TOLNEY & TOLNEY
[2019] FCCA 1546
•24 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOLNEY & TOLNEY | [2019] FCCA 1546 |
| Catchwords: FAMILY LAW – Parenting dispute about best interests of three young children – mother having history of mental ill health – mother nonetheless historically the primary carer – father withholding children because of children’s bruising – mother denial of assault not accepted – father being unable to facilitate and encourage children’s relationship with mother – orders made for the children to live primarily with the mother as sought by the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Applicant: | MS TOLNEY |
| Respondent: | MR TOLNEY |
| File Number: | DGC 2806 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 2, 3 and 7 May 2019 |
| Date of Last Submission: | 7 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dunlop |
| Solicitors for the Applicant: | Pentana Stanton Lawyers |
| Counsel for the Respondent: | Mr Thomas |
| Solicitors for the Respondent: | Nicholas James Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Stavrakakis |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
All previous parenting Orders are hereby discharged.
The Mother and Father have equal shared parental responsibility for the children, [X] born … 2009, [Y] born … 2011 and [Z] born … 2014 (‘the children’).
The children live with the Mother.
The children spend time and communicate with the Father as follows:
(a)Each alternate weekend from the conclusion of school Thursday until the commencement of school Monday.
(b)Each alternate Thursday from the conclusion of school until 6.30pm with the Father to return the children to the mother’s residence at the conclusion of changeover.
(c)For special occasions such as children’s birthdays, Father’s Day weekend and Christmas.
(d)For half of all school term holidays as agreed and failing agreement from the conclusion of school Friday until 6pm on the middle Saturday of such holidays.
(e)For half of all Christmas school holidays as agreed.
(f)By telephone/skype communication each Tuesday between 5.00pm and 5.30pm with the Father to initiate such communication.
(g)As otherwise agreed between the parents in writing.
Unless otherwise agreed when changeover is not occurring at school
it shall occur at Suburb A McDonalds.
The Mother, Father, their servants and agents are hereby restrained by injunction from:
(a)Inflicting any form of corporal punishment on the children or any of them;
(b)Exposing the children or any of them to any parental conflict;
(c)Exposing the children or any of them to any family violence;
(d)Denigrating the other parent or parents’ family members in the presence or hearing of the children or any of them;
(e)Discussing these family law proceedings in the presence or hearing of the children or any of them;
(f)Photographing the children or any of them for the purposes of gathering evidence.
The Mother or her nominee will, as soon as practicable, notify the Father in writing of any deterioration in the Mother’s mental health requiring hospitalisation.
The Father will forthwith delete the notes he has taken on his mobile telephone relating to the inspected subpoenaed documents in relation to Dr B, Psychiatrist.
The mother will continue to attend upon her General Medical Practitioner for the purposes of inter alia monitoring her mental health and the Mother will comply with all directions of the said practitioner, including but not limited to, medication compliance and referrals, if any, to a psychiatrist.
The Mother will continue to attend upon her Psychologist for counselling and therapy and comply with all recommendations of the said Psychologist.
The Father will continue to attend upon his Psychologist for counselling to address inter alia his ability to promote the relationship between the children and the Mother.
The Father will comply with all recommendations of the said Psychologist.
The Mother and Father will provide their Psychologists with copies of the following:
(a)Family Report dated 8 April 2019 prepared by Mr C; and
(b)Affidavit of Mr D, Psychologist, sworn 6 March 2019.
The Mother authorise any kindergarten or school the children attend to forward to the Father, at his expense, if any, copies of all Reports, Newsletters and any other documentation usually forwarded to a parent.
The Mother and Father will as soon as practicable, notify the other of any emergency or serious medical condition affecting the children or any of them.
The parents will keep each other advised of any change in residence or contact details within 48 hours of such change.
The Order for the appointment of the Independent Children’s Lawyer is hereby discharged upon compliance within Order 21 herein.
The Mother and Father forthwith enrol, attend and successfully complete an accredited “POP” program.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Certify for advocacy.
The Independent Children’s Lawyer will explain these orders to the children and the Mother will make the children available to facilitate same.
IT IS NOTED that publication of this judgment under the pseudonym Tolney & Tolney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2806 of 2018
| MS TOLNEY |
Applicant
And
| MR TOLNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting dispute about the best interests of three children, [X] (born … 2009), [Y] (born … 2011), and [Z] (born … 2014). The applicant mother seeks that the children live primarily with her in Suburb E where she resides with her partner, Mr F, and spend time with the father on alternate weekends. The father's position is the mirror image in reverse. He seeks that the children live with him, his partner Ms G and their four other children in Suburb H and spend alternate weekend time with the mother. The Independent Children's Lawyer essentially supports the position of the mother and, for the reasons that follow, I am going to make the orders proposed by the Independent Children's Lawyer.
Agreed or uncontroversial matters
Despite the intensity of this dispute, there are a substantial number of matters that are not, in fact, the subject of any significant disagreement. The father was born … 1980 and the mother was born on … 1984. The mother has asserted that the relationship started in 2008 and the father has asserted that cohabitation commenced on … 2009. It is common cause that they married on … 2009. They separated in March 2016, albeit that there were some attempts at reconciliation thereafter.
Upon separation the mother was compelled, in effect by the father, to vacate the former matrimonial home, which was owned by his parents. The children remained with him until May 2016 when the mother had obtained accommodation. Thereafter the children spent time as agreed between the parents on what, if it did not effectively start as such, became an equal time arrangement. This was, of course, relatively easy because the mother was living close to where the father then lived.
The father commenced a new relationship with Ms G in about … 2017. He met her at his employer where he works as a professional. Ms G has three other children of approximately the same age as the three children with which this case is concerned (although their ages are not, so far as I can see, precisely revealed) and a further child [J] born to him and Ms G (they have subsequently married) in … 2018. The mother re-partnered with Mr F in 2017 and they are presently living in a property owned by his parents on which they pay the mortgage but which they hope later to own.
In late 2017 the father and Ms G (as I shall refer to her) started to look for a property in Suburb H closer to where they both work. The father asserts that this is because he understood from what the mother had told him that she had proposed to relocate to Suburb L with a person he assumed to be her partner at the time. The mother denies that this person was ever her partner or that she ever intended to move to Suburb L. I will return to this disputed matter later.
Because the mother stayed living in the Suburb E area, close to Suburb M where she had previously lived, the driving time between where she lives and the father lives expanded exponentially. It is clearly well over an hour in rush hour. Notwithstanding this, the children, the elder two of whom had been enrolled in School N remained in that school with the father doing a lot of driving, as is self-evident. To ameliorate the effects of this he had used his parents' home as a base on frequent occasions, this home being close to the children's school.
The mother had postnatal depression in 2011 to 2012 (the father says it was more long-lasting) and her mental health was a matter known by both parents to historically have been poor. By mid-2018 the father's concerns about the mother's treatment of the children and her mental health more generally expanded considerably. His own mother took out an Intervention Order against the mother on 11 September 2018 and the mother had also taken out an Intervention Order against the father in 2016 which is lasted for one year.
Following what the father assumed were assaults on the children in 2018, including bruises allegedly observed on 13 August 2018 (photographs of which were appended to the father's first affidavit) the father over held the children. The mother filed an application for a recovery order on 16 August 2018 and the matter came before the Court on 18 September 2018 when an Independent Children's Lawyer was appointed and orders were made for an 11F series of interviews. Those interviews took place on 20 September 2018 and I will return to the report in due course. On 11 October 2018 the Court ordered that the children live with the father and spend time with the mother in small tranches. On 11 February 2019 that time was further extended.
Following an incident in March 2019, at which on any view of the matter [X] became very distressed at changeover, the mother's time was ordered to be supervised on 19 March 2019. The parties have since attended for a family report to which I shall return and the matter was listed before the Court as soon as practicable given the nature of the dispute between the parties.
