STEYN & GARRETY

[2019] FamCA 180

FAMILY COURT OF AUSTRALIA

STEYN & GARRETY [2019] FamCA 180

FAMILY LAW – CHILDREN – With whom children shall live and spend time – where orders are made in the best interests of the children - where final orders were made four years prior following a contested hearing – where the mother was forced to cease time and communication with the children due to it being chaotic and destructive – where the mother recommenced proceedings – where final orders providing the children to live with the father are reversed – where the children are ordered to live with the mother – where a change of residence is necessary – where the children will spend a period of no time with the father progressing to supervised visits and ultimately time in school holidays – where conflict is entrenched between the parties – where the children are under extreme emotional pressure and emotionally damaged due to conflict between their parents – where a different parenting arrangement is required – where the relationship between the siblings is under strain – where the deterioration of the relationship between the mother and the children is not the fault of one party alone but a combination of fraught changeovers, bitterness and resentment between the father, step-mother, mother and children – where the step-mother is restrained from attending or being in the vicinity of changeover – where the father and step-mother have demonstrated a complete inability to facilitate a relationship between the mother and the children – where the mother has filed successful contravention applications since the previous final orders were made – where the step-mother and father both took active steps to cut the mother out – where the step-mother appears to have taken on the role of the children’s mother as if the children did not have a mother – where the children need to be protected from further psychological harm – where the children are better protected by living with the mother – where the mother is better placed to facilitate a relationship between the children and paternal family.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where it is unlikely that discussion and compromise in the context of shared parenting is possible – where it is necessary that one of the parties have sole parental responsibility – where the parent with whom the child lives should have parental responsibility – where previous final orders provided for the father to have sole parental responsibility – where the father enforced his parental responsibility to the extent that the father perceived it as his right and ability to cease providing the children for time with the mother and also to cut communication with the mother regarding the children – where the mother remained committed to the children – where the current orders provide for the mother to have sole parental responsibility – where the mother is capable of informing the father of the decisions that she has made and why.

Family Law Act 1975 (Cth)

APPLICANT: Ms Steyn

RESPONDENT: Mr Garrety

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

FILE NUMBER: NCC 802 of 2013

DATE DELIVERED: 27 March 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9-10, 14-17 August 2018 and 24 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Rankin Ellison Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Gillard Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

1. That all prior parenting orders made in relation to B born in … 2009 and C born in … 2011 (“the children”) are hereby discharged.

Residence

1. That the children live with the mother commencing forthwith.

Parental responsibility

1. That the mother have sole parental responsibility for the long term decisions concerning the welfare and upbringing of the children including, but not limited to, the schools which the children attend, religious instruction if any and medical treatment.

2. That the mother shall keep the father advised in writing (including electronic writing) of long term decisions taken by her in respect of both children.

3. That each parent have parental responsibility for day to day decisions about the   care and supervision of the children when they are spending time with or living with that parent.

Time and Communication

1. That the children spend no time with the father for a period of 10 weeks from the date of these orders; and thereafter

2. That the children shall spend time with the father as agreed between the parties but failing agreement as follows:

   7.1Supervised at a contact centre with the mother to nominate a contact centre in her area and both parents to cooperate with intake procedures and the father to meet the costs:

   7.1.1For a period of eight (8) weeks, in the mother’s area on each occasion, on both days of each alternate weekend for the maximum period the centre can offer but for a minimum of four (4) hours if at all possible NOTING that the first two such weekends will be for the father and the children alone but thereafter the father’s wife, and the children G and DD may attend at the discretion of the father; thereafter

   7.1.2For a period of eight (8) weeks alternating on each occasion from the mother’s area to the father’s area in E Town (being Q Organisation E Town unless otherwise agreed), for both days of each alternate weekend for the maximum period each centre can offer but for a minimum of four (4) hours if at all possible; thereafter

   7.2Commencing with the public school holiday period after the conclusion of Term 3 in 2019, during school holiday periods, as follows:

   7.2.1For each term school holiday period:

   7.2.1.1In odd numbered years from 12.00 noon on the second Saturday of the school holiday period until 12.00 noon on the third Saturday of the holiday period;

   7.2.1.2In even numbered years from 12.00 noon the first Saturday of the school holiday period until 12.00 noon the second Saturday of the holiday period.

   7.2.2In each long holiday period:

   7.2.2.1For two (2) weeks in the December/January school holiday period (“long holiday period”) 2019/2020 commencing 12.00 noon on the first Saturday of January 2020 and concluding two (2) weeks later at 12.00 noon Saturday; and thereafter

   7.2.2.2For three (3) weeks in each long holiday period:

   (i)In all even numbered years commencing in 2020/2021 the first Saturday of the school holiday period for a period of three (3) weeks concluding at 12.00 noon Saturday of the school holiday period;

   (ii)In all odd numbered years commencing in 2021/2022 commencing 12.00 noon on the first Saturday in January 2022 and concluding three (3) weeks later at 12.00 noon Saturday.

3. That changeovers for holiday periods occur:

   (a)At the commencement of time at a contact centre in the mother’s area with the mother to make the children available at that centre and at the conclusion of time at Q Organisation in the E Town area with the father to return the children to that centre.

4. That the father do all things necessary to ensure that Ms F is not in attendance at, or within the vicinity of, a contact centre for any changeover.

5. Unless otherwise agreed, commencing after a period of ten (10) weeks from the date of these orders and until each child starts high school, the children are to have telephone contact with the father during term time every Sunday at any time between 7.00 – 7.30 pm and this is to be facilitated by the father telephoning the mobile telephone or other contact number provided by the mother and the mother is to make the children available to speak with the father; and thereafter

6. From commencement of high school by each child, each parent shall permit and encourage that child, and in due course both children, to have telephone contact with the other parent at any reasonable time.

Restraints

1. That the parties be and hereby are restrained from denigrating the other or any member of the other party’s household or extended family in the presence of, within the hearing of the children and/or by any means, including the use of social media, and be and hereby are restrained from causing or permitting any other person to do so.

2. Each of the parties is restrained from the following conduct:

   (a)Discussing these proceedings and any of the matters raised in the course of the proceedings with the children, or either of them, and further from permitting third parties to do so;

   (b)Recording by any means, discussions with, or statements of, the children, or either of them, and further from causing or permitting third parties to do so;

   (c)Using corporal punishment on the children, or either of them, and from permitting any third party to do so.

Specific Issues

1. That each party shall advise the other of current residential address and contact details and further shall keep the other advised in writing of any change in the residential address and/or contact details, such notice to be provided within 48 hours of any change occurring.

2. This order is sufficient authority for the school that the children attend to:

   (a)       Communicate with the father;

   (b)Provide copies of all reports, photographs and any other notices that a parent would ordinarily receive;

   (c)Invite the father to attend any school events or extracurricular events that parents are ordinarily invited to.

3. That each party shall advise the other forthwith upon the children, or either of them, suffering from any serious illness or medical emergency and make arrangements for the other to have contact with the child or children in a manner consistent with their condition and the advice of the children’s treating medical practitioner.

4. That in the event a child psychologist is engaged by the mother to provide therapeutic assistance to the children, or either of them, the mother has leave to provide to that psychologist the following documents:

   (a)       These orders and reasons for judgment;

   (b)The Single Expert Report dated 15 January 2018 of Dr EE Consultant Psychiatrist.

5. That the Independent Children’s Lawyer, together with a Family Consultant, shall explain the nature and consequences of these orders to the children, and answer any questions the children, or either of them, may have.

6. The Independent Children’s Lawyer is thereafter discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Steyn & Garrety has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 802 of 2013

Ms Steyn

Applicant

And

Mr Garrety

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. These are competing applications for parenting orders with respect to two children, B and C at date of trial in 2018.

2. The children presently live with their father in accordance with orders made by this Court on 18 December 2014 (“the 2014 orders”). [1] There was no appeal from those orders.

   [1] Family Court of Australia orders dated 18/12/14

3. Until April 2018 the children irregularly spent time with their mother. The mother then made a decision to stop spending time with the children, for their sake and for her own. Time and communication had become increasingly chaotic and destructive.

4. When the trial was adjourned from August 2018 until the following January 2019 the mother resumed spending time with the children, or at least attempted to do so during that period.

The Trial

1. Both parties were legally represented by solicitor and counsel.

2. The application which initiated this round of litigation was filed by the mother on 24 April 2017.

3. Ultimately the matter was conducted over seven days in an exemplary manner. Not all witnesses were required. Not every question that could have been asked was.

4. Despite that focus on relevance the evidence was not completed in the allocated block of days in August 2018. A further day was required both to complete the cross-examination of the father’s wife and for submissions.

5. Unfortunately the first available date convenient to all parties and counsel was 24 January 2019.

6. At the conclusion of submissions judgment was reserved.

The Parties

The Mother

1. The applicant Ms Steyn is the mother of the subject children. She is aged 36 years. Her household consists of herself and her son J, aged 11.

2. The mother had recently separated from Mr FF, her partner of about 12 months, who nevertheless remained as a witness in her case.

3. The mother has lived in H Town in the I Region area of New South Wales for the past five years but gave evidence that she had recently moved from that area. The mother has moved into rented premises, a three bedroomed apartment in Suburb GG, a suburb of Sydney. However, her evidence is that she is also maintaining her residence in H Town.

4. The mother has already enrolled her son into the local primary school in Suburb GG.

5. The occupation of the mother is described by her as a healthcare provider and as a student studying a bachelor degree.[2]

   [2] Affidavit of the mother filed 24/07/18, para 1

The Father

1. The Respondent is Mr Garrety, the father of the subject children. He is aged 41 years.

2. The household of the father consists of two adults and four children. They are himself, his wife Ms F, her daughter G, DD (the child of the father’s current marriage) and the two subject children.

3. The father has continued to live in E Town since the parties separated almost six years ago in March 2013. The father intends to remain living in that area.

4. The subject children and G, the child of the father’s wife, attend a private faith-based school in the local area.

5. The occupation of the father is in a construction industry.

The Applications

The Applicant Mother

1. By her Amended Initiating Application filed 20 April 2018 the mother proposes an effective reversal of current orders.

2. Specifically she proposes that the children move to live with her and that she have sole parental responsibility for them.

3. After the move her proposal is that failing agreement otherwise, the children spend no time with the father for 12 weeks, followed by time in a contact centre for eight weeks and thereafter, for a certain number of weekends per term and holiday time. There was provision for telephone calls and many specific issues in relation to education, travel and health.

