SHIPLEY & FELDMAN

[2019] FCCA 2143

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIPLEY & FELDMAN [2019] FCCA 2143

Catchwords:
FAMILY LAW – Parenting – change of residence sought by the father – children aged 12 and 11 – mother primary carer of the children – where there has been final orders made in 2012 and 2017 – where the mother stopped time between the father and the children in November 2016 and November 2017 – where the mother has been found to have contravened orders without a reasonable excuse – where there has been breaches of an intervention order by the father – where the father sent one of the children a picture via text message that the mother alleges distressed the child – where the mother took the child to the police station to make a statement against the father – finding that the mother does not want or is not capable of fostering a relationship between the children and the father – risk of psychological harm to the children by the mother – change of residency ordered.

Legislation:

Family Law Act 1975 (Cth), ss.4, 11F, 60CA, 60CC, 61DA, 65DAA

Cases cited:

R v R (2000) 155 FLR 29

Applicant: MR SHIPLEY

Respondent: MS FELDMAN

File Number: MLC 11371 of 2011

Judgment of: Judge Blake

Hearing dates: 29, 30 and 31 May 2019

Date of Last Submission: 31 May 2019

Delivered at: Melbourne

Delivered on: 6 August 2019

REPRESENTATION

Counsel for the Applicant: Ms Southey

Solicitors for the Applicant: Wilkinson Romer & Associates Pty Ltd

Counsel for the Respondent: In person

Solicitors for the Respondent: None

Counsel for the Independent Children's Lawyer: Mr Nicholson

Solicitors for the Independent Children's Lawyer: Sofra Solicitors

ORDERS

1. All extant parenting orders be discharged.

2. The mother and father have equal shared parental responsibility for the children:

   (a)[X] born … 2006 (‘[X]’); and

   (b)[Y] born … 2007 (‘[Y]’).

3. [X] and [Y] (‘the children’) live with the father.

4. The father collect [X] and [Y] from the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne immediately following the conclusion of the delivery of judgment.

5. The mother, and anyone accompanying her, shall leave the Court premises forthwith.

6. From today until the commencement of the 2019 school term 3 holidays as provided for in order 9(c)(i) hereof, the Mother not spend time or communicate with the children (‘suspension period’).

7. During the suspension period, the mother be restrained by way of injunction from attending:

   (a)at the children’s school or any other school at which the children attend; and/or

   (b)any school events for the children which parents would ordinarily attend.

8. During the suspension period, the mother be restrained by way of injunction from personally attending at any extra-curricular events in which the children or either of them are engaged.

9. Thereafter, the children spend time with the mother as follows:

   (a)each alternate weekend from 6pm Friday to 3pm Sunday;

   (b)up to one further weekend per calendar month from after school Friday to 3pm Sunday with such time to be spent in the Town H area, with the mother to provide the father with seven (7) days’ notice of her intention to spend such time with the children;

   (c)for half of each of the school term holidays, as agreed, and in default of agreement such time as follows:

   (i)in the year 2019 and each alternate year thereafter, commencing at 6:30pm on the last day of term and concluding at 3pm on the middle Saturday of the holidays;

   (ii)in the year 2020 and each alternate year thereafter, commencing at 6:30pm on the middle Saturday and concluding at 3pm on the last Saturday of the holidays;

   (d)for half of the Christmas school holidays in each year as agreed, and in default of agreement such time as follows:

   (i)in the year 2019/2020 and each alternate year thereafter, commencing at 6:30pm on the last day of term and concluding at 3pm on the midway point of the holidays;

   (ii)in the year 2020/2021 and each alternate year thereafter, commencing at 6:30pm on the midway point of the holidays and concluding at 3pm on the last Saturday of the holidays;

   (e)for Christmas by agreement, and failing agreement:

   (i)From 5pm on Christmas Eve until 5pm on Christmas Day in 2019 and each alternate year thereafter;

   (ii)From 5pm on Christmas Day until 5pm on Boxing Day in 2020 and each alternate year thereafter.

   (f)on the Mother’s Day weekend in each year from 6:30pm Friday to 3pm Sunday; and

   (g)as otherwise agreed between the parties.

10. In the event that the mother’s time spent with the children pursuant to order 9(a) hereof coincides with a long weekend for the children arising from a public holiday or non-school day then the mother’s time spent with the children shall be extended to include each additional day, and in the event that the additional day’s holiday is as follows:

    (a)a Friday, then such time shall commence at 6:30pm on the relevant Thursday; and

    (b)a Monday, then such time conclude at 3pm on the Monday.

11. The mother and the father may communicate with the children by telephone or FaceTime as follows:

    (a)each Tuesday and Thursday between 5pm and 5:30pm with the parent with whom the children are not then living, to instigate such calls;

    (b)each alternate Saturday between 5pm and 5:30pm, with the parent with whom the children are not then living, to instigate such calls; and

    (c)at all reasonable times when the children or any of them wish to call the other parent, with the children to instigate such calls;

    and each parent with whom the children are living must ensure that all telephone or FaceTime calls are facilitated, that the children’s mobile telephone is charged and available to the children, and that the children are given privacy during such calls.

12. The time the mother spends with the children pursuant to orders 9(a) and 9(b) hereof shall be suspended as follows:

    (a)from 5pm on Christmas Day until 5pm Boxing Day in 2019 and each alternate year thereafter;

    (b)from 5pm on Christmas Eve until 5pm on Christmas Day and each alternate year thereafter;

    (c)on the Father’s Day weekend, in each year; and

    (d)for the duration of each of the school term and Christmas school holiday periods.

13. Unless otherwise agreed in writing, changeovers shall take place at McDonalds Restaurant, Town G.

14. The father be at liberty to enrol the children in a school in the Town H area.

15. The father shall:

    (a)keep the mother advised at all times of the current residential address and telephone number of the children;

    (b)advise the mother immediately in the event that the children, or either of them suffers any serious illness or injury;

    (c)authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the mother in respect to the children’s medical condition and/or requirements.

    (d)authorise all schools at which the children may attend, from time to time, to:

    (i)provide the mother, at the expense of the mother, copies of all school reports, school notices and school photographs in relation to the children;

    (ii)communicate with the mother, either by telephone, in writing or by personal attendance, in respect of the children’s progress at their respective schools;

    (iii)attend all school functions to which parents are normally invited;

    subject to any school policy in relation thereto; and

    (e)advise the mother of any proposed interstate holiday travel with the children and provide a contact number where the children can be reached in the event of emergency.

16. The mother shall:

    (a)keep the father advised at all times of her current residential address and telephone number;

    (b)advise the father immediately in the event that the children or either of them suffers serious illness or injury;

    (c)authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the father in respect to the children’s medical condition and/or requirements; and

    (d)advise the father of any proposed interstate holiday travel with the children and provide a contact number where the children can be reached in the event of emergency.

17. The parties, their servants and agents be and are hereby restrained by injunction from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of their household in the presence or hearing of the children or either of them or from permitting any other person so to do;

    (b)discussing these proceedings, any allegations made in these proceedings or any adult issues or disputes with the children or anywhere where the children may overhear them doing so;

    (c)questioning the children about what occurs in the other parent’s household;

    (d)telephoning the other save for an emergency concerning the children, or either of them, and all other communication about the children shall occur by e-mail or SMS text message; and

    (e)without either party admitting the need for the same, using physical discipline on the children or either of them.

