Vaduva and Petran

FAMILY COURT OF AUSTRALIA

VADUVA & PETRAN

[2014] FamCA 464

FAMILY LAW – CHILDREN – with whom the children live – parental responsibility – where the presumption is inapplicable – where there is a history of family violence –where the father and the paternal grandmother have had primary care for the children since separation – where the mother has re-partnered – where there is significant distance between the parties – where the children live with the father – where the father has sole parental responsibility for all major long term issues.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 64B, 65D, 65DAB

McCall v Clark (2009) FLC 93-405
Cox & Pedrana [2013] FamCAFC 48
Vigano & Desmond [2012] FanCAFC 79

APPLICANT:

Mr Vaduva

RESPONDENT:

Ms Petran

INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

FILE NUMBER:

BRC

2723

2011

DATE DELIVERED:

27 June 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

6 and 7 June 2013,
1 November 2013,
3 April 2014

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Malcolmson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hatzis Lawyers for 6 and 7 June 2013;
Forest Glen Lawyers for 1 November 2013;
Forest Glen Lawyers for 3 April 2014

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The children B, born … 2004, C, born … 2006 and W born … 2007 live with the father.
The father have sole responsibility for the major long term issues regarding (“the children”) with such issues to include but not be limited to:
(a)       the children’s education;
(b)        the children’s religious and cultural upbringing; and
(c)       the children’s health.
Except in the event of an emergency involving the children, the father is to consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:
(a)the father shall inform the mother about the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision, in writing;
(b) the father shall give the mother 14 days to respond;
(c)the father shall consider the mother’s views and response when coming to his decision;
(d)the father will inform the mother of the final decision he has made with respect to that issue as soon as practicable thereafter.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.
The children shall spend time with the father:
(a) on the first weekend of each month; and,
(b)if there are five (5) weekends in the month – on the last weekend of the month.
For the purpose of Clause 6(b) above, the weekend is defined to encompass from after school Friday until 5.00 pm Sunday and a weekend shall be considered to fall within a month if any day of it occurs within that month.
The children shall spend time and communicate with the mother at all times as may be agreed between the parties in writing and, failing agreement, as follows:
(a)from 4.00 pm Friday until 4.00 pm Sunday on the weekends when they are not spending time with the father;
(b)during the school holiday periods at the end of Terms 1, 2 and 3 of each year :
(i)for the first nine (9) days in even numbered years; and
(ii)for the last nine (9) days in odd numbered years.
(c) during the school holiday period at the end of Term 4 in each year:
(i)for the first, third, fifth and seventh week (if applicable) in even numbered years; and
(ii)for the second, fourth, sixth and eight week (if applicable) in even numbered years.
The children shall spend time with the mother each year from 4.00 pm Friday until 4.00 pm Sunday on the weekend on which Mother’s Day occurs.
The children shall remain in the care of the father each year on the weekend on which Father’s Day occurs.
The operation of Clauses 6 and 8a shall be suspended during all school holiday periods and shall recommence on the first weekend after school recommences for any Term.
That unless otherwise agreed between the parties in writing, changeover will occur inside the McDonald’s Restaurant, Suburb A and may be facilitated by either party or their nominee provided any nominee is a person known to the children.
The mother shall not allow the children to spend time with Mr E H, Mr F H or Mr G H unless she is present at all times.
When the children are communicating with the other parent each parent shall:
(a)ensure that the children are available to receive the telephone call or the Skype communication;
(b)arrange for the children to telephone or Skype the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call or the Skype communication;
(c)ensure that the children have privacy during their communication with the other parent.
That the mother and father shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;
(b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the children;
(c)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the children;
(d)keep the other informed of any school, educational facility or extra-curricular activity provider attended by any of the children;
(e)refrain from consuming alcohol to excess or being under the influence of alcohol at a level higher than that which would enable that parent lawfully to operate a motor vehicle while the children are in their care.
That by this Order, any day care, school, educational facility or extra-curricular activity provider attended by the children is hereby authorised to provide to each parent, at that parent’s request and cost, all information about the children’s educational progress and school related activities.
That by this Order, any medical or other health professionals who treat the children are hereby authorised to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the children’s attendance and treatment;
Neither parent shall denigrate the other, their partner or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
Neither parent shall discuss these proceedings with the children nor involve the children in any discussions regarding any issue in dispute between the parties.
Subject to the conditions imposed by the children's schools or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
That all outstanding applications are dismissed.
That the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2723 of 2011

Mr Vaduva

Applicant

And

Ms Petran

Respondent

REASONS FOR JUDGMENT

These proceedings concern B, born in 2004 (currently aged 9 years), C, born in 2006 (currently aged 8 years) and W, born in 2007 (7 years) (“the children”).
The children’s parents commenced cohabitation in around 2000. They separated in about December 2010 when the mother left the former joint residence.
It is clear the paternal grandmother provided significant care for the children during the parties’ relationship and after their separation. I accept she has been a stabilising influence in their lives.[1]
[1] Paragraph 2.12 of the Family Report dated 27 November 2011, Filed 9 December 2011.
Whilst the mother now raises some concerns about the father’s capacity to provide for the children and/or meet their needs, they remained in his care at separation. From December 2010 until 27 March 2011, the children spent some limited time with the mother on a couple of occasions.
On 27 March 2011, the mother and members of her family attended at the former shared residence (“the March 2011 incident”). A confrontation occurred. The parties disagree about what exactly happened and whether the children saw the father injured during this. What is not in dispute is that the mother’s purpose in attending that day was not to remove the children from the father’s care but, rather, to collect possessions. The incident ended with the mother taking the children into her care.
I accept that the father was injured during the March 2011 incident. I also accept that it is more likely than not that the children were sufficiently present during this event to at least be aware that the father had been injured.
The children did not see the father from 27 March 2011 until 16 May 2011. On that day, Federal Magistrate Demack (as her Honour then was) ordered, amongst other things, that, from that day, the children live with the father. Her Honour also ordered the children spend time and communicate with the mother from 4.30 pm Friday to 4.30 pm Sunday each weekend other than the fifth weekend in any month – on that weekend they were to remain in the father’s care (“the May 2011 Order”).
On 28 November 2011, her Honour listed the matter for final hearing commencing on 30 May 2012. Trial directions were made to facilitate this listing. On 30 May 2012, for reasons which are not clear, her Honour vacated the final hearing and transferred the matter to this Court.
Save for an agreed change to the place where the children transition between households - now at Suburb D Shopping Centre - the parties have implemented the terms of the May 2011 Order since it was made.
The mother has re-partnered with Mr I. They have a child, J, born in 2013 and live at Suburb K, (outside of Ipswich). Mr I works in employment which sees him absent from their shared residence for ten days in every fourteen.
The father and the children have lived in a number of different rented premises since separation. He and the children currently live with the paternal grandmother in her home at Suburb L. She and the father plan that she purchase this home, as she is entitled to do, and extend it so as to add an additional bedroom to better accommodate the father and the children[2].
[2] See: Family Report dated 11 March 2014 at paragraphs 3.2, 5.2, 6.7, 6.18.