4. One restriction on time between the children and their father was proposed to be that the children not be left in the unsupervised care of the father’s wife until the younger child was 13 years of age, a period of about five years.

5. There are two practical difficulties with the orders proposed by the mother.

6. The condition for time between the children and the father to become unsupervised is unrealistic given that the father works full time and his wife has cared for and supervised the children in his absence.

7. Secondly, the orders were drafted from the perspective of the mother possibly continuing to live in the I Region. During the course of the trial it became clear that the mother would commit to living in Sydney if the children were living with her.

8. The mother did not do as she was directed, that is, to prepare a Minute of Order setting out her proposal in the event the children remained living with the father. Her oral evidence about that was that the 2014 orders should remain operative. However, those orders were drafted to accommodate the mother living in the I Region and at a time when the children were aged four and three.

9. My impression was that if the mother was unsuccessful with her application she would cease attempting to maintain her relationship with the children and wait until they were ready to reconnect with her, perhaps as young adults. However that was not stated.

The Respondent Father

1. By his Amended Response filed 1 June 2018, varied by a Minute of Order in his Outline of Case document,[3] the father proposed that the 2014 orders be discharged.

   [3] Exhibit 3

2. His proposal was that the children continue to live with him and that he would continue to have sole parental responsibility.

3. With respect to time and communication he proposed that the children spend holiday time with the mother on four occasions per year.

4. The father proposed various restraints including causing the children to attend upon medical practitioners other than in an emergency, the NSW police, or the Department of Family and Community Services (“the Department”) unless requested to do so.

5. There was a restraint on how the mother was to permit interaction in her home between her son J and the subject children.

6. The father did as was directed, that is produce a Minute of Order to cover the eventuality of there being a change of residence for the children.[4] 

   [4] Exhibit 51

7. The father’s proposal was, in the event that the Court considered there should be a change of residence, that the children spend time with him for a week of each term holiday, half the Christmas school holiday period, with changeovers at a contact centre. There were restraints and orders in respect of specific issues.

8. The primary orders sought by the father as his preferred position are pragmatic in a way that the mothers are not. They accurately reflect the fact that the current orders have failed and cannot continue.

9. His alternate proposal in the event that there is a change of residence, also realistically reflects that the children now aged nine and seven, could manage seeing the parent with who they do not live, in holiday periods only.

10. The father has been clear sighted about the practical limits on travel and time whichever parent the children live with.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Mother

   (a)Amended Initiating Application filed 20/04/2018;

   (b)Affidavit of the mother filed 24/07/2018;

   (c)Affidavit of the mother filed 16/01/2019 together with exhibit MA1;[5]

   [5] Exhibit MA1 is a USB annexed to the Affidavit of the mother filed 16/01/19

   (d)Affidavit of Ms S [maternal grandmother] filed 9/08/2018;

   (e)Affidavit of Ms JJ [former changeover nominee for father] filed 9/08/2018;

   (f)Affidavit of Mr FF [former partner of mother] filed 9/08/2018; [6]

   [6] A further affidavit of Mr FF, e-filed on 16/01/2019 was sought to be relied on by the mother and rejected

   (g)Affidavit of Ms KK – [observer of changeovers] filed 27/03/2017;

   The Respondent Father

   (h)Amended Response filed 1/06/2018;[7]

   [7] Exhibit 3

   (i)Notice of Risk filed 3/07/2017;

   (j)Affidavit of Mr Garrety filed 24/07/2018 together with tender bundle F1;

   (k)Affidavit of Mr Garrety filed 10/12/2018 together with tender bundle A;

   (l)Affidavit of Ms F [wife of father] filed 24/07/2018 together with tender bundle KG1;

   (m)Affidavit of Ms LL [changeover nominee of father] filed 2/07/2018;

   (n)Affidavit of Ms MM [changeover nominee for father] filed 2/07/2018;

   (o)Affidavit of Dr NN [psychologist] filed 25/07/2018;

   NOTING an affidavit of Ms OO filed 24/07/2018 was withdrawn on the basis that the witness was unavailable;

   Reports

   (p)Report of Single Expert appointed by the Court, Dr EE consultant psychiatrist dated 15/01/2018.

History of Relevant Events

1. A history of events leading up to the trial in 2014 was included in the reasons for judgment.[8]  That history is reproduced below:

   [8] Reasons for Judgment dated 18/12/2014, paras 19-92

   19.In 2004 the mother immigrated to Australia from either her birth place, [Country K], or from [Country L]. She was 23 years of age and settled in Sydney.

   20.In November 2006 she married her first husband and in April 2007 their only child, [J], was born. About seven months later, the mother separated from her first husband and [J] remained in her care. At that time, the mother was living on the northern beaches of Sydney.

   21.In mid-2008 the parties met and formed a relationship.

   22.In April 2009 they began living together, the father buying a home on the northern beaches.

   23.In 2009 the parties’ first child [B] was born.

   24.In 2011 the parties’ second child [C] was born.

   25.With the birth of [C], the mother was at home with three children under the age of four. The father was working fulltime. In the father’s view, the mother was finding it difficult to cope, especially as [C] was an unsettled sleeper. He said she was not an easy baby, as her older sister had been; she was a “very restless sleeper … and difficult to console/settle”.

   26.The father alleges that the mother began smacking [C] for “misbehaviour” when she was three or four months old. He also observed that the mother slapped her son [J] across the face if he misbehaved. He received phone calls at work from the mother indicating that he needed to come home and help her and that she was having difficulty dealing with the children. The parties decided something had to change and they moved away from Sydney.

   27.In April 2011 the parties sold the property on the northern beaches and moved to [N Town]. The father owned a rural block of land in [E Town] but deferred to the mother’s wish not to live there. The mother says she left Sydney reluctantly, although [N Town] was her choice, and that it was a mistake that she later came to regret.

   28.The father found work in the building industry for about six months. Thereafter the parties moved from [N Town] to [Z Town] and the father worked on an intermittent basis, helping with the children when not at work. Their financial position declined, putting further pressure on their relationship.  

The mother’s child, [J], moves to live with his father

29.In May 2012, by agreement between the mother and her former husband, their son [J] returned to Sydney to live with his father. I am unable to conclude what the real reason for this move was.

30.The father asserts that the mother had been struggling in her relationship with J, regularly becoming angry and frustrated, “If [J] doesn’t go back to his father’s I will end up killing him”.  

31.The mother alleges that it was because of mistreatment of [J] by the father and also because of the parties’ difficult financial circumstances.

32.In her oral evidence, the mother gave as the reason that she could at least spare one of her children the difficulties of living in the uncomfortable circumstances they were in. That may have been so, but I am not at all satisfied that the father mistreated [J] in any way.

33.The mother asserts, and the father denies, that the father regularly left her and the children alone for days at a time. The father asserts, and the mother denies, that the mother made comments to him about hearing voices and experiencing hallucinations. He also said that the mother was extremely aggressive and violent towards him at times.

34.In August 2012 the father obtained fulltime employment in the construction industry in [E Town]. The parties moved into a property he purchased in that city.

35.I accept the evidence of the father that he felt concerned about the mother’s ability to cope, but was compelled to return to work to support the family. However, I infer that the father was sufficiently confident about the mother’s ability to provide care for the two children. I accept that the father worked intermittently for a period when the mother needed his assistance to manage the children, but that his preference was to be in fulltime work.

The parties’ relationship deteriorates

36.By early 2013 the parties’ relationship was tenuous. The parties were sleeping in separate rooms. The mother gave evidence in some detail in her affidavit of an incident in February 2013, when she says the father took [C] from her bed during the night to his bedroom. On the following morning, when she changed the child’s nappy, the mother says, “I found a pubic hair in her nappy”. She then went on to refer to an incident 12 months later, where the same child had nappy rash and is alleged to have made a complaint about the father hurting her genitals, “Daddy hurt my cookie”.

37.That the two incidents were included in one paragraph suggests that the mother saw a link between the two incidents. In her oral evidence, the mother said that this was not the case; she was simply putting all information before the Court.

38.The child had spent that night in two separate beds with each of her parents. The hair the mother found may well have been a pubic hair. Her belief that it was a pubic hair apparently caused her to feel concerned about the child’s safety. There was no adequate explanation for that concern which on the evidence, is unfounded.

39.By March 2013 the mother consulted with her then general practitioner in [E Town], and was again prescribed an anti-depressant. The mother was able to identify for her general practitioner a named drug Pristiq, which had worked well for her previously.

40.By mid-March 2013 the mother was telling the father that she did not want to live in the house in [E Town] any more. There is a significant difference between the parties on this point. The mother says she was telling the father she intended to separate from him, taking the children with her. The father says that the mother was constantly asking to return to live in Sydney so she would be closer to her son.

Conversations in March 2013, separation and following events

41.In late March 2013 there was an incident which ultimately gave rise to final separation. The father says that on 20 March 2013 he had a significant conversation with the mother.

42.In earlier affidavits he had referred to this incident taking place on 19 March 2013, but in his trial affidavit, he corrected the date to 20 March 2013 accepting the incident could not have occurred on 19 March 2013, the children both being in day care on that day.

43.However despite being challenged strongly as to his honesty and castigated for his error, if that were to be accepted by the Court as such, the father was unshaken in his evidence that the reported conversation did take place.  He says he arrived home from work at approximately 5.00 pm and the mother said words to the effect:

Mother:I have done something bad.

Father:Are the kids okay?

Mother:Yes, but today I put a pillow and then my hand over [C’s] mouth.

Father:Was she crying?

Mother:Yes, I don’t know what happened. It was like I was not in control of my body but somebody else was. I picked up a pillow and covered her face. It was like I was watching someone else doing it.

44.The father says he was shocked, concerned about the mental health of the mother and worried about potential harm to the children. There is no evidence to suggest that the child was injured; no medical attention for the child was sought by either parent. The father contemplated contacting the Department of Family and Community Services (‘the Department’) but feared the children being taken away. He “stewed over what to do”.

45.After a few days he contacted the mother’s parents in Sydney. The maternal grandmother had recently phoned him to see if there was anything wrong because the mother had not rung for two weeks. He responded that the mother was “really depressed … [and] struggling to function.”   She asked the father to get the mother to ring her. The mother did not ring.

