SHARMA and SHARMA

[2006] FamCA 1363

FAMILY COURT OF AUSTRALIA

SHARMA & SHARMA [2006] FamCA 1363

FAMILY LAW – CHILDREN – Where children have lived with the mother for eight years post separation  - Where mother makes serious allegations concerning father’s behaviour with children – Following an eight day hearing in 2004 the Court orders father has unsupervised contact – Court finds mother engaged in a quest to alienate children from the father – After hearing mother makes further allegations – Mother takes steps hoping father will be charged and seeks AVO in attempt to thwart 2004 contact orders – Where Court is satisfied mother has continued quest to harm children’s relationship with father – Children’s views strongly favour living with the mother – Other than in their relationship with the father the mother is a competent and loving parent – Ordering children to live full time with the father will emotionally traumatic – Equal time will be emotionally distressing in the short term – Equal time provides balance between children’s views and need to ensure they have meaningful relationships with both parents – Children to live with parents on two week alternating cycles

Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 60 CC(1), ss 60CC(2)(a), (b), s 60CC(3), ss 60CC(3)(a), (b), (d) s 60CC(4), s 60CG, s 61B, s 61C(1), s 61DA(2), s 61DB, s 62B, s 64A, s 65AA, s 65DA(2), s 65DAA, s 65DAA(3), s 65DAA(5), ss 66(3)(c), (f), (i), ss 66C(4A)

Melbourne Ports Authority v Anshun (1981) 147 CLR 589
Rice & Asplund (1979) FLC 90-725
Jones v Dunkel (1959) 101 CLR 298
R v R Children’s Wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598

CW v W (2006) FamCA 387

APPLICANT: MR SHARMA

RESPONDENT: MRS SHARMA

FILE NUMBER: (P)NCF 4460 of 1999

DATE DELIVERED: 4 December 2006

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 25, 26, 27 & 28 September 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Austin

SOLICITOR FOR THE APPLICANT: Baker Love Lawyers

COUNSEL FOR THE RESPONDENT: Ms P Carr

SOLICITOR FOR THE RESPONDENT: James Papas Solicitors

COUNSEL FOR INDEPENDENT CHILREN’S LAWYER:
Mr P Hartley

INDEPENDENT CHILDREN’S LAWYER: Denise Clarke Solicitors

Orders

1. Upon order 3 below becoming operative, orders 2, 3,4,5,6,7,8,9 and 10 made by this court on 30 April 2004 are discharged.

2. That the parties have equal shared responsibility for the children C born in April 1995 and R born in October 1999.

3. That the children spend equal time with each of the parties, on a two weekly cycle, with the father for a period of two weeks commencing on the first Monday of the 2006/2007 Christmas school holidays, and thereafter with the mother for a period of two weeks commencing at 12.00 noon on the second Monday thereafter, alternating in the same pattern thereafter.

4. During the three mid year school holidays, the children will live with each party for one half of the holidays.  In the event order 3 above operates so that the children are due to commence living with the other parent at the start of the holidays, changeover is delayed until the Monday in the middle of the school holidays.

5. That during a school term changeover will commence at the end of school on Monday.

6. If changeover does not take place on a school day, it will be effected at 12.00 noon on the Monday.  For this purpose the party whose care the children are leaving will deliver the children to the other parties home.

7. Notwithstanding any order to the contrary, the children will live with the mother from 3.00 pm Christmas Day until 6.00 pm Boxing Day in 2006 and in each alternate year thereafter.

8. Notwithstanding any provision in these orders to the contrary, the children will live with the father from 3.00 pm Christmas Day until 6.00 pm Boxing Day in 2007 and each alternate year thereafter.

9. Notwithstanding any provision in these orders to the contrary, the children will live with the father from after school Friday until the start of school Monday on the Father’s Day weekend.

10. Notwithstanding any provision in these orders to the contrary, the children will live with the mother from after school Friday until the start of school Monday on the Mother’s Day weekend.

11. Both parties are restrained from taking the children or either of them to any counsellor (whether qualified or unqualified), agency or health professional for the purpose of counselling, investigation or therapy without the prior written consent of the other parent or the leave of the court.

12. Unless invited by the school to attend, while the children are in the other parties care, the party who does not then have the children living with him or her is restrained from attending at any school which either of the children may attend except for the purpose of attending functions to which parents are invited by the school (including but not limited to parent/teacher interviews), or with the written consent of the other party.

13. That each party is to advise the other party, in writing if practicable, at least four days prior to any consultation that either child has with any specialist medical practitioner and in the event that there is insufficient time to provide the other parent with written notice, each party is to ensure that the other is advised as soon as possible but not later than forty-eight hours after any such consultation.

14. Each party is to authorise any specialist medical practitioner to provide the other party, upon his or her request, with details of medical advice or treatment provided by that practitioner.

15. That each party is to advise the other party of any attendance at a hospital or admission to a hospital in relation to either of the children, as soon as practicable but not later than forty-eight hours, after the presentation to the hospital, and is to authorise such hospital to provide the other party, upon his or her request, with details of medical advice or treatment provided by that hospital.

16. Both parties shall as soon as possible commence a post separation parenting program (aimed at improving communication between them) as nominated by the Independent Children’s Lawyer.

17. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

18. Excluding any costs applications, all outstanding applications are dismissed.

19. In the event any party seeks to make a costs application, this application must be listed by arrangement with my Associate no later than 20 December 2006.

20. That any party who issued subpoena for production of documents shall uplift those documents within 14 days and return them to their owner.

21. That unless an appeal is lodged all exhibits shall be returned to their owner.

FAMILY COURT OF AUSTRALIA AT  

FILE NUMBER:

MR SHARMA

Applicant

And

MRS SHARMA

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These are parenting proceedings concerning the parties’ two youngest children, C born in April 1995 and R born in October 1999.  The father wishes to change the children’s living arrangements so that in future they live with live him.  The mother believes the existing arrangements are appropriate.

2. The parties separated in March 1998, before R was born. At separation the mother, B (the parties’ elder child) and C moved to BB. Although separated, the parties’ relationship continued and R was born approximately 19 months later. Thereafter, the father had liberal contact with the children. In about May 2002 the father started to have difficulty arranging contact. In the middle of May 2002 the mother advised him that he could only see the children in the presence of another adult. Unable to resolve the impasse on 28 June 2002 the father commenced proceedings in this court for contact.

3. Commencing 8 March 2004 Justice Flohm conducted an eight day hearing concerning the father’s contact with the children. Significant time was devoted the mothers allegations about the father and his mother’s behaviour towards the children.

4. On 30 April 2004 her Honour made detailed orders which, simply put, established regular overnight contact between the children and the father. Contrary to the mother’s stance that the father should only have limited supervised contact, her Honour ordered regular unsupervised contact.  Her Honour viewed the mother’s involvement of the children in various interviews and investigations as emotionally abusive.  Having rejected the notion of supervised contact, her Honour concluded that the mother had set out to alienate the children from their father and paternal grandmother.  The Court notes that the mother is of the opinion that any contact between the children and their father “disrupts our entire life”.

5. Within only months of the final orders, the mother informed police of further allegations of inappropriate conduct by the father and involved the children in fresh apprehended violence proceedings, and JIRT interviews. The day after he was served with a fresh AVO (“AVO”) complaint and summons, the father commenced these proceedings.  His central premise is that far from accepting the outcome of the March 2004 hearing, sadly the mother has continued her campaign to make it as difficult as she possibly can for him to maintain a good relationship with the children.

The Application

1. The father filed an Application for Final Orders on 14 December 2004. In essence, he asks that the children live with him. At the beginning of the hearing, the father’s counsel submitted a Minute of Order[1] which identifies the orders sought at trial. The orders sought by the father are set out below:

   1.That all previous parenting orders made in relation to [C], born [in] April 1995 and [R],      born [in] October 1999, (“the children”) be discharged.

   2.That the parties have equal shared parental responsibility for the children.

   3.That the  children live with the father.

   i)[1] Exhibit “A”

   4.        That the children spend time with the mother defined as follows:

   1.1each alternate weekend from end of school Friday until start of school Monday.

   1.2one half of each holidays, to be the first half unless the parties agree otherwise; and

   1.3on Mother’s Day if not on a weekend when the mother is spending time with the children pursuant to these orders.

   1.4that notwithstanding any previous provision in these orders, that the children live with the father from 3:00 pm Christmas Day until 6:00 pm Boxing Day each year.

   1.5that upon the commencement of the children spending time with the mother, the mother be restrained from taking the children to any police station, Department of Community Services office or representatives of any offices, JIRT or any other Government or non-government institutions where the children might be subject to an interview, without the written consent of the father or the leave of the Court.

   Or in the alternative:

   1.6That the children spend equal time with each of the parties, on a 2 weekly cycle, with the father for a period of 2 weeks commencing after school on the Monday following the date of these orders and thereafter with the mother for a period of 2 weeks commencing after school on the third Monday following the date of these orders.

2. The mother filed a Response on 15 February 2005. The orders sought are:

   1.That the applicant father’s Application for Final Orders be dismissed for the reasons made out in the respondent mother’s affidavit sworn 15 February 2005.

   2.That the applicant father pay the respondent mother’s costs of and incidental to these proceedings.

3. In the event the father’s application succeeds, the mother wishes to spend as much time with the children as possible. This includes spending time with the children overnight during the school week and, if necessary, caring for the children when the father is working overnight.

Short History

1. The father was born in August 1966.

2. The mother was born in September 1966.

3. The parties commenced cohabitation in about 1989 and were married in August 1993.

4. The parties eldest child, B was born in November 1986.  B is over 18 and lives independently from his parents.

5. C was born on 22 April 1995.

6. The parties separated in March 1998.

7. R was born in October 1999.

8. On 2 October 2001 the parties registered a parenting plan.[2]  Essentially it provided that the parties are jointly responsible for the children’s long term welfare, care and development, that the children live with the mother and that the father have contact with the children as agreed between the parties. In addition, the agreement provided:-

   ·That the father not consume alcohol or take any drug for a period of 12 hours prior to contact or during contact with the children.

   ·That the father ensures that the children are not in the company of persons consuming alcohol or taking drugs.

   ·That the father ensure that the children do not enter the home of any member of the father’s family except for a period of two hours on the first Saturday of each month and that the father supervise the children at all times while in the company of the father’s family members during that period of two hours.