The Competing Proposals

The father proposes the children remain living with him. He would like that they have the opportunity to spend alternate weekends with him. In the event that this aspect of his proposal does not find favour, he proposes the children spend one weekend in four in his care so they have the opportunity to spend weekend time with him. He also proposes that the children spend the majority of school holiday time with the mother. He proposes that an order for equal shared parental responsibility is made. He seeks an order restraining the mother from permitting the children to spend time with her family members: Mr E H, Mr F H and Mr G H.
In broad summary, the mother proposes that the children live with her, she have sole parental responsibility for them and they spend time with the father for three out of four weekends from Friday afternoon until Sunday afternoon; for nine days during every school holiday period other than that at the end of the year - which also includes provision for a shared period of time over the Christmas Eve to Boxing Day period - and between lunchtime Christmas Day and lunchtime Boxing Day during the end of year school holiday period.
Whilst the mother has, in her affidavit material, raised allegations that, prior to separation, the children “suffered greatly” or in fact “nearly died” whilst in the care of the father and paternal grandmother, I am not persuaded by this : these alleged matters did not raise sufficient concern for the mother at separation when she left the children in the father’s primary care, or leading up to the March 2011 incident during which it was her intention to retrieve property and not the children. In addition, it is immediately apparent that each parent’s proposal for the time the children spend with the other parent implicitly recognises that parent’s current capacity to meet the children’s physical needs during such time.
Each parent’s proposal also makes it apparent that, despite the issues each has raised about the other’s attitude to the children, both recognise how important it is for the children to have the opportunity to spend significant time with both parents.
In broad summary, the Independent Children’s Lawyer proposes that the children remain living primarily with the father and spend time with the mother for three weekends out of four and during school holiday periods.

Why does the mother say that the orders she seeks are in the children’s best interests?

The mother submits that it is in the children’s best interests to live primarily with her because:
a)the father has no home of his own and she has more space to accommodate them;
b)the father is not really involved in the children’s care and they are cared for primarily by the paternal grandmother when they live with him in circumstances where she – the mother – is available to care for them;
c)she is better able to assist the children to participate in extra-curricular activities;
d)the paternal grandmother has historically been overbearing in her attempts to be the main care giver for the children and has greatly exaggerated her prior care of the children;
e)the paternal grandmother is “visibly struggling” to care for the children “on her own”;
f)before 2010, the maternal grandmother spent more time with the children than the paternal grandmother who was only dominant in meeting their needs from October to December 2010;
g)the children have only formed the relationship they have with both the father and paternal grandmother since Court proceedings commenced and as a consequence of previous Orders;
h)before separation, the children suffered greatly or nearly died whilst in the care of the father or paternal grandmother – at times when the mother was engaged in employment;
i)the children should be primarily cared for by their mother “as God intended.”

Why does the father say that the orders he seeks are in the children’s best interests?

The father – who readily accepts that the mother loves the children, they love her and like spending time with her – submits that it is in the children’s best interests that they continue to live primarily with him because:
a)they have been in his primary care since the parties’ separation in December 2010 and have benefited from this;
b)this will enable them to continue to have a close relationship and frequent interaction with the paternal grandmother - as has historically been the case;
c)he has been able, since separation and with the assistance of the paternal grandmother, to provide stability for the children, the benefit of which has been reflected in their impressive school reports;
d)the children will be able to continue at their current school – at least for a period of time – rather than changing to attend a school close to the mother’s residence;
e)he is the parent better able to interact with and support B who, at times, has struggled in his relationship with both the mother and Mr I;
f)he has been the parent who has primarily met the children’s needs, including for financial and emotional support, since separation.

Principles

In these proceedings, being proceedings for a parenting order (s 64B of the Act) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper : s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act.
In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.

Parental responsibility

When making a parenting order I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility (“the presumption”) for them: s 61DA of the Act.
The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4).
Section 61DA(2) of the Act provides that, if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in either abuse of them or another child, or family violence, the presumption does not apply.
The evidence establishes that, in March 2011, the mother attended at the former joint residence in order to collect a television and a motor vehicle. She did not attend with the purpose of removing the children from the father’s care. She was accompanied by family members. I accept that the father suffered injury during this event. I also consider that the mother arranged to be accompanied by members of her family in circumstances where it was both highly likely and reasonably foreseeable that some sort of altercation would occur. In such circumstances, I am satisfied that there are reasonable grounds to believe that the mother and the family members assisting her engaged in family violence.
I am also satisfied that, as he told Dr M in late 2012, the father was somewhat fearful as a consequence of the March 2011 incident. I am persuaded that the mother’s behaviour in bringing her family members to the father’s home that day to assist her in obtaining the motor vehicle then in the father’s possession amounted to conduct toward him which caused him reasonably to fear for or be reasonably apprehensive about his personal safety. I also find that a reasonable person who was the recipient of this behaviour would fear for or be apprehensive about his personal wellbeing or safety.
Consequently, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[3]
[3] Cox & Pedrana [2013] FamCAFC 48 at paragraph 19.
I must determine that which is in the children’s best interests having regard to the considerations set out in s 60CC of the Act. I must determine whether, having regard to these considerations, it is in the children’s best interests that their parents have equal shared parental responsibility for them.

Benefit of a meaningful relationship with both parents

The Act does not define the term ‘meaningful relationship’ nor does it prescribe any criteria on which the Court should rely in order to assess how the children’s parents have or should have a meaningful involvement in their lives.

In McCall & Clark[4] the Full Court concluded[5] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ in s 60CC(2)(a) of the Act is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents.
[4] (2009) FLC 93-405.
[5] Ibid, at paragraph 119.
In Vigano & Desmond[6] the Full Court said, at paragraph 128 & 129:
The court must always consider the benefit of a meaningful relationship when considering the best interest of the children. However, if the court finds there are benefits to the children in having a meaningful relationship then the court would need to consider whether that would give way to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. However, a finding that there is a benefit to the child of having a meaningful relationship with one of the parents is not dependent simply on lack of danger of physical or psychological harm.
Sub-section (a) of s 60CC(2) stands on its own. If the court is not satisfied that there is a benefit to the children of having a meaningful relationship then whether or not there is a need to protect the children from physical or psychological harm would not necessarily need to be considered. Certainly the fact alone of an absence of physical or psychological harm does not of itself lead to a conclusion that there is a benefit to the child in having a meaningful relationship.
[6] [2012] FamCAFC 79 per Bryant CJ, Strickland & Murphy JJ.
I accept that there is a benefit to the children of having a meaningful relationship with each parent. I also accept the children will have the opportunity to continue to develop and maintain a meaningful relationship with each parent regardless of whether orders are made in the terms sought by either the father or the mother.

