Taffa and Wallen
[2012] FMCAfam 25
•7 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAFFA & WALLEN | [2012] FMCAfam 25 |
| FAMILY LAW – Relocation – mother seeks to relocate to Sunshine Coast from (omitted) – high level of conflict between the parties – serious sustained family violence including in presence of children – mother seeks new life away from violence, intimidation and harassment – volatility and disputes also between father and his brother which create fearful environment for the children. Father’s trial with children to occur on limited basis. |
| Family Law Act 1975, Part VII, ss.60 CC, 65DAA |
| MRR v GR 240 CLR 461 U & U (2002) HCA 36 AMS & AIF 199 CLR 160 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 Taylor & Barker (2007) FamCA 1246 |
| Applicant: | MS TAFFA |
| Respondent: | MR WALLEN |
| File Number: | BRC 1762 of 2009 |
| Judgment of: | Willis FM |
| Hearing dates: | 30 August - 1 September 2011 |
| Date of Last Submission: | 1 September 2011 |
| Delivered at: | Cairns |
| Delivered on: | 7 February 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Mr Moore |
| Solicitors for the Respondent: | Eureka Legal Pty Ltd |
| Independent Children’s Lawyer: | Ms R |
| Counsel for the Independent Children’s Lawyer : | Ms Hartigan |
ORDERS
That the Mother have sole parental responsibility for the decisions in relation to the major long care, welfare and development of the children Y born (omitted) 2002 and X born (omitted) 2003 (“the children”). The Mother is to inform the Father of the decisions made in relation to:-
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)The children’s name.
Notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the decisions regarding the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and
(b)The Father shall be responsible for the day to day care, welfare and development of the children whilst they are living with or spending time with him.
The children live with the mother.
The mother is permitted to relocate the children to the Sunshine Coast.
The Father spend time with the children at all times as may be agreed between the parties, but in the absence of any such agreement as follows:-
Whilst the mother remains living in (omitted)
(a)The children will spend time with the Father each alternate weekend commencing from Friday at 4:00 pm until Sunday at 4:00 pm with all changeovers to occur to and from the (omitted) Contact Centre.
(b)Holiday times as set out in Order 7 herein.
Upon the mother relocating the children to the Sunshine Coast
(a)From 10:00 am on the first Sunday of the Easter school holidays until 10:00 am on the final Sunday of the holidays;
(b)For one half of the June/ July and September school holidays from 10:00 am on the first Sunday of the holidays until 4:00 pm on the final Sunday of the holidays alternating each year thereafter, with changeover to occur on the middle Sunday on the holidays;
(c)For 2 weeks in the Christmas school holiday period with the father’s 2 week period to include Christmas week in the year 2013 and each alternate year thereafter.
The mother is to be responsible for the return cost of travel of the children to spend time with the father pursuant to orders 7 (a),(b),(c) herein.
In addition to the time referred to in Order 7 herein the children will spend time with the father for one weekend in March each year, and on the Father’s day weekend each year commencing from after school Friday and concluding Sunday no later than 6:00 pm ON THE CONDITION THAT the children’s travelling expenses from the Sunshine Coast to (omitted) and return are to be paid by the father.
Telephone/ Skype Communication to occur whether the children are living in (omitted) or the Sunshine Coast
The father will spend time with the children by telephone or Skype between 7:30 pm – 8:00 pm each Tuesday and Sunday when the children are not otherwise with the father. The mother is to initiate the call on each Tuesday and the father is to initiate the call on each Sunday. In the event that the children have a commitment on Tuesday, the mother is to nominate an alternate day.
Whilst the children are on holidays with either parent, the other parent is to have telephone or Skype contact with the children each Tuesday and Sunday between 7:30 – 8:00 pm and the parent with whom the children are living is to facilitate both events, either telephone or Skype.
The Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address and landline or telephone phone numbers at all times; and
(b)Notify the other parent of any change in contact details within 7 days of such change.
Miscellaneous
The Mother and Father are to immediately inform the other parent of any medical condition, injury or emergency involving the children whilst the children are with that parent pursuant to the terms of these orders.
The father do all acts and things to forthwith enrol and attend an Anger Management Course conducted by Lifeline or other recognised agency and the Post Orders Parenting Program conducted by Relationships Australia. The father is to forward evidence of his attendance and completion of each of these courses to the mother and the independent children’s lawyer no later than 6 months from the date of this order.
That neither party denigrate the other parent or their partners in the presence or hearing of the children and that they do all acts and things necessary to remove the children from any person denigrating the other parent or their partner in the presence or hearing of the children.
The Independent children’s lawyer is discharged.
All outstanding applications be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Taffa & Wallen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MACKAY |
BRC 1762 of 2009
| MS TAFFA |
Applicant
And
| MR WALLEN |
Respondent
REASONS FOR JUDGMENT
The parents in this matter are unable to agree as to the parenting arrangements for the two children of their relationship, Y, born on (omitted) 2002 now aged nine, and X, born on (omitted) 2003 now eight.
The mother seeks to relocate from (omitted) to the Sunshine Coast and the father is opposed. The parties are also in disagreement as to the living arrangements in the event that the mother remains in (omitted).
The father submits through his counsel Mr Moore, that he has no confidence that if the mother is permitted to relocate, that she will promote a relationship between himself and the children. The father points to an earlier occasion when the mother relocated in 2008 and contends that during that period he saw very little of his children. Mr Moore on behalf of the father also contends that the mother’s proposals to relocate do not contain a specific date and that that ought to present a difficulty for the Court as it may not occur for another year or two or three.
Mr Moore contends that the children in this matter have a good relationship with their father and that X in particular wants to spend more, not less, time with his father and that this is incompatible with an order that X and Y be permitted to relocate with the mother.
In relation to the domestic violence allegations which have been raised in this matter, Counsel of the father contends that most of it is in the past and that there are allegations in any event that the mother once hit the father in the back of the head. Counsel for the father also contends that the mother has not included in her affidavit material many of the incidents about which she gave oral evidence and that I should be somewhat sceptical of her allegations which have not previously been particularised. Mr Moore of Counsel submitted that, whilst the mother does not have to provide convincing reasons for her relocation, nonetheless there is no imperative for the mother to leave (omitted). Counsel for the father submits that there are no disadvantages in her existence in (omitted). He says that, whilst the father’s evidence may have been confusing and vague, he nonetheless is a committed father and the children enjoy their time with him. Mr Moore says that the incident described at McDonald’s restaurant is not a picture of a woman suffering from the effects of family violence or where she has been “beaten down”[1] but rather the mother was quite content to get out of her car and stride over towards the father and discuss matters with him.
[1] Oral submissions of Mr Moore.
Mr Moore submits that the evidence of the conflicted relationship between the father and his own brother, both of whom live in the home of their parents (the paternal grandparents of the children), is exaggerated.
Mr Moore says the mother’s relocation is simply a lifestyle issue, that the mother is a legally sophisticated person and that the mother’s response back in 2008 to moving herself and the children to the Sunshine Coast was a disproportionate response to the difficulties and alleged harassment and domestic violence that she was encountering whilst living in (omitted).
Mr Moore contends that the mother and father had an interim agreement following a legally aided conference and that the agreement reached represents a parenting plan. He is critical of the mother for withdrawing her consent to the agreement and submits that I should conclude that her suggestion that she was under some form of duress is not true.
The mother is self-represented in these proceedings and she prepared her own material. The independent children’s lawyer in this matter, Ms R, who is a very experienced independent children’s lawyer, through her counsel, Ms Hartigan, made submissions that supported the mother’s position. The mother submits, as does the ICL, that she ought to be permitted to relocate to the Sunshine Coast. The mother wishes to establish a home, put the children in school, pursue her university studies, and live with her new partner and their child, A, born on November 2010. A’s father is Mr S, the mother’s new partner.
The mother says that she and her new partner are able to facilitate contact between the children and the father during the school holidays and that the mother has relatives and support on the Sunshine Coast. The mother says she plans to enrol in a (course omitted) degree at the University of the Sunshine Coast and to pursue her career as a (occupation omitted). The mother already has some qualifications and certificates in (qualifications omitted).
Some of the mother’s immediate family are on the Sunshine Coast and close by in Brisbane. The mother would like the children to grow up being able to have a relationship the extended maternal family. The mother submits, as does the independent children’s lawyer, that there is significant family violence that has occurred between these parties and that the presumption of equal shared parental responsibility is rebutted due to that violence. She wishes to live away from the violence which she says has continued in one form or another post separation.
Apart from the mother’s ongoing fear of further domestic violence from the father, the mother expresses deep concern at the safety of the children in the father’s home. The father lives in his parents’ home along with his older brother, Mr W who has a criminal history including a history of drug usage. The mother is also concerned at the high degree of conflict between the father and his brother, Mr W, which erupts from time to time. The arguments have frightening consequences for the children and they have told the mother they have been in fear and crying during such arguments.
The mother contends that the father is not doing the bulk of the parenting when the children are with him, but rather, this task falls to the paternal grandmother. Also the mother submits that the father’s current work, or likely future work, is an impediment to him attending to personally caring for the children. She contends that his work commences at 6:00 am or 6.30 am and concludes at 4:00 or 4.30 pm. Additionally, the father has currently lost his licence due to drink-driving so he is not able to ferry the children around to any of their commitments or take them to or from school. The mother says that the father drives a utility which is not adequate in terms of the seating requirements for the two children as provided for under the Queensland Transport laws.
