the children are in their respective care.

5. That for the purposes of the times referred to in paragraph 3 herein, whilst the Father continues to reside within 20km of (omitted), the Mother or her appointed representative shall deliver the children to the Father's residence at the commencement of his time with the children, and the Mother or her appointed representative shall collect the children from the Father's residence at the conclusion of such time.

6. That for the purposes of the times referred to in paragraph 3 herein, in the event that the Father relocates to reside more than 20km from (omitted), the Mother or her appointed representative shall deliver the children to the Father's residence at the commencement of his time with the children, and the Father or his appointed representative shall return the children to the Mother's residence at the conclusion of such time.

7. That for the purposes of the Father's time with the children pursuant to paragraphs 3(a) and (b) herein, the Father shall provide the Mother with not less than 20 days notice of his work roster, or as soon as it becomes available to him.

8. That each party advise the other of any changes to their address or phone number within twenty-four hours of such change occurring.

9. That whilst the children are in their respective care, the Mother and Father shall as soon as practicable, notify the other of any significant illness or injury suffered by the children and identify the treating health professional or institution and where necessary, authorise the other parent to confer directly with the said health professional or institution on all questions relating to the health and welfare of the children.

10. That the Mother authorise the proper officer of any Day Care Centre, Kindergarten or School the children might attend to list the Father as a parent, and authorise the Father to receive copies of the following:

(a) School reports.

(b) School photograph order forms.

(c) Any other document, paper publication or the like ordinarily provided to parents.

And further, subject to the organisations policies and directions regarding the following events, authorise the Father to attend:

(i) Parent teacher interviews

(ii) School dramatic events

(iii) School sporting events

(iv) School musical events

11. That both parties shall permit the children to contact the other parent at any reasonable time they wish to do so whilst the children are in their respective care and shall facilitate the call to the other parent upon the children's request.

12. That the Mother be permitted to contact the children by telephone each day between 6:30pm and 7:00pm whilst they are in the Father's care.

13. That each party shall ensure the children are provided with a suitable, safe and appropriate environment at all times.

14. That each party ensure the children attend school, kindergarten and all extra curricular activities whilst the children are in their respective care and ensure that they are not absent except in the case of illness.

15. That each party be hereby restrained from:

(a) Denigrating the other or causing another to do so in the presence or hearing of the children.

(b) Discussing these proceedings, financial matters or any other adult issue in the presence or hearing of the children.

(c) Consuming alcohol, or any drugs other than those prescribed by a treating medical practitioner.

(d) Denigrating the other on any social network site, including but not limited to Facebook.

16. That each party be restrained by injunction from relocating the children’s residence to an area more than 25km outside the (omitted) Region without the written consent of each other party.

17. Pursuant to S65DA(2) and S62B(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.”

1. Following the initiating of these proceedings the final parenting orders were varied on 16 February 2015. At that time the Court made orders, relevantly, as follows:-

   “THE COURT ORDERS THAT:

   2. Pursuant to s.11F of the Family Law Act 1975 (Cth), the parties to the proceedings and the children X born (omitted) 2006 (‘X’;), Y born (omitted) 2008 (‘Y’), Z born (omitted) 2011 (‘Z’) (‘the children’) shall attend an appointment with a family consultant, with the mother to attend with the children at 9.15am and the father to attend at 10.00am on 16 March 2015 for the preparation of an oral report to be delivered on 16 March 2015 at 2:15pm.

   THE COURT ORDERS, BY CONSENT UNTIL FURTHER ORDER, THAT:-

   4. Paragraphs 3, 5, 6 and 7 of the final parenting Orders made 20 August 2013 be discharged.

   5. The children live with the mother.

   6. The father return Y to the mother’s care by causing him to be delivered to the (omitted) Police Station at 6.30pm today.

   7. The father spend time with X and Z only from 6.00pm Friday 20 February 2015 to 6.00pm Sunday 22 February 2015.

   8. The father spend time with the children during the first half of the term one school holidays commencing at 5.30pm on the last Friday of school term and concluding at 5.00pm on the middle Saturday of the holiday period.

   THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

   9. The three children spend time with the father each alternate weekend from 6.00pm Friday until 5.00pm Sunday commencing 27 February 2015.

   10. All changeovers occur at the (omitted) Police Station.

   THE COURT ORDERS, BY CONSENT UNTIL FURTHER ORDER, THAT:-

   11. The father have telephone communication with the children between 6.00pm and 7.00pm each night when the children are in the mother’s care, with the mother to ensure that she facilitates the call between the father and the children and allows the children privacy during the call.

   12. The mother be restrained from moving the children’s residence from (omitted) in the State of Victoria.

   13. Both parties, their servants and agents be and are hereby restrained from:-

   a) physically disciplining the children; and

   b) removing the children X and Y from their current school. 

   14. The mother to ensure that Y immediately commences grade 1 at (omitted) Primary School.

   THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

   15. The mother be restrained from bringing the children into contact with Mr P and Ms S.

   16. The mother supply the father’s lawyer with Mr P’s date of birth within seven days.”

2. On 16 March 2015, further orders were made for the appointment of an Independent Children’s Lawyer and pursuant to s.62G of the Family Law Act 1975 (Cth) (‘the Act’) the preparation of a family report. Additionally the mother and father were to attend upon a mutually appointed psychiatrist for the purpose of the preparation of a report for the Court as to their current and past mental health functioning and their ability to properly care for the children. Each of the Applicant and Respondent were to bear the costs of such reports equally. Order 15 (see above) of the Orders made 16 February 2015 was discharged. Neither party were to video the other and/or the children at changeover or any other time. Otherwise the Court ordered, by consent until further order, relevantly that:-

   “…

   17. The father spend time with the children:-

   a) during the first half of the first, second and third school term holiday periods in 2015 commencing on the last Friday of the school term and concluding at 5.00pm on the middle Saturday of the holiday period; and

   b) from 6.00pm on Friday until 5.00pm on Sunday on the Father’s Day weekend.

   18. Without admitting the necessity for same the mother shall remain present with the children (or any of them) whilst they are in the presence of Mr P.

   19. The parties do all acts and things necessary to ensure that the child Y attends upon an agreed mental health services provider for the purposes of a comprehensive psychiatric assessment and report and the appointed professional be provided with copies of all documents filed in these proceedings and have liberty to inspect health records for the child Y produced by subpoena.

   20. The parties and each of them by their servants and/or agents be restrained by injunction from:-

   a) administering corporal punishment upon the children or permitting another to do so;

   b) discussing these proceedings in the presence and/or hearing of the children (or any of them) or permitting another to do so;

   c) denigrating the other parent in the presence and/or hearing of the children (or any of them); and

   d) communicating with one another in respect of parenting or other matters via the children (or any of them) or via any third party other than the parties lawyers.”

3. On 17 August 2015 further procedural orders were made by consent.

4. On 30 September 2015 further parenting orders were made by consent relevantly as follows:-

   “…

   3. The father spend time and communicate with the children (in addition to the current Orders)

   3.1    From 3.00 pm on 25 December 2015 until 5.00 pm on 15 January 2016.

   3.2    During school term holidays from the conclusion of school on the last Friday of term until 5.00 pm on the middle Saturday.”

Changed circumstances

1. This litigation, in so far as it seeks differing parenting orders fairly close in time to the conclusion of the preceding litigation, is nevertheless legitimate, it being occasioned by a change of circumstances which necessitates a judicial contemplation of the matter a fresh. In fact, there are a myriad of changes in circumstances that are considered hereafter. When the litigation first commenced, the Applicant did not seek a change to the parenting orders. His application filed on 17 April 2014 sought property orders, consequent upon Mr H having commenced litigation against him in the Magistrates’ Court of Victoria at Geelong in proceedings number (omitted). Mr H sought the Applicant repay solely the sum of $100,000 of the monies advanced (in the total sum of $160,000) to the Applicant and Respondent jointly and severally. The Applicant in this proceeding required resolution of the Magistrates’ Court proceeding and property matters between himself and the Respondent, although he did not at that time and indeed could not particularise his claim. Following the joining of Mr H to these proceedings and being no longer constrained by the Magistrates’ Court jurisdictional limit, Mr H sought, in response filed on 22 July 2014, $160,000 from the Applicant and/or the Respondent together with costs of and incidental to the proceedings. The Respondent, in her response filed on 22 July 2014 sought from the Applicant a sum of $500 each week in spousal maintenance together with 85 per cent of the Applicant and Respondent’s asset pool inclusive of each of their respective superannuation entitlements. The financial statement filed by each of them at that time deposed to the Applicant being in receipt of income of $4,000 a week gross as an employee of (employer omitted) (working in Western Australia) and the Respondent being in receipt of Centrelink benefits and child support payments totalling $923 per fortnight net. The Applicant was paying an amount of $457 per week in child support payments.