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

During the relationship the mother sought help from various health professionals. She disclosed, on occasion, the existence of domestic violence in her relationship with the father.
The father appears to have conceded this and has accepted, at least to some extent, that he has had anger issues. When convicted for an offence relating to property damage, the father was ordered to attend anger management counselling. He attended, but ceased after he was told he did not have an anger problem.
I have concluded that it is more likely than not that the parties had verbal arguments and disagreement during their relationship. Before me, each clearly demonstrated the capacity to interact in an argumentative and somewhat hostile manner. Both would clearly benefit from assistance in learning to communicate in a respectful manner.
The father told the Family Report Writer that the children saw the March 2011 incident during which he suffered injury and bleeding.[7] Whilst the mother does not accept that the children saw the father injured on this occasion, a recording of the incident captures a female voice saying “daddy is not dying” and later screaming at the children: “don’t look, don’t look, don’t look”. I am satisfied that it is more likely than not that, as a result of their presence that day, the children were exposed to the disturbing spectacle of the father suffering injury as a consequence of the actions of members of the maternal family.
[7]Paragraph 4.13, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
Clearly there is a need to protect the children from further exposure to any event similar in nature to that of the March 2011 incident. Thankfully for the children, there is no suggestion that there has been a repeat of such incident. Save for the March 2011 incident, there is nothing to suggest that the mother has again sought to involve members of the children’s extended maternal family in her interactions with the father.
Mr N, a psychologist, was engaged to prepare Family Reports for the Court’s assistance. Having interviewed the parties for the first time in October-November 2011, he noted that, whilst the children may or may not have witnessed previous incidents of domestic violence between their parents, they (the children) did not say anything to him to suggest the father needed to be supervised during any time that the children are in his care. I am not persuaded that the father has engaged in any behaviour toward the children to suggest that they are at an unacceptable risk of harm whilst in his care.
The fact that, in the Notice of Child Abuse or Family Violence filed 11 May 2012, the mother raised allegations which may have suggested the father had taken photographs of one of the children’s genitals (in circumstances where he had previously accused her of neglecting the children and told her that he had taken photographs of a bad rash on B’s bottom), and exposed B to pornography (in circumstances where the father had copies of the magazine “Zoo” – which contains pictures of women in bathing suits) at his home – gives rise to a concern that the mother is all too willing to place a sinister connotation on behaviour which, objectively viewed, provides no basis for such concern or such significant concern.
In a not dissimilar way, the father and paternal grandmother raised significant concern that, whilst spending time with the mother and her partner, B was given a “wedgie’ which upset him. They also raised significant concerns about the manner in which the mother’s household dealt with his upset. Whilst it may, perhaps, be understandable that the father and paternal grandmother were dissatisfied with how the mother approached this issue, I am not persuaded that her management of it exposed B to an unacceptable risk of harm.

The Children’s views

When Mr N spoke with the children on 25 October 2011, B ‘voiced some vague concerns’ about spending time with his mother. He did not seem very comfortable with the mother’s partner because of the manner in which the partner played with him, noting that it is sometimes too rough.
B, who was then 7 years old, when asked directly what his wishes were in relation to living arrangements said he thought “it would be better if his parents were together “so we don’t have to drive everywhere every Friday””.[8] However, failing this, B was concerned that the time spent with each of the parties was “fair”, suggesting that “five days and four days and then four days and five days”.[9]
[8] At paragraph 7.12.
[9] At paragraph 7.15.2.
A reluctance to attend upon his mother’s residence was expressed in the most recent Family Report, in which B “spoke of there being “a lot of stress” in his mother’s home.”[10] He said that when his mother is angry, “[Mr I] backs her up”, and that he (i.e B) “is always scared of him because [Mr I] gets very angry ‘for such little things’”.
[10] Updated Family Report 11 March 2014, paragraph 6.4.
C, who was 5 years old at the time of the first interview, did not express similar sentiments in respect of the mother’s residence or her new partner. She told Mr N she liked each of her mother, father and paternal grandmother’s homes. While C did not express a desire in relation to where she should live, her demeanour and responses indicated she was not unhappy with any of the elements of the current arrangement. The Updated Family Report similarly noted C’s position in relation to the current living arrangements - she commented if this persisted she would still be happy.[11]
[11] Updated Family Report, 11 March 2014, paragraph 6.26.
W, who was only 4 years old at the time of the 2011 interview, similarly indicated to Mr N that he “likes to see him Mum and he likes living with his Dad too.”[12]. W’s position has somewhat changed since 2011. During his interview in February 2014 for the Updated Family Report, W reported that “he wished [his paternal] grandma had ten days and [his] mum ten days so it can be fair, “cause I only get to stay with my mum for two days”.”[13]
[12] Paragraph 7.33
[13] Updated Family Report Paragraph 6.30.
Whilst I have taken the children’s views, expressions and voiced comments into consideration, their ages limit the weight that can be accorded to the same.

Nature of children’s relationship with their parents and others

I consider the evidence establishes that, during their relationship, both parties worked hard to provide financially for the children. I accept that, on occasions when the father was unemployed, the mother engaged in paid employment to support the family unit. I also accept that, as a consequence of her engagement in paid employment at these times, the father was called upon to care for the children and did so.
I do not accept the mother’s assertion that she was the children’s primary care provider prior to separation in December 2010. I arrive at this conclusion given my overall concerns about the mother’s lack of voracity – as discussed elsewhere in these Reasons.
I accept that the paternal grandmother provided significant care to all of the children from the time of their respective births. The parties cooperated to enable her to become an accredited day care provider in 2009 - she has provided care only to the children of the marriage whilst undertaking this role.
I am well persuaded that the paternal grandmother’s practical day-to-day assistance facilitated the parents’ engagement in paid employment. I am also satisfied that, during their relationship, both parents looked to her to provide this practical day-to-day assistance. I have no doubt that the children have a well-established relationship with and a close, and probably primary, attachment to the paternal grandmother as a consequence of the provision by her of this care. They spoke fondly of her to Mr N during the course of his interaction with them.
I accept, as Mr N recorded at paragraph 2.12 of the November 2011 Family Report, that ‘it is undisputed between the parties that the paternal grandmother has taken a primary care role with the children and has been a stabilising influence in the children’s lives’. I do not accept the qualification suggested by the mother’s case that this primary care role and stabilising influence was limited only to a short period at the end of 2010 and since separation.
Given the warmth with which the children have consistently spoken of the paternal grandmother, I am not remotely persuaded that she has acted deliberately to hurt or injure the children at any time. I am not persuaded that she has deliberately placed them in any situation in which their safety could be compromised on any occasion.
In fact, such is the children’s attachment to the paternal grandmother that, during the interviews for the November 2012 Family Report, B said he wanted more time with the paternal grandmother. Whilst this comment must be seen in the context of his expressed view that equality of time between the mother and paternal grandmother was important, it is highly unlikely that a child of his age would seek such time if the paternal grandmother had been as uninvolved in his care as the mother’s case suggests.
I have no doubt that the children’s close attachment to the paternal grandmother has continued since the separation of their parents – it is clear she has continued to provide practical day-to-day assistance to them during the time they have lived with the father.
Contrary to the mother’s assertion to Mr N – to the effect that the children were fearful of the father because they had observed his violence during their parents’ relationship[14] – the evidence overwhelmingly persuades me that the children have a close attachment to the father. In fact, on occasion, the complaint has been that he has been unavailable to spend time with them because of his work commitments. I am also persuaded that the father has been able to provide significant emotional support, to B in particular.
[14] Family Report 27/11/11 at paragraph 6.8-6.9.
Whilst during the first Family Report interviews B voiced some vague concerns about spending time with the mother, it is clear – and uncontroversial – that, assessed overall, the children have a well-established relationship with the mother. Save for B, they appear to have an established and functioning relationship with her partner who, in any event, works away from the home for 10 days in every 14 days.
During the observations undertaken in mid-February 2014 for the preparation of the third Family Report, Mr N observed that whilst he did not appear apprehensive around the mother’s partner, B’s interaction with him was “distant”.
There is nothing in the evidence to suggest other than that, as the mother contends, they have a wonderful relationship with their half-brother, J. Given that the children have lived primarily with the father since separation, it is clear they have been able to develop this wonderful relationship during the weekend and holiday time they have spent with the mother. I am confident they will be able to continue to develop and maintain this relationship, and their relationships with the mother and her partner, provided they are afforded the opportunity to spend significant periods of time in the mother’s household.