18. The mother, the father and the Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:

    (a)the Principal or delegate of the Principal of the school attended from time to time by the children; and

    (b)any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the mother, the father or any other child of either parent.

19. The order of the Court appointing the Independent Child Lawyer be discharged after a period of 4 weeks from the delivery of this judgment.

20. The Independent Children’s Lawyer meet with the children and explain to them the nature and effect of these orders immediately following the delivery of this judgment.

21. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION:

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11371 of 2011

MR SHIPLEY

Applicant

And

MS FELDMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. By his Amended Initiating Application (‘Application’) filed on 29 January 2019, the father seeks that the children [X] born on … 2006 (‘[X]’) and [Y] born on … 2007 (‘[Y]’) (together, ‘children’) live with him and spend time with the mother. 

2. The mother’s Amended Response to the Application was filed on 13 February 2019 (‘Response’). In the Response, the mother seeks that the children relocate with her and live with her and her fiancé in Town F, New South Wales. 

3. The children currently live with the mother in Town A and spend time with the father at his residence in Town E. The principal issue in dispute is which parent the children are to live with.

Summary of Outcome

1. I have decided that the children should live with the father and spend time with the mother.  My reasons for doing so are set out below.

Background

1. The mother and father commenced a relationship in 2001. They commenced living together in 2002 and were engaged to be married in the same year.  They separated in March 2009.

2. Final parenting orders were made by consent in this Court on

   
   

   20 February 2012 (the ‘2012 Orders’).  The 2012 Orders provided that the children were, among other things, to live with the mother and spend each alternative weekend, half of school holidays and special occasions with the father.

3. In November 2016, the mother suspended the children’s time with the father.  This is a matter to which I will return.

4. On 7 December 2016, the mother initiated proceedings in the Magistrates’ Court in Town J. Orders were made in the Magistrates’ Court on 13 December 2016 suspending the time the Father was to spend with the children. Further orders were made by the Magistrates’ Court on 20 December 2016 ordering, among other things, that the father’s time with the children be supervised at Berry Street and there be telephone communication twice per week. Supervised visits subsequently occurred.

5. On 3 April 2017, orders were made by consent for, among other things, the matter to be transferred to the Town J circuit, an independent children’s lawyer be appointed, a child inclusive conference pursuant to s.11F of the Family Law Act 1975 (‘Act’) take place on 18 May 2017 and the father enrol and complete an anger management course.

6. On 14 August 2017, final orders were made by this Court by consent of the parties. Those orders provided, among other things, that the children were to live with the mother and spend each alternative weekend, half school holidays and special occasions with the father (the ‘2017 Orders’).

7. On 19 October 2017, the mother did not deliver [X] to spend time with the father. The mother also failed to deliver [X] on 3 November 2017.  [Y] was, however, delivered on each occasion and spent time with her father.

8. On 17 November 2017, the children ceased spending any time with the father. The mother informed the father that the children did not wish to spend time with him.

9. On 14 June 2018, the father was charged with and convicted of breaching an intervention order.  He pleaded guilty and was placed on a 12 month Community Corrections Order. This followed earlier breaches of the intervention orders by the father on 22 October 2009, 20 July 2010, 26 August 2014 and 28 February 2017.

10. On 17 July 2018, the father commenced proceedings in this Court which is the subject of the Application.  The father sought orders that the 2017 Orders be reinstated, or alternatively, that the children live with him and spend time with the mother.  The father also filed a contravention application alleging that the mother had contravened orders made by the Court.

11. On 3 September 2018, the Court made orders that, among other things, the father have leave to withdraw his contravention application, that previous orders for the children to spend time with the father be suspended, that the mother be restrained from moving from Town A, that the father communicate with the children each Wednesday and Sunday and that the parties attend a Child Inclusive Conference pursuant to section 11F of the Act.

12. On 18 September 2018, the parties attended the section 11F conference. The family consultant, Ms B, recommended that the children recommence spending time with the father immediately.

13. On 18 October 2018, the Court made orders that an Independent Children’s Lawyer (‘ICL’) be appointed. There were also consent orders that the 2017 Orders be reinstated (with various alterations regarding changeover), and that the proceedings be listed for final hearing in Shepparton on 27 February 2019. The father’s time was to commence the next day on 19 October 2018, with changeover to occur by the mother delivering the children to the father’s residence in Town E.

14. On 19 October 2018, the mother informed the father that she was at the Town C Police Station for changeover. When the father arrived, the mother only had [Y] with her.

15. On 24 October 2018, the father filed a further contravention application. This application related to the mother’s unilateral alteration of the changeover location, as noted above, and the mother’s failure to deliver [X] on 19 October 2018.

16. On 30 October 2018, the Court found, among other things, that the mother had contravened orders made by the Court on 18 October 2018. I deal with the contravention proceedings in further detail below.  The Court also made orders that the mother, on 2 November 2018, ensure the delivery of the children to school and thereafter the father be responsible for them from after school on Friday 2 November 2018 until 3pm on 6 November 2018.

17. On 12 November 2018, the Court made orders by consent that, among other things, the children spend each alternate weekend during school term time over the summer holidays with the father and that otherwise the 2017 Orders remain in full force and effect.

18. On 1 November 2018 and 8 November 2018, the father sent to [X] images of persons who were disfigured or suffering from physical deformities. The mother subsequently took [X] to the Town K police station to make a statement, among other things,  about the images sent by the father. This is a matter which assumed some importance in the proceeding, and to which I return below.

19. The children spent time with the father over the 2018/2019 summer holidays.  The mother acknowledges that as being a happy occasion for the children.  Since the holidays, the children have seen their father every alternate weekend.  By all accounts that time is proceeding well.

The Contravention Proceedings against the Mother in this Court

1. In the contravention proceedings referred to above, the father relevantly alleged that the mother had contravened Court orders on two occasions.  The first occasion was the failure to make [X] available on 19 October 2018. The second occasion was the failure of the mother to deliver the children to the father’s residence at Town E for changeover. Judge Stewart accepted that it was common ground that [X] was not delivered on the relevant day, and that the mother had sent a text message unilaterally altering the changeover venue. The focus of the proceedings was whether the mother had a reasonable excuse for the contraventions.

2. Judge Stewart went through in some detail the factual history and various disputes leading up to the alleged contraventions. Having done so, Her Honour found that the mother had contravened Court orders on the two occasions specified.

3. The mother argued that she had a reasonable excuse for the contraventions.  In respect of the first contravention, the mother submitted that [X] was upset and anxious due to previous emotional upsets caused by the father, that [X] did not wish to see the father, and that the mother believed it was necessary to withhold [X] to protect her health and safety.  In relation to the second contravention, the mother submitted that she unilaterally changed the venue for changeover to protect the health and safety of [Y]. 

4. In respect of both of these submissions, Her Honour found that the mother did not have a reasonable excuse for the contraventions.  Specifically, Her Honour stated at [58] that she was:

   ‘…not satisfied that in relation to [X] on 19 October 2018 that the mother believed on reasonable grounds that not allowing [X] to see her father was necessary to protect the health or safety of a person including the respondent or child’. 

5. In relation to the second contravention, Her Honour stated at [61] that she was:

   ‘…not satisfied on the balance of probabilities that the change to the orders, unilaterally made by the mother, was necessary to protect the health or safety of [Y]’.