   ·That apart from the period referred to in the above order the father ensure that during all contact periods the children do not have contact with the father’s family members.

   ii)[2] Annexure “A” Mother’s affidavit

9. In response to the father’s application for contact, on 20 August 2002 the parties agreed upon interim orders which summarised provided:-

   ·Suspended the parenting plan.

   ·Allowed the father supervised contact at the RB Contact Centre.

   ·Allowed the father supervised contact at her mother’s home.

   ·Facilitated telephone contact.

   ·Ancillary orders supporting contact at a contact service.[3]

   iii)[3] Annexure “B” Mother’s affidavit

10. On 21 November 2002 the August 2002 interim orders were discharged. Pending further order, the court ordered that the father have regular unsupervised contact from 10.00 am until 3.00 pm. These orders included conditions which noted the father’s undertaking:-

    ·Not to kiss the children so as to leave any bruising or mark on the children.

    ·Not to hug the children excessively or touch the children in any way so as to cause bruising.

    ·Not to bite the children.

    ·Not to touch the children on their private parts.

    ·Not to touch the children on their breasts.[4]

    iv)[4] Annexure “C” Mother’s affidavit

11. The father’s contact with the children was further adjusted by interim orders made 11 November 2003. That day, the Court ordered that the father’s contact be supervised by “one or more of [Ms Y], sister [E] or a person called [BD] or such other person upon whom the parties and the child representative can agreed.” [5]

    v)[5] Annexure “E” Mother’s affidavit

12. On 30 April 2004 Justice Flohm made the following orders:[6]

    vi)[6] Annexure “F” Mother’s affidavit

    1.That all previous parenting orders in relation to [C] born [in] April 1995 and [R] born [in] October 1999 (“the children”) be vacated.

    2.That […] (“the father”) and […] (“the mother”) are each to have responsibility for the long term care, welfare and development of the children.

    3.That the children are to reside with the mother who is to have responsibility for the day to day care, welfare and development of the children whilst they are in her care.

    4.That the father is to have contact with the children as follows:

    (a)For the period of six calendar months from the date of these orders, from 9.00 am to 5.00 pm on each day on which the father is not rostered to work provided that such days fall on a non-school day, and in the event that such days fall on a school day, from 3.30 pm to 5.20 pm;

    (b)Upon the expiration of the six calendar months referred to in order 4(a) hereof:

(i)from 9.00 am to 5.00 pm on each non-school day on which the father is not rostered to work, and in the event that the father is not rostered to work on two consecutive days, from 9.00 am on the first day until 5.00 pm on the second day;

(ii)from 3.30 pm to 5.30 pm on each school day when the father is not rostered to work

(iii)that the contact provide for in order 4(b)(i) and (ii) hereof is limited to no more than five occasions of contact in any calendar month;

(iv)that the contact provided for in order 4(b)(i) hereof is limited to the extent that overnight contact occur only at times when the following contact day is a non-school day.

(c)That for the purposes of determining such contact, the father is to provide to the mother a copy of his work roster for each month at least two weeks in advance of the relevant month, and the days thereon marked “R” or “ADO” are the days on which the father is not rostered to work for the purposes of orders 4(a) and 4(b)(i) and (ii) hereof, and in relation to the contact which is to take place during May 2004, the father is to provide to the mother’s solicitor a copy of his work roster for that month no later than 12.00 noon on 3 May 2004.

(d)The father is to have telephone contact with the children by telephoning the children at their home on each Tuesday between 7.00 pm and 7.30 pm and to facilitate such telephone contact the mother is to ensure at all times the availability of a landline telephone at her home and is to keep the father advised at all times of that telephone number and the mother is to do all things necessary to ensure that the children are available to receive the father’s telephone call as provided for herein and in the event that telephone contact does not, for reasons beyond the control of the mother, occur as provided for herein, then telephone contact is to occur on the following night between 7.00 pm and 7.30 pm.

(e)Upon the commencement of the school year in 2005 the father is to have school holiday contact as follows PROVIDED THAT the father is not working during such periods:

(i)for the second half of each December/January school holidays, from 9.00 am on the day closest to the midpoint of those holidays until 5.00 pm two days prior to the children recommencing school;

(ii)for the first half of each of the terms 1, 2 and 3 school holidays, from the conclusion of school on the last day of the school term until 5.00 pm on the second Saturday of the holidays.

(f)The father is to have contact with the children each Christmas from 3.00 pm Christmas Day until 6.00 pm Boxing Day.

(g)The father is to have contact with the children at such other times as  may be agreed between the parties.

(h)The father to have responsibility for the day to day care, welfare and development of the children whilst they are in his care.

5.That prior to overnight contact occurring the father is to ensure that the children have their own beds.

6.That contact is to be implemented as follows:

(a)Subject to Order 5(d) hereof, whilst the mother is residing in the [Local] City Council area, the father is to collect the children from outside the mother’s home at the commencement of contact and is to return the children to that location at the conclusion of contact.

(b)Subject to Order 5(d) hereof, in the event that the mother is residing outside the [Local] City Council area, the father is to collect the children from outside the mother’s home at the commencement of contact and the mother is to collect the children from outside the father’s home at the conclusion of contact.

(c)That the parent from whom the children are being collected is to remain inside his/her home during contact changeover.

(d)That for the purpose of school holiday contact at the end of terms 1, 2 and 3 and contact occurring on a school day, the father is to collect the children from school at the commencement of contact.

7.That the mother is hereby restrained from taking the children or either of them to any counsellor (whether qualified or unqualified), or to a health professional for the purpose of counselling, or to any organisation for the purpose of counselling, without the prior written consent of the father or the leave of the court.

8.That the father is hereby restrained from attending at any school or pre-school at which either of the children may attend from time to time except for the purpose of attending functions to which parents are invited by the school or pre-school (including but not limited to parent/teacher interviews), or with the written consent of the mother.

9.That the mother is to advise the father, in writing if practicable, at least four days prior to any consultation that either child has with any specialist medical practitioner and in the event that there is insufficient time to provide the father with written notice, the mother is to ensure that the father is advised as soon as possible but not later than forty-eight hours after any such consultation, and the mother is to authorise any specialist medical practitioner to provide the father, upon his request, with details of medical advice or treatment provided by that practitioner.

10.That the mother is to advise the father of any attendance at a hospital or admission to a hospital in relation to either of the children, as soon as practicable but not later than forty-eight hours, after the presentation to the hospital, and is to authorise such hospital to provide the father, upon his request, with details of medical advice or treatment provided by that hospital.

11.That both the mother and the father are hereby restrained from video-taping, audio-taping or photographing the children during contact changeover.

12.That within 7 days of the date of these orders the mother is to sign all documents and do all acts necessary to authorise the school at which the children may from time to time attend:

(a)to furnish the father with copies of all school reports, notices and advices concerning the children, any activity involving the children and any school activities or functions which parents may attend;

(b)to make available to the father order forms for school photographs of the children.

13.That for the period of six calendar months referred to in order 4(a) hereof, the father is restrained from bringing the children into contact with […](“the paternal grandmother”), and is restrained from taking the children to the paternal grandmother’s home.

14.That upon the commencement of contact pursuant to order 4(b) hereof the father is to ensure that, for a further period of six months, the children’s contact with the paternal grandmother is restricted to no more than 3 hours on each occasion and that such contact occurs in the father’s presence.

15.That both the mother and the father are restrained from denigrating the other parent and/or members of the other parent’s family in the presence or hearing of the children or either of them, and are restrained from permitting any third party to do so.

16.BY CONSENT, that within 14 days of the date of these orders, [The paternal grandmother]is to file in these proceedings a written undertaking that she will not denigrate the mother or members of the mother’s family in the presence of hearing of the children.

17.That the father is to attend the Parenting After Separation course run by the Family Court provided that his work roster can accommodate attendance.

18.That the Children’s Representative is to forward to the Department of Community Services, to the New South Wales Police Service located at [T] and to the children’s treating medical practitioners a copy of the two reports prepared by the court expert, [Ms S], together with a copy of the final orders.

1. On 26 May 2004 the father filed an application for costs against the mother in respect of the final hearing for parenting orders.

2. The parties divorced in September 2004.

3. On 13 December 2004 Police issued an AVO Complaint and Summons against the father for the children’s protection.  All matters complained about allegedly occurred after the March 2004 Family Court hearing.  Order 13 sought to stop all contact between the father and the children. 

4. Following a defended hearing on 10 March 2005 Justice Flohm ordered the mother pays the father’s costs on a party/party basis in an amount not exceeding $30,000.

5. On 8 February 2006[7] police discontinued the apprehended violence complaint issued against the father.

   vii)[7] Exhibit “C”

The Issues

1. The primary issues are these:

   ·The nature of the children’s relationships with their parents.

   ·The effect on the children of separation from their mother.

   ·Since completion of the earlier parenting proceedings, whether the mother has made or been complicit in making unsubstantiated allegations against the father of physical and/or sexual abuse of the children.

   ·Whether the mother either intentionally or inadvertently has continued to alienate the children from the father.

   ·Notwithstanding the parties’ poor communication, whether the children should share their time equally between their parents’ homes.

The Evidence

1. At trial the father relied on the following evidence:-

   ·His affidavit sworn and filed 15 May 2006 and his oral evidence.

   ·His affidavit sworn 16 August 2005 and filed 17 August 2005.

   ·Affidavit of his mother, the paternal grandmother sworn 16 August 2005 and filed 17 August 2005, and her oral testimony.

   ·Affidavit of his work supervisor, Mr A, sworn 27 July 2006 and filed 28 July 2006. Mr A was not cross examined and I accept his evidence.

2. The mother relied upon the following evidence:-

   ·Her affidavit sworn 28 February 2006 and filed 1 March 2006 and her oral testimony.

   ·Affidavit of her mother, Ms G sworn 6 July 2006 and filed 7 July 2006 and her oral testimony.

3. Both parties and the independent children’s lawyer submitted documents which became exhibits.

4. On the Independent Children’s Lawyer’s application, Dr C was appointed court expert to investigate and report to the court. Dr Q is a Consultant Child and Family and Forensic Psychiatrist. She is a leading academic in psychiatry at a Sydney University. Dr Q was admitted as a Fellow of the Royal Australian and New Zealand College of Psychiatry some 20 years ago and awarded a Doctor of Philosophy in the late 90’s. In addition to her professional qualifications, Dr Q is widely published.  Over many years she has held and currently boards positions on medical and psychiatric professional organisations. Dr Q regularly undertakes medico legal assessments and is experienced in assessing family relationships, patterns of attachment, violence, child and adult sexual abuse. I accept Dr Q is well qualified by training and experience for the task she was asked to complete. At the end of her cross-examination I was satisfied Dr Q’s opinion should carry considerable weight.