Extent to which each parent has taken or failed to take opportunities to participate in decision-making in relation to the children, spend time with the children and communicate with the children

I accept that the father has taken all opportunities to be involved in the children’s lives. I conclude that, on occasion, as a result of financial necessity he has worked in paid employment for more hours per week than he would ideally have liked to do. His absence on such occasions from the children’s day to day life has been relatively limited and, I conclude, has arisen because of his overwhelming motivation to ensure that the children are well provided for. I have no difficulty at all in accepting the essence of his submission to the effect that he would “work his fingers to the bone” to provide for the children.
I also accept that the father has been actively involved in the children’s education and extra-curricular activities. He has demonstrated real interest in, and been supportive of, their achievements.
Whilst the mother is, at present, actively involved in and supportive of the children’s educational and extra-curricular activities, I am persuaded that, for a period of time after separation, this was not necessarily the case.
It is clear that, since separation, the father has taken decisions about the children’s schooling unilaterally. However, I accept that this has occurred in circumstances where the combination of the existence of the Protection Order and the mother’s likely attitude toward any actions potentially breaching the same, as discussed elsewhere in these Reasons, has meant that communication between the parties, at least since March 2011, has been non-existent.
In reality, there has been no meaningful communication between the parties since their separation at the end of 2010. At the mother’s insistence, all changeovers have been facilitated by the paternal grandmother who has been called upon to act as a “go-between”. This, too, has directly contributed to the yawning vacuum in the communication between the parties about the children.

Extent to which each parent has fulfilled or failed to fulfil the obligation to maintain the children

Whilst the mother has, of course, provided for the children whilst they have been in her care, the father has met all of the other financial obligations to maintain the children since separation. He has done so by, on occasions, working geographically distant from the children for periods of time and by working long hours during time he could otherwise have spent with the children.
He has also done so in circumstances where, because of her involvement in J’s primary care, the mother has not been in a position to pay child support to the father for the children. These limitations upon her financial capacity have also had the consequence that she has been unable to make any financial contribution of significance to the cost of the children’s extra-curricular activities other than when they are with her.

Likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either parent or any other child or person with whom they have been living

The children have each attended Suburb L State School for all of their education to date. An order that they live with their mother would result in them leaving this school to attend another located geographically close to her.
In late 2011 Mr N expressed the opinion that the children’s attendance at their current school was a stabilizing factor in their lives. At that time, he thought a change to their schooling unlikely to benefit them. I accept that, since separation, it is more likely than not that the consistency of school provided the children with stability as they learned to adapt to being parented by two parents who live apart.
Whilst Mr N continues to suggest that maintaining the children at their current school will continue to provide them with stability, other factors – such as the potential that other schools may provide better opportunities for each individual child to reach their full potentials – also need to be taken into account.
In the event that the children remain living primarily with him, the father intends that they commence attending a different school at the start of 2015. He has arrived at this decision – without input from the mother - having had regard to the opportunities that other educational facilities may provide to the children.
The benefit to the children of continued attendance at their current school is, therefore, limited in time: if they remain living with the father they will be able to complete the school year at their current school before changing to another educational facility, whilst if they live primarily with the mother, they will change school almost immediately.
A further significant effect on the children of an order that the children live primarily with the mother will be the obvious diminution in their opportunity to spend time with both the father and paternal grandmother in whose care they have flourished.
In considering the impact upon the children of a diminution in their time with the paternal grandmother, I accept Mr N’s evidence where, in the first Family Report, he identified the children’s relationship with her as an important factor which provided them with stability and continuity of care. A change to their current care regime would bring with it a disruption to this continuity and stability – a consequence which is unlikely to benefit the children.
I am well persuaded, given the significant involvement of both the paternal grandmother and the father in the children’s day to day parenting, including since separation, that a change to the existing care regime would be likely to cause the children some disruption, dislocation and upset.
I accept Mr N’s evidence that B in particular would have difficulty adapting if he had to live primarily with the mother given the problems in his relationship with her and her partner. There is, of course, no suggestion by either party that the children should be separated.

Practical difficulty and expense of the children spending time with and communicating with a parent and whether such difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis

The father and children currently live with the paternal grandmother on the north side of Brisbane. The mother lives in the vicinity of Ipswich.

The distance between the respective households is such that it is impracticable for the children to live with each parent for equal time. This impediment does not occur, however, where the children live primarily with one parent during the school week and spend weekends and holiday time with the other. So much is recognised by the fact that each party’s proposal for the time the other spends with the children is significantly similar.
Given that the parties have successfully implemented the May 2011 Order, there is nothing to suggest that there is any practical difficulty and expense which would, in the future, substantially affect the children’s right to maintain personal relations and direct contact with each parent whatever the specific terms of the parenting order.