Evidence
The Parties' Affidavits
Much of the material in the parties' affidavits is already, in fact, paraphrased in the agreed or uncontroversial matters above. I have, of course, had regard to the matters that the parties have put on affidavit but it is largely unnecessary to traverse those materials. I note that the affidavit materials of the parties put in issue the state of the mother's mental health, both during and prior to the relationship. It details the transportation of the children to and from School N in Suburb M.
I note that the father's first affidavit filed 29 August 2018 annexes a number of texts allegedly sent by the mother to him in 2014. These messages are on any view of the matter deeply disturbing. The messages attributed to the mother exhibit vitriolic hatred of the father, and indeed of her position as a mother more generally. The responses of the father are generally measured in the circumstances.
Exhibit ‘P7’ are photographs taken of [Y] and [Z] on 13 August 2018, allegedly showing bruising. I accept that there is a mark that may well be a bruise in the first two photographs and I accept, having studied the s11F report, that the third and final photograph appears to show a splayed hand just about the top of the right buttock of the child concerned. I note, however, that there are other marks on the child's other side which are not so clearly delineated but which would seem to perhaps be more likely to have been caused by scratching of the buttock by the child. I emphasise, however, that I am not a doctor, nor otherwise trained in the assessment of photographs of this sort. My remarks must be taken as no more than the impressions ordinarily available to any person seeing such photographs.
I note that in his affidavit filed 17 December 2018 the father appends the children's school reports for the year 2018, semester 2. He deposes that the children's results have improved markedly while the children have been in his care on a full-time basis since about August 2018. To my way of reading the school reports show that both children have improved throughout the entire year and they receive praise from that. I note that T3 supports the father's assertion that the overarching effects of this litigation and the need to transport the children may have put his further employment at some measure of risk. The letter from his employer, being T3, foreshadows a review on 11 April 2019 and nothing was put to the Court at the hearing as to what might or might not have eventuated from that review.
The mother's affidavit filed on 19 December 2018 notes that prior to moving to Suburb H, Ms G lived in Suburb O and points to the proximity of Suburb H to the father and Ms G's workplace.
The mother's affidavit filed 27 March 2019 notes that she and Mr F are due to have a child in … 2010. She also details her treatment with psychologists Ms P in 2016 to 2017 and then Ms Q until the end of 2017. I note that the mother is a student and will complete her studies, it would seem, in September 2019.
The father's affidavit filed 24 April 2009 details the birth of [J] on … 2018. He also makes significant allegations of promiscuity on the mother's part, some of which at first blush would seem slightly unusual involving the mother having sexual partners in the same house with him while he was asleep. I note he also details the incident on 13 March 2019 at changeover when [X] became distressed. It should be noted that nothing was made by either party of the father's allegations of promiscuity at the trial.
The Section 11F Report
The section 11F report prepared by Family Consultant Mr R followed interviews on Thursday, 20 September 2018. Mr R noted that the mother had alleged two instances of physical violence during the relationship which the father denied. He noted that the paternal grandparents were granted an IVO on 11 September 2018 naming the mother as the respondent with a further hearing during November 2018. Mr R noted that the father alleged the mother suffered with epilepsy and bipolar disorder and had told him that her father was dead when, in fact, he was still alive. Mr R noted mutual allegations of physical violence to the children.
Having detailed the history of the relationship and the competing versions as to who had been the primary carer, the report notes that the mother was shown the photographs attached to the father's affidavit showing marks on [Y] and [Z]'s body. The mother ultimately agreed that some of the marks were in the shape of a hand and that the darker area did in fact appear to be a bruise, but she denied causing those injuries and said there was a no smacking policy in her home.
When interviewed, albeit reluctantly, [X] stated she was fine visiting her mother and had no concerns about doing so. Her brother [Y] liked spending time with his mother whom he claimed to live with most of the time. He denied that his father smacked him and, although his mother used to, she had not done so recently. A brief observation session of the mother with the children was recorded as:
“A brief observation session was conducted of the mother's interaction with the children. The children's reaction was cool and subdued and none ran to their mother when she entered the room. The mother then hugged [X] and [Y], and gave [X] a birthday present. She called out, "Hi, [Z]," however [Z] continued with her activity at the painting easel.
Whilst no particular concerns were identified, the mother's engagement with the children had an appearance of awkwardness. Each of the children (and particularly [Z]) seemed cautious if not guarded with their mother and it was noteworthy that [Z] stridently objected to her mother changing her nappy because she wanted her father to do this for her.”
Mr R recommended the children continue to live with their father and spend time with the mother on daytime visits only.
The Department of Health and Human Services Section 67Z and 69ZW Reports
The section 67Z report dated 21 August 2018 notes the five reports made to child protection since May 2016. I note that, in relation to the assertions that the children were assaulted in August 2018, the Department's investigations with the children's school showed no concerns in relation to inappropriate physical discipline. The report observed, in my view accurately:
“It appears that the parental relationship is currently acrimonious and that this is having an effect on the parents' ability to prioritise the children's best interests above their own.”
The Department's section 69ZW report dated 18 April 2019 is in a large part a reprise of the earlier report, although it gives more detail of the various assertions made by the parties against one another from time to time. I note that in relation to the incident in August 2018 the photographs of the children were referred to Victoria Police SOCIT who had assessed:
“Whilst the reported injuries were of concern reasonable explanations had been provided and the children had made no disclosures of physical abuse, therefore, there was no further action taken by SOCIT.”
There was a further report on 1 October 2018 with concerns that [Y] had returned from contact with the mother with three unexplained bruises on his thigh. [Y] did not make a disclosure of harm while in Ms Tolney’s care. [Y] was taken to a general practitioner (GP) and the bruising was documented.
The police took no further action. There was no information to suggest that the bruising was non-accidental.
A further report on 27 November 2019 (sic):
“...reported to Child Protection that [Z] had been taken to the doctor in relation to a cough, leg cramps and leg pain and that [Z] was observed to have had some bruising around her knees and shins.
There was no information provided regarding the bruising being non accidental and there were no disclosures made by the child.”
The final report related to the incident at changeover in March 2019 regarding [X].
The protective assessment relevantly asserted:
“Whilst the reports made to Child Protection have not been suggestive of immediate or significant risk to warrant further intervention, it is acknowledged that the parental acrimony, the allegations and counter allegations of abuse and noted issues relating to the custody and contact with the children raise concerns around accumulative harm.”
The Reports of Mr D
Mr D appended to his affidavit, sworn 6 March 2019, his assessments of each of the parents. In respect of the mother he noted her postnatal depression in 2011 to 2012. He also noted the father's version that the mother's mental health issues were far more broadly based than that. He noted that the mother reported two mental health episodes (paragraph 4.6.1), one when she was about 19 or 20 when she had psychotic depression and was in hospital for about three weeks, and a two to three year period after the birth of [Y]. The hospitalisation was noted to have been attributed to a specific incidence of rape. At paragraph 5 on page 12 Mr D reported:
“5.1 Ms Tolney does not suffer currently from any major mental health disorder.
5.2 The trauma of past abuse has led to episodes of mood disorder and still leaves her somewhat vulnerable to situational stress.
5.3 There are also signs in her profile of a tendency to form dysfunctional and dependent relationships.
5.4 That said, there is no psychological reason why she could not parent effectively and well, practically and emotionally.”
Mr D's assessment of the father relevantly noted at paragraph 5:
“5.1 Mr Tolney does not have any major mental health disorder.
5.2 He is inclined by personality to be slightly rigid, guarded and too self-assured and these characteristics could lead to difficulties as his children move into adolescence when parenting becomes a more cooperative exercise in boundary setting.
5.3 It became clear to me at interview that he has both experienced fairly stable circumstances in his life and that he values this highly.
5.4 Despite the low-level resistance to help seeking shown in his profile, by his account to me, he has sought and continues to seek professional psychological assistance in circumstances where he feels it is needed.
5.5 From a psychological perspective I see no impediments to Mr Tolney’s active involvement in his children's day-to-day and long-term care, welfare and development.”