The mother says that she has always tried to promote a relationship between the children and their father, notwithstanding the years of domestic violence perpetrated upon her by the father and which continues up to the time of trial in the form of stalking and harassing behaviour. Over the years physical attacks by the father include her being stomped on, grabbed around the neck, pushed into cupboards, being yelled at. She says she lives in fear of the father.
The mother says that there is a high degree of incompatibility and lack of communication between the parents such that she is not able to jointly make decisions with the father. The mother submits that the communication book is testimony to her difficulties and submits that, as does the independent children’s lawyer counsel, that the entries in the communication book show the mother being constructive, child-focused, and courteous whereas the father’s responses are chastising of her and critical of her parenting. At other times the father simply chooses to ignore the mother’s requests in relation to issues to do with the children.
Whilst the mother accepts that she does not like the father as a person, she submits that the children are unaware of this and that she has always used her best endeavours to promote their relationship with the father because she believes and knows that they enjoy their time with the father, albeit that there are serious concerns held by her in relation to the father’s parenting.
Independent Children’s Lawyer
At the commencement of the trial in this matter the independent children’s lawyer filed a case outline in which she was opposed to the mother’s relocation. At the conclusion of the trial, after hearing all of the evidence and having the opportunity to observe all of the witnesses, the independent children’s lawyer filed an amended summary of case document and altered her position in terms of parental responsibility, relocation, and time spent with the father.
It was submitted by Ms Hartigan of Counsel for the Independent Children’s Lawyer that the mother’s material, which had been prepared by the mother without the assistance of a lawyer, did not properly illustrate the extent and depth of the domestic violence which had occurred during the relationship.
It is also submitted that a reading of the communication book makes it clear that the mother has done everything possible to include the father in the children’s lives and to facilitate and encourage a relationship between the children and their father[2]. Ms Hartigan of Counsel submits that it can also be seen that the father rarely makes any input into the communication book and when he does, he is critical of the mother and her parenting skills. The father’s main topic in the book is head lice and this is a matter upon which the father seemed to dwell or have great concern about in his own evidence.
[2] Case outline page 17.2.
The Independent children’s lawyer submitted that in this matter the father has taken a “win at all costs” approach in that he has not been frank about several issues including his loss of licence in January 2011 as that does not appear in any affidavit. He likewise has not been frank about the fact that when he has referred to his mother taking the children to and from school he has never explained that it is necessary for his mother to catch public transport, and the father has never stated in any affidavit that his own mother does not have, and never has had, a drivers licence.
It is also submitted that the father has not been honest about why his employment was terminated from (omitted) in July 2008. His sworn testimony in two affidavits is entirely in conflict with the subpoenaed records from the employer which indicate he was not dismissed for depression as sworn to, but rather was terminated for a bad attitude and that the father himself was regarded as a bully.
The Independent children’s lawyer contends that the father has not been frank or candid about his brother Mr W’s living arrangements and has attempted to suggest in his affidavit material that Mr W was not living in the same home as the father when in fact this is not the case. The independent children’s lawyer has also concerns about the serious level of conflict between the father and his brother Mr W, siblings living in the same household, their parent’s home. The father failed to mention in his affidavit material a damaged television as a result of a dispute, and likewise there was no mention in any of the father’s affidavit material about the father’s brother Mr W waking up at midnight, and the subsequent violent events.
The independent children’s lawyer says the father would not concede that X was frightened by these events. The independent children’s lawyer also contends that the father has been less than frank about the living and sleeping arrangements for the children, and in particular Y, the arrangements being as a result of the father’s brother Mr W remaining in the home. Ms Hartigan of counsel points to the fact that Y did not in fact have her own room as deposed to in paragraph 115 of the father’s material because Mr W, the father’s brother, was by that time living back in the home.
The independent children’s lawyer has no confidence that the father has been frank about his financial commitments and submits that he has chosen not to offer financial support for the children when he had an opportunity to do so. He could have assisted financially for such things as swimming lessons, soccer training, or the ear, nose, and throat surgeon. The father has purchased himself a new laptop computer. The father at age 30 he says pays he pays $100 a week to his mother for board which includes food, electricity, all household items for himself and the two children when they live with the father. This is contrary to what is shown on the father’s financial statement.
The independent children’s lawyer does not accept that the father’s plans to move out of his parents’ home is anyway realistic and queries what incentive he would ever have to do that given that he has lived there for 3 years and continues to pay only $100.00 or $150.00 to his mother even when earning $1,200.00 to $1,500.00 per week.
The independent children’s lawyer submits that having heard all of the evidence at the trial, the Independent children’s lawyer is well satisfied that the mother has been a victim of serious domestic violence and has nonetheless at all times encouraged the relationship between the children and the father. The independent children’s lawyer supports the mother’s position that she be entitled to relocate to the Sunshine Coast.
Competing applications
The mother’s orders sought are set out on a document entitled “Final Orders Sought - Sunshine Coast.” The mother’s primary position is that sometime after 9 December 2011 she be permitted to relocate from (omitted) with the children. Up until that time the mother seeks orders for equal shared parental responsibility and that as an ongoing arrangement the children spend time with the father from Friday after school until 9:00 am Monday each alternate week and from the finish of school at 3:00 pm Thursday until the start of school 9:00 am Friday of the second week. The mother sets out telephone time for contact being between 7:30 and 8:00 pm on Tuesday night each week and 7:30 and 8:00 pm on Sunday night that the children are not in the father’s care.
Upon moving to the Sunshine Coast the mother proposes that the children will then spend time with the father for the final three weeks of the Christmas school holidays in 2011 and the first three weeks of the school holidays in 2012 on the dates stated in the orders. Thereafter the children will spend time with the father for the Easter School holidays (from 10:00 am on the first Sunday until 10:00 am on the final Sunday) for all of the June/ July holidays (from 10:00 am on the first Sunday until 10:00 am on the final Sunday of the holidays); for the first week in the September holidays, alternating each year there after and for the first half of the Christmas holidays alternating each year thereafter.
The mother also proposes weekends during the school term on Friday, 23 March 2012 until Sunday, 25 March 2012 and Father’s Day weekend every year thereafter with specific dates to be agreed between the parties. If the children’s birthdays fall on a weekend then the children are to spend that weekend with the father at (omitted). The mother proposes that the children travel from Brisbane to (omitted) via return flights booked as unaccompanied minors on Virgin Blue with the mother to organise the bookings and that the mother is responsible for the cost of travel for the children from the Sunshine Coast to (omitted) and return.
The mother also agrees to make the children available to spend time with the father on any family or special occasion at the father’s request and agreed to by the parties, and that on those occasions the father shall be responsible for the cost of travel for the children from the Sunshine Coast to (omitted) and return. Telephone and Skype contact is also proposed on Tuesday and Sunday nights with the father to facilitate the call and to occur on special occasions, such as children’s birthday, Easter, and Christmas with the father to facilitate the call. The father is to also be permitted to send the children letters, cards, and gifts, and there is provision for what the mother refers to as “family birthdays” every year. Those are the substantiative orders sought by the mother.
In the event that the children are not permitted to relocate with the mother, she does not intend to relocate without the children, and she proposes that the arrangements would remain as they currently are that is, the children live primarily with her and spend from Friday to Monday each alternate week with the father and also Thursday after school until Friday morning in the off week.
The father’s position is set out in the final orders sought by him as an attachment to the summary of case document filed by the father on 30 August 2011 at the commencement of the trial. The father seeks final orders that the parents have equal shared parental responsibility, that the children live with the mother in (omitted) but spend time with and communicate with the father from the conclusion of school on Wednesday until the commencement of school on the following Monday each alternate week.
The father proposes that those arrangements be suspended during the school holidays and sets out specific Christmas arrangements for Christmas Day and Christmas Eve, Good Friday, and he seeks an order that the children spend time with him from 5:00 pm on 13 July until 10:00 am on 14 July, and 5:00 pm on 15 June until 10:00 am on 16 June with the other parent. Those dates revolve around the children’s birth days.
The father also proposes telephone time Monday, Wednesday, Friday, and Saturday between 7:00 am to 7.30 pm with the parent wishing to contact the child to facilitate the phone call. The father proposes changeovers to occur at the children’s school on Fridays, and when changeovers occur at any other time that they proceed to the McDonald’s Family Restaurant at (omitted). Those are the primary orders sought by the father in his primary position.
Despite being asked to do so, the father did not submit a document setting out the orders sought in the alternative, that is, in the event that the Court permitted the mother to relocate. During the course of his final submissions Mr Moore of Counsel advised the Court that the father sought orders in that event which mirror the mother’s and that he would simply leave it to the Court to decide what times he should see the children in the event the mother relocated.
On 26 November 2010 I ordered that the parties each file and serve an amended application and response regarding their own proposal and the alternate proposal put forward by the other party. As I have already said, the father is opposed to the mother’s relocation, and his primary position is that the children remain living in (omitted) with the mother and spend time with him.
Evidence
In this matter I have had regard to all of the material filed, the oral evidence of the parties, and the evidence of each of their witnesses, and the submissions of each of the parties, including the very helpful written submissions of Ms Hartigan of counsel for the Independent Children’s Lawyer. In these reasons a statement of fact represents a finding unless otherwise indicated in the judgment.
