Thomsett and Schroffler

[2013] FCCA 1558

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMSETT & SCHROFFLER [2013] FCCA 1558

Catchwords:
FAMILY LAW – Parenting – supervised time – sole parental responsibility.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 65DAA

Evidence Act 1995 (Cth), s.140

Briginshaw v Briginshaw (1938) 60 CLR 336
MRR v GR [2010] HCA 4

Applicant: MR THOMSETT

Respondent: MS SCHROFFLER

File Number: BRC 10454 of 2011

Judgment of: Judge Howard

Hearing dates: 26 & 27 March and 20 August 2013

Date of Last Submission: 20 August 2013

Delivered at: Brisbane

Delivered on: 9 October 2013

REPRESENTATION

Counsel for the Applicant: Ms S Quinn

Solicitors for the Applicant: Rhonda Sheehy & Associates

Solicitors for the Respondent: In person

Counsel for the Independent Children's Lawyer: Mr M Green

Solicitors for the Independent Children's Lawyer: Parker Family Law

ORDERS

1. That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 16 October 2013.

2. That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 23 October 2013.

3. That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10454 of 2011

MR THOMSETT

Applicant

And

MS SCHROFFLER

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant father was born on (omitted) 1980.

2. The Respondent mother was born on (omitted) 1972.

3. The parties commenced cohabitation in 2001 and separated on a final basis in November 2010.

4. The parties have two children – X born (omitted) 2003 and Y born (omitted) 2005.

5. The parties have been unable to agree in relation to parenting arrangements for the children.

6. Since approximately June 2011 the children have been living with the father.  The father seeks permission for the children to remain enrolled at the (omitted) State School and further – the father seeks an order that the children remain living in his full time care.  The father seeks an order that the children in fact reside in the (omitted) area.  The father seeks an order that the children spend supervised time with the mother approximately once per month at a contact centre – at (omitted), (omitted) or (omitted) (depending upon availability).

7. The father had been previously living with the paternal grandmother in (omitted).  There was in place an order requiring the children to remain enrolled at the (omitted) School in (omitted).

8. Clearly, this arrangement was subject to the paternal grandmother continuing to agree to allow the father and the children to live at her residence in (omitted).  The father and his mother have had a falling out.  I accept the father’s evidence that he and his own mother have had a falling out in relation to differing parenting styles.  I accept that it was reasonable for the father to move the children’s residence to his own father’s residence in (omitted), Brisbane.  The father and the children in fact are now living part time at the paternal grandfather’s residence in (omitted) and part time at the father’s new partner’s residence at (omitted).  Her name is Ms B.  Her surname has not been provided – I will refer to this later in these reasons for judgment.

9. Once it was no longer possible for the father to live at his mother’s residence in (omitted) – it seems to me that it became impractical for the father to continually go back to (omitted) to take the children to school each day – noting, as I do, that the father’s employment is based in the (omitted) suburb of (omitted), Brisbane.  I consider that it was reasonable for the father to move residence and it was reasonable for the father to move the children’s school.  Prima facie, he has been in breach of the Court orders – but – in my view he has a reasonable excuse.  The father wants to move to live permanently in (omitted) with his new partner.  The father (and his immediate family including the two children) had been hoping to move or gravitate towards the (omitted) suburbs.  That of course is subject to the permission of the Court.  That is one of the purposes for this final hearing.

10. The mother would like to see an outcome where the children live primarily with her in (omitted).  The mother certainly sees no need for supervision of her time with the children.

11. The Independent Children’s Lawyer obtained a family report from Mr B.  Indeed Mr B provided two reports – one in May 2012 and another report in June 2013.  The proposal put forward on behalf of the Independent Children’s Lawyer is that the children should live primarily with the father and spend time with the mother supervised once every three or four weeks.  The time should be supervised by the maternal grandmother and/or her partner, Mr C.  The maternal grandmother and Mr C live just outside the town of (omitted), Queensland.

