VEITCH & LESLIE

[2017] FCCA 106

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEITCH & LESLIE [2017] FCCA 106

Catchwords:
FAMILY LAW – Final parenting arrangements for children aged 14 & 12 – father seeks change of long standing living arrangements against a background of unilateral relocation – allegations of poor parenting – presumption of equal shared parental responsibility – high conflict – poor communication – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 61DA; 64B; 65D; 65DAA; 65DAC; 65DAE; 67N; 68LA

Evidence Act 1995 (Cth), s.140

Cases cited:
Veitch & Leslie [2016] FCCA 844
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
Bartel & Schmucker (No.3) [2012] FamCA 1094
Fox v Percy (2003) 214 CLR 118
D and S V (2003) FLC 93-137
Godfrey v Saunders 2008 FLR 287

Applicant: MR VEITCH

Respondent: MS LESLIE

File Number: ADC 2304 of 2008

Judgment of: Judge Brown

Hearing dates: 1 & 2 August, 27 September and 15 December 2016

Date of Last Submission: 15 December 2016

Delivered at: Adelaide

Delivered on: 30 January 2017

REPRESENTATION

Counsel for the Applicant: Ms Horvat

Solicitors for the Applicant: Johnston Withers

Counsel for the Respondent: In person

Counsel for the Independent Children's Lawyer: Ms Cocks

Solicitors for the Independent Children's Lawyer: Nelson & Co

ORDERS

1. All previous parenting orders are discharged.

2. The children X born (omitted) 2003 and Y born (omitted) 2004 live with the father from the commencement of the 2017 academic school year. 

3. In the event the mother elects to live in the (omitted)/(omitted) area, the children spend time with the mother as follows:

   (a)On each alternate weekend from 4:30pm Friday until 4:30pm the following Sunday or 4:30pm the following Monday in the event that it is a public holiday;

   (b)For the second half of each school holiday period;

   (c)For half of the Easter period from the conclusion of school on Maundy Thursday until 4:30pm the following Saturday;

   (d)For Christmas 2017 from 3:00pm on 24 December 2017 until 3:00pm on 25 December 2017 and each alternate year thereafter;

   (e)For Christmas 2018 from 3:00pm on 25 December 2018 until 6:00pm on 26 December 2018 and each alternate year thereafter;

   (f)For half of the long end of year school holiday with the children to be returned to the father’s care for the last week of this school holiday period;

   (g)From 10:00am until 5:00pm on Mother’s Day if the children are in the father’s care provided that the children are returned to the mother’s care from 10:00am on Father’s Day, if the children are otherwise in the mother’s care pursuant to these orders;

   (h)On the children’s birthdays at times to be agreed;

   (i)If the children are in the care of the father on the mother’s birthday then the children are to spend time with the mother from after school on the mother’s birthday until 8:30pm;

   (j)On special occasions at times to be agreed;

   (k)At such other or further times as may be agreed between the parties.

4. In the event that the mother elects not to live in the (omitted)/(omitted) area (defined by an area which falls within a radius of 75km which is centred on the (omitted) School) the children spend time with the mother for half of each school holidays, the halves to be agreed between the parties and failing agreement to be the first half. 

5. The children be exchanged between the parties to give effect to order (2) at the children’s school, or if school is not in session at the (omitted) Shop and in order to give effect to order (3) at a location to be agreed between the parties and failing agreement to be the (omitted) Shop.

6. The parties share parental responsibility for making long-term decisions in respect of the children apart from responsibility for making decisions about the children’s educational and counselling needs, which authority will reside in the father. 

7. In relation to the child X:-

   (a)The father self-refer to Country Child and Adolescent Mental Health Services (CAMHS) (telephone (omitted)), to organise a consultative based assessment, seeing parenting education and support and psychological intervention for the child, X to address underlying reasons for his behavioural issues at school refusal as soon as is reasonable practicable;

   (b)The father organise for the child, X’s referral to the school counsellor at X’s school for counselling; and

   (c)The father request that school counsellor at X’s school organise an assessment of the child, X’s learning needs to determine whether the child is eligible for funding for additional learning support, at the school.

8. Either party is at liberty to communicate with the children, when the children are in the care of the other, by way of telephone and/or skype at any reasonable time as agreed between the parties or failing agreement the children shall communicate with the children via telephone every Tuesday and Thursday at 6:00pm with the other to ensure that those communications with the children occur in private.

9. Each party shall keep the other informed of any serious illness, accident or incident involving the children and in the event of an emergency involving the children, the other party is contacted forthwith by telephone or text message.

10. The parties are at liberty at their own expense to obtain from the children’s school all letters, notices, newsletters, and school reports which a parent would normally receive and the parties shall be entitled to attend at all functions at which parents would normally attend AND this Order authorises the school to communicate with the parties and provide said information to the parties.

11. Each party is at liberty to communicate about the child’s health and welfare directly with any medical practitioner, psychologist, social worker or any other health professional.

12. As much as possible, communication, on matters related to the children, is to be conducted solely between the parties AND in the event of direct communication not being possible, the parties communicate with one another via SMS text messages.