The Exhibits
Exhibit ‘ICL1’ are three letters from Dr B about the mother. The first is dated 1 May 2006. This notes that the mother had two hospital admissions in 2005, the first for depression and the second for a psychotic episode in the context of use of cannabis and amphetamines. She further had a one month involuntary admission at Hospital S until mid-March. The report noted a number of other significant earlier difficulties. Relevantly, Dr B opined:
“There was no applicable axis I diagnosis at the time of presentation. She clearly has a borderline personality disorder.”
The second letter from Dr B is dated 23 December 2012. Dr B noted that he had previously seen Ms Tolney some years ago and "she told me that I had previously diagnosed her as suffering bipolar affective disorder". The report noted that the mother disclosed that she had had postnatal depression after the birth of her son on … 2011.
The final letter from Dr B is dated 7 September 2013, but does not materially add to the previous ones.
The other exhibits are not in my view now of any moment.
The Family Report by Mr C dated 8 April 2019
The family report noted the parties separated in March 2017 and had been followed by an agreement on an equal shared time basis. After
Mr Tolney moved to Suburb H they tried to maintain the shared care arrangement with [X] and [Y] remaining at the primary school in Suburb M. As Mr C recorded at paragraph 6:
“They began to argue about the quality of the other's care arrangements. Ms Tolney withheld the children mid 2018 following the disputes, with Mr Tolney keeping the children in his care after the children were returned to him and contacted DHHS.”
The report noted the commencement of the new relationship with Ms G in 2017 and the relationship with Mr F in … 2017 followed by cohabitation in Suburb E in … 2017. The report noted the reports made to DHHS and the Intervention Order against the Father already referred to.
At paragraph 14 Mr C recorded:
“Both parties agree that there have been extensive verbal arguments between them before their separation. The arguments and hostilities recommenced throughout 2018 when neither party would change their position of wanting primary care of the children following Mr Tolney's move to Suburb H at the start of the year.”
The report noted the observations of Mr D and went on to record at paragraph 21:
“Mr Tolney stated in his interview that he did not agree with Dr D’s assessment and conclusions regarding Ms Tolney and that he wanted to subpoena her mental health records with her long-term psychiatrist Dr B. He believes that Ms Tolney withheld information from Dr D regarding the extent of her mental health problems.”
Mr C noted the criticisms made by each of the parents against the other (consistent with their affidavit material). At paragraph 36 Mr C observed:
“Mr and Ms Tolney seemed to be able to co-parent the children under a flexible shared care arrangement from the time of separation in March 2016 until Mr Tolney moved to Suburb H in March 2018. Since that time they have been in dispute about the primary care of the children, with Mr Tolney raising the issue of Ms Tolney's past mental health problems to support his case to be the children's primary caregiver. In August 2018 he alleged that either Ms Tolney or her partner or both had physically abused [Y] and [Z] when they returned to him with marks on their body. As a result of their intractable positions and the allegations Mr Tolney has made about Ms Tolney, there is now no co-parenting relationship and only distrust of one another.”
I note in interview [X] was nervous and unsettled when interviewed alone but expressed that she wished to move schools to Suburb T School and that she wished to live with her father. At paragraph 40 the report noted:
“Despite her age and her capacity to talk on other subjects freely, such as her pets in each household, she went quiet and shy when talking about which household she wanted to live in for the majority of the time. She did not make any negative statements about her mother or her mother's partner and did not talk about the incident in March, which was very recent, when her father alleged that her mother assaulted her when she would not get out of the car at changeover. Ms Tolney stated that [X] was crying in the car at changeover and said she had been bullied at school. She stated she escorted her out of the car by holding her arm in an effort to comfort her. Mr Tolney claimed that Ms Tolney twisted [X]'s arm and consequently assaulted her.”
When interviewed (paragraphs 41 to 42):
“[Y] was very relaxed about his interview and said he wanted to make it short. He is seven years of age and in Year 2 and at the same school as [X]. He has been there since Prep, which is over two years ago. However he stated he did not have a lot of friends at school and was looking forward to meeting new children at the school his father wants him to go to. He admitted he would not know anyone at his new school except his stepsiblings. However [U] attends the local secondary school because he is in Year 7.
[Y] was aware of the purpose of the interviews and stated, "I want to keep things the way they are." However, he could not explain why. He stated that he enjoys seeing his mother and Mr F, describing him as being ‘fine.”
At paragraphs 44 - 45 the report continued:
“After the children were observed interacting comfortably in their father's household with their stepmother, father and three-month-old half-brother [J], they went to a nearby park to be observed with their mother and her partner, Mr F. The three children rushed to greet them in the park, giving them hugs and wearing big smiles. As Mr Tolney and Ms G were not sure if the children would feel comfortable with their mother and Mr F, they took their dog for a walk around the park and kept an eye on the situation.
Ms Tolney ignored their presence and focused her time totally on playing on the swings with the children. Mr F joined in and there was lots of laughter and excitement as they moved from one piece of play equipment to the next. There was not any sign of apprehension by the children about seeing their mother prior to her arrival and there were not any problems with the departure. It appeared the children were used to seeing their mother on a regular basis. They played freely with Mr F.”
Under the heading Evaluation at paragraph 46 the report continued:
“At the time of this report there was no information available to the family consultant regarding how well [X] was coping with school, both socially and academically. It would be important to note whether her behavioural problems at school coincided with the increase in her parents' acrimony or whether she had convinced herself that she was going to change schools in any case. It is unusual for children [X]'s age not to have an established network of friends after four and a bit years and not to want to leave them behind with a change of school. The same applies to [Y], but to a lesser extent because of his age.
There has been no independent information provided to the Family Consultant regarding the outcome of the bruising to [Y] and [Z] that led to Mr Tolney keeping the children in his primary care. Despite DHHS being involved with the family off and on for five investigations leading to no further action since the separation, there was no report from DHHS on the bruising or no doctor's report assessing the cause of the marks. The incident between Mr Tolney and [X] that led to supervision being reinstated in March 2019 relied on two competing narratives from the parents about what occurred.
There has been no assessment by Mr D, psychologist, that Ms Tolney has mental health problems that cause her to be an unsuitable parent for the children. Mr Tolney admitted his disappointment with Mr D’s assessment and believes it is not accurate. As a result he admitted he is seeking further information from her treating psychiatrist. The children did not present as fearful of their mother and Mr F, with both [X] and [Y] stating they enjoy their time with them. [Z] was too young to be interviewed but had no difficulty being with her mother and Mr F during their observed period.
However as the children have now been in their father's primary care for eight months, they have adjusted to being with him more than with their mother. They are aware of the primary school their father wants to send them to and that it is the same school their step siblings attend. Although [X] and [Y] did not mention it, it must be stressful for them being in a car for up to three hours each day on alternate weeks while their father takes them to school and collects them from school.
Mr Tolney has created doubts about Ms Tolney's ability to care for the children since he has moved to Suburb H by alleging she has physically abused [Y] and [Z] on one occasion and [X] on another. The doubts have led him to have primary care of the children for approximately eight months and Ms Tolney spending the majority of her time with the children under the supervision of her mother or sister one day a week. It would be a major change in the children's care arrangements for them to live primarily in their mother's car (sic) and to spend alternate weekends with their father.”
The report went on to note that it was difficult to make clear recommendations until, in effect, the causes of the bruising, the children's situation at School N and evidence from Dr B were to hand. The report noted the children had become settled living with their father and Ms G with the two elder children assuming they would be changing schools in the near future and that there was no need for Ms Tolney to be supervised with the children based on current information.
Evidence during proceedings
What follows is taken from my notes. Self-evidently it is not a transcript but records those aspects of what was put that struck me as being of significance.
Counsel for the Independent Children's Lawyer made a brief opening statement. She informed the Court that the Independent Children's Lawyer had met the children on 18 April 2019. [X] was very shy, [Y] was busy and [Z] was very chatty. [X] did not want to see her mother. She said she was scared of her because she drags her by the hair. [Y] said he wanted to see the mother but not live with her. [X] did not want to live with the mother. The father had interviewed the children together with the family counsellor.
