TERRAZAS & DALY

FAMILY COURT OF AUSTRALIA

TERRAZAS & DALY

[2018] FamCA 1012

FAMILY LAW – PROPERTY – Where the parties seek an adjustment of their property interest in accordance with s 75 and 79 of the Family Law Act 1975 (Cth) – Where the parties dispute the husband’s initial contribution – Where the husband provided financial statements as evidence of his initial contribution – Where both parties agreed that they conducted their finances and financial affairs independently during the relationship – Where this agreed fact was contrary to evidence adduced – Where it is found that the parties financial affairs were intermingled throughout the relationship – Where no distinction of contribution of the parties after separation can be made – Where parties contributions are found to be equal during the relationship – Where the disparity of the initial contributions should result in contributions being assessed as 20 per cent to the wife – where a further adjustment of 10 percent is appropriate due to husband’s more significant income earning assets – Order for a property adjustment of 30 per cent to the wife – where the husband has one year to make the payment – where the husband must pay interest in accordance to the Family Law Rules 2004 to compensate for the long settlement period.

FAMILY LAW – PARENTING – Where both parents seek sole parental responsibility – Where the mother alleges the father was physically violent towards her – Where the father alleges the mother was physically violent towards him – Where both parties allege violence towards the children – Where the presumption of equal shared parental responsibility is rebutted by a finding of family violence –Where the mother has a history of volatility and emotional dysregulation – Where the mother has had violent outbursts towards the children – Order made for the children to live primarily with the father – Order made for the father to have sole parental responsibility – Where arrangements for time spent with the mother are different for both children – Where specific weight is given to the wishes of the 13 year old child – Where the mother alleges that the father had influenced the child to act negatively towards her – Where no such finding can be made – Where the 13 year old child is to spend alternate weekends with the mother as well as school holidays and special occasions – where the 10 year old child is to spend five nights a fortnight with the mother as well as school holidays and special occasions.

FAMILY LAW – RELOCATION – Where the mother seeks relocation to Brisbane – Where neither child wishes to relocate – Where it is determined the children should live primarily with the father – Where no separate consideration is required for the relocation application – Application dismissed.

Family Law Act 1975 (Cth) s 4, 60CC, 75(2), 79(2) Family Law Rules 2004, r 17.03
APPLICANT:	Ms Terrazas
RESPONDENT:	Mr Daly

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

WOC

1064

2016

DATE DELIVERED:

4 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

8, 9, 12, 13, 14, 15 and 16 November 2018

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Cooke

SOLICITOR FOR THE RESPONDENT:

P Town Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scarlett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Johnson Horsley Lawyers

Orders

IT IS ORDERED
PROPERTY
1.That within one year of the date of these orders, the husband pay to the wife the sum of $2,565,113.
2.That the husband pay interest to the wife on such of the sum of $2,565,113 as remains outstanding from time to time, the first payment of interest to be made one month from the date of these orders and monthly thereafter until the whole amount has been paid.
3.That subject to these orders, each party retain such property, both real and personal, as is in his or her possession at the date of these orders.

PARENTING

4.That all previous parenting orders in relation to the children X born … 2005 and Y born … 2008 (“the children”) are hereby discharged.
5.That the father have sole parental responsibility for making major long term decisions in relation to the children provided that:
(a) prior to making any decision, he shall advise the mother in writing of the issue and his proposals, giving her at least 14 days to respond in writing, and give proper consideration to her response.
(b) in the event that he makes a decision which is not in accordance with the mother’s response, he shall immediately advise her in writing of his decision.

That each parent have responsibility for making day to day decisions for the children during any period that the children live with that parent.
That the children live with the father unless they are living with the mother pursuant to these orders.
That, during school term, X live with the mother:
(a) on the first weekend of each fortnightly cycle from Friday after school until school starts on Monday; and
(b) on any other occasion agreed upon between the parents.
That, during school term, Y live with the mother:
(a) on the first weekend of each fortnightly cycle from Thursday after school until school starts on Monday; and
(b)in the second week of each fortnightly cycle from Thursday after school until school starts on Friday; and
(c) on any other occasion agreed upon between the parents.
That the parent with whom the child is living shall ensure that the children attend sporting and extracurricular activities.
That, after any holiday period, the first weekend of the term time fortnightly cycle referred to in orders 8 and 9 is the first weekend after the school term starts.
That during school holiday periods, the children spend time with the mother as follows:
(a)      For half of the holidays at the end of Terms 1 and 3, being the second half if the children spent the last weekend of term with the mother and the first half if the children spent the last weekend of term with the father.
(b)For the whole of the holidays at the end of Term 2 in 2019 and odd numbered years thereafter.
(c)      For half of the Christmas school holidays being the second half of the holidays in 2018 and even numbered years thereafter.
That where the children spend the second half of a holiday period, or the whole of the holiday period with the mother, the mother shall return the children to the father at 6pm on the day before the first day of the next school term.
That either parent be entitled to travel overseas with the children during any holiday period the children live with that parent provided that the other parent is given reasonable notice including the provision of an itinerary and contact information.
That for the purpose of calculating holiday entitlement, the holiday commences at 9am on the day after the last day of school and ends at 6pm on the day before the first day of the new term.
That in the event the holiday period is for an odd number of days, the father will have the additional night in odd numbered years and the mother in even numbered years.
That the children spend time with each parent on special occasions as follows:
(a)      if they would otherwise be with the father, with the mother on Mother’s Day from 6pm on Saturday until 6pm on Sunday.
(b)      if they would otherwise be with the mother, with the father on Father’s Day from 6pm on Saturday until 6pm on Sunday.
(c)      if Easter falls during term time, the children will live with the mother from after school on Thursday until school starts on Tuesday in even numbered years and with the father in odd numbered years.
(M)     on the children’s birthdays they shall spend time with the parent with whom they are not living, in the absence of agreement, from after school if a school day until 7.30pm, or from 9am until 1pm if the birthday falls on a non-school day.
(e)      on the parent’s birthday (if the children are in Australia), in the absence of agreement, from after school on the day before the birthday until the start of school, or, if the birthday falls on a non-school day, from 6pm on the day before the birthday until 7.30pm on the birthday.
That the children be able to communicate with the absent parent at any reasonable time.
That when changeovers do not occur at school, the father shall deliver the children to the mother’s home at the commencement of their time with her and the mother shall return them at the end of the time to the father’s home. Each parent, when delivering the children, shall remain in their vehicles unless the other parent has specifically invited him or her into the home.
That each parent is restrained from:
(a)      speaking or permitting another person to speak to or about the other parent, or member of the family of the other parent, in the presence of the children, in any derogatory, offensive, negative or unpleasant manner;
(b)      attending at the home of the other parent, except for the purpose of delivering the children, unless specifically invited to do so;
(c)      using any form of physical punishment or discipline on any child.
That each parent shall keep the other informed of any medical condition or illness of either child and any medication prescribed for either child.
That the father keep the mother advised of the names of any medical professionals, including but not limited to doctors, therapists and counsellors, who are consulted about the children or with whom the children consult and provide his consent to those professionals to provide to the mother any information usually available to a parent.
That the mother shall be entitled to receive from the children’s school any information usually available to parents.
That each parent may attend any school event to which parents are invited.
That the passports of the children currently held in the Wollongong Registry of the Federal Circuit Court be released to and held by the father.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 1064 of 2016