13. The parties be restrained and an injunction be hereby granted restraining them from:-

    (a)abusing, threatening, harassing or denigrating the children, the other parent or their partners or allowing anyone else to do so, directly or indirectly in the children’s presence.

    (b)physically disciplining the said children or permitting or authorising or allowing any other person to do so.

    (c)use illegal substances in the children’s presence and ensure that the children are not exposed to any other persons drug related activities.

14. The applications herein be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2304 of 2008

MR VEITCH

Applicant

And

MS LESLIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern final parenting arrangements for two children – X born (omitted) 2003 and Y born (omitted) 2004.  The parties to the proceedings are the children’s parents – their father Mr Veitch and their mother Ms Leslie.  The case is a difficult and challenging one for a number of reasons, not least the intractable conflict between the parties.

2. The parties have been in dispute with one another, in respect of where X and Y should live, since mid-2008, which is shortly after they separated.  Needless to say, after nearly a decade of legal proceedings, the parties neither like nor trust one another and are incapable of communicating effectively.  It would be naïve for me to think anything other than that this regrettable state of affairs has had severely detrimental consequences for both children.

3. Since the last final order was made on 21 August 2013, the children have lived predominantly with their mother and spent regular weekends and holidays with their father.  Mr Veitch has lived at (omitted) for many years.  Ms Leslie at (omitted), approximately 50km away.  Both parties have significant and long-standing familial ties to the area of the (omitted).  Ms Leslie’s mother lives at (omitted), which is about fifty kilometres north of (omitted).  Several of her children, from earlier relationships, also live in the area.

4. The final arrangement, envisaged in the orders of August 2013, broke down in mid-2015, when the mother unilaterally relocated the children’s place of residence away from (omitted) to (omitted), in the South East of South Australia.  The mother’s ostensible reason for moving was so that she could pursue a relationship with Mr M, who had also previously lived in (omitted). 

5. This development led to Mr Veitch commencing the current round of proceedings in September of 2015.  At this stage, he sought the immediate return of X and Y to the (omitted)/(omitted) area.  In addition, he used his application to vent his long standing concerns that Ms Leslie was not attending to the children’s emotional needs, particularly X’s.

6. At the interim stage, his application took a protracted course through the court, as service on Ms Leslie was problematic, due to the uncertainty of her whereabouts, from Mr Veitch’s perspective.  Ms Leslie herself, when served, vehemently opposed the children returning to (omitted).  In addition, she had difficulty in formally responding to the application concerned. 

7. It was Ms Leslie’s position that she, X and Y were happy and well settled in (omitted).  She asserted that Mr Veitch was a violent and neglectful parent, who had been essentially disinterested in the children for some time.  She asserted that she had attempted to inform Mr Veitch of her desire to move to (omitted) but he had ignored her, leaving her with no viable alternative but to move away.

8. For his part, Mr Veitch refuted any suggestion that he was not interested in the welfare of X and Y.  It was his position that Ms Leslie was well aware that he would not agree to the children moving to (omitted), in any circumstances, and she had planned her relocation in secret accordingly to frustrate both him and the earlier made court order.

9. Ms Leslie was served with Mr Veitch’s application, on 24 November 2015, following the making of a Commonwealth Information Order.  Thereafter, it was only on 1 February 2016 that Ms Leslie provided any answering material to Mr Veitch’s application, notwithstanding a number of orders that she do so earlier. 

10. Ultimately, I determined, pending final hearing, that X and Y should be returned to the (omitted)/(omitted) area and, if Ms Leslie elected herself to return, the children should live with her, with the previous contact arrangements being reinstated, but otherwise the children should live with their father.[1]  Ms Leslie elected to return. 

    [1]  See Veitch & Leslie [2016] FCCA 844

11. It is Mr Veitch’s case that he finds Ms Leslie impossible to deal with in respect of any arrangement to do with the care or parenting of either X or Y.  It is Ms Leslie’s case that she would like to be able to communicate directly with Mr Veitch but is frustrated that he never responds to her text messages to him.

12. The parties separated in late 2007, after a five year relationship.  The catalyst for their separation was the fact that Mr Veitch had commenced a relationship, with his current partner, Ms R.  He and Ms R now have a daughter, A, who was born on (omitted) 2009. 

13. Mr Veitch asserts that Ms Leslie has never come to terms with the fact that he formed a relationship with Ms R and, as a consequence, is still struggling to make the necessary emotional adjustment.  There was an unpleasant altercation between Ms R and Ms Leslie, which occurred in November of 2012, the emotional consequences of which continue to reverberate, for all concerned to this day.

14. Mr Veitch characterises Ms Leslie as an emotionally reactive and histrionic person, who remains obsessed with him and the nature of his relationship with Ms R and is unable to let go of what happened in November of 2012.  He also believes that she is mentally unwell, which renders her unable to parent the children adequately, particularly so far as the satisfaction of their psychological and emotional needs is concerned.

15. The present situation presents Mr Veitch with a dilemma.  He believes the mother’s voluble and labile personality disqualify her from being the children’s primary carer.  However, he is also aware that, if there is a change in the children’s care arrangements, leading to X and Y moving to live with him, Ms R and A, Ms Leslie will not readily accept such an outcome, but will fight tooth and nail to reverse it, using whatever means are available to her to do so, including co-opting the children to assist her, which necessarily has the potential to be emotionally destabilising for them. 