2. The Applicant and Respondent’s children are now older than they were in August 2013. X is 10 years old; Y is 8 years old; and Z is 5 years old. X and Y attend (omitted) Primary School. X was unilaterally enrolled at this school by the Respondent in December 2014, following the Respondent’s unilateral withdrawal of X and Y from their previous school, the (omitted) Primary School. Prior to attendance at that school, X had attended (omitted) Primary School. The Respondent unilaterally and suddenly withdrew her from that school. The Court was required to intervene in February 2015 by the making of an order compelling Y’s attendance at school, the Respondent being resistant to such attendance.

3. These changes of school have been disruptive for the children and distressing for them, particularly X, as described by her to Mr N, family consultant, who prepared a report pursuant to s.62G of the Act. The contents of Mr N report dated 21 September 2015 were in evidence in the proceedings. Mr N was cross-examined by each of the parties in the proceedings. He gave clear evidence that this movement in schooling has resulted in a loss of friendships to X and in a lessening of academic performance by both X and Y. The Respondent proposed in the proceedings no further movement of schools for the children. The Applicant proposed a new school. The Applicant acknowledged however that the children would be happy to stay where they are currently enrolled and that his proposed movement of them, again, is not desirable. Rather he sees it as necessary to advance their long-term best interests.

4. The Applicant, at trial, was moving his address from his de facto’s property in (omitted), to a rental property in (omitted). This move placed his residence approximately one hour and 15 minute drive time from (omitted) where the Respondent and children reside. The Applicant was relocating to (omitted) with his de facto partner, Ms Y. The Applicant had taken out a 12 month lease on the property, the property being able to readily accommodate his three children and Ms Y’s one child, four year old A. The accommodation provided by the Applicant and Ms Y is comfortable and appropriate for all four children and the two adults who propose to live there.

5. The Applicant had also ceased his remunerative employment with (omitted) in the days before the trial and claimed that he intended to become a (occupation omitted) with flexible employment in the general area where the Respondent and children were residing. He subsequently claimed that he would earn an income from joining in his de facto partner’s endeavours in the (employment omitted). None of his evidence about this was convincing. The Court concluded that he would set up a work regime in the short term that advanced his case. Despite this, the Court is satisfied that the Applicant understands well both his obligation to support his children absent Centrelink benefits given his earning capacity and his obligation to provide for his children’s emotional and physical needs and make himself physically available to do so. He has determined that he must make himself available as a care giver given the difficulties existing for the children in remaining in their mother’s care.

6. Because of his move to (omitted), the Applicant proposed a differing school to that in his affidavit evidence of (omitted) Primary School. He proposed the (omitted) Primary School. He had taken the children to visit both schools. They were very familiar with the (omitted) Primary School because of its location close to the paternal grandparents’ home. The children have engaged in a range of play activities in the grounds of that school. The Applicant also proposed that Z attend (omitted) Kindergarten. The Applicant has inspected each of the educational institutions proposed by him and thinks them well suited to the children’s needs. Z did not continue to attend three or four year old kindergarten because the Respondent claimed that he did not like it. He first regularly attended kindergarten in the week before the trial commenced, the Respondent finally obtaining a placement for Z. Z is already five years old. The Applicant was not advised by the Respondent of Z’s enrolment. The Applicant’s earlier entreaties that Z attend kindergarten had previously been ignored by the Respondent.

7. The Respondent’s place of residence has been relatively stable and more so than the Applicant’s, contrary to the assertions of the Applicant. She has resided in the (omitted) for a considerable period which has provided stability to the children. She proposed to the Applicant at trial that he move to reside in (omitted), in particular given his (employment omitted) future claimed casual employment. She also proposed that if the children were placed in the Applicant’s care, she would move out of the (omitted) and reside in (omitted). These proposals were put by her with the result being the parties would reside in close proximity to each other. This was despite her repeated claim that she is extremely fearful of the Applicant and believes that he will physically harm her.

8. The Respondent has a serious relationship with Mr P. They propose marriage. Whilst she and Mr P do not live together they spend significant overnight and daytime periods together. The Respondent has sought to exclude the Applicant from the lives of the children and replace him with Mr P. Mr P has been openly critical of the Respondent’s care of the children at times and very supportive at others. The relationship between he and the Respondent is volatile.

Evidence

1. The Respondent filed no affidavits in preparation for the trial.  She relied upon no affidavit of evidence in chief nor did she update any affidavits from any witnesses. She had however, when legally represented, filed affidavits of evidence in the proceedings.  These were relied upon. They are:-

   a)Affidavits sworn by the Respondent on 11 February 2015 and 10 March 2015; and

   b)Affidavit of Mr P sworn on 10 March 2015.

2. Additionally the Court granted leave to the Respondent to adduce evidence at trial which she took the opportunity to do.

3. The Applicant relied upon the following affidavits of evidence:-

   a)an affidavit affirmed by him on 17 September 2015, and an affidavit sworn by him on 13 April 2016;

   b)an affidavit sworn by Ms Y on the 20 April 2016. She is the Applicant’s partner, as earlier referred to;

   c)an affidavit sworn by Ms M on the 11 February 2015. She is a former partner of the Applicant being a person with whom the Applicant had a relationship following the ending of his relationship with the Respondent;

   d)an affidavit sworn by the paternal grandmother Ms B, on the 16 February 2015; and

   e)an affidavit affirmed by Ms Christine Thomas, the Applicant’s Solicitor on 18 August 2015.

4. The Independent Children’s Lawyer relied upon the Family Report dated 21 September 2015 as prepared by Mr N pursuant to an order made under s.62G of the Act, and an affidavit sworn 14 April 2016 of Dr A, Consultant Forensic Psychiatrist, annexing his psychiatric report of each of the Applicant and Respondent.

5. Dr A was not required for cross-examination by any of the parties. The family consultant Mr N was cross-examined by each of the parties. So too was Ms Y and Ms Shannon, witnesses of the Applicant and Mr P, a witness of the Respondent. The remaining witnesses’ evidence was not challenged.

Orders sought

1. The Applicant sought an order for equal shared parental responsibility of the children save for him to be solely responsible for medical and dental matters. He sought that the children live with him and spend alternate weekend and school holiday time with the Respondent. The Respondent sought an order for equal shared parental responsibility of the children and that they continue to live with her and spend alternate weekend time and school holiday time with the Applicant. The Independent Children’s Lawyer supported the orders sought by the Applicant.

2. The Respondent made many extreme allegations about the Applicant during the course of the proceedings. She alleged he hits the children and they are scared of him. She alleged he denigrated the Respondent to the children. She alleged he repeatedly raped her. She alleged he tried to drown the child Y. She alleged he told the children or at least Y, it was ‘ok’ to steal. The Court finds he did none of those things and that the children love their father and are not scared of him. The Applicant did assault the Respondent by hitting her to the face and dragging her by the hair across a floor on 9 October 2011. The Respondent had Z in her arms at the time and Z fell to the floor. He was three months old. This was a frightening assault and the parties are lucky no serious physical damage was sustained by the Respondent and Z. The assault occurred in front of X who tried to defend her mother. The Applicant was charged; he pleaded guilty; and received a bond without conviction. He was and is remorseful but that does not lessen the impact for the Respondent of such an assault. The Respondent is not, however, afraid of the Applicant now in the manner described by her and nor has she been for some years. She is confrontational and on occasion aggressive toward him.