Ms Terrazas

Applicant

And

Mr Daly

Respondent

REASONS FOR JUDGMENT

Ms Terrazas (“the wife”) and Mr Daly (“the husband”) commenced co-habitation in May 2005, married in 2014 and finally separated in late 2014.
They have two children, X born in 2005 and Y born in 2008.
The children currently live with their father and spent time at weekends and holidays with their mother.
The proceedings before the Court concern both parenting arrangements for the children and the division of the property of the parties.

HISTORY

At the commencement of co-habitation the wife owned a property at B Street, Suburb C (“Suburb C”) which she estimated had a net value of $51,128 and a property at M Street, Suburb E (“Suburb E”) which was unencumbered and which she estimated was worth net $413,000. She also had savings and superannuation. The wife had net assets of about $500,000.
There is a dispute about the quantum of the husband’s initial contribution. The wife asserts that his initial contribution was approximately $2million.
The husband asserts that his initial contribution was held in the Mr Daly Discretionary Trust (“DD Trust”). Financial Statements of the DD Trust at 30 June 2005 show that the DD Trust had a net equity of $4,974,512.
Throughout the relationship, the husband and the wife each bought and sold properties both in corporate entities and in their own names. It is agreed that the corporate entities of the wife were and are her alter ego and that the corporate entities of the husband were and are his alter ego. For the sake of simplicity, in these reasons, transactions by the corporate entities are referred to as transactions of the parties.
The property at F Town (“F Town property”) where the parties lived at the commencement of their co-habitation, was purchased and paid for by the husband free of mortgage. When the parties moved into the F Town property, the wife was able to rent out her properties at Suburb C and Suburb E. There is no dispute that she then used those funds for living expenses and investment in shares.
It was, between the parties, an agreed fact that, during their relationship, the parties always had separate bank accounts and conducted their financial affairs independently. However, despite that being their agreement, that was not the reality of the conduct of their affairs. Each, throughout the marriage, invested both formally and informally, in properties owned by the other. The entirety of the cross-examination of the wife on the first day of the hearing was directed to the intermingling of their funds.
By way of example, the wife paid money to a company of the husband (“G Pty Ltd”), worked for the company, traded shares both for the company and on her own behalf and received income from the company.
When the wife purchased a property at H Town in her sole name, the husband paid $50,000 towards the cost of renovations. When that property was sold, about 70 per cent of the net proceeds of the sale were paid to the husband.
When the husband purchased a property in J Town in which they then lived, the wife paid rent which was applied to the mortgage payments.
When the wife worked for G Pty Ltd she was paid a salary which included a separate payment of $500 per week to enable her to pay rent to the husband for J Town.
The wife received payments from the husband’s companies for work done by her.
The husband purchased real property in a corporate name to be used as a boarding house and low-care facility by the wife. The wife contributed 30 per cent of the purchase price. Her corporate entity was allocated 30 per cent of the shares in the unit trust which held the real estate. The wife, through the operating company, entered into a lease and paid rent to the unit trust of which the husband held 70 per cent of the shares. That continued until late 2012.
In 2011, the wife purchased a property from the husband.
In December 2012, when Property K, one of the properties comprising the care-facility was sold, the wife received 30 per cent of the deposit and the husband retained the balance of the sale money, paying the wife the value of her shares in the unit trust over the ensuing year.
I accept that the parties did not have joint bank accounts but otherwise they intermingled their financial affairs through their various corporate entities, no doubt to achieve the maximum taxation benefits. The fact that those transactions were conducted between their various corporate entities and, in most cases, was documented does not detract from the fact that they intermingled their funds as they thought financially advantageous.
The wife, who is a qualified professional, worked in various paid jobs and traded in shares and the husband earned an income both from personal exertion and from investment in various business and real property.
There were numerous sales and purchases by each party of properties and businesses and there is disagreement about how various purchases were funded and how proceeds of sale were disbursed. However, neither party asserts that the other impermissibly used matrimonial funds and neither party asserts that the other has hidden money. In those circumstances, I do not propose to examine each transaction and I will treat the assets and the liabilities of the parties at the date of their separation as having been acquired by them by their joint efforts, subject to the disparity in their initial contributions.
The husband asserts that in early 2012, the parties separated for about 18 months. They reconciled in about October 2013 and married in 2014. The wife asserts that they separated in July 2013 and reconciled in October 2013. Nothing turns on that dispute.
They finally separated in June 2014. There is a dispute about the children’s living arrangements.
The wife asserts that thereafter the children lived with the wife and spent most of their weekends and half of the holidays with the husband until the end of 2015. In 2016 the children spend alternate weekends and half of their holidays with the husband.
The husband asserts that there was an equal shared arrangement until the beginning of 2016 when the wife discontinued that arrangement and the children spent alternate weekends and half the holidays with him.
In January 2017, orders were made which provided for the children to live with the mother and spend time with the father from Tuesday afternoon until Thursday morning in week one and from Thursday after school until Monday morning in week two.
In June 2017, orders were made for the children to live with the father and spend time with the mother after school on Tuesday until Wednesday morning in week one, from Friday afternoon until Monday in week two and for half school holidays.
In October 2017, the husband was diagnosed with Parkinson’s disease.
At trial, the wife was not working although she conceded that once the proceedings were completed, she would be able to work as she had before the proceedings were commenced.

THE TRIAL

The matter was listed for hearing for ten days commencing on 8 November 2018.
The Court was assisted by an Independent Children’s Lawyer (ICL”) and a report of a single expert, Dr L, a child and family psychiatrist who had seen the family in late October 2017 and provided a report in November 2017.
The wife represented herself.
In relation to property, the wife sought a distribution of 30 per cent of the net assets to her.
The husband’s position was not revealed until the first day of the hearing when a minute of orders was tendered.
The wife sought orders that she have sole parental responsibility for the children, that the children live with her and that she be permitted to relocate with them to the Brisbane. Whether or not her relocation application was successful, she sought orders that the children spend time with the father on weekends and school holidays. If they live in close proximity, she proposed that the children also spend Wednesday evening with the father.
Again, the husband did not reveal his position in relation to parenting until the morning of the hearing when his position was that he sought sole parental responsibility for decisions relating to schooling, religion and medical interventions. He proposed that the children live with him and spend alternate weekends with the wife, commencing on Thursday afternoon for Y and Friday afternoon for X. He proposed that, in addition, X spend alternate Wednesday evenings until 8pm with his mother. School holidays were to be shared.
In relation to property the husband sought an order which had the effect that the wife would receive 15 per cent of the net pool of property. That position was amended in submissions when counsel for the husband submitted that an adjustment of 13 per cent in favour of the wife was appropriate but conceded a further adjustment between 5 per cent 10 per cent for section 75(2) factors of the Family Law Act 1975 (Cth) (“the Act”).