16. Essentially, it is Mr Veitch’s case that Ms Leslie is a person, who is incapable of maintaining proper boundaries or putting the requirements of the children before the satisfaction of her own emotional needs, particularly her apparent overwhelming need to be involved in some form of romantic relationship.  It is his case that Ms Leslie’s evidence, regarding what he would characterise as her former relationship with Mr W and what she has said about her various medical conditions indicate that she is, to all intents and purposes, out of touch with reality.

17. At the start of proceedings, Ms Horvat, counsel for Mr Veitch opened his case on the basis that he was seeking one of two final outcomes in the case, as follows:

    ·firstly, essentially a maintenance of the status quo, that is Ms Leslie maintain the children’s principle place of residence in (omitted) and X and Y spend regular periods of time with their father, on both weekends and during school holidays;

    ·secondly, only in the event that Ms Leslie indicates her unwillingness or inability to live in (omitted), the children’s principle place of residence be changed to his home in (omitted) and X and Y spend regular periods of time with their mother, during school holidays, depending on logistical issues depending on where Ms Leslie chooses to live.

18. As the evidence in the case has unfolded, particularly from the court appointed expert, Ms P, Mr Veitch’s view of what is the appropriate outcome in the case has coalesced – he now seeks final orders that would see the children coming into his predominant care, regardless of where Ms Leslie ultimately chooses to live.  It is his case that it is only through such an arrangement that X, in particular, will attend school regularly and receive the psychological counselling, which he urgently requires.

19. Ms Leslie has acted on her own behalf throughout these proceedings, compiling lengthy affidavits to advance her case.  However, during the proceedings, she presented as an isolated and needy person.  She did not call any evidence from Mr W and acknowledged that she was no longer in a relationship with him and had gone to (omitted), in the first place, in the hope of rekindling her relationship with him. 

20. Nonetheless, it remains Ms Leslie’s position that the children’s interest will be best served if she is permitted to live with them in (omitted).  It is her case that the nine months she was able to live, with X and Y, in (omitted), represented a brief and happy window in their lives, which were otherwise marred by Mr Veitch’s coercive and controlling behaviour towards her and the children. 

21. It is my impression that Ms Leslie has become fixated on (omitted), which she regards as some form of emotional (omitted), which will transform her life for the better, notwithstanding the obvious difficulties in her relationship with Mr W. The evidence indicates that he had moved away from (omitted), with his children, to (omitted), and had not been willing to reinstate the relationship, when Ms Leslie arrived.

22. As a consequence of her attitude and notwithstanding the recommendations contained in the family report, Ms Leslie was not willing to compromise the case, at the outset of the final hearing, along the lines envisaged in Mr Veitch’s first proposal, which would see X and Y remaining in her predominant care provided that she remained living in the (omitted) area.  Rather, Ms Leslie steadfastly maintained her position that there was nothing for her in (omitted) and she needed to move.

23. It is Ms Leslie’s case that (omitted) offers the children more educational opportunities and she herself will have access to better medical facilities in the town.  In addition, she asserts that the children will be able to maintain a satisfactory level of relationship with their father, if they interact with him during school holiday periods, after she, X and Y have moved to (omitted). 

24. Mr Veitch doubts that this will be the case.  It is his position that the mother’s conduct, between July 2015 and March of 2016, amply demonstrates her lack of commitment to supporting the children’s relationship with him and over distance, particularly the 500 kilometres plus which lie between (omitted) and (omitted).  

25. It is his case that during the time the children were living in (omitted), the mother did nothing to ensure the children remained in contact with him and he only saw the children, over the Christmas holiday period of 2015/2016 because of the court’s involvement.

26. Ms P approached the case on the basis that there were three possible outcomes in the case, namely the two initially proposed by Mr Veitch and the third proposed by Ms Leslie that the children relocate with her to (omitted).  Ms P categorically rejected Ms Leslie’s preferred outcome.  She recommended as follows:

    ·the parties have equal shared parental responsibility for X and Y;

    ·the mother be restrained from relocating, with the children, to (omitted);

    ·X and Y spend alternate weekends, during school terms, with their father as well as half of each school holiday period;

    ·Ms Leslie access some form of mental health support via her general medical practitioner;

    ·Ms Leslie self-refer to Child Adolescent Mental Health Service (CAMHS) in order to seek parenting education and support and psychological intervention for X, particularly to address his behavioural issues and refusal to attend school;

    ·Ms Leslie organise a referral for X to counselling at his school.

27. In all the circumstances prevailing, Ms P did not give active consideration to the possibility of the children coming into the father’s care, whilst Ms Leslie continued to live in relative proximity at (omitted), as neither party had actively advocated for it.  Obviously such an outcome would entail the parties having to interact with one another directly on a regular basis.  This in turn is likely to have some emotional consequences for the children given the endemic conflict between the parties and Ms Leslie’s likely inability to accept such an outcome.