Capacity of each parent to provide for the children’s needs, including emotional and intellectual needs

During interviews for the preparation of the November 2011 Family Report the father expressed concern that the mother did not “really listen” to the children, and had called B a sook and a whinger. He also said he believed she was unable to cope with all of the children at any one time if they were “needy”.[15] He did not, however, spontaneously raise any concerns about her mental health or any drug and alcohol misuse.[16]
[15]Paragraph 4.14, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
[16]Paragraph 4.24, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
Whilst the mother has subsequently raised concerns about the father’s capacity to care for the children based on her assertions of his drug use – including the alleged use of marijuana, cocaine and amphetamine –she left the children in the father’s care at separation in December 2010. Further, her intention during the March 2011 incident was to remove chattels, but not the children, from the father’s care. I conclude from this that, whatever may have been the true position in respect of the allegations about drug use, the mother did not consider the children to be at risk in their father’s care either at separation or some months later.
In addition, I accept, as the father told Mr N during the first interview, that he has complied with all requests to test for the presence of illicit substances and that each of the three tests undertaken have returned clear results.[17] In a similar manner, the mother has returned clear results when she has undertaken tests for the presence of illicit substances.
[17]Paragraph 4.25, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
I do not accept the mother’s contention that the father and paternal grandmother lack the patience or practical experience to care for the children adequately. I do not accept the contention that the mother is better able to provide resources to assist the children in their development than the father and paternal grandmother nor do I accept that she is likely to provide “better” day-to-day parenting to the children than that which they have received from the father and paternal grandmother. Regard need only be had to the children’s excellent school reports – in terms of both achievement and, importantly, overall behaviour – to see that the children have flourished in their care.
I do not accept the mother’s litany of complaints to the effect that the children’s physical needs have been neglected whilst in the care of the father and paternal grandmother. I am confident that if the children’s hygiene needs, dental care needs or general health needs had been neglected as alleged, the consequences of such neglect would have been observed by their school. No mention of any such issue can be found in any of the children’s excellent school reports.
I accept Mr N’s opinion, as expressed in the November 2012 Family Report,[18] that nothing in the material validates the mother’s concerns that the children are neglected by the father or paternal grandmother.
[18] At paragraph 10.7.
Whilst it is entirely possible that, during his time in his mother’s care, B has on occasion “back chatted” and refused to undertake tasks as requested, such behaviour is entirely inconsistent with that reported by the father, the paternal grandmother and the school. It seems to me to be more likely than not that such behaviour – as reported by the mother – is indicative of the tension within the relationship between B, the mother and her partner rather than a reflection of any deficiencies in the parenting provided by the father and paternal grandmother.
The mother raises concerns about the children’s safety whilst being driven in a motor vehicle operated by the paternal grandmother. However, her own proposal for the manner in which the children will transition between households involves the paternal grandmother continuing to drive to and from Suburb D. She does not, for example, propose that she do all of the driving necessary to facilitate changeovers.
I accept that the father himself has demonstrated the capacity to care for the children. On the occasions when the children have lived with him at a residence other than the paternal grandmother’s home, he has met their day to day needs as required. Whilst he has had the benefit of significant assistance provided by the paternal grandmother, I am confident he possesses the capacity, himself, to ensure that the children’s day to day needs are met.
On occasions when the children have lived with the father at the paternal grandmother’s home, he and the paternal grandmother have jointly met the children’s day to day needs. Again, I am confident that, on these occasions, the children’s day to day needs have been met. I am not persuaded that the mere fact that the father has, on occasions, rented premises and, on other occasions lived with the children, in the paternal grandmother’s home demonstrates an incapacity to parent the children on a primary basis.
I do not accept the mother’s submission that her household is more “stable” than that of the father. Since separation in December 2010 the children have had the benefit of his consistent – and mostly daily – involvement in their lives and the consistent and daily involvement of the paternal grandmother in their lives. Whilst, on occasion, they have lived at different residences during this time, they have had the stability of the consistent and predictable involvement of both the father and the paternal grandmother in their daily lives.
I do not accept the mother’s assertion – as contained in her July 2011 affidavit[19]– that the children were exposed to extreme forms of discipline whilst in the father’s care. Such assertion is inconsistent with Mr N’s observation of the children’s interaction with the father. I do not accept the mother’s assertion that the father told the children to misbehave whilst in her care. This is inconsistent with the view I have formed of the father’s approach to parenting: an approach which I have concluded involves maintaining appropriate discipline over the children and which has seen him described by the paternal grandmother as being “stern” with the children.
[19] Filed 21 July 2011.
The mother has a history of mental health issues which includes at least one suicide attempt. She has previously engaged in self-harming behaviour and has been hospitalised on occasion for mental health issues.[20] I accept that, against the background of a childhood in which there was violent conflict between her parents, and violent criminal behaviour leading to the incarceration of her father, these issues may well be a product of circumstance rather than the result of an underlying mental illness. Whatever the cause, I accept Mr N’s evidence, as outlined in the November 2012 Family Report, that the mother’s personality vulnerabilities continue.
[20] Dr M report pages 8-9.
I accept Mr N’s evidence that, during his observation at the end of 2011, there was nothing concerning in relation to the mother’s ability to care for the children during the weekend time they were spending with her. Whilst I accept that the mother has the capacity to meet the children’s day to day needs during weekend and holiday periods, I am also persuaded that, for B at least, there have been occasions during which his relationship with her has been somewhat strained.
Counsel for the Independent Children’s Lawyer submitted that, as the parties have complied with and implemented the terms of the current operative parenting Order, the Court would be persuaded that both parents have demonstrated a willingness and ability to encourage and facilitate a close relationship between the children and the other parent.
Whilst there is certainly a basis for such a submission, I consider that compliance with the terms of an Order and a true willingness to support and encourage a relationship between the children and the other parent are two quite different matters.
The evidence compels me to conclude that the mother has been willing to express very negative comments about the father as a parent. For example, during a relatively recent text message exchange with the paternal grandmother about the children participating in a Scouts program, the mother said:
Do not sign the kids up. [The father] can volunteer if he wants because he will fit in well with all the paedophiles and kiddy touchers running those groups. It made the news the other week. Children being molested at scouts, particularly little boys... [The father] is a bad person and a liar. He will fit right in with the dishonest scout leaders that are also liars and cowards. The kids resent him and don’t like you either. They just don’t say so because they don’t want to hurt your feelings.[21]
[21] Annexure H, Affidavit of – Ms O Petran filed 17 March 2014.
That this communication occurred as recently as about 6 February 2014 persuades me to conclude that the mother continues not only to hold very critical views of the father but remains willing to express them. She clearly is prepared to convey to the paternal grandmother a sentiment about her which, objectively viewed, is not only highly unlikely to be true but also highly likely to be intended to be hurtful. One cannot, in this day and age, discount the possibility that the children may, at some stage, become aware of the contents of the text message and any others like it which contains similar expressions of negative views about the father.
It would have been so easy for the mother to record her disagreement with the proposal that the children participate in scouting activity without descending into unnecessary and gratuitous denigration of both the father and the paternal grandmother. That she has been unable to do so as recently as February 2014 is a clear demonstration of both her incapacity to communicate civilly about matters relating to the children and her willingness to continue the pattern of animosity between the parents.
Further, this behaviour persuades me that, if the children lived primarily with the mother as she seeks, there is a very real possibility that they would be exposed to her negative, critical and derogatory views about both the father and the paternal grandmother.
In addition, I cannot discount the significant prospect that, if the mother had the benefit of her view of the control and power associated with an order in the terms she seeks, she may act to undermine the children’s ongoing relationship with both the father and the paternal grandmother – perhaps using the rationale that the children “resent” the father and “don’t like” the paternal grandmother.
If the children were to live primarily with the mother, the existence of the underlying attitude and sentiment apparent in the contents of the text set out above makes it easy to foresee a scenario in which the children’s time with the father and paternal grandmother is not supported because, as the mother clearly believes is currently the case, they “resent” him and “don’t like” her.