5. Dr Q interviewed the children, the parties and the father’s mother in early March 2006. Her report dated 11 April 2006[8] was released to the parties and Independent Children’s Lawyer on 13 April 2006. Dr Q was cross-examined at length. At pages 45 and 46 of her report, Dr Q expresses the opinion:-

   “The impression is that the mother has sought to alienate the children from the father. [the mother] has made numerous allegations in the past, some of them extremely serious, yet at this interview she appeared to rescind many of those allegations. This is difficult to understand except in the context of a process of alienation which she may now perceive is no longer sustainable.

   It would be difficult for the children to make a transition to primary residence with their father since the mother has been their primary carer and primary attachment figure throughout their lives. However, if the Court were to determine that the mother has been and is continuing to alienate the children, this would suggest that she is unable to prioritise their emotional and psychological needs but is more invested in a campaign of blocking the father’s relationship with them. In this case there would have to be considerable concern about the extent of the allegations she has made and there may need to be some consideration of a change of residence or, at least to an arrangement whereby they spend about half their time with him.        

   If the Court were to determine that the father has been at least unable to respect physical boundaries and at worst abusive towards the children then his contact should be limited to daytime only with the supervision of his mother. In my view the paternal grandmother is quite child focussed and extremely vigilant about personal space and boundaries. She does not appear at all intimidated by him. In my view she would be able to maintain an adequate level of supervision.

   The father’s work schedule presents a problem and it is difficult to recommend a programme of contact that would accommodate this as well as the schedules of the children. Other than the objections of the mother the present arrangement seems to work quite well and it would be my recommendation that contact continue at least on this basis and perhaps be extended if this is practically possible.

   While the paternal grandmother remains in the father’s household, there must be extremely little risk of harm to the children and in fact she is very vigilant in terms of personal hygiene. The father plans to establish his own household in the near future and that may create difficulties in that he would have little defence against allegations were they to continue as they have in the past.”

   viii)[8] Exhibit “K”

6. Dr Q accepted the father’s contention that the mother has been and is continuing to alienate the children from the father. Dr Q agreed that the preconditions for changing where the children outlined in her report were established. Dr Q emphasised depriving the children of day to day contact with their mother, who is their primary attachment figure, involves initially causing the children great emotional distress. Notwithstanding the parties’ poor communication, Dr Q opines that dividing the children’s time equally between their parents may well strike the correct balance between ensuring the children have a relationship with both parents without causing long term emotional distress at separation from their mother.

7. The Independent Children’s Lawyer does not agree with Dr Q’s opinion that the mother is continuing to alienate the children from the father. Concerning future alienation of the children, the Independent Children’s Lawyer submitted there is less than an even chance in the future the mother will attempt to undermine the children’s relationship with the father. The Independent Children’s Lawyer submitted a minute of order[9] setting out the orders it is submitted promote the children’s best interests. These orders are set out below:-

   ix)[9] Exhibit “L”

   1.That the father’s application be dismissed.

   2.That the mother be restrained from denigrating the father or allowing any other person to denigrate the father, or from discussing these or any other Court proceedings with the children or with any other persons in their presence or hearing.

   3.That the parties attend and complete a Parenting after Separation course with Relationships Australia.

   4.That the parties contact Relationships Australia (phone [phone]) within 7 days to register for the first available course.

   5.That the parties each pay the costs of the course as and when levied upon them.

8. The mother agrees with proposed orders 2, 3, 4 and 5.  Both parties agree that the words suggested by the mother “or the leave of a court” should be added to proposed order 2. 

9. At the commencement of the hearing the mother’s counsel objected to the court receiving Justice Flohm’s judgment.  Counsel later withdrew her objection and by agreement the evidence was limited to matters that have arisen subsequent to her Honours judgment of 30 April 2004.  The findings of fact contained in that judgment became the starting point for these proceedings.   See Melbourne Ports Authority v Anshun (1981) 147 CLR 589.

10. It is agreed that there has been a significant change in circumstances since the orders were made on 11 October 2000 and that there is no Rice & Asplund (1979) FLC 90-725 impediment to the court hearing the father’s application.

Relevant Law

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

   1.        The objects of this Part are to ensure that the best interests of children        are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.        The principles underlying these objects are that (except when it is or   would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture;  and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

4. Having considered the primary considerations, the court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the court’s discretion.

5. The sequence of determining parenting orders is important.  If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA).  The notion of equal time requires no explanation and is decided first.  If equal time is not ordered, substantial and significant time must be considered.  This concept is defined in s 65DAA(3) and occurs where:

   (1)the time the child spends with the parent includes both:

   (i)        days that fall on weekends and holidays;  and

   (ii)      days that do not fall on weekends or holidays;  and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)        the child’s daily routine;  and

   (ii)occasions and events that are of particular significance to the child; and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

1. The child’s best interests remain the overriding consideration.

2. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.   Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply. 

The father’s circumstances and proposals

1. The father resides with his mother, the children’s grandmother in her home at BC.  This is a three bedroom double story home on a large block of land.  The grandmother lives on the top floor and the father lives on the ground floor.  This is where the father was living when the April 2004 orders were made and is where the children have exercised contact with their father pursuant to those orders.  The children each have an upstairs bedroom.  Subject to council approval, the father’s brother A will shortly commence building a house at S.  S is approximately 2 - 3 minutes by car, or a 15 - 20 minute walk from BC.  S is closer to BB than BC.  The father expects council will approve his brother’s development application within a few weeks and that the home will be completed within approximately 6 - 8 months.  When the house is completed, the father has A’s approval to rent the home.  Whether wholly or partly successful in this application, the father plans to live with the children at S.  To summarise, this means the father and children would live with his mother for about the next 6 - 8 months and then move to S.  Both homes provide the children with appropriate accommodation and each is close to the children’s schools, paternal relatives and friends.

2. The father is employed with the State Government.  He has been employed with State Government for twelve years and was working at M when the 2004 hearing occurred.  The father still works at M and has no plans to change employment.  I accept the father is well settled in his employment with State Government and that he is unlikely to change employment in the foreseeable future.  Presently the father has accrued 260 hours annual leave, 1161 hours sick leave and four months and twenty-two days long service leave.  The father works a complicated roster which is structured on fourteen day cycles.  His roster is prepared 2 months in advance and published on a monthly basis.  In each fourteen day cycle, during school term, he usually has one weekend night off each alternate weekend.  The roster involves 4 eight hour shifts, commencing 5.35 am, 11.30 am, 1.35 pm and 9.35 pm.  By arrangement with his supervisor, the father will be able to work regular 5.35 am and 9.35 pm shifts.  When working the early morning shift this means he will be able to care for the children from after school until they are in bed.  When working the night shift, he will be home before the children wake and remain with them until they leave for school.  The father intends to work weekends when the children are in their mother’s care and has his mother’s commitment to care for the children whilst he is at work.  Because she lives close by, and is retired, the grandmother is able to stay overnight when the father works night or early morning shifts.  In the event the paternal grandmother is unable to assist him, the father would seek the maternal grandmother or Ms K’s (the mother’s sister) assistance.  The paternal grandmother is committed to assisting her grandchildren and it is unlikely the father will need to call upon anybody other than her for assistance.

3. Presently both children attend J School at M.  M is 10 minutes from BC.  The father proposes that R completes her schooling at J.  As yet, the parties have not decided where C will commence high school next year.  J School is a feeder school to P School at BG.  The mother proposes C attend M High School at W.  This school is three years old and is where the mother’s sister’s daughter attends.  W is approximately thirty minutes from BB.  In order to get to W, C would need to catch a bus to M then a different bus to W.  R is able to catch a bus to and from school.  The travel arrangements from S are the same.

4. On 21 March 2006 the mother sent the father an email[10] explaining she wants C to attend M High School.  The mother explained travel to W is easier, she believes M High School is educationally superior to P School, her sister’s 3 children attend the school and it is close to the TAFE College which the mother attends.  The father responded agreeing with the mother’s proposals that C should enrol at both P School and M High School.  He indicated that a final decision concerning which high school C should attend ought to be deferred until the outcome of these proceedings.  Although the mother preserved C’s position by enrolling her at both schools, without further discussion with the father, she has treated as a fait accompli that C will attend M High School.  Although the father understands that C wishes to attend M High School he was concerned at the extent of the mother’s involvement at the school.  Because he believes the mother is unsupportive of his relationship with the children, in the event he succeeds in having the children live with him, the father was concerned the mother would continue her voluntary work in order to maximise her influence upon C.  It is his belief, that both children need their schools to be protected from the risk of becoming embroiled in the parties’ disagreements about their children.  In essence, that school is a safe haven where the children need not be concerned about matters involving their parents.  In closing addresses, the mother agreed that she will not continue to work at M High School or any other school the children attend.  With this concession, the father indicated he wished to discuss the issue further with C.

   x)[10] Exhibit “D”

5. The father says he respects the children’s relationship with their mother and strongly believes the children need good relationships with both parents.  In the event the children live with him, the father proposes that the children spend each alternate weekend, half school holidays, Christmas, Easter, birthdays, Mother’s Day and other special occasions with the mother.  He proposes the children communicate regularly with the mother by telephone and spend time with her at other agreed times.  Concerning the possibility the children live two weeks in each four with him the father explained he was willing to work constructively with the mother so an equal shared living arrangement could succeed.  Although they do not communicate easily, the father is willing to speak with the mother and resolve any day to day issues concerning the children’s care.  Notwithstanding his belief that the mother has “100 percent tried to alienate the children from him”, the father tries to be forward looking and wishes to work constructively with the mother to give the children the best opportunity for good relations with both parents and extended family on both sides.  I accept his evidence that the father is willing to use his best endeavours to ensure that whatever orders the Court makes they succeed from the children’s point of view.

The mother’s circumstances and proposals

1. The mother lives with C and R at BB.  This is one of two properties the parties owned when they separated.  At separation the mother remained in the former matrimonial home and the father shared the BB residence with the mother’s sister.  Shortly after R’s birth, the father left BB and the mother and children moved in. At some stage the former matrimonial home was sold.  At BB, the children each have their own bedroom.  There is a good sized backyard in which the children have swings, a trampoline and their bicycles.  The home is well established and provides appropriate accommodation for the children. 