28. Given the relatively mature ages of the children concerned, it is to be anticipated that they will be able to express a preference as to their final living arrangements, notwithstanding the intense conflict between their parents, to which they have been regularly exposed.  In this context, in her family report, Ms P described the children and their views in the following terms:

    “[X and Y] presented as acutely aware of the litigation process and conflict between the parties and hence understood the purpose of the interview. No obvious concerns regarding their development were noted.

    X and Y advised of their wish to remain living in (omitted) with Ms Leslie and to spend time with Mr Veitch, each alternate weekend. They noted that they wished to remain in close proximity to their adult siblings, who also reside in (omitted). X and Y clearly stated that they do not wish to return to (omitted).”[2]

    [2]  See family report dated 3 June 2016 at paragraphs 72-73

1. Mr Veitch and Ms Leslie are not the only parties to the proceedings.  Due to the intensity of the conflict between them and their mutual allegations of improper conduct, on 10 February 2016, it was ordered that both X and Y be independently represented in these proceedings. 

2. The independent children’s lawyer is Ms Catherine Nelson, an experienced Adelaide family lawyer.  Ms Nelson was the independent children’s lawyer, in the second round of proceedings between the parties, which Mr Veitch commenced in February of 2013.  Ms Nelson has briefed a barrister, Ms Cocks, to appear on her behalf in the current round of proceedings.

3. Pursuant to section 68LA(2) of the Family Law Act 1975, Ms Nelson and Ms Cocks are required to form an independent view, based on the evidence available to them, of what is likely to be in X and Y’s best interests and then advocate that view to the court.  In addition, it is part of Ms Nelson’s statutory responsibility to analyse any report or document relevant to the children and provide her opinion of such report or document to the court. 

4. In the earlier proceedings, Ms Nelson arranged for a family assessment report to be prepared by Mr A.[3]  This report followed an earlier report, also completed by Mr A, 27 February 2009.  In addition, in the current round of proceedings, Ms Nelson arranged for subpoenae to be addressed to a number of authorities, which have been involved in the care of X and Y.  In particular, she has obtained documents relating to X’s attendances upon CAMHS and the children’s school records. 

   [3]  See family assessment report prepared by Mr A dated 14 August 2013

5. In her report, Ms P expressed, on the basis of history provided to her, significant concerns about both parties.  These concerns included that Mr W had previously been violent to the children; Ms Leslie’s mental health was not adequately managed; Ms R had continued to make derogatory comments about Ms Leslie to the children; and Mr Veitch continued to abuse alcohol and cannabis. 

6. In this context, Ms P recommended that Ms Leslie obtain a mental health plan from her treating general medical practitioner.  Injunctions be made to restrain all the parties and their partners from denigrating one another in the presence or hearing of the children.  The mother be ordered to withdraw the children from any of Mr W’s abusive behaviours.

7. During the course of her evidence to the court, Ms P modified her various recommendations significantly.  She described Mr Veitch as “the more competent parent, the more stable parent, the more responsive parent.”  In particular, Ms P was concerned about what she viewed as Ms Leslie’s inconsistent parenting and, passive parenting style, which she did not believe were suitable to the children, who needed to have firm boundaries. 

8. Overall, Ms P believed that Mr Veitch was more capable of attending to the children’s basic care needs, particularly in terms of education, in a timely fashion than was Ms Leslie.  It was in the light of this evidence that Mr Veitch changed his position in the case resulting in him seeking orders that the children come immediately into his predominant care, regardless of where Ms Leslie chooses to live and the probable difficulties which this may present of a poisoned chalice.

9. Against this background, notwithstanding Ms Leslie’s likely resistance to it, and its incongruity with the views of the children, as presented to Ms P, it is Ms Cocks’ submission that X and Y’s best interests will be best served, if they come into their father’s predominant care as soon as is practicable.  Ms Cocks concedes that such an outcome has the potential to be disruptive, for X and Y, in the short to medium term. 

10. Given what she submits are the severe and endemic problems in the parties capacity to communicate effectively with one another, Ms Cocks is not in favour of the parties sharing equal parental responsibility for the children.  Ms Cocks submits that, if the children move to live with their father, Mr Veitch should be conferred with sole parental responsibility in respect of making major long term decisions for X and Y.  If this occurred, Ms Cocks was in favour of the children starting at the (omitted) School, near Mr Veitch’s home, at the start of the 2017 academic year.

11. Overall, it was Ms Cocks’ position that the evidence currently available to the court indicated that there were significant concerns arising from how Ms Leslie had parented X and Y up to this stage.  In particular, Ms Cocks submitted that there was cogent evidence that Ms Leslie had engaged in emotional manipulation of the children, through her attempts to procure them to write letters directly to the court indicating their apparent preference to live with their mother in (omitted). 

12. In addition, Ms Cocks is critical of Ms Leslie for not attending to X’s educational needs and peremptorily removing him from counselling at CAMHS, when she wished to move to (omitted) in mid-2015.  In this context, the records subpoenaed from CAMHS and the children’s schools are central to her submissions.