Counsel for the mother opened her case and gave, if I may say so, a very helpful and fair presentation of the issues before the Court and of her client's position. Counsel pointed to the two major incidents, the first on 13 August 2018 which led to the children being over held following their return with alleged bruises and marking, and a further incident on 13 March 2019 where the father asserts the mother assaulted [X] by twisting her arm and other assaults at changeover.
The Mother
The mother adopted her affidavits as true and correct. She confirmed that she seeks that the children live with her.
Under cross-examination by counsel for the father, the mother confirmed that she lives in Suburb E with Mr F. The house in which they live is owned by Mr F and his mother and they moved in on … 2018. She first met Mr F in about … 2017 and commenced a relationship with him in … 2017. She was aware that the father had moved to Suburb H in January 2018. She had not been in a relationship with a Mr V and had not said she would move to Suburb H. She was always with Mr F. She did not tell the father she would move to Suburb H. Her present dwelling has three bedrooms and the children share one room. Her forthcoming baby will be in the same room as the parents for six to nine months. They are going to try and move into a larger house but in the same area. She likes the area and the children's school is in that area. Her own mother lives in Suburb W which is about 20 minutes from where the father lives.
The mother has lived in the Suburb E area for over 10 years. She wants the children to see the father but wants stability. She and the father do not get along well when they are close together. It is not healthy for the children to see the parents fighting and it was important that the children have a great relationship with their father. She tells them what a great father he is. She has no relationship with her own father at the present time. This started in childhood. She tried to reconcile for about six months in 2014 but since then there has been no contact. The mother conceded that she had told the father that her own father was dead even though he was not. This was in the context of a very strained relationship. She told the father later that her father was not in fact dead.
The mother conceded she has had mental health issues in the past. She had depressive episodes and was hospitalised. It was a very stressful time. She needed medication. She remembered two hospitalisations but there may have been three. It was so long ago she could not remember. She was diagnosed as having a borderline personality. She had a psychotic episode in 2006. She was at a party and took a joint, which she thought was marijuana but in fact turned out to be methamphetamines. This led to the psychotic episode. She did not remember how long it lasted but thought she was in hospital for three weeks.
There was an initial diagnosis of bipolar disorder. In 2012 to 2013 she was re-diagnosed with postnatal depression. This is common with bipolar. The original diagnosis was in 2004 to 2006.
The mother said that three psychologists agreed she had borderline personality disorder. Ms Q is her current psychologist and she has been seeing her for about one and a half years. She was at the same practice before that with someone called Ms P whom she saw in 2016 after separation. Before that she was Ms AA from Family Practice in about 2014 to 2015. She saw Ms AA quite a bit but it was not sporadic. The mother denied being fragile. She has only had postnatal depression once and was prescribed Pristiq for it. This started in 2012 and went on until late 2013 or early 2014. She stopped Pristiq because she was pregnant. She had no depression after [Z] was born. Her depression was alleviated by counselling. She was depressed by the deteriorating marriage and the Pristiq helped to a large extent. The marriage had deteriorated before [Z] was born. She had postnatal depression with [Y]. Things were not going well. Then, she got pregnant again and things were worse.
The mother was cross-examined about annexure ‘1’ to the father's affidavit being a series of alleged messages sent by her to him. She had no recollection of writing it. She said it was not from her iTunes account or her phone number. She did not recall sending the messages. She could have said she hated the father. She confirmed that Ms BB was her neighbour at the time.
It is not necessary to traverse the messages that counsel put to the mother in some detail. Her answers were generally to the effect that she did not recall sending them, that it did not seem likely to be anything which she would have said, that she would never have harmed her children and the like. I put the matter at this level of generality because I regret to say it is absolutely obvious that the father is telling the truth when he said he received these messages from the mother and they certainly show that she was unwell at the time.
When it was put to her that she had suffered postnatal depression after the birth of [Z] the mother said she had suffered minor depression. The marriage was failing. She thought she went back onto medication. She was seeing Ms AA and she consulted with her general practitioner. She was on Pristiq until late 2015.
The mother is not worried about having postnatal depression with her new child. Her GP had told her she was not postnatally depressed after [Z]. She felt okay to stop Pristiq in 2015. She indicated that she would take medication if her doctor had so advised. She was spending supervised time which was going well and the children are happy, getting along great.
The mother was cross-examined about the incident on 13 March 2019. [X] did not want to come to her house. She wanted to go on a play date with school mates. She had told [X] that this could not occur and [X] was upset. The mother had proposed an alternative which [X] said sounded good.
She has not had any contact from the children's school and the Department of Health and Human Services do not talk to her. She had told Mr D about Dr B and told Mr D that she had been misdiagnosed. Mr D had told her that even experienced practitioners can make mistakes. She had not withheld anything from Mr D.
The mother was cross-examined about the text messages at page 32 of the father's trial affidavit. She was taken to the extract, "I should be sorry. My mental health is fucking the kids over. And you." The mother sought to explain this away. She said it was taken out of context at a time when she was undergoing very severe kidney infection and was anxious.
When asked how she disciplined the children the mother said she sends them to a chair, then to their room and the children are told to think about it. The children are pretty good generally and do not require punishment. She gets frustrated with the children but takes a deep breath and goes outside. She sits for a bit. She used to smoke (before she gave up).
She did not recall a chest of drawers being overturned. When asked if she had ever smacked the children she said not that she could recall but had once smacked [Y] on the bum. She felt guilty and spent two days crying. [Y] was much younger.
[X] was in kinder and she tried different methods of discipline. When shown the photographs at page 36 of the father's trial affidavit, said to have been taken on 13 August 2018 at 6.50 pm, the mother said this was false. She would never hit her children to that degree. The children are not scared of her because of being bruised. I should interpolate and say that the mother's answers as to these photographs were entirely unconvincing.
Under cross-examination by counsel for the Independent Children's Lawyer the mother confirmed that the children were at school. [X] is year four and [Y] is year two. [Z] is at kinder. She is not aware if the father had included her in the details provided to the kindergarten.
The parties married in … 2009, having commenced cohabitation in 2008. They separated in March 2016. The father choose School N because he had attended it himself.
When asked what involvement she had with School N the mother said she would organise fundraisers and raffles. This came to an end last year. The children had been with the father since August 2018 when they were over held. She is a student. She is on campus on Thursday and Friday from 9.15 to 3 pm. She also has a placement to come in school hours. [Z] would continue to go to kindergarten if she was living with her. This would be on Mondays and Fridays. She had looked into this. She would be with her when not at kinder.
The mother had no concerns about Mr F (Mr F). He is a very gentle man who is very loving and caring with the children. When asked if Mr F had abused the children she said she had not seen it. There was no abuse in July or August 2018 and no abuse in October 2018.
The mother was aware of the report from the Department of Health and Human Services. The first time she had heard of bruising in October was in that report. The father had not told her about it. The father had not told her he had taken the children to the doctor about bruising. He would wait until they came to Court. She was not told that it was reported to police and SOCCIT and was not told about the report on 27 November 2018. She had first heard of this on the morning of the trial. She has not bruised [Z] in November 2018 and Mr F never harms the children.
[X] had never mentioned to her a concern that somebody had been watching her through the door as she got undressed. The father had not mentioned this to her either. She had not pinched [X] on her nipples. The father had never told her that [Z] had said she had been hit by either her or Mr F. There was no dark room in her house and this allegation was new to her. She proposes to be involved in the children's school in the future.
The father has spoken with [X] about her new school. The children say they love their school. The father's parents pick the children up and take them to school. I note the mother was quite unprepared to give the father any credit for the children's improvement at school.
The mother said she had seen Dr B in May 2006, December 2012 and on 7 September 2013. She has not seen him since. There has been no other psychiatrist since either. She sees Ms Q usually every three weeks or once per month. At the moment it is once per month because of the Court's proceedings and stress. When she saw Ms AA in 2014 this was on a referral from her GP. She phoned the Psychology Clinic herself and asked for a GP referral. She is not taking medication at the moment. Her treating doctor and psychologist say cognitive behaviour therapy and Ms Q is sufficient. She is even now prone to depressive episodes. She was not a regular user of marijuana and methamphetamines in 2006. She smoked tobacco. Her answers about her drug use suggested that she may have used drugs rather more than she was prepared to admit.
