Stevens and McTaggart

FAMILY COURT OF AUSTRALIA

STEVENS & MCTAGGART

[2007] FamCA 1637

FAMILY LAW – CHILDREN – Best interests – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

U & U (2002) FLC 93-112
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Stevens

RESPONDENT:

Ms McTaggart

FILE NUMBER:

PAF

1149

2003

DATE DELIVERED:

18 October 2007

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

18 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mattar

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Ladopoulos

SOLICITOR FOR THE RESPONDENT:

Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Clarke

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Champion Legal

Orders

(1) That all existing parenting orders in respect of the subject children Z born … October 1996, B born … June 1998, J born … August 1999 and E born … January 2001 be and are hereby discharged.

(2) That the mother have sole parental responsibility for each of the subject children.

(3) That the subject children live with the mother in Tasmania.

(4) That the father spend time with the subject children as follows:

(a) For as long as he remains in New South Wales:
(i)For the whole of the Tasmanian school holidays between terms 1 and 2 and terms 2 and 3, for the period from the first Saturday after the last day of term to the Saturday immediately before the commencement of the next term, such period to include travelling time.
(ii)During Christmas school holidays:
A. In the period 2007/2008 and each alternate Tasmanian school holiday period thereafter from the first Saturday after the last day of term to the Sunday three weeks thereafter, such period to include travelling time.
B. In the year 2008/2009 and each alternate Tasmanian Christmas school holiday period thereafter from the first Saturday after New Year's Day to the Sunday three weeks thereafter, such period to include travelling time.

(iii)The father shall obtain at his expense air tickets for the children to travel from Tasmania to Sydney on the first day of each such period. The father shall make those tickets, or such information and documentation as may be necessary to collect boarding passes at the airport of departure, available to the mother not less than 21 days prior to the date of travel.
(iv)The mother shall place the children upon the specified flight from the airport of departure in accordance with the flight information provided by the father.
(v)The mother shall obtain at her expense air tickets for the children to travel from Sydney to Tasmania on the last day of each such period of time. The mother shall make those tickets, or such information and documentation as may be necessary to collect boarding passes from the airport of departure no less than 21 days prior to the date of travel.
(vi)The father shall place the children upon the specified flight from the airport of departure in accordance with the flight arrangements provided by the mother.

(b)In the event that the father lives in Tasmania and gives notice in writing of that fact to the mother, then he shall spend time with the children as follows:
(i)During school term for each alternate weekend commencing on the first weekend of each term in years ending in an odd number, and on the second weekend of term in years ending in an even number, such time to be from after school Friday to before school Monday.
(ii)For half of the Tasmanian school holidays being the first half in years ending in an odd number and the second half in years ending in an even number. For the purpose of this orders “the first half” shall mean the period from 9 am on the Saturday immediately after the last day of term to 6 pm on the day marking the midpoint and “the second half” shall mean the period commencing at 9 am on the day marking the midpoint until 6 pm on the Saturday immediately before the commencement of the next school term.
A.All changeovers for time pursuant to order 4b(ii) above shall be at a place nominated by the father and agreed to by the mother, or if not so agreed, at the police station nearest to the father's place of residence in Tasmania.

That the mother ensure that her partner, Mr C, shall not attend at any changeover and shall remain at a distance of not less than 500 metres from any such place or any school attended by the children from time to time.
That the mother ensure that Mr C not drive a motor vehicle with any of the children as passengers until he obtains a valid driver's licence, and by that I mean a licence valid in the state of Tasmania.
That when the children are living with the mother, she is to ensure the children are available to receive telephone calls from the father on two occasions each week, being Monday and Thursday evenings between 6pm and 7pm. During those calls the mother shall not, and she shall ensure that Mr C does not, speak or endeavour to speak to the father, nor shall she speak, nor permit Mr C to speak to the children during the course of their speaking with the father.
That when the children are spending time with the father pursuant to these orders, he is to ensure the children are available to receive telephone calls from the mother on two occasions each week, being Monday and Thursday evenings between 6pm and 7pm.
That the mother shall forthwith consult with the child Z's school counsellor to obtain advice as to any assistance that the counsellor can recommend for Z, and the mother shall do all things and follow all recommendations and consult with all professionals as may be advised by the school counsellor.
That the mother is to authorise and direct any person who is supplying health professional services to Z to provide details of such treatment and/or counselling to the father on request. The mother shall keep the father advised at all times of such persons involved in the care of Z.
That the mother is to authorise any school attended by the children to provide copies of all school reports and material usually made available to parents to the father at his expense.
That the mother shall not further move the children's place of residence from the state of Tasmania without obtaining the written consent of the father or an order of this Court.
That each party is to keep the other advised of their current residential address and a telephone number, preferably landline but in any event mobile, where the children may be contacted.
Noted that the family violence order made in the Local Court at … is inconsistent with these orders, in so far as these orders provide for the subject children to spend time with the father Mr Stevens. Accordingly pursuant to section 68Q of the Family Law Act 1975 as amended the said family violence order is invalid.
That the children be made available as soon as possible to the Independent Children's Lawyer for the purpose of the Independent Children's Lawyer explaining to them the nature and effect of these orders.
That the mother shall not bring any further application in respect of the children in any Court, save the Parramatta registry of the Family Court of Australia.
That the application of the independent children's lawyer for costs be and is hereby dismissed.
That all outstanding applications and cross-applications be and are hereby dismissed.
That all issues be removed from the pending cases list.
That all material produced on subpoena be returned not before 56 days from today.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF1149 of 2003

MR STEVENS

Applicant

And

MS MCTAGGART

Respondent

REASONS FOR JUDGMENT

Introduction

These distressing proceedings concern the future living arrangements for the parties' four children: Z who is now 11; B, 9; J, 8; and E, 6.
The children presently live with their mother and her partner, Mr C, in Tasmania. They have done so since early August 2007 and they wish to remain living in Tasmania with the children.
The father, who is in fact the applicant in these proceedings, seeks orders that the children live with him in Sydney. Further, there is on foot a late filed application by the paternal grandmother, Mrs Stevens, for the children to live with her and spend time with each of their parents. I will return to the various applications of the parties in more detail during the course of these reasons.