13. Mr Veitch endorses the submissions of the independent children’s lawyer, which support his contention that Ms Leslie is a manipulative and un-insightful parent, who has consistently put her interests and desires before those of the children.  His counsel, Ms Horvat characterises Ms Leslie as having a grandiose personality, which cause her to fabricate stories, particularly about her health and relationships. 

14. In these circumstances, Ms Horvat submits that the court can have little confidence that Ms Leslie is a truthful person and therefore should significantly discount Ms Leslie’s allegations of violence and misconduct made against both Mr Veitch and Ms R.  In particular, she submits that the court should reject any suggestion that it was Ms R who instigated the incident of November 2012 or who continues to expose the children to her pent up animosity regarding Ms Leslie.

15. It is long been Ms Leslie’s position that she has been the subject of Mr Veitch’s coercive behaviour and this, in part, justified her move to (omitted) as well as supporting her assertion that she is likelier to be happier and so a more competent parent, if she is able to live there with X and Y.

16. Australia is a free and democratic society whose citizens value their entitlement to live where and how they choose.  I can appreciate why Ms Leslie would want to have a fresh start, in a new town, far away from (omitted), which she asserts now has only unhappy associations for her.  Ms Leslie’s aspirations regarding her preferred place of abode are modest and understandable.  Her furniture remains in storage in (omitted), which is a testament to the strength of her convictions in regards to the potential of the move to make her happier.

17. I am not in a position to overlook Ms Leslie’s legitimate expectations that she is free to live where she chooses.  However, this case is not primarily focussed on Ms Leslie’s entitlements and aspirations.  Rather, I am directed to consider what is likely to be the best outcome for X and Y.  Their best interests remain the paramount or most important consideration for the court.

18. The proceedings before the court were difficult for all concerned, particularly Ms Leslie.  Following the interim hearing, which directed the return of X and Y to the (omitted)/(omitted) area, the parties competing applications were fixed for final hearing on 1 & 2 August 2016.  It being my view that, given issues of relocation were involved in the case, it was appropriate that the final hearing be expedited as much as possible in the circumstances, given that Ms Leslie’s entitlement to freedom of movement had been infringed. 

19. Ms Leslie experienced difficulty in obtaining legal advice, notwithstanding the fact that she is not a wealthy person and has been in receipt of social security for many years.  She did not comply with orders regarding the filing of her affidavit material for trial, in a timely fashion.  In these circumstances, she sought the adjournment of the final hearing, on the basis that she was unwell and unable to prepare her documents. 

20. I was not prepared to adjourn the proceedings in the absence of definitive evidence regarding Ms Leslie’s medical condition.  Her then solicitor subsequently withdrew from the proceedings.  Ms Leslie herself was able to submit a lengthy affidavit, which she had prepared herself, on the first day scheduled for the final hearing. 

21. Regrettably, the two days allocated for the final hearing proved inadequate to complete the case and the case was adjourned, part-heard, on two more occasions.  In the adjournments more evidence came to light, which related to Ms Leslie’s attempts to involve the children in the proceedings in order to influence their outcome.  On any view, the outcome of the proceedings is a matter of great moment for Ms Leslie and she attempted to do whatever she could to secure the outcome of her preference. 

22. Her attempts, in this regard, were not ultimately always to her advantage.  They led me to the view that she was more focussed on what she thought was best for her, rather than what was best for X and Y.  She presented, at times, as a desperate person, who would do anything she could think of to advance her case.

23. Ms Leslie, like many self-represented litigants before her, found it extremely difficult to cross-examine witnesses, without making lengthy submissions to the court.  She herself acknowledged that she found it extremely difficult to present her case effectively.  She was anxious to leave no stone unturned in her case and effusively refuted every negative comment made about her.  This led to prolongation of the case.

24. Without doubt, the outcome of these proceedings has great emotional and personal significance for Ms Leslie.  In such circumstances, it is only to be expected that Ms Leslie would do the utmost she could to obtain her preferred outcome.  On one occasion, she brought the children to court in the vain hope that I would interview them privately in order to ascertain their views in respect of living permanently with Mr Veitch. 

25. Later, after I had declined to do so, she provided two letters, purportedly written by X and Y, to the independent children’s lawyer.  The bulk of Ms Leslie’s case was an inchoate plea that I make orders, which would enable her to live with the children in (omitted), so that she could attempt to reconcile her relationship with Mr W.  

26. Ms Leslie greeted Ms Cock’s submission that the children should live with their father in (omitted) with hurt and incredulity.  I accept that she finds it extremely difficult to accept that the possibility of the children living with their father rather than her remains a live one.  I doubt that she will ever accept such an outcome and will therefore do whatever she can to reverse or undermine it.

27. Accordingly, in my assessment, the case remains an extremely problematic one, which offers no perfect outcome.  Whatever happens, it seems probable that the children will remain surrounded by the endemic conflict between their parents.  In these circumstances, I must remain focussed on what I consider to be the best outcome for the children, in these imperfect circumstances.

The legal principles applicable

1. Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children.  The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act 1975 section 64B].

2. A parenting order may deal with any aspect of a child’s care, welfare and development.  Specifically such an order may also deal with the allocation of parental responsibility for a child.  Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.  Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. 

4. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

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

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

5. Prior to amendments made to the Act relating to family violence in 2011, the considerations were not formally ranked.  However, as a result of the insertion of section 60CC(2A) into the Act,[4] the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   [4]  See Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

6. These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.

7. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:

   “(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

8. The principles, which underpin these objects, are set out in s.60B(2) and are as follows:

   “(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

9. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations. 

10. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

11. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[5] 

    [5]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

12. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7] 

    [6]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [7]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

13. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

14. Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order.  In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons.

15. Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.

16. Given the importance, which the applicable legislation places on the co-involvement of parents, in their child’s life, and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA]. 

17. The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time, which a child spends with each of his or her parents.  There is no presumption in favour of equal time per se.  This is not the starting point for the court’s deliberations.

18. The presumption contained in section 61DA is subject to rebuttal.  As such, it is not to be automatically applied in every case.  The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

19. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

20. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

21. Section 61DA deals with the allocation of parental responsibility in respect of a child.  It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live.  Such matters are dealt with by section 65DAA. 

22. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable. 

23. If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents.  Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality. 

24. The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)].  It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week. 

25. More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. 

1. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. 

2. Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned. 

3. The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act.  It has determined that both questions must be answered in the affirmative before an equal time order may be made.

4. The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made.  Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent.  Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[8]

   [8]  See MRR v GR (2010) 240 CLR 461 at [13] & [15]

5. As indicated above, pursuant to the provisions of section 64B(2), the court has the authority to make a parenting order, which allocates parental responsibility for a child, other than through the mechanism created by section 61DA.

6. In this case, I have no doubt that both Mr Veitch and Ms Leslie are deeply interested in every aspect of X and Y’s care, welfare and development.  Whatever criticisms each parent has of the other and they are many and serious, I must not lose sight of the fact that both the mother and father love X and Y very much indeed.  In this context, it is a significant thing to confer parental responsibility for the child on one parent in priority over the other.

7. The difficulty arising in this case is that, due to the conflict between the parents, which has existed over very many years and which shows no sign of abating and the evidence which demonstrates that they have absolutely no capacity to communicate effectively together, it is obviously the case that they will experience extreme difficulty in exercising parental responsibility for the children jointly. 

8. An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].

9. Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.

10. Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.  This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.

11. In Bartel & Schmucker (No.3) Cronin J said as follows regarding the nature of parental responsibility:

    “Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision.  It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [9]

    [9]  See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]

12. These themes reflect what was said by the High Court in MRR v GR.  The focus should not be on what is theoretically ideal for X and Y, in the sense of implementing a regime which allows the parties to embark upon decision making for the children on a basis of strict equality, which is in keeping with the overall ethos of the applicable legislation.  

13. Rather I must consider the current reality of X and Y’s family situation, particularly the emotional topography prevailing between their parents and how easily (or with what degree of difficulty, if at all) they are likely to be able to reach a consensus about matters pertaining to the children and what are the potential detriments, for X and Y if such a process becomes fraught with conflict.

Background

1. The father was born on (omitted) 1971.  The mother was born on (omitted) 1968.  Besides X and Y, the mother has seven other children.  They are B, born (omitted) 1985; C, born (omitted) 1986; D born (omitted) 1990; E, born (omitted) 1991; F, born (omitted) 1993; G, born (omitted) 1994; and H, born (omitted) 1998. 

2. I have not been provided with a great deal of information about Ms Leslie’s other children, apart from the fact that they were fathered by two different persons and apparently, during the parties’ relationship and afterwards, lived predominantly with their respective fathers, rather than with Ms Leslie and Mr Veitch. 

3. The father has one other child.  She is Ms S, who is currently over 18 years of age.  Ms R, the father’s current partner, also has two children from an earlier relationship.  They are I born (omitted) 2004 and J born (omitted) 1999.  I and J currently live with the father, Ms R and A. 

4. Accordingly, the family structure surrounding X and Y is a complex one.  I accept Ms P’s evidence, obtained from her interviews with X and Y, that their relationships with their half siblings, who continue to reside in the (omitted) area, are important to them. 

5. Mr Veitch has been employed as a (occupation omitted) at a (employer omitted) in the (omitted) area for many years.  He works on a part time basis, around two days per week.  He describes his working hours as flexible.  Accordingly, if the children come into his care, he believes he will be able to balance the responsibilities of work and parenting without any great problems.Ms Leslie receives social security. 

6. In the past, Ms Leslie has had some limited employment as a (occupation omitted).  She has no formal qualifications.  In her evidence, she conceded that she has lived in (omitted) for most of her life.  I accept her evidence that she is likely to have extremely limited job opportunities in (omitted) and its surrounds.  It is her evidence that there is nothing for her in (omitted).

7. Mr Veitch commenced the initial proceedings on 11 June 2008, approximately six months after the parties separated.  At that stage he sought orders that X and Y live with him.  He alleged that Ms Leslie suffered from a psychiatric condition which prevented her from adequately caring for the children.  Extremely limited evidence has been provided by Ms Leslie in respect of her psychiatric health and what has been provided is now largely historical in nature.