In 2012 she had been to Dr B. She had had a drug for bipolar from 2008 then Pristiq. The attendance on Dr B on 7 September 2013 was because things were not going well. She realised that things could not be solved by pills. She would see Dr B if ordered once per year and she will continue treatment with her psychologist also.
[Y] and [X] have seen a counsellor because of problems arising from separation. She organised this in January to February 2018. She spoke to the father and asked him to sign papers. He would not engage with the counsellor. She phoned the counsellor once a month to keep in touch. When asked about paragraph 38 of the family report the mother said that [X] had told her that the father had told her that, according to her teacher, she was not involved enough at school and had a bad attitude. She had asked [X] what happened to her friends. She said she had friends but they did not get along.
From the answers given on this topic it was clear that the mother had discussed Court disputes with the child.
The mother said the father loves the children dearly. He drives them to school. He allows them to express themselves. However, when they were married she undertook all such duties. The husband has been better since separation, been more attentive and put in more effort. She has met his partner Ms G twice and has no concerns. It takes one hour to drive from Suburb E to Suburb H. Prior to August the father was living at Suburb H for work. In 2017 he was living in Suburb O with Ms G. She would drop the children to his parents.
The mother conceded there was high conflict between the parents. She is learning to get better about the communications and over time and after Court things should improve. The father can care for the children from Friday to Monday. The children have a right to see their father. In the off week there should be a dinner which would be really good.
When asked about paragraphs 49 and 50 of the family report, it being put that it would be a big change, the mother said the children would be fine to come to her. They are relaxed with her at overnight time and know their rooms. When asked about whether [X] might not want to come, as the father asserts, the mother said that this is not what [X] shows to her. She skips and hops out of the car. This is at changeovers for supervised time from 10 to 5. Changeover is at her mother's and the father is there. Usually she goes to her mum's and waits. Sometimes Mr F is with her and sometimes her sister. The children jump out of the car and say, "Mum" and "Miss you, Mum."
The mother said there had been no issues since 13 March. She and the father never speak.
The mother was cross‑examined about the father's version of events on 13 March 2019. She said this did not happen as he said. [X] was really upset. She asked the father to look after the other two, and he could hear what was said. She had not slammed the passenger side of the car. She said that she had told [X], "That's okay. You won't have this bad mood forever." She had asked the father what had happened. He said he did not know. He has said there was a bad day at school. Police happened to be present. She spoke to [X] again. She picked [X] up and put her in her car. [X] had not hid behind the father. [X] got into the car. The police had not spoken to her. [X] was quite upset, and the father gave her a rub on the back.
I should observe that the mother's description of the police being present was given in some detail and seemed to me to be convincing. She had said that she did not know what was going on.
There was no re‑examination.
Mr F
Mr F confirmed that he is in a relationship with the mother and lives with her. He is aware of the allegations of assault on the children, but he has not assaulted the children. He has not seen the mother do so. He was aware that the mother had suffered depression after the birth of [Y] and had mental issues before that. They have a child due in …. He had organised to take four months off after the birth. There is also the GP available for contact in case there is postnatal depression. He can take additional weeks off if necessary and would seek help if the mother needed it.
Under cross‑examination by counsel for the father, Mr F said that he has told the children off for bad behaviour. He tells them to stop and why. He does not chastise the children or grab them. He defers to the mother in disciplinary matters. The children call him dad. [X] asked if she was allowed to and he said "yes". She knew who her father was. He could understand that this would upset the father. He does not know anyone apart from the mother with postnatal depression. The mother sees her psychologist every few weeks. He was aware of one hospital admission about 10 years ago. They have made an appointment to see the GP the week after next to discuss postnatal depression. The relationship started one and a half years ago in about … 2017 with cohabitation in … 2018.
Under cross‑examination by counsel for the Independent Children's Lawyer, Mr F said that the father had not raised the issue of the children calling him dad. He thought it was raised with the children. He thought that the father had raised it with the mother. [X] has stopped and now calls him Mr F. The father was good with the children from what he had seen.
The father
Counsel indicated that it was conceded that there were no issues with
Mr F and the children. The father seeks that the children live with him and spend every second weekend with the mother. He sought sole parental responsibility and a graduated increase of time with the mother. The mother's mental health is vulnerable. She suffers from postnatal depression, and there was a baby due in …. The father has been the primary carer since March. He has a house with his new partner, who has three children of the same age as these children, and they get on well. The children are at School N. The father himself had had a new child with Ms G last ….
The father was called and adopted his affidavits as true and correct.
Under cross‑examination by counsel for the mother, the father said he works in Suburb CC, which is 20 minutes from Suburb H. Ms G works at his employer as well and has done for six to seven years. They met there. She was living in Suburb O, which is about a 40 minute trip. The children were in school in Suburb O, but this has now changed. Their father is now in Suburb DD but was in Suburb EE before that. His parents own the former matrimonial home, and the mother rented close by.
Then there was a gap when she was with Mr FF, and the mother said she would move to Suburb L in … 2017 with him. He and Ms G commenced a relationship in … 2017 and decided to move to Suburb L after the mother said she would move there. He phoned the mother in … 2018 to say they had bought a home. There was no conversation about school. [Y]'s birthday in 2017 was at a play centre and [GG] was already there. [GG] is Mr FF’s son. There had been FaceTime with the children at Mr FF's house in December 2017.
The father's parents live in Suburb M. He went to School N. He had discussed moving into his parents' place in Suburb M. The mother told him by phone about Mr FF and said she would move into Suburb L with him. The kids had spoken about it. She said she would move very soon. The father was cross‑examined about the Intervention Order. He had been self-represented at the Intervention Order hearing and did not recall getting a copy of the order before he left court. The children are listed on the order (tendered as exhibit ‘A1’).
The father said that they were living in his parents' property before separation. The mother was a stay-at-home mother and he was working. When it was put to him that the mother could not afford accommodation, the father said she was getting Centrelink. He would buy her cigarettes. The home was owned outright by his parents. I should interpolate and say that it is clear that the father had never thought of moving out and leaving the mother in the unencumbered house.
The father said he did not throw the mother out of the house. He was not physically or verbally abusive to her. The mother had said she had hit herself in the eye with a boot. This was in March, two weeks after separation. Then the mother posted it on Facebook. He looked at it and it alleged domestic violence. He put the children in the car and was driving to his parents. She telephoned and got aggressive and told him to bring the children back or she would call the police and he would go away. The potential for conflict was there. I should interpolate again and say that the father was labile when giving this account, which was clearly true. He conceded that this account was not in his affidavit.
At the time of separation in March 2016 he left his job because he needed to spend time with the children. He had received a severance pay of approximately $30,000. He stayed at home until June, July or August 2016, then got work for six weeks in Suburb HH. He had then got another job in Suburb HH from which he was unfairly dismissed, after which he went to Western Australia to help a sister set up a business.
He left the children and intended them to be with the mother, but after one week she was incapable and went to his parents. She had some form of infection. He had not phoned the hospital. He was told the mother was feeling unwell and needed to be resting. The mother was already in a rental property in May 2016. He started spending time with the children, and there was shared care from May 2017. This was an informal agreement.
The father said he was screamed at quite often. There were discussions outside when the mother was aggressive. They would get heated. He had only become angry two times because it takes a lot to make him angry. He would accept that he is rigid and very reserved. He was not made aware of DHHS reports until he contacted the Department.
Ms G's children spend time with their father but there is a good relationship. Their father has dinner with them once per week. He moved from Suburb EE to Suburb DD.