Brief Background

A brief background for the purpose of understanding the proceedings is as follows.
·The mother was born in March 1970 and the father in March 1973.
·Mr C, to whom I have already made reference, the mother's partner, was born in July 1979.
·The parties married in December 1995 and in October 1996 Z was born.
·B was born in June 1998.
·J was born in October 1999.
·E was born in January 2001.
·The parties separated on about 11 December 2002.
·On 31 August 2004 final orders were made by consent, and I will return to those orders later.
·In November 2004 the mother commenced her relationship with Mr C, but did not commence to reside with him, as she asserts, until 29 March the following year. At that time the children changed schools from P Public to N Public School.
·In November 2005 the father exercised contact with the children and the children were not returned on that occasion, the father advising the mother of that fact by an SMS text. Police then became involved.
·There were then a series of other incidents which I will not deal with as part of this hopefully non-contentious history.
·On 3 May 2007 the mother filed an application supported by affidavits seeking to vary the existing orders.
·On 4 June 2007 an interim apprehended violence order was obtained by police on behalf of the children for the protection of the children against the father, arising out of an episode which I will deal with again later.
·On 3 July 2007 orders were made on an ex parte basis, or at least in the absence of the father, suspending his time with the children and giving the mother sole parental responsibility. That event is one of the significant events in this sad history. The father explained - and I accept his explanation - that he was simply too stressed to participate in proceedings on that day. The tragedy of that is the wife was able, quite properly, to obtain an order whereby his time with the children was to be suspended and the mother was to have sole parental responsibility.
·Thereafter, on about 6 April, the mother left for Tasmania with her partner and the children, and an application was filed on her behalf on 17 August in this Court seeking leave retrospectively for her to locate with the children to Tasmania.
·On 24 September 2007 the hearing in respect of the police application for an AVO could not proceed. I am told it was because the father required the children for cross-examination and the mother had not made them available on that date.

The Parties’ Applications

The applications of the parties are these. The father commenced the proceedings by his application filed on 18 November 2005, which was subsequently the subject of an amended application filed on 11 October 2007. The mother's amended application, as she describes it, which is really a response, is filed on 17 November 2006.The application then of the grandmother was also filed on 11 October 2007.
Those applications clearly joined issue between the parties. The father wanted the children to live with him in Sydney, and to see their mother during school holidays. The mother wanted the children to remain with her in Tasmania and see the father on school holidays.
The grandmother's application - which I confess I had some difficulty with - seemed, after she had given her evidence, to be that in the event that neither the mother or father, in any order, could have the children, then she was available to have the children because she was worried about them. Mention was made that she believed that if she did not take some action there was a real prospect, my words, of the children being taken into some form of foster care. However, during the course of the evidence, nothing I have heard other than the grandmother's suggestion that something may have been said by the independent children's lawyer enables me to make any finding that there is such a risk.
Having said that, and in my condemnation of the parties and

Mr C, it seems to me that they should consider themselves lucky to a marked degree that there has not been the intervention by a care department, either in New South Wales or Tasmania, which may well have taken action resulting in the children being removed from either of these parents. This, if ever there was one, is a case of which is to be decided by determining the least worst option for the future of these children.

Parties’ Applications and Reports

The affidavit material of the parties is as follows.
·The father filed and relied upon his affidavits sworn on 18 November 2005, 5 March 2007 and 11 October 2007.
·The mother relied on affidavits of herself and her mother which were sworn on 11 October and filed on 11 October. There were earlier affidavits of each of the mother and grandmother.
·The paternal grandmother had filed an earlier affidavit on 29 January 2007. She filed a subsequent affidavit on 11 October 2007. The first affidavit was, strictly speaking, in support of her son's case but nonetheless I have treated both those affidavits as being filed in support of her own application to have the children reside with her.
·In addition to the affidavit material there was the report of Ms G, a family consultant of this registry of 11 October 2007.
Indeed, there were earlier reports of another counsellor, but they were not referred to nor relied upon during the hearing before me.

Witnesses who gave Evidence before Me

I heard evidence in turn from the father, his mother, the mother in the proceedings, her mother, Mr C. The last witness to give evidence was

Ms G, who spoke and was cross-examined in respect of her report.

Court Orders

There are significant Court orders in relation to this matter. On 31 August 2004 the parties, by consent, had orders made that the children were to reside with the mother. The parties were to continue to be jointly responsible for decisions and the father was to have contact with the children as it was then expressed, each alternate weekend from after school Friday to before school Monday, and from 12 noon to delivery to school the following Monday morning, each alternate weekend in the off weekend.
A number of other specific orders were made for Christmas school holidays and/or other specific days such as Father's and Mother's Day. There was restraint about the children being in a boat without life jackets. The parties were to use their best endeavours to encourage the children to obey and be cooperative with the other parent. And I take from that that even at the time those orders were made there were difficulties with behaviour exhibited by at least some of the children.
The next order of significance made was the order of 12 December 2005. Those orders provided that the children were not to be disciplined or chastised by the wife or her partner. They were not to be left in the care or supervision of Mr C in her absence. Mr C was not to be present at contact Changeovers and not communicate with the father or paternal grandmother. The children were to attend school promptly on each day of school. In addition it was ordered that the mother was to ensure that none of the children were to be conveyed in a motor vehicle by Mr C.
I will deal with the way in which I perceive Mr C treated these orders when I deal briefly with his evidence shortly. However, clearly, he treated those orders with disdain, if not contempt. Similarly, the wife did not seem particularly concerned that she had any obligation under the orders, in respect particularly of Mr C's involvement with the children.