The father has relied on the material set out in his case outline and, likewise, the mother and independent children’s lawyer have relied on the material set out in their respective case outlines. Each of the mother and father gave evidence as did the father’s mother, Mrs W. I indicated at the commencement of the hearing that I wished to have evidence from the father’s brother, Mr W. Mr W gave oral evidence and an affidavit was filed by leave prior to his evidence. That affidavit is included in the documents relied upon by the father.
I also indicated that I required evidence from the mother’s current partner who is also the father of her third child, Mr S. Mr S gave oral evidence only. The independent children’s lawyer had organised for a family report to be prepared in this matter by Ms S. Ms S gave evidence and was cross-examined.
Background facts
The mother and father met when they were 16 years old and living in (omitted). The father by that stage had left school for about two or three years. The father dropped out of school not long after he started grade 8 when he was aged around 13. The father said that he fell in with a bad crowd and that he did not attend school. His own mother gave evidence that she tried everything she could think of, including trying to get the assistance from police, to have the father attend at school but that she simply could not get him to go to school.
The father stayed home for a period and then obtained work as an underage worker and was underpaid. The father says some work took him out onto properties and he did what he called (omitted) sometimes travelling away to properties. He also did work as a (omitted). The father says at aged 15 or 16 he started smoking marijuana quite heavily daily. He gave that up when he was 21 because by that stage he had been convicted of two charges of possession and he knew that he needed to make some changes.
The father’s brother, Mr W started using marijuana at about age 16. His criminal record shows a history of drug use and incarceration. Mr W says that his drug use continued on and off until February 2011 and that he had not used drugs for the six months prior to the commencement of the trial.
The mother was born on (omitted) 1981 and the father was born on (omitted) 1981 and are now each aged 30. The father says they started a de facto relationship in 1996 which would have been when they were both 16. It is agreed that they were both living at the father’s parents’ home in 1997 or 1998. In or around January 2000 the mother and father rented various locations around (omitted).
The mother alleges that in 2000 the father became involved in the production and sale of a large amount of drugs and was even selling drugs to an 11-year-old boy who lived next to one of the father’s friends. The father denies this. In mid-2001 the mother says that she became so alarmed at what was happening with the sale of drugs that she informed the police that the father was involved with drugs and this led to a raid by the police and the father being charged. The mother says that the father was saved from any jail sentence because at the time she was pregnant with their first child, Y. During the period prior to separation the mother had a good relationship with the paternal grandmother who regarded the mother at that stage as being like a daughter.
The mother and her new partner have been in a relationship since November 2008 they have a child of their own, A born in November 2010.
Y and X were born within about 12 months of each other, Y on (omitted) 2002 and X on (omitted) 2003. The mother says that she was the primary carer of the children until she returned to work when Y was three. The father says that, although he did not work all of that time, he was the primary carer of the children and denies the mother’s evidence that the children attended day care, initially two days a week and then three days a week, and that the paternal grandmother would look after the children in the event that the mother was not there. The father says that the parties shared the care of the children on weekends and other times when the mother was home.
On 4 February 2005, whilst the parties were together, the mother sought and obtained a protection order requiring the father to be of good behaviour. The protection order was taken out by the police after the father kicked the mother in the hip area whilst she was in the kitchen of their home. The father denies kicking the mother and says instead that he “placed his foot on the mother and pushed her backwards”, though not as far backwards as the mother suggests. The father consented to the order but now says he did not have legal advice and did not realise how it might look in the future by consenting to the orders.
The parties continued cohabitation after the protection order was made. At the time of trial, a contested hearing was to occur in the Magistrates Court on 8 September 2011 in which the Mother was seeking a further domestic violence order. The father said it was to be contested. I have subsequently been advised by the legal representatives that following a contested hearing, a domestic violence order was made against the father for a further 2 years.
The parties purchased a home in 2006 in Property R, a suburb of (omitted). In November 2007, some 10 years after they started their relationship, the parties separated on a final basis. On this occasion a physical fight broke out, according to the mother. This is referred to in the evidence of the mother as the “big fight”, which is how the children also refer to this fight. On the mother’s evidence the children were present when the father was pushing and shoving the mother onto a bed and then later stomping through the house smashing belongings and later grabbing the mother by the back of the neck and around the throat, having reached in through an upstairs window to do so.
A further domestic violence order was taken out by the police in November 2007 following the “big fight”. That order was taken out on a final basis. The father did not contest that order either. Sometime in 2008 the Property R home was sold, and at that time the father moved back in with his parents. He remains living at their home at the time of trial, almost 3 years later. Three months after the “big fight” in about February 2008 the mother and father apparently reached an agreement that the children would live with the mother and regularly see their father on weekends, provided it was at his parents’ home.
The mother says that at this stage Y in particular, having witnessed “the big fight”, was too frightened to return to their Property R home. There are allegations by the mother, which are denied by the father, that in May 2008 the father did what he had been doing on other occasions as I understand it, but in particular on this occasion followed her in the car to McDonald’s Restaurant in (omitted). He then waited for her to finish at McDonald’s, and was still waiting in his car outside McDonald’s when the mother concluded her purchases.
The mother says that this incident was the final straw for her and that shortly afterwards she decided that she would relocate herself and the children to the North Coast. The father denies that he followed the mother to McDonald’s and says it was a coincidence that he went there to get food. His evidence was later given that he did not in fact buy any food from McDonald’s that day.
The mother and children moved in May 2008 to the Sunshine Coast, to have more family support. The father’s affidavit material says that at that time in June/July 2008 he suffered a breakdown and suffered from depression. His affidavit material states that “on or about July 2008 I was laid off work because of my depression.”[3] The father also stated that he was laid off because of his depression in an earlier affidavit of 20 January 2010.
[3] Paragraph 14 of the father’s affidavit, 10 August 2011.
The father said that the mother’s relocation to the Sunshine Coast coincided with him enduring a period of bullying in the workplace and that he “succumbed to depression.”[4] It seems that the father did not have any significant work until about August 2010 when he got a job with (omitted) in a (omitted) position and that work lasted from August until December 2010.
[4] Paragraph 15 of the father’s affidavit, 10 August 2011.
In relation to his depression, the father says that he did not seek professional medical or psychological assistance but instead spoke to his mates and family about the situation and that when he swore his affidavit he had “overcome my emotional difficulties and that the depression is in remission.”
The father has a goal of (occupation omitted) and working in what he described as “(omitted) industry” but says that he is unable to afford to undertake the (omitted) tests which will cost him around approximately $1,400.00 - $1,600.00. The father says he has a:
...expired (omitted) which qualified me to work on the (omitted). I have several friends and family who are contacts within the (omitted) industry willing to speak on my behalf to prospective employers[5].
[5] Paragraph 19.
The father denies the mother’s allegations of excessive alcohol intake and consuming illicit drugs and says he is a social drinker, he does not have a problem with alcohol, and:
I do not allow alcohol to impair my capacity to be a responsible parent.[6]
[6] Paragraph 38.
The father admits that he has been charged with drink driving in January 2011. After a night of drinking he was observed by the police at 5.30 am who followed the father home asking him to take a blood alcohol test. The father refused to do so. The father was charged with drink driving. He told this Court he did not wish to give a random specimen. The father lost his licence as a result of the driving under the influence.
The parties attended a private mediation in relation to the District Court de facto litigation and resolved the property matter through mediation. At the time of the trial the father had started work as a (omitted) with (omitted) a couple of weeks earlier and was on a three month probation period. The location of the work is about a 20-minute drive from (omitted). The father gave evidence that he is doing so well that he is likely to be offered the opportunity to be trained formally and get his (qualification omitted) in relation to various other pieces of machinery.
The father says that he works an eight hour day from 6.30 am to 4:00 pm with breaks and that he is expected to work 10 hours a day when the demand picks up. The father says that he has his:
...mother’s support to get the children ready for school and to be at my home at the end of the school day when the children are in my care.
The father says he does not accept that his work would encroach on nights that the children are in his care because his own mother would care for the children from 5:30 am onwards, getting the children up and ready for school and taking the children to school and then collecting them from school taking them home and caring for them and he would not be absent on any of the nights that the children are in his care. If and when he moves to his own home, the father says his mother will still do all of the care for the children and get them to and from school.
The father’s evidence during the trial was to the effect that in fact his mother does not have a drivers licence and that she takes the children to school on public transport and collects them after school also using public transport she also has work to go to herself.
The father agrees that the vehicle that he owns, a ute which has been modified with (omitted), is a two-seater. This cannot transport himself and the two children together however, the father says he never takes the children in the ute together only when he transports them around one on one. The mother asserts the father has travelled with the two children in the front seat with him in the past.
In November 2008 the mother first met her partner Mr S whilst she was living at the Sunshine Coast though she started no relationship at that stage. In December 2008 the mother travelled with the children to (omitted) so that the children could see the father on two occasions. In March 2009 the mother moved back to (omitted) to support her own mother until she got back on her feet, and to allow the children to have an opportunity of having contact with their father.
It is the mother’s evidence that the father said he would disown the children if she left (omitted) and that he refused to initiate any contact or discuss the issue with her. The father says that the reason he did not contact the children when they left was because he could not do so given the terms of a consent domestic violence order. The father agreed that during the period that the mother was in the Sunshine Coast he saw the children twice in that four month period and this was arranged by the mother through his mother.
The terms of that domestic violence order are that the father is not permitted to contact the mother other than as provided for in an agreement or in a Family Court order. The mother makes allegations, corroborated by the father’s own mother, that she tried to contact the father more often but that he would refuse to come to the phone. This is denied by the father.