The father had looked for a property over Christmas (2017). He was aware that the mother was dating Mr F in … 2017 and aware that he came to her house. The mother had told him at [Y]'s birthday party in … that Mr F was not a thing. He queried her moving to Suburb L with Mr FF. He said there were texts (the subject of a call for production which was not met). He had assumed that the mother was in a relationship with Mr FF. He had not known about him before this.
He had discussed school briefly with the mother before purchasing his house. She said the school should be midway between Suburb L and Suburb H. The mother him as she was moving to Suburb E with Mr F on the same day he rang her to say that they had bought at Suburb H. She proposed each alternate weekend, and he proposed seven/seven. He was happy for the children to remain at their current school.
He did not know of the DHS report in June 2018 at the time. It was still seven/seven at that time, and his parents were helping. His brother would collect the children from school. He accepted that there were efforts to reconcile until 2017.
When asked about the report on 22 July 2018, he said he was not at the incident. He rang DHHS out of hours, and they told him the outcome. The father said he picked the children up on 12 August 2018. He went to his parents' house and stayed there for dinner. He bathed the children there and undressed them. This was before dinner at about 6 pm. Their marks were worse when they got out of the bath. He baths the children every day. The mark on [Y]'s thigh was seen before the bath but was worse afterwards. He did not take the children to the doctor's. He contacted DHHS, who said they would be in contact.
[X] disclosed that the mother had told her to go to school and say that the father hit her. She had told [Y] too. He told the children not to lie or he would get into trouble. He had taken photographs of marks in July but not called the Department. He asked [Y] what they were on his thigh. He noticed as he was in the bath. He said it looks like three fingerprints, and [Y] had replied, "It's not three, it's four." He had asked [Y] if he had been smacked, and he said, "Well, I did get into trouble." He left it at that and had not asked the mother. He had spoken to DHHS who told him he should be protective, and he decided to keep the children. He believed he had told the mother why.
When asked about three bruises on 1 October 2018, the father said he had not photographed them. He said, "They said they were smacked at their grandmother's house." This, I should note, was not in his affidavit material. He had heard nothing from SOCCIT. The mother's time moved to unsupervised. He kept the children at home for a week. The school gave him work for the children to do. He had not orchestrated the report to the department on 27 November 2018.
The father was cross‑examined about the incident on 13 March 2019. [X] said she did not want to go with the mother. He did not try and stop her from trying to go. He believed that the mother would hit the children. He has not photographed the children since court orders. If he noticed bruises at the bath, he asked the children.
When asked about what was good about the mother, the father tellingly responded with a question, "Historically?" He then went on to say that the mother was showing signs of getting back to the person he originally met. Everything is fine at changeover but the children say they are yelled at home. He said he had to believe the children. It should be noted the father was not really able to say anything good about the mother at all.
The father said Ms G and the children tell the children the mother loves them. They are both responsible for the bad environment. He has seen Mr D's report and subpoenaed Dr B's report. He had taken notes. He was aware of the mother's appendix problem. If the court ordered the children to live with the mother, then he would accept it.
I should interpolate again that it is clear from the father's evidence that he influences what the children say, even if he does not consciously coach them.
Under cross‑examination by the counsel for the Independent Children's Lawyer, the father confirmed that he seeks an order for sole parental responsibility. There is high conflict between him and the mother, and he wants a better communication with her. Things got very bitter.
The father was asked if he would see a psychologist and said that he has been doing so. He originally saw Mr JJ for three sessions. Now he has a psychologist in Suburb H he sees every three weeks. He denied coaching the children. He would be happy to follow the psychologist's recommendations. [Y] would want the parents to consult. [Z] is four and [X] is nine and have decided who they want to make decisions. He would take the children to the dentist. [X] simply does not have a comfortable relationship with the mother.
I note again in passing that the description given by the father was of the children excluding their mother, and he was entirely accepting of this.
The father said that the mother had put [Y] and [X] up to making allegations to the school that he had talked them out of it. This gave the children the message their mother was asking them to do something wrong. The father had said nothing to the children about communication with the mother. Communications had broken down. The mother had always had mental ill health. When it was put to him that there was shared care in May 2017 despite the mother's mental health, he agreed.
The father was cross‑examined about his assertion that the mother's mental ill health was as late as 2016, and I would interpolate and say that I find his answer somewhat unconvincing. The father conceded that it was important that the children have a relationship with the mother. They need both parents. When the mother is not affected, she can be very loving to the children. He is concerned that [X] does not love her mother. When [X] says she does not want to go to the mother, he says, "She loves you." He asked [X] why, and [X] says she yells at her and smacks her. Once again, I note that the father was labile at this point.
When it was put to him that he accepts everything negative about the mother that the children say, the father agreed.
The father confirmed that he is now working full time. His work from home varies. Ms G is on maternity leave, and he is on paid parental leave, which will continue for 12 months and possibly more. In October 2018 [Y] had said he was smacked. The father complained of the mother over-holding the children three times, but I note that he has over-held once himself.
The father said that Suburb T Primary School will take [X] and [Y], and [Z] would also be accepted. [Z] is in kinder this year, and he has filled in the forms for Suburb T School. Ms G is a contact and so is the mother. His parents are now involved but won't be if the children go to Suburb T School. The school counsellor is addressing the children's anxiety. It would be better if the children saw somebody outside school for more general counselling. Counselling would be to address the relationship between the mother and the children. The relationship with [X] is cracked. The rift with [Y] is not as big. [Z] is very young and just says she does not want to go.
In re‑examination the father confirmed that he was not aware of therapeutic counselling was but would be prepared to undertake it. When he was asked, if Mr D expressed no concern about the mother's mental health, would he be satisfied, the father said, "Not really. It can't be cured, but can be treated."
Mr D
Mr D was called and adopted his affidavit as true and correct.
Under cross‑examination by counsel for the father, Mr D said he had not been given Dr B's reports but now had them. He could not read the clinical notes. He was aware that the mother was involved with a psychiatrist but did not know the name. The mother had told him that she had mental health diagnosis in her late teens and had told him about the 2006 incident. She also told him about her mood disorder after [Y]'s birth, and he thought she had told him about a psychologist.
His testing indicated borderline personality disorder. Bipolar is treatable and manageable and easily managed with medication. The mother is not treated for bipolar but treated for mood disorder. Borderline personality disorder is a diagnosis of persons who experienced abuse. You can outgrow borderline. Bipolar is different. It is lifelong. Bipolar is expressed in mania and depression. Major episodes of stress can trigger bipolar. The mother is vulnerable and should shield herself from stress. She had two major episodes, one as a result of childbirth, and one as a result of rape. The mother needs close advice through pregnancy and is likely to be more alert to it now. The mother has no current major health problems at the moment.
Counsel for the mother did not put any questions to Mr D.
Under cross‑examination by counsel for the Independent Children's Lawyer, Mr D confirmed that axis 1 diagnoses are major disorders, such as schizophrenia, bipolar and OCD. Axis 2 are dysfunctions from personality. There are florid periods in axis 1 disorders when the children and parents should not be together as the parent cannot be there for the child. It appeared to Mr D that the mother's GP was very alert.
Mr C
Mr C adopted his report which was tendered as exhibit ‘B1’.
Under cross‑examination by counsel for the mother, Mr C confirmed that the bruising of the children had led the father to over‑hold the children in August 2018. He agreed that the section 69ZW report somewhat alleviated the concerns. The children are going well at school socially but average academically. Mr D has assessed the mother's health as acceptable. He had no reservations about the children spending time with the mother, but the children are preparing for school in Suburb T School and have been living with the three other children.
The father will not believe the mother is okay. When it was put to Mr C that the father believes everything the children tell him, Mr C said he would not check with the mother. The father clearly does not promote a relationship with the mother. The father has made co-parenting impossible.
Under questioning by counsel for the father, Mr C confirmed that the children have been at their current school for the whole of their lives. His main concern is the father's non-promotion of the relationship with the mother. The father is fine with the children and looks after them. His partner is excellent. The children did well.
When questioned about therapeutic family counselling, Mr C said what was required was post-separation parenting training. The children have given a narrative. The Parenting Orders Program would be more appropriate. The capacity to co-parent had fallen away and needed to be improved.