The maturity, sex, lifestyle and background of the children and of either parent and any other characteristics of the children thought relevant

The mother does not have a criminal history. Whilst the father has a criminal history involving marijuana possession and possession of a weapon, I am not persuaded that these previous offences reflect any incapacity to parent the children.
Both parties were interviewed by Dr M in late 2012. There is nothing to suggest that the father suffers from any major mental illness. I accept Dr M’s opinion that, over a significant period of time, the father previously had difficulties controlling his anger and emotions and that his engagement in counselling in relation to these issues was perfunctory. Despite this, as outlined above, I am persuaded there is nothing to suggest the children are at any risk whilst in his care.
As is the position with the father, there is nothing to suggest that the mother suffers from any major mental illness. I accept Dr M’s evidence that, whilst the mother’s history involves previous decompensation within the context of significant stressors, she has not demonstrated significant difficulties recently. I also accept, however, that during her interview with him, the mother somewhat minimised both the March 2011 incident and its likely impact on the children, and the impact on the children of her actions in withholding them from the father and the paternal grandmother from late March 2011 until May 2011.

The attitude to the children and to the responsibilities of parenthood demonstrated by each parent

I consider that, in the period immediately following separation, the mother demonstrated a somewhat inconsistent attitude toward spending time with the children. This clearly has changed and the parties have, as outlined above, consistently implemented the terms of the May 2011 Order.
Both the father and the paternal grandmother described the mother as a workaholic during the relationship. For example, the paternal grandmother described an occasion where the children had told her that they were with the mother at her workplace at midnight shifting boxes.[22] Whatever may have been the position during the relationship between the mother and father, I consider that the evidence establishes the mother has undertaken the primary parenting role for J since his birth.
[22]Paragraph 5.7, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
I have concluded that both the father and the paternal grandmother have supported the children in having an ongoing relationship with the mother – in fact, the paternal grandmother appears on a number of occasion to have been capable of ignoring – or at least putting to one side - often hurtful and derogatory comments – such as those contained in the February 2014 text message referred to in paragraph 93 above - made by the mother about her, her attitude to the children and their attitude toward her in favour of supporting the children in their relationship and time with the mother.
By his action in involving himself in the children’s care and education, supporting them financially and emotionally and encouraging their ongoing relationship with the mother, as I accept he has, the father has demonstrated a child focused attitude. I accept that he “learned a lot” from the parenting course he has completed.
I accept that the father has been focused upon and concerned about the children’s education and with providing them with opportunities to engage in various extra-curricular activities: he has previously worked long hours to make this happen. I also accept that, during the time he was not working, the father has been available to the children. There is nothing to suggest his attitude to the children and his behaviour in seeking to be actively involved in their lives is likely to change in the future.
I have concluded that, as already touched upon, the mother’s attitude toward the children’s ongoing relationship with the father and the paternal grandmother has been, at best, somewhat ambivalent over time. For example, despite having left the children to live with the father at separation in December 2010, as at June 2011, the mother sought that the children live with her and spend time – supervised by the paternal grandmother - with their father every second Sunday from 10.00 am until 4.00 pm. By the time the parties participated in the first Family Report interviews in late 2011, the mother’s proposal was that the children live with her and spend one night per week or one night per fortnight with the father “ideally” supervised by the paternal grandmother. These proposals demonstrate – as does the February 2014 text – the mother’s real attitude to the father and his involvement in the children’s lives: namely, that he have limited opportunity to interact with them or be involved in their day to day care.
I am also persuaded that, for whatever reason, the mother has been prepared deliberately to include in her affidavit material matters or allegations about the father and paternal grandmother which are either untrue or taken out of context. That she has done so provides a further basis upon which I am persuaded there is a very real risk that, if the children live primarily with her, she is likely to act to undermine their relationships with the father and paternal grandmother.
For example, the mother asserted the Family Day Care Scheme in which the paternal grandmother participated threatened to shut her down on two occasions - she also swore that the paternal grandmother was not operating a day care business and that she had reason to suspect this was because she was eventually shut down and was no longer part of the scheme[23]. This assertion is contradicted by correspondence from the Family Day Care Scheme which confirms the paternal grandmother was then, in 2013, registered with the approved provider as a home based educator.[24]
[23] Paragraph 45, Affidavit of the mother filed 23 November 2012.
[24] Annexed to the paternal grandmother’s Affidavit filed 27 May 2013.
Another example of this behaviour can, I consider, be found in the mother’s assertion that, on an occasion the paternal grandmother told her, in the child’s presence, that W was “the one the father doesn’t like.” I do not accept this assertion. I am not persuaded that it is in any way probable that the paternal grandmother told the mother on any occasion or in any context that W was “the one the father doesn’t like”. The evidence clearly establishes that the father has demonstrated a loving attitude toward, and relationship with, all three children and I accept his evidence that he loves all of his children equally.
That the mother was prepared to include these assertions in her affidavit material raises significant concern about the lengths to which she is prepared to go in support of her position that the father and paternal grandmother cannot care for the children and that they should live primarily with her.
Concern about the mother’s general voracity arises when one compares the mother’s evidence - that she was accepted recently as having passed the relevant testing for jet fighter pilot training - with the contents of the Air Force documents she tendered.
In her affidavit filed 23 November 2012 the mother asserts:
[B] and I have similar dreams of one day being a jet fighter pilot. I was accepted recently, having passed all relevant testing and as inspiration to [B] urged him on to do his best at school, especially maths and science and promised I would help.
However, the documents tendered by the mother do not establish that she “was accepted recently” or that she had “passed all relevant testing”. They merely indicate she attended a career counselling session with Defence Force Recruiting and was invited to attend a Specialist Testing session. Additionally, the results of the career counselling session appear to indicate that the mother was not eligible to become a pilot.