Section 60CA

1. In deciding a parenting dispute the Court must have regard to the various applicable sections of the Family Law Act.

2. Section 60CA of the Act states:-

   “SECTION 60CA  CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER

   60CA    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 60CC

1. In determining what is in a child’s best interests the Court then must have regard to s.60CC of the Act. The primary considerations set out in s.60CC(2) and they are as follows:-

   “Primary considerations

   60CC(2)    The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

2. Mr B has concluded that both children have a close and loving relationship with both the father and the mother.  The children’s relationship with the mother is being tested at the moment.  The current orders provide for the mother to spend supervised time with the children at the contact centre in (omitted).  The mother has not seen the children since February 2013.  The mother’s excuses for this are many and varied.  Her main excuse relates to her health.  The mother told the Court that she has been suffering from “vertigo virus”.  The mother has said this impacts upon her ability to travel in a motor vehicle.  But the mother also gave evidence that her new partner (Mr K) drives her regularly from his property at (omitted), Queensland to the mother’s residence at (omitted), (omitted).  The mother gave evidence that she lives part of the week at (omitted) and part of the week at (omitted).  I had the impression from the mother’s evidence that Mr K is willing to drive the mother to any place the mother wishes to go.  The mother seems to have been well enough to travel between (omitted) and (omitted) – but does not seem to have been capable of getting herself to the (omitted) Contact Centre.  The mother has a willing partner in Mr K – that is to say willing to drive her to the Contact Centre. 

3. Indeed there have been eight occasions this year when the mother’s time with the children at the Contact Centre has been cancelled.  On six of those occasions the time was cancelled by the mother.  The father cancelled one occasion when he was moving house.  In my view that was reasonable.

4. The father cancelled one other occasion on 1 June 2013.  On that occasion the father had been in telephone contact with the staff at the Contact Centre.  The staff at the Contact Centre had told the father that they had not been able to reach the mother by telephone and therefore had not been able to confirm with the mother that she will be attending at the Contact Centre on that day.  The father gave evidence about this issue.  I accept the father’s evidence.  The father told the Court that on Mother’s Day 2013 he had driven the girls for more than two hours from their place of residence up to the (omitted) Contact Centre.  When they were only 15 minutes from the centre the father received a telephone call from the Contact Centre staff informing the father that the mother had just told the Contact Centre that she would not be attending.  The children had Mother’s Day presents for the mother with them in the car.  The children were very upset.  Indeed, the children were disappointed to the point of being distraught.  I can fully understand why the father decided not to risk putting the children through another similar experience.  Without the mother having confirmed her attendance at the Contact Centre – if the father had set sail with the children for (omitted) once again – there is a very high likelihood the children would have been – once again – disappointed.

5. In addition, I note that the mother failed to see the children between March and September 2012.  If the mother is to maintain her meaningful relationship with the children – she must put more effort in.

6. The father had been, on occasions, using a strap to belt the children on the back of the legs if they, in his view, had deserved such discipline.  The father no longer uses that approach.  The father has obtained counselling for the girls and for himself.  The father is enrolled in a Triple P Parenting Course.  Clearly it is not appropriate to use a strap on the young girls.  There are other more constructive methods of disciplining young children.  I accept the father’s evidence that he has changed his views and approach in this regard.  The final orders must reflect that both parents have to complete a parenting orders program which will include a Triple P Parenting component.

7. The mother maintains that the father – after the time the parties were separated – had held one of the children under the bath water because she needed to wet her hair.  The hair needed washing because of a nit problem.  The mother produced photographs late on the afternoon of the last day of the hearing – that seemed to show some redness in or about a child’s shoulder region.  The father denies holding the child’s head under the water.  I accept the father’s evidence.  The mother in fact did not see this occur.  She has included hearsay evidence in her affidavit.  In view of the seriousness of the allegation of holding a child’s head under the water inappropriately – I am not prepared to make an adverse finding against the father in that regard.

8. Section 140 of the Commonwealth Evidence Act 1995 (Cth) states:-

   ““140. Civil proceedings: standard of proof

   (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a) the nature of the cause of action or defence; and

   (b) the nature of the subject-matter of the proceedings; and

   (c) the gravity of the matters alleged.”

9. I also note in particular what Dixon J had to say in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362:-

   “except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.  Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on material of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”

10. It may well be the case that the redness on the child’s shoulder had been caused by a parent  holding onto a child in order to wash the child’s hair – in view of the nit situation.

11. It is clear enough from the father’s own evidence that he has, at times, used a strap to discipline the children.  That is not appropriate and I made comment in that regard during the course of the evidence.  It is equally apparent that the mother has inappropriately smacked the children.  The child X had informed an independent person that the mother’s smacks really hurt.  The subpoenaed material contains references to inappropriate discipline methods employed by the mother.