8. It was also his position that Ms Leslie had behaved erratically, following separation, bombarding him and Ms R with constant text messages.  It is his case that Ms Leslie has continued with this practice, through the many years, which have passed since the parties ended their relationship.  It is Mr Veitch’s case that this, of itself, demonstrates the fact that Ms Leslie finds it extremely difficult to make the necessary adjustments to situations, which she finds to be emotionally challenging.

9. In the immediate period following separation, X lived with the father, whilst Y lived with the mother.  This situation came to an end in May of 2008, when Ms Leslie withheld both children.  This action led to the instigation of the proceedings between the parties, by Mr Veitch. 

10. At this stage, Ms Leslie acknowledged that she had been hospitalised, in March 2006, as a consequence of a diagnosis of psychosis.  It was her position that this condition had been precipitated by the father’s violent and abusive behaviour towards her.  She alleged that Mr Veitch had longstanding issues in respect of alcohol and cannabis abuse. 

11. On 4 November 2008, Federal Magistrate Lindsay, as Mr Lindsay of counsel then was, ordered that a family assessment report be prepared by Mr A.  This report was completed on 27 February 2009.  In conjunction with the relevant court documents, Mr A was also provided with a medical report, dated 9 July 2008, in respect of the mother, which indicated that Ms Leslie suffered from schizo affective disorder.  This condition had led her to suffer two psychotic episodes, resulting in hospital admission, in 2001 and 2006, respectively.  She had also previously been diagnosed with depression. 

12. In his report, Mr A described X and Y as having a good relationship with each of their parents.  X reported a preference to live with his father, whilst Y indicated a preference to live with her mother.  However, Mr A regarded the children as being too immature to be in a position to make any independent decision about their living arrangements, which required the court’s significant consideration. 

13. Mr A described the parties’ parental relationship as chaotic and muddled.  In all the circumstances then prevailing, particularly the parties’ serious allegations of poor parenting, Mr A felt unable to make any recommendation as to who of the parties was the more capable parent.  Mr A recommended that Families SA be invited to intervene in the case.  The state based child protection authorities have never taken an active role in the family.

14. Mr A was concerned that Ms Leslie expressed a desire to him to re-enter a relationship with Mr Veitch, notwithstanding that he was then involved with Ms R.  In this context, Mr A conjectured that Ms Leslie might be suffering some form of severe post-traumatic stress reaction. 

15. At the time of his first report, the parties had apparently uneasily agreed, in the short to medium term to keep to the arrangement prevailing following separation namely that X would live with the father, whilst Y would live with the mother.  Mr A wrote as follows:

    “The writer is not able to confidently support either parent’s claim to have both children placed in their full-time care.  The writer would support the current arrangements being maintained.  The claims and allegations that they make against each other remain a matter of evidence for the court.”[10]

    [10]  See family assessment report dated 27 February 2009 at page 14

16. For reasons, which are not clear to me, the parties elected not to ventilate their many and significant criticisms of one another, at the trial of their competing applications, which had been listed for May of 2009.  Rather, they agreed to maintain the then current arrangements on a final basis, with X living with his father and Y living with her mother, and the children spending alternate weekends with one another, subject to the care of the relevant parent concerned.  I suspect that this was an uneasy compromise, which was motivated by a fear of a more adverse outcome, from each of the party’s perspective, if the matter had proceeded to hearing. 

17. This state of affairs prevailed until early 2013, when the father recommenced proceedings, again seeking that both children live with him.  From Mr Veitch’s perspective, the further round of proceedings was precipitated by Ms Leslie’s refusal to return X to his care following a contact weekend.  It was Ms Leslie’s position that this response was justified because Ms R had assaulted X.  It was also apparent that there had been an altercation, in November of 2012, between Ms R and Ms Leslie, which had resulted in police involvement.

18. In January of 2013, Mr Veitch obtained an intervention order against Ms Leslie, which prevented her from contacting him, apart from in respect of matters directly relevant to the children.  Notwithstanding this order, I accept Mr Veitch’s evidence that Ms Leslie continued to send him photographs of herself, by mobile phone, in what he describes as provocative clothing and poses. Accordingly, it is my view that Ms Leslie finds it difficult to respect and keep appropriate boundaries with others.

19. On the first return date of Mr Veitch’s application, Federal Magistrate Lindsay ordered that X and Y be independently represented, but otherwise the earlier orders be reinstated.  In mid-2013, Ms Leslie provided a psychiatric report, dated 5 May 2013, from her treating psychiatrist, Dr A, which stated as follows:

    “… Ms Leslie has a history of brief psychotic exacerbations precipitated by environmental stress that responds well to anti-psychotic medication.  This is on a background of a genetic pre-disposition to psychotic illness and cessation of anti-psychotic medical. (sic)”

20. The competing applications, arising from Mr Veitch’s second application, were listed for final hearing in August of 2013.  As previously indicated, in conjunction with these proceedings, Ms Nelson arranged for Mr A to revisit the family and compile a second family assessment report, which he did on 14 August 2013. 

21. Mr A described the relationship between the two households concerned as atrocious.  In this context, Mr A was concerned that Y had been able to manipulate her parents, in what Mr A described as a power vacuum.  He was also concerned at X’s behaviour, who in mid-2013, was refusing to attend school and as such, in Mr A’s view, was at risk of withdrawal from the education process.  These concerns about school refusal have re-surfaced in the current proceedings.