The husband’s position changed again at the commencement of submissions when he sought orders broadly in accordance with those sought by the ICL, except in relation to Y. The ICL’s position was that Y should spend week about time with each parent and that X should live primarily with the husband. The husband’s position was that Y should also live primarily with him but that she should spend five nights each fortnight with the wife.
Each party sought ancillary orders which will be discussed separately.
The parties and the ICL agreed that the trial would be divided between property and parenting issues with the property aspect proceedings first.

PROPERTY

The only significant factual dispute to be determined was the quantum of the husband’s initial contribution.
The Financial Statements of the DD Trust were in evidence. The total equity of the trust was $4,974,512 as at 30 June 2005. The notes to the Financial Statement showed “Property Plant and Equipment” including land and buildings at cost totalling $2,621,953. The other substantial asset was a loan to a related group of companies which were also the husband’s companies.
There was no serious challenge to the Financial Statements. The husband gave evidence in cross-examination that the trust owned the real properties and that the associated company owed the loan funds to the trust.
I accept that the husband’s initial contribution was as he asserted.

SECTION 79(2)

Both the parties ask the Court to make orders adjusting their property between them. Both seek an adjustive payment in favour of the wife. Both implicitly agree that it is not just and equitable for there to be no adjustment.
It is just and equitable to make an adjustive order.
At the commencement of the trial, the parties tendered a joint balance sheet which is reproduced below (the letter “M” refers to assets owned by the M Group of companies which are the husband’s alter ego);

Owned		Description	Value
1.	W	Westpac Bank Acc #37	$ 94
2.	W	Westpac Bank Acc #17	$ 341
3.	W	Westpac Shares Acc #98	$ 529,002
4.	W	NN Acc #20	$ 60
5.	W	PP Acc	$ 67
6.	W	Deleted
7.	W	Deleted
8.	W O	N Street**(30 per cent Share) (E)	$ 745,000
9.	W	O Street, P Town (MA)	$ 787,500
10.	W	Motor vehicle 1 (Paid out in May 2017) (MA)	$ 33,000
11.	W	Home Contents	$ 15,000
12.	H	Home Contents	$ 15,000
13.	H	Q Street, Suburb R (E)	$ 2,000,000
14.	H	Commonwealth Bank	$ 3,500
15.	H	Commonwealth Bank STGB	$ 5,000
16.	M	4WD	$ 200,000
17.	M	Property 1	$ 10,640,000
18.	M	Property 2	$ 9,000,000
19.	M	Business 1	$ 2,770,000
20.	M	Business 2	$ 2,000,000
21.	M	Business 3	$ 3,000,000
22.	M	S Street, T Town	$ 995,000
23.	M	Business 4	$ 9,000,000
24.	M	P Town House	$ 750,000

Total

(Note: this total is corrected)

$ 42,488,564

LIABILITIES
25.	W	Westpac Credit Card	$ 1890	$ 1890
26.	W O	N Street**(70 per cent mother Ms Q)	$ 521,500	$ 0
27.	W	Westpac Rocket Loan	$ 394,311	$ 394,311
28.	M	R Street Loan	$ 1,337,593	$ 1,337,593
29.	M	Business S Loan #17	$ 6,300,000	$ 6,300,000
30.	M	Business T - Loan #15	$ 3,675,000	$ 3,675,000
31.	M	Business U Loan #05	$ 2,870,000	$ 2,870,000
32.	M	Business V Loan #21	$ 1,551,000	$ 1,551,000
33.	M	Business W Loan #31	$ 2,000,000	$ 2,000,000
34.	M	P Town House Loan #03	$ 676,500	$ 676,500
35.	M	Z Town Loan #56	$ 778,000	$ 778,000
36.	M	Business AA Loan #02	$ 8,982,000	$ 8,982000
37.	H	Commonwealth Bank Credit Card	$ 25,250	$ 25,250
38.	M	MV Leasing of 4WD	$ 331,212	$ 331,212
39.	M	Tax (ATO DH MB Pty Ltd)	$ 145,155	$ 145,155
40.	M	Creditors (M Group)	$ 274,198	$ 274,198
41.	M	Loan interest accruals	$ 100,034	$ 100,034

Total

$ 29,963,643

$ 29,442,143

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
42.	W	BB Super	$ 13,405	$ 13,405
43.	W	CC Super	$ 67,223	$ 67,223
44.	W	DD Super	$ 2,990	$ 2,990
45.	H	Mr Daly Self Managed Superfund	SMSF	$ 342,351	$ 342,351
46.	$	$

Total

$ 425,969

The only dispute on the balance sheet is in relation to item 26, the loan from the wife’s mother in relation to the purchase of N Street.
After separation, the wife purchased two properties. O Street was bought for $545,000 and a 30 percent share of N Street was bought for $510,000. (The wife’s mother purchased the remaining 70 per cent share of N street). The wife needed $1,055,000 to finance her purchases.
The wife had $110,000 which she received from the husband in November 2014. She borrowed about $415,000 from the Westpac Bank. The shortfall was about $530,000.
The wife deposed that she borrowed that sum from her mother. There is no evidence that suggests that there was any other source of funds.
When in February 2015, the wife received further sum of $440,000 from the husband she used those funds to discharge the mortgage to Westpac Bank.
I accept that the wife owes her mother $521,500.

NET ASSET POSITION

Thus the parties have gross assets of $42,488,564 and liabilities of $29,963,643 leaving net assets of $12,524,921.
Of those assets the wife has in her possession assets totalling $2,110,064 and liabilities of $917,701 leaving her with net assets of $1,192,363.
Neither party sought any adjustment in superannuation or any splitting order. The husband, who is 47 years old, has superannuation entitlements of $342,351. The wife, who is 44 years old, has superannuation entitlements of $83,618.
No submissions were addressed to the issue of superannuation.
The appropriate course is to treat the discrepancy in superannuation as a section 75(2) factor of the Act.