6. In reaching the conclusion that she did, Judge Stewart at paragraph [51] noted that history would suggest that the mother:

   ‘…pays little more than lip service to an attempt to comply with the orders rather than having any real insight into the impact of her own behaviour on the views of her children and how they cope with the prospect of seeing their father’.

7. Then, at paragraph [65], Her Honour stated as follows:

   ‘In this case I have observed the Mother has no respect to the children’s relationship with their Father and their right to have a meaningful relationship with their Father.  This does her no credit whatsoever.  This failure to understand the value to the children in maintaining a proper relationship with both of their parents is serious and may have very serious consequences for these children who have done nothing more than express their abiding desire to be able to have a proper relationship with both of their parents, while living with their Mother and spending proper and meaningful time with their Father’.

The hearing and the evidence

1. On the first day of the hearing, the matter was stood down to enable the parties to view subpoenaed material and confer. When the matter resumed, the ICL informed the Court that the Police were intending to charge the father in relation to further breaches of the intervention order. The conduct that is the subject of the alleged breaches is the father sending images to [X] of deformed or disfigured persons on 1 November 2018 and 8 November 2018 and in relation to denigrating comments he allegedly made about the mother. The ICL also informed the Court that given the father’s history, if a prosecution were successful, there is a good possibility he may face a term of imprisonment. Notwithstanding that, it was the view of all parties that the matter should proceed.

2. The father’s evidence was set out in his affidavits filed on 17 July 2018, 14 September 2018, 16 October 2018, 29 January 2019, 5 March 2019 and 23 May 2019. This evidence was largely unchallenged. In the witness box, the father presented as a person genuinely concerned about his children and his relationship with them.  He acknowledged his errors, including the sending of the images to [X]. On the whole, he was a credible witness who struck me as someone who keenly wants to have a relationship with his children but has been frustrated in doing so.

3. The mother was unrepresented. She relied on her affidavits filed on 9 August 2018, 28 August 2018, 17 October 2018, 29 October 2018 and 14 February 2019 and 21 May 2019.  In the witness box, the mother presented as someone who genuinely loves her children and is concerned for them. She suffered, however, from an inability to recall certain events accurately.  I formed the view, for reasons that I discuss further below, that her evidence was inconsistent at times. She appeared to, and did on one occasion, seek to change evidence when presented with a different view. 

4. The ICL relied on a family report prepared by Ms D, a Regulation 7 Family Consultant dated 14 February 2019, two Child Inclusive Conference Memorandums prepared by Ms B (one dated 18 May 2017, and the second dated 18 September 2018) and material subpoenaed from Victoria Police and Town A P-12 College.

5. The substance of the father’s case is that the mother has, over an extended period of time, hindered the children’s ability to maintain a valuable and meaningful relationship with him.  The father’s position is that the mother is either unable or unwilling to promote the children’s relationship with him.  On the contrary, he contends that the mother undermines his relationship with the children.  He says that not only does she actively refuse to cooperate and facilitate their relationship, but that she subtly undermines their relationship with him.  Whether she intends to do this is irrelevant because the consequences remain the same, namely, that her behaviour has the potential to damage the children’s relationship with him. It is for these reasons that the father contends that not only is the change of residence warranted, it is necessary to protect the ongoing emotional and psychological health of the children. 

6. The substance of the mother’s case is that the children have lived with her since birth. She has been the primary carer since that time.  The children live in a loving and supportive environment.  She has continued employment in various roles and has not only emotionally, but also financially, supported the children. She has paid for their living expenses and schooling expenses whereas the father’s contributions have largely been limited to gifts.  She says that the proposed move to Town F will enable the children to enjoy life in a rural setting and that they will be supported and welcome in the home of her new fiancé.  She says that she has examined the school in Town F and that the smaller class sizes will be of benefit to her children.

7. Insofar as the children have been withheld from seeing their father in recent years, the mother’s position is that this has been necessary to protect the health and safety of either her or the children.  The mother says that both she and the children have suffered from family violence perpetrated by the father.  She says that there has been abuse from the father at changeovers and that the children, particularly [X], have at times not wanted to see their father, despite her urgings that they need to see him.  Although she did not explicitly state the position in this way, it is clear that the mother relies on the history of the father having breached various intervention orders as supporting her position that the father has on numerous occasions acted in a threatening manner towards her or the children.  She says that she is someone who is able to support the children seeing their father, and has suggested counselling to assist with the resolution of any issues. 

8. The ICL supported a change of residence of the children from the mother to the father.  The ICL submitted that recent events concerning the mother’s response to the images being sent to [X] and the mother involving [X] in making a statement against the father to the police had resulted in the ICL fortifying its position in support of the father. The ICL noted that any prosecution brought by the police will only succeed if [X] is placed in the position of giving evidence against her father. If the father is then sent to prison, it will be because of [X]’s evidence. The ICL submitted that the mother has effectively engineered this situation and, in doing so, has had complete disregard to the position that [X] is now in and the harm that will be caused to [X].

9. Having heard the evidence and submissions of the parties, it is apparent that the focus of the case by the father and the ICL is very much centred on two principal propositions.  The first is that the mother has hindered and sought to undermine the children having a meaningful relationship with the father over an extended period.  Second, that the more recent conduct in involving [X] in the bringing of criminal charges against the father will bring about direct emotional or psychological harm to [X].  While these are obviously serious matters which occupy much of these reasons, it is pertinent to observe that this is not a case in which it is alleged in any significant way that the mother has been neglectful of the children or not provided for their needs.  It seems to me that many of the contentions advanced by the mother can be accepted; that she has provided a loving home environment for the children, that she has attended to their accommodation, educational and other needs, and that the children, having lived with her their entire lives since separation, have an entrenched close relationship with her.

10. I turn now to deal with some of the principal assertions and factual disputes that have arisen in this matter.

The allegations of abuse and violence made against the father

1. The mother contends that she was subject to family violence during the relationship. The extent of family violence during the period that the parties were cohabiting is not deposed to in any detail in her affidavit material.  

2. The mother also alleges that family violence has occurred post separation. The mother contends that both she and the children have been subjected to anger and abuse by the father post separation. These concerns are reflected in the Notice of Risk filed by the mother in the proceeding. She also makes specific allegations of verbal abuse during periods of changeover. For example, she alleges that in September 2017, she was harassed by the father and the children in relation to monetary issues. She alleges that during a changeover, she was abused by the father saying to her ‘I will see you in Court’[1].

   [1] Paragraph 3 of the Affidavit of the mother filed on 9 August 2018.

3. The mother has obtained intervention orders against the father.  The most recent intervention order was issued by the Magistrates Court of Victoria at Town K on 24 September 2013. It is expressed to continue until further order and therefore, appears on its face to operate indefinitely. The mother and the children are listed as protected persons.

4. The intervention orders obtained by the mother have been breached by the father. There is no dispute that the father has breached intervention orders five times: on 22 October 2009, 20 July 2010, 26 August 2014, 28 February 2017 and 14 June 2018.

5. The father was cross-examined in relation to the various breaches of the intervention orders.  He conceded that he had breached the orders. It was put to him, and he agreed, that the breaches primarily related to matters such as inappropriate texting, inappropriate telephone discussions and the like. He acknowledged that he also attended work to try to speak to the mother and that he vented his frustrations to the mother in relation to her breaches of the parenting orders that were in place which led to him being unable to see his children. The father firmly denied any physical violence, which denial I accept.