46.One or two days later the maternal grandmother says the father rang and said to her:

[The mother’s] not coping with the children. She told me she held a pillow on [C’s] face when I was at work. She has threatened to leave and take the girls to Sydney.

47.Without reference to him, the maternal grandmother contacted the Department and then advised the father that she had done so. They discussed medical treatment for the mother.

48.On 30 March 2013 the maternal grandparents travelled to visit the parties for a planned Easter visit, prior to their departure to live in the [Country M]. The maternal grandmother had arranged with the father for him to take the children out so she could speak to the mother alone.

49.During the course of an eventful and uncertain day, the father called the police. He had become concerned that the mother intended to leave that day and take the children to Sydney. She had packed big bags of belongings. The police made contact with the mother and at the request of police, she was taken to hospital. An Apprehended Violence Order (‘AVO’) was initiated for the protection of the father and children.

50.Whilst in hospital, the mother reported that the threat of violence to her children had been “fabricated by her partner.”  In the hospital notes, there is a lengthy report of the mother’s statements, including this:  

Allegation that she tried to smother a child with a pillow strongly denies this. Says that she told partner ‘got so annoyed by [C] that she nearly threw a pillow at her.’ The mother at that time self-described as suffering with depressive feelings recently, feelings of hopelessness and despair, low self-confidence and self-esteem and anhedonia.

51.I note that the mother did not make reference in her affidavit to having said words to the father to that effect, that she was “so annoyed with the child that she nearly threw a pillow at her”.

52.The mother denied what she is alleged to have said by the father in this way:

I am aware of [the father’s] allegations … that I told him in March 2013 that I picked up a pillow and covered [C’s] mouth with it. I deny I said this to [the father]. I deny I did this. I have at no time physically hurt any of my children.

53.It is a matter of significance. The mother was focusing on the incorrect date, perhaps to deflect from the real issue. She was not candid in her affidavit about her own state of mental health and emotional feelings at critical times (March 2013), in the way that she apparently was candid at the hospital. I conclude as follows:

a)That in March 2013 the mother formed an intention, involving [C] and a pillow, whilst feeling angry with the child.

b)That on that day she and the child were present in the same room, the child was crying, the mother was annoyed with her, the mother was holding a pillow and that the mother became fearful about her own intentions. She may have put her hand over the child’s mouth, she may have a held the pillow over the child’s face. It is equally probable that she did neither of those things.

c)That later that day she told the father in the words reported by him a version of how she had felt and what she had done with the child. I infer that she trusted the father and was asking for his help.

d)That the mother made the denials she did of having said the alleged words and of having done the acts described by those words, for reasons relating to the outcome she hoped for in these proceedings.

54.The father’s reaction and the steps he took are consistent with genuine concern and shock. If anything, he under-reacted.

55.Between 19 March 2013 and final separation on 30 March 2013, the father continued to go to work and leave the children with the mother. In that 11 day period, life had more or less returned to what was normal for the parties and the children.

56.On 30 March 2013, when the maternal grandparents and their son had arrived for a visit, the father became concerned that the mother was not present at the beach, as she had said she would be, and he was unable to find her. The relationship ended on that day. The mother went to hospital and did not return to the home.

57.On 9 April 2013, 10 days after final separation, an application was made by the father to the Federal Circuit Court with the father seeking sole parental responsibility.

58.On 12 April 2013 orders were made, by consent, that the children live with the father, spend time with the mother as agreed, with such time to be supervised, and for there to be reasonable telephone communication.

59.The mother returned to Sydney with her parents for a period of time and then in May 2013, returned to [E Town], where she rented a furnished studio.

60.On 2 May 2013 the mother attended the Department [E Town] office for a risk assessment. At that time, the mother had not seen the children for about two weeks.

61.On 14 May 2013 the mother filed her Response.

62.On 17 May 2013 an order was made for the preparation of a family report and further consent orders were made for equal shared parental responsibility, residence with the father and time, failing agreement otherwise, between the children and the mother, in the [E Town] area, from Saturday to Sunday with varying hours each weekend.

63.It is agreed between the parties that the mother thereafter had significant and substantial time with the children, in excess of what had been contemplated by the orders.

64.In mid-2013 the father began a new relationship with his current partner, Ms F.

65.In August 2013 the mother moved from [E Town] to [N Town]. In terms of her being able to continue having liberal time with the two very young children, this move is hard to understand. The only explanation offered by the mother was that she needed to get away to have the opportunity to work out what she would in future do.

[J] returns to live with the mother

66.In September 2013, the mother’s son, [J], now aged six and a half, ceased living with his father in Sydney and came to live with the mother, for reasons which are entirely unclear to me.

67.In October 2013 the mother then moved to the [I Region] area. That move was even more inexplicable than the one from [E Town] to [N Town]. It made regular time with the children virtually impossible.

68.The parties have been since that time 460 kilometres apart, five or six hours by car at least.

69.On 19 November 2013 the mother filed an Application in a Case proposing shared care on a fortnightly basis (two weeks in [E Town], two weeks in [I Region]), with changeovers in Newcastle.

70.On 26 November 2013 further interim consent orders were made providing for the children to spend time with the mother on alternate weekends in their local area and for a week to include Christmas (23-30 December 2013). The mother was to collect the children from, and return them to, [E Town].

71.Provision was made for the release of the Family Report to the mother’s treating psychologist and her general practitioner and to any other person to which either of those practitioners referred her.

The changeover in the I Region December 2013

72.On 29 December 2013 there was a heated argument between the parties at a changeover outside a police station in the I Region. This arose from the mother’s refusal to wake [C] in order for her to be placed in the father’s car for the trip back from the [I Region] to [E Town]. The police intervened at the request of the father.

73.The mother disingenuously told police that she was not obliged to return the children until the following day. That is what the orders stated, but the parties had varied the order. The mother had not wanted to travel back to [E Town]; the father agreed to come and collect the children, but could only do so on Sunday, 29 December 2013. The parties settled on that arrangement.

74.The statement to the police by the mother lends support to my overall conclusion that the mother says what it takes to get what she wants and feels justified in doing so in the context of her desire to have the children in her care.

75.The mother conceded in her oral evidence that it had not been a good judgment on her part. I agree. The police statement refers to the mother speaking in a “loud aggravated manner” sometimes yelling and repeatedly calling the father an “Evil man”.

76.Further the mother was observed to kneel down in front of [C] and say, “Who do you want to go with, Mummy or Daddy, you have to choose.”  The child did not respond. The [C] had been in the mother’s arms moments before when the mother suggested to the father that he take [B] and she keep [C]. It was a cruel thing to do. The children were assessed by a police officer to be alright and not upset when they left with the father.

77.On 1 January 2014 the mother reported concern for the children’s safety to police which prompted a safety check at the father’s home. The mother had seen the children two days before; it is improbable that she had genuine concerns.

Last period of regular time between the mother and the children

78.On 11 January 2014 the mother collected the children for the weekend. They were due to be returned at 9.00 am the following Monday and they were. However there was a series of SMS exchanges between the parties on Sunday and Monday, in which the mother created the false impression that she had returned to the [I Region] with the children on Sunday night.  The messages from the mother were provocative and clearly left both parties antagonised and upset. It was immature conduct by the mother.

79.On 19 January 2014 the mother rang to speak to the children. The father says they did not want to talk. Perhaps he was not particularly encouraging. In any event, there was no conversation.

80.The mother responded by again reporting concerns for the children’s safety, which prompted another police safety check and observation of the children. The mother had seen the children six days earlier. The report was a reflection of the mother’s feelings of disappointment and not at all child focused.

81.On 20 January 2014 the father successfully applied for a provisional AVO; one of the grounds was that the father had received more than a thousand text messages from the mother since separation. Thereafter the father ceased making the children available in defiance of Court orders.

82.On 24 January 2014 he advised the mother’s new solicitors of his decision and the reasons for it.  For the six months following, the children did not see the mother at all.

83.In April 2014 the mother created a website about the children. Under the heading ‘Stolen Children’ she posted photographs of the children, their names, ages and town where they lived, with the statement ‘Stolen Unlawfully by Father.’  She has since removed a film to a similar effect from YouTube. The consequences, including kidnapping by motivated third parties, could have been most serious.

84.On 4 April 2014 the mother filed an Application in a Case (Enforcement) and a Contravention-Application in the Federal Circuit Court.

85.On 5 May 2014 both those applications were dismissed. Leave was granted for the mother to provide a copy of the first Family Report to [Dr O], psychologist. The purpose for that was not explicit in the orders, although probably it was for therapeutic assistance of the mother. In fact, the psychologist prepared a detailed critique of the Family Report.

86.On the afternoon of that Court event, the mother and her friend, [Ms P], went unannounced to the dance school run by [Ms F]. There was an angry confrontation between the mother and [Ms F]. The mother was charged with assault and there is an AVO in place for the protection of [Ms F]. The matter was anticipated to be before the Local Court for the hearing of the assault charge in November 2014.

87.On 22 May 2014 the matter was assigned two hearing days in early July 2014, in the Federal Circuit Court.

88.In June 2014 the father and [Ms F] began living together, forming the current household.

89.On 4 July 2014 interim orders were made in the Federal Circuit Court as follows:

•       the children live with the father;

•       the children spend time with the mother on defined overnight weekend periods; and

•       changeovers to be at [Q Organisation], but at McDonalds pending the availability of [Q Organisation] to take on the changeovers; and

•       the matter transferred to this Court.

90.On 8 August 2014 an Independent Children’s Lawyer was appointed.

91.On 22 August 2014 an updated family report was ordered and the matter given expedited hearing dates in October 2014. That report was released in late September 2014.

92.The hearing commenced on 8 October 2014 and proceeded for the three allocated days, plus an additional day on 5 November 2014.

1. The 2014 orders were delivered on 18 December 2014.

2. The 2014 orders provided for the children to live with the father and for the father to have sole parental responsibility for long term decision making. The father was to keep the mother advised of decisions taken. There was provision for weekends and holiday time for the children with the mother, most of which was to take place in the local area of the children, E Town. There was also provision for some occasional weekend and holiday time to take place in the I Region where the mother lived.

3. The 2014 orders have enabled the children to maintain contact with their mother but at an emotional cost to themselves. The current behaviour of the children reflects their profound distress.

4. Although it is not referred to in the affidavit of the mother, through misunderstanding and conflicting interpretation of the orders the first two visits did not take place.