In March 2009 the mother filed her initial application for equal shared parental responsibility, that the children live with her and spend time with the father as agreed, and in particular for half of the school holidays. It is agreed that the mother initiated mediation prior to commencing these proceedings.
The mother’s live in relationship with her current partner, Mr S, commenced in June 2009.
On 22 July 2009 the father pleaded guilty to a breach of the domestic violence protection order and this involved the father making a phone call to the mother at 1.40 am. I will have more to say about the domestic violence matters elsewhere in these reasons. The parties attended mediation in July 2009 and orders were made by Spelleken FM on 28 August 2009 and those are the operative orders.
Those orders provide for equal shared parental responsibility and that the children spend time with the father from the commencement of school on Friday until the commencement of school on Monday each alternate weekend, and from the conclusion of school on Thursday afternoon until the commencement of school on Friday morning each alternate weekend together with one half of the school holidays.
There are specific provisions for Father’s Day, telephone time, and a notation on those orders refers to a further discussion to occur in relation to the extension of mid-week time with the father through the Family Relationships Centre in the event that there is disagreement and further counselling for the children at the (omitted) Hospital with both parties to be involved in the process. The orders of 3 December 2009 were that each of the parties were to file amended applications and responses setting out specifically the orders that they sought and the preparation of a family report after which time the parties were to attend a legally aided conference. Then the mother filed her amended application on 17 December 2009 seeking liberty to relocate to the Sunshine Coast. On 28 December 2010 the parties were ordered to attend upon a family consultant for the preparation of a family report.
In March 2010 the parties were ordered to attend a parenting orders program and also to attend at a legally aided conference. The first family report was released in March 2010. That report was prepared by Ms S. The recommendation of Ms S was that a relocation would be detrimental for the children and have a negative impact on their relationship with the father, that equal shared parental responsibility would be the best option if the parental relationship improved, however, given the difficulties of the parental relationship as it was, an equal time arrangement would be detrimental to the children’s emotional and cognitive development.
Recommendations were made for the parties to attend personal counselling, establish a communication book, and engage in the parenting orders program. The father was unemployed as at March 2010. In July 2010 the parties attended a legally aided conference and they executed an agreement. The agreement was that the children were to live with the mother in (omitted) and spend time with the father from the conclusion of school on Wednesday until the commencement of school in the next week commencing Wednesday, 4 August 2010, essentially a week-on week-off arrangement. A copy of that agreement is attached to the father’s material of 4 August 2010.
The following day, the mother changed her mind about the appropriateness of that agreement and a letter was written by her solicitors to the father’s solicitors informing them that the mother had reconsidered her position and that she withdrew her consent to the proposed orders.
The mother indicated that she was agreeable to joint counselling continuing, however, was finding it extremely difficult in extending the amount of time the children spent with the father. The matter was then set down for trial.
In November 2010 the mother gave birth to A, being the child of herself and her partner, Mr S.
In January 2011 the mother was informed of an incident by the children while they were staying at the father’s home. The incident included what was reported to her by the children as an argument in which the father and his brother, Mr W were fighting. The children saw Mr W was screaming things like, “You’re going to be covered in blood,” “I’m going to kill you,” towards the father. It is agreed that a plasma television was damaged in the course of disagreement when the remote control struck the screen. It is agreed that the paternal grandfather had to intervene with his sons, aged 33 and 30, to have them desist from arguing. The paternal grandmother refers to this argument in her affidavit material as “the worst argument between her sons.”[7]
[7] Paragraph 44 of the grandmother’s material.
In February 2011 the mother contacted the father and said that she was willing to abandon her plans to relocate to the Sunshine Coast. The mother says that she did this thinking that it would take away the single biggest cause of their dispute and that the arrangements would probably all settle down. The father however informed the mother, that he would be continuing with the litigation as he wished to pursue a week-on week-off arrangement.
An interim protection order was made on 18 July 2011 at the Mackay Magistrates Court with the mother being the aggrieved and the father being the respondent. It is the father’s position as deposed to in his material that this application is simply an abuse of process. Following a hearing on 9 September 2011, a final order was made for a further 2 years. This is the first domestic violence application being sought by the mother as opposed to being taken out by the police as was the case in the earlier two domestic violence orders.
On 11 August 2011 the father commenced full-time employment as an (occupation omitted). He works 6:30 am to 5:00 pm Monday to Thursday and 6:00 am to 4:30 pm on Fridays. The father says it is not compulsory for him to work on weekends, but he can work on weekends if he chooses to. He says he does not do overtime if he has the children in his care.
The father does not have a current licence as he has lost it due to drink driving offences in October 2010, and the paternal grandmother does not have a licence. It seems she has never applied for one.
The Witnesses
The Mother
The mother presented as a caring, competent, organised mother. She was self-represented but nonetheless presented her case, material and outlines in a most organised fashion, something not often seen in a self-represented litigant. She has represented herself at a time when she has three children in her primary care, including her 10-month-old baby. There were factual matters not referred to in her material. I accept the mother’s evidence that she is not a lawyer and she did not know everything that needed to be in her material.
I found her forthright, candid, prepared to make admissions against her own interest, such as she went to a wedding without the father’s consent which meant that the children missed out on a night with him. She gave her evidence openly, honestly. I considered her to be an impressive witness.
She recounted the incidences of domestic violence with remarkable detail and a complete recollection. Each time she was challenged by the father’s Counsel she was able to respond to anything that appeared inconsistent.
I am satisfied that the mother’s allegations of domestic violence against the father were truthful. The mother gave her evidence regarding domestic violence without melodrama but with precision as to detail, My impression was that she had experienced insult, terror, physical abuse and ongoing intimidation from the father.
Wherever the evidence of the mother and father is contradicted in this matter in the absence of any independent evidence, I prefer the evidence of the mother over that of the father.
Mr S, the mother’s partner
Mr S is a (occupation omitted) at a (omitted). He has provided financially for the children, the mother and his daughter A, who at the time of the trial was aged 10 months old.
Mr S gave evidence of his current work and intention to find employment on the Sunshine Coast. He also gave evidence about activities he does with the children such as playing soccer, playing the Nintendo Wii, playing with the dogs and working on the car. He appears to have a good relationship with the children and has demonstrated his commitment in a real and positive manner in financially supporting the children.
I found Mr S to be an honest witness and a supportive partner to the mother. I am satisfied that there is stability about their relationship and that Mr S has a positive and appropriate relationship with the children. He gave evidence of hearing the father’s abusive phone calls, which I accept. He has not interfered in the dynamics between the mother and father. He has not attempted to undermine the father’s relationship with the children and has committed to assisting the mother paying the travel costs if necessary. I accept that he will do this.
The Father
The father presented as a witness who had an appalling memory. There were many occasions in which the father said he “did not recall.” Often when he was challenged about a matter in which he had a complete failure of memory, such as showing any flexibility in relation to agreeing to the mother to attend the wedding or organising the children any earlier for Mother’s Day, the father would say, “Yes, I could have done better than that.” He said it on so many occasions that it sounded rehearsed and contrived.
The father is a man of very limited education. He left school at the age of 13 and when giving his oral evidence he mispronounced various words and phrases. I do not criticise the father for this at all, however what was quite striking was to compare the way he spoke and his turn of phrase as compared with his level of sophistication as portrayed in his written material. The father’s affidavit material presents the father as being educated and articulate. It was apparent to me after watching the father for a short period that his language and vocabulary bore no resemblance at all to the material that had been prepared on his behalf.
The father was a most unimpressive witness. He was not honest in the answers he gave. He gave an inconsistent account of the various incidents that occurred, particularly in relation to domestic violence. He denied matters such as children being present during arguments. When asked where they were at the time he would simply say, “I do not know but they were not there.” His answers were completely lacking in particularity.
His affidavit material said that he lost his job given his depression and that he had “succumbed to depression”. There was no further explanation offered. The material provided on subpoena however indicated that, not only did the father not “succumb to depression”, there was no medical evidence at all in the file that the father had resigned on the grounds of depression or reference to depression. The evidence was to the contrary. It showed that he had received three warnings over a period of time, the third warning was about bullying. The father gave oral evidence that, yes, he was bullying but that was because he was bullied and “he bullied back”.
The father admitted under cross-examination that he was sacked, which was entirely contrary to his sworn material. After receiving three warnings the father was sacked after a fourth incident on the basis that he had pushed another employer and that employer was pushed backwards physically. The father’s credibility was damaged severely during cross examination. This behaviour of “pushing” another person was the same conduct that the mother complained of the father doing to her. She complained throughout the relationship that he would push her. He describes the incident of a kick to the mother not so much as a kick but as rather “placing his foot on the mother and pushing her backwards.”
There were other matters about which the father’s evidence was completely implausible. His explanation of climbing up onto the carport and ripping or taking out the flyscreens on the bedroom window, but denying that he lent through the window and grabbed the mother from behind by the throat was simply implausible and inconsistent. I do not accept that he had to remove a fly screen simply to talk to the mother. I am satisfied he grabbed the mother by the throat to terrify her and he did so in a rage. I accept the mother’s horrifying version of events.
The father’s version of events about the 2007 incident was also implausible. He denied that he was stomping around the house and being angry and smashing things. His version of events did not make sense. The mother said that she told him when she would be home and the father denied this. He simply could not then explain why he did not go and collect the children from his own mother’s home.