6. The full circumstances of each breach of the intervention orders were not before me. While it might be the father is able to explain the various breaches of intervention orders, breaching an intervention order is a serious matter and one that the Court ought not disregard.

7. While the mother makes allegations concerning abuse, or feeling threatened, her own evidence in relation to these matters contained within her affidavits appears somewhat inconsistent.  On the one hand, the mother deposes in her affidavit of 13 August 2018 to suspending time between the father and the children due to safety fears and emotional abuse towards the children.  On the other hand, in a later affidavit sworn on 17 October 2018, the mother deposes that she and the father are ‘not in a high conflict situation’.  I note in passing that I find it difficult to accept the assertion that the parents are not in a high conflict situation given the history of the father in breaching various intervention orders made by the Courts.  It seems to me that whatever may be the nature and the extent of the family violence, the parties are in a high conflict situation.

8. There is then the conduct of the mother in relation to her decision to unilaterally suspend the father’s time in around November 2016 (which I discuss in further detail below).  The mother’s evidence is that she suspended time because of concerns about the safety of the children. 

9. The unilateral suspension of time by the mother ultimately led to orders being made that the father spend supervised time with the children at the Berry Street Contact Centre.  The mother completed a form for supervised time with the father at Berry Street Contact Centre on 4 February 2017.  In that form, in response to a direct question, the mother indicated she did not have any safety concerns for the children.  She also indicated that she did not have any concerns about the father having contact with the children. The mother was cross examined about her completion of this form and her answer. She initially agreed with her answer, though later sought to change her answer to say she did have safety concerns.

10. There is then the evidence of Ms B. In her memorandum following the Child Inclusive Conference on 18 September 2018, Ms B commented on the mother, the father, family violence and the family dynamic.

11. In relation to the father, Ms B commented that the father was described as:

    ‘…“mean and nasty” and uncertainty was expressed about this claim but the advice was that occasionally this is true although he is not as frequently aroused as is [the mother] and he is not abusive to the children’.  She also noted that it is ‘highly probable that at times [the father] has been utterly inappropriate in his comments to the children and this is unacceptable…’.

12. In relation to the mother, Ms B noted in her 18 May 2017 memorandum that:

    a)the mother lacks insight into her own behaviour, cannot listen to feedback and her behaviour swiftly escalates to the point where she becomes dysregulated and aggressive; and

    b)the mother amplifies any claims and misattributes events as abuse, minimising her own behaviour and failing to recognise that her behaviour has a causal link to many of the prevailing issues.

13. In respect of risks to the children emanating from the father and the mother, Ms B noted that there were nil risks to the children in the father’s care, but concerns are raised about the mother’s ability to support the children having a relationship with their father as well as the psychological and emotional damage inflicted on the children as a result of being withheld from their father.

14. It is also relevant to consider the views of both Ms B and Ms D on the family dynamic.  When those reports are read, it is plain that the children have been exposed to conflict and inappropriate behaviour from both parents.  Ms D in her report documents the way each parent describes the other in derogatory terms.  She also notes the responses from both parents in relation to the pictures that were sent to [X] by the father and states at paragraph 61 of her report that:

    ‘The mother considers that as the breaches of intervention order against the father and the father explains that it is “just for fun sharing”. These are the kind of juvenile interactions between the parents likely to influence the future course of this family. The parties need to be mindful that both parents have an option to not become involved in this type of circular and negative behaviour which does not enrich the lives of their children but fills them with anxiety and creates eternal confusion in their psych about “who is right and who is wrong”’.

15. It seems clear that in this matter, both parents have behaved inappropriately at times and have denigrated the other, and that this behaviour has occurred in front of the children.  The question remains however as to whether there is any unacceptable risk in relation to the children being exposed to family violence from the father given the allegations made by the mother.

16. In my view, given the views of Ms B and Ms D and the other matters noted above about the behaviour of the parents and the family dynamic, there is not an unacceptable risk of the children being exposed to family violence from the father. I make that comment subject to this observation.  It seems clear that unless the parties modify their behaviour, the children will continue to be exposed to a situation in which each parent either denigrates or abuses the other, or involves them in the parental conflict.  That is something that both of these parents need to bear in mind.

Unilateral suspension of time by the mother in 2016

1. An issue in this case was the bona fides of the mother in unilaterally suspending time with the father in 2016 which ultimately led to the father not seeing the children for a period, and then having to see the children on a supervised basis.  The father’s case is that the unilateral suspension of time in 2016 is evidence of the mother seeking to hinder a meaningful relationship between him and the children.  The mother says she unilaterally suspended time to protect the health and safety of the children.

2. Under cross examination, the mother was asked why she unilaterally suspended time in November 2016. The mother said that she held concerns for the children’s safety at the hands of the father. She agreed she was concerned about comments made by the father to the children.

3. The mother was shown a copy of the form for Berry Street children’s contact service that she completed on 4 February 2017. As noted above, in that form, in response to a direct question, the mother indicated she did not have any safety concerns. She also indicated she did not have any concerns about the father having contact with the children. When the above form was put to the mother and she was questioned about it, she sought to change her evidence to say that she did have safety concerns. 

4. The mother’s evidence in relation to what caused the first period of withholding the children in November 2016 is unreliable at best. Her affidavit material alludes to concerns about safety. Her initial evidence in the witness box, however, was that there were no concerns for the safety of the children. The form for Berry Street which she completed supports this. However, when confronted with that form, she first accepted the correctness of the form, but then later sought to change her evidence.

5. I have considered the matters above, the mother’s demeanour in the witness box, and also my earlier comments in relation to the risks of family violence.  On the balance of probabilities, I am not satisfied that the mother genuinely believed that the children were at risk of harm when she unilaterally suspended time in November 2016. 

Unilateral suspension of time by the mother in 2017

1. On this occasion, the mother unilaterally suspended time with the father from November 2017 until September 2018.

2. The events leading up to this suspension of time are documented in the affidavit of the father filed on 5 March 2019.  In summary, the father spent time with the children in the 2017 September school holidays before receiving a message from the mother that the children no longer wanted to see him.  There is no contest that this suspension of time occurred. 

3. The mother was questioned about this during cross examination. The mother stood by the statements she made in her affidavits that this suspension of time that commenced in November 2017 occurred because she held concerns for the children’s safety.

4. I have considered earlier in these reasons the risks to the children from the father. Those matters are relevant in relation to this issue and I rely on them.

5. I have also made findings in relation to the reliability of the evidence given by the mother in relation to the stoppages of time, and the mother’s tendency to amplify her concerns as described by Ms B. I have regard to that opinion.  

6. It is also relevant to take account of the memorandum, following the second Child Inclusive Conference conducted by Ms B, on 18 September 2018. In the memorandum that followed that conference, Ms B made the following observations in respect of the safety issues alleged by the mother. These observations were made during the time the mother had suspended the father’s time unilaterally in 2017:

   ‘[The mother] found it difficult to answer questions directly, she appeared vague and contradictory.  [The mother] could not identify any safety issue that would impel her to withhold contact of the children from their father, other than to reflect her need to control events and prioritise her own needs and her partnerships’.

7. When all of the above matters are taken into account, on the balance of probabilities, I am not satisfied that the mother believed that the children were at risk of harm when she unilaterally suspended time in November 2017.

The conduct of the father in November 2018 and the mother’s response

1. The evidence is that on 1 and 8 November 2018, the father sent images of deformed or disfigured persons to [X].  The mother took no steps to deal with it at that time.