12. There is a reference to the mother’s older child, Z.  At one stage there was an allegation that Z had raped his sister A.  There was a further allegation that Z had inappropriately touched the child X.

13. In the absence of clear and definite admissible testimony in relation to these issues, the Court is not in any position to make findings concerning those matters.  This is the conclusion I have reached concerning the mother’s allegations referred to in paragraphs 20, 23, 24 and 25 herein.

14. As to the question whether Z would be an acceptable risk around the children – I note that the children are older and are now living primarily with the father.  I do not consider Z to be an unacceptable risk to the children.  I note the mother’s evidence that – even when the children are with her – she will ensure they are safe.  Even though the mother does not accept that Z acted inappropriately at any time – the mother nonetheless pointed out that it is just as well (so far as children are concerned) to be wary when anyone is around.  In view of that evidence from the mother, I do not consider Z to be an unacceptable risk.

15. There was also a reference in the evidence to the father’s own grandfather having required the father (at a young age) to have sexual intercourse with his own sister.  The father has denied this.  I accept the father’s evidence.  There is no credible evidence to suggest that this is true.

16. Generally speaking – the mother was an unconvincing witness.  To the extent that there is any discrepancy between the mother’s evidence and the father’s evidence – I accept the evidence of the father.  I came to the conclusion that the father in fact was a credible witness.  He has some difficulties communicating and is clearly very, very frustrated with the mother’s inability to get her act together and spend time with the children.  The father’s frustration comes about because he can see first-hand how desperately disappointed the children are when the mother fails to attend contact with the children.  To the extent that the mother has made any allegations against the father concerning abuse of any kind – unless I have specifically made reference in these reasons for judgment to such allegations – I have come to the conclusion that her allegations ought to be rejected.

17. Mr Green, counsel on behalf of the Independent Children’s Lawyer, made the point that the references to family violence in the evidence are all historical.  I am satisfied there is no ongoing risk of injury, abuse or family violence in relation to these children.

18. There are undoubtedly health issues which confront the mother.  The mother gave evidence as recently as three weeks ago she stopped breathing in her sleep – and it was only because her partner was with her that he woke her – and all was well.  The mother agreed in evidence that if she had been alone with the children there could well have been a serious problem for the children.

19. The additional considerations are set out in s.60CC(3).

Section 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.

1. In his most recent family report – Mr B interviewed the children.  He relevantly states:-

   “25. The father informs that X continues to do very well at (omitted) School in Grade 4.  She is more confident now, although she still has a habit of sneaking food.  She is enjoying swimming lessons, and is a lot more involved in her classwork.  She has a guinea pig.  X was attending counselling at (omitted) with Ms S.

   26. Mr Thomsett acknowledges that X “misses mum terribly, gets heartbroken when visits are cancelled”.  Six of 11 were cancelled at Harmony House (omitted), whereas two have been cancelled at (omitted), (omitted), with the mother having last seen the girls in February 2013.

   27. The father confirms that Y is in Grade 3 at (omitted), that she remains “a bubbly, vibrant child”, who is very outgoing, loves to dance and sing, is affectionate.  Y is looking forward to her father’s household merging with that of Ms B’s.  Y is very sports-oriented and is an outdoors, energetic child.

   28. The father informs that the sisters continue to be “chalk and cheese”, but they get on really well and support each other/look out for each other: “you will never separate those kids”.

   29. In the father’s/grandmother’s household the girls showed the writer elaborate Mother’s Day presents they had prepared for their mother, whilst sadly informing that they had not seen her in order to give mum those presents.  They talked of an unsatisfactory Christmas Day phone call from their mother and maternal grandmother.

   30. The girls confirmed that they like Ms B and her children, and think that it is a good idea for the households to merge except that X loves (omitted) School and would prefer to go to a (omitted) School in (omitted) if they are to move there.  Having visited the (omitted) State School, X is able to acknowledge that it is a relatively small school, that she has no huge objections to going there, just a preference for the (omitted) Education system, given her positive experience in (omitted).

   31. Both girls appeared to be more confident and more together than previously.  Both were well spoken, bright and healthy of appearance.  They communicated well as a unit, with X more able to speak on her own account now.

   32. When the prospect of some holidays with Aunt Ms L was discussed, the girls indicated fond memories of her whilst holding some reservations regarding recent contact with their maternal grandmother at Christmas.”