Dr A’s evidence

1. Dr A’s evidence was important in the proceedings. It was unchallenged and is accepted by the Court. It explained to some extent the Respondent’s presentation throughout the trial and in the witness box and it highlighted the difficulties for the children in remaining in their mother’s care in particular the child Y. It is a part of the evidence that was very compelling, and evidence to which the Court attaches significant weight when considering the matters set out in s.60CC of the Act. Dr A’s evidence in relation to the Respondent’s mental health functioning was as follows:-

   “Ms Humphries' mental state was striking. She was immediately anxious and agitated. She was heard to speak unusually loudly when entering the reception area. She had not organized suitable car parking, so she requested I assess Y first whilst she left to locate a parking spot.

   (The Court notes that the Respondent has a hearing difficulty as remarked upon by Dr A and is satisfied her loud speech is a consequence of that disability and nothing otherwise adverse.)

   Ms Humphries was superficially pleasant and friendly, but she was very intense, impressionistic and dramatic in manner. Her speech was loud, although she reported to be deaf in her right ear. She appeared to be prone to exaggeration and distortion. It was unclear if her account regarding Mr Shannon's purported abusive manner throughout the relationship was valid or a gross exaggeration. Whilst she indicated that she was essentially terrified of Mr Shannon, she did not present as anxious and emotionally distressed when reflecting on the purported abuse. She became notably emotionally heightened and projected intense anger when reflecting on aspects of her relationship with Mr Shannon and difficulties accessing help for Y’s purported behaviour problems. She used remarkably hostile and vulgar language, complete with liberal expletives, without hesitation and moderation. During moments of intense irritability her right eye oddly twitched. She seemed to lack self-awareness and insight. She attributed her heightened state to consumption of an energy drink prior to the appointment. She did not present with overt signs of a psychotic disorder. Her mood state was unusually intense but not necessarily reflective of a mood disorder.”

1. The Respondent’s psychiatric history was described by Dr A as follows:-

   “Ms Humphries was very defensive when her mental health was investigated. She denied experiencing mental difficulties prior to forming a relationship with Mr Shannon.

   Ms Humphries entirely attributed stress to Mr Shannon's abuse. She said she was subject to “rape and bashings for years” by Mr Shannon. Despite alleged persistent abuse, she denied experiencing mental problems in response; rather she said she was a “stronger person”.

   Ms Humphries became intensely angry when reflecting on Mr Shannon and engaged in a tirade of vitriol “I'm not going to put a show on for you - I'll stand up and fight - he's just a fucking idiot- I'm bloody fucking pissed off with him- I fucking hope the truth will come out and no one believes that fucking dickheads lies”.

   Ms Humphries denied a history of psychiatric treatment in any form. She also denied experiencing mental problems in any form.”

2. The Respondent’s relationship history with the Applicant was described by Dr A as follows:-

   “Ms Humphries said she was a “submissive happy-go-lucky person”. She said Mr Shannon continued to rape her through the pregnancy. She also referred to being raped through the relationship with none of the children planned.

   Ms Humphries said she was “fucking scared” of Mr Shannon and she remained scared. She said she was too scared to leave him, as he told her he would take the children from her and kill her.

   Ms Humphries said she was subject to mental abuse.

   Ms Humphries said she was subject to physical abuse, although she had not considered it physical abuse, as she was “held down”. She did not attend the police, as she did not think she would be believed.

   Ms Humphries said she was consistently scared for her life, but instead put on a “happy face”

   Ms Humphries said Mr Shannon had “schizophrenic tendencies” similar to that observed in her mother.

   Ms Humphries said she separated from Mr Shannon in 2009 for six months whilst he worked in the (omitted). She contacted a domestic violence advice line, and travelled to Western Australia with X and Y to get away from Mr Shannon. She only stayed in Western Australia, as Mr Shannon threatened to obtain a Recovery Order.

   Ms Humphries resumed a relationship with Mr Shannon, as she was “manipulated into believing he had changed and he knew I didn't want a broken family”.”

3. Dr A went on to say further:-

   “Ms Humphries was very critical of Mr Shannon as a parent. She could not offer any compliments other than to snidely remark that Mr Shannon could look like he had a really good relationship with the children if someone was watching him. She said Mr Shannon had never parented the children and only placed them in front of the television and given them confectionary. Ms Humphries then said the children had a “really good time and really bad time” and he “brainwashed” the children to believe “Mummy is a psycho”.”

4. The Respondent was asked by Dr A to comment on Y. That response was as follows:-

   “Ms Humphries said doctors said Y would likely experience problems such as learning difficulties, mental illness and autism.

   Ms Humphries said Y had delayed developmental milestones, including motor development and speech. She also said Y was delayed in make believe play and he also lacked empathy. She noted that Y had only started saying ‘I love you’ in 2015.

   Ms Humphries provided a discursive and markedly vague account of multiple attempts at intervention for Y. She became notably irritable and heightened emotionally when discussing Y’s alleged problems. She said about twenty different professionals had assessed Y.

   Ms Humphries attributed Y’s problems predominantly to an incident when Y bumped his head during a period of contact with Mr Shannon. She discovered a “big lump” on Y’s head, so she took him to a local hospital. Ms Humphries said the doctors were going to organize a brain MRI, but it did not happen.

   Ms Humphries said Y was subsequently aggressive following the head knock. She also noted Y being violent towards his siblings, sleep walking, lying and stealing as behaviours that emerged. Ms Humphries thought Y was “misguided”, as he received such poor paternal role modelling. She said Mr Shannon told Y it was OK to steal and break into houses.

   Ms Humphries said Y’s behaviour had shown signs of improvement until a fortnight ago when Mr Shannon told Y that Mr P was not his father.

   Ms Humphries was asked about the hospital presentation involving Y when she allegedly indicated she wanted to relinquish care. Ms Humphries again provided a discursive and meandering account of Y scaring X resulting in her taking the children to a hospital emergency department for help. Ms Humphries criticized the nurse for placing Y next to X, as X’s “hernia burst”. Ms Humphries said she did not receive any help and she noted that Y did not “play up” when under observation. Ms Humphries said the DHS “blasted the fuck out of the nurse”.”

5. Dr A’s observations of Y were as follows:-

   “Y presented as a very sweetly natured boy. He was relaxed and self-contained He maintained a very settled and calm manner. He maintained good eye contact and his interpersonal nature was pleasant and engaging.

   Y showed signs of a mild expressive language disorder, but this was not so pronounced to interfere with the interview. He was able to clearly and succinctly express himself. He was able to freely communicate that he enjoyed both parents equally, but he wanted slightly more time with his father given the relative imbalance in time.

   Y’s mood state was happy and stable. He did not present with any signs of irritability, agitation or aggression.

   Y’s presentation was not consistent with a pervasive developmental disorder such as Autism.”

   …

   “Y said he liked his mother, as she provided “kisses, cuddles and tickling in bed”. She also played games, read books and told funny jokes.

   Y said he did not like it when his mother sent him to his bedroom when he behaved badly. He admitted to “stealing” sometimes. He did not offer any further complaints about his mother.

   Y considered Mr P to be “nice and friendly”. He also said he was “amazing”, as he “loves us”. Y liked driving Mr P's ute vehicle and doing the “same things as Mummy”, like reading books. Y did not like Mr P telling him off.

   Y said he liked being with his father, as he was “fun and takes us to lots of places because we don't live with him”. Y listed fun places, including (omitted), (omitted), and (omitted). He said he always enjoyed being with his father, as he offered no times that he was unhappy.

   Y said he saw his father's “new friends”, seemingly referring to his father's girlfriends. He said his father's “first friend” was Ms M. Y liked Ms M's dog and his grandparent's dog.

   Y confirmed that he had contact with his father alternate weekends and half school holidays. Y said he would “maybe like to see Daddy every weekend and Mummy every school day because we don't get to see Dad a lot”.