2. The mother attends a nearby TAFE where she is studying computers.  This year she will complete Certificates III and IV.  The mother will complete the TAFE studies at the end of 2007 at which time she hopes to secure employment teaching computer skills.   The mother’s TAFE classes are held each Tuesday from 8.45 am to 11.00 am, Thursday and Friday from 8.45 am to 2.30 pm.  In addition to her TAFE studies the mother works as a volunteer at the M High School canteen and from time to time also at J School.

3. In her affidavit, the mother sets out the children’s routines.  The mother supervises the children before and after school as well as driving them to and from school each day.  R and C both participate in a swimming squad at M on Monday’s and Wednesday’s after school.  On Tuesdays, C plays tennis at M Tennis Club and R attends gymnastics.  On Fridays, the mother’s extended family gets together for a meal at her mother’s home.  Those attending include her brother D who lives nearby at WE, her sister K and her 3 children and her sister CH.  CH lives with the maternal grandmother, Ms G.  The maternal grandmother lives at BB.  Since she moved there in 1998, the maternal grandmother has had contact with the children most days.  The grandmother usually stays overnight at the mother’s home on Mondays and on Saturdays takes either C or R out for the day.  This arrangement alternates so that the mother has individual time with each of the girls.  After youth group, one or both of the children stay overnight each week at the maternal grandmother’s home. 

4. With their mother’s support and guidance, the children perform well academically and participate in a variety of school based and community activities.  At school and in their neighbourhood both children have good friends and are well integrated socially.  The mother’s family is close and the children have strong relationships with their 3 cousins, Y, RO and SH.  B no longer lives at home and is currently training with a youth mission organisation known as TM Australia.  B lives in Queensland and at the end of this year will work for one year as a missionary in Madagascar.  B enjoys a good relationship with the mother and his sisters.  When he visits, he stays with the mother.  Because B’s relationship with the mother has not had the same degree of disruption as his relationship with the father she is in a better position to maintain the girls’ relationship with him. 

5. The father’s roster often enables him to have free time during school weeks.  Asked if she would agree to the father spending an occasional overnight with the children during the school week, the mother refused.  Asked whether the parties could cooperate so as to enable an equal time living arrangement to work, the mother said it was impossible.  Asked what time she wished to spend with the children if they lived with the father, the mother said she wished to spend as much time with the children as possible.  In this instance, the mother explained equal time was acceptable and although it would be difficult, she wished to have time with the children overnight during the school weeks, basically whenever the father was at work.  The mother was unable to reconcile the obvious inconsistency between her stance that because of the parties poor communication the children spending time during the week with their father was impossible but feasible and desirable if the roles are reversed.

Determining the children’s best interests

1. The parties both say it is important that the children have a meaningful relationship with both of their parents.  As I will explain later, the children can only benefit from an outcome which ensures they have a meaningful relationship with each parent.  However, the father disputes the mother’s commitment to his relationship with the children and says while she now speaks in favour of it her actions reveal a contrary position.  It is his case that only by granting his primary or alternate applications can the children be assured of an ongoing meaningful relationship with him.  In order to understand this assertion it is necessary to examine the mother’s allegations about the father’s conduct towards the children following the final parenting orders made on 30 April 2004.  Doing so overlaps with consideration of the Court’s obligation to protect children from physical or psychological harm resulting from exposure to abuse, neglect or family violence. Concerning the mother’s allegations while the father agrees he is physically and verbally affectionate with his daughters, he denies he transgresses normal social mores or that he has abused the children.

2. In January 2004, Senior Constable H lodged an apprehended violence complaint and summons at T Court.[11]  Material relied on in support of the complaint comprises a lengthy and detailed summary of the Senior Constable H’s investigations into the father’s conduct between  July 2001 and up to January 2004. 

   xi)[11] Annexure “M” Mother’s affidavit

3. On about 21 January 2004 an interim AVO was made requiring that the father:

   1.Must not engage in conduct that intimidates the protected persons [[C] and [R]] or any person having a domestic relationship with the protected person;

   2.Must not stalk the protected persons;

   3.Must not assault, molest, harass, threaten or otherwise interfere with the protected persons.

4. The proceedings were adjourned until after the final hearing of the parties’ parenting applications.  In May 2004 the apprehended violence application was dismissed. 

5. As I have earlier found, on 26 May 2004 the father filed an application for costs against the mother in respect of the parenting hearing.  By letter dated 27 May 2004[12] the father’s solicitors served the mother’s solicitors with his costs application.  It seems likely that within a few days after service the mother received a copy of the costs application.   

   xii)[12] Exhibit “H”

6. In about June 2004, following contact, the mother says R said to her, “Dad kisses me on the lips over and over and I tell him to stop, but he doesn’t.”  The mother said, “If you don’t like Dad doing that, you need to tell him and let him know how you feel about it.”  R replied, “I tell him, but he doesn’t listen, he just keeps doing it.”  The mother said, “Well you need to tell him again and again and make it clear you don’t like it.”

7. At about the same time the mother says after contact C said to her, “Dad keeps kissing me on the lips over and over.  I tell him to stop but he doesn’t.”  The mother said to C, “You have to tell him not to do it.”  C replied, “Well he just won’t listen.”

8. The mother says that in either June or July 2004 she contacted Senior Constable H seeking her assistance with the costs application.   That this was at least one of her reasons for doing so is apparent from the mother’s letter to the Court dated 31 August 2004.[13]  However, I do not accept this fully explains the mother’s continuing dealings with this police officer or that it was her primary reason.  Whether in June or July 2004, it is highly likely the mother contacted Senior Constable H after she says the children spoke to her about the father kissing them.  When the mother spoke with Senior Constable H, the apprehended violence application had been dismissed and there were no outstanding police matters involving the father and children.  Senior Constable H told the mother she was unhappy with the outcome of the Family Law proceedings, a sentiment the mother shares.  In the course of the mother’s discussions with Senior Constable H, the mother informed Senior Constable H that in the father’s affidavit, he made an admission that he had given R “love bites” in 2001.  This is significant because in the apprehended violence application and earlier Family Court interim hearings the father denied the mother’s 2001 “love bites” allegation.

   xiii)[13] Exhibit “I”

9. The mother then sent Senior Constable H the father’s affidavit knowing Senior Constable H wanted to use the affidavit evidence to charge the father with assault arising from the 2001 “love bite” incident and to obtain an AVO against the father with the children named as requiring protection from him.  The mother admits that when she sent the affidavit to Senior Constable H, she did so in the hope and expectation the father would be charged with assault and an AVO obtained against him.

10. On 4 August 2004 the mother gave a written authority to VOCAL Inc.[14]  VOCAL is a community agency concerned to promote the interests of victims of crime.  VOCAL stands for Victims of Crime Action League.  Having established contact with them in 2001 the mother has been in regular contact with VOCAL ever since.  The mother authorised Ms C of VOCAL Inc to “act as my advocate in all my matters related to Domestic Violence, Family Court, the NSW Police Service and the NSW Department of Community Services.” The mother says she signed this authority so that VOCAL could use her case to raise awareness of perceived inadequacies of the State and Federal Child Protection and Family Law systems.  The mother denies that she signed the authority in the hope that VOCAL would use it to pressure police into undertaking a further investigation of her earlier child abuse allegations made about the father or pursue any of her current concerns.  Almost as soon as the mother gave VOCAL her signed authority Ms C contacted police complaining on the mother’s behalf about aspects of the police investigation into the mother’s child abuse allegations against the father.  If the mother merely intended Ms C to have authority to access information held by the agencies so as to promote systemic change I would have expected to see a differently worded authority.  Appointing Ms C “my advocate in all my matters” strongly suggests the mother authorised Ms C to act so as to assist the mother pursue her attempts to secure an AVO against the father as well as having him charged. 

    xiv)[14] Exhibit “F”

11. At the same time, the mother remained in contact with Senior Constable H and started keeping notes of remarks she says the children were making about the father.  The mother’s inability to be precise about where and when the remarks attributed by her to the children in paragraphs 57 - 59 of her affidavit were made reveals her note keeping was not contemporaneous.  The mother collated the notes and posted her compilation to Senior Constable H received at T Police Station in October 2004.

12. The mother says that from about early September to October 2004 C and R made specific complaints to her about their father’s behaviour during contact.  The mother says C complained:

    “Mum, Dad bit me on the bum.  Dad sucked my stomach and left a love bite on me.  Dad kissed me on the lips over and over.  Dad was kissing me on the lips over and over and sucking them and wouldn’t stop and bit me on the bum.  Dad bothers me.  Dad tells me I’m not to tell you what he is doing.  Dad keeps kissing me on the lips.  Dad bothers me.  He puts his hand down my pants, down the back; he did it 5 times down my jeans.  I just pulled his hand out. Dad pulled [R’s] pants down and he bit her on the bum.  He pulled her undies and did it on her bum.”

13. The mother says R said to her: 

    “Dad gives me kisses on the lips and puts his tongue in there.  Dad was biting my back, stomach, legs and arms, and kisses my lips and licks inside my tongue.  Dad was kissing me on the lips.  Dad was biting me all over.  Dad pulled my pants down and bit me on the bum.  Dad was biting me all over.”

14. Sometime during November 2004 the mother received the transcribed reasons of Justice Flohm’s oral judgment delivered 30 April 2004.  Upon receipt the mother posted the judgment to Senior Constable H. 

15. The mother says that in about early November 2004 R said to her:  “Dad pinched my nipple, Mum, and pulled my pants down and bit me on the bum”.  This coincides with the children staying with the father overnight.

16. Also in November 2004 and after the first occasion the children stayed with the father overnight, the mother says R said to her:  “Daddy is doing stuff”.  The mother says R lay on the bed and pulled her underpants down.  R put her finger on her vagina and “moved it round and round”.  The mother says R put that finger to her nose and inhaled as though smelling her finger.  R said: “Mum, Dad did it like this.  And he does it for a long time.”  The mother said: “Did [C] see it?” R responded:  “No she was at the toilet”.  Later that day the mother says C spoke to her and said, “Dad’s still doing stuff”.  The mother provided notes of these conversations to Senior Constable H. 

1. By arrangement with Senior Constable H, the mother took C and R to be interviewed by the Joint Investigative Review Team (JIRT) on 3 December 2004.  JIRT comprises specialist child protection officers of the NSW Police Force and the Department of Community Services.  Although Senior Constable H was not directly involved in interviewing the children she sat behind a screen giving instructions to another Police Officer using an ear piece.