2. According to a statement made by the mother to the police on 26 November 2018 (annexure 2-2.01 of the mother’s affidavit filed on 14 February 2019), on the preceding day being 25 November 2018, [X] presented as distressed following a conversation with her father.  In her statement, the mother refers to the images sent by the father to [X] and about how [X] was distressed by them.  In her police statement, the mother also describes a conversation that [X] says she had with the father where the mother is referred to as ‘being an arsehole again’ and how these days kids are ‘all fucked up’.

3. On 28 November 2018, [X] made a statement about to the police (annexure 3-3.01 of the mother’s affidavit filed on 14 February 2019). In her statement, [X] documents her father sending the photos to her and states she is upset when her father said that she looked like one of the girls in the photo.  She also in the statement refers to her father calling her mother a ‘fucking bitch’, to the father’s continual swearing and to the father displaying anger. She states that she does not want to see, or live with, her father.

1. There is no dispute that the father sent images to [X] of persons who were disfigured or otherwise suffered from some physical deformity.  The father says he was speaking to the children by telephone and they asked him what he was watching. He told them he was watching a television show called … and that he explained to them what it was about, being voluntary doctors and surgeons from all over the world who travel to places giving medical help and operations to those who cannot afford it. He says that [X] then asked him to send her a couple of pictures from the show, which he did. He said he sent them to her and she laughed. He said he was subsequently informed that a complaint had been made and that [X] has made a police statement about it.

2. The father was cross-examined about these matters. Given the prospect of charges being laid against him for breaching an intervention order as noted earlier, I issued a certificate in respect of his evidence pursuant to section 128 of the Evidence Act 1995.  Under cross examination, the father admitted among other things that he was a ‘total idiot’[2] for sending the photos to [X]. He admitted to comparing [X] to someone in the photos, but said it was a joke. He denied denigrating the mother but admitted to the use of foul language, stating that the children also swear.

   [2] Transcript of the hearing on 30 May 2019, p.54, l.31

3. The mother’s evidence is that [X] was distressed by the photos.  As a result, she took action in respect of them.

4. The mother’s evidence in relation to [X]’s reaction is at odds with the evidence of Ms D, who during cross examination in relation to the images sent to [X] said:

   ‘But these pictures, they [the children] didn’t like it, but they didn’t make a big issue of it when I spoke to them. That is why there is not much in my report. But the mother was making an issue of that. And then the pictures don’t look very nice. And I was not sure why the father was sending that’.[3]

   [3] Transcript of the hearing on 31 May 2019, p.179, l.29-33

5. The information provided from the bar table by the ICL is that the father will be charged in connection with the above. The ICL also submitted that given the father’s history, if he is convicted, there is a prospect that he may be imprisoned.

6. The developments noted above were raised with Ms B and Ms D under cross examination.  Both experts were asked by Counsel whether the conduct of the mother in taking [X] to the police station to make a statement against her father, was child abuse. Both agreed that such conduct did amount to child abuse. Ms B went on to describe the conduct as amounting to emotional or psychological harm. Ms D indicated that in her opinion the mother wanted to ‘punish’[4] the father.   

   [4] Transcript of the hearing on 31 May 2019, p.180, l.1

7. The assertion that the mother has engaged in ‘child abuse’ is an assertion to be treated with caution, given the facts of this matter and the way the trial unfolded. The term ‘abuse’ is defined in section 4 of the Act. Relevant to this case, is sub paragraph (c) of the definition which defines abuse as meaning ‘causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence’. One can readily see how a child being placed in the position of giving evidence against a parent, which may result in that parent being sent to prison, may cause harm to the child. It certainly creates a risk of psychological harm. It is, however, quite another thing to make a finding that such conduct constitutes ‘child abuse’ for the purposes of the Act, particularly when one has regard to the fact that this was a recent development and both experts had no prior opportunity to consider the totality of the situation prior to entering the witness box. Having considered all the circumstances, I am satisfied the conduct does not fall within the definition of child ‘abuse’ as that term is defined in the Act. It is, however, conduct that is of great concern because of the risk of harm, including psychological harm, to the child.

8. The father’s decision to send the pictures, and the mother’s reaction to it, is a further example of the inability of both of these parents to create a positive environment for these children, which on the evidence both children crave.  Ms D described it as a ‘very circular and negative exchanges going on and the children are totally confused about it’.[5] It is difficult to disagree with that observation.

The mother’s capacity to foster the children’s relationship with the father and to prioritise the children’s interests

[5] Transcript of the hearing on 31 May 2019, p.179, l.28

1. As will be apparent from what is set out earlier, the mother’s presentation and conduct was the subject of significant comment by Ms B following the first Child Inclusive Conference on 18 May 2017.  Among other things, Ms B made the following comments about the mother:

   ‘[The mother’s] presentation in interview was deeply concerning.  She was self-focused and genuinely distressed about her financial difficulties and the breakup of her last relationship

   …

   [The mother] is dysregulated and deeply distressed in interview but denies that she is depressed and she reports no treatment for depression.

   …

   The children report that at times their mother physically disciplines them and she has placed them in unsafe situations with her partners.

   …

   The children describe their mother as controlling, that she prohibits them from telephoning their father at times and previously has stopped them spending time with their father.  They report the telephone is on loud speaker and their mother is often “…screaming and swearing” whilst they are trying to talk to their father and she requires they cut the calls short.  Both children reported a strong desire to speak to their father regularly but they also report significant stress created by [the mother’s] need to control this event and that she varies the times and occasions on which calls occur.  The children explained that, at times this process becomes too difficult for them so they tell their mother they do not wish to talk to their father.

   …

   There are nil risks to the children in their father’s care but concerns are raised about [the mother’s] ability to support the children having a relationship with their father and the psychological and emotional damage inflicted on the children from withholding them from their father and exposing them to multiple partners.

   …

   [The mother] appears to have difficulty separating her issues about her relationship with Mr Shipley from the children’s wish to have an ongoing relationship with their father.

   …

   [The mother] presents as experiencing difficulty co-operating with others and she is unable to hear or accommodate views other than her own.  She has attempted to parent the children well but she has also prioritized her own needs and relationships over the needs of the children

   …

   [X] admitted to being intensely angry that her mother had stopped her seeing her father because “…I know mum doesn’t want us to see him.”  [X] cried about her mother “…making it difficult (for me) to have a relationship with dad” and explained she had “…been miserable a long time about this.

   …

   The children are constantly immersed in [the mother’s] frustrations about unresolved issues in her relationships. The children are then withheld from their father, denied or limited in their capacity to communicate with him to satisfy [the mother’s] need for control.  This is not a child focused perspective and does not accommodate these children’s loving relationship with their father and their real need to spend time and communicate with him.’

2. As noted earlier, Ms B conducted a second Child Inclusive Conference on Tuesday, 18 September 2018. In the memorandum that followed that conference, Ms B noted the following:

   ‘[The mother] experiences difficulty supporting the children to have a relationship with their father and she lacks insight into her own behaviour and the extent to which she contrives events and manipulates the children’s emotions.

   …

   [The mother] actively frustrates the children’s opportunities to speak with or spend time with their father as for example, her unwillingness to drive the children to changeover results in the children not spending time with the father.

   …

   [The mother] continues to present herself as the victim of abuse but it is more apposite to consider her as abusive to the children by withholding them from their father and needlessly creating emotional turmoil in their lives. Both children were clear they want “…normal lives” free from the emotional tug of war in which they repeatedly find themselves.’