   Y was asked to do some projective drawings. He did not want to do a free drawing. He was asked to draw his family and he included his mother, father, Mr P, Z, X and paternal grandparents.

   Y did not engage in good and bad dreams, as he said he never dreamed.”

6. Information obtained from (omitted) Regional Health clinical file notes as set out in Dr A’s report and accurately recorded are as follows:-

   a)7/9/2014 - Y presented with a haematoma post head injury- “Mother has not noticed any behaviour changes, concerned lack of supervision under father's care”. Impression - minor injury and haematoma.

   b)16/11/2014 - Y assessed and impression “anger management issues and early behaviour problems”.

   c)13/12/2014 - Refers to Ms Humphries stating ‘significant social/emotional stressors at home due to 6 year-old with behavioural issues - not coping at home, home is unsafe due to the behaviour of her son Y’. Ms Humphries said she was unwilling to take Y home. Ms Humphries observed to ignore and speak very rudely to Y compared with interactions with X. DHS notified in response to observations. Ms Humphries observed to be elevated in her behaviour, distressed and talking loudly and inappropriately to people on her mobile phone demanding DHS to remove child, as she does not want him. Ms Humphries also observed to fluctuate in behaviour, thanking staff then becoming sad and angry very quickly - recognized chance of Ms Humphries having mental health issues very high and requires mental health assessment. Mr P also noted to be offensive in his behaviour and attitude towards nursing staff.

7. Dr A’s opinion and recommendations as expressed in his report included the following:-

   a)The Applicant is a 36 year-old man. He reported an unremarkable development history. He does not have a formal psychiatric history. He was described by Dr A as follows:-

   ““Mr Shannon’s presentation was unremarkable. He engaged in a pleasant and calm manner. He was composed and well regulated. He appeared to be candid and forthcoming. His intellect was estimated to be in the low-normal range. He spoke eloquently. His mood state was normal. He did not present with overt signs of mental difficulties. He expressed concern for the children in Ms Humphries’ care, but he was not overly critical; rather he simply thought he could provide the children with greater stability.”

   b)The Respondent is a 29 year-old woman. Her mental state in the assessment was striking. She presented with signs of an unstable personality. She had a very intense and dramatic manner. She spoke loudly, although she mentioned she was deaf in one ear. Her mood state varied, including periods when she was irritable and angry. She became particularly intensely emotional when reflecting on Y’s recent contact with various professionals for behaviour issues and was barely able to contain her emotions. She seemed rather guarded when discussing elements of her developmental history. She appeared to provide an unreliable and possibly distorted and exaggerated account of her relationship with the Applicant. She appeared to lack self-awareness and insight into her dramatic presentation. Whilst it is most likely that the Respondent’s presentation is consistent with personality-based psychopathology, it is possible that it represents an underlying mood disorder but I consider this unlikely. It is important to note that Ms Humphries's mother has a history of major mental problems. According to the Applicant her father has also experienced major mental problems. He notably allegedly attempted suicide in 2014;

   c)The Respondent’s developmental history is marked by significant difficulties. Her parents' separated when she was a young child. Her mother raised her and she had regular contact with her father. Her mother had a major mental illness, diagnosed as schizophrenia but apparently recently altered to Post Traumatic Stress Disorder (PTSD). It would be very interesting and informative to learn more about her mother's mental problems. It would seem that the Respondent’s likely experienced a troubled childhood in the context of her mother's mental problems but the precise nature and quality of the difficulties she experienced whilst under her mother's care are unclear. The Respondent may have received poor parental modelling with the result being limitations in her own parental skills, possibly in evidence in respects to understanding and managing aspects of Y’s purported challenging behaviours. The Applicant reported that Ms Humphries' father also has schizophrenia but Ms Humphries denied such a history;

   d)The Respondent denied a formal psychiatric history and denied symptoms of mental difficulties but her presentation in this assessment, combined with observations recorded in the (omitted) Health File documents suggest probably personality-based problems within the unstable-borderline spectrum. Whilst she might not meet formal criteria for a personality disorder, aspects of her presentation in this assessment and parallel observations by medical and nursing staff at (omitted) Health Services, suggest she can be readily overwhelmed by stress with associated heightened and poorly regulated emotions and irrational and unreasonable decision making;

   e)The Respondent implied that the Applicant was psychopathic with no redeeming qualities. The Applicant implied that he struggled in the relationship, as the Respondent was difficult to communicate with and at times inflexible and irrational. It is quite likely that this is accurate. The Respondent notably had an affair in 2009, but dismissed this in a rather insouciant manner in this assessment. The Applicant’s violent response to learning about the affair is clearly very concerning and ultimately triggered the separation;

   f)The Respondent was particularly critical of the Applicant. She essentially portrayed him as a deplorable man devoid of any redeeming qualities. The Applicant was not complimentary of the Respondent but he was not critical and even sympathetic knowing she had a difficult childhood;

   g)It would appear the Respondent has lately experienced considerable problems understanding and managing Y’s behaviour, leading to her attributing his difficulties to organic problems such as infant viral meningitis and a minor head injury in 2014. Neither infant meningitis nor a minor head injury appears to be relevant. Y’s presentation in this assessment was unremarkable, or conversely remarkably normal. He presented as a sweet and gently mannered boy with a minor speech problem in need of further assessment and intervention.

   h)The Respondent took the extraordinary measure to relinquish care of Y at the local hospital in response to his behaviour issues. The observations from staff of the Respondent’s treatment of Y in the hospital are notable and presumably a reflection that Y has been identified and labelled as the troubled child;

   i)The Respondent’s personality based problems are likely to be difficult to treat. The Respondent lacks insight and is likely to resist being required to attend a mental health professional for further assessment and intervention. The Respondent’s GP is likely to be able to provide useful insights into the Respondent’s history and presentation and provide recommendations in regards to suitable local mental health professionals. The Respondent’s difficulty managing Y’s behaviour issues is similarly likely to be challenging to intervene. It is probably best that the local Child and Adolescent Mental Service be involved, as I gather has previously been recommended. Child-parent dyadic therapy is likely to be indicated and individual parenting therapy for the Respondent; and

   j)The Applicant does not present as obviously requiring mental health intervention. However, if the Respondent’s report is valid and accurate, he also has major personality based problems in need of intervention, as she had portrayed him as psychopathic.

8. The Court does not find the Applicant to have any major personality based problems in need of intervention on the evidence before it.

Family Report

1. In a Family Report prepared by Mr N dated 21 September 2015, while ambivalent about her preferred living arrangements, X nevertheless indicated a desire to primarily live with her father or at least to see him more often. Y consistently declared a preference to live with his father and Z’s views were not sought, as he was not interviewed in light of his young age and given the difficulties with his expressive language. The Court gives some weight to the expression of X and Y’s views, X having a degree of maturity for her age and Y having undergone a difficult and unusual time in respect of his mother’s (at times) inappropriate response to him. That is set out however in the context of Mr N’s view which is accepted that Y has not sufficient emotional maturity to give the expression of that view much weight.

2. Mr N set out the following in his Family Report. This evidence was not effectively disturbed or challenged in cross-examination by the Respondent and is accepted by the Court. It is reproduced in part hereafter to emphasize the significant weight given to this expert evidence by the Court and to ensure its accuracy. It was very persuasive evidence, similar to the expert evidence of Dr A. Its reference likewise to subpoenaed material introduced into evidence was accurate.

   “34. Ms Humphries was critical of Mr Shannon, both as a person and a parent. She claimed that Mr Shannon; was minimally involved in caring for the children during their relationship, generally lacks insight into the children’s emotional needs, and fails to appreciate the detrimental impact his aggression towards her has had on the children…

   36. Whilst she appreciates that Mr Shannon wants to be a “good father” and tries to be so, Ms Humphries is not confident about Mr Shannon’s overall parenting capacity or his ability to meet their emotional and physical needs. She explained that he has effectively only provided the primary care for the children on one occasion, as his parents have significantly assisted in this role at other times. She perceives that Mr Shannon; is incapable of caring for the children for sustained periods, does not have an appropriate understanding of their routines and special needs (e.g. food sensitivities), generally only provides minimal discipline for them, and does not know how to calm them down if they display tantrums. Although she understands the children love their father, she suggested that all of the children are scared of him, and in the case of X, is “petrified”.  When challenged by the writer in relation to the latter’s positive observations of the children’s interactions with their father when briefly seen with him on the day of assessment, Ms Humphries maintained that the children were “afraid” of their father even though they also loved him. Ms Humphries did not appear to appreciate the apparent inconsistency in her comments about the children’s relationship with their father.