His explanation in relation to what I will call the McDonald’s incident is also entirely implausible. He had followed the mother from town. She drove out over to (omitted) and the father was still travelling behind her. She then decided to see if he was following her and turned left at a point into McDonald’s where the father had to turn right. She drove into the McDonald’s drive-through and when she came out of the drive-through the father was outside still waiting for her. He was parked, not even in the McDonald’s car park, but outside of the McDonald’s on the side of the road.
I do not accept that he was initially going to go and buy tea for the children and then changed his mind. If he was, he would have gone into McDonald’s restaurant or the drive-through. I do not accept that it was the mother who followed him and pulled in behind him. I reject the suggestion of Counsel for the father that the mother did not present as a person who was frightened because she went over to the father to plead with him to stop following her during this incident. I was satisfied that her accounts of sustained and terrifying acts of violence the part of the father were genuine. I accept that the mother has been in fear of the father and that she continues to be.
Overall, I found the father a very unimpressive and untruthful witness. He is immature and surly. His outlook on the world was very limited and negative and he showed a grudge and jealousy towards the mother which I do not accept has resolved. This was noted by the report writer.
Mr W - father’s brother
In relation to the brother, Mr W, he has a criminal history which is quite alarming. He was a most unimpressive witness in that he was either not prepared to answer questions at all, said he did not recall at convenient moments, understated or downplayed incidents. A reading of the transcript will show that he was a most uncooperative witness. I am satisfied that he has a hostile attitude about the mother. He appeared perturbed and critical of the mother for bringing an application to relocate with the children.
Mrs W - paternal grandmother
The paternal grandmother is a busy mother and grandmother committed to her family. She and the paternal grandfather appear to keep the house (in which the father and his brother live) afloat financially. She however was a most unimpressive witness. The grandmother simply adopted the position of either saying that she did “not recall” as an answer or chose not to answer the question at all. At one point the Court waited in silence for two minutes for the grandmother to answer a question. There was simply no answer coming from the grandmother. She would typically mumble something indecipherable in an answer and then refuse to repeat what she said or to say anything further.
She gave answers that she just could not recall matters when they were matters that she ought to have recalled, such as when the father left school or how long ago it was. She was so determined or fearful of saying anything poor or adverse about her son she just adopted the position that where possible, she was not going to say anything. Rather she sat in silence refusing to offer up answers. She gave the impression that she begrudged the mother’s application to relocate the children, and that she was not sure what to admit to about the incidents of violence between her sons. It seems she had been spoken to during the travel and prior to giving her evidence by the father. It seemed to me the paternal grandmother was caught up in the crossfire between her sons and she did not know what to say or not to say. When giving evidence, bore little resemblance to the affidavit prepared on her behalf
Ms S - Family Report Writer
The report writer Ms S gave evidence and was cross examined. It was clear to me that she had not, prior to the trial and when writing her reports been aware of the extent of domestic violence that had occurred between the parties. When taken through the mother’s application for a domestic violence order, which particularised the ongoing abuse since the mother was 16, Ms S expressed concern not only at the violence described but at the level of violence that the children had been exposed to. Taking that into account, and the mother’s evidence about her efforts to keep the children regularly seeing their father, despite the abuse, Ms S expressed the view that the mother could be relied upon to ensure that the children continued to have a relationship with the father.
I found Ms S’s evidence to be helpful and note her view that the children would continue to have a meaningful relationship if they relocate and spend set holiday time only with the father.
The Law
The Act provides two primary considerations described by Brown J in Mazorski & Albright [2007] FamCA 520 as twin pillars. Her Honour stated:
...the first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in section 60CC(1).
When I determine the best interests of the children I must consider the primary considerations referred to and the additional considerations set out in section 60CC. If I make an order for equal parental responsibility I must consider equal time, and if not equal time significant and substantial time. When doing so I must have regard to the provisions of section 65DAA(1) which is expressed in imperative terms.
It obliges me to consider both the question of whether it is in the best interests of the children to spend equal time with each of the parents and also the question of whether it is reasonably practicable that the children spend equal time with each of the parents. It is only when both questions are answered in the affirmative that consideration may be given to the making of an order for equal time, or alternatively significant and substantial time.
If such findings cannot be made those considerations are applied to determine whether spending substantial and significant time with each parent should occur. Being reasonably practicable includes reference to the parties’ ability to put such an arrangement in place, their ability to communicate, and how far apart the parents live from each other geographically (MRR v GR [2010] HCA 4).
In this matter the father is seeking equal shared parental responsibility, and the mother’s application is also for equal shared parental responsibility. It is a submission of the independent children’s lawyer that I ought to make an order for sole parental responsibility. These are matters I will take into account when considering whether such an order should be made.
I have had regard to the long line of authorities in relation to relocation, including the High Court authorities. I have been referred to various cases by the counsel for the independent children’s lawyer, Ms Hartigan, including MRR v GR 240 CLR 461, U & U (2002) HCA 36 or 211 CLR 238, AMS & AIF 199 CLR 160, McCall & Clark [2009] FamCAFC 92. This application generally is governed by the principles set out in Part VII of the Family Law Act 1975. In making parenting orders the best interests of the children are paramount considerations. Reference is also made to decisions in Taylor & Barker (2007) FamCA 1246 which is a decision handed down after substantial amendments were enacted to the Family Law Act 1975 under the Family Law (Shared Parental Responsibility) Act 2006, and also I have had regard to McCall & Clark [2009] FamCAFC 92.
Cases involving relocation are difficult matters and inevitably one party will be disappointed with the outcome.
I will now turn to discuss those factors which are relevant to the competing applications set out in section 60CC (3) followed by section 60 CC (2).
Additional considerations:
S.60CC (3)(a) 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
There is evidence that X has said that he would like to spend more time his father. This statement, however should be read subject to the evidence that the father has been telling the children he misses them and he doesn’t see much of them.
In relation to Y, she spoke with Ms S and was asked if she liked seeing her father every week and she said she did because she does not get to see him much. Y said that she wanted to be able to speak with her father on the phone more but stated that, whilst she likes spending time with both her parents, she wanted them to live together “so we don’t have to go to his house”.
During the interview for the Family Report with Ms S she described X as being quite distracted. He drew his family and included his parents and sister and spoke positively about his family members. The children were happy to see their father for observations and X was particularly happy. At the time of being interviewed Y and X were aged seven and six respectively, and essentially Y stated that she wanted to be able to speak with her father more on the phone, that she liked spending time with her father every week, but she hates going to his house or from house to house.
Ms S commented that this was likely a concern of Y’s, going between the parents’ home, because of Y’s knowledge of their relationship. In relation to the children saying that they do not get to see much of their father, the evidence of the mother was that the children tell her that the father says to them that he misses them and he does not get to see much of them. When the father was cross-examined on this issue he accepted that he does actually say to the children that he does not see them much. Given the father has also on occasion refused to see the children as referred to elsewhere in these reasons, I consider that the father has been manipulative in now telling the children that he “misses them”.
It is possible that the children’s own reference to not seeing the father much or enough is as a result of their love and concern for the father and his comments to them to this effect.
In this matter the children are very young and, in terms of their views about a relocation or otherwise, I am mindful of their young age and of the adult issues which exist in this matter which are far beyond the understanding or developmental levels of each of these children.
S.60 CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
I am satisfied in this matter that the children have a close and loving relationship with their mother. I am satisfied that the children, with some caveats, have fun with their father at times and experience some good times when they are with him. The caveats that I refer to are the children’s direct exposure to their father’s violent and angry behaviour to the mother, their admissions to their mother of the fear they have experienced when spending time with their father, whilst he and his brother have had furious and threatening arguments which can erupt so quickly and frighteningly, the risks associated with Mr W’s temper and or drug taking, and the consumption of alcohol by Mr W.
It seems to me that when the children are not frightened they have a fun relationship with their father, though I note Y’s comments to the effect that sometimes the father spends more time with X and it gets a little boring. The father explained the incident in which his brother Mr W, awoke at about 11:00 pm after having been asleep on the couch. The father said, when queried as to why X was still up at 11 pm given that he is six years old, that it was a Friday and that they were staying up late playing Play Station. The father said that the PlayStation and screen are in the bedroom and that the bedroom is where the father, Y, and X all sleep. This is not an ideal situation. It is crowded and difficult to imagine how either child sleeps when games are being played at the time. I reject the father’s evidence that Y now has her own room. As it is clear on the evidence that Mr W has moved back into the paternal grandparents’ home.
I have no doubt that the father loves each of the children however he did not give the impression of being child focused. I am satisfied that he has been prepared to use his relationship with the children as a method of punishing the mother, such as saying he would disown the children and refusing contact the children when the mother moved to the Sunshine Coast in 2009. Y expressed a concern for the potential conflict between her parents when she learnt that the father and mother would be sitting together at the family report interviews in 2010. She was worried that the parents should not be together because they fight. This is a sad reflection of the experiences that Y has been exposed to and is in line with the mother’s evidence that the children were exposed to and apprehensive about arguments and conflict. I am also satisfied that the father’s immaturity and volatile temper prevents him from exercising appropriate parental authority to protect the children from the effect of his violent exchanges with his brother and the mother.
The children have been primarily living with the mother since separation and she has been their primary carer. In relation to the evidence given about the period of time that the parties were together and in which the mother was working, I accept the mother’s evidence that the children were either being cared for primarily by herself with help from the paternal grandmother, or in day care.