   I accept that the father had a falling out with his own mother (as noted before).  This necessitated the father moving the children from the (omitted) school.  In addition – I note the father’s evidence from March this year to the effect that he was under considerable financial pressure – and could not afford to continue paying the school fees in any event.  I accept this evidence of the father.

2. Whilst I note that X had said that she quite enjoyed the school at (omitted) – I also note that she is more confident and I note that the girls like Ms B and her children.  It should be noted that one of Ms B’s children attends the (omitted) School and Ms B attends at that school to assist.

Section 60CC(3)(b) – the nature of the relationship of the child with:-

1. each of the child’s parents;  and

1. other persons (including any grandparent or other relative of the child).

1. I have already made some comments in relation to this issue.  Each child has a close and loving relationship with both parents.  But the difficulty concerning the mother’s relationship with the children is the fact that she has not seen them since February 2013.  Further, as noted earlier, there was a six month period during 2012 when the mother did not see the children.  To the extent that the mother has failed to spend time with the children – I have come to the conclusion that it is a combination of factors.  Poor planning by the mother; a lack of motivation by the mother and, on occasions, illnesses suffered by the mother.  The precise nature of the mother’s illnesses remains something of a mystery – but I accept the evidence of Mr B that the mother certainly did not appear to him to be well.  There is some medical evidence contained in the mother’s evidence but there is no conclusive up-to-date evidence concerning the mother.  I do accept that the mother has, on occasion, suffered from some form of debilitating illness – the precise nature which remains reasonably unclear.  I do not accept the mother’s own testimony that she is now completely well.  There is no medical evidence to confirm that whatsoever.  Indeed the mother told the Court that she is supposed to go for an MRI scan but has not had one yet.

1. Notwithstanding all those difficulties, the children do love their mum and “want to see her”.

2. There is no doubt that the children have a close and loving relationship with their father.  The children are fond of Ms B and her children.

3. The children also have a close and loving relationship with the paternal grandmother and I hope that the father’s rift with his own mother can be healed very quickly.  The children also, clearly, have a close relationship with the extended paternal family and this is all the more reason why the father needs to heal that rift quickly.

4. There is nothing to suggest that the children would not have a good relationship with the maternal grandmother.  The children haven’t seen their older half-siblings (A and Z) for quite some time.

Section 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.

1. I’ve come to the conclusion that the father is willing and able to facilitate and encourage the children’s relationship with the mother.  He has tried consistently to get the children to the Contact Centre to see the mother.  The father acknowledges the importance of the mother to the children.

2. The mother does acknowledge the importance of the father’s role with the children.  But if the children were in the mother’s care I am not confident of the mother’s ability to facilitate the children’s relationship with the father.  The mother is not even able to facilitate her own relationship with the children – let alone facilitate anybody else’s relationship with the children.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents; or

1. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. At this point in time the children are living in the (omitted) of the State ((omitted)/(omitted)).  The mother lives in (omitted).  There are no particular changes contemplated in the children’s circumstances that would alter the current status quo so far as this subsection is concerned.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Noting that the children live in the Brisbane/(omitted) area and the mother is in (omitted) there will always remain some practical difficulties and expenses.  Neither parent has any intention of moving closer to the other parent’s residence.  Nor, in my view, should they be required to do so.

Section 60CC(3)(f) – the capacity of:-

1. each of the child’s parents; and

1. any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

1. I have no doubt that the father has the capacity to provide for the children’s financial, emotional and intellectual needs.

2. I am not convinced that the mother has the ability to provide for the needs of the children.  The mother gave evidence that she could no longer travel from (omitted) to the (omitted) Contact Centre – because even though she may have had sufficient money to make her way to (omitted) to spend time with the children – she would then have to spend a week in (omitted) to wait for another welfare payment before she could travel back to (omitted).  I must say – this does show to the Court the mother’s inability to plan and make provision.

3. As to the children’s emotional needs – the mother has remained distant from the children for quite a long period of time this year (and indeed last year).  I do not consider that the mother has the insight to realise how emotionally upsetting this is for the children.  The children’s upset in this regard has been particularly noted by Mr B.

Section 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.

1. There are no particular issues in this regard that require findings to be made.

2. Section 60CC(3)(h) is not relevant.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The father has an excellent attitude towards the children and to the responsibilities of parenthood and this has been demonstrated by his actions.  He gave up his job in the (omitted) industry so that he could be a full time parent for the children in (omitted) Queensland.