   37. … The writer formed a view that Ms [Humphries’s] understanding of, and response about Y’s functioning were simplistic and generalised.

   …

   40. In respect to the circumstances under which Ms Humphries agreed to Y living with his father in January 2015, she claimed that at the time, Y was unsettled, unruly, and physically aggressive, and particularly towards his siblings. She further suggested that both she and the other children were afraid of Y’s aggression. Consequently, she asked Mr Shannon to care for Y for a period of one week. She believed it would benefit both Y and the other children if he was away from the family and with his father for such a period. Ms Humphries was adamant that there was no agreement for Y to remain with his father on a more permanent basis.

   …

   42. Case notes were made by medical and nursing staff from the ‘Emergency Department’ of ‘(omitted) Regional Health’ on 13 December 2014, when X was admitted with abdominal pains. These case notes suggested that Ms Humphries expressed concerns about Y’s behaviour and particularly his violence towards other family members and his ‘uncontrolled’ behaviour. She further explained to staff that she was worried he might “kill” her and his siblings. Ms Humphries apparently insisted that she was not coping with Y’s behaviour and wanted to contact DHHS so she could have him “removed”. She was also adamant with hospital staff that she did not want Y to come home with her and stated that she intended to leave him at the hospital.

   43. Medical staff were clearly concerned that Ms Humphries: acted in an agitated, ‘fluctuating’ and inconsistent manner; failed to engage appropriately with Y; emotionally rejected and was blaming of him throughout the process; and might ‘abandon’ him at the hospital. Concerns were also expressed about Mr P’s behaviour, as it was assessed he; “seem (ed) to make the children more fearful”, was difficult to communicate with, and at times acted in an “offensive” manner towards nursing staff. DHHS and Police were contacted because of their concerns at the time. It is understood from the case notes that DHHS had discussions with Ms Humphries at the hospital, which resulted in a plan being developed for Y to return home with his mother and for follow up to occur with DHHS staff.

   …

   49. Mr Shannon was highly critical of Ms Humphries’ personal and parental functioning and was insistent that he has access to considerable information about her that would substantiate his concerns. He was unable to provide any positive information about Ms Humphries, which would suggest to him the possibility that the children could, or should remain in her care. In summary, Mr Shannon expressed concerns about Ms Humphries’ responses to perceived difficulties with Y’s functioning, and believes she has fabricated and “concocted” information to professionals about Y. He understands that professionals expressed concerns about these responses and believe she requires professional assistance, as she fails to appreciate the adverse impact that her behaviour has had on the children. In his opinion, Ms Humphries has been “demonising Y.”

   50. Mr Shannon further expressed concerns about the level of care and nurture Ms Humphries provides for all of the children. To illustrate his concerns, Ms Shannon cited instances of; her frequently moving home, X attending 3 schools in 3 years, Y attending 2 schools in 2 years, and Z effectively not having attended kindergarten. From his perspective, Ms Humphries has historically been unstable in her living arrangements and relationships with others, and has had a tendency to remain in a relationship for only a brief period before moving on to another relationship. He is concerned about the impact this has had on the children.

   51. In addition, Mr Shannon claimed the children recently came into his care in dirty clothes and smelling of dirt and sweat. In the past, he alleged the children have also attended in dirty and torn clothing. He further asserted that X recently informed him that there is a “disgusting mess” in her mother’s bedroom, which necessitates her mother and Mr P having to sleep in the lounge. Mr Shannon also believes Ms Humphries has limited X’s social interactions with friends and has not allowed X to engage in sporting activities. He also perceives that the children are “scared” of their mother and are unable to have an opinion with her, as they are concerned she will harass and yell at them.

   52. Mr Shannon was sceptical of Ms Humphries’ self-reported heightened anxiety about him, as he claimed she has unnecessarily acted in a frightened manner towards him for the purpose of undermining him and defaming his character. In addition, Mr Shannon expressed concern that Ms Humphries continually fails to acknowledge his rights as a parent and is unable to effectively support the children’s relationships with him. From his perspective, Ms Humphries has “pushed me out of the children’s lives” and generally “demonises me”. He claimed that Ms Humphries withheld the children from him for a number of months during 2014.  He further claimed that Ms Humphries’ allegations about him breaking into her home in July 2014 (i.e. the alleged incident that precipitated her obtaining a 12 month Intervention Order against him), are false.

   53. In terms of family violence, Mr Shannon was clear that Ms Humphries has never been physically violent towards him, albeit he alleged she has been “mentally and verbally” abusive. Whilst he acknowledged that Ms Humphries previously obtained an Intervention Order against him, he explained that the reason she fled to Western Australia in 2009, was because she had had an affair with his best friend, and not because of any violence by him. Mr Shannon also claimed that Ms Humphries has generally fabricated stories about his violence towards her. He acknowledged however, that he was physically violent towards Ms Humphries in 2012, which involved “hitting her around the ear with an open hand” and “dragging her”. This incident resulted in Police being called. He expressed regret and remorse for this violence, and was clear that there was no excuse for his behaviour at the time. He was nevertheless insistent that the incident was the only time he had ever been physically violent towards her.

   54. … Mr Shannon perceives Ms Humphries to be a “compulsive liar” who has fabricated the allegations of him; threatening to kill her, raping her, and “bashing” her when she was pregnant with Y.

   …

   63. When interviewed during both assessments, X did not identify anything particularly problematic or concerning about her experience of her mother, and was clear she felt ‘safe’ with, and ‘close’ to her. She generally spoke positively about her mother and described her as someone who is “nice and friendly”, and someone with whom she feels “happy”, “because I always love my mum.”…

   64. … “Mr P” (a reference to Mr P) is “nice” and she does not have any ‘worries’ about being with him…

   65. In relation to Y’s behaviour and his relationship with their mother, X explained in March 2015, that Y “gets upset and cries when he does not get his own way. (He has a) Tantrum.” She also confirmed that in addition to being sent outside and receiving warnings for misbehaving, there have been instances when her mother and Mr P have “smacked” Y “hard” on the “bottom” with their hand. Whilst she claimed she has not been smacked, she acknowledged that her mother has also “smacked” Z.

   67. In terms of her father, X identified a range of positive experiences she has had with him, and did not express any particular concerns about his treatment of her and her siblings. She was insistent that like her mother, she feels ‘close’ to and ‘safe’ with her father. She acknowledged however, that the majority of her time spent with her father has also involved her parental grandparents. More specifically, X did not identify feeling concerned or apprehensive about being with her father, or that he she has “smacked” or acted in an aggressive manner towards her. She stated that she feels predominantly “happy” with her father and does not have any ‘worries’ when with him.

   …

   71. … When preferred living arrangements were subsequently discussed with her, X indicated a preference for living with her father ‘most of the time’. She explained that this would be because “I can see him more often and we can talk about more things. We don’t get to talk about things with mum.” X elaborated on these comments by stating that during school holidays, her mother works with “Mr P” and that a “baby-sitter” looks after them. X explained however, that she would feel “okay” about an arrangement whereby she was spending more time with her father whilst remaining in her mother’s primary care.

   72. [Y] presented as a friendly and quiet child, who did not display any concerning or oppositional behaviour during the writer’s various interviews with, and observations of him.