3. The mother took issue with the memorandums prepared by Ms B.  While cross examination was limited given the mother was unrepresented, the views of Ms B and the conclusion she expresses are hotly contested by the mother.  In her affidavit evidence, the mother describes the memorandum prepared by Ms B in September 2018 as unfair on her, and biased.

4. Ms D, who prepared the most recent family report, was somewhat less critical of the mother. Ms D noted, however, that while the mother had promised that she would not stop the children from spending time with the father, whether she could keep that promise would be difficult to predict.

5. There is then the mother’s position in relation to involving [X] in the making of a statement to the police against the father. The mother heard the evidence of both experts in relation to this and the impact on [X]. She did not, at least at the time of the trial, commit to taking steps to keep [X] from giving evidence against her father.

6. When the above matters are taken into account, I have serious doubts that the mother has the capacity to support a meaningful relationship between the father and the children. I have formed this view having regard to the observations made by Ms B in each of her memorandums.  I also form this view having regard to the history of this matter, in particular the visible distress reported by the children to Ms B during each of the Child Inclusive Conferences, the mother unilaterally withholding time in 2016 and 2017 for spurious reasons and the mother’s decision, at least at the time of trial, not to commit to taking steps to stop [X] giving evidence against her father in a police matter. Her apparent rigid adherence to this course of action and her inability to change her behaviours in the face of expert opinion is demonstrative of her lack of ability to consider the views of others, even in circumstances where the wellbeing of the children is placed in issue.  These are all matters that lead me to conclude that the mother either does not want or is not capable of fostering a relationship between these children and their father in circumstances where the evidence is that both children and the father wish to spend time with each other.

Risk to the children of psychological harm from the mother and the mother’s ability to meet the emotional needs of the children

1. I have indicated above that there is a risk of psychological harm to [X] in relation to the mother’s decision to involve her in providing a statement to police which may result in her father being imprisoned.

2. I am satisfied that both children are at risk of emotional and/or psychological harm from the mother, and that the mother is unable to meet their emotional needs in so far as supporting a relationship with the father is concerned.

The Father’s ability to foster a relationship between the children and their mother

1. The father’s evidence was that if the children lived with him, he would support them maintaining a relationship with the mother.  There is no evidence before me that contradicts this.

2. The father says that when the children are with him, he always permits them to contact their mother at any time.  I have no reason to doubt that, however I observe that this is a comment made in circumstances where the father’s time is necessarily limited because the children live with the mother.  Quite how that arrangement will work, and whether the father’s attitude would change in the event children lived with him, is a matter that is untested.

3. The mother accepted that if the children live with the father, she will be allowed to visit them.

4. In these circumstances,  I am satisfied that should the children go to live with the father, he will take steps to ensure the children maintain a relationship with their mother.

The expert witnesses

1. I have referred in some detail to the evidence of the experts in this matter.  Both of these experts were cross-examined.  There are some final matters to mention in respect of their evidence.

2. The Second Child Inclusive Conference conducted by Ms B occurred on 18 September 2018.  It appears to be the case that this report led to the father’s time with the children being reinstated.

3. It is apparent from the memorandum that Ms B was of the view that if the Court was satisfied, the time to change residence from the mother to the father might be imminent. I refer in particular to the paragraph set out below:

   ‘These children sit at the heart of this dilemma and whilst they wish to live with their mother this must be weighed against the track record of [the mother’s] persistent, intentional non-compliance with Court Orders, her manipulation of issues with a focus on discrediting Mr Shipley and repeated restrictions on his time with the children. The Court may form a view that there is little likelihood of [the mother] changing her behaviour and only a change of residence for the children would provide them with some emotional stability and consistency, replacing the on-going turmoil in their life. If this was the Court’s position this transition should be expedited.

   ….

   Should [the mother] frustrate changeover whether through claims of the children’s illness, or because she arrives late or collects the children early or she has on-going discussions with the children about parenting matters or restricts telephone conversations or confiscates any telephone supplied to the children or raises issues in relation to the IVO with third parties then it would be recommended that there be an immediate change of residence for the children who should then live with their father and spend time with their mother each alternate weekend.’

4. Ms D prepared a Family Report for the purposes of the trial.  The key recommendation from her written report is extracted below:

   ‘63.The writer is of the view that forcing [X] and [Y] to reside in their father’s care at this stage is not going to be beneficial for them and also likely to be destructive to the relationship between the children and the father. The writer recommends that the children continue to reside with their mother and spend time with their father for the foreseeable future. If the mother is agreeable not to reduce children’s time with the father and furthermore willing to continue exchanging the children from Town L as per the current practice, it is only fair that she is not restrained from relocating the children with her to Town F that allows her the freedom to reside in a place and partner of her choice.’

5. During the trial of the matter, it became apparent that Ms D had not been provided with the 11F memorandums prepared by Ms B at the time that she prepared her written report. The matter was stood down briefly to enable Ms D to review the 11F memorandums and also to consider the information obtained from the ICL in relation to the mother taking [X] to the police station to make a statement against the father.

6. When the matter resumed, Ms D was cross examined in relation to her report. During the cross examination, Ms D:

   a)accepted as a general proposition that the mother’s behaviour had not changed;

   b)stated that any move to live with the father will cause disruption to the lives of the children;

   c)agreed that the children having a relationship with both parents is more beneficial than any short term issues the children may experience if they are required to relocate to live with the father;

   d)agreed that for the children to have a relationship with both parents, the children need to live with their father, but did not know whether this was the only option available.

7. I asked Ms D why her view appeared to have changed from the written report. She stated, among other things, that the mother’s conduct in taking [X] to the police was ‘not very good for them’.[6]

   [6] Transcript of the hearing on 31 May 2019, p.194. l.41

8. I also asked Ms D in light of her answers what options there were, other than changing residence to the father. She indicated that a possibility could be that the children live with the mother, but if the mother breaches the next order, then they could live with the father.

9. The evidence of each of the expert witnesses was not successfully challenged by the mother. I accept the evidence of the expert witnesses as outlined above.

The Law

1. The Act sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.

2. Section 61DA of the Acts contains a presumption in parenting matters that parental responsibility is to be equally shared.

3. Where parental responsibility is shared, section 65DAA(1) of the Act requires a Court to consider whether the children are able to spend equal time with each parent. Where parental responsibility is shared and the Court does not make an order for the children to spend equal time with each parent, the Court is required to consider whether the children can spend substantial and significant time with the non-resident parent.

4. Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in the children’s best interests.

5. The primary considerations in relation to what is in the children’s best interests are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b).

6. Finally, section 60CC(3) sets out the additional considerations that a Court must have regard to in considering what is in the child’s best interests.

7. I turn now to consider the above principles in the context of the present matter.

Consideration

Parental Responsibility

1. Parental responsibility was not an issue in this matter.  Both parents agreed that parental responsibility should be equally shared. 

Equal Time or Substantial and Significant Time with each Parent

1. Section 65DAA(1) of the Act requires the Court to consider whether the children spending equal time with each of the parents would be in the best interests of the children and whether it would be reasonably practicable.

2. Section 65DAA(2) provides that if the parents are to have equal shared parental responsibility, and the Court does not make an order for the children to spend equal time with each of the parents, the Court must consider whether it is in the children’s best interests for them to spend substantial and significant time with each parent and whether it is reasonably practicable to do so.