The Father’s Case

The father's case is that the children must live with him to ensure their proper attendance at school. He considers education to be of the upmost importance. It is clear on the evidence before me that prior to leaving Tasmania and for the period during which school attendance records can be obtained, the children's attendance at school has been less than perfect.
There is, of course, the distinction between whole days were missed and days where the children are merely late. These matters are set out in exhibits A1, and to a lesser extent ICL1.
The father asserts that the children are coached by Mr C to say that they do not want to see him. He made it very clear at the commencement of his evidence that he had evidence that would establish this. In the end I have seen and heard one videotape and listened to one audio tape provided by the father. It is clear from those tapes that there were difficulties.
However, on the evidence that I have heard, I am not able to be satisfied that Mr C has coached the children as the husband asserts. I have my own views about what part Mr C may have played based on other evidence, and I will return to that shortly. The father is concerned at the drug use of Mr C, which is admitted, to a large degree, by Mr C. It is interesting to note that the mother describes Mr C as an addict, whereas Mr C denies that to be the case.

The Mother’s Case

The mother's case is that it was necessary for her to take the children and leave New South Wales because of the father's continued domestic violence towards her. I have not heard or read a great deal of evidence in this regard. However, it will be remembered that the father early in his evidence, when the issue of domestic violence was raised, was at pains to point out that there was no physical evidence of abuse, there were only allegations.
A difficulty with that proposition is that I have had the opportunity of seeing the criminal records of the father and Mr C. So far as the father is concerned, there are two, if not three, matters of contravening an apprehended domestic violence order. On 25 May 2003, at … Local Court, there was the commencement of a hearing, and the father was subsequently dealt with and placed on bond. The father does not seem to remember this. Further, on 25 February 2004, the father was fined and ordered to pay costs, and place on a further bond for 18 months.
It seems to me that there is to be gleaned from that that there have been episodes where the father has been dealt with for acts that clearly, in the view of the learned Magistrate, demonstrated a breach of the apprehended violence orders. Of course, in saying what I am saying I am not placing particular importance on the original apprehended violence orders themselves. But it follows conclusively that there must have been apprehended violence orders in place for any actions of the husband to constitute a breach.
The mother says that she and the children are doing as well as can be expected in Tasmania, that she and Mr C and the children are a family unit and they should not be in any way interfered with. She has indicated that if required she would return to New South Wales. She asserts that the father should pay half the travelling expenses to and from Tasmania, for the children to spend time with their father.

The Grandmother’s Case

The paternal grandmother's case, as I apprehend it, seems to be that she is to have great credit for saying she would have the children if neither parent could have them. She is offering herself as the placement of last resort, short of the children being taken into care. She took a very limited part in the proceedings. She did not cross-examine any of the witnesses and she addressed very briefly in respect of the orders that she sought.

Of course, having regard to the decision of the High Court in U & U[1], it is not just a matter of considering the parties' proposals. It is a matter of considering any other possible situations that could be enforced by orders that would be in the best interests of these children.
i)[1] (2002) FLC 93-112