CONTRIBUTION

From the time they commenced living together, the parties each contributed their money and their efforts to the enterprise of their family. They were both engaged in income earning. When the children were little, the wife was their primary carer. From time to time, the husband assumed a greater or lesser role in the care of the children.
Neither asserts that the other was engaged in any other activity outside the enterprise of the family.
There were a number of short separations earlier in the relationship, and a longer separation commencing in 2012 or 2013. There is a dispute about who primarily cared for the children when the parties were separated but both parents were involved.
After their final separation in June 2014, the children were in a shared care arrangement for a time, then in the primary care of the wife, and from June 2017, in the primary care of the husband.
After June 2014, the wife had in her possession superannuation of $60,000, cash of $184,454 and shares valued at about $108,500. The husband retained the balance of their assets. The wife, at separation was entitled to a further $550,000 being the value of her units in the unit trust and she did not ultimately receive the whole of those funds until February 2015.
Both parties continued after separation to use their funds to invest. In the wife’s case she invested in shares and her portfolio had increased in value by about $420,000 at trial. She also invested in real estate so that her real estate at trial was valued at net $1,011,000.
The husband, with a far greater share of the assets after separation, continued to buy and sell and his investments also increased in value.
I can make no distinction between the contributions of the parties after separation. The wife used a smaller sum and increased its value. The husband used a greater sum and also increased its value.
I consider the parties’ contributions, until trial, excepting their initial contributions, should be assessed as equal.
Taking into account the disparity in their initial contributions, the contributions should be assessed as to 20 per cent to the wife and 80 per cent to the husband.

SECTION 75(2)

On either application, the husband will have vastly more income earning assets than will the wife.
The wife will return to income earning but she will not be able to earn as much income as the husband will make from his investments.
The husband has superannuation entitlements of $342,351. The wife has superannuation entitlements of $83,618.
The husband will have the care of the children for a greater proportion of the time and will financially support them but the wife will still be required to have a home for them and will provide such financial support for them as she is required to do by the Child Support legislation.
Taking all of those matters into account, a further adjustment of 10 per cent in favour of the wife is appropriate.

CONCLUSION

The wife will be entitled to 30 percent of the net assets or $3,757,476. She has net assets of $1,193,363 and thus the husband will pay her a further sum of $2,565,113.
The husband seeks a year to make that payment.
The wife accepts that he will require time to liquidate sufficient funds from his share of the property to meet any order. It is accepted that the total borrowings secured over the assets to be retained by the husband are cross-collateralised and that he will need time to sell assets and release equity.
However, it is not appropriate that the husband continue to enjoy the majority of the assets for a year without some recompense to the wife.
It is appropriate that he pay interest to her on the amount outstanding to her from time to time at the rate prescribed by rule 17.03 of the Family Law Rules 2004. No doubt the rate of interest will be an incentive to the husband to arrange a timely settlement.
The wife, in her application, sought an order that the husband transfer to her a property at Z Town. That application was not argued at trial. There was no evidence directed to it and no submissions were made in relation to it. I cannot find that such an order is just and equitable.

PARENTING

In this portion of the judgment, the parents are referred to as “the mother’ and “the father”.
An Independent Children’s Lawyer (“ICL”) was appointed for the children.
The Court was assisted by a report from a single expert, Dr L who is a child and family psychiatrist. Dr L was cross-examined.
The mother relied on two affidavits sworn by her and two folders of documents which she referred to as a “Tender Bundle” comprising some 756 pages.
The father relied on two affidavits sworn by him and on an affidavit of his partner. He also relied on a Tender Bundle of 343 pages.
At the commencement of the trial, both parties were told that no regard would be had to any document in the tender bundles unless the document was tendered or otherwise specifically brought to my attention.
The central issue in the trial was the allegations of family violence made by the mother and the allegations made by the father of the mother’s inappropriate violent behaviour towards the children.
The mother, in her trial affidavit, gave a history of violent behaviour towards her by the father. In her interviews with Dr L she also gave a history of what she described to him as sexual abuse. There was little evidence in her affidavits in relation to the alleged sexual abuse but she cross-examined the father about the alleged incidents and tendered documents which she submitted were corroborative of her allegations.
The father admitted that there were two occasions on which he was physically violent towards the mother but it was his case that his actions on those occasions were occasioned by her violent behaviour towards him and his need to protect himself and the children. He denied sexual abuse.
It was the father’s case that, throughout the relationship, the mother had a history of emotional dysregulation, mood swings, “meltdowns” and physical violence. The father alleged that after separation, the mother was violent towards the children.
The parties jointly consulted a therapist, Ms EE in 2010. The mother ceased her association with Ms EE in October 2014 but the father has continued to consult her and Ms EE has interviewed the children. A report by Ms EE and her notes were in evidence. Also in evidence was a recording made by Ms EE of an interview with the children in May 2017. Ms EE was cross-examined.
The parties separated on 10 June 2014 after an incident of violence between them. The children were then attending a local private school.
Thereafter, the father alleges that on a number of occasions, he was required to intervene after having been contacted by the children complaining of the mother’s behaviour towards them.
In about the middle of 2016, the mother raised with the children her wish to relocate with them to Queensland so that she could assist with the care of her mother who had been diagnosed with dementia. In early 2018, the children were told that the mother no longer pursued the relocation application. However, the mother pursued the relocation application at trial although she wished to move to Brisbane where her mother was now living.
Towards the end of 2016, the mother unilaterally arranged to remove Y from the school she attended and to enrol her at an alternate school. The father informed the alternate school that he did not consent to Y’s being enrolled. This prompted the mother to make an application to the Federal Circuit Court. On 30 January 2017, the Federal Circuit Court made orders restraining the mother from removing Y from her school and providing for the children to live with the mother and spend six nights each fortnight with the father. Those orders were discharged on 8 May 2017 as having been made in error. It is not clear what arrangements then pertained to the children.
Ms EE made a written report to the ICL after interviewing the children on 16 May 2017.
In June 2017, the Federal Circuit Court made orders removing the children from the care of the mother. Thereafter, they have lived with the father. The orders provide for them to spend alternate weekends and a night in the alternate week with the mother. Orders were also made on that day for the children to be interviewed by a psychologist, Ms FF, and a report prepared.
Dr L interviewed the family in late October 2017 and prepared a report dated 7 November 2017. At the time of Dr L’s report, both children wanted to spend equal time with their mother and both said they missed her and wanted more time with her than they presently had.
The children spent time with the mother until Father’s Day in 2018 when X began to refuse to go with her.
At the time of the trial, Y was spending time with the mother in accordance with the orders but X was not. Y was expressing a wish to spend more time with her mother but X wished to spend most of his time with his father.
Distilled, the issues to be determined in the parenting proceedings were:
·    The mother’s allegation that the father was physically violent towards her.
·    The mother’s allegation that the father’s discipline of the children was excessive.
·    The father’s allegation that the mother was physically violent towards him.
·    The father’s allegation that the mother was physically violent towards the children.
·    The mother’s allegation that the father had so influenced X’s views that X no longer wanted to spend time with him.
·    The mother’s allegation that any difficulties in the children’s current relationship with her were directly caused by the father.
A further issue became apparent in the oral evidence of Dr L who expressed concern as to the effect on the children of the mother’s consistently negative views of the father.