5. The children first saw their mother again in late February 2015.

1. In March 2015 the Apprehended Violence Order (“AVO”) in the State Courts sought by the father’s wife Ms F was resolved by mutual undertakings between herself and the mother to stay away from each other.

2. Unfortunately Ms F did not bear in mind her own undertaking when she subsequently attended at changeovers between the parents.

3. In April 2015 the father arranged to take the children to a psychologist Dr NN. Dr NN provided an affidavit annexing a report.[9] He was not required for cross-examination. Dr NN’s understanding of why the children were brought to see him was revealed as follows:

   [B] and [C] were brought to see me due to concerns [the father] had about their wellbeing. I did not see the girls as an expert witness but as a psychologist who was engaged to support two young children. [The father] was concerned about [B] and [C’s] mood, change to their behaviour and how they were managing the transition between visits from their house to their mother’s house and back again.

   [9] Affidavit of Dr NN filed 25/07/2018, Annexure B

4. Dr NN continued to see the children throughout 2015. He described his work with the children as “… revolved around normalising some of the stress around transitions and working on emotional intelligence, naming and understanding their emotions and communicating their needs. We used play therapy, cognitive behaviour therapy and psycho-education.”

5. Dr NN notes what he perceived to have been the breakdown of any form of workable relationship between parents, a matter he could not address.

6. There was some contact between Dr NN and the mother but she became increasingly unhappy about his supportive/therapeutic work with the children and at the end of 2015 the decision was taken by Dr NN and the father to end sessions with the children. This was apparently for reasons related to the mother’s hostile communication with Dr NN rather than in any change the children had for supportive therapy.

Contraventions

1. On 4 June 2015 the first contravention application was filed by the mother in the Parramatta Registry of this Court.

2. The mother alleged that the father had failed to provide the children to spend time with her, had failed to ensure that the father’s wife was not present or in sight at changeovers, had indeed nominated his wife to conduct changeovers, had failed to advise the mother of the older child B’s enrolment at school and had failed to provide contact details. The mother alleged that the father was denigrating the mother in the presence of the children.

3. It is an agreed fact that on 8 May 2015 the father advised the mother by email[10] that he would not be making the children available for the scheduled overnight visit in the I Region. The email is of some significance. The father had made a decision not to comply with the orders. In subsequent contraventions proceedings the father stated to the Court that it had been his belief that having sole parental responsibility enabled him to make a decision not to provide the children.

   [10] Affidavit of the mother filed 24/07/2018, para 112

4. The father advised the mother that in his view the children’s level of anxiety at changeover had distressed them immensely and “the level of discomfort the children have been presenting since their return has been of great concern and we feel that it is not in the children’s best interest to travel this weekend to the I Region.”

5. The email is significant for another reason. The final statement was “This email will be deactivated as from today to avoid non-essential contact”. It was clearly the case that the father was cutting the mother off from their former line of communication. It was signed off by the father and his wife.

6. It is also of further real significance that the weekend being discussed was the weekend which included Mother’s Day.

7. On 4 June 2015 the mother filed her application for contravention. Two weeks later, mid-June 2015 at a changeover the mother attempted to serve the father with that contravention application. She was at that time legally unrepresented. The outcome was predictably fractious and unpleasant for all parties including the children.

8. On 1 July 2015 the father sent a further email advising the mother as follows:[11]

   In the capacity of having sole parental responsibility for the children [B] and [C] I am writing to advise that we cannot allow any further visitation due to your continues (sic) erratic and extremely unbalanced behaviour towards the children. This is causing considerable damage to both children and we cannot allow this to continue. Together our solicitor will be making an application to the court to have this matter heard. Please note this email address will no longer be active due to non-essential contact.

   [11] Affidavit of the mother filed 24/07/2018, para 115

9. Again, this email was signed off by the father and his wife.

10. Thereafter, the children were not made available for time with the mother.

11. On 18 September 2015 the mother filed a further application alleging relevant further breaches.

12. On 22 September 2015 the application for contravention of the mother was heard. Findings were made that the father had contravened the orders on five occasions.

13. The father was directed to enter into a bond for a period of 12 months subject to conditions that he enrol in a course in compliance with Order 16 of the 2014 orders as soon as a place became available.

14. Order 16 of the 2014 orders had provided for each party to commence and complete a parenting after separation course run by either RR Organisation or Q Organisation noting that would be in the best interests of the children and that the father’s partner also complete that course if she was willing to do so. Neither party had complied with the order. Ms F had not undertaken the course. Later the father did.

15. On that day 22 September 2015 the father filed a fresh application for final orders which he later withdrew. On 8 October 2015 the father filed a Notice of Discontinuance in respect of that application.

16. The orders of 22 September 2015, made in response to contravention being established, clarified the issue of the father’s wife attending changeovers.

17. Order 7(c) from the 2014 orders had simply stated “changeovers may be effected by a parent or nominee other than the father’s partner who should not be present or in sight of the parties and children during changeovers”.

18. The variation to that order was as follows:

    (7)Order 7 of the orders dated 18 December 2014 shall be varied by the addition of sub-paragraph 7(d) as follows:

    (d)That on any occasion when the father is unable to effect changeovers himself and is unable to nominate a friend or family member to assist in that regard, he is to arrange for and pay a suitable person to effect the changeover between the children and the mother, NOTING that the father is to ensure that his partner [Ms F] is not present at or in sight of the mother and children during any such changeover.

1. There was a notation to the orders about the intention of the father’s legal representative to explain to him the definition and limitations of sole parental responsibility and his obligations to comply with Court orders.

2. After the Court event in September 2015 the father no longer attended changeovers himself. In retrospect this has the look of a protest by the father at having to travel without his wife. Instead the father took the course of paying various people to effect changeovers. Six to eight different people effected changeovers at various times. Most of them were sourced by Ms F.

3. Two of those nominees, Ms MM and Ms LL, provided affidavits for the father in these proceedings and were not required for cross-examination.

4. One of them was a witness for the mother.

5. Ms MM who is a community support worker began attending changeovers with the children in 2015 (presumably after the September 2015 Court event). Her evidence was that if she referred to the mother as “Mum” the children would say “no, it is [Ms Steyn]”. She continued to refer to the mother as “Mum” even if the children told her not to. Further, she stated that both the father and his wife both referred to the mother as “the children’s mother” and that the father’s wife in particular would refer to the mother as “Mum”, when speaking to the children. Ms MM says that the children would correct the father’s wife and say “It is not Mum, you are our Mum”.

6. It is hard to reconcile Ms MM’ evidence about that issue with the evidence of the father and his wife themselves. I cannot be certain but it seems likely that the father’s wife referred to the mother as “Mum” when speaking to the children in front of Ms MM, anticipating correctly that the children would correct her in that way.

7. I am supported in this by the evidence of both the father and his wife that the children always called the latter “Mum”, that the father used that term of reference when speaking to the children and that both he and his wife spoke of the mother as “Mummy [Ms Steyn]”.

8. Ms MM spoke positively about both the father, his wife and the mother, encouraging the girls at changeovers. Her evidence that the mother was able to take the younger child C’s hand and walk away with her is consistent with the evidence.

9. There is no challenge to the evidence of Ms MM that the mother offered to show her a Family and Community Services report and a psychologist’s report about the children if Ms MM wanted to read them and to the fact that the mother referred to there having been brain washing occurring in the father’s household.

10. Ms MM states that the mother asked her to prepare an affidavit to support the mother’s case and that Ms MM had declined saying that she did not have an opinion. Ultimately Ms MM prepared an affidavit in support of the father’s case.

11. Ms MM gives evidence of the children at changeover saying to her, in front of their mother, that their half-brother J had hit them or that there was no food.

12. It became a practice of the father and his wife to prepare a backpack for each child with food and underwear for their time with their mother. The backpacks of food were the subject of considerable cross-examination. The mother interpreted them as an implicit criticism of her ability to feed the children when they were with her.

13. I consider there is some substance in that interpretation, although I do not consider it is the case that the father or his wife thought that the mother was unable or unwilling to feed the children properly when in the mother’s care. More likely it was a staged comment on her perceived competence as a parent.

14. Another changeover nominee was Ms LL who attended changeovers sporadically between 2015 and January 2017. The evidence of Ms LL is that for the first few changeovers she would attend on the father’s home, that the father and his wife would be present, that they would tell the children that they had to go and see their mother[12] and would place the children in their car seats.

    [12] Affidavit of Ms LL filed 2/07/2018, para 3

15. Later, on the initiative of Ms LL, she and the mother met at a coffee shop nearby to the changeover point (McDonald’s Suburb D) so that Ms LL and the children could simply walk across to the restaurant. Ms LL stated that the father’s wife would usually call her the next day although there is no information given as to why or what was said. Ms LL described the changeovers as always difficult with the older child B, in particular, clinging to her and saying she did not want to go with their mother. She described the children screaming or crying loudly, running to hide under the table and clinging to her and protesting.

16. Ms LL appeared to be somewhat critical of the mother,[13] “[Ms Steyn] would usually try to talk to them and bribe them to go with her. [Ms Steyn] does not come to me or physically prise the child off me. I have to do it myself.” 

    [13] Affidavit of Ms LL filed 2/07/2018, para 12

17. She referred to the mother as asking her to help or to do something but I conclude that Ms LL was, not unreasonably, at a loss to know what to do in such a difficult situation.

18. Ms LL states that she received text messages from the mother which were personal and derogatory about the father. Ms LL ceased being involved in 2016 but agreed to resume early in 2017 when another changeover person was “not working out”.[14]

    [14] Affidavit of Ms LL filed 2/07/2018, para 22

19. By November 2015 the correspondence between the parties was strained and threatening a return to Court. Over the following months the line of communication started to break down. The mother forwarded her schedule of proposed visits. The father through his solicitor advised that the father had not received the letter and therefore sufficient notice had not been provided for the dates the mother had proposed.

20. In March 2016 the parties attempted to use each other’s lawyers to communicate and unsurprisingly given that the matter had been finalised in the Court, the solicitors did not wish to be used in that way.

21. On 2 July 2016 the children arrived with Ms MM in the I Region changeover point. The children described by the mother as visibly upset and shouting at her. The older child B said to her “I am going to miss out on Wet ‘n’ Wild water park if I come with you”. The behaviour of the children became loud and uncontained. The older child clung to Ms MM, the changeover nominee, and the mother describes the child as beginning to hyperventilate. The older child started shouting “[Ms Steyn], stop threatening me”. After 40 minutes of such behaviour the mother, together with her son J who was also becoming unsettled stepped back. She telephoned local police who recommended that she allow some time to pass and try again. By that time, Ms MM, as changeover nominee, had notified the father that changeover had not taken place and he set out to collect them.