The Evidence before Me

I turn, then, briefly, to the evidence of the parties as given before me. The father was the first witness. In-chief he conceded that he had used drugs until 1998, later saying 1999, and said that he had been in rehabilitation for two months. An issue was raised that he had not completed that course, but I heard no further evidence so as to be able to reach a concluded view.
He said he last saw the children on 27 May 2007. He denied any friends of his sniffing petrol or lighter fluid. He asserts that the mother will not communicate. The only form that she will employ is text messages. He said he had cared for his daughter, that he had sometimes left her with his mother when he went fishing with the boys. He said that he was paying $60 per month by way of child support for all of the children on the basis that he was on a low income. He said his method of discipline was by banning them from PlayStation for increasing periods. He had never used sticks or canes to strike them.
He said since December 2005 Z had changed, become rebellious, and he believed that Mr C was presently trying to interrupt his time with the children. He said that he has tapes, and he had told Mr C that he was going to tape.
He said that he had been worried about the children's school attendance and had been in touch with the school every two weeks up to May, receiving from them records of the children's school attendances. He said that the children had started to backchat him and had become argumentative. He said that they do not do what their parents say. He wants residence because the mother has not been a responsible parent, with no control, and has let Mr C take over. He wants to show that he can be a reasonable parent.
He was asked if he believed the changes he observed were because the children were aware of his conflict of Mr C, and he said he believed they were. He said that he had been some minutes late on a couple of occasions to collect the children. He said he has no equipment for the use of drugs at his home. He said that the children habitually lie and do so to please their mother. He said that the allegations made by the children could be what they think the parents want to hear.
He was questioned quite extensively about his child support. It became clear that he had money deducted from his Centrelink benefit, but in addition to that he was working for his father for eight hours a day, two and sometimes three days a week. He was paid $25 per hour in the hand if he worked. He said no deductions have ever been made from his pay as against his Centrelink income.
He said he would do anything a good father would. He agreed, however, that he had not paid child support over and above the extremely minimal amount, less than $4 a week per child that was deducted from his Centrelink benefit. He said he bought clothing and school needs but when put to the test could not substantiate this.
He said that the mother had been evicted because she had not paid rent. Again, he was asked questions about his child support and conceded he had an obligation to support the children. He agreed it would cost more than $120 a month to maintain them, and agreed his contribution was $60 a month.
It was put to him that he had grabbed the children and thrown them into a car in an episode in April. He said he did not know the child had red marks. He said he grabbed him, the child struggled, he was not aware of cars in the vicinity. He again spoke of a video footage. It was put to him that he felt a need to control the mother, which he denied saying he needed to control the children. He said the orders - those are the orders which stripped him of his contact - were made in his absence. He said if the mother remains in Tasmania with the children he is prepared to move to Tasmania. He denied threatening to kill or harm the mother and said he does not care if the DOCS records reflect this.
He was asked about the rent he was paying, which was $225 per week to his parents. His father employed him. He had never discussed lowering the rent so as to be able to pay a more significant amount of child support. His parents were in a four bedroom home. He said that if the children were in Tasmania, again he would go there and look for private rental. He was then questioned about what he thought his prospects of earning an income would be, and he thought he could earn up to $1000 a week. However, he said he had not done it.
He said that so far as discipline is concerned he had used the PlayStation and banning it to ensure discipline. He said that he went to the kitchen, Z went out to the front yard, he went out, B came out, Z threatened to run away, his parents arrived and Z ran down the curb and gutter. He followed, and grabbed his arm. He said Z is difficult to control. He conceded that Z was anti-him at the moment but believed he had been coached. He made reference to the child saying, "[Mr C] said I can do this."
He said that if Z came to live with him, he understood Z would not be happy. He also said that he did not think the children should be separated, and I should add here that nobody has submitted that that should be the result in this case. He said he had paid a bill for school lunches of $45 incurred over the last two years when the mother did not. He said he had also paid for one school camp. He said he declares his earnings to Centrelink.
There was then an opportunity to have the recording played, which was done, and a subsequent recording was listened to me on material provided by the father. He said that the AVO had been adjourned because the children had not been available. He wanted to cross-examine the children but was worried about his relationship with the children if he did so. He does not know how the situation could be improved. He said he and the mother could talk to each other, but that has not worked in the past.
The next witness who gave evidence was the paternal grandmother. She suggested initially the father, if the children were living with her, have half holidays and she have half, and there was talk of all school holidays. She said that she thought that the children should share the Christmas school holidays. She spoke of the children not having good attendance at the school and she said they needed a solid education behind them. She had not seen them since May and at that stage did not see Z and B. She said that they have not come to the father.
She then spoke about collecting the children at contact and returning them, and she said that on those occasions Mr C was always there. On one occasion he told her, "Your son is a bloody liar, your son is never going to see the children." Cross-examined by the father's counsel she said she would like to see them to take them to school every day. She, however, would be flexible in her work hours. She said her home is opposite G Public School.
She then spoke of three episodes of run-ins with Mr C, the first on the return to a neighbour's home when the parents were not home. The second, collecting the children from her home and the third an occasion at McDonalds. Respectively, the first of those episodes she said she was returning the children. They should have been returned the night before but the mother, she said, agreed to the next morning. She did not speak to the mother. Returned them about 8.15. She was not running late but the parties were not at home. She denied a breakdown, notwithstanding she had referred to the fact of a breakdown and being late in an earlier affidavit. She was uncertain as to whether Mr C walked or drove into the street. She said he followed her and shouted.
The second episode, on a date she did not recall. She said there was a discussion about nappies between her and Mr C, that the mother had never spoken to her but Mr C spat on her car window and wrote in it. As to the third episode at McDonalds, it was raining. She said the mother and the children were inside, the children were upset and screaming. She said Z did not run away but that Mr C got into her car. She did not ask Mr C to put the child into her car or into a seatbelt.
She further said that she would prefer her son, then the mother. Later she said herself first then the mother, and she said she feared the children would be taken into foster care.
The mother then gave evidence. She spoke of the school absences of the children to which I have made reference. When confronted with that material, her answer was to say it was laziness on her part. It appeared to me she seemed to feel that that was all that needed to be said, that she in fact said it was her fault, and no one would take the matter any further. It remains a matter of concern. She made the point she could not take the children if she was sick. She is not aware of the time that they have lost. She said that Z had private tutoring arranged by her mother. She did agree that she had denied contact on many occasions.
She said that she could not recall if on Father’s Day 2005 she had denied contact. She said that contact did not occur from time to time, because that was what the children wanted to happen. Asked about Mr C's involvement in Changeovers, she said on an occasion at McDonalds he was on the other side of a six lane highway. She said that Mr C does not have a licence and again she simply said that the fact she allowed the children to travel with him was her stupidity, again as though that was all that needed to be conceded to make the issue go away.
The three boys had run away from her in undies in the middle of summer. This was at a time she was getting them ready for bed. The children had misbehaved consistently all afternoon and she said, "If you don't like my rules, there is the door", and it appears the boys took the invitation. She said that she had made this offer on a number of occasions. She said that she thought her sister had rung the police. She said by the time she got home from looking for the children the police had them there.