2. After the JIRT interview was completed, Senior Constable H initiated another apprehended violence complaint and summons against the father.  Formally the complainant is identified as Constable D.  However the complaint shows “Police in Charge: [H], Rank: Senior Constable.”   Senior Constable H also attempted to secure permission to charge the father, at least with assaulting R in relation the 2001 ‘love bites’. The circumstances of the complaint justifying the AVO are described as:  

   “The defendant is the natural father of both the victims [[C] and [R]].  A previous AVO application was made on 5 January 2004 for the same parties and this AVO was later dismissed.  Since this time the father has been granted unsupervised contact with the children from Newcastle Family Law Court in March 2004.  Since this time the children have complained to the mother that the father is continuing to commit offences on both children including biting [R] on the bare bottom regularly, passionately kissing both children on the lips and placing his tongue into [R’s] mouth, pinching [C] on the bottom and inserting his hand down her jeans to touch her bottom, biting [R] on various parts of her body including neck, face, ear, stomach and back.  Both children were interviewed by JIRT in December 2004 regarding these allegations and the child [R] has also disclosed that her father has touched her on the vaginal area on two recent occasions (later being identified as November 2004).  It is expected that charges will be laid in the near future.  Contact between the children and the father is due to again occur on 15 December 2004 and an urgent interim order is requested to protect the children prior to this.”

3. The complaint and summons was sworn on 13 December 2004 and served on the father later the same day.  The complaint and summons sought the following orders:-

   1.The Defendant must not engage in conduct that intimidates the protected persons or any other person having a domestic relationship with the protected persons.

   2.The Defendant must not stalk the protected persons.

   3.The Defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons.

   4.The Defendant must not go within of the premises at which the protected persons may from time to time reside, or work or other specified premises at.

   5.The Defendant must approach the school or other premises at which the protected persons may from time to time attend for the purposes of education or childcare, or other specified premises at

   6.Not approach and contact PINOP.

4. On the complaint and summons, number 6 above is actually order 13.  PINOP is an abbreviation meaning “Person in Need of Protection” and in this application referred to C and R.  Amongst other things, if granted, the effect of the orders would have been to stop the father having any contact with the children, approaching them, visiting their schools or coming near the children’s home.  Had the AVO application succeeded as framed, on either an interim or final basis, the father’s relationships with his daughters would have been seriously damaged and in all likelihood destroyed for the remainder of their childhood. 

5. The first the father knew of further complaints allegedly made by the children or of the mother’s dealings with police post 30 April 2004 was when he was served with this complaint and summons.  Curiously the mother made no mention of these concerns when the parties appeared before a Judicial Registrar on 17 September 2004 on a joint application for minor variations to the 30 April 2004 orders, or on 8 October 2004 when the parties appeared before Justice Flohm in relation to the costs application. 

6. The mother does not distinguish between those allegations attributed to the children in September 2004 as compared to October 2004.  However even if only half of those statements made during the two months and in June or July 2004 had been said I would at least have expected the mother to raise her concerns during one of her appearances in the Family Court.  Her failure suggests either the children’s statements have been fabricated or misrepresented and if put in proper context were inconsequential.  By failing to raise the allegations during these appearances the mother avoided their contemporaneous investigation by the Family Court.  Far from being distracted by the father’s costs application, I consider the most likely reason the mother failed to raise her concerns in the Family Court is because she intended to pursue the charge and AVO strategy then under way and thus thwart the Family Court’s contact orders.  

7. On 14 December 2004 the father contacted his solicitors and instructed them to file an urgent application for interim residence of the children.  This application was listed in the Family Court at Parramatta on 16 December 2004. 

8. The father attended T Local Court on 15 December 2004 where the apprehended violence application was adjourned to 17 December 2004, being the day after the father’s interim residence application came before the Family Court.  The Magistrate did not make an interim order but accepted the father’s undertaking that he would not see the children until his interim residence application filed 15 December 2004 was heard on 16 December 2004.

9. The mother was served with the father’s interim residence application on 15 December 2004.  I have no difficulty accepting her evidence that she was unable to obtain representation in the time available.  When the parties appeared on 16 December 2004, Justice Flohm was unavailable and the father’s application was listed before another judge.  The Court did not grant the father’s interim application and transferred the proceedings to the Family Court at Newcastle to be listed before Justice Flohm on 18 February 2005.

10. The father appeared at T Local Court on 17 December 2004 when the following interim orders were made.

    (1)The Defendant [father] must not engage in conduct that intimidates the protected persons or any other person having a domestic relationship with the protect persons.

    (2)The Defendant must not stalk the protect persons.

(3)The Defendant must not assault molest, harass, threaten or otherwise interfere with the protected persons.

1. The mother did not attend the various mentions of the December 2004 apprehended violence application.  However, because the mother was keenly interested in the outcome of the application, she was in contact with police concerning its progress.

2. When cross-examined about order 13 sought in the AVO, that is, the order restraining the father from having any contact with the children, the mother said she did not see the AVO application before it was filed.  When the issue was explored she initially said that until she read the father’s affidavit filed 17 August 2005, to which the apprehended violence application is attached, she was unaware of order 13.  The mother then said order 13 was erroneously included by Prosecutors, contrary to Senior Constable H’s instructions.  Examination of the apprehended violence application reveals order 13 is handwritten onto the document.  Far from being an error, this suggests a specific intention on behalf of at least the complainant to seek more than the mandatory statutory and other pro-forma orders and to specifically stop contact between the children and the father. As cross-examination proceeded, the mother agreed she knew of the existence of order 13 in the apprehended violence application long before she was served with the father’s affidavit but that she did nothing about rectifying the alleged error.  This is because she says police told her they were not pressing order 13.  If this is true, the mother took a cavalier approach to the alleged error and to the distress the father must have endured between December 2004 and February 2006 while it formally remained part of the application.  

3. The mother failed to call any evidence corroborating her assertion order 13 was included erroneously.  The mother believes Senior Constable H is absent from work following a horrendous traffic accident and I accept the mother’s failure to call her should not attract a Jones v Dunkel (1959) 101 CLR 298 inference. However there were Police Prosecutors and other officers involved in the AVO application at least one of whom could have corroborated the mother’s evidence. Without corroboration the mother’s is the sole evidence of error. Unfortunately her evidence on this point is too flawed to be compelling.

4. The mother says Senior Constable H was the driving force behind the apprehended violence application.   To the extent the mother suggests she was simply swept along by Senior Constable H’s enthusiasm to obtain an AVO against the father and if possible secure a conviction on an assault charge I reject the mother’s evidence. The mother took all information to the police, including the children for interview, and did all that she possibly could to secure an AVO and if possible the father’s conviction. Although the mother was not the Complainant, she was just as enthusiastic as Senior Constable H to secure an AVO and conviction against the father. 

5. Concerning the prospect the father would be charged with assaulting R, the mother explained that she knew Senior Constable H intended that he would be charged.  She explained that she thought it was unlikely he would be jailed but that she had not really considered the consequences.  It reflects poorly indeed on the mother’s understanding of her children’s emotional well being that she was prepared to use events involving R in 2001 to secure a conviction in late 2004.  If the mother succeeded potentially R may well have felt implicated and responsible, carrying a burden that should not have been placed on her.

6. Given the mother’s active involvement in the police and JIRT investigations, it was surprising that she adhered to her oral evidence, given on 16 December 2004, to the effect that post 30 April 2004 she had not made any complaint or report concerning the children or the father.  The mother says she was not the instigator of the post 30 April 2004 investigations and AVO proceedings.  However, as the findings above demonstrate she was an active reporter and complainant.  The mother’s evidence shows she is prepared to mislead this Court and suggests she knew the risks she ran if her involvement in these later investigations was discovered.  It appears the mother’s strategy was to keep her involvement in these processes hidden as far as possible.  In the event of her involvement being revealed she could claim she was no more than a cooperative citizen.  In this instance nothing could be further from the truth.

7. The mother explained she believes that each and every allegation she attributes to the children.  Concerning the allegation attributed to R of the father running his finger around her vagina, the mother denied that she intended to convey an impression that the father masturbated the child.  She said, she believed he was inexpertly and inappropriately checking the child’s vaginal cleanliness.  When pressed, the mother said that when both B and C were babies, she saw the father place his finger on B’s penis and C’s vagina.  The father then smelled his finger to determine the child’s cleanliness.  At paragraphs 7 and 8 of her affidavit filed on 16 December 2004, the mother says the father used his finger on R’s vagina twice.  In her affidavit filed 1 March 2006 at paragraph 65, the mother recounts a single incident.  In her oral testimony, the mother says R made this complaint to her on 3 or 4 separate occasions.  Given the seriousness of the allegation and the mother’s note keeping, it is concerning that she gives so many different accounts regarding the number of times the child allegedly complained of this serious behaviour by her father.  As there is no suggestion R made any such statement after 16 December 2004, the mother’s different versions concerning the number of complaints made cannot be explained by reference to the timing of each version.  When this important discrepancy is considered in the context of the mother’s failure to advise police or this court that she believed the issue was hygiene, I am persuaded the mother’s evidence concerning these complaints is unreliable. 

8. The mother says that from about the time of the interim AVO the children’s complaints about the father’s conduct decreased and by February 2005 ceased altogether. Thus when police contacted her in February 2006 concerning the apprehended violence hearing, the mother agreed with their suggestion that the application should be withdrawn and dismissed.  The mother told police, as she did Dr Q and in this hearing, that she no longer has any concerns that the father deals with the children inappropriately. 

9. The reduction in the children’s complaints thus also coincides with the father’s December 2004 residence application, a finding to which I shall return later.  