   …

   74. During the current assessment, Y reiterated feeling primarily “happy” with his mother, and was clear that he is no longer “smacked”, and that neither his mother nor Mr P are particularly angry towards him. Y did not express or exhibit any sense of feeling worried or scared about living with his mother…

   76. Y’s description of life with his father was essentially positive. There was nothing arising from his comments in either assessment or when he was observed with his father to suggest he was concerned or apprehensive about his father’s treatment of him. He insisted that his father has not “hurt” him and does not ‘smack’ him. During both assessments, Y initiated positive comments about his father and their relationship, and was keen to be seen with him. It was apparent to the writer that Y perceived his father to be a source of emotional support and nurture for him.

   …

   78. When interviewed during both assessments, Y was adamant that he wanted to primarily live with his father… Y was insistent that he would feel “sad” if not allowed to live primarily with his father.

   79. The Court has access to subpoenaed material from the ‘RCH’ and the ‘(omitted) Mental Health Service’ ((omitted)). The information suggested that Y was assessed by these services in December 2014. It was noted that no medical issues had been identified about Y’s functioning. The assessment from RCH indicated that Y presented as a pleasant, well behaved and engageable child who was able to comment on his life experiences. The assessment from (omitted) also indicated that Y; did not exhibit any delusions or pathological thoughts, enjoyed school, had many friends, and self-reported tantrums at his mother’s home whilst displaying no tantrums at school. Y also spoke positively about his relationship with his father and that he felt safe at home with his mother. The assessment noted that Y’s school was not concerned about his behaviour or functioning.

   80. Information from those schools attended by Y in 2014 and 2015 were predominantly positive about his functioning. Neither school identified any issues associated with his social or educational behaviour within the school setting. In contrast, each school noted positive behaviours and appropriately developed social competencies with peers and staff.

   …

   82. Z’s observed interactions with his mother and father clearly indicated that he felt comfortable with each parent. He intentionally included his mother in activities, as he did with his father. There were no indicators suggesting he was apprehensive or fearful of either parent.”

1. The following conclusions were drawn by Mr N in the Family Report:-

   86. … Irrespective of the causal factors, it was apparent that Mr Shannon and Ms Humphries have not been able to develop effective means of parental communication or an ability to consult with each other and mutually agree on parenting decisions relating to the children. On that basis, the writer believes these parents would not be able to effectively share (either equal or substantial) parental responsibility for the children…

   89. … Mr Shannon’s capacity to primarily care for the children on a sustained basis, and particularly during those periods when more intensive levels of care are required (e.g. school terms), has therefore not been tested. Any proposal for Mr Shannon to assume the primary care role with the children would also involve substantial changes to their social and educational networks. Based upon these matters, the writer believes that unless there are significant reasons for doing so, a change to the primary care arrangements for the children should be viewed with some caution.

   …

   94. These professional assessments raised a number of concerns for the writer about Ms Humphries’ capacity to accurately identify problematic behaviour in Y and to emotionally and physically support him if it was actually occurring. For example, her self-reporting in the absence of independent verification, may suggest she has either been associating behaviour with Y that does not actually exist, or has been interpreting his behaviour in a significantly negative manner. If this has occurred, the writer would be concerned that she has been emotionally ‘scapegoating’ Y and has been acting towards him in an emotionally ‘punitive’ and highly unhelpful and dramatic manner. Her observed behaviour by medical professionals would tend to confirm this view. The writer would suggest that such responses towards Y have the potential to be emotionally damaging for him, as they would suggest maternal rejection of him. In the event that the children remain in her primary care, the writer would suggest that Ms Humphries would benefit from attending a parenting program to assist her in responding more appropriately to Y in the future.

   …

   99. To varying degrees, Y and X expressed a preference to primarily live with their father. Of the two children, Y was the most insistent and consistent in his views. In terms of X, her preference was more measured and reserved. As previously noted, Z’s views were not sought. The writer believes that whilst X appeared emotionally mature enough for reasonable ‘weight’ to be attached to her expressed views, neither Y nor Z (and more particularly Z) displayed sufficient emotional maturity for this to occur. In addition, the writer did not assess that any of the children were sufficiently cognisant of the implications that a change to their primary care arrangements would have for them, and particularly in relation to school and social networks. On that basis, the writer does not believe that the expressed wishes of the children will, of themselves, provide significant assistance to the Court in determining the most appropriate care arrangements for them. Their views are nevertheless important and should be noted.

   100. On balance, Mr Shannon might therefore be viewed as being more capable of meeting the children’s emotional and physical needs. As already noted however, Mr Shannon’s parenting abilities remain largely untested.”

Further evidence of the Applicant

1. The evidence of the Applicant as set out in his Affidavit of Evidence in Chief filed on 18 September 2015 is accepted by the Court to the extent of that which appears below. There was no effective challenge to this evidence. With respect to the parenting abilities of the Applicant remaining largely untested as noted by Mr N, the Applicant concedes that to be so. Not because he has not sought to be considerably more engaged in the lives of the children but because as the Court finds has occurred, the Respondent has actively sought to exclude him and has failed to inform him of very significant matters over time going to the welfare of the children. In particular matters as to their education and health, including the mental health functioning as alleged by her of Y and the occurrence for X of appendicitis in relation to which the Applicant was not informed albeit he had the care of X not long after her appendix had been removed.

2. The Applicant has very significant concerns about the Respondent’s ability to provide safely and effectively for the children's care, welfare and development. These concerns have been borne out on the evidence, in particular the Respondents mental health and its impact upon the children; the Respondent’s poor application to the children’s health, nutrition and hygiene; the Respondent’s ongoing failure to acknowledge and support the Applicant’s parental role and its value for the children; the Respondent’s failure to advise and inform the Applicant of important issues impacting the children’s care and health; and the Respondent’s deliberate installation of third parties (two of her successive boyfriends) as father figures for the children.

3. The Court is satisfied the Applicant would not have sought to disrupt the children’s primary care arrangements with their mother unless the Applicant had very genuine fears about the Respondent’s capacity to manage the children's care effectively in the future. He acknowledged that the children love their mother very much and he did not seek to undermine their attachment to and love for her. Rather, he believed that he could provide more ably than the Respondent for the children’s stable and consistent care, whilst ensuring that the Respondent’s relationship with the children was properly supported and nurtured.

4. The Applicant learnt only by the inspection of subpoenaed documents, in particular:-

   a)the extent to which the Respondent alleged Y’s behaviour to have been extremely violent, obsessive and marked by lying, stealing and screaming for extended periods, at the end of 2014 and the start of 2015;

   b)the fact that the Respondent presented Y to at least three different health services in December 2014 complaining of his alleged extreme behavioural issues and seeking on each occasion to relinquish his care before then in January 2015, actually relinquishing him into the Applicant’s care;

   c)the concerns expressed by numerous medical staff and social workers about the Respondent’s presentation, behaviour and mental health during her engagement with those services; and

   d)the extent to which the Respondent’s partner Mr P had been noted as the children’s father, emergency contact and parent.

5. The subpoenaed documents in evidence in these proceedings confirmed that:

   a)on 12 December 2014, the Respondent presented Y at the Royal Children’s Hospital (RCH). She claimed Y had severe behaviour disturbance and he “lacked empathy and affection from a young age.”  The Respondent alleged that the child had smashed a glass sliding door at home, had explosive temper tantrums and stole food at night. The Respondent was supported - after several hours, to take the child home and an urgent referral to OHS and CAMHS was made. RCH Social workers Ms B and Ms J talked to the Respondent over several hours and noted: “She said she felt like harming herself because she was a bad mother .... She reported her mother has schizophrenia ...”  Assessment: “a very vulnerable situation... Mother provided inconsistent information, parenting of Y fluctuated from caring and responsive to providing info on his negative behaviours without consideration of discussing this in front of him .... Mother says child has lost weight due to parents' meal restricting .... Mo claims pt has issue with eating too much .... Mother couldn't name the GP's and psychiatrists that she claims the child has seen."

   b)on 13 December 2014, X was presented at (omitted) Health as she had been vomiting and had by then had diarrhoea for three days. After an examination it was determined that X could be sent home. However, whilst in the hospital, the Respondent again sought immediate assistance to relinquish Y’s care, telling staff she did not wish to take him home due to his extreme behaviours. After a period of time, where Y was consistently observed to be acting reasonably, a safety plan was devised whereby Mr P would assist the Respondent to care for Y. The Respondent was reported to have been “elevated, distressed, talking loudly and inappropriately” to Y and others whilst at hospital and reporting his uncontrolled, violent and intimidating behaviour.