She said that she last smoked marijuana in 2006, but her present partner continues to smoke once a week. She said that she had never seen him smoke it. She said that her sister, who had complained to DOCS about the situation in another household in which she had lived was a sister with whom she had no contact, and by implication who would be spiteful towards her. She spoke of a friend of Mr C's, K. She said that the fact he was at the school office on an occasion when she went there to take winter clothing to the children was coincidence.
She said she was not aware of any firearms in the home where she lived with her sister's partner and she said that no one has ever put guns to the children's heads. She did agree that the person who apparently owned or rented those premises was a member of a gun club.
She said that J was injured running away. He tripped and fell. That was in 2003. It was put to her that in August 2004 J had a bruised behind and she said that that was probably so.
She said she had to move to Tasmania to obtain accommodation. She said the areas in which she is looking for accommodation are, as I understood them, in Tasmania’s south east. She agreed that she was paying at the present time $150 per week.
She said that Mr C last worked full time at the end of 2005, early 2006. She said that she does not like him smoking marijuana, has spoken to him about it but he is addicted. He has been smoking for a long time. He has problems with his temper to an extent he gets annoyed, frustrated more easily. She said she gave him a cigarette to calm him down. She believes he is paying $50 a week for marijuana and she is spending $140 a week on cigarettes, mainly for him.
She said she has several medical conditions: diverticulitis, colitis, phantom gall bladder which causes her pain, and she has bleeding from the bowel.
She said the children knew Mr C was not to have them in a vehicle. She does not know what he has told the children, it was more important to get them to school. She spoke of not being able to walk to school, she spoke of not being able to walk to a neighbour or sister's home rather than being driven, because it was up a steep hill.
She further conceded that a vehicle was being driven which was out of registration. She said that she and Mr C had gone to school because the father had a problem - the decision was made, she knew there was a problem between the father and Mr C. She said neither can help their mouth or keep their mouth closed, and she knew that this might lead to a confrontation. She did not think to ask friends to take the children's clothes to school.
She said if she stays in Tasmania she wants the father to have holidays from Saturday to the second week, Wednesday, and half and half Christmas. She believes that the father should share in the cost of the fares from Tasmania because she cannot afford it. She said she has not tried to stop smoking, Mr C has not tried to stop drug use.
If they were back in New South Wales and the children were with the father, they would want to be with her at weekends.
She said that B makes his own decisions, that she had told them that the children were likely to be going to have to see their father. She said that Z would need encouragement to do it. In re-examination she said she did not want to pressure B, and if encouragement did not work she did not know what she would do.
Her mother was called and was a witness, in my mind, who was totally confused in the evidence she gave. Indeed, the confusion was such that I do not propose to endeavour to set it out.
Mr C was called. He said he was aware of the paternal grandmother's allegations. He said that in respect of the first event that I have identified she had taken the children to his sister's home and he did not swear at her, he did not talk to her in anything other than a civilised fashion. Episode two when she arrived to collect the children, he said he called Z back and when the child returned he rubbed his head. It will be remembered the affidavit material asserted he had struck the child.
He said that he did this because the child had jumped out of a window. He said he discussed nappies with the paternal grandmother and that he did not spit at the car. The fact that at the time, as I understand, he was obliged by orders not to speak to her seems to have had absolutely no effect on this man's actions.
The car park at McDonalds, he said his participation was to pull the child off the highway. He said he was aware of the restrictions. He made a great point of not being at the school because he was not in the school. His assertion was he was outside the school and therefore in effect it was not a breach. He sometimes drove the children to school when the mother was unwell. He said he used pot a couple of days a week, previously in his room now in the back yard or a laundry. He said he has been in rehabilitation but continued to use.
He said that he failed his test for a Tasmanian licence and does not have a licence in that state, and he has been dealt with for driving whilst disqualified in New South Wales.
He indicates that he has told the children that they cannot call him "Dad." He says he does not discuss the father with the children. He said that he has breached orders, driven whilst disqualified, and that the children knew about the existence of the orders.
That, to my mind, is the relevant oral evidence that was given. In addition there were a significant number of documents tendered before me.
So far as the issue of violence by the father to the mother is concerned, I have regard to the matters recorded against the father in the document which was tendered, which he concedes to be his police record. The whole of the record was before me, and whilst it is of some antiquity, it is of some interest that in 1998 he was convicted of driving in a manner dangerous to the public, driving without a licence, driving a vehicle which was unregistered, driving a vehicle which was uninsured. That was subsequently the subject of an appeal and the conviction was confirmed.
Accordingly, and albeit of some greater antiquity than Mr C's efforts, it is, to my mind, of some significance that a matter of such a similar kind would appear on the father's record.
The father asserts that he has done everything he can to be the best possible father to the boys. Unexplained to me in the evidence are periods when he was entitled to avail himself of contact and did not do so. So far as Court procedures were concerned, there were two matters that, to my mind, showed an ambivalence by the father. One was when he did not attend for a counselling appointment, giving as a reason that his solicitor had said that if he did not go he might get another counsellor, which I find hard to accept. The second time was the date of the making of the orders in July, where he did not attend because it was all too much for him.
I am satisfied that in the past there has been violence between the father and the mother. The extent of that violence I am unable to determine. I am certainly not capable of being satisfied that it is to the extent that the mother asserts. I am satisfied that in the past the father has used drugs and I am satisfied that in the past he has come to the attention of police authorities.
It seems to me that the father has a proper concern that the children are not attending school. However, it also seems to me, from hearing his evidence, that his simple proposal that the children be made available to him as their residential parent does not reflect the reality of the situation or take account of the difficulties that would confront him if an order were made to that effect.
So far as the second applicant, his mother was concerned, she was, apart from being highly confused, uncertain as to what it was she said she wanted to achieve. This was a lady doing her best, I perceive, to assist her son and also to make an offer in a public forum that in the event of difficulties, that she was ready, willing and able to care for her grandchildren.
The mother's evidence, as I have said, left me concerned. Her blasé manner of dealing with matters that do her no credit: "That was my laziness", "That was my mistake" indicate to me that she has perhaps not yet realised what is required of her in the day to day care of the children. If she is sick, if the children were with her, she still had an obligation to get them to school. She did not fulfil that obligation.
I found her evidence of smoking, small point though this might be, to be of some significance. The amount, $140 a week that she was spending on it, in my mind was significant in the light of the limited income in the household of herself, Mr C and the four children, yet there was no attempt by her to say that she was trying to stop or anyway economise in that respect.
Having said that, I am satisfied that the children have lived with the mother effectively since separation, and that she has, other than the schooling episode, done her best with these children. I am satisfied that they are very difficult children. I am satisfied that Z particularly has problems, and my concern is that if those problems are not addressed in either household then here is a little boy who will become a young man with severe difficulties.
I make no further comment about the wife's mother. I think I have probably said enough about Mr C to indicate to him that in his dealings with these children in future, if he does not learn that orders of this Court are meant to be obeyed, not when people feel like it, not when it is wholly convenient but absolutely, then whatever happens in this case, he is heading for another clash with the Courts and he may not escape as lightly as he has in the past.