10. Dr Q explored the various allegations attributed to the children with them.  When she interviewed the children, she interviewed them alone.  This avoided the difficulties identified in a COPS entry[15] concerning an earlier investigation.  Police report:  “The conversation Police had with the children was highly compromised due to the fact that the mother speaks openly and very aggressively about and against the father and grandmother of the children.  She also speaks aloud about what doctors or DOCS and other Agencies have said to her.”  Reference is made to the mother prompting the children and it is clear that the mother’s involvement in the interview referred to in Exhibit ‘G’ seriously contaminated the process.

    xv)[15] Exhibit “G”

11. Dr Q had an open discussion with both children.  After discussing C’s wishes concerning contact, Dr Q took a positive tack and asked C to discuss happy memories.  This lead to discussion concerning sad, scary, angry and yucky memories.  C was unable to nominate a sad memory.  Her scariest memory involved watching a video called “Thriller” and when she lost a tooth.  She was unable to nominate an angry memory and her yuckiest memory involved vomiting.  None of her negative memories involved the father.  As the interview progressed, Dr Q guided C into a discussion concerning bad experiences with the father.  C made two complaints about her father.  Firstly, that he is loud and yells on the street.  Secondly, that he acts in a way which suggests he believes the children belong to him and not their mother.  C made no allegations that her father had behaved towards her inappropriately.  C did not confirm or even allude to any of the allegations contained in the mother’s affidavit, notes to police, or oral testimony.

12. Dr Q adopted a similar interview strategy with R.  R referred to an incident dealt with by Justice Flohm when she was scratched by the paternal grandmother.  The closest R comes to making any criticism of her father is found at page 31 of Dr Q’s report where Dr Q reports R saying:  “Fun things to do with Dad include, “spending time together, he takes me to my friend’s house, my favourite friend [E].  But I don’t like to be with Dad.  He never gives us lollies and we have more food, nobody believes him, everybody doesn’t believe us.”  Dr Q found the comment confusing but notable in the sense that earlier the father had given R lollies.  R went on to say that she does not want to sleep at her father’s because: “It’s too scary.  He doesn’t let us stay up and watch T.V., Mum does.”  I agree with Dr Q that R’s statement is somewhat contradictory.  What is revealing from R’s discussions with Dr Q is that she makes no allegation that her father has touched her inappropriately or behaved in accordance with the mother’s allegations contained her affidavit, notes to police and oral testimony. 

13. The absence of complaints by the children to Dr Q corroborates in a real way the father’s denials that he has behaved towards the children in the manner the mother alleges.  The fact that when explicitly invited to discuss their father the children fail to make allegations of the type the mother makes, raises a number of possibilities.  Firstly, the mother accurately records the children’s complaints, but the children have forgotten them.  If the children had complained to the mother in the manner she alleges, I would have expected at least some of those concerns would have remained alive in the children’s memory.  When Dr Q specifically explored “bad things” that may have happened with their father, this was a trigger for what may otherwise have been dormant memories.  That the children, particularly C given her age, have no recall at all makes this first scenario is unlikely.  Secondly, that the children made statements something like those alleged by the mother which she has misinterpreted and misreported.  Given the mother’s note taking, this seems unlikely.  The third scenario is that the mother has exaggerated relatively innocuous remarks made by the children and turned them into allegations which bear no relationship to the children’s reality.  This is the most likely scenario.  Finally that the entire suite of allegations are fabrications.  While this is possible, the father agrees he kisses the children.  It may be this information provides a scaffolding of reality for one style of the mother’s complaints and the remainder falls across the scenario three and four spectrum.

14. It follows that I am satisfied the father does not present an unacceptable risk to the children of physical or sexual abuse.  Indeed, I consider it highly unlikely the father behaved towards the children since April 2004 in the manner the mother alleges.  Consequently, the father’s concern about the mother’s support of his relationships with the children requires careful consideration.  In order to fully appreciate the significance of this finding, it is necessary to consider the findings made by Justice Flohm.  This is because these reveal the mother’s attempts to damage the children’s relationship with their father go back much further than mid 2004.

15. At paragraph 50 of her judgment, Justice Flohm considers the mother’s allegations concerning the father’s conduct and any risk of harm he may pose to the children. 

16. Firstly, Justice Flohm considers allegations of physical violence including allegations of “gross physical abuse by the father to the mother whilst they lived together.”  Justice Flohm accepts Ms S’s evidence at page 78, 79, 80 through to page 81.8 of her report.  Ms S is a clinical psychologist appointed Court Expert in the proceedings concluded by Justice Flohm.  Justice Flohm accepts Ms S’s opinion:

    “There is little to substantiate [the mother’s] claim that she is the long-standing victim of domestic violence.  Ironically, the evidence seems to point somewhat the other way, in that the husband appeared to be in the submission position in the marital relationship with the wife very much in control, although this is not to suggest that the husband is a victim of domestic violence.  [The mother] is a woman who has a strong personality, is resourceful in getting what she needs and gives quite inconsistent, and at times, unbelievable accounts of her ‘victimisation’ ... However, [the mother] has a long history of viewing herself as an abused person, even where there is not the evidence to support this.  She tends to use the ‘grain of truth concept’ to rationalise her victim status and presents trivial evidence to support this.  [The mother] tends to view any conflict in a relationship or any behaviour which displeases her as abusive.”

1. Dr Q reports “the mother was nicely engaged with the children and very responsive to them, especially the younger one”.  Both children were completely at ease in their mother’s company.  From the children’s discussions with Dr Q and her observations of them with the mother, I am comfortably satisfied that the children each enjoy a strong and loving relationship with her.  This relationship is fundamental to their sense of well being and provides their essential sense of security and stability.  Disrupting the relationship by removing the children from their mother’s care, in the short term, will be emotionally distressing.  These findings weigh strongly in favour of the mother’s position.

2. Dr Q observed the father, paternal grandmother and the children.  For this aspect of the interviews, Dr Q reports: 

   “Again it was very notable that [the father] is very loud and very physically but extremely loving and effusive.  The grandmother too was very loving and effusively affectionate but not in as loud and brash a way as the father.  [the father] asked [R] for a hug but she avoided him physically and picked up a book.  I noted that he respected this and was not intrusive.  She sat next to [her grandmother] for awhile and then sat on the arm of a chair.  [C] sat next to her father on the couch.  He continued in a very loud and uncontained way.  The impression was that this is his usual demeanour but perhaps it was even more marked because of the pressure of the assessment situation.  After five minutes [R] abruptly and spontaneously went over and hugged her father.  [C] remained seated next to him and seemed a little restrained.  [The father] was obviously sensitive to this and asked her was she feeling uncomfortable.  She replied ‘no’ and I noted she made no effort to break physical contact with him. They were seated side by side.  The grandmother sat on the floor with [R] and they were playing happily together.   They seemed to have a very relaxed and easy relationship and [the grandmother] was obviously very at ease and familiar with the children.   [The father] again was sensitive to [C’s] quietness and asked again ‘are you okay?’.  She remained quite and somewhat disengaged while [R] was very happy and playful and initiated contact with her grandmother and also fleetingly with her father.  After awhile [C] sat on the floor with [R] and joined in.  [The father] continued to check with [C] ‘are you okay?’.  As the session continued [C] continued to play with [R] and her grandmother and for about half an hour maintained her distance from her father.” 

3. This observation session continued until after forty minutes, Dr Q terminated this aspect of her assessment.  I agree with Dr Q’s observation that the father is strongly invested in his children and is obviously very loving and caring towards them.  The father managed C’s diffidence during this session well.  He demonstrated his understanding of the child’s apparent need to portray her alignment to her mother.  The father responded appropriately to the boundaries C imposed on their interaction and showed that he is capable of managing C’s ambivalence without challenging C’s attachment to her mother.  The observation session reveals the father and C’s relationship is showing signs of strain which is likely to result from the mother’s negativity about the father.  If their relationship is to survive it is essential that C has the opportunity to spend more time with her father and have respite from her mother’s negativity towards him.  Unless this occurs, it is highly likely that C’s relationship with her father will continue to deteriorate.  Within a relatively short period of time, in the same way that B and the father’s relationship broke down, the same situation with C will arise.  This finding weighs significantly in favour of the father’s application.

4. R’s interaction with the father corroborates his and his mother’s evidence to the effect that theirs is a loving and positive relationship.  Although the relationship has been subject to the same pressures from the mother as the father and C’s, perhaps because of R’s age the detrimental impact has not been as profound.  As time passes, however, if the mother’s quest to control and minimise the children’s relationship with their father continues, R’s happy relationship with her father will also be lost.  If R’s relationship with her father is to endure, the mother’s negativity towards him and influence on their relationship must be reduced.  This is a finding to which I attach considerable weight and which weighs in favour of the father’s application.

5. Both children enjoy a lovely relationship with their maternal grandmother, maternal aunts and uncles and cousins.  Because the mother actively supports these relationships, in her care the children enjoy free and easy interaction with their maternal relatives and strongly identify these people as being important to them.  If the amount of time the children spend with their mother is lessened, the children’s opportunity to spend time with their maternal relatives will also reduce.  This finding conflicts with the father’s evidence that if the children live with him, he will ensure they continue to spend time with their maternal grandmother, aunts and cousins.  Although I have no difficulty accepting the genuineness of his intention, he may well find that if he succeeds in this case, the maternal relatives may, understandably, find it difficult to easily deal with him for some time.  The free and easy interaction the children presently enjoy with their maternal grandmother and other relatives has considerably greater prospects of continuing if the children live with their mother.  As the children would undoubtedly be distressed at loss or diminution of these relationships, this factor weighs in favour of the mother’s case.

6. Notwithstanding the children’s complaints about the paternal grandmother, both children demonstrated easy and happy interaction with her whilst being observed by Dr Q.  Both children appear to enjoy her company and have a reasonably strong connection to her.  Both children will be content if their relationship with the paternal grandmother continues in its present structure.

7. Whichever of option the Court orders, the children will continue to enjoy a good relationship with B.  For the next year B will be overseas and his contact with his sisters will predominantly be telephone and by email.  It is far from certain that at the end of this period B will return to live in New South Wales and if the past year is anything to go by, it is more likely he will live away from both parents.  Thus, whether the children live with their mother full time, half-time or spend time with her during school holidays, because of B’s unavailability, the amount of time the children spend with their brother will be necessary limited.

8. As mentioned earlier an important issue is the parties’ willingness and ability to continue to facilitate and encourage a close and continuing relationship between their children and their other parent.  I have earlier commented upon the mother’s inability to support the children’s relationship with their father and her lack of insight into the damage her actions have caused.  The mother emphasises she has complied with the 30 April 2004 contact orders and that for over two years, face to face contact has proceeded as ordered.  I accept her evidence that she helps the children prepare cards for their father, purchases him presents, sends special clothes for important occasions and the like.

9. These are all indicators of the mother’s support for the children’s relationship with their father.  Unfortunately, her compliance with the 30 April 2004 contact orders is nowhere nearly as significant as would be the case if the mother had not determinedly set about to thwart them.  Cards, gifts and dressing the children in their best clothes for a family wedding whilst with their father, are all positives but no where near as significant as the mother’s determined effort to thwart the father’s relationship with the children. 