PHYSICAL VIOLENCE BETWEEN THE PARENTS

The mother’s allegations of violence perpetrated against her are found in her trial affidavit, in her tender bundle and in the annexures to her affidavit in support of an Application in a Case sworn on 3 September 2018.
It is necessary to examine each allegation and the evidence which supports it against the father’s denials of all but two events. The mother bears the onus of proving, on the balance of probabilities, that the incidents occurred as she alleged.

November 2007

The mother alleged that, when she was pregnant with Y, the father “grabbed me by the throat and lifted me banging the back of my head up against the living room wall”.
The father deposed that, on that occasion, the mother “became angry and started hitting me and progressively became angrier and angrier and started screaming nonsensical sentences at me”. To stop her harming herself and the baby he physically restrained her by “grabbing her shoulders and trying to calm her down”.
The mother went out to a family function after that episode and there is no record of any complaint by her to anyone or of an attendance on her medical practitioner. The records produced by the mother’s general practitioner include a mental health plan dated 19 December 2007 where the presenting issue is stated to be “anxiety and depression”. The notes of the consultation make reference to “relationshil [sic] issues, getting emotional”.
I am unable to find that the father assaulted the mother on this occasion.

15 October 2011

The mother alleged that the father assaulted her anally, using a vibrator causing bleeding. There is no record of any medial attendance arising out of the alleged incident. The father denied that it had occurred.
I am unable to find that the father assaulted the mother on this occasion.

10 December 2011

The mother alleged that, after a family celebration at their home, when she and the father had been drinking, the father became angry with her, held her down by her throat, punched her and pushed her head down between the mattress and the bed head, causing injury to her forehead.
The father admitted that an incident occurred but he deposed that the mother was physically assaulting him and abusing him, “screaming, spitting, hitting, kicking and punching me”. He said that he held her down on the bed but did not hit or punch her. He left the room and returned to find her hitting her head against the bed.
In cross-examination, the mother denied that she had hit or otherwise been violent towards the father on that occasion but said that on other occasions there had been hitting “between us” and swearing, that they both participated and that the children had been present on some occasions towards the end of the relationship.
The next day, the mother attended the emergency department. It was noted that she presented complaining of an assault the night before. The doctor noted (as per the original), “Forehead rubbed hard with plank of wood. Hands forced around throat. forearm/hand across R) jaw while struggling.” The doctor noted that the mother’s forehead was swollen but her skin was not broken and that there was no other palpable swelling.
I am unable to find that the father caused the injuries to the mother’s forehead as she alleged or whether, as he alleged, they were caused by her head banging.
In cross-examination, the mother admitted a history of head banging, including an incident in 2007 when she banged her head against the window of the car during an argument and threatened to throw herself out of the car. The mother spoke with Dr L about a history of head banging and X told Ms EE about his mother’s head banging.

However, I accept that the mother was assaulted by the father on that occasion. Whether the father was assaulted by the mother on that occasion is not clear.

9 June 2014

The mother alleged that the father “Grab’s [sic] my throat with both hands and drags me to the bedroom on [sic] front of the children” in the course of an argument.
The father deposed that he arrived at the house with the children after driving back from the snow and the mother began screaming at him. He deposed that the mother “flew at me in a rage and attacked me, kicking, screaming, punching and throwing her arms around at me in front of the children”.
The father deposed that the children yelled at the mother to stop and that she “turned to the children and started screaming and hit both of them. I stepped in to restrain her and she lay into me kicking, punching and spitting on me”.
The father deposed that he said to the mother “I don’t know what to do about us but I know we can’t do this anymore. I can’t handle your meltdowns and neither can the kids”. The father left the home the next day and thereafter the parents lived apart.
I accept that each parent was assaulted on that occasion.

28 July 2014

On 29 July 2014, Ms EE noted after a consultation with the father:
Last night was horrific. I endedup [sic] wrapping my hands around [Ms Terrazas’] throat to get her away from the kids.
I can’t stay there : [sic] if she touches the kids in front of me, I will kill her.
I have removed myself from the home
I accept that the father admits having assaulted the mother on that occasion. The circumstances are further discussed in the context of the alleged assault by the mother of Y.
The father’s reference to the mother having “meltdowns” was a constant theme in both his affidavit evidence and his oral evidence.
On 5 August 2010, the mother wrote a letter to Ms EE by email in which she stated:
As mentioned, I have a few set of circumstances that just trip my ‘switch’ & I want to know how to change my automatic reaction as it happens so fast I can’t stop it even when really ready for anything (like this morning). I thought you could prepare some “antidotes” etc which I can start practicing [sic] on to change my behaviour permanently.
On 22 March 2011, Ms EE noted, after a session with the father:
Having been getting on famously; only a couple of meltdowns
Starting into a cycle – will pull it up … feels it won’t take much to tip her over
(As per the original)
In her report, Ms EE stated:
There have been many times when [the mother’s] overwhelm has resulted in her curled in a fetal [sic] position and the children having to contact their father to come and help.
…
On Monday 18 August 2014, I received a phone call from a very overwhelmed and distressed [mother] when she was staying at a motel in Sydney. She had already tried phoning [the father] but he would not let her speak to the children as they were already asleep. She had then phoned another professional acquaintance of them both asking “Are my children okay?” Her implication to me was that she wanted [the father] to be seen as a ‘bad father and partner’ by other people. By the time she phoned me she was hitting herself, screaming and hitting the furniture in the motel room. I attempted to assist her in calming herself even though she hung up on me several times and I had to phone her back. Eventually she settled down enough to her me and to agree that the children were obviously safe and asleep and that she should do the same. I also contacted [the father] and he confirmed that the children were safe and had been asleep since about 7.30pm.
Dr GG, the mother’s then treating psychiatrist, wrote a report dated 31 May 2017 in which he stated that he had been consulted by the mother for the first time on 9 January 2015, on a referral from her then, general practitioner. Dr GG stated that the mother had told him that on a number of occasions in the past, she had been subject to physical aggression from the father and that he had hit the children. Dr GG stated:
On the 31^st instant, I was shown an undated report by a psychologist by [Ms EE] I gather it is a recent report, but the date was not on the screen which contained the lengthy report.
Apparently [Ms EE] has seen [the mother] by herself, [the father] by himself and the children either by themselves or with one or the other parent, and so she would know the whole situation better than I do.
[The mother] freely admits that from time to time when overwhelmed, she has been inappropriately aggressive, but as far as I can see, this has never caused any significant harm to anyone.
…
She confirmed the reports made by [Ms EE] about her inappropriate anger towards the children of recent times.
Dr L reported:
[The mother’s] experience of emotional dysregulation was explored. She identified specific triggers which resulted in reduced frustration tolerance. This included a lack of sleep, caffeine, alcohol and hormonal changes. She had been particularly sensitive to the oral contraceptive pill and the Vagifem pessary. She had experienced irregular periods. A possible diagnosis of early menopause had been raised two years ago. This had been associated with mood swings. She recognised that she was more sensitive than other people to such hormonal changes. She had experienced deliberate self-harm with recurrent head banging in 2007. She also acknowledged that she had physically hit the children recurrently during 2013 and 2014 in particular. There had been subsequent occasions in March and May 2016. She described the circumstances of these interactions. This included having used a wooden spoon given her frustration regarding [Y’s] behaviour and non-compliance.
X spoke to Dr L about the relationship between his parents:
64. [X] remembered when his parents resided together, “it was pretty horrible”. He recalled an argument about whether the other parent would be invited to go out to dinner with the kids. He explained, “They argue about the pettiest of things. It’s just really stupid”. When asked if the arguments were ever scary, he responded, “When they lived together it was really scary. They were hurting each other. Hitting each other. It was pretty horrible”. He was fearful that “they would really badly hurt each other”. Although this never eventuated, “It was pretty bad”. After they separated, they had gotten married but then divorced. He viewed this as “pretty dumb”. Since the divorce, “It’s gotten better, but there’s been a lot more arguments about who gets the kids and about sport and everything”. When he used to live with his mum and see his dad every second weekend, “It was pretty bad so I started complaining but it wasn’t as good as I expected it to be” (referring to having moved in with his dad). “I missed Mum a lot more than I expected. I thought it would be so great but I miss Mum so bad. Mum was disappointed that we complained about our living arrangements”. He identified what he enjoyed about living with his dad, “We do a lot, plenty of sport, walk the dogs, kick a ball, soccer and footy. And it’s a lot closer to the school so there’s less stress in the mornings”, but complained that his father was “too sensitive, he shuts off. He has super high expectations”.
X told Dr L that “he had witnessed yelling, screaming and hitting.”
Dr L reported of his interview with Y:
When asked about her experience of living together with both parents, she told me it was pretty good but they had a lot of fights before they split up. They would yell at each other a lot. This had been scary and violent at times. She was hesitant in discussing this experience. She found this hard to talk about. [Y] explained, “When it happened, I thought about it for a month. Now I don’t think about it unless there’s another fight and then I think back”.
The mother’s admitted episodes of aggression and violent behaviour make it unsafe to assume that any violent episodes between her and the father were not, at least in part, provoked by, or exacerbated by, her behaviour.