The Law to be Applied

I turn, then, to the law to be applied in cases such as this. There has been a significant change in the law since 1 July 2006. There are now a significant number of sections to the Act that I must consider, and that I now propose to do. The first section that has effect is s 60B. Section 60B deals with the objects and principles of the Act. It is made clear that the objects are to ensure that children have the benefit of both parents, having a meaningful involvement in their lives, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or violence, to ensure children receive adequate and proper parenting and ensuring that parents fulfil their duties.
The principles underlying those objects are that unless it is contrary to a child's best interest, children have the right to know and be cared for by both parents, that children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents, and that parents jointly share responsibilities, unless that is not in the best interests of the children.
The next of the significant sub-sections that I need go to is s 60CA. Section 60CA says that in dealing with a parenting issue the Court must regard the best interests of the child as the paramount consideration.
I then go to s 60CC which tells me how the Court is to determine a child's best interests. Sub-section 1 tells me that in determining what is in the child's best interests the Court must consider the matters set out in sub-sections 2 and 3. Sub-section (2) deals with primary considerations, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.
These children are caught in the middle of a war. It is not a war of their making. These issues were touched upon and dealt with in a most professional manner by Ms G in her report and later in her oral evidence. I do not propose to set out significant paragraphs at this stage. I will certainly return to specific paragraphs in the course of these reasons.
It seems that the clear observation made by Ms G was that there was indeed this state of warfare that I have spoken about existing. She had told

Mr Clarke for the Independent Children’s Lawyer that she formed the view that Z has both learning and psychological problems. He needed remedial learning and work with a counsellor. She seemed to think that when they were with their stepfather he did pretty much as he pleased. It was her view that the children may say one thing and do another. He said that Z's reaction on one level was that he wanted nothing to do with his father, but he seemed to be joking and laughing at the same time.
She says that the father asserted to her that the children had been coached to say they did not want to see him, and she said this may not be the case. It may be a situation where the children really do not want to see him, and her observation was that the children did not seem to be coached.
It was her evidence that the parties being physically or geographically separated could well be of significant benefit to these children because it must have the effect of lessening the confrontation between the parties. It may not lessen the ill feeling, but it would certainly stop the parties - and in that I include Mr C - from coming into contact with each other and there being scenes that could be avoided. But none of these parties seem to wish to avoid such scenes.
The children in this case need to be taken out of that situation of conflict. In my mind, that is a most significant factor in this case. Certainly the child Z seems to, as I have already said, have a less than adequate relationship with his father. B is asserted to also have said that he does not want to see his father but did not react in a fashion that supported that when observed by Ms C. The younger two children seemed very happy to see their father and spend time with him.
The children, of course, have lived with their mother all their lives and I am satisfied that she is their primary attachment figure. The children, to my mind, will benefit - and I include Z in this - from having an ongoing relationship with their father. That, of course, does not mean, per se, that the children need live with him to achieve that.
The additional considerations are firstly any views expressed by the children, and factors underlying. I have already dealt with what has been said by Z and what has been done by Z, and by B.
I am satisfied that the two older boys have expressed that they do not want to see their father, but I am not satisfied that that wish is borne out by the observations of Ms G. Certainly so in the case of Z, and to a lesser extent B, is that the children, it would seem from Ms G’s evidence, are not as firmly of the view they should not see their father as they would recount verbally. The oldest of the children is eleven, the youngest child is six. To my mind their views are of importance but are by no means the determinative fact in this matter.
The next matter I must turn to is the nature of the relationship of the child with each of the child's parents, and other persons. The children, on the evidence I have heard, find their primary attachment figure in their mother. The reporter said at paragraph 41 of her report:
"It is my assessment that the children have a close relationship with the mother, and despite allegations of physical abuse against Mr [C], they are extremely positive about him. They spoke well of him. They said that he played with them and do things with them that their father did not. It is unlikely that all four children could be so positive about him if he was not involved with them or had not shown genuine care for them. Conversely the children, except [E], the youngest child, all have tales of their father's negative behaviour towards their mother and their father's neglect of them. Although [the father] said he had plans in place to care for the children, his ability to care for the children on a full time basis is untested."
To my mind the relationship of the children with their mother is one of some dependence and reliance. I am satisfied that notwithstanding the allegations made against him and proven in respect of his total disregard of orders, that