3. I have had regard to the criteria set out in section 65DAA(3), (4) and (5). It is not reasonably practical to order equal time or substantial and significant time in this matter. The parties presently live 3 hours apart. The mother’s relocation to Town F means that the parents will live approximately 3½ to 4 hours apart. That distance makes it not practicable for these children spend equal time or substantial and significant time with each of the parents as contemplated by the Act.

Parenting arrangements and best interest of the children

1. I turn now to consider the children’s best interests in relation to the dispute before me.

2. Children need to be given the benefit of having a meaningful relationship with both parents.  The evidence contained in the reports of Ms B and Ms D is that the children love both of their parents.  They would appear to have a meaningful relationship with each parent when in the company of that parent.

3. A critical issue for this Court however, is the mother’s attitude to the children having a relationship with the father. I have made findings in relation to this matter above and do not repeat them here.  I am satisfied that the children will have a better prospect of maintaining a relationship that is meaningful with both parents if they reside with their father.

4. The children’s exposure to physical or psychological harm, abuse, neglect or family violence was the subject of some debate in this proceeding. There are various aspects to this issue that require consideration.

5. There are comments by Ms B in relation to both the father and the mother and the way they conduct themselves in front of the children.

6. In relation to the mother, Ms B stated the following in her memorandum following the second Child Inclusive Conference Memorandum:

   ‘The children reported that [the mother] “…is not angry everyday” but she is frequently abusive to the children and they experienced recriminations about the previous Child Inclusive Memorandum.  There are claims [the mother] “…doesn’t hit us anymore.”’

7. In relation to the Father, Ms B reported that ‘[the father] was described as “mean and nasty”.

8. It is clear on the evidence that both parents have at various times exposed the children to acrimony and disagreements. Both appear to have conducted themselves in a way that pose a risk of harm to the children through exposing the children to acrimony and abuse. The children report that themselves through the family consultants. The inability of each parent to curb their behaviours is a sad reflection on both of them. It is affecting their children.

9. Additionally, as noted above, I have considered the risk of psychological harm to [X] occasioned by the mother involving her in making a statement to the police against the father. That is a relevant consideration. There is, however, another aspect to this. If a change of residence were to occur, and the mother did not take steps to seek to bring the police prosecution to an end, the position would be that [X] would be living in a home with her father, a person against whom she is to give evidence.  It is not difficult to envisage that, as any hearing into the breach of the intervention orders moves closer, there is a prospect that [X] would become more distressed, and that any relationship with her father would become more strained. This would all occur in circumstances where [X] would, for the first time, be residing away from her mother, the person who has been her primary carer since separation. This circumstance also gives rise to the risk of [X] suffering psychological harm.

10. There are risks to the children because of the way the parents interact with each other which I have discussed above. There are particular risks, however, also noted above in relation to the psychological and emotional health of these children given the way in which the mother has hindered the children’s relationship with the father. Having considered the totality of the evidence, however, I am satisfied that when the principal factors looked at under section 60CC(2) of the Act are considered, they lend support to a conclusion that the children live with the father.

11. It is then necessary to consider the factors under section 60CC(3) of the Act. I turn to consider the views of the children.

12. [X] is currently 12 years of age. [Y] is 11 years of age. The ages of the children are such that consideration needs to be given to their views.

13. Both children clearly expressed to Ms D in February 2019 that they wish to remain living with their mother and spending time with their father. [X] expressed this view to Ms B as well in September 2018.  [Y] told Ms B in September 2018 that she wished to remain in Town A.

14. While the children appear to strongly hold the view above, they do not appear to have been asked what their view or reaction might be if the Court were to order that they live with their father. It would have been desirable to have that information, given the ages of these children.

15. [X] has at times refused to see her father.  In relation to this, and [X]’s views generally, the following comments by Ms B in her second Memorandum are relevant:

    ‘[X] explained that she “...  once” screamed in protest about seeing her father but in tears and clearly distressed [X] reported “...  There is not a problem with dad but I am totally torn” explaining “...  I can’t speak to mum as she is too busy to talk to me, but I have no idea why mum doesn’t want me to see dad”.  [X] feels under considerable pressure from both her parents but is aligned with her mother and so considered it easier to withdraw from spending time with her father as she believed this would appease her mother’.

16. When considering the children’s views, the following comments by Ms B in the same Memorandum are also relevant:

    ‘Both children reported a strong awareness that their mother does not want them to spend time or communicate with their father, and this causes them great distress. They identified she intrudes on any telephone calls with their father and she interrogates them on return from spending time with their father.

    …

    It appears that [the mother] is controlling and coercive with the children and oblivious to the distress she creates or to the children’s level of emotional and psychological distress and their wish “…to have a normal life” being one in which they will live with one parent and spend time happily with the other parent.’

17. Ms D, in her written report placed some emphasis on the fact that the children wished to remain living with their mother. She commented that

    ‘63.The writer is of the view that forcing [X] and [Y] to reside in their father’s care at this stage is not going to be beneficial for them and also likely to be destructive to the relationship between the children the father’.

18. Under cross examination, Ms D accepted that to have a relationship with both parents, the children must live with their father.  Despite repeated questioning however, she continued to have reservations about that course given, among other things, the children’s views. In fact, she actively queried whether there was another option.

19. Finally, it is relevant to note the submissions of the ICL.  The ICL is strongly of the view the children need to live with their father.

20. In R v R (2000) 155 FLR 29, the Full Court had this to say in relation to the weight to be given to the views of the children:

    ‘54.There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested.  Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests’.

21. This is a matter in which some weight needs to be given to the views of the children.  They have expressed those views clearly to Ms D.  They have expressed those views to their father as well.  That they have been able to express those views to their father, notwithstanding the entrenched parental conflict that they face, is of some significance.  I also take into account, however, in considering the question of what weight to give the children’s views, the comments and observations of Ms B that there does appear to be some alignment between [X] and the mother, and that [X] considers it somewhat easier to withdraw from her father. 

22. It is clear from the reports of Ms D and Ms B that the children enjoy a positive relationship with both of their parents.  They want to live with their mother.  They want to spend time with their father.  I have noted earlier that the mother has been the primary carer of these children.  The nature of the relationship between the mother and the children, other than the mother’s support for the children’s relationship with the father, is not the subject of any criticism and I am of the view the relationship is a sound one. I have observed that the children enjoy a close relationship with the father, though how the nature of that relationship may develop should the father become the primary carer is a matter that is untested.

23. Both parents have participated in making decisions and spending time with the children. The father has taken opportunities to do so notwithstanding some of the obstacles that have been placed in his path by the mother.  At one point, the father did express a view that he would withdraw from the children. I am satisfied this statement was made in the context of frustrations of dealing with the mother. He is here now, genuine in his desire to live with the children.

24. To the extent that the father has been absent for periods of time for example, in 2016 and 2017 when the mother stopped time, I find that this was not attributable to his conduct but rather circumstances beyond his control, which prevented him from having the opportunity to spend time with his children.

25. It is also relevant to note that the children’s relationship with their father has been fractured, unstable and unpredictable, as noted above and throughout these reasons. I am satisfied that if the children remain in the care of the mother, this pattern will likely continue.