PHYSICAL VIOLENCE BY THE PARENTS TOWARDS THE CHILDREN

The mother in oral evidence admitted that she had hit the children all the time in 2013 and 2014 as she had told Dr L. In cross-examination she said that, during this period, she had hit the children “almost daily”.
The mother was cross-examined about the incidents of violence towards the children. She generally admitted the allegations although there were instances where she denied specific events. For example, she denied having hit Y with a towel in February 2017, although she said that she had done so on other occasions. The tenor of the mother’s evidence in relation to her violent interactions with the children was that it was all in the past; that it had not happened recently and that it was the father’s fault.
The mother said on a number of occasions that, because she had admitted her behaviour, it should be treated as of lesser concern than the father’s behaviour towards her because he denied those allegations.
The father deposed:
In or around 1 August 2013, (while the parents were separated)… [the mother] had a serious episode involving the children in front of her mum [Ms Q], (herein referred to as “[Ms Q]”). I received a phone call in the afternoon from [the mother] saying “come and get the fucking kids”. I rushed over to the house and when I arrived I found [the mother] in foetal [sic] position in the lounge room hitting her head on the lounge lightly. The children and [Ms Q] were crying and couldn’t talk. I gave them a hug and calmed them down and gave [the mother] a hug to calm her down. The children and [Ms Q] told me that [the mother] had hit them both continuously and [Ms Q] was yelling for [the mother] to stop. I then got the children’s stuff together and took them back to my home at [Suburb R]. [X] later said to me “Mum was hitting her own head”.
There were also a number of occasions on which Ms EE made notes of complaints to her by the father about violent episodes between the mother and the children.
On 26 June 2014, the father sent an email to Ms EE stating:
[The mother] Smashed glasses and photo frames in the house.
Smashed metal stools against each other and then against kitchen bench. Yelling, screaming and swearing.
Kids came out beside themselves with crying and being scared.
[X] saw the broken photo frames of himself and told me it feels like that he’s now been cracked.
She then pulled out the sofa between the kids bed, kids got her a water and comforted her and then the three of them simply went to sleep!
During the day: according to [X] and [Y]:
Poured a glass of water on [X] during the day and then threatened to do it again but told him he would be licking up the water off the ground next time.
(As per the original)
The father deposed that he attended at the mother’s house after having been contacted by the children. Although he deposed that the incident occurred on a later date, this appears to be the same incident that was reported to Ms EE on 26 June 2014. The father deposed that the children told him that their mother had poured a glass of water over X and threatened to do it again but told him he would be licking the water off the ground next time. Their mother had smashed glasses and photo frames in the house in front of Y and X. The mother had smashed metal stools against each other and against the kitchen bench and yelled and screamed and swore at them calling them horrible names. The father deposed that X told him that when he saw the broken frames of the photos “it feels like that I’ve now been cracked [sic]”.
The father deposed that he calmed the mother down and that she went to bed in the children’s room and that the children comforted her until she fell asleep.
The mother admitted in cross-examination that she had thrown a glass of water across the table at X and said that she was embarrassed and ashamed by her actions. She said that she had been an awful mother then but was not now.
Ms EE saw the children shortly after that incident. She reported:
The first time the children saw me was when [the mother] brought them ‘to be sure they were still okay’. [Y] reported that [the mother] had thrown a glass of water across the table into [Xs] [sic] face (glass and all) because he had not responded to her appropriately. [X] was uncomfortable about the disclosure and said that ‘he [sic] deserved it because he hadn’t done what mum said.” Otherwise the children did not want to disclose anything about either parent. I assured the children that bad behaviour was not acceptable and it was okay for them to tell an adult. I also told them that they should phone their other parent if they were ever scared of either parent. I subsequently informed [the mother] that her behaviour towards the children was unacceptable and bordering on reportable, to which she showed understanding and some level of remorse.
The father deposed to an incident on 29 July 2014. Having regard to the records of Ms EE, it is likely that the incident occurred on 28 July. He deposed that the mother refused to give Y afternoon tea and withheld kisses and hugs from Y. When Y got upset, the mother started hitting her with a tea towel. X tried to defend Y and then the mother screamed at X “your father didn’t want you born and he’s not your father”. The father said he ran down the hallway and grabbed the mother who was holding Y down and Y was screaming for help. The mother then lay on the floor in a foetal position. The father on that occasion removed the children and himself from the home.
On the morning of 29 July 2014, the father sent a text to Ms EE stating “Morning. After a night from hell I have removed myself from my family. It’s better for the kids and safer for [the mother] and myself. It’s over and I’m never going back …”
Later that afternoon, the father sent a further text to Ms EE which stated:
I think I might get [Y] to live with me even by a court order if I have to. Not ideal ( horrific) [sic] splitting up siblings but I think saving one soul is better than none. It’s going to be a split family from now on anyway. Just my initial thought. Happy to deal with [the mother] through you as an intermediary but there will be no reconciliation so let’s not all waste our times [sic].