Mr C has established a relationship with the children which is to them a matter of comfort and a matter of some support. However, there is a role model aspect concerning Mr C which cannot be ignored. I will return to that when I deal with the attitudes to the responsibilities of parenthood.
The children recount to Ms G that they have concerns about their father. As I have said, what they have said is to be taken into account but regard must be had to their age.
The father clearly has himself been the administrator of severe punishment to the children from time to time. The children at the present time appear to be estranged from him, partly by virtue of orders made, and partly because of what they perceive to be the father's action towards them and particularly towards Z. It would seem to me that despite his best efforts, the nature of the relationship of the father with the children and any of them is substantially of a less nature than with the mother, and despite the difficulties encountered, with Mr C.
I accept the children have a loving and positive relationship with their paternal grandmother and that she has acted appropriately towards them.
I next must go to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. That can be addressed in three words: "did not happen." Neither of these parties have endeavoured to involve the other. The father has from time to time, when it suited him, and perhaps in his eyes with some excuse, stopped the children returning to the mother and acted in a completely unilateral fashion. The mother, of course, has done exactly the same.
There is also the situation that Mr C, for whatever reason, has chosen to insert himself in a situation which does not and never did concern him, to the detriment of everyone concerned.
The likely effect of change. On the father's application there would be a significant change because the children would be required to leave their mother, with whom they have lived effectively for all their lives bar periods where the father has retained them, and returned to Sydney.
The evidence I have is that the children are functioning well in Tasmania, that their school attendance has improved and that they are doing well. I do not accept the evidence of B being a particularly academically gifted child. The reports that I have seen, which are exhibits in these proceedings, exhibit ICL1, to my mind indicate that B is at best an average student.
If the children were to return to Sydney they would have to be accommodated in a situation away from the mother for at least ten days in each fortnight. That would be a complete change to their everyday routine that has so far been affected. The father has spoken about his work commitments. I will make further reference to that but it seems to me that he really depends very heavily on his mother and indeed on his father to assist him in his life, his occupation and his care of the children, so that he can function. The mother has the support, as I understand it, of Mr C, and in Tasmania with members of his family. Despite criticism I have made of her, which I do not in any way propose to retract or water down, she has managed to date.
I am of the view that what must be recognised here is that these parents between them, by their own actions and particularly by the state of warfare that they have maintained, have damaged these children. And unless and until both parents recognise it and do something about it, these children - and not only Z - in my mind are on the slippery slope.
The benefit to the children of a change, to my mind, would not necessarily overweigh the difficulties for each of the children, particularly Z, that such a change would incur. The difficulty of contact would depend largely on where each of the parties was living and with whom the children were living. If the father were in Sydney and the mother in Tasmania, air flights would be a difficulty, but in my view that can be overcome. If the father were to move to Tasmania then it would seem to me that orders of a more frequent form of contact could indeed be put into effect.
If the children lived with the father and the mother remained in Tasmania, the same problems with cost of transportation, although perhaps for one or two people rather than four, would occur. If the mother were to move back to Sydney upon the children living with their father, then the difficulty and expense of time with her could be minimum.
However, the section uses the word "practical difficulties." To my mind that also takes into account the difficulties experienced by these children when they become aware of just what a dreadful occasion each changeover to and from the other parent is going to involve. No matter what they do it seems to be that these two men have managed to find themselves in conflict that has involved unnecessarily the paternal grandmother in situations that do nobody any credit. The children are entirely innocent. They, to my mind, suffer the major difficulties when the parents and those that accompany them behave in this manner.
I look to the capacity of parents and other persons to provide for the needs of the child. The father says that he can do this, that he prizes the children's education, and because of that he is, on that score the appropriate person to care for the children. I have already made comment about the mother's exceedingly poor judgment and execution of ensuring these children attend school. She has said, of course, that they have not gone on occasions because they have not wanted to. I do not accept that. Her evidence was they did not get there because she could not take them.
That is a severe deficit in her parenting skills. I am satisfied that since the parties separated she has been the person charged with caring for these children and appears to have done so with some success.
Mr C has a close relationship with the children. Clearly they love him and they look up to him. That concerns me greatly, because Mr C, if he continues with his present behaviour, is just the sort of role model that these children do not need. I do not know whether anything I say will have any effect, but I can only hope that Mr C, who is not a child, realises that his days, if he is going to remain involved in this family, of being "Jack the lad" are over.
The maturity, sex and lifestyle of the children, and any cultural aspects, to my mind, are not relevant to this matter, nor is the question of the child's Aboriginality or Torres Strait Islander factor.
The attitude to the child and the responsibilities of parenthood again bring into play matters with which I have already dealt. The mother's inability to ensure school attendance causes me concern. The mother's lack of concern for the children being with Mr C in a car when they should not be causes me concern.
The fact that the father wishes to have the children brought back so that he can cross-examine them in the apprehended violence proceedings causes me even more concern. That indicates to me that the father cannot separate his own needs from those of the children, and indeed, puts his own need to be proven right above the needs of the children. It would seem to me that the father, whether or not he has been advised in this regard, has chosen to go down a course of action that can only cause enormous emotional difficulties for each of the children that he proposes to cross-examine, and generally in respect of the children, when they are aware that one or more of them have in fact been cross-examined by their father.
The issue of family violence involving a child or a member of the child's family is at large. Violence, whether physical or by means of aggressive actions and raised voices and threats, is a commonplace method of these parties dealing with each other. And if the parties are not now aware that that has to stop, then heaven help us all. And particularly, heaven help the children.
There is a family violence order in force at the moment. It prevents the husband having any time with the children. However, I am satisfied that if I am of the view that it is appropriate that the father spend time with the children, then I can override that domestic violence order and allow that to happen.
Sub-section 4 of the section I am dealing with says that I must consider the extent to which each of the parents has fulfilled or failed to fulfil his responsibilities, and in particular has taken the opportunity to participate in making decisions or has facilitated the other parent being involved. I have already dealt with the attitude to each parent involving the other, to find that it is non-existent. I am satisfied that having regard to the difficulties in each of them that I have tried to identify, the parties have endeavoured to do a reasonable job as a parent to these children, although I am satisfied at times both of them have been quite prepared to put their own needs above those of the children.
I do not propose to go to s 60CG, which deals with family violence specifically, other than to say I have dealt with family violence and there is nothing further I would wish to say.
Section 61DA, which is the hub of the amendments which were introduced on

1 July, is in these terms:
"When making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe a parent, or a person who lives with the parent, is engaged in abuse of the child or family violence, and the presumption may be rebutted."
In this case I have already dealt with family violence. Violence in this family and in both households has to my mind been a common factor. To my mind that is of itself sufficient for me to find that the presumption does not apply. If I am wrong in that the evidence in this case is that the parties' level of communication is so appallingly bad that to expect these parties to discharge the obligation of equal shared parental responsibility is of itself a frightening thought.
A concept of these parties - and in this I mean the father and the mother - endeavouring to decide where these children or any of them would go to school, what was required in respect of any particular medical or health procedures and religious education to my mind would only result in an absolute stand off which would only make the situation for the children significantly worse, as again the children would find themselves in the middle of a dispute between their parents. And it would not matter whether the parents were living cheek by jowl in Sydney or Tasmania, or one was in Sydney and the other in Tasmania. It would be the level of conflict about the children, who would be, I am satisfied with these children, very much aware of that fact, that to my mind amounts to evidence to rebut the presumption.
Accordingly, in this matter I will not make an order for equal shared parental responsibility.
ii)[2] (2006) FLC 93-286
I then turn to s 65DAA(1). That says that if a parenting order provides for equal shared parental responsibility the Court has to consider the child spending equal time, or significant and substantial time, with the other parent. In this case I have indicated that I will not make an order for equal shared parental responsibility. However, as was made clear by their Honours in