2. The mother, on the other hand, has drifted away from the children and this appears to be the case not only in terms of kilometres but also emotionally.  The mother has not taken all reasonable steps to ensure she spends time with the children.  I have made earlier references to these facts in these reasons.

3. As to s.60CC(3)(j) and (k) I have already made findings and references to the issue of abuse and family violence earlier in these reasons for judgment.

Section 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.

1. This subsection is relevant in this case.  I have come to the conclusion that there should be an order for sole parental responsibility in favour of the father.  These parents are unable to communicate.  These parents are not able to agree on any significant issue concerning the children.  Accordingly, if there was not an order for sole parental responsibility then – I agree with the submission made by counsel for the Independent Children’s Lawyer – that the matter is likely to have to return to Court.  In those circumstances I have come to the view that it is the father who is best placed to make the important decisions for the children.  There should be a requirement that there be consultation in writing (email) between the father and mother prior to decisions actually being made.  The father will have the final say.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. There have been various allegations of drug taking.  I accept the father’s evidence that he consumed marijuana when he was a teenager. 

2. As to the mother’s drug use – it is apparent that the Independent Children’s Lawyer tried to obtain random drug testing results from the mother.  One of the samples provided by the mother was diluted.  There is no adequate explanation from the mother in this regard.  The mother says that she only started to use marijuana after her father and her step-father died.  The mother is adamant that she did not ever let the children see her using drugs.  I really cannot be sure if this is true.  I have come to the conclusion that the mother’s evidence is unreliable.  I have come to the conclusion that the mother really would not know whether or not the children witnessed the mother’s drug usage.

3. As noted, the mother has ongoing health difficulties.  There has been no adequate up-to-date health medical evidence produced by the mother to assist the Court.  What the Court does know is that the mother has suffered from vertigo and some condition which causes her to stop breathing in the middle of the night – whilst sleeping.  The mother says this apparently is not sleep apnoea.  But there is no medical evidence to say exactly what is causing the mother to stop breathing in the middle of the night.  There was no adequate explanation from the mother as to why she had not been for a follow up MRI scan as apparently suggested to her by her medical practitioner.

4. Mr B had the opportunity to interview the father’s new partner Ms B.  He formed a favourable impression.  I accept the evidence of Mr B in relation to Ms B and I accept that Ms B will be an appropriate person to care for the children whilst the children are living with the father.  It is clearly in the children’s best interests to live with the father on a full time basis in Ms B’s household in (omitted).  It is also in their best interests to attend the (omitted) school. 

5. I note what Mr B had to say concerning the mother – he noted at paragraph 39:-

   “39. The mother’s approach is hard to decipher when in one breath, Ms Schroffler states that her health issues preclude having the children with her fulltime, whilst in the next she seems to be expressing a wish that X and Y come to live with her and rails against the circumstances surrounding the father assuming care of their daughters.  From the writer’s viewpoint, the profile and presentation of the mother are sufficiently concerning as to realistically rule her out of being a long-term carer – especially as the father has stepped into the breach, albeit with assistance, and has provided stability for the girls.”

6. I accept Mr B’s opinion.  The mother does have to be ruled out as a long term carer for the children.

7. Mr B told the mother on the telephone that he was considering visiting her property and the property of her partner.  But Mr B adequately explained in evidence that he decided not to do that once he had visited the maternal grandmother’s partner’s property.  It was apparent to Mr B that the mother needed supervision.  It was also apparent to Mr B – after interviewing the mother and her partner and the maternal grandmother and Mr C – that Mr C and the maternal grandmother would be the appropriate supervisors.  Mr B did not form a favourable impression of the mother’s ability as a parent.  Mr B did not form a favourable impression of Mr K – who seems to accept everything that the mother says – at face value.

8. Having formed his views in relation to the mother and her partner – I consider that it was reasonable for Mr B to decide not to visit the mother’s premises and also to decide not to visit her partner’s residence.

9. It is apparent that the maternal grandmother and Mr C will be appropriate supervisors.  They are willing and able to do so.  I accept the evidence and opinions of Mr B in this regard.

10. It will be apparent that I also accept that there is a need for supervision.  The mother’s unexplained medical difficulties and her “profile and presentation” – as identified by Mr B – have led me to conclude that the mother does require supervision.