I accept that the father played a minor role in the care of the children at that time. I do not accept his assertions that he was the primary carer. In any event, much has happened since that time and there can be no debate whatever that post-separation the mother has been the primary carer of these children.
I note also that the paternal grandmother has played a significant role in the lives of the children. She is in my view an unsung hero in regard to her care for the children. Her efforts are not in my view appreciated or acknowledged or understood by the father. She is a grandmother who has been prepared to get the children fed, dressed and off to school, to catch buses and to take the children to school and catch buses to pick them up and bring them home. She also works (omitted) at (omitted). Y was reassured about going to stay with the father in the knowledge that she would be safer in the house with her grandmother in attendance. The mother has said that she knows the paternal grandparents will watch out for the children and that Y and X clearly feels safer with her grandmother present. I have no doubt that the paternal grandmother runs the household including when the children spend time with the father. The mother acknowledges the good support that she received in relation to the children from the paternal grandmother. The paternal grandmother’s affidavit said up to a point in time she regarded the mother as another daughter. This is quite understandable given that the mother started living with the father at age only 16.
It seems on the material that post-separation the mother’s own mother, the maternal grandmother has had more involvement with the mother and the children. The mother said that during their relationship the father would not permit her to take the children to visit her own family and that the father banned the mother’s sister from also having anything to do with the children. I accept the mother’s evidence. The father’s desire to control the mother and children in this way is most troubling.
I accept the mother’s evidence that the father was obstructive and prevented her in her attempts to have a relationship with her own mother. I accept the mother’s evidence that the father took issue on one occasion when the mother went out for three hours without the children and returned home after which time an argument ensued upon the father hearing that the mother had been out shopping with her own mother. The father was incensed that the mother would do this.
It is to the children’s benefit that post separation they now have the opportunity to spend time with the mother’s relatives. On the Sunshine Coast the mother has the opportunity to have the children spend time with her family members both there and in south east Queensland.
As to the relationship between the children and the mother’s partner, I am satisfied that Mr S acted appropriately in this matter in that he has been supportive of the mother but not intrusive. I am satisfied that he has provided moral and financial support to the mother and the children, and that he has done so out of love and affection for both the mother and children. He has not taken issue with paying for activities or helping the mother to do so. His relationship with the children is caring and appropriate. He is father to their half sibling A. He appears to accept the role of the father and has not attempted to usurp the father’s relationship with the children.
S.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
An important issue in this matter is the proposed relocation and its effect on the father’s opportunity to maintain a meaningful relationship with his children in the event that the mother was permitted to relocate. To this extent the father sought to agitate the issue of the mother’s prior relocation to the Sunshine Coast from December 2008 until March 2009. The father’s position was that the mother did not promote a relationship during this time that he saw almost nothing of his children, and he sheeted home the blame for that entirely to the mother.
He absolved himself from any involvement in not initiating contact with his children by stating that there was a domestic violence order in place which prevented him from contacting the mother. The father said, “I could not phone Ms Taffa.” I reject the father’s explanation. It was entirely possible, even if the father construed the orders as he did, to take steps to have contact with the children. The father could have consulted a family dispute centre, approached Legal Aid to establish mediation, he could have approached a lawyer and sought some legal advice as to his position. It was always open to the father to approach even a community legal service to be pointed in the right direction as to how he might overcome what he perceived as his difficulty.
The mother’s position is that before she left, the father threatened her that if she left he would disown the children. I accept the mother’s evidence. The mother says that she continually phoned to speak to the father and that he refused to come to the phone. The mother said that the father would not have anything to do with the children and that it was only through her own efforts that the children saw the father at all.
The mother returned on at least two occasions in this period and it was through the assistance of the paternal grandmother that she was able to organise time with the children and the father. There was no evidence of the father making any attempt whatsoever to see the children. I regard his statement to the mother that if she left he would disown the children as emotional blackmail. In my view the father well knew that the mother, appreciated and promoted the relationship between the children and the father, and that she knew and genuinely wished for the children to spend some enjoyable time with their father.
I accept that the father simply refused to have anything to do with the children and that his failure to see the children was not the mother’s doing but rather his own. The paternal grandmother gave evidence that the mother had phoned her on occasion to speak to the father, but that he was not up to coming to the phone.
Upon the mother’s voluntary return to (omitted) the father still refused to see the children. The mother says she rang him to try and see the children and he said, “He did not want her slutting around” and therefore he would not agree to have the children because that would mean that the mother would be free to go out on the town.
In my view the father has been manipulative in relation to his relationship with the children in this matter. The children currently, in light of all that has happened to them and all they have witnessed, still have a good relationship with their father overall, subject to caveats referred to earlier.
The strength of their current relationship with the father bears testimony to the mother’s efforts to keep the relationship going. This is particularly so given the extremely difficult circumstances in which the mother has found herself, being in direct conflict with the father in the presence of her children and his past violence and controlling behaviour towards her.
The mother says that she does not like the father. If the father has done the things to the mother that she alleges, and I consider he has, I am not surprised. I accept however that, whatever the mother’s personal views are about the father, that she has always supported the children’s relationship with the father. It is the mother who initiated the mediation after separation, notwithstanding the arguments, conflict and physical violence which occurred at separation and which occurred throughout the relationship. It is the mother who kept the children in touch with the father and his mother when she moved to the Sunshine Coast following the father’s domestic violence and stalking behaviour.
In terms of the father being willing to promote the children’s relationship with the mother, I am not all confident that he will do so. The father has been manipulative and selective about when the children will see their mother and when he will see them. He has used the children in the past to control or punish the mother and been prepared not to see the children at all as a tactic. On occasions, such as Mother’s Day he has been manipulative. The mother’s evidence, which I accept, is that she had been asking about Mother’s Day and the father was uncooperative or non-committal. The mother asked on several occasions leading up to Mother’s Day in 2011, if she could spend some time with the children on Mother’s Day. The mother says that she sent text messages to the father, however she received no response. She then phoned the father on the Thursday prior to Mother’s Day. The father responded that Mother’s Day fell on his weekend and he would talk about it later as the children were present. The mother heard nothing back from the father. She phoned him later in the next week. At that stage the father became “enraged on the phone, screaming and yelling, and making threats” towards herself and her fiancé Mr S.
She says that the father was so angry she could not understand what he was saying for most of the call. All she had asked was if the children could simply spend time with her on Mother’s Day. She says the father said that she was always springing things on him like that at the last moment and he became enraged. The mother hung up after a few minutes, she was shaking, and she immediately called the police. She did not try to contact the father again, accepting that she would not see the children on Mother’s Day.
The father then phoned her at about 9 am on Mother’s Day morning and asked her if she would like to have the children for the day. The mother said she gladly accepted and she thanked the father. That night the father phoned to speak to the children which the mother permitted. The mother had placed the phone call on speaker phone, as suggested to her by the (omitted) police, and she heard the father saying to X that the mother was “a piece of work” and that they should have been with him that day. I accept the mother’s version of events.
A similar incident occurred when the mother asked the father to swap a single Thursday night in the off-week to enable her to leave (omitted) on a Thursday to travel down to (omitted) to attend a wedding on Saturday. The mother asked the father if she could take the children to the wedding. The father refused to agree to the children going, refused to agree to swap, notwithstanding that the mother had said he could have makeup time on another day. The father was cross-examined on this issue and I was most unimpressed with his evidence and his attitude.
He told the Court that the mother could go to the wedding but the children had to be with him on his night. The father was inflexible, rigid, and in my view was somehow trying to punish the mother and prevent her and the children from having an enjoyable time at attending a wedding. There was nothing that the father had specially planned for that particular Thursday night; it was simply another night in the off week. It is an example of his inability to be child focused, as was the Mother’s Day incident.
The mother decided that she was going to attend the wedding, notwithstanding that the father did not agree to foregoing one night. When she returned to (omitted) she was told by the father to deliver the children to him in town, outside a shop in (omitted).
The mother arrived shortly after 9:00 am and got out of the car. The father straightaway started asking the mother about what she had done for the head lice. I make the observation at this point that the father seems to be somewhat preoccupied with head lice but pays very little attention to matters such as the effects of domestic violence upon the children and the effects of his own behaviour upon the mother and the children.
The father became enraged and started screaming and yelling at the mother in the street and pointing at her. The children were right at the scene with the father holding the children by the hand. The mother said the children were shocked and Y was frightened by the behaviour. The mother kept saying to the father, “Not here, not here in front of the children,” as she moved away and got into her car.
She says as the father moved away with the children he was still yelling and pointing at her and that as he moved away with the children hand in hand, Y kept looking back at her mother and crying. Later Y asked her mother, why did her mother leave her there. The mother says that she explained to Y that grown ups do not always agree with each other and that yelling and swearing is not always the best way to deal with it but that her dad loves her very much and would never hurt her.
It is on this occasion that the mother said to Y, “You love spending time with your dad, don’t you?” and Y said that she did, but that mostly the father spends time playing with X and not with her. Y said that she enjoyed spending time with her Nan, the father’s mother.
The father has an intransigent attitude when reasonable requests have been made by the mother. The father has a significant anger problem and his inability to control his own volatile temper leads to various explosions on his part. Regretfully many of these have occurred directly in the presence of the children. He has also it seems, had issues of poor behaviour and physical force being used on a fellow employee.