Goode & Goode[2]
, it is possible to reach a determination that is appropriate to order equal time or significant and substantial time other than by simple reliance upon the fact that an order has been made for equal shared parental responsibility. There are other matters that I must consider.
To my mind one of the difficulties in this matter is clearly caused at changeovers. If that could be eliminated I suspect we would not even be here. But we are here. To my mind the children are also in a position where they find themselves very much the meat in the sandwich or the prize to be won.
It is in my view important that the children know, in a case such as this, that they have a base to operate from and that they are secure in that household. Nobody has raised to me the fact that, however I get there there should be equal time or significant and substantial time. Both parties assert that in the event that they are successful the other party will have either school holidays only, or, will have, if they are closer together, what has in effect been occurring in the past of alternate weekends and some school holiday periods.
To my view in the circumstances of this case, that is the appropriate form of time for these children. They are to live basically and predominantly with one parent and they are to spend time, which in my view cannot be categorised as significant and substantial time but is none the less in my view the time that is appropriate in all the circumstances in this case.
Looking, then, to the options before me, as I have said, I can either:
(a)order the children remain with their mother, allow her to remain in Tasmania and allow the father what would effectively be holiday contact unless he moved to Tasmania;
(b)even though no one has asked me, but by virtue of U & U (supra), I can order that the mother return with the children to Sydney and that the father then have weekends and other times;
(c)I can order a more equal sharing of time. I have excluded that by my reasoning to this point;
(d)I could order the children return to Sydney to live with the father, that the mother then have contact either by means of holidays, or if she comes back in that situation a more weekend focused regime of time;
(e)and lastly, of course, in my view, it is open to me to make an order in favour of the grandmother.

Dealing with these options somewhat in reverse order, on the evidence that I have heard and the case that has been presented by the grandmother, while no doubt accepting that she is a lady who cares deeply for her grandchildren, and who has been affronted by what she has observed and been involved in by virtue of trying to assist in changeovers, I have come to the conclusion that it would not be appropriate to make an order in her favour.
I am then left to decide which of the parents in my view at this time is the appropriate parent for the children to live with. I have set out the matters that I have taken into consideration. It is a finely balanced case, but I have come to the conclusion that the children should remain with the mother and I propose to permit her to remain in Tasmania. I propose to make orders, however, that she not, having sought to go to Tasmania, leave Tasmania without order of the Court or the consent of the father.
I propose to make orders for school holidays, unless the father moves to Tasmania. The school holidays will be facilitated by the father arranging to fly the children to Sydney at his expense, and it will be a matter for the mother to fly the children from Sydney to Tasmania at the end of each such period. I will make orders as to timing and otherwise.
I will make an order that in the event that the father moves to Tasmania, which he has said twice in his evidence he would, that there would be weekend contact.
I propose to make orders in the strongest terms that Mr C stay away from changeovers. None of this, "Oh, well I was outside the school, it does not count." No crossing fingers behind your back and thinking it does not count. These orders are to be obeyed.
Another order that I propose to make is that the mother not commence proceedings in respect of these children in any registry or other Court. If you are down in Tasmania and you think you might like a change, the matter is still to come back to this Court.
I propose to make an order that the children be made available to the independent children's lawyer for the purpose of having these orders explained to them. I propose to make an order that the mother shall forthwith - that means as soon as possible, not in two month's time - consult with Z's school counsellor and do anything that is recommended by that counsellor in respect of any counselling or other assistance required by Z.
I will also make an order that the mother is to authorise any of the children's schools to provide details to the father at his expense, and she is also to direct any health professional to make his or her reports or findings available to the father.
I have already said that I propose to order the mother not again move the children from Tasmania. Each party will be ordered to keep the other advised as to current address and contact telephone number.

Costs of the Independent Children’s Lawyer

There is then the issue of costs raised by Mr Clarke. The amount sought is in all the circumstances of the case indeed moderate. The Independent Children’s Lawyer seeks an order against the father in the sum of $4,828, being one-half of $9,656. The mother has been excused payment of any amount because she is legally aided, which is to her benefit.
The Family Law Act provides that unless otherwise ordered, each party should bear his or her own costs. However the Court may if it considers appropriate make an order for costs.
There are matters that I am required to take into account. I must take into account the financial situation of the parties and by any construction neither is doing financially well. Both, of course, could improve their financial situations, the husband by working extra days, the mother particularly by stopping the purchase of cigarettes. However, their incomes, even if perfection were obtained, are not high.
The mother is in receipt of legal aid, which creates, in this situation, a great burden upon the father who has had to brief counsel at his own expense. I am not of the view that the conduct of either party has led to the length of these proceedings. They have been conducted, in my view, with care, skill and concentration on the real issues of the case by everyone involved.
These proceedings have not been caused by the failure of one or other party to obey an order of the Court, notwithstanding that I have made findings that there have been orders breached, in this case by the mother and those on her side.
I am very conscious of the fact that it is important that in matters such as this the public purse be considered. If this were a case where I were able to make an order against both parties, then I would be very minded to do so. However, the fact that the mother escapes any impost on her income by virtue of being legally aided creates a situation of injustice and unfairness if I order the father to pay. Accordingly, the independent children's lawyer's application for costs against the father is dismissed.

I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate

Date: 4 February 2008

[2007] FamCA 1637

18 October 2007

Key Legal Topics

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Family Law

Legal Concepts

Jurisdiction

Remedies

Costs

Procedural Fairness