By way of another example, the mother asserted the children had not been going to school as they should have been and were not being assisted with their homework. The documents from the children’s school do not corroborate such assertions. Similarly, despite telling Mr N in mid-February 2014, that another reason the children would benefit from living primarily with her was that they needed help with their speech because of their exposure to the paternal grandmother’s English, he readily concluded there was nothing observably ‘wrong’ with the children’s speech when he spoke with them.
In addition, whilst acknowledging the children’s excellent progress at school, the mother appeared unable to accept that this has occurred, at least in part, as a consequence of the support and encouragement provided by the father and paternal grandmother in the period since separation in December 2010. Rather, she seems to seek to be accorded full responsibility for the fact that the children have received a large number of awards, saying, in essence, that her actions prior to separation led to their success. She says she is the parent who has provided the children with what she regards as superior problem-solving abilities.
Whilst subtle, I consider that this attitude also demonstrates an inability appropriately to recognise the contributions that all of the important adults in the children’s lives have made to their functioning to date.
Mr N referred, in the November 2011 Family Report, to an earlier assessment – unchallenged before me - by a Family Consultant who:
a)at that time, concluded the mother had unaddressed animosity toward the father and his family;
b)expressed the opinion that the views then expressed by the children about the father’s behaviour had arisen because the mother had portrayed him as a safety risk.
The contents of the mother’s affidavit material – as outlined above – and of the February 2014 text persuade me that the mother’s animosity toward the father and his family continues unabated.
Whilst the mother conceded to Mr N that the father was protective as a parent, she interpreted this as a demonstration by him of “ownership” of the children. This provides a clear example of the manner in which even positive attributes demonstrated by the father have been construed by the mother as negatives.
I am also persuaded that the mother continues to demonstrate – through her actions in publishing her views via text to the paternal grandmother – a negative and derogatory view of the father as both a parent and person. For example, the unedifying February 2014 text communication which asserted the father would feel “at home” with paedophiles clearly demonstrates her true opinion of him. That the mother has been willing, so recently, to express such an opinion about the father persuades me that it is more likely than not that, in the event the children live primarily with her, they will be exposed in some way to this view.
This recently expressed attitude and/or opinion about the father, when considered in the context of the mother’s previous deliberate actions persuades me that there is every likelihood, should the children live primarily with her, that they may be placed in a position of having their time with the father and paternal grandmother diminished and/or altered to accommodate their mother’s prevailing view.
I arrive at this conclusion because a similar thing happened after the March 2011 incident. Despite pleas from both the father and paternal grandmother to at least determine whether the children were safe and happy, the mother continued to deny them any contact or communication with the children until the father’s application in the then Federal Magistrates Court saw the children return to live with him.
I am persuaded that, during the period from the March 2011 incident until the May 2011 Order was made, the mother consistently ignored requests for communication or contact by the father and paternal grandmother, asserted that the children were too busy to speak on the phone and said that, when asked directly, the children indicated they did not wish to speak to the paternal grandmother. In addition, the mother repeatedly asked the paternal grandmother to send her items belonging to the children, whilst consistently ignoring the grandmother’s requests to speak with the children.
I am confident that, during this period, the mother either engaged in a course of conduct deliberately designed to exclude both the father and the paternal grandmother from the children’s lives or lacked the parenting capacity to ensure that the children remained in contact with them.
I am buttressed in these conclusions when regard is had to the contents of the mother’s June 2011 affidavit[25] in which she asserted the children were refusing to go to the father and she could not convince or coerce them against their will.
[25] Filed 15 June 2011.
Given that the mother left the children in the father’s care in December 2010 - and when they came into her care on 27 March 2011 had attended his home, not to retrieve them, but to collect a television - I am not persuaded it is likely the children had “refused” to go to the father or spend time with him. Further, in such circumstances, the mother’s assertion that she could not convince or coerce the children to spend time with the parent with whom they had lived primarily since December 2010 is either untrue or clear evidence of her incapacity to discharge one of the primary obligations of parenting: namely, to encourage the children – then aged 6, 5, and 3 - to have an ongoing relationship with the father and facilitate the same.
The tenor of the comments and underlying attitude toward the father and paternal grandmother evidenced in the February 2014 text strongly suggests that it is likely the mother would engage in this type of conduct again if the children live primarily with her.

Any family violence involving the children or a member of their family

Hospital notes dated in November 2007 record that the mother complained of experiencing domestic violence and that the father agreed he was verbally and physically abusive to the mother and needed to work on his own behaviour. The notes also record his assertion that the mother behaved equally badly.
I accept Dr M’s evidence that the documentation to which he referred supported a conclusion that there was verbal and physical aggression within the relationship to some degree and that the children had been exposed to this. That the children were exposed to further violence is apparent from the discussion of the March 2011 incident.
During his first interview with Mr N, B spoke about a discussion with the mother during which she told him about an instance of family violence perpetrated against her by the father. He did not see the event which led to the mother having a scratch on her knee, he only “knew” that something happened because he saw the scratch.
After he spoke with the children in mid February 2014, Mr N concluded that there was nothing in their behaviour or comments to suggest that they had been exposed to violence from the father whilst in his care.

Other relevant matters

The paternal grandmother told the Family Report Writer during the interviews for the preparation of the November 2011 Family Report that she wanted the mother to be involved in the children’s lives. I accept this is a truthful representation of her attitude toward the mother. I further accept that the paternal grandmother has been hesitant to express any critical views about the mother’s parenting in case such comments are perceived as complaints about the mother.[26] Such reticence is a clear demonstration of an ability to protect the children from exposure to negativity about the mother.
[26]Paragraph 5.11, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
I accept the Family Report Writer’s assessment of the paternal grandmother as a “caring woman who is child focused and who appears to have the best interests of the children at heart.”[27] She has clearly excelled in her care of them and, together with the parents, has fostered in all of the children a desire to work hard at school and achieve.
[27]Paragraph 5.13, Family Report dated 27 November 2011: Annexure "PJ 1", Affidavit of Mr N filed 23 May 2012.
I do not accept that the paternal grandmother has at any time or in any way acted in a manner contrary to the children’s best interests. I accept that she supported them in their relationships with both of their parents and that she will continue to do this in the future.
I accept Mr N’s opinion, as expressed in the third Family Report, that it is important that the children retain an attachment with the mother. This attachment can, of course, been maintained if the children continue to spend significant weekend and holiday time with her.

Further discussion

A continuation of the parenting regime by which the children continue to live primarily with the father during the school week and spend time with the mother on weekends and during school holidays will continue to provide the children with the stability and continuity of care they have received since separation. It will ensure that they continue to have the opportunity to spend significant time with the father and the paternal grandmother - who has provided them with much stability and support in the past and with whom they have strong and well established relationships - whilst also affording them the opportunity to continue to develop and enjoy an ongoing, meaningful relationship with their mother, their half-sibling and the mother’s partner.
Such a regime will also ensure that the children have the opportunity to remain at their current school until arrangements are made for them to attend at private schools as outlined in the father’s evidence. It will mean that they will continue to have the opportunity to live in the same geographic location in which they have spent a significant amount of time since separation. It will also mean that they are not required to adjust to the absence - from their day-to-day lives – of the father and the paternal grandmother from whom they have received the majority of their care since separation at the end of 2010 and in whose care they have continued to flourish. It will also mean that they will continue to live primarily with the parent who is best able to support them in their relationships with the other parent.
I am also persuaded that a continuation of the children’s primary living arrangement will ensure that B, in particular, is primarily supported by the father and paternal grandmother who have demonstrated a greater level of sensitivity and appreciation of his needs than the mother and her partner.
For the reasons outlined above, I have concluded that the children’s best interests will be met by a parenting regime which will see them continue to live primarily with the father and spend significant time with the mother on weekends and during school holiday periods.