On 29 July 2014, Ms EE noted that the father told her:
Yesterday: she rang saying come home – the kids are being horrible. I got in the door, and the kids were in shock …
[X] told me what was going on: dispute re homework, then [Ms Terrazas] whipped [E] with a teatowel. She had also given [X] afternoon tea, but [Y] was not allowed to have any.
[Ms Terrazas] was distraught that [Y] had provoked it.
[Ms Terrazas] then came back out and started making excuses
[Mr Daly]: We are the parents – the kids are not responsible. She took it on, then she went and curled into fetal position in the lounge room.
I went and tried to sooth her, but she got up and started getting stuck into me. I got the kids and tried to sooth them.
She came over to me and I thought she was going to hit me (at the kitchen bench). I said don’t come anywhere near me, or the kids… she then walked down the hallway.… she was ripping into me again and [X] came near her, and she then screamed at [X] centimetres from his face, saying that [Mr Daly] didn’t want him to born and that [Mr Daly] didn’t believe he fathered [X] (screaming into his face). She then started accusing me of burning down [a property].
I went in and put a jacket on, and was about to leave and I thought about the kids. I heard [Y] say “Mummy don’t” and I thought she was hitting the kids. I grabbed [Ms Terrazas] in as controlled a manner as possible … dragged her down the hallway and threw her on the bed .… Get away from the kids.
The kids have seen me do that to their mother … and it’s horrific … I wanted to leave and [Y] was scared and didn’t want me to go…
(As per the original)
Ms EE noted that the father was sobbing and distraught.
On Sunday 15 February 2015, the father deposed that he was on the way to collect the children for swimming and received a phone call from the mother saying “I had to smack [Y] over and over again until she was red raw”. The father deposed that when he arrived at the mother’s home he heard the mother yelling at the children and saying she had thrown Y’s clothes and lunch on the floor. The father collected the children and on the way to swimming in the car, Y told the father that the mother had had another episode and had yelled at and smacked Y repeatedly.
The mother denied that she had used the words “until she was red raw”.
On 16 February 2015, the father deposed that Y rang him sobbing, saying that “Mum locked me in the back of the house and won’t let me back in with her and [X]”. The father collected Y and Y stayed with the father until the following Monday when he took her to school.
On 12 March 2016, Y rang the father and said “Mum is hitting and yelling at me and was pulling my hair”. Y said “I’m outside the house and didn’t want to go back in to get belted again”. Y asked the father to come and pick her up as she was frightened. The father rang the mother and the mother said that Y had been misbehaving but that everything was now okay. The father drove to the mother’s house to calm her down and check on the children.
In cross-examination, the mother denied that she was angry with Y, that she hit Y or that she pulled her hair.
The father deposed that on 23 March 2016, he and Y were in the car together on the way to basketball and Y said to him “Mum showed me a photo of her with a bruised face”. Mum said “You did that to her”. Mum also said “When she was pregnant with me, you used to beat her all the time and drag her by the hair down the hallway.”
In late March 2016, the father deposed that the mother telephoned him and said “I’m having trouble with Y can you come and get her for a week”. The father went straight to the mother’s home and collected Y. Whilst Y was in his care, at that time she came out of the shower and he was helping her to get dressed, he noticed a huge bruise on her left leg and lower back and asked how it had happened and Y said “that’s where mum hit me with the wooden spoon.” The father deposed that, later on that day, he asked what had happened. Both Y and X started to tell him that the mother had had one of her “episodes” and had hit Y uncontrollably with the wooden spoon. Y said “Mum got the idea to use a wooden spoon off one of the mums [sic] at church.”
The mother did not refer to hitting Y with a wooden spoon in her affidavit. However, it was the subject of cross-examination by counsel for the father. The mother said that she had been advised by a church member to use a wooden spoon to discipline the children and that she had only used it once when she hit Y.
The mother said that she was driving the children to the airport. X was sitting in the front seat and Y was sitting in the back, teasing X. The mother had taken the wooden spoon with her in the car. She admitted that she had done so in anticipation of using it to hit one or both of the children. She hit Y a number of times while she was driving.
The mother said that she had not hit Y on her back because she was only able to reach Y’s legs from the driver’s seat of the car. She said that Y had used her hands to block the hits and that Y had been hit on her hand and her leg. She denied that she had been out of control on that occasion. She said that this was the only time that she had hit Y with a wooden spoon.
She disputed the father’s description of the bruising but did not dispute that Y had bruising from being hit.
The father deposed that a few days later, on the following Wednesday, both he and the mother attended to watch basketball. X went home with the mother and Y with the father. On the drive home the mother telephoned the father and told him that he was coming to get Y. The father said he would not permit her to take Y and that if she came to his house he would call the police.
The father deposed that approximately 8pm, the mother turned up at his house screaming for him to let her in. The father deposed that the mother hit the windows and doors. He refused to let her in and called the police.