When questioned by counsel for the Independent Children's Lawyer, Mr C said that the parties continuing with their psychologist would help. He was also questioned as to whether, in the event of a change of residence, he would be prepared to explain the matter to the children. Mr C said "no". Someone should tell them, but not a Regulation 7 counsellor.
The submissions of the parties
Independent Children’s Lawyer
Counsel for Independent Children's Lawyer submitted that there were two capable parents who loved the children. Mr C had said there was a good relationship with the father and the mother and their partners. Both parents are willing to see psychologists about their concerns and vulnerabilities. The mother said she could not recall her texts, but was obviously having a difficult time in 2014. The father sees the mother through a suspicion based on his experience. Ms G and her ex-partner are on good terms but not with the mother.
The father had not attended the counsellor at the school, and Mr C was not concerned with the children being with the mother. The children tell the father bad things about the mother. Although [X] was nervous with Mr C, she did not mention the changeover incident. [X] was hysterical but had not told Mr C. The psychologist needed to address the parties' weaknesses. There should be equal shared parental responsibility.
The mother has been the primary carer, despite her vulnerabilities. The father was concerned that the mother was bipolar in 2016, and this was not a matter of malice but rather his experiences. In January 2018 the father had proposed seven/seven. The children have a bond with the mother, but since living with the father, he has not promoted the relationship. The section 69ZW. report raised coaching issues. The children are very aware of the father's view of the mother, and he has told the children, "Don't tell us what we want to hear." From this it is obvious that they must know what it is he wants to hear.
The children are doing socially well at school. The father thinks [X] has no friends, but the father is not engaging with the school. The children are used to travelling to school. A block of time would be more settling. It is a one hour drive. There should be dinner on the Thursday in the alternate week.
Mr D said that the mother does not need a psychiatrist. Her GP is very hands on. Meaningful relationships is a qualitative not a quantitative matter. The children have a good relationship with the father. There was shared care until August 2018. The children were silent in the family report interviews as to their wishes, but the father says the relationship with [X] has cracked, [Y] not so much, [Z] should not go because the mother smacks her. The father needs to promote the relationship between the children and the mother. He said [X] did not love her mother.
Counsel stressed that an order was sought to prohibit the photographing of the children. The risk in the case is the conflict between the parents. As regards to bruising, there was no medical evidence, but the section 69ZW report said there was bruising with a reasonable explanation, although the explanation was not given. The father had not taken the children for medical examination.
There was also the changeover incident. Nipple twisting in a darkened room had been alleged, but this was not pursued in the case. The father was not encouraging [X] to go. There was no unacceptable risk with the mother. Orders were sought to assist the mother to avoid stress and stay close to her treating practitioners. The parties should undertake the Parenting Orders Program. Therapeutic counselling is not required because the children are fine. She sought that the Independent Children's Lawyer and Mr C explain the orders.
Counsel for the father said that the children should live with him. The mother's text messages raise issues about the mother's primary care, and she had no recollection of the texts. The father is the primary carer, and the children had done well with him. The father drove the children for school, which was long hours.
There was evidence about the mother's mental health, and she was coming into a period of stress. The father concedes that supervision is not necessary, but the mother will be stressed with the new child. The father is capable of supporting the relationship with the mother and proposed seven/seven even when the mother was ill. The father reached the end of his tether. He was living at Suburb H and the mother was not prepared to move. The section 11F report raised allegations of coaching both ways. The relationships with the children have now improved, and this is because the father provides stability. The father has enrolled in a parenting after separation course.
Counsel for the mother submitted that the mother sought the orders proposed by the Independent Children's Lawyer. The messages in 2014 were when the mother was unwell. By May 2016 the relationship was breaking down. The father took no responsibility for arguments and put all the blame on the mother. The father put the mother out of the property when the youngest child was 19 months old. She had nowhere to live and no income, and the father kept the children with him.
From mid-2017 there was a seven/seven arrangement, and they met their new partners at the same time. The mother denies telling the father she would move to Suburb L. Mr F was not challenged in his evidence. The children started seeing a psychologist in about January 2018, and in June 2018 [X] said that the mother hit her and neglected the children. The mother admits that the father is a good father, but the father is unable to say anything good about her. Mr C has said that the father has eroded the relationship with the mother and the father makes up allegations of assault.
Some brief observations about the credibility of the witnesses
I have already commented in passing on various aspects of the mother's evidence that were unsatisfactory. She clearly did send the messages in 2014, although she endeavoured to evade that reality in the witness box. Her assertion that her son could remember matters in detail from when he was two years old is ridiculous. She was manifestly unprepared to give the father any credit for his care of the children of more recent times. She would not even give him credit for the massive amount of driving he has voluntarily undertaken to take the children to school. Nonetheless, in the main, I thought that the mother's evidence was composed and she stood up well to the rigours of cross‑examination, especially given her naturally anxious personality and the stress that the court proceeding must have involved for her.
Mr F was an entirely unremarkable witness who was plainly telling the truth.
The father conceded the personality traits identified by Mr D. He was labile at times, and plainly is quite unable to bring any kind of objective assessment to bear as to the disclosures that he has received from time to time from the children about the mother. He was unable to say one good thing about her. Nonetheless, once again, he was generally a good witness, although I do not accept some of his evidence.
The professional witnesses were giving evidence within their area of expertise. Neither was seriously challenged in cross‑examination. I accept their evidence in its entirety.
Findings about the relevant facts
The parties commenced their relationship in 2009 and separated in 2016. It was by no means an entirely happy relationship. The mother, who has had a long history of mental health difficulties, became unwell with postnatal depression after the birth of [Y], and was clearly, as the text messages sent in 2014, very unwell for a protracted period of time. Notwithstanding this, however, she remained the primary carer of the children as the father was at work.
In 2016 the relationship came to an end, and the father showed the mother the door. Given that he was living in an unencumbered property owned by his parents, his eviction of the mother, who had no income and nowhere to live, in my view, does him little credit.
Irrespective of the parties various difficulties, however, they moved to a shared care arrangement in 2017, which continued effectively until the children started returning to the father with what he perceived as bruises. I note that bruises in August 2018 were said by the Department to have a reasonable explanation (check). In the end what led to the over-holding was the bruises shown in the August 2018 photographs. Having looked at these photographs myself, I simply do not accept the ridiculous assertions made by the mother, through her counsel, that these might have just represented scratching by the child while in the bath. There is a clear mark of a splayed hand on [Y]'s thigh. This was undoubtedly perpetrated by the mother. I fully accept that Mr F does not in any way abuse the children.
Serious as this matter is, however, the fact is that the mother, for all her difficulties, has been the primary carer of these children for most of their lives.
The father has moved from Suburb M to Suburb H in January 2018. I do not accept his assertions that he did this because the mother had told him she was going to move to Suburb L with Mr FF. The father's evidence about the relationship with Mr FF was extremely flimsy on any view of the matter. He was already in a relationship with a woman who then lived in Suburb O and was unquestionably spending substantial amounts of time with her anyway. He and the new partner both work in Suburb CC on the same side of town. His new partner's children have a father who has lived on that side of town and is now living in Suburb DD.
It is the father's case that the mother's mental health is so precarious that one has to approach things she says with caution, and his decision to buy a place by January 2018 when, on his version of the events, he was only told by the mother that she would move to that side of town in December 2017, was grossly over hasty. In fact, what happened was that he was keen to move there and did so.
The mother may have said something in some strange fashion that led him to construct the view that she was going to move, but she was already in a relationship with Mr F, and there is no reason to suppose that she ever intended to move to Suburb L. I fully accept the mother's denials in this regard. What has happened is that the father has reconstructed the events favourably to the version for which he now contends, and although he is honest when he says it, I do not accept it.
Having dealt with these factual issues, it is time to come to the statutory pathway.