The mother refers to other incidents where the father has refused to be flexible or refused to acknowledge the children’s opportunity to spend special time with the mother. The mother refers to Christmas 2010 and says that the children had spent the previous Christmas with their father and so she assumed that they would be spending Christmas 2010 at her home. However the father disagreed saying that he had had them for the first half of the holidays so he was having them for Christmas as well and took the children to the father. The mother then decided that there would be two Christmases. The children reported that Santa did not come to them whilst they had Christmas with the father[8]. The mother set out in her affidavit the difficulties that she also had surrounding Christmas 2007. Any opportunity the father has had to make the mother’s life difficult he has done so, even when it involved times that the children would have had special occasions with their mother or being engaged in an opportunity that they would enjoy sharing with their mother, such as a wedding or Mother’s Day.
[8] Mother’s Affidavit filed 15 August 2011, Paragraph 60.
I am satisfied that the father has made criticisms about the mother directly to the children and that he has on occasions said that he told the children they should be with him or that he misses them. The father is in effect making the children feel guilty about not spending more time with him. It is also conduct that could undermine the relationship the children have with their mother particularly when are being told that the mother is “a piece of work” and that they should be with him. This behaviour places the children in a difficult position, creating divided loyalties. Overall I am not satisfied that the father shows a willingness or an ability to promote, encourage, or facilitate a close and continuing relationship between the children and the mother. In my view his anger at the mother keeps surfacing and prevents the father from making concessions or showing flexibility on occasions when he should and which he would if he was child focused.
The mother has satisfied me that she is child focused and in tune with the emotional needs of the children. She has walked a very difficult line in my view. She has been the victim of domestic violence, of that I am satisfied. She has nonetheless tried to promote a relationship with the father who has hurt her physically, terrified her, yelled at her, controlled her and who has at times followed her around (omitted). This has continued for years and it has affected the mother’s ability to enjoy life in (omitted).
Through all of this she has tried to encourage the children’s relationship with the father. She has also taken the children to counselling, and the subpoenaed notes from the (omitted) hospital show her efforts at trying to address the difficult behaviour that the children have presented with following on from witnessing some of these disturbing events.
In my view the mother has identified the emotional problems with the children and their fear and apprehension caused by domestic violence. She has heard the children say that they are frightened and Y saying she did not want to go to the father’s. She has been told by the children first hand of their experiences with the father. The mother has tried her best to deal with it. She has observed Y being upset, crying, and walking away, nonetheless as the father has been abusive of the mother, and she has tried to reassure Y that her father loves her very much.
On all of the evidence I am quite satisfied that the mother can accommodate and provide for the needs of these children, their emotional, physical and intellectual needs, in all respects. She has provided a home, shelter, food, schooling, swimming lessons and sporting interests. She has provided for all aspects of the children’s lives. She has tried to help them recover from being exposed to the father’s violent behaviour towards her. There is no evidence of the father helping in any substantial way. He has been content to leave all of the major responsibilities for parenting the children to the mother.
The father criticises the mother for the children having worn out underpants at a time when the father paid no child support. He criticises the mother for not ensuring total head lice eradication. In my view the head lice situation in this matter is not only typical of what school children this age might be expected to encounter, but in the scheme of the issues it is a matter of low priority.
S.60CC(3)(g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
These children have been exposed to domestic violence between the mother and father and the father and his brother. In these proceedings the mother has been a self represented victim of domestic violence. I have already noted that the father presents as an immature and inexperienced parent who has an out of control temper.
S.60CC(3)(j) - Any family violence involving the child or a member of the child’s family
I am satisfied that the mother’s version of events in relation to all of the domestic violence allegations is accurate. The mother has been subjected to horrific domestic violence. She has been stomped on by the father when she was a 16 year old. She has been kicked, punched and physically pushed around. She has been yelled at and grabbed by the throat. She has been intimidated and stalked. The mother gave evidence that on an occasion, post-separation, when she went out for the evening the father called her and gave an account of every bar and place she had been out to that night and an account of who she had been with. He wanted her to know he had been watching.
In relation to the January 2011 fight with his brother Mr W and the June 2011 fight with his brother, in my view, the father has simply attempted to diminish the severity of these incidents. The father’s own mother gave evidence that there was a heated argument between Mr W and Mr Wallen in January 2011, that she rushed past the scene with the children to their rooms so that they were removed from the direct argument. The mother gave evidence that the children told her the father was screaming “you are going to be covered in blood, I am going to kill you” towards the brother. A television was damaged during this fight.
The grandmother said in her affidavit, though not in her oral evidence, that the children could hear the two of them (Mr W and the father) carrying on swearing and yelling at one another and that Mr B, the paternal grandfather, intervened between his two sons and stopped the argument. The grandmother admitted that Mr W has issues with anger when he drinks and that has led to many arguments. She described this as the worst of the arguments between her sons. Mr W’s drug consumption has continued, with Mr W saying it was six months since he last consumed drugs. He has a history of drug abuse and criminal activity.
The children told the mother that they could hear the arguments and that they were frightened. They gave the mother a horrifying account of being so frightened that they sat on the bottom bunk together holding each other, sitting tight together. X said, even though he was frightened, he felt he had to look after “sissy”. During evidence, when the mother recounted what the children told her, she became deeply distressed.
The father has followed her on the occasion of the McDonald’s incident and possibly other occasions. The mother gave evidence that when she did leave he threatened to kill himself, begged her to come back and said that he still loved her. His suggestion to her when she went to the Sunshine Coast that if she left he would disown the children suggests that he will use any lever at all to have the mother do as he wants.
He has shown controlling, coercive violence towards the mother preventing her from seeing her own relatives, flying into a rage when he found out that the mother has been out shopping with her own mother, pushing her in the shoulder and slapping the mother in the face whilst she was nursing Y.[10] The father banned the children being taken to the maternal grandparents or to the mother’s sister’s home. He has been violent to the mother’s sister years ago when the mother was 16 when he grabbed her in a car and pulled her out onto the road[11] and pushed her around.
[10] Transcript 31/8/11 Page 25, Line 5-10.
[11] Transcript 31/8/11 Parhe 24, Line 15-25.
The father has been in altercations at work through this same violence of “pushing”. He said he has been attacked by three men in January this year after he had been out and had too much to drink. I consider the father to be a violent man. His propensity for violence is extremely troubling and in my view it deeply impacts on his ability to provide an appropriate role model for the children, parental responsibility, his capacity to parent, his attitude to parenting and any ability that these parties have to co-parent. The father showed no sign of admitting the extent and nature of his violence or understanding its impact.
S.60CC(3)(k) - Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person
Two final orders have been taken out by the Police. Neither order was opposed. The father has been convicted of a breach of the order.
A third final Domestic Violence Order was granted to protect the mother from the father in September 2011 for two years. The application was contested. The father’s view of the mother’s application was that it was an abuse of process. I consider the father is a perpetrator of family violence and that he has been since he was 16 years old.
S.60CC(3)(l) - Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I consider that it is important that the mother and children have final orders made to reduce the mother’s obvious distress from this litigation. The mother’s fear of the father and distress at the father’s conduct towards her was palpable during the hearing. The father has shown no insight into his conduct and is in denial about his violence towards the mother. The father has been engaging in brinkmanship with the mother. When she agreed not to relocate, the father decided to request week on week off. His decision to contest the domestic violence application having consented to two previous orders, been in breach of an order and engaged in ongoing stalking of the mother smacks of him taking a win at all costs approach as submitted by the independent children’s lawyer.
Primary Considerations:
S.60 CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
The father submits that for him to have a meaningful relationship with each of the children, it is essential that he continue to see them on a regular basis. Although he has modified his initial application of week-on week-off to an application that the children live with him each alternate week from Wednesday through to the following Monday, that period of time still represents an increase in the time from the arrangements which have been in place pursuant to the orders made by Spelleken FM in 2009.
The father says that he is able to spend time with the children doing outdoors activities which is something that they enjoy. He says that X in particular has said that he wishes to see more of him. The father’s position is, however, that if the children are relocated to the Sunshine Coast that he would not be relocating himself. The father says that he would not relocate to the Sunshine Coast, even though his children would be living there. This is because he has only been there once when he was about 12 years old, he does not have any friends in that part of Queensland and a move to that area is not something he would contemplate.
The report writer, Ms S, gave evidence that if the children did relocate to the Sunshine Coast she believes, contrary to the belief of the father, that the holiday contact as proposed by the mother in her proposed orders would be sufficient time for the children to spend with the father to continue to have a meaningful relationship with him. Ms S has altered her position from her initial report as referred to elsewhere in these reasons. Ms S had confidence having heard additional evidence as to the mother’s past preparedness to encourage a relationship between the father and children in difficult circumstances, that the mother would continue to do so including if the mother was to relocate to live in South East Queensland. Ms S recommended that the children be permitted to relocate with the mother as she was now of the view that a meaningful relationship could be sustained through holiday time.
The mother has given evidence that she is not going to relocate without the children and this is not unexpected as she has been their primary carer since at least 2009 and in my view, since they were born with the assistance of the paternal grandmother for a period.
In addition the mother now has a third child, a half-sibling of each of the children, and there is no suggestion that she would ever have these children separated.
S.60 CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother has given evidence and been cross-examined about the history of family violence perpetrated during the relationship upon her by the father. Much of this domestic violence on the mother’s evidence occurred in the presence or hearing of the children.