22. The mother attempted to contact the father to re-attempt a changeover in order for her to spend holiday time with the children but there was no agreement about the matter and the children did not spend time during that school holiday period.

23. The mother rang the children at the father’s home. The younger child said to her “I don’t want to speak to you”.  The older child said “I told you the other day to go away”. This disdainful tone from a seven year old is a matter of significance. The mother said “Mummy loves you”. The telephone was then disconnected.

24. There was then a dispute about whether the failure of the I Region changeover meant that another holiday could take place in the I Region area. The mother preferred that. The father insisted on holiday periods being facilitated in the E Town area.

25. It is abundantly clear that the father felt imposed upon by the perceived need to provide and pay for third party nominees and was generally impatient with the travel. It is equally clear that the mother was frustrated and angry about the conduct of the children at changeovers and her inability to engage with the father directly to ensure smooth transitions.

26. Towards the end of 2016 C was tearful and in pain in respect of her collar bone. The mother was unable to communicate with the father about the cause of injury to the child.

27. In November 2016 the father provided to the mother a Discharge Summary revealing that the older child had attended hospital with a broken left arm and had required surgery. When the mother made contact with the hospital she was told that “[Ms F] is listed as [B’s] mother, your name is not supplied for [B’s] file at [E Town] Hospital”.[15]

    [15] Affidavit of the mother filed 24/07/2018, para 159

28. The mother did not see the children during the 2016 Christmas school holiday periods because of the inability of the parties to agree to the times when that should happen.

29. In February 2017 on the younger child’s sixth birthday, the mother rang and the child answered “No, no, no, I don’t want to speak to you” and hung up.[16]

    [16] Affidavit of the mother filed 24/07/2018, para 169

30. A few days later when the mother rang again she spoke to B who said “I do not want to talk to you”. The mother replied “I love you [B]” and the child replied “Are you deaf? I do not want to talk to you”. The telephone was then disconnected.

31. These wildly disrespectful conversations exemplify the impasse that the mother and children have reached.

32. On 27 March 2017 the mother filed a second application for contravention in respect of time and communication with the children but also in respect of the father’s failure to pay costs as ordered in the first contravention proceedings in September 2015.

33. In April 2017 the Department contacted the mother and told her that the father had notified that while the children were in her care, their brother J had “acted in a sexual manner towards them.”

34. Similar concerns having been raised in the past, the mother asserts, and it seems likely that to protect him from false allegations, she had been careful to ensure that he had not been left alone unsupervised with the two girls.

35. Officers from the Department conducted an investigation including interviews of the children and prepared reports. The allegations were not substantiated.

Current proceedings commence

1. On 24 April 2017 the mother filed an Initiating Application seeking to vary the 2014 orders.

2. On 6 and 7 May 2017 the mother spent time with the children in the E Town area together with her mother and brother. The mother requested a change in the time for delivery back of the children to 4.00 pm. The father did not agree. The time nominated in the orders was 5.00 pm but the parties had been in the habit of delivering back earlier to allow for travel time. The mother was contacted by police directing her to deliver the children back to their father as per the orders. Unusually police arrived at the changeover point themselves to collect the children. The mother describes the children looking “quite concerned and uneasy about going with the police officers”.[17]  It is hardly surprising.

   [17] Affidavit of the mother filed 24/07/2018, para 178

Second Contravention

1. On 30 May 2017 the contravention application of the mother was heard and the father was again found to have contravened orders without reasonable excuse. The father was ordered to enter into a bond for a period of 12 months, to strictly comply with the orders made in 2014 as varied by the orders of 22 September 2015, and to be of good behaviour. The father was again ordered to pay costs.

2. There continued to be conflict over who was to effect changeovers and to whom the mother should communicate over the following months. The father and the mother criticised each other extensively through electronic messages.

3. On 23 September 2017 the mother was scheduled to travel to E Town to visit the children. She failed to do so and sent an email the following day apologising in what appeared to be quite sincere terms.[18]

   [18] Affidavit of the mother filed 24/07/2018, para 190

4. On the following weekend both children refused to come with her, shouting “You are not our mother, we don’t have to go with you, we hate spending time with you”. The mother eventually got the children into the car and took them to visit the family of her then partner, Mr FF. The mother describes the children’s behaviour in the FF family home as appalling, with the younger child screaming at Mr FF’s parents and the older child trying to break things in their home.

5. The mother decided to return the children to their father. She said this “In the last 24 hours the children have been extremely oppositional, abusive towards myself, my partner and his family”. After she sent the email the mother told the children she intended to return them to their father’s home. She describes the younger child’s attitude as changing instantly, apologising and asking if she could stay. The older child agreed that she wanted to go back.

6. The mother returned the older child and kept the younger one with her. The younger child proceeded to express fears and complaints about how she was likely to be punished, asserting that if she referred to the mother as “Mummy” or told her father and his wife that she hugged the mother “I get smacked for it.”  She went on to say that when she had wet her pants “Mummy [the father’s wife] locked me outside for the whole day, she said if I acted like a dog, she’ll treat me like a dog. She told me to drink from the dog’s bowl. Please don’t make me go home.”

1. The mother communicated to the father the behaviour of the children and advised the father that she intended to take the child to a clinical psychologist. The mother of course had no authority to do that without the consent of the father given that he had sole parental responsibility.

2. The mother then sought out a psychologist but ended with having the child interviewed at the Family and Community Services office in the I Region. She described a considerable change in the child during the week they spent together, in particular that she would sit on the mother’s lap and started referring to her as “Mummy”. She pleaded not to return to her father’s home. However, to her credit, the mother returned the child to the father.

3. After this high point changeovers deteriorated further.

4. On 18 and 19 November 2017 there was a new changeover nominee for the father. The child C willingly went with her mother, the older child B refused and protested by yelling that she did not want to go with the mother. Arrangements were made for the father to collect the older child.

5. The extent to which the relationship between the parents had disintegrated is revealed by the following incident:[19]

   The mother said she noticed a bright red mark on [C’s] cheek after she went for a swim in the pool. She asked the child about it and she gave the answer that another child called [SS], although not her sister [B], had slapped her and that [C] had covered the mark up with make-up which had washed off in the pool.

   [19] Affidavit of the mother filed 24/07/2018, para 204 and Single Expert Report of Dr EE dated 15/01/2018, page 21.3

6. It seems a highly unlikely story and would best have been left unaddressed since the mark did not represent a serious injury.

7. During that weekend the mother received an email from the father directing the mother to return C to his care because the children should not have been separated.

8. Later that evening the mother said she was contacted by police who asked her to bring C into the police station and advised that they had received an adverse report about the mother’s care of the child from the father’s wife. The mother at first refused but after a second conversation agreed to take her in. There was a scene in the police station and it is apparent that the mother believes that police had been drawn into the matter unnecessarily. That must be so.

9. By December 2017 the children at Christmas time, involving the mother and the maternal grandparents, were telling the mother and the extended family “You are not our real family”. The mother describes the children as hitting their brother J, breaking and destroying items in the home of the maternal grandparents. The younger child is said to have wet her pants on a number of occasions. Nevertheless, by the second week the children had apparently settled sufficiently to allow the visit to continue.

10. On the last weekend in February 2018 the children were presented at changeover with two bags of food as reported by Ms MM. Once the mother had the children in the car she returned the bags of food to Ms MM. Despite an uneventful visit, ten days later in a telephone call the older child B was heard by the mother to say “I hate you, go away”. The telephone was then disconnected.[20]

    [20] Affidavit of the mother filed 24/07/2018, para 215

11. In April 2018 the older child B was not only loud and aggressive but bit her mother on the arm and attempted to run away. The mother took C and arranged for B to be returned to her father. Again, the father sent an email demanding that the younger child also be returned. Sadly C did not respond as she had in the past but spoke both rudely and harshly to her brother “You tried to have sex with us, you are not our brother, you are a moron.”  The mother decided to return C to her father’s care.

12. In her own words the mother decided that “It was doing more harm to force the time and put the girls, [J] and myself through the stress of everything.”[21]

    [21] Affidavit of the mother filed 24/07/2018, para 221

13. On 21 April 2018 the mother wrote a letter to the father telling him of her decision and the reasons for it.

14. The mother blamed the father for the breakdown of her relationship with the children. Although each of the parents have played a role I do not consider that it was exclusively one of the parents but rather a combination of fraught changeovers, resentment and bitterness between all three adults and children under pressure. It must be said that the father had legal authority and chose to exercise it the way he did.

15. Four months passed with the mother spending no time and having no communication with the children.

16. In late September 2018 there was a telephone call on the older child’s birthday and the parties subsequently reached agreement that the mother would spend time with the children on three occasions in November and December 2018 with changeovers at a particular venue, UU Organisation.

17. At the first changeover C’s hair is described by the mother as having been dyed brown. The father’s wife when asked about that in cross-examination. She said the child’s hair had been rinsed with medicinal wash for nits and had changed colour. Even if that were the case, it might have been expected that some information might have been passed on to the mother in advance to explain what had happened.

18. The children were oppositional towards the visit. Once they left the centre the children both ran away, shouting that they did not want to spend time with the mother, they refused to get into her car. The mother reports B as saying when she did finally agree to get into the car “I am only coming because Daddy will get into trouble with the judge if I do not come”.

19. The mother refers to the children then behaving riotously in the car. The child B declared that she had wet herself, “to show you how scared I am of you.”  The mother pulled over the car and changed the child in a public toilet. Both girls began yelling and screaming and calling out to strangers for help.

20. The mother describes the children unbuckling their seatbelts and climbing around in the car whilst she was driving down the motorway towards Sydney. It was clearly a most dangerous situation. She pulled over numerous times on the highway to re-buckle the children into their seats but they continued to unbuckle their seatbelts, climb around the car, throw things at her, hit her and yell at the top of their voices.

21. On arrival at the mother’s home in Sydney the children are described by the mother as calling out “Help, help, save us”, destroying things in the house and yelling “Take us home, get off me” in a loud voice.

22. The mother took the children out for sushi only to have them start screaming words such as “Help, she’s not our mother, she’s hurting us.” 