   c)on 15 December, 2014, the Respondent attended at (omitted) Regional Health and reported that Y was out of control, throwing things, having “at least 200 tantrums a day” and that Y’s tantrums “last 6- 8 hours at home.” The Respondent reported that Y stopped acting out as soon as his Mother was out of room and did not behave in this manner for anyone else. Mr P’s attendance was noted, as was certain behaviours of his which were deemed inappropriate.

   d)on 16 December 2014, a home visit was conducted by Ms D from the mental health service. She had also obtained feedback from the school where Y was reported to have no issues at school.

   e)on 19 December 2014, Ms D received further feedback from school (Ms N) that there were no issues with Y at school but that the school had a difficult relationship with Mother who “storms up to school”.

   f)on 20 December 2014, a further triage assessment of Y was conducted at (omitted) Regional Health, due to his reported “outburst when visiting his sister” X who was then in hospital in respect of her appendix.

   g)on 18-21 December, 2014 X was admitted for surgery upon her perforated appendix. Records show that she was attended in hospital by her “parents”, being Mr P and the Respondent, including overnight.

   h)on 13 January 2015 GCAMHS made a call to DHHS, which is noted as follows:

   ... “The Mother has arranged for Y to go and stay with his father and this is where he currently is .... mother's account of child's behaviour appears highly exaggerated ..... unknown whether there is any truth to what Mother reported ..... Psychiatrist said Y is a delightful little boy who has a view of himself being naughty .... the Mother appears to be scapegoating Y. She has no personal insight into the impact upon Y ..... The Mother has mental health issues and this is impacting upon Y. The Mother believes Y is the problem and he needs to be fixed.”

   i)on 16 January 2015, DHHS records its conversation with the Applicant. The note is by Ms R. “There are no immediate or significant concerns for children at this time which warrant further CP intervention.”

   j)on 23 January 2015, the DHS Case Closure was endorsed by the Area Manager.

6. The Respondent’s failure to inform the Applicant of the many matters above placed the children at risk both physically and emotionally. The Respondent continues to have no insight with respect to that conclusion which she rejects.

Evidence of Ms B

1. Ms B is the paternal grandmother of the children. She and her husband are aged in their 60s. They are long-time residents of (omitted). Both have a close and loving relationship with the children. They were willing to continue to engage with the Respondent following the parties’ separation in the promotion of the best interests of the children but the Respondent over time effectively shut them out.

2. Ms B is semi-retired. She works casually on a volunteer basis as a (omitted) with the (employer omitted). Her work is in the area of (omitted) and her roles included (omitted). These valuable community services volunteered by her do not, however, and have not, interfered with her ability to be available to assist her son in the past and now her son and Ms Y, in the care of the children if required.

3. Ms B’s evidence was that whilst the children have from time to time and since the separation of the parents, stayed in their grandparents’ house in (omitted) with their father, it has been “unequivocally” their father who has cared for the children. They have supported their son in that role. The Applicant says of his parents that they in return have been “great parents to me, who are still here to this day supporting me all the way through this court case and they will still be there in another 10 or 15 years’ time supporting me…”

4. In 2014, the Applicant had little or no time spent with the children for a period of 6 or 7 months. This was as a result of the Respondent’s deliberate refusal to make them available and did not promote the children’s best interests. This was a difficult time for the Applicant of course and for the grandparents who understandably missed the children. They did not however seek to intervene in the parental dispute. They remained in the background but supportive of the relationship between the children and each of their parents as they had done since the birth of X. In January 2015, when the Respondent relinquished care of the child Y for a time, he lived with his grandparents in their home in (omitted) while his father worked during the week. They cared for Y and emotionally and physically support Y and his father. The Applicant then cared for Y on evenings during the week when for the most part he made the trip from Melbourne to (omitted) after his day’s work, and on the weekends. Ms B’s observations of the Applicant’s relationship with the children is that it is a “loving, honest and very, very supportive” relationship. She has never observed any of the children to be afraid of their father as alleged by the Respondent. She has seen the children return from activities engaged in with their father in the period following separation and gave evidence that “they come home relaxed, excited and full of life.”

5. Counsel for the Independent Children’s Lawyer asked Ms B whether she could give any evidence as to her observation of Ms Y and the children’s relationship and that of her son A and the children. Ms B’s evidence was:-

   “Ms B: When I have observed Ms Y, X, Y and Z together I believe they have a bonded relationship. It is natural. It is caring, and it’s very kind.

   [Counsel for Independent Children’s Lawyer]: And … have you met Ms Y’s son, A?

   Ms B: Yes, I have met A.

   [Counsel for Independent Children’s Lawyer]: And, again, from your observation what do you say is the relationship between A and the other three children?

   Ms Shannon: That is a developing relationship. I’m not going to say it is a fully bonded relationship because that relationship is still growing and new, but when I see the children playing A is very excited to see the three children. Y, X and Z help A, particularly Y – Y loves helping A build lego and all sorts of boys’ things outside, the same as he does his own little brother. A and Z get down on the floor and just play to their heart’s content. I don’t see any competitiveness, other than just normal sibling competitiveness. I don’t see any great arguments or any – I have never witnessed anything like that.”

6. Ms Shannon will continue to endeavour to be an involved and supportive grandmother no matter where the children reside. The children’s relationship with her is loving, solid and important for the participants.

Evidence of Ms Y

1. Ms Y has been the Applicant’s partner for approximately one year. They are in a committed relationship. Ms Y is aged 36 years and the mother of A who shall turn five in (omitted) 2016. Ms Y and A’s father have an amicable co-parenting arrangement in respect of A. Ms Y has spent time with the children and the Applicant and observes the Applicant to care for the children in a consistent and loving way. She has also observed a loving relationship between the children and their father. She herself has a good relationship with the children. Ms Y works part-time being three days a week. She works as a (occupation omitted). She has worked in the (omitted) sector for six years. She is currently engaged in particular as an (omitted) and her place of work is in (omitted). She enjoys her work.

2. Ms Y was an impressive witness whose evidence the Court accepts. She acknowledged the Respondent’s important role in the life of the children regardless of the outcome of these proceedings. She described she and the father as keeping their parental responsibilities separate to ensure fairness for all the children in their care and to be “respectful of the children’s other parents”. Nevertheless she is in agreement with the Applicant that they will share the care giving of the children in the household to some extent. She does not work on two days a week and will, if necessary, assist the Applicant in his care of the children on those days. That care will include the attendance of Z at kindergarten over four days in each week. The Court is satisfied that Ms Y will support the Applicant ably and consistently in his primary care of the children, and that she will also be positive about, and inclusive of, the children’s mother. That is a relationship that she will join the Applicant in supporting.

Mr P

1. The Respondent’s relationship with Mr P commenced in (omitted) 2013.  They intend to marry although they gave differing and unconvincing evidence as to the date on which that was to occur.

2. On 9 January 2015, the Applicant obtained an Intervention Order (which was uncontested) against Mr P. The Applicant did so on the basis of Mr P’s extremely aggressive and angry contact with the Applicant in the latter part of 2014.

3. In his Affidavit filed in the Court on 10 March 2015, Mr P declared his financial and emotional support for the Respondent and described himself as her “boyfriend”. In X’s health record from (omitted) Regional Health, Mr P is recorded as X’s dad, parent, father; and as husband to the Respondent. The children's school report from (omitted) Primary School was addressed to Mr P and not to the Applicant. Mr P was listed on the enrolment form after the Respondent as a contact person in the event an emergency should occur in relation to the children.

4. During the Respondent’s relationship with Mr S, the Respondent told the children that Mr S was their “new daddy” and that they had to call Mr S “Daddy”. Y often told the Applicant that “Mum says you're not a real dad. You have to learn to be a real dad.” X often told the Applicant that “Mum said, “You are a bad evil man.” Mr S was listed as the children's next of kin at the (omitted) hospital.