I am satisfied that the children in this matter have been exposed to family violence. I accept the mother’s evidence as to the domestic violence that has occurred. The father has a naïve perspective on the impact of his violent behaviour on the mother and the children.
I have examined the evidence of each of the parties under the section 60CC heading of family violence more fully elsewhere in these reasons. I am however very mindful that these children have been exposed to ongoing arguments and conflict in addition to being present at domestic violence. They have been frightened and seen their mother being terrified. This issue is a significant factor in my decision in this case being as it is one of the primary considerations and a central theme of the mother’s evidence. The orders I am to make need to protect the children from extended and regular exposure to the father’s violence whilst enabling them to enjoy the best of times with the father, rather than the worst. The father says the children enjoy doing outdoor things with him. This type of activity can be accommodated outside of school time and holidays.
Equal shared parental responsibility
I am satisfied that the presumption of equal shared parental responsibility is rebutted given the evidence of domestic violence. Also, given the domestic violence, I consider it entirely inappropriate and against the best interests of the children to make an order for equal shared parental responsibility. The father does not have the ability to communicate with the mother. He has been violent. He has hurt and intimidated the mother. His own children have been in fear of him. He continued to do so post separation.
The communication, as set out in the communication book, is as submitted by the Independent Children’s Lawyer, evidence of the father either failing to properly communicate with the mother or refusing to do so. I am satisfied that it is appropriate for the mother to have sole parental responsibility. I am satisfied she will ensure decisions making in relation to the children will be in their best interests.
General discussion
I have considered the competing proposals in this matter. I am deeply concerned about the father’s capacity to parent. I am troubled by his propensity to be a perpetrator of domestic violence. He is an extremely poor role model for his children. The evidence of the alarm, fear and distress caused to the children by their being in fear during arguments and having seen their mother being abused and terrified in “the big fight” satisfies me that they have been directly exposed to domestic violence perpetrated by the father.
The father has on occasion used a piece of a toy with a plastic strap attached to it, to hit X across the back of the legs. The mother found this conduct very troubling, as do I. The father has been in arguments physically with co-workers and described as having a “bad attitude”. He yells and has fights with his brother. The father is an angry man and I do not accept that he has the capacity to parent the children on anything other than a limited basis. I do not accept that the children should spend equal or significant and substantial time with the father; it is not in their best interests to do so.
Added to the father’s own incapacity to parent and his violent conduct, the accommodation whilst living with the father is entirely unsatisfactory. The two children and the father all in a room, 5 out of 14 days in their grandparents home, with Mr W also living there and the conflict in that house, is not an environment in which these children ought to be spending regular time each fortnight as proposed by the father.
It is not appropriate for them to be living there from Wednesday to Monday each alternate week or any regular extended time. They have no living space of their own. Their growing need for privacy is not accommodated. The father’s work presents obstacles in terms of him caring for the children in the mornings and afternoons. I do not accept that the proposed arrangement with his mother is a viable, long term arrangement, nor do I consider that it is beneficial for the children. They will have homework and extra curricular activities. I do not accept the father has the capacity or desire to engage in this aspect of parenting. The father has shown little sign of conducting his life to cater for the needs of the children or with a focus on the children.
The father has not shown responsibility for financially providing for the children in relation to the dental work, specialists or extra curricular activities. He has been happy to leave that mostly to the mother. She has housed and fed the children, and organised all aspects of their day-to-day care and welfare.
The mother’s proposal involves relocating. I understand that the mother wants to start a new life. I accept that she has been in an abusive relationship with the father and that even though she has separated from him, the father continues to follow her, intimidate and frighten her and make her life difficult whenever possible, generally through the children’s arrangements. Causing scenes in a public street, screaming and shouting in front of the children is entirely unacceptable and will do irreparable harm to the children. They have already been exposed to violence when the parties lived together. Still it continues. There is no evidence to suggest that the father’s quick temper and abusive attitude to the mother is abating. He is a most difficult man for the mother to co-parent with and I do not accept that they could ever co-parent effectively.
The mother’s proposal provides for her to move to the Sunshine Coast, establish a home, find a school, and continue to be the primary provider for the children. I am satisfied that the mother can do this. I reject the suggestion that she has not specified the date. Her case has been that it will not be before December 2011 because she does not want to interrupt the children’s schooling, but that after that as soon as her fiancé, her partner, finds work they wish to move.
I am confident that the mother will find schooling and housing and continue to provide for the children as their primary carer as she has done for some years now. I consider that the support the mother will receive from her father and two sisters who live on the Sunshine Coast and other family members nearby, will be an advantage of living on the Sunshine Coast for the mother and children who will also have an opportunity to grow up amongst their aunts and cousins. I am comforted by the evidence of the family report writer that the relationship between the children and the father is good and that, in the event that the mother was to move, that a reconfiguration of the way the children spend time with their father into block periods throughout the year would be satisfactory to keep that arrangement close and to be meaningful. The father says he gets at least four weeks a year holidays and he can have weekends off at his discretion. I am satisfied that the mother has capacity to assist the children adjust to the changes involved in relocation.
The father’s proposal will see the mother remain living in (omitted) with more opportunity for the father to intimidate and harass her. The father is not capable of parenting the children for equal or significant and substantial time for reasons already canvassed in the Section 60CC factors. I accept the submissions of the independent children’s lawyer in this matter. For reasons referred to, I do not consider that it is the children’s best interests to live with the father as proposed by him, throughout the year for the remainder of their childhood. The father says he won’t have a meaningful relationship with the children if the mother relocates. This is not supported by the evidence.
Given the father’s violent conduct and incapacity to parent, together with other issues referred to in these reasons, I consider that the children’s interests are best served by living primarily with the mother and spending limited time with the father. Having evaluated each of the proposals and considered the primary and additional considerations it is my view that the proposal which addresses the children’s best interests is the proposal of the mother in which the children live with her on the Sunshine Coast and spend time with the father during set times in school holidays. I am satisfied that the children will have a meaningful relationship with the father through holiday arrangements.
I consider it is beneficial for the remainder of their childhood for the children to live in an atmosphere where they are safe from adult conflict and hopefully achieve their full potential in life. The mother’s relocation offers an opportunity for her, as the primary carer of the children, to also live free from the ongoing intimidation, conflict and fear caused by the father. This will in turn be beneficial for the children. The children will have the opportunity to spend time only with the father during holidays throughout the year doing holiday pursuits and outdoor activities. I consider the remainder of their childhood ought to be free from the ongoing conflict which the father seems intent on creating. To this extent, I consider there is an advantage for the children and mother to live away from (omitted).
Even if the mother was not relocating with the children, I consider it is in their best interests to live primarily with the mother and spend time limited time with the father each alternate weekend Friday to Sunday.
As to holiday time during the year, I consider that as the children adjust into living on the Sunshine Coast, it will be important for them to have holiday time with the mother and their new sibling A as well as spending time with the father. I am not confident that the children should spend a period as long as 3 weeks in one block with the father at Christmas time given my findings. The father says he has four weeks holiday a year. The paternal grandparents each work. If the children spend time during school holidays mid year with the father, the time at Christmas will be limited to 2 consecutive weeks. These 2 weeks plus one half of the other holidays including Easter will in my view be sufficient time for the children to have a meaningful relationship with the father. The father’s block period of 2 weeks is to alternate each year, so that the children spend alternate Christmas Eve and Christmas Day with each parent. This time during school holidays will be an opportunity for the children to spend time with their paternal grandmother and father. The mother has missed out on several Christmas Days post separation and therefore I propose ordering that the father’s 2 weeks at Christmas in 2012, not include the week of Christmas Eve, Christmas Day and Boxing Day. I intend to order that the cost of the children travelling to and from (omitted) be paid by the mother during the school holiday periods only.
In the event the father wishes to spend additional time with the children on Father’s day weekend each year or their birthday weekends each alternate year, I am prepared to make that order subject to him paying the children’s return travel costs on those weekends. Any other additional weekends with the father will only be by agreement with the mother and on the basis that the father pays the cost, unless agreed otherwise.
Telephone communication between the children and father should occur twice per week on Tuesday and Sunday between 7:30 and 8:00 pm. The father is to initiate the call on each Tuesday and the mother is to initiate the call on each Sunday. When the mother has Skype facilities, the father can communicate with the children by Skype in lieu of telephone communication subject to the convenience of the mother and children if Skype contact cannot occur, telephone contact to occur twice per week. I intend to include in the order the option for the mother to change the Tuesday night for another night of the week in the event that the children’s extra curricular activities prevent them from being available at 7:30 pm on a Tuesday night. In light of the father’s prior involvement with drugs and that of his brother who lives with him, I intend to make an order that in the event the father is either subjected to a drug raid or charged with a drug offence, convicted of a drug offence, the father is to inform the mother within 48 hours and keep her advised of the outcome.
Until the mother relocates and whilst she remains living in (omitted), the changeovers are to occur to and from the (omitted) contact centre starting at 4:00 pm Friday and concluding 4:00 pm Sunday (the father’s time with the children during the holidays will remain unaltered) whilst the mother remains living in (omitted), I have come to the view that the best interests of these children will be served by spending time with their father each alternate weekend from after school Friday until Sunday afternoon each alternate weekend, for the reasons explained earlier in this judgment.
The father may walk away from the children and his Counsel, Mr Moore submits that I should be alarmed that this might happen. If the father chooses to walk away from his own children, it is a matter for the father not the mother or this Court.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 7 February 2012
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