26. A feature of this case is that whatever the outcome, the children’s circumstances, in particular their place of residence, will change. The change of residence will mean a change of school, removal from friends and a change in lifestyle.  They presently reside in Town A. They will have to relocate to either Town F, New South Wales, or Town E, Victoria.  Neither the father nor the ICL supported a position which saw the children remaining in Town A and the mother being required to live in Town A. The fact that a relocation will occur whatever the decision of this Court makes this case a difficult one. The children are at an age where being settled in their environment and being able to maintain their relationships with their peers assumes some importance. That they have to face that disruption whatever the outcome, is less than optimal and it is unfortunate that the Court is in the position of having to pick between them.

27. The impact of the change may be somewhat less on the children if they move to Town F with the mother rather than Town E with the father. Town F is much closer to Town A and would afford the children a better opportunity to try to maintain a relationship with any friends in the Town A area. That opportunity will become very difficult if they are to move to Town E for at least two reasons. First, the children will be further away. Second, it is likely that when they are in Town F, much of their time will be spent with the mother making it difficult for them to also spend time with any friends in Town A.

28. A practical matter to consider when assessing how well the children will respond to any change in their location will be the extent to which the parent with whom they live facilitates a relationship with the other parent. I have already found that the father is more likely to facilitate the children’s relationship with the mother. The father’s commitment to ensuring the relationship with the mother is, I think, a factor that may make some difference to the children when it comes to how they deal with the change of residence that is facing them. 

29. There is then the matter of the practical difficulty and expense of a child spending time with and communicating with the non-resident parent.  This is a factor that does not have significant applicability to the circumstances of this case. The children have already had to travel a substantial distance from Town A to their father’s residence in Town E. The current trip is around 3 hours travel and the children have had to cope with it for some years now.  The move to Town F will add a further 50 minutes travel time. In the context of the time the children currently spend travelling, I do not regard the additional time as being of much significance.

30. It is then necessary to assess the capacity of each of these parents to provide for the needs of the child, including their emotional and intellectual needs.  I have already dealt with the issues concerning the mother and the risks to the children’s emotional and psychological welfare arising from her conduct. There are however, some further matters to consider.

31. Both of these children are girls who are entering an age where it might be thought that they require their mother more. Given the length of the relationship with the mother as primary carer, I give some weight to this. The father recognised, however, that the children will need support on this level.  He indicated that his own mother is available to provide support, and that he would also rely on the children’s mother to provide that support to them.

32. It is also pertinent to consider the comments made by [X] at the Family Report interviews where it was reported that the changes [X] wishes to see were as follows:

    ‘42.…[the mother] was always busy with work, travel between the homes and other activities, she wished to spend more time with her mother.’

33. On one view, the comments above may be cause for concern. On the other hand, these are comments directed toward a parent with primary residence. Criticisms such as these are commonly made by children and reflect in my view the pressures on parents of modern life. It is not surprising the father would escape this criticism given that he is not the primary carer. Accordingly, I give the comment little weight.

34. It is difficult to make an overall assessment as to the capacity of each of these parents to provide emotional support. It is the case, as I have indicated, that the mother’s lack of support for a relationship between the children and the father, and her decision to place [X] at the heart of police proceedings against the father, indicate she lacks the ability to provide appropriately for [X]’s emotional needs.

35. A relevant factor in favour of the mother when looking at the ability to meet the needs of the children is the mother’s capacity for work. The mother has largely maintained employment. She earns an income. She has demonstrated the value of work to the children. When the mother’s ability to earn an  income is taken into account, I am satisfied that on a financial front, the mother is better able to meet the financial needs of these children than the father, who for various reasons has not been able to maintain employment.

36. The attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents is another factor which I am required to consider. The mother has been the primary carer for the children throughout their lives. She has housed them and looked after them. One of the children has had some difficulties at school. The mother was able, for a period when she could afford it, to arrange for tutoring for the child. The mother has done a reasonable job in providing for the basic needs of these children. I find she is capable of meeting the day to day needs of the children so far as food, education, health and accommodation (to name a few) are concerned. 

37. It is then necessary to consider whether there has been any family violence involving the children or a member of the children’s family, and whether any family violence order applies to the children or a member of the children’s family.  I have dealt with this issue earlier and rely on my earlier findings.

38. It is also necessary to consider which order is least likely to lead to the institution of further proceedings.  The mother’s position on this is that she will facilitate a relationship with the father and the parties should attend family counselling. The father’s position is that the mother has a history of breaching Court orders and if the children continue to reside with her, it could well lead to further proceedings.  He submits that the only way to alter this is to change the residence of the children because he will facilitate contact with the mother. There is some force in this submission and I take it into account.

39. There was some discussion during the hearing as to whether I could make an order that permitted the children to relocate with the mother, but in the event of a further breach by the mother, the children automatically moved to reside with their father.  This arose principally from the suggestion of Ms D.  I am not convinced that making what is effectively a self-executing order would reduce the prospect of litigation.  At the very least, the allegation of any further breach by the mother is a matter that would need to be tested in Court.  That fact alone means that the issuing of a self-executing order is of itself unlikely to reduce the need for litigation.

Other matters

1. There are a number of other considerations which make this matter a difficult one and one in which the outcome is finely balanced.

2. The first relates to the charges faced by the father and the consequence of the father being found guilty.  A finding of guilt on the basis of submissions received would appear to have the consequence that the father could spend time in prison.  If that were to occur after an order were made that the children live with the father, the consequences for these children could be significant.  The most obvious consequence is what is to happen to these children?  Would they need to live with their mother?  Would they have to live in Town F?  What would be the emotional and educational consequences for them of two relocations within the space of a period of 6 to 18 months?

3. The other aspect to this is the children’s strongly expressed views to their father, notwithstanding the view he expressed to them that ‘he would fight for them’ that they wish to remain living with their mother.  The children are of an age where they hold legitimate views which may well colour the relationship with their father if those views are not respected.  Questions arise as to the children’s emotional welfare if they do not like or take to living with their father.  There are also questions about how this father, who has never had the primary care of these children on a full-time basis since separation, will cope and the extent to which the pressures of being a primary carer will affect his ability to provide for the children, and his relationship with them.

4. Much of the focus on this case was on the shortcomings of the mother.  What was not emphasised during the hearing, however, was the mother’s long-standing, significant, and for the most part, successful contributions in raising these children. She has met their needs financially, educationally (to the extent she could) and emotionally, except for the serious issues relating to the children’s relationship with the father.  The children’s own views are that while she has shortcomings, they want to live with her.  The children appear keen on a farm life with the mother and her new partner.  Accordingly this application raises for the Court the real prospect of disrupting much that has gone well.

5. The father’s case comes down to this.  He has faced real and significant difficulties maintaining a relationship with his children given the conduct of the mother.  That affects seriously the children’s ability to enjoy a relationship with him. He will better support a situation which the children enjoy a relationship with both parents.  He has a good relationship with his children which will provide a good foundation for him to be their primary carer if he is given that opportunity. 

1. The real question therefore facing this Court is whether the shortcomings of the mother as canvassed above are of such significance that the children’s best interests are best served by changing residence. 

2. When all of the issues are considered, I am of the view that, on balance, a change of residence for these children is in their best interests. I will make orders to that effect, with such orders to provide that the children are to spend time with the mother on alternative weekends and during school holidays. The mother’s time will, however, be temporarily suspended to allow the children to settle into living with the father.  I note that the location of changeover, being Town G, was agreed between the parties during the hearing and the orders I will make will reflect that.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date:  6 August 2019