The mother wanted the name of the school attended by the children, whether in Brisbane or in Region LL, to be suppressed and the father to be restrained from contacting the school so that he could not manipulate the school, presumably to instil negative views about her. In her cross-examination of Dr L, the mother conceded that her position was not practicable.
She saw no negatives in her proposal to change the children’s school in the middle of 2019. She was confident that they would form new friendships, find new sporting teams and adjust well. She based that opinion on conversations with parents whose children had changed schools. She conceded in cross-examination that the children’s lives would be turned upside down. She did not think they would be distressed. The mother said that a therapist could tell X that he would be a more positive person if he spent less time with his father which was her own genuinely held opinion.
The mother had told the children that she was not pursuing the relocation application. She did not appear to envisage any difficulties in telling the children, who were not aware that she was now making an application for relocation that they would be moving away from their father and she suggested that she would tell them that the move was in their best interests.
In his oral evidence, Dr L expressed particular concern about the mother’s attitude towards the father. In cross-examination by Counsel for the father, Dr L said that the mother’s attitude towards the father was evident both in her presentation to him and in her most recent affidavits. Dr L said that it would be beneficial for the children if the mother recognised and acknowledged that the children have a loving relationship with the father and that he has a committed approach to them. Dr L said that the mother’s attitude towards the father:
…does raise the possibility that the more that happens, the more distressed and confused and possibly angered that [Y] would become. And it may actually precipitate further difficult interactions between [Y] and her mother, should the mother take that course of action.
Dr L said that, even if the mother’s allegations about the family violence she experienced from the father are accepted, the children should live primarily with him.
Dr L was also concerned about the mother’s inability to control her behaviour with the children. He said that such behaviour creates the potential for physical abuse and that yelling and screaming is not an effective tool, but rather has the potential to escalate the situation. This is problematic for children’s development. Dr L said:
It would be problematic in many aspects of the children’s relationship with their mother and, indeed, it would be likely to reinforce the possibility of further episodes of such behaviour, because the children would know that if there was anything that they didn’t like in the mother’s household, all they would need to do is to demand to ring their father. The mother would likely to become more reactive in that situation. The children would be more empowered to be more oppositional and the children would get away with whatever it was, even if there were reasonable issues that the mother were to discipline – disciplining the children with regard to. And so that would be counter-productive in many aspects from a behavioural management point of view. As the children become older, they do have greater capacity to identify their experience. The children are aware of their rights. They have been provided with safe spaces where they can address their concerns, whether it be at school, whether it be with therapists, whether it be with members of both sides of their family. I do not view the circumstances that have occurred to date, or would be likely to occur further, as being of such severity that either parent should be supervised while the children are in their care, or that the children require additional safety mechanisms to be put in place.
Dr L was critical of the mother’s proposal to take the children to Brisbane. In answer to questions asked by her in cross-examination he said:
…it fails to understand the importance of stability in the children’s lives, the importance of stability in their day-to-day routine, at home, at school, in both households, the importance of their relationship with their father, with friends, with maintaining, … structures within their day-to-day life.
The mother proposed to change the children’s schools, even if they remained living in Region LL, and she would enrol both children in a school of her choice which she believed would be a more appropriate school for Y. In cross-examination, she said that X would change school, despite his acknowledged wish to stay where he was. She did not appear to envisage that this would create any difficulties between herself and X and her justification was that she, herself, had changed both schools and countries when she was 16.
The mother’s ability to provide for the children’s emotional needs is severely hampered by her persistently negative views about the father and her own inability to recognise the part that she has played in the distressing and dysfunctional events of these children’s lives.
The father’s physical capacity to care for the children, having regard to his recent diagnosis of Parkinson’s disease, was raised in the proceedings. The father in cross-examination said that he had experienced very beneficial effects from a regime of medication and that his tremors had subsided. The father’s treating neurologist, Dr MM, provided a report stating that the father’s symptoms have responded well to medication and that the father had the capacity to drive a vehicle. Dr MM said that it is entirely possible that the father would remain free of adverse effects from the disease “for a long time”.
I do not consider that the father’s illness is such as to affect his ability to care for the children’s day to day needs.

(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;

The mother is from Country NN and the children have extended maternal family in Europe including uncles, aunts and cousins.
The father gave evidence that he is keen for the children to speak Country NN and have European passports and to take advantage of their maternal cultural heritage and all of the opportunities that might bring.
In the past, the children have travelled regularly to Country NN with the mother in the European summer. They should continue to do so and the father proposed no obstacle.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

Each of the parents has demonstrated commitment to his or her responsibilities towards the children, according to their respective capacities.

(j) any family violence involving the child or a member of the child's family;

Family violence is a significant issue in these proceedings and has been considered in relation to all of the allegations of each of the parents.

(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;

If orders were made that required X to live with the mother or to spend alternate weeks in her care, it is likely that X would refuse to comply and that the father would be unable to compel him to do so. In those circumstances, further proceedings would be almost inevitable.

CONCLUSION

I accept the evidence of Dr L that the children should live primarily with their father.
In so doing, I place the greatest weight on the mother’s inability to accept that the children’s experience of their father is different from hers and her entrenched negative views about him. I also place significant weight on the mother’s history of volatility and emotional dysregulation and the effect of her behaviour, during those outbursts, on the children.
The arrangements for them to spend time with their mother should be different and the orders will provide for X to spend alternate weekends with the mother and for Y to spend five nights each fortnight with her.

RELOCATION

Having determined that the children should live primarily with the father, I am not required to give separate consideration to the mother’s application to relocate their residence to Brisbane.

PARENTAL RESPONSIBILITY

The presumption that it is in the interests of the children that their parents have equally shared parental responsibility has been rebutted by the findings that have been made in relation to family violence.
Each parent seeks an order for sole parental responsibility for the children. In addition, the father sought to restrain the mother from taking X to church services. It is not clear whether he abandoned that position in final submissions. For abundant caution, I decline to make that order. When X is in the care of the mother, she will determine what activities he enjoys. The mother must understand, having heard the oral evidence of Dr L and the discussion around this issue in the course of the trial, that if she insist that X engage in an activity that he resists, he is of an age where he is likely to take matters into his own hands and refuse to spend time with her.
Since the children will live primarily with the father, he will have sole parental responsibility for them. He will therefore have the right to make the major long term decisions for the children which are defined in s4 of the Act in the following terms:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(M) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
In relation to religion, the children have been baptised in a Christian faith. There is no proposal by either parent to change their faith. I do not consider that the father’s parental authority extends to the denomination of the church the children, or either of them, attend with the mother provided that the denomination is Christian.
The father will be required to consult with the mother and advise her of decisions.

ANCILLARY ISSUES

The ICL and the father seek an order that X’s weekend time with the mother ends at 9am on Sunday. I do not propose to make that order.
The intention of the father and the ICL is that X not be made to attend church with the mother. As I have earlier explained, the mother can determine what X does while he is in her care and it will be up to her and X to negotiate how and where he spends his time while she is at church.
X’s alternate weekend time with the mother will end on Monday morning when the mother takes both children to school.
I do not propose to make an order that X spend time with the mother in the second week of the fortnightly cycle but he should be allowed to do so if he wishes.
The ICL proposes that Y spend week about time with each parent. The father proposes that Y spend five nights each fortnight with the mother in one block.
I am conscious that Y has said that she needs to see her mother every week and the orders will provide that Y spends time with her mother in the first weekend of each fortnight from Thursday after school until Monday morning and in the second week from Thursday after school until Friday morning.
There is a dispute about the children’s communication with the other parent. The father and the ICL propose that the children be free to communicate with the other parent at any reasonable time. The mother wishes to restrict their access to the other parent to specified nights and times.
These children have had mobile phones for some years and have access to iPads and computers. It is unrealistic to attempt to restrict their communications. In the past, the children have called their father when they felt unsafe in the mother’s home. They may be reluctant to spend time with her if that line of communication is not available to them.

I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 December 2018.

Associate:

Date: 4/12/2018

[2018] FamCA 1012

4 December 2018

Key Legal Topics

Areas of Law

Family Law