23. The mother made a decision to return the children to the father. Tendered into evidence was a USB[22] containing short video files of some of that behaviour. It was certainly unmanageable and whether or not the children were aware they were being filmed, it is easy to see that the mother could not have gone on with the visit with the children behaving in that way.

    [22] Exhibit MA1 annexed to the Affidavit of the mother filed 16/01/2019

24. Again, when it came to return them, this time to a young changeover nominee Ms TT, (who the mother believed to be a cousin of the father’s wife), the older child B jumped out of the car willingly but C pretended to be asleep but also muttered to her mother “No, no”. The mother said she realised the child did not in fact want to go and was pretending to be asleep. Accordingly the mother only returned B.

25. The mother describes the younger child’s behaviour being much calmer after had returned, she behaved as a loving and compliant child.

26. If that is the case, it supports the assessment of the single expert that C has been able to hang on to her relationship with her mother despite pressure from her sister and within the father’s home not to continue with the visits.[23]

    [23] Single Expert Report of Dr EE dated 15/01/2018, page 49.b.4

27. Again, there was a protest from the father about the children being separated. It is understandable. In the ordinary way children do better when they spend time with parents as a sibling pair but, in this particular case, it appears that B has made a decision to reject her mother but C has found a way to keep the relationship alive. That is not to say that C is not in trouble emotionally. She clearly is.

28. On 9 October 2018 C had what her mother describes as a severe meltdown where she began making statements such as “I hate you. You hate me. You don’t love me. I wish I was dead”. She was physically hitting and punching at her mother, she ran into the kitchen and got a knife off the bench and swung it around positioning it near her neck. After the mother diffused the incident by managing to get her to put the knife down, the child said “I am disgusting and I wish I was dead.”

29. If C was expressing her true feelings she is a child at risk of emotional harm. Even if she was being melodramatic to some extent her words are evidence of the crushing emotional pressure she feels.

30. I accept that the father, when he read that material, was quite genuinely horrified at the thought of this behaviour and its implications for C’s present and future mental health.

31. During that visit the mother reports that C said to her “My real mummy dyed my hair brown so that I look like her”. She is also reported as saying that she was scared of getting into trouble because she did not go back with B. The mother reported that she believed that the child was genuinely frightened.

32. It seems less likely, although possible, that C was going to be punished for staying with her mother and much more likely that the antagonism between the two households is so great that she feels fear as a result.

33. Significantly, when the child was returned after the visit through UU Organisation the mother reports that the child asked to say goodbye to her in the car so that “the lady in UU Organisation did not see” and then gave her mother a hug and told her that she loved her. The mother reports that in the presence of the worker at UU Organisation the child refused to look at the mother, give her a hug or say goodbye.

34. When the mother next saw C the child was quite hostile and asked the mother “Are you going to slap me again?”  She is also reported as telling her mother “When I was a baby you tried to drown me and you always slap me. That lady will tell the judge”.

35. On this occasion the mother reports that C’s hair was dyed blond. The original colour of C’s hair is blond and apparently an effort had been made to restore it to its original colour. It is hard to know what to make of the dying of C’s hair. I note that in telling the story about the hair C is reported to have freely referred to the father’s wife as “Mummy” and “Mummy says it’s my choice to dye my hair and it is none of your business”. The rest of the visit went well, the child did not cry or ask to go home. She did not scream or carry on in the way that had happened in the past.

36. Again in December 2018 C is reported to have been hostile at changeover but relaxing into an enjoyable visit soon after. Towards the end of the visit and on return the child became cold and hostile, “I don’t want to come to your house for Christmas, you are stealing me from my real family for Christmas. My Mummy is going to cry for me every day for Christmas because you are stealing me away from her.”  Whether the child was speculating or had been told that her step-mother would cry everyday if she was not with them for Christmas is another disturbing indication of just how much pressure the child was feeling at that time.

37. Again in December the mother and younger child had an enjoyable period of time together.

38. I conclude that the children need relief from the situation they find themselves in. First, and perhaps most importantly, the relationship between the children as sisters is being eroded by the different positions that they have taken in relation to spending time with their mother.

39. In the home of the father, time with the mother is probably regarded by the adults as an irksome duty both for them and the children. In the home of the mother, the mother is desperate to have enjoyable time with the children but struggles with their reactive behaviour.

40. A different parenting regime is required.

Presentation of The Parties

The Mother Ms Steyn

1. The mother was calm and contained in the witness box. Her responses were very often elusive, often in a sequence of “mmm, don’t know, can’t recall” and only when pressed “yes” or “no”.

2. My impression was that the mother gave selective evidence in order to support her position, however she has experienced over the past four years a slow and painful deterioration in the relationship she previously had with the two children. She considered giving up, and although in many ways that would have been easier, she has remained committed to the children.

3. I conclude that the mother still feels resentful over the children being removed from her care at a time when she had an involuntary psychiatric assessment in March 2013. The single expert has confidently assessed that the mother does not suffer from any mental illness.

4. The mother also appeared to be aware that both she and the father have been guilty of systems abuse, particularly with reference to contacting the police to conduct welfare checks on the other household. Neither parent in my view seriously considers that the children were at risk of not being physically well cared for in the home of the other but was sending messages through the police as a means of protest, criticism or simply to annoy.

5. The mother has suffered depression at times but has paid attention to her own health in that regard, which is confirmed by Medicare records.

6. By pressing for the orders she does, the mother is taking on a most demanding task of restoring her relationship with the children whilst not destroying the relationship they have with their father, his wife and their step-sister G and half-sister DD.

7. The mother reported to the single expert that B had rejected her but after eight or nine days would allow the mother to put her hand on B’s arm affectionately without pulling away.[24] 

   [24] Single Expert Report of Dr EE dated 15/01/2018, pages 18.7-19.1

8. To her discredit the mother has behaved immaturely at times. She sent a photograph falsely suggesting that she and J might be leaving the country (perhaps with the children) by the posting on social media of an old photograph taken in a plane. Likewise, she probably referred at least in the early years to the father’s wife by a different name and the children picked up on it.

9. To her credit the mother conceded that such behaviour was immature.

10. In relation to her son there is evidence of the mother being concerned about his health with history of referrals of treatment[25] and is recorded by the principal of that child’s school as the mother being “proactive working with the school and certainly meeting the basis needs of [J] for food, cleanliness and dress”.[26]

    [25] Single Expert Report of Dr EE dated 15/01/2018, page 12.8

    [26] Single Expert Report of Dr EE dated 15/01/2018, pages 40.3-41.1

11. I conclude that the mother has felt humiliated by the father’s willingness to allow his current wife to manage correspondence, to take over the raising of the children at least to some extent, and for marshalling and instructing a series of paid changeover nominees which has certainly not assisted the transition process for the children from one household to another.

The Father Mr Garrety

1. The father in the witness box presented as quite calm, as a dutiful, loving and kind father, however he also presented as an unimaginative man. On many occasions he repeated a sequence of events involving the children in this way:  He was told something by them; he reported it to an appropriate authority; and he felt concerned about what was said. I conclude that what he has been unable to do is to tune into the difficulties that the children are experiencing because of him and their mother and their step-mother.

2. I conclude that he has found the children’s erratic behaviour inexplicable. His own experience of them is generally of polite and compliant children. On those occasions when their behaviour has been described as something very different, that they had yelled and screamed and abused their mother he had difficulty accepting that, but even more difficulty in understanding why they would behave that way if they did.

3. Likewise, in relation to the alleged behaviour of the mother, the father was able to accept a story from C that the mother had tried to forcibly breastfeed her, without considering any other explanation. This was an incident on 3 December 2015. In his report the single expert concludes that C, who was at that time about four, may have been curious about breastfeeding and tried to look at her mother’s breast in order to understand how it worked.[27]

   [27] Single Expert Report of Dr EE dated 15/01/2018, page 41.3

4. Another example is B’s tooth lost at her mother’s home. In November 2014 she was five years old. The evidence of the father himself was that the child was quite happy when she first told him about losing a tooth. She wanted to be like her older sister G. The father described himself as surprised because “It wasn’t loose”.[28] He examined her mouth and saw bruising. The child then became tearful and accused her mother of pulling it out.

   [28] Affidavit of the father filed 24/07/2018, paras 22-26

5. The father did not consider other explanations; that it had become loose and he didn’t know that, that the child herself might have wiggled it out, that she felt worried she was in trouble and exaggerated. He was willing to believe that the mother had wrenched out a tooth which was not loose. Ultimately he reported the incident to police.

6. I conclude that the father does not see his own reactions as contribution to the children’s dilemma. They have both, in my view, tried very hard to please their father and step-mother ever increasingly by criticising their treatment at the mother’s hands in melodramatic terms. The father has accepted and reported but has not understood.

The Father’s Wife Ms F

1. Ms F appears to have taken on the role of step-mother as if the children’s mother had died, that is, she has in fact taken on the role of being their mother. It has been in my view a crucial factor in the breakdown of the relationship between the children and their mother.

2. The children began calling Ms F “Mum” in March 2014. She allowed it because they had asked if they could, aged four and a half and three at that time. Although she conceded that it would be sad if the children called their step-mother “Mummy” but would not call their real mother “Mummy” she has taken no step to reassure the children that they are free to call their mother “Mummy”.

3. The artificial business of referring to the children’s mother as “Mummy [Ms Steyn]” has made it clear to the children that she is, in the view of the father and his wife, surplus to requirements, an extra mother that they do not really need.

4. Consistent with my view that the father’s wife regards herself as the children’s mother, the children were enrolled at school with her details included in the category of mother. She completed the form herself. She explained that she had included herself because the category was mother/legal guardian, “Yes I’m a guardian and step-mother.”  In fact the step-mother is not a legal guardian, the father has sole parental responsibility. The father and the mother are the parents.

5. Counsel drew to the attention of Ms F that there was a section in the enrolment form for step-parents and that by filling in the form the way she had done she had excluded the mother. Her response was that had not been her intention. If that is correct it is likely to be because Ms F did not regard the matter of the mother’s details as in any way significant.

1. She has been willing to wholeheartedly take on the motherly role for the sake of her husband and probably because she feels genuine affection for the children, but I am satisfied she finds the mother intolerable to deal with and cannot see value for the children in their maintaining a relationship with her.

2. Just as the father had done, the incident of B losing a tooth was accepted as an act of violence committed by the mother. Ms F was asked whether she really considered that the mother had “ripped out a healthy tooth which wasn’t wobbling”. Her response was “Just reporting what [B] said. I wasn’t there”.