10. Although there have been no additional allegations for a considerable time, it is only relatively recently that the December 2004 apprehended violence application was dismissed.  I am strongly persuaded these proceedings have had a dramatic impact upon the mother’s willingness to maintain an overt quest to harm the children’s relationship with their father.  Upon the proceedings ending, the moderating influence caused through the father’s residence application, will abate.  The combined effect of the duration over which the mother has maintained her quest, her lack of insight or regard for the Court’s reasons delivered on 30 April 2004, her adherence to the veracity of each post 30 April 2004 allegation and her lack of insight into the emotional damage this has caused the children persuades me it is highly likely that once these proceedings are over and if the Court does not more than make minor adjustments to the current orders, the mother will feel vindicated and her campaign against the father will resume. 

11. For reasons which only the mother could explain, I am persuaded that she is unwilling and perhaps also unable to encourage a close and continuing relationship between the children and their father.  Her unwillingness is only moderated by her concern that failing to comply with orders may have serious ramification for her.  Thus, at one level the mother pays lip service to her obligation to promote the children’s relationship with their father, whilst simultaneously harming it.  As the mother has had over two years to reflect upon the Court’s earlier reasons, viz-a-viz her attitude towards the children’s relationship with their father, and her attitude is unchanged, I consider it highly unlikely that further change can be anticipated.  These findings weigh heavily in favour of the father’s applications.

12. In contrast, I accept that the father never envisaged taking the children away from their mother and that his application is motivated to try and ensure the children have meaningful relationships with both parents.  In the earlier proceedings the father merely sought contact orders.  Implicit in his application is his recognition that the children love their mother dearly and separation from her would have been and still will be, painful for them.  Although he is understandably angry about the mother’s actions, by resisting embroiling the children in “tit for tat” criticisms and counter allegations, the father has shown his willingness and ability to support the children’s relationship with her.  The father expressed concern that if the children lived with him, the mother should not work in their school canteens and perhaps should only spend time with the children in accordance with whatever the court provides.  He appeared genuinely torn between the facilitating the free and easy relationship he believes the children should have with her and his anxiety that the mother would use these opportunities to undermine their relationship with him.

13. Section 60CC(3)(d) is particularly important. This sub-section requires the Court to consider the likely effects of any changes in the children’s circumstances. The father’s primary and alternative applications each involves significant changes to the children’s lives. Although the children will be able to continue in their same schools, extra-curricular activities and live in much the same area, critically they will no longer live full time with their mother.

14. Because the children are strongly attached to their mother and want to continue living with her, Dr Q says that ordering the children to live with their father involves a high risk of emotional disturbance for the children.  The risk is so high it is virtually a certainty.  The children’s emotional disturbance is likely to be short term, about two to three months.  During this period the children will be distressed, bewildered, probably frightened and angry with their father.  Removing the children from their mother’s fulltime care means that in the first two or three months that the children live with their father the situation will be volatile.  The father anticipated this may be the situation and has arranged with his employer to take three months leave in the event the children live with him.  By taking leave, he is able to give the children his undivided attention.  Through being completely available to them, the father will ensure the period is entirely child focused and he is on hand moment by moment to answer the children’s questions, deal with their distress and make the transition between homes as smooth as possible. 

15. The father suggested there should be a period of some months during which the children and the mother do not communicate or spend time together.  His rationale is there needs to be a buffer during the transition period which ensures the mother does not have an opportunity to unsettle the children.  Dr Q described this as a period of deindoctrination which she says is an extreme strategy for extreme situations.  Ultimately, Dr Q recommends against preventing the children spending time with their mother.  She says it is critical that they are able to talk on the telephone.  Stopping contact she says is likely to increase the stressors upon the children rather than achieve the desired outcome.  I agree with her.

16. Dr Q explained that she believes the process of the mother’s alienation of the children from their father was apparent during their interviews.  As well as other matters identified in Dr Q’s evidence, this was evident from the children’s out of context criticisms of their father, C’s inability to give examples of her complaints, C’s complaints about matters beyond her own experiences and R’s comment to her paternal grandmother on Boxing Day 2006 “[The father is] not my daddy, my daddy died”. Although finely balanced, Dr Q explains that she believes there is a strong case for changing the children’s primary place of residence.  The critical factors against change are the children’s distress discussed above and the risk that their relationship with their father may be further damaged.  However, Dr Q describes the father as a safe, physical, emotional and intellectual place for the children.  I am satisfied that whilst in the short term the children are likely to be too distressed to appreciate this, with time their appreciation of these attributes will grow.  Thus their relationship with their father is likely to recover and improve in the medium term.  In the long term it will become far stronger and more meaningful than if the children continue living full time with their mother. 

17. The extent of the children’s emotional distress at leaving their mother’s care is influenced by the amount of time they later spend with her.  Implicit in Dr Q’s discussion of the strong pros and cons for and against change, is that the children spending more time with their mother reduces the extent of their distress caused by change.  With this in mind, the father’s alternate proposal that the children’s time is divided equally between their parents strikes a sound balance between the risks involved to the children’s relationship with their father if their living situation is unchanged, compared with the emotional distress involved in leaving their mother’s care.  The children are old enough to understand time.  On a two week by two week cycle living between their parent’s homes, both are well able to understand when and where they will next see their mother.  In two week blocks, the children have a genuine opportunity to immerse themselves in each parent’s respective environment and fully benefit from the many positive elements available in each home.  As time passes, any negative elements in their respective homes, an issue predominantly relevant in the mother’s care, will be moderated by the periods during which they benefit from the strong positives in the other household.  These findings weigh most heavily in favour of the father’s alternate application that the children spend time equally between their parents.

18. As the parties live in close proximity, a circumstance which will continue once the father moves to S, movement between the parent’s homes is relatively easy and there are no practical difficulties or cost issues which affect the children’s ability to maintain regular contact with both parents.  A practical issue is the impact of the father’s roster on his ability to care for the children.  As outlined earlier the father’s mother is committed and able to complement his care of the children.  Although this will involve her coming back and forth to the S home, she will do so.  Because the father lives with his mother, she sees the children virtually every time they spend time with their father.  The grandmother attends Mass with the children.  They share her pleasure of music and dance and have responded well to her guidance as to table manners and hygiene.  There is no evidence that the paternal grandmother has continued to criticise the mother or question the children about her.  It appears Justice Flohm’s findings concerning the paternal grandmother’s emotionally abusive behaviour with the children are no longer an issue.  While the paternal grandmother still holds harsh views of the mother and is unable to acknowledge the maternal grandmother, even at Mass, she does not share these views with the children.   Between them the father and his mother will ensure the children are fully supervised and their day to day needs properly attended to.    

19. The mother and children are closely emotionally connected and she, more than any other person, is in the best position to meet their continuing emotional needs.  This however comes at a cost.  Just as the mother lacks insight into the harm she has and is causing the children, understandably they cannot it.  Feasibly it will be many years before the children have the maturity needed to fully appreciate the emotional consequences of their mother’s quest.  The father is an emotionally mature person with all the necessary skills required to meet the children’s emotional needs.  The difficulty which arises in terms of his ability to do so comes from the children’s preference to continue a lifetime relationship with their mother whereby she predominantly meets their emotional needs.  I have already discussed this issue when considering the effect on the children of changing their circumstances.  If the children live with their father fulltime and merely spent time with their mother on alternate weekends, half school holidays and short additional periods, the risk that the children will resist their father’s emotional nurture is high.  It follows they are likely to emotionally flounder and to a considerable extent, their emotional needs will be unmet.  This attracts significant weight against the father’s primary application that the children live with him full time.

20. Both parents have the intelligence and commitment needed to support the children intellectually and educationally.  C is not performing as well at school as she might.  Whether this is indicative of the child’s lack of focus this year, concern about these proceedings, transitory or the beginning of a trend is unknown.  Now that the school has identified her present under performance, whether C lives with her mother or father, both parents are capable and likely to assist her regain ground and achieve academically to the extent of her intellectual ability. 

21. The father expresses concern that in the past the mother has withdrawn the children from school so that they could attend religious studies.  Whilst both parents are practising Catholics and support the children being reared as Catholics, the father does not support the children missing school for religion.  The children’s school reports identify school attendance and their Term 1 2006 reports each shows the children missed two days.  In the scheme of things this is inconsequential and suggests that if ever there was an issue about the mother keeping the children away from school for religious studies, it was relatively inconsequential and is no longer happening.  This issue does not influence the outcome of these proceedings.

1. Both parents are genuinely committed to their children and each takes their parental responsibilities seriously.  Financially, the father supports the children whilst they are in his care and pay child support as assessed by the Child Support Agency.  Both parents have modest incomes and it is unsurprising that tensions arise concerning the children’s financial support.  If the children’s living arrangements change, child support is likely to vary.  In the event the children live two weeks with their mother and two weeks with their father on an alternating cycle, the mother says financial issues relating to the children’s support will become more difficult.  This is because the mother says, the parties are more likely to argue about who is responsible for meeting particular aspects of the children’s day to day financial needs.  For example, paying school fees and providing their sports equipment and clothing.  Equal time child orders are more likely to succeed if parents provide in each home for all of the children’s needs.  This means each home will have fully set up bedrooms for the children, full sets of school clothing and other day to day necessities.  The mother has everything in her home the children require.  The father has bedrooms and clothing for the children.  I accept he will acquire whatever else the children need so that they duplicate their possessions in the two homes.  This avoids the problem of the children leaving possessions behind and makes their lives more comfortable.  In a financial sense, it increases the total costs involved in supporting the children, but delineates more clearly each parent’s responsibility to provide for the children.  Hopefully the parties will be able to agree about payment of the children’s private school fees, a scenario both parents sought and consider beneficial for the children.  Thus, while I accept and equal time living arrangement may create fertile ground for disputes between the parents about money issues this is not so significant that it should deprive the children of this opportunity.