Parental responsibility
Although, as I find, there has been at least one incident of physical violence perpetrated by the mother on the children, this is not, as the Independent Children's Lawyer rightly submits, a case in which the presumption should be rebutted. These are two loving parents who most unfortunately have dug themselves into a hole of mutual suspicion and distrust. It is entirely in the children's best interest that both parents have an appropriate and ongoing equal role in making decisions about major matters in the children's lives. Although this puts the matter shortly, in my view the Independent Children's Lawyer's submissions are so manifestly obviously correct, given the totality of the material before the court, that it is unnecessary to say more.
It should be noted in passing that the father's view of the mother, and the way in which he portrays her to the children, is a matter of ongoing concern and there is a need to protect the children against that negative construct.
The best interests of the children - the primary considerations
Everyone agrees, at least in principle, that it is appropriate that the children have the benefit of a meaningful relationship with each of their parents. This is mitigated in each parents' case, as I find, by their distrust of the other, albeit that this is more marked on the father's part. The fact is that, for all the difficulties the parties have alleged as between them, they agreed a shared care regime, which is entirely to their joint credit.
Although there is, of course, the need to protect the children from risks of abuse in the manner delineated in section 60CC(2)(b), and that matter requires greater weight, in my view, it is not gainsaid given the overarching circumstances.
Section 60CC(3)(a)
The children expressed a clear view that they wished to see their mother when seen by the 11F counsellor. By the time of the family report interviews in April 2019, [X] was extremely shy and quiet about saying which household she wished to live in. I note that she made no negative statements about her mother or her partner and did not talk about the very recent incident in March of which the father has made so much. [Y] wanted to keep things the way they were but could not explain why, but he enjoys seeing his mother and Mr F. [Z], given her age, was not separately interviewed.
It should be noted that the incident in March 2019, regrettable as it obviously was, did not involve the assaults asserted by the father. [X] was very upset, and neither parent appears to have handled this terribly well, but that is all that needs to be said about it. I comprehensively reject the assertions that the mother has otherwise assaulted [X] by twisting her nipple or shutting her in a dark room.
It should be noted that any views that the children express also must be approached with the caution that unintentionally, no doubt, the father has made his views about the mother very clear and has made it clear that he wishes the children to espouse these views. The children also are relatively young and this needs also to be borne in mind.
Section 60CC(3)(b)
The children appear to have excellent relationships with both of their parents. They also get along well with both of their new partners, who come across in the main extremely well and emerge from the materials as exemplary. The children have, it seems, a good relationship with Ms G's children, who are said to be roughly the same age. There is no reason to suppose they do not otherwise have good relationships with the extended families on both sides. It should be noted that the mother has been the primary carer of the children for most of their lives. She was plainly the main child-rearer during the relationship during which effectively the husband was working all the time. Even when the relationship was disrupted, it remained equal time until ultimately the father unilaterally changed matters.
Section 60CC(3)(c)
Each of the parents has made appropriate endeavours to participate in making decisions about the children and to spend time and communicate with them.
Section 60CC(3)(d)
A change back to primary residence with the mother would obviously be a significant change to the children. However, living with their father is not a matter that has been in place for a greatly extended period of time. I accept that they get along well with Ms G's children, but obviously a change of residence would not sunder that relationship. A matter that, in my view, has not perhaps been sufficiently emphasised is the fact that the children have been in the school they are presently in since their education commenced. I note that the father would have it that [X] has no friends, and the material suggests that she is perhaps equivocal about this.
However, nonetheless, Mr C's view, which I accept, is that the children are doing well socially at school, but even if perhaps less well academically. Given the very long drive that they have been undergoing to and from school since living permanently with their father, this is perhaps not entirely surprising. It should be noted that the school was selected by the father himself, so it must be taken to be an entirely satisfactory one. It was self-evident there would be a major change to move to a school right across the other side of Melbourne.
Section 60CC(3)(ca)
Both of the parents have been satisfactory insofar as their obligations to maintain the children are concerned. The father's decision to evict the mother with no money and nowhere to live is not to his credit, but it is not, in the scheme of things, a significant consideration.
Section 60CC(3)(d)
I have in reality already dealt with this matter. In the event that the children change residence, it should be noted, amongst other things, they will be much closer to their paternal grandparents, and it is likely that they will see more of them. Self-evidently they will see less of the father, Ms G and her children. There is no reason to suppose, however, that the children will not be able to readjust to life with their mother and with Mr F, whom they apparently like.
Section 60CC(3)(e)
The tyranny of distance in this case is a matter of some moment. Realistically an equal time arrangement is totally impracticable. It is in the children's best interests to live in the primary care of one of these two parents and to spend substantial and significant time with the other. There is no difficulty in terms of expense that has been articulated, although one might infer the mother may struggle with the costs of transport, but the fact that the father has been able to drive daily from Suburb H to the children's school shows that there is no practical difficulty or cost difficulty in his travelling to collect the children should they live in their mother's care.
Section 60CC(3)(f)
The mother has effectively been the primary carer of these children. She is well equipped to continue that role subject to the important caveat that she pay careful attention to her health, especially following the advent of the child who will probably be born by the time these reasons for judgment are delivered. However, the evidence shows that she is now far better aware of her difficulties and taking active and proactive steps with Mr F to address this problem.
The father is likewise well able to look after the children, as the Independent Children's Lawyer rightly submits. There is, however, a caveat in that his distorted distrusted view of the mother, based to an extent, however, on a reasonable appreciation of some of her past behaviour (the 2014 texts for instance), means that he is unable readily to promote the relationship with the mother. This is a significant and, in my view, very significant factor to which substantial weight must be given.
Section 60CC(3)(g)
This subsection, although important, has essentially been dealt with above. Both parents live with thoroughly estimable partners in perfectly normal and acceptable lifestyles.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3(i)
Once again, although important, this matter has already been largely addressed. Both of the parents love their children. They both take their responsibilities of parenthood seriously. Their mutual distrust and dislike unfortunately presently somewhat distorts their attitudes, and it is to be hoped that this judgment will enable them to move forward.
Section 60CC(3)(j)
Although I have not dealt with this matter in any detail, it is clear from materials as a whole that both parties agree the relationship was an unhappy and turbulent one towards its end. There is no doubt the children would have been exposed to arguments and family violence in that sense at that time. I have already dealt with the mother's assaults on the children which, while significant, are not, in my view, decisive.
Section 60CC(3)(k)
Although there has been an Intervention Order against the father in the past, this has now expired and does not, in my opinion, affect the outcome of this matter at all. The Intervention Order taken out by the father’s mother (and possibly father also – the matter is not clear) does not operate significantly on the matters in dispute.
Section 60CC(3)(l)
Everyone agrees that it is appropriate that final orders be made now.
Section 60CC(3)(m)
There are no other relevant matters.
Conclusion
In the end both of these parents have their fallibilities and weaknesses. On the one side there is the mother's mental health difficulties and the associated problems that arise when she is stressed, including physical discipline of the children. On the other hand there is the father's lack of insight into how his behaviour influences his children and the pernicious effects this has had on the children. These effects are only likely to continue, because the father entirely accepts everything that the children tell him about the mother, not having the insight to realise that the children are telling him what he wants to hear. Putting the matter bluntly, if the children remain with the father, their relationship with their mother is likely to get worse and worse, and it is already showing signs of strain.
In the end my conclusion can be put shortly. It is plainly in the children's best interests that they live with their mother and spend substantial and significant time with their father. She has been their primary carer, and despite her weaknesses, she remains the parent best equipped to provide for the children's needs on an ongoing basis. It should be noted that both of these parents – either have or shortly will have new children with their new partners, so both face measures of stress.
The need to protect the children from the unfortunate effects of living with their father, in my view, tip the balance firmly and decisively in favour of the outcome for which the Independent Children's Lawyer contends. It should be noted that Mr C's evidence confirms the father's failings in this regard.
For these reasons, there will be orders as proposed by the Independent Children's Lawyer. The ancillary orders proposed were not, as I understand it, the subject of significant, if any, dispute and, in any event, in my view, are entirely in the children's best interests.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 24 June 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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