3. I conclude that Ms F has the ability to regard the children’s time with the mother, away from her, as something she knows nothing about and would prefer to know nothing about. When the children make statements about events in the mother’s household, she has regarded it as her duty to record and report anything that has a negative character without explanation, consideration or an attempt to understand why a child might have been explaining something in the way she did.

4. In relation to her presence at changeovers, Ms F agreed that she had read the orders and reasons from the 2014 trial and knew that she had been directed not to be present or in sight at changeovers. She also conceded that the incident at the dance school which had given rise to the application for AVO had created a poor relationship between herself and the mother. She conceded she knew there were legal and personal reasons why she should stay away. She also conceded that it would have been easier for the children if she had.

5. Although she knew all those things, Ms F had chosen not to stay away. It is evidence of a strong willed nature and of her view that she knew, better than anyone else, what was best for the children.

6. Ms F was questioned about whether or not she had undertaken the parenting after separation course which was recommended to her through the 2014 orders. She had not undertaken the course, she said because she had learned a lot from what the father had said to her each day as he was attending. She concluded “It would have been beneficial but I didn’t get around to it”.

7. I do not consider that Ms F was answering honestly when she said that the course would have been beneficial. There was an arrogance in her response which suggested she thought that the course would have represented a waste of her time, despite her protestations otherwise.

8. That would be consistent with why she decided to continue to attend at changeovers in 2015 knowing that she should not have done so. Her response was that she had made a poor decision. When asked why she had gone along, her answer was “The children were upset about going. There were problems with [B], defiant, screaming and crying”.

9. I conclude that Ms F thought that her presence would be of assistance and did not see that her presence was a large contributing factor to the children’s distress. The children are very likely to have known just how much their step-mother disliked their mother and disapproved of the way she went about the task of mothering so that changeover in that atmosphere was simply harder for them.

10. On the changeover where Ms F went into the changeover restaurant, she again described herself as having made another poor decision. I conclude that it is more likely that Ms F felt an overwhelming need or obligation to take over and sort the matter out.

11. It is apparent that although the father and his wife consult and work cooperatively in raising the four children in their household, it is Ms F who is the day to day custodian and supervisor of all the children.

12. I conclude that the father and his wife have solemnly sat with the children, listening to their comments over the years, commending them for having told them and reporting their statements without empathy for their painful conflict of loyalties.

13. It seems probable that there has been a competitive undertone to the relationship such as it is between the mother and Ms F. When she was asked about Mother’s Day in 2015 when the time for the children in the I Region did not occur by decision, the proposition was put to Ms F, “You think Mother’s Day is your day with these children?”  She gave a one word response “No” but was flushed and defensive in a way that suggested that she did indeed think that.

14. It is hardly surprising that Ms F enjoys having the group of four girls in her care, her own two daughters and her husband’s two daughters together and takes pride in the way that they are presented and cared for, but her hostile competitive attitude to the mother, reciprocated, has created a corrosive loyalty conflict for the children.

15. Ms F conceded that when C had a febrile convulsion in August 2015, then aged four, she probably reported to the doctor that she was the child’s mother, “Don’t remember that, possibly.”  The consequence of that, it was put to her, was that the mother had been unable to talk to the doctor without proof of being the child’s mother. Her response was illuminating “I can’t comment on what happened at the mother’s end”.

16. It may be, it seems likely, that Ms F considers that the mother has disqualified herself from the obligations and pleasures of parenthood and in that sense, if there are negative consequences she has “brought them on herself”.

17. Ms F spoke quite critically of the mother’s witness Ms JJ who had been a changeover nominee at the instigation of Ms F. She was somewhat disdainful in response to the question of whether she had invited Ms JJ into her home. She said she had not invited her into her current home, but in a previous home “She came to my home to meet the child DD in September 2016.”  That is a reference to the child of Ms F and the father who had been born in July of that year. It had to be the case that nobody other than Ms F invited Ms JJ to come and see the new baby.

18. The evidence of Ms JJ is of harsh parenting by Ms F, for instance Ms JJ said that in early 2016 Ms F had told her that C had been naughty, deliberately wetting her pants a lot. She had then proceeded to put C outside and lock the door of the home. Ms JJ had felt uneasy about the child being locked out for the afternoon but was told by Ms F that the child would be ok and would soon go away from the door and that she would contact the father and he would come home and deal with the child.

19. Ms JJ described Ms F denigrating the mother on another visit and asking Ms JJ to take screenshots of the mother’s Facebook page and give those images to Ms F.

20. I formed the conclusion that Ms F was very unhappy and personally offended that Ms JJ had formed a friendly and cooperative relationship with the mother and for that reason the use of her as a changeover nominee ceased.

21. The proposition was put to Ms F that it would be sad if the children had to adjust their feelings for their mother because they thought their step-mother would not approve. Ms F agreed that it would be sad. I infer from her answer that Ms F does not consider the children have adjusted their feelings for their mother because their feelings are the loving feelings of children for their “true” mother, namely herself.

22. Ms F was extremely angry about a police check that had taken place on 24 December 2016 at the instigation of the mother. Naturally on Christmas Eve it was not a pleasant experience for the parents or children. Ms F approached the police vehicle and demanded the name, rank and station of the officers involved. Whilst she did not agree that the father had been aggressive and agitated with the police, she was prepared to describe him as upset. She described herself as upset because the children were there and the police came, “neighbours saw.”

23. The proposition was put that that problem could have been solved by the children spending time with their mother. That was conceded, “They definitely should spend holiday time.”

24. Ms F conceded that she had heard the children speaking rudely to their mother on the telephone and that it would have been rude of B to say “I don’t want to talk to you, are you deaf?”  Her response that it was rude was watered down by the additional comment “I don’t always hear their calls.”

25. Ms F agreed that she had delivered food with the children in February 2018. Her explanation was that the two children had told her and the father that they were not getting enough food in the mother’s home and that they had come to the decision to diffuse their anxiety about that by providing food. If that is the case, the decision was misplaced. By providing food they undoubtedly confirmed the children’s fear that what they were being fed was inadequate or inappropriate.

26. Ms F presented as a confident and self-assured person. Her evidence is that she and the father had had big talks with the older child B to try to get her to telephone her mother. That together, they were unable to get it to happen in September 2016 on the day of B turning seven, is simply not credible.

27. It is probable that the child had offered her unwillingness which was warmly received and there was no genuine emotional approval for the child to have a telephone call with her mother and enjoy it. There can be no other explanation for why a seven year old child who had loved her mother apparently refused even speaking to her on the telephone.

28. With her quick response to the question as to whether or not she had smacked C, “Of course I’ve smacked C”, I conclude that Ms F has no difficulty whatsoever with causing the children to comply, to be obedient and to watch their manners. If she has been unable, alone or together with the father, to persuade the children to behave well with their mother, to love their mother and to enjoy their time with her, it is because she has not seen the value in doing so.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   (a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   (b)Children are protected from physical and psychological harm;

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

   (d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. Each of the parents understand that it is most unlikely that they will ever communicate easily, cooperate well and compromise, to meet each other’s point of view. One of the parents must take on parental responsibility.

2. I consider that the father took on the role of sole decision maker in a committed and serious way. He does not appear to have turned his mind to two matters. First the significance of the relationship between the children and the mother, that the children would have benefitted from their mother’s involvement in decision making and that a civil co-operative relationship between the adults would have done more to help the children than any amount of psychological assistance directed to helping them cope.

3. The second is the apparent lack of an independent relationship for the children with the father. He loves them and they would know that. That is not in issue. Rather there is no particular evidence of time alone for the subject children together, or as individuals, with their father. In his decision making the father has relied on consultation with his wife who provides the day to day care and supervision. He has probably missed their perspective as children with parents who each love them but apparently hate each other.

4. The father together with his current wife has been unable to assist the children to enjoy a relationship with their mother. I conclude that part of the reason for that is that neither of them have understood their own contribution to the children’s distress and increasing rejection of their own mother. They themselves see the mother as an inadequate parent and a persistent nuisance. They are entitled to their views but to the extent to which the father and his wife believe that the children do not know about their negative views of the mother is a revelation of their lack of empathy for children who have been hiding how much they love their mother.

5. In terms of parental decision making the mother has been powerless legally since 2014. Her own decision in 2013 to move far away from the father when the children were very young did not help them logistically and probably hurt them emotionally. Very long car trips, even if changeovers had been smoothly and amicably effected [which they certainly were not] would still have been burdensome for the children.

6. However, and most significantly, the mother has remained committed to the children and although she has ceased seeing the children at times more recently, she is determined to do what she can to restore relationships. I am certain of that.

7. Whether or not she has understood since separation the importance for the children of maintaining relationships with both parents I conclude that the mother does know that now. She has watched the corrosive impact of competitive parenting on the children and felt relationships with her two daughters slipping away.

8. Despite all of the risks of emotional damage, I conclude for these reasons and those that follow in the assessment of mandatory considerations, that a change of residence to the mother is necessary.

9. Accordingly, the mother should now take on parental responsibility for the children.

10. The parties are capable of civil communication in writing. The single expert agreed that there would be some degree of triumphalism in the mother as a result of a change in residence, just as there apparently was by the father when the children remained with him in 2014. However, I do consider that the mother is capable of letting the father know what decisions she is making and why.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children need both their parents.

2. The relationship between B and her mother has dwindled and been undervalued in the home of the father.

3. The relationship between C and her mother is stronger but that has had the consequence of C feeling guilty and anxious about taking a contrary path.

4. There is a risk that moving the children to live with the mother will see relationships with her improve, but fall away with the father. That would be a most destructive result.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The children do need protection from psychological harm.

2. The scorn and disapproval that Ms F feels for their mother has hurt them. Her committed level of physical care cannot ameliorate the emotional harm.

3. The father’s puzzled frustration over why things have gone so badly is unlikely to change.

4. The mother has been able despite her frustration and anger to comply with orders despite extended periods where the father chose not to do so and blamed her.

5. In the balance of risk the children are better protected living with the mother.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The evidence is overwhelming that both of the subject children are emotionally damaged by the conflict between their parents.

2. There is a negative attitude towards the mother in the father’s household.

3. I formed the conclusion that the father regards orders for time and communication as an imposition into the orderly running of his household. The use of the words “Mummy [Ms Steyn]” have become an artificial means of staying superficially polite about the mother. Neither child has or does actually call the mother by that name. They simple call her “[Ms Steyn]” when referring to her.