What time should the children spend with the mother?

The father submits that the current operative Orders significantly restrict the children’s opportunity to spend a weekend time with him. Consequently, he submits that it is in their best interests to have the opportunity to spend alternate weekend time with each parent. In the event that this submission is unsuccessful he seeks that the children be provided with the opportunity to spend one weekend per month with him.
When Mr N spoke with the children in mid-February 2014, B was reluctant for there to be any decrease in his time with the mother. Whilst Mr N thought it was reasonable for the mother to expect the children to be made available to her each weekend, he also supported an outcome which would see the children spend one weekend per month with the father.
It is clear that the children currently spend the majority of weekend time with the mother. I consider that a continuation of the current regime whereby the children spend very limited weekend time with the father does not provide them with sufficient opportunity to enjoy unstructured time with him. I am persuaded that it is in their best interests that they have the opportunity to spend more weekend time with the father.
It seems to me that the balance of affording the children an appropriate opportunity to spend weekend time with the father and of ensuring that they spend sufficient time within the mother’s household to ensure the maintenance and development of meaningful relationships with those within it, is met by an order that the children spend the first weekend each month with the father and, in months where there are five weekends, the last weekend with him.
Such a regime will ensure the children have the opportunity to enjoy “down time”, which can only realistically occur on weekends now that they are all engaged in formal education, with the father.
I accept at this stage that it is in the children’s best interests that the children’s block holiday time with each parent is taken in alternating week long blocks. This will ensure that all of the children – and B in particular – are not separated from either parent for too long a time. I accept that such an arrangement is more likely to support the children in their relationships with each parent.
I am also persuaded that orders which allow the children to spend time with each parent during the Christmas Day – New Year’s Day period in each alternate year are preferable to an arrangement which would require the children to travel between the households on Christmas Eve and Boxing Day each year. Time each alternate year will allow the children to be settled in one household and will also obviate the necessity for the parties to travel at that time. Further, the children will spend either the week before the Christmas week or the week after the Christmas week with the parent with whom they will not spend Christmas Day and so will have a proximate opportunity to celebrate the festive season with that parent – albeit not on the actual day.

Where and how should changeover occur?

The father seeks that the changeovers occur at McDonald’s, Suburb A. He says that there is no longer any need for his mother to carry out changeovers. The mother seeks that “changeover details remain the same”- which would mean that only the paternal grandmother can attend and that changeover continue at Suburb D Shopping Centre.
I am persuaded to change the location of the changeovers to McDonald’s, Suburb A. I do not consider this to be a particularly arduous alteration to the existing arrangements, with the change in travel time for each of the respective parties being only five to ten minutes.
The paternal grandmother has played a significant and continuous role in changeovers. While I am not persuaded by the mother’s argument that her driving in any way endangers the children, I have taken the mother’s concern into account in arriving at the determination that the paternal grandmother need not be compelled to carry out changeovers into the future.
I am persuaded that it is appropriate that changeovers be undertaken by either parent or their nominee, provided that such person is known to the children.
The ongoing conflict between the parties, marked by intermittent Domestic Violence Orders and Temporary Protection Orders, supports the conclusion I have reached that changeovers occur inside the McDonald’s Restaurant Suburb A. This will mean that both parties will have the benefit – and protection - of the presence of security cameras which are regularly installed in such premises.

Should there be a restriction on who the children can spend time with?

I accept the submission made by Counsel for the Independent Children’s Lawyer that the evidence supports a conclusion that the children should not spend time with the paternal grandfather (Mr E H) or the mother’s brothers (Mr F H and Mr G H) unless this time is supervised by the mother and, given the March 2011 incident and the evidence of these persons’ previous involvement in significant criminal activities, I am persuaded that such an order is in their best interests.

Parental Responsibility

If the Court makes an order that the children’s parents are to share parental responsibility for them and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by their parents: s 65DAC(2) of the Act.
Whilst the father sought an order for equal shared parental responsibility, he told Mr N, during the interviews for the preparation of the first Family Report, that he did not have the mother’s address or telephone number. As at the end of 2011, the mother did not want the father to have her residential address. This remained the position when she spoke with Mr N in October 2012.
After Dr M saw the parties toward the end of 2012, he expressed the opinion that, given the high degree of hostility and conflict between the parents their co-parenting relationship would be foreseeably very difficult and it would be beneficial for a third party to manage communications.
Whilst the mother said, at trial, that she had no difficulty with the father contacting her in relation to the children, I note the terms of the Domestic Violence Order prohibited the father from having any contact with her save for written communication for the purpose of having contact with the children.
Given the history of this matter and the interactions between the parties after their separation, I have no doubt whatsoever that, had the father acted to contact the mother to discuss matters relevant to the children – as opposed to for the purpose of “having contact with the children” - she would have reported this to the Police as the basis for an assertion he had breached the terms of the Order.
The mother’s attitude toward the father – as expressed by her in the February 2014 text message set out above – does not suggest any diminution in the level of hostility and conflict between the parties when compared to that assessed by Dr M in late 2012. This, combined with the conclusions I have reached about the mother’s likely behaviour in the event that the father had contacted her to discuss the children during the currency of the Protection Order, her involvement in the March 2011 incident and the fact that the parents have not spoken or communicated in any way since this incident, compels me to conclude that I am not satisfied the children’s parents could now make decisions about major long term issues in relation to them ‘jointly’. They could not, I consider, carry out the obligation imposed on them by statute.
Consequently I am satisfied that it is not in the children’s best interests that their parents have equal shared parental responsibility for them.
I am, however, satisfied that it is in the children’s best interests that the father have sole parental responsibility for them. He has been the parent who has undertaken the primary parenting role since separation in December 2010. He has ensured the children continue to attend at school and has ensured that their needs have been met. He will be the parent with whom the children primarily live, particularly during the school week. He is the parent who has consistently acted to ensure that the children’s needs have been met. He has demonstrated a willingness to place the children’s needs above his own and to make decisions which have afforded them with all the opportunities he is able to provide. He has demonstrated a child focused approach to parenting and I have no doubt at all that he will continue to regard the children and their needs as matters of primary importance.
It is in the children’s best interests that the mother have the opportunity to provide input about any potential decision involving the children and that the father take such input into account when making the decision.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 June 2014.

Associate:

Date: 27 June 2014

[2014] FamCA 464

27 June 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Remedies