5. In the Applicant’s supplementary trial affidavit the following evidence was placed before the Court. Mr P was cross-examined as to these matters and he made many admissions with respect thereto. Where he was hesitant to confirm matters the Court prefers the evidence of the Applicant. The Applicant deposed relevantly as follows:-

   “21. On 23 November 2015, I advised my lawyer that I had not returned the children to Ms Humphries… there had been a lot of fighting, between Ms S and Ms Humphries and between Ms Humphries and Mr P.

   22. On 27 November 2015, the child Y told me that Mr P and Ms Humphries had destroyed Y’s bike with an axe. This occurred in front of Y by way of punishment for some misdemeanour. [The Court accepts this in fact occurred.]

   …

   24. On 30 November 2016 I am advised and verily believe that Ms Humphries contacted my lawyer by telephone and said that she wanted the children back. She said she intended to keep living with Mr P, who is 'wonderful' and currently happily residing with her at (omitted).

   …

   36. On 10 February 2016, I had an unexpected text message from Mr P telling me that “I don't mean to worry you but I believe your kids are in danger.” I rang and spoke to Mr P immediately…

   “I asked him what was going on

   Mr P said- She has lost it mate, she is off her head. I'm not allowed around there ... only been twice this week.

   She has got some druggo friend in the house - she has lent this person her car .... she is driving it now. She doesn't even know this person, she has only just met her - only known her about two weeks.

   Our relationship is done - She is manipulating, malicious and tells lies. She always has to stir things up, make trouble out of nothing.

   - In the beginning I loved her, but after she lost the baby and had a hysterectomy she just flipped and changed, became a psycho. I twigged a long time ago she was a psycho - I've stuck in there for the past 14 months for the kids. I would have left her- didn't want to leave the kids there ... I have done all the cooking, taking the kids to school, paid all the bills.

   Mr P disclosed that the house is not his - Ms Humphries rents it. “She has led people to believe it's mine like she has led people to believe we are married.” The place is like a tip, throws everything she burns (food) out the back door, the kitchen is like a compost heap. All her mail and paper work is just stuffed into plastic bags - I spent three hours trying to sort it all out.. .to file it.. ... she is gone in the head.

   - Mate she's got 10 email addresses and I don't know how many phones .. I lost count how many f …ing phones she has got ...

   Mr P then said when she took off with the kids before Christmas I found out she had run up a ten thousand dollar credit card bill in my name, that’s why the f…ing problem blew up. I’m broke… going bankrupt…

   Mr P then said - She knows she is going to lose the kids ... she is frightened of losing the kids .... she is spiteful and just sucks every one dry .. she does not really want the kids.

   Mr P said: When Z comes and tells me that daddy is hitting me, I know he is telling lies, Ms Humphries has put him up to say this .. so I say to him (Z) that's not right is it.. .Z says no ..

   ... Ms Humphries just wants to blame everyone else for her problems.. the amount of computers, phones I cant use any of them, she just keeps changing passwords ....I cant access anything ... I am locked out.

   Now she is telling other people that I bash her…”

   …

   38. On the 12th of February 2016, I am advised and verily believe that my lawyer spoke by telephone to Mr P, who had told me that he was keen to speak to my lawyer. I am advised and verily believe that Mr P told my lawyer:

   38.1. His relationship with Ms Humphries was far longer than it should have been and he is not getting back with her. He had just seen her in the street and said “she’s not the person I knew. She's a stranger.”

   38.2. The relationship ended “for good last Thursday, but it’s been bad for a while.”

   38.3. The “druggo” did not end up moving in with Ms Humphries but has been driving Ms Humphries’s car since Mr P recently returned the car to Ms Humphries. This “sheila is bad news, now Ms Humphries’s best mates with her.”

   38.4. Ms Humphries “has got two personalities: she is a fantastic mother sometimes, but then she changes and she’s completely just another person.”

   38.5. Mr P is not able to say whether the kids are seriously at risk in the care of Ms Humphries: she feeds them and gets them to school…

   38.6. He just doesn’t know what to believe anymore: she constantly lies and keeps secrets; he is being accused of all the things that Ms Humphries’s accused Mr Shannon of doing. He said “she just lies and lies and I never know what stories are true.”

   38.7. He is hearing rumours in the community that Ms Humphries has alleged that he “knocks Ms Humphries around” and this is not true. (Mr P said that he has never laid a hand on a woman or a child and never would as his own mother was knocked around when he was a kid…)

   38.8. He said that he stayed longer than he should have for the kids and he said “I love those kids. I would never hurt them”

   38.9. He is “best of mates with Z”. He had to talk to Z about whether Mr Shannon had hit Z. Mr P said that he explored this with Z who said that it wasn’t true.

   38.10. “Ms Humphries can manipulate the kids really quickly; she tries to wind them up. Ms Humphries has turned the older two against me… They wouldn’t even come out of the house when I went there a few days ago. They wouldn’t even say hello to me and I was very close to those kids… she’s poisoned them that quick.”

   38.11 Ms Humphries has legitimately lost her licence. She lost it speeding after dropping the children to changeover.

   38.12. Their relationship got really bad when he didn’t want to driver her to changeovers when he is being accused of doing all these things that he didn’t do. She went by bus once to changeover and then got a cab back, which she charged to Mr P’s credit card.

   38.14. He hasn’t lived with Ms Humphries for 3-4months. Before that, he hadn’t left her side for 3-4 months.”

1. The Respondent denied the allegation made by Mr P save to some extent the state of the house which she struggles with. The Respondent gave as an explanation for Mr P’s evidence that he had been very unwell. That in fact he had suffered from cancer in relation to which he is now cured. Mr P’s evidence was that he has never had cancer. His only health difficulty in recent times has been a collapsed lung. He denied ever telling the Respondent he had cancer. This was another instance of the Respondent fabricating claims and when put to her that was the case she failed to resile from her claims made.

2. Despite the Applicant, over a considerable period of time, paying significant amounts of child support to the Respondent the children on occasion did not have their basic needs met by the Respondent. The Applicant’s evidence as to this, which is accepted, was that X told him she was often cold and hungry in her bed at night and had been in that week cold at school. Her teacher took her to the lost property room and provided her with a warm uniform. The Applicant contacted the school to thank the school for their assistance but also to clarify the circumstances. The Applicant was advised by the school that X had been sent to school with inadequate clothing and was indeed given warm clothing on the day.

3. The Court is required to make orders that are in the best interests of the children. The Court in making that assessment must consider the matters as set out in s.60CC(2) and (3) of the Act. In respect of the primary considerations set out in s.60CC(2) of the Act the Court is mindful that there is a benefit to the children in having a relationship with each of their parents. The children love both parents and need both in their lives. The difficulty in this case is that whilst the children are in their mother’s care in a residence arrangement, they need protection from psychological harm and being exposed to neglect, both being factors the Court is to give greater weight to as a primary consideration. The cause of those concerns is squarely the Respondent’s mental health functioning and her concerted efforts over a long period to eradicate the children’s father from their lives.

4. The additional considerations as set out in s.60CC(3) of the Act are already canvassed in these reasons. Additionally, the Court has considered s.60CC(3)(d)(i) of the Act as the orders made by the Court will change the children’s circumstances and separate them from their mother in the sense of she being the parent with whom the children reside. The children will miss their mother and X in particular may feel sorry for her mother. The Respondent will be unlikely to hide her distress and anger from the children. Prevailing however will be orders that are in the children’s best interests as all their emotional, physical and financial needs can be met well by their father. Their father also, and very importantly, has an evidenced capacity to include the Respondent in the lives of the children and promote her relationship with them. The Respondent has no such similar capacity. Consistency in approach toward the care of the children as able to be provided by the Applicant will also assist in the intellectual and emotional development of the children absent any distraction because their basic physical needs are not being met. The children need however to spend regular time with their mother and should the mother move to the (omitted) that will no doubt be beneficial for the children and make their mother more available to them.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 13 September 2016