4. There is a negative attitude towards the father and equally, if not more, towards the father’s wife in the mother’s household. I accept that the mother does feel resentful about the girls being removed from her care in March 2013. She probably feels tricked by him. She certainly feels excluded from their lives.

5. The mother has been filming, recording and photographing the children for two reasons:  in an attempt to capture some of the happier occasions; and also to reveal the dreadful, emotional intensity informing the repellent behaviour of the children towards her.

6. In this context of a poor, distrustful relationship between the two parents the children are stuck. Each of them has been the bearer of complaints about one parent to the other. Each of the parents has willingly and warmly accepted the truth of the statements at face value or if not, have acted as if they did accept it.

7. The children complained that they were not fed in their mother’s home. They were provided with a bag of snacks to take with them for time with the mother. A moment’s reflection would have been enough to realise that the mother would be vexed or offended.

8. The children complained about their brother J kissing and touching them. They were interviewed by officers from the Department as a result.

9. The child B has been adamant and unmoveable in her expressed view to the single expert that she did not wish to spend time with her mother. She had to be adroitly managed for an observation to take place at all.

10. The child C was described as “… grappling with positive feelings for her mother and J. She has a difficulty of feeling an alliance between B and her father which is negative towards the mother. C has been courageous because she is a more resilient child than her sister in holding onto her positive feelings and her love for her mother.”

11. In those circumstances I give no weight to the expressed views of B. When interviewed by the single expert B spoke lovingly of her step-mother whom she referred to exclusively as “Mummy” and was perplexed when the single expert used the term “Mum” or “Mummy” for the mother. She was disparaging about her mother, saying “She screams at our face, she talks badly of Mummy and Daddy and she calls the father’s wife a different name”. She said she stuck up for them when the mother spoke about them like that.

12. There can be no criticism of a child for removing herself from the painful dilemma she has and choosing a side. Clearly B has chosen her father to give herself some emotional relief from conflict.

13. I do give some weight to C’s views. She has not rejected her father and step-mother and is trying not to reject her mother.

14. I conclude that the mother has not attempted to undermine the children’s relationship with the father despite her undoubted feelings of vengeful anger towards him.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. In a detailed and closely considered report, the single expert says this:[29]

   In general children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case and that there are significant threats to this outcome within the current situation.

   [29] Single Expert Report of Dr EE dated 15/01/2018, page 61.l.1

1. I agree that there are such threats. All agree that matters cannot go on as they are.

2. After the release of the single expert report and when trial dates were known, the mother ceased spending time with the children to give them, and perhaps herself some respite from their own rude and challenging behaviour. Unfortunately the trial was not concluded in August 2018 and was stood over for several months.

3. There is no doubt that the conflicting feelings of relief from hostile changeovers and distress at the mother’s withdrawal has caused the relationships to deteriorate further and the situation is now even more precarious.

4. The future difficulties referred to by the single expert are already on display. In October 2018 C became emotionally distraught in her mother’s home, picked up a knife and was beyond control.

5. The single expert concludes that in the event that the children live with their mother C’s level of attachment to her mother would improve “in the direction of greater security”.[30] C is assessed by the single expert to have retained a surprisingly good level of attachment to her mother given external pressures and that “she retains within herself a significant capacity for a better relationship with her mother.”  B is assessed to be a less resilient, confident and adaptive child than C. The single expert considers B too has a capacity for a better relationship with her mother but to a lesser degree than her younger sister. She may attain a lower level of security in that relationship.[31]

   [30] Single Expert Report of Dr EE dated 15/01/2018, page 49.b.4

   [31] Single Expert Report of Dr EE dated 15/01/2018, page 48.a.4

6. The single expert concludes that B could be assisted by therapeutic intervention whichever household she lives in. That assessment accords with the evidence. B has chosen the presently less painful path of not seeing her mother at all. She has withdrawn. C appears to be holding out against the view of the father and his wife that C is at risk in the mother’s household or at least receives no tangible benefit from spending time with her mother.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. A change of residence is likely to have a most significant impact on both children. They are likely to feel bewildered and possibly angry. The move will mean moving away from the school that they, and their older step-sister attend together. It will mean the loss of the regular day to day relationship between the two subject children with their older and younger siblings. B is especially close to G. C takes a maternal interest and pleasure in the child DD.

2. The children are likely very much to miss the family atmosphere of their father’s home and the activities that are organised for them. They will miss their school friends.

3. There will likely be a positive effect from the change in circumstances being an opportunity to restore the relationship with their mother who was their primary carer when they were very young children, up until March 2013. That result will take time.

4. For that reason, 10 weeks of “no contact” is provided for in the orders. That period represents a balance of risks, namely perpetuating the dysfunctional behaviour of the children against causing emotional distress resulting from being cut off from the paternal family.

5. The single expert recommended a period of uninterrupted time for the mother and children if there were to be a change of residence being “not less than six weeks and no more than three months”. The period of 10 weeks is to some extent a random number in that range.

6. However I do accept the need for a moratorium and consider that the mother will need all of 10 weeks to attend to the following matters. To help the children settle in at her home with herself and their older half-brother J; when they are sufficiently settled, to enrol in a new school; and to adjust to the loss of day to day contact with the paternal family and friends. To use the term of the single expert the children are likely to “pine”, feel insecure and test their mother relentlessly by their behaviour.

7. They will have regular contact with their half-brother J and may restore that relationship which has been eroded by the acceptance and reporting to authorities of complaints by the children about his behaviour.

8. It is likely given the comments about J that he is a little bit odd in his behaviour but the evidence suggests that the children love him and understand his ways.

9. A change of residence will also allow the children to expand and repair the relationship with their maternal grandparents who have been a constant presence in their lives when not deliberately excluded.

10. The evidence of the maternal grandmother in the first trial and in this one suggests that she has tried to remain even handed and understands that the children need a relationship with both their parents.

11. During the 10 week period the mother could decide to call on her parents especially the maternal grandmother to assist her to go away on holiday with the children or to stay home with them in order to promote closeness and restore respect.

12. Therapeutic assistance from an appropriately qualified and experienced child psychologist would assist. On that basis an order has been made for release to any such psychologist of these orders and reasons and also the report of the single expert. To be clear, the order specifies a child psychologist and does not apply to a counsellor or therapist of any other kind.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. This aspect continues to be a consideration but the trip between the north side of Sydney and E Town, although a long one, is shorter than the enormous journey between E Town and the I Region.

2. The children are older now. They can manage travel more easily although they have been sensitised to it in an adverse way. Many trips have been pointless because changeover did not occur. Changeovers have been effected by third parties not well known to the children adding to stress. Sometimes one child, B, was permitted to return to her father early causing friction between the children later. The children will benefit from less travel and fewer changeovers now that they are old enough to maintain relationships without regular visits to the other parent.  

3. There is no financial difficulty with the travel but it is a sufficiently long trip that holiday time only is the best arrangement.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Each of the parents and the father’s wife have the capacity to meet the needs of the children in terms of their physical care and education, although it must be noted that the children are recorded as underachieving in the school records.

2. That is not to say that they are doing badly just that they are capable of more. It must be the case that children so emotionally stressed would be distracted from their learning. That will likely continue after a transition into the home of the mother but I am satisfied that she is focused on assisting each child to reach her potential through education.

3. There is some limit in the capacity of the father to imaginatively and empathetically understand why the children have behaved the way they have. He has arranged counselling for them but not having seen himself as part of their problem, has not arranged counselling for himself nor has he been able to contain his wife, allowing her to conduct herself in a way that has put him in breach of orders.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are aged nine and seven. Their mother was born and grew up in Country K. Their father is Australian. Their maternal grandparents travel extensively and would undoubtedly be interested in involving them in that travel as the grandparents have with their brother J.

2. C is emotionally disturbed and after an episode which her mother described as a meltdown made the statement that she hates herself.

3. B, in the view of the single expert, would benefit from a counsellor. In my view, C, although she may be a sturdier personality would also benefit from therapeutic assistance.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The father has a poor record of compliance with orders. This Court has on two separate Court events found that the father has contravened parenting orders on several occasions.

2. The father told the single expert that he did not understand why the December 2014 orders had been made to include so much travel. One inference is that the father did not understand that at almost five and four years, the children needed to see their mother as often as possible, despite the distance between the households, because of their developmental stage.

3. The father advised the Court that he believed an order for sole parental responsibility gave him the right to decide whether the children should spend time according to the orders or not. He was disabused of that belief, nevertheless he continued to breach orders and allowed his wife to continue to be present at changeovers despite the detailed clarification by the Court.

4. The father withdrew from electronic communication with the mother. He cut her off.

5. The father has not demonstrated an ability to understand the children’s feelings of love for their mother, nor their feelings of confusion and hurt over the competition between the mother and their step-mother.

6. Loyalty to the paternal family appears to have been required of the children at the cost of the natural love and affection for the maternal family.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. In this matter the only family violence order has been one for the protection of the children’s step-mother from their mother in circumstances where there was a physical confrontation in the ballet studio run by Ms F.

2. That matter was resolved by undertakings by each of the women to stay away from each other.

3. There has been no further physical confrontation but there is no prospect of a civil relationship and on both sides there has been immature and destructive behaviour, particularly through social media.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. There is a risk that these orders will fail as the 2014 orders have failed. After two long gruelling and financially draining trials it is now up to the parents to comply with the orders or agree otherwise.

Conclusion

1. I have concluded that the children will feel deeply distressed and disrupted by the change of residence especially B.

2. The behaviour of the children which has been wildly uncontained, rude and disrespectful to the mother, may get more challenging before it improves. That is not to say it will inevitably do so. The mother may find that she is unable to withstand and contain this behaviour. In those circumstances she would likely return the children to the father and withdraw from the relationship until the children are young adults. In 2017 she contemplated doing so but chose instead to make this application and allow the outcome of it to be decisive.

3. The parties agree, and I have concluded, that to continue with the current orders is not only practicably impossible but destructive for the children. The recommendation of the single expert was that there be a change of residence and for the reasons above, I consider that is the appropriate course, despite the disruption of the life they have known for more than five years.

4. Orders are made accordingly.

I certify that the preceding two hundred and eight-three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 March 2019.

Associate:

Date:  27 March 2019