2. The history of the parties’ litigation is in itself indicative of the parties inability to communicate with each other.  By the orders which will be made at the end of these proceedings, the parties will no longer need to make decisions concerning where the children live and the arrangements for them to spend time with the other parent.  These issues have been determined.  The significance of the parties poor communication to date lies in their ability to make timely day by day decisions concerning the children.  Presently, the parties communicate by email and demonstrate a rudimentary capacity to raise and discuss issues about the children.  The father says he is willing to talk to the mother at any time about matters concerning the children and genuinely attempt to reach agreement with her.  On the practical day to day issues which may arise, I accept he is well motivated to do so and will persist.  The mother has no wish to communicate with the father and is concerned if the children live predominantly with the father or the parties share the children’s care, that she will be on the receiving end of numerous telephone calls from the father wanting to discuss the children with her. This appears to have been an issue many years ago.  In recent years there is no evidence of the father calling the mother frequently.  While this will have been partly in response to various AVO’s the father does not seem motivated to behave as the mother suggests.  In recent years when he has wished to discuss matters with her, the father invited the mother to attend mediation or communicated by email.  I do not accept he is likely to behave unreasonably.  

3. It would be a bizarre outcome indeed, if a parent could defeat an equal time application by unreasonably refusing to communicate with the other parent.  Although she has no wish to do so, the mother has the intellect and ability to rationally discuss matters relating to the children with the father.  So as to reinforce the importance of effective and co-operative communication the parties will be ordered to attend a community based post separation parenting program.  With this structure in place the parties will be even better able to manage issues which may arise and retain focus on the children’s best interests.

4. There are no operative family violence orders.

5. I have already made reference to Justice Flohm’s findings concerning family violence pre 30 April 2004.  There are no allegations of family violence post 30 April 2004.  The mother raises issues concerning the father’s twenty year old half brother, obtaining an AVO against him.  This arose out of an incident at the paternal grandmother’s home in August 2004.  The father’s half brother had given his mother a mobile telephone which needed repairs.  In an aggressive fashion the father shouted at his younger brother demanding that he have the telephone repaired.  The father’s denies being physical but says he understands why his brother may have felt threatened and intimidated.  The grandmother is somewhat partisan and says that in pursuing an AVO against the father, the younger brother over reacted.  In her view the brother had no reason to feel intimidated by the father. Given the father’s concession, his evidence of the incident gives a more accurate picture.  The father did not attend the AVO hearing in September 2004.  In August 2004 the father and his mother wrote to T Local Court[17] saying “I accept without admissions the Apprehended Violence Order.” The grandmother informed the T Local Court that for so long as the AVO remained in force she did not want the younger brother to visit her at home and said she would make other arrangements to see her youngest son.  In the event an AVO issued against the father for the younger brother’s protection.  The paternal grandmother and youngest son remain in contact.  While there is no doubt that the father behaved inappropriately towards his brother, it is difficult to see how this incident affects the father’s application.  The evidence does not suggest a course of conduct on his part. Or that in his care the children are likely to be exposed to violence.     

   xvii)[17] Exhibit “B”

6. There is no risk of exposure to family violence in the mother’s home.  Irrespective of where the children live there is virtually no risk they will be exposed to family violence.

7. Parenting proceedings are never final in the sense that children and their parent’s circumstances change and arrangements may need to alter as a consequence of those changes.  Ideally, courts should make parenting orders that minimise the prospect of further litigation.  Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties and children moving on in their lives.  These parties and children have endured approximately five years of constant litigation and all will welcome respite from it.  All proposals pose a risk of further proceedings.  If the children remain with their mother, as the children’s relationship with their father fails, it is reasonable and likely he will institute enforcement proceedings, perhaps a further application that the children live with him.  If the children live with their father, either full or half the time, the mother may test his resolve by failing to return the children.  The risk of her doing so is higher during transition and is likely to abate as the children settle in to their father’s home.  It is difficult to assess which scenario is least likely to lead to further proceedings.  In these circumstances, the prospect of further proceedings cannot carry significant weight. 

8. There is considerable overlap between ss 66(3)(c), (f), (i) and s 66C(4) and s 66(4A).  I have already made findings concerning the extent to which each of the parties has fulfilled or failed to fulfil his or her parental responsibilities.  The mother points out the father has occasionally failed to telephone the children and mistaken the contact arrangements.  Given the opportunity to rectify the father’s mistake, the mother has not done so.  Thus, when the father arrived unexpectedly, rather than allow him to spend a few hours with the children, the mother declined.  The father submits that this is further evidence of the mother’s failure to promote his relationship with the children.  I do not agree.  The evidence did not explore, for example, whether the mother and the children had prior arrangements which conflicted with the father’s request for extra time with the children.

9. The mother is critical of the father’s failure to definitely agree upon which school C will attend next year.  The father had many months within which to discuss C’s secondary school with his daughter, the mother and various school principals.  While I understand his decision to delay finalising the issue until these proceedings concluded, the school issue could have been decided without this.  The father failed to fully appreciate the pressure not knowing which secondary school she will attend must have placed on C.  By his inaction, the father has allowed C to believe she will attend M High School and he needs now to co-operate in allowing the child to attend there.  Any other course will only cause her unnecessary stress.  While undoubtedly regrettable the significance of this incident should not be overstated.  It is an unusual scenario for parents that major long term issues arise in the shadow of a forthcoming trial.  Hopefully for this family a similar situation will not arise again.  The father’s inability to make a timely decision concerning which secondary school C will attend does not suggest that in the future he will fail to participate in or make necessary long term decisions.

Conclusion

1. The parties agree they will have equal shared parental responsibility for their children.  I have no doubt that it is in the children’s best interests for the parents to continue to have equal shared parental responsibility.  This means that the parties must consult each other about major long term issues concerning the children and make genuine efforts to agree about the issues. 

2. Because the parties will have equal shared responsibility for the children by s 65DAA, the Court must consider whether the children spending equal time with each of their parents is in their best interests. 

3. As I have already found, the parties live within sufficient proximity to each other that sharing the children’s time equally is reasonably practicable.  In a difficult and finely balanced case, sharing the children’s time equally between their parents delivers the best outcome for the children.  Of the various options available to me, this is the only outcome which results in the children having long term, meaningful relationships with both parents.  As is apparent from my earlier findings, if the Court does no more than make an injunction which restrains the mother from taking the children for interview and participating in investigations of further allegations, with our without the leave of the Court, she is highly likely to continue her quest to damage the children’s relationship with the father.  Although an injunction may impose an impediment to the more overt aspects of her conduct, it does not protect the children from a more subtle but nonetheless relentless campaign.

4. The children’s genuine and strongly held views against leaving their mother’s care or living with their father full time make his primary application fraught with difficultly and unlikely to succeed in the long term.  Although the transition to an equal time arrangement will be volatile and emotionally distressing for the children, this is likely to pass in the short term and long term provide a sound platform for healthy relationships with both parents.

5. The father says any changes to the children’s living arrangements should be implemented immediately.  With such a long term status quo living with the mother and not their father, timing is critical.  The changes to be made must be arranged so as to reduce not increase the stressors on the children. Presently the children are in the last few weeks of the school year and C is preparing for secondary school.  Whilst end of year exams are likely to be over, this is a hectic time of year in most schools and extra stressors are likely to be overwhelming.  Implementing equal time arrangements, against the children’s wishes immediately gives them no time to prepare for such a major change. However, the change over to living equally with their father must take place promptly.  If it does not the risk of the mother further damaging the children’s relationships with him escalates significantly.

6. For both children there are real advantages in coping with their transitional distress during the forthcoming school holidays.  They can have the benefit of their parents full attention, a circumstance which should help the children adapt more quickly. This enables them to be well on the way to accepting and coping with their new living arrangements by the time school starts next year. 

7. The existing orders concerning residence and contact will operate until the new orders commence.

8. During school term, change over will take place on Mondays.  Usually home work must be handed in by Friday and the children should not be overly burdened with large amounts of school equipment. Starting at the commencement of the week affords a smooth change and gives a logical structure to the children’s routines. With a similar notion of smooth routines changeover for holidays will also occur on Mondays.  Rather than have the children rushing unnecessarily on a holiday morning, 12 noon will give them time to get ready.   School holidays will continue the two week alternating cycle.  Other than the Christmas holidays, all school holidays are two weeks long.  To avoid the problem that one parents two weeks may coincide with the start of holidays, and thus the children will spend no time with the other, the orders will provide a default arrangement for changeover at the start of he second week of the holidays.  This issue does not arise with the longer Christmas school holidays.  During these holidays the two week cycle will continue throughout the holidays.  Although this means the children will not spend three consecutive weeks with a parent, they will still have the same amount of time.  I consider this is less confusing and complicated to schedule.

9. In order to ensure the children have free and easy telephone access to both parents, the parents are to ensure each gives the children access to a landline telephone the child can use to call the other parent.  The children are both old enough to decide when and how often they wish to call and there is no good reason why this should be restricted by order.

10. Both parents wish to spend time with the children for Christmas.  The children are likely to enjoy doing so and my orders will continue the current structure.

11. Neither party requests arrangements for other special occasions.  Nonetheless I have made provision for the children to spend the relevant weekend on mothers and fathers day with the appropriate parent.  This accords with this families tradition and probably also the children’s expectation.  To limit unnecessary change over tension, these weekends will start after school Friday and continue through until the start of school Monday.  

12. The existing orders include a series of mandatory injunctions concerning the provision of information.  As the parties will share the children’s care these orders need to operate so as to impose identical obligations.  While I anticipate the parties will do so willingly, for abundant caution I will make orders which ensure each has all of the information needed to effectively care for the children.

13. The injunction against the father attending the children’s schools during periods when they are in his care is obviously inappropriate.  So that the parties can have periods where each is able to freely deal with the children’s school without being concerned about unexpectedly seeing the other party, this order will be varied slightly.  My intent is that the parties will both attend functions parents are invited to attend, irrespective of with whom the children are living.  Unless the school requests a parties attendance, on other occasions the party with whom the children are living will have exclusive access to the children’s school. This should avoid unnecessary tensions at school.

14. With C starting a new school next year, it is also important that these orders are implemented relatively quickly.  Delaying the introduction of the new living arrangements later than the end of this school year, means that C will still be significantly distressed when she starts school next year.  This will only make her transition to secondary school harder and may interfere with her ability to connect with a new peer group. 

15. I consider the Independent Children’s Lawyer is ideally placed to nominate an appropriate community agency for the parties post separation parenting program.  My expectation is that the program will work with the parties individually and jointly.  Thus far the parties have had little opportunity to work together on improving their ability to communicate as parents.  While individual counselling is useful, it is difficult to see that one can improve communication between two people if only one person is involved.

16. For these reasons I am satisfied the orders identified at the start of this judgment are in the children’s best interests. 

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  4 December 2006

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SHARMA & SHARMA