11. I note Mr B’s conclusions from page 16 of his final report:-

    “ CONCLUSION

    48. It is respectfully concluded that X and Y ought to live with their father for the long term, and that he ought to be released from geographical restrictions forthwith, whilst retaining an obligation to transport the girls to and from (omitted) at (omitted) for changeovers.

    49. It is recommended that contact between the girls and their mother be supervised by the maternal grandmother and her partner and that contact be based at the home of Mr C or other place of their choosing.  In addition, there ought to be the possibility of once a year holiday with maternal Aunt Ms L, with Ms M to act as supervisor at those times.”

    I accept Mr B’s opinions and his recommendations.

12. I have come to the conclusion that it will be in the children’s best interests to live with the father in (omitted) in Ms B’s residence.  It will also be in the children’s best interests to attend the (omitted) School.

13. The mother’s presentation and the rambling nature of her most recent affidavit have not left a good impression with the Court.  There is significant animosity between the parties.  I can fully understand why it is that the father would seek not to have Ms B’s surname disclosed to the mother.  I will not be requiring the father to provide Ms B’s surname or address to the mother.  The mother will have plenty of contact details for the children through mobile telephone numbers, email addresses etc.  I note the comments of Mr B – that much of the chaos in the father’s life – came about because of his relationship with the mother.  This is another reason why I am not going to require the father to provide Ms B’s details.  The mother knows the school that the children will be attending and knows that the children will live in (omitted).  The mother has not stated any intention of travelling to (omitted) – so there doesn’t seem to be any particular reason why there should be an order for the mother to be told such matters.  If the mother becomes aware of Ms B’s surname and the address that the children are living at – because the children communicate this with the mother – then so be it.  There should not be any restrictions upon the children relaying information to the mother.  I am merely declining to make an order requiring the father to hand over such information.

Section 61DA

1. Section 61DA includes the presumption of equal shared parental responsibility.  But I have made findings concerning family violence.  The presumption is rebutted.

2. In any event it will be apparent that I have already concluded that there should be an order for sole parental responsibility in favour of the father.  There will therefore be no order for equal shared parental responsibility.

Section 65DAA

1. Strictly speaking there is therefore no need for the Court to consider the provisions of s.65DAA.

2. If I am wrong in that regard – I will make the following findings concerning that section.  An equal time order would clearly not be in the best interests of the children.  There is no recommendation for equal time.  There is virtually no communication between the parties.  In any event there is a significant distance between the parties.

3. Further, in terms of the High Court’s decision in MRR v GR [2010] HCA 4 – it would not be reasonably practicable noting the mother’s health difficulties, her financial constraints and the distance apart that the parents live.

4. The same comments relate to the question of substantial and significant time.   

5. Having concluded that it is in the children’s best interests to live with the father in the (omitted) area – I have also come to the conclusion that the children should spend time with the mother one weekend per month supervised by the maternal grandmother and/or Mr C.  There will need to be references obtained by the Independent Children’s Lawyer concerning Mr C before this commences.

6. The time with the mother to be supervised by the maternal grandmother and/or Mr C – does not have to be restricted to taking place at Mr C’s property.  As long as the maternal grandmother and/or Mr C are “in the company of” the mother and the children – this will be sufficient.  I accept the submission made by Mr Green of counsel on behalf of the Independent Children’s Lawyer in this regard.  I consider it too onerous on the children to have to drive from (omitted) to (omitted) more than one weekend per month.  It is therefore not in their best interests, in my view, to require that the children spend more time with the mother.  If the mother could make her way to Brisbane or (omitted) – that is a different question – but there is no such proposal or evidence to suggest that this is possible.

7. The maternal grandmother has agreed to facilitate changeovers at the (omitted) Contact Centre.  (omitted) Contact Centre should therefore be the changeover point.

8. It was submitted by counsel on behalf of the father Ms Quinn – that the mother’s time should be supervised at the Contact Centre.  I have been persuaded by the opinion provided by Mr B – that the maternal grandmother and/or Mr C are perfectly appropriate supervisors.  Furthermore – it will be much more congenial and enjoyable for the children to spend time with their mother if it is supervised by the maternal grandmother and/or Mr C rather than at the Contact Centre.

9. As to the precise times for changeovers – I would ask that the Independent Children’s Lawyer prepare orders to reflect these reasons for judgment and send copies of the same to the parties.  If the parties are not able to agree on the final wording of the orders then the matter will be relisted for mention.  

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  8 October 2013