22. At this stage, Mr A reported that both children had indicated a clear and definite preference to live with their mother.  However, at the same time, Mr A was concerned that both children, but particularly Y, had become over involved in the endemic conflict between their parents’ respective households.  In this context, it was Mr A’s opinion, at that stage, that the children had taken their mother’s side, perhaps with Ms Leslie’s encouragement.

23. At the stage of his second family assessment report, Mr A recommended that the two children should live with their mother and spend alternate weekends and one half of each holiday period in the care of their father.  Orders to this effect were made, with the consent of both the father and mother, by Federal Magistrate Lindsay on 21 August 2013. 

24. In addition, the following order was made:

    “The mother be restrained and an injunction be hereby granted restraining her from changing the said children’s place of residence without at least twenty-eight (28) days written notice to the father.”     

The current proceedings

1. As previously indicated, Mr Veitch commenced the current round of proceedings on 30 September 2015.  At this stage, it was his position that he had not seen either X or Y since 29 June 2015.  He had holidayed, with the children, for the preceding four days, at (omitted). 

2. A few days after the conclusion of this holiday and with their return to their mother, Mr Veitch learned that the children had not been attending school, at (omitted), for the first portion of term 3, 2015.  He later received a letter from the principal of the school, to this effect, which also informed him that the school authorities had not been able to contact Ms Leslie and ascertain why the children had not been attending school.

3. It is Mr Veitch’s position that Ms Leslie did not formally comply with the injunction restraining her from removing the children from (omitted) without providing formal written notice.  Ms Leslie disagrees.  She has provided screen shots of text messages, which she sent to Mr Veitch’s mobile telephone in early June 2015. 

4. In the messages, Ms Leslie expresses a desire to speak to Mr Veitch about some important things regarding the children.  In a later message, she writes as follows:

   “well because I cant or u wont allow me to speak to you. Well there are a few things that need adressing.  There’s a few problems which I wish not to discuss in a txt message.  Im thinking or im pretty sure I will pulling the kids out of (omitted) school this week and moving.  Im not sure where to as yet.  We were about to head to (omitted) to live but I would have had to discuss the access of the kids maybe during mediation as it is a very long way.  A 8 hour trip from (omitted).  X has been saying for quite some time he wants out of (omitted) school and move and that is why we visited (omitted).  And also because (omitted) is there and X is missing a male role model.  X is having quite a few difficulties which is so hard for me to explain to you.  I was referred to take him to camhs the other day to get assessed.  We will be moving hopefully in the next two weeks but we are us sure where.  Maywe we will choose to go an entirely different place to start afresh. Even our house got broken into last weekend while the kids were at your place and I was away the whole weekend too so we are wishing to move as soon as possible and the kids were upset about the break in.  Im just letting you know about our plans and also it would be good if I was able to speak to you further about X’s problems.  I am trying to help him as best as I can.” [sic]

5. It is Mr Veitch’s position that he had not responded to Ms Leslie’s text messages or even read them for many years because he found them upsetting to read, due to their prolix nature and what he regarded as their obsessive content, particularly regarding Ms Leslie’s ruminations on the parties’ past; her hopes for reconciliation; and her recriminations about Ms R.  Accordingly, I accept that he did not access this particular text message.

6. In any event, the text message does not explicitly indicate that Ms Leslie was intending to move to (omitted).  As with much of Ms Leslie’s correspondence, it is repetitive and somewhat evasive in nature.  In all these circumstances, I do not consider that Ms Leslie has complied with the strict obligations placed upon her by the orders of August of 2013 regarding a potential change of residence for the children. 

7. In addition, Ms Leslie concedes that the children did spend a portion of the 2015 mid-year school holiday, in Mr Veitch’s care.  As such, I reject her assertion that Mr Veitch had effectively demonstrated to her his disinterest in the children.  In my view, the situation is likely to be more consistent with the father’s position that the mother was, from time to time, difficult to deal with and, as such, he was not able to spend time regularly with the children.

8. In any event, the tone of the mother’s text messages to the father is not consistent with such an assertion.  Ms Leslie does not suggest, in her correspondence, that she had any substantive grounds for believing that either Mr Veitch was disinterested in the children or was likely to agree to their moving away from the (omitted)/(omitted) area.  As a consequence, it is my finding that Ms Leslie was well aware that Mr Veitch would not agree to her move, yet she elected to move nonetheless and failed to take concrete steps to inform the father as to the exact location, which she had selected. 

9. Mr Veitch learnt that the children had been enrolled at the (omitted) Primary School around the 13^th August 2015, when he was advised by staff at the (omitted) Primary School that a request had been received from the (omitted) Primary School that the children’s education be transferred to it. 

10. In order to ensure that X and Y were able to attend the school, with some reluctance, the father agreed to the children being enrolled at (omitted) Primary School.  In the vacuum, which had arisen as a consequence of the mother’s move to (omitted), he did not wish the children not to be able to attend school regularly.  In my view, this action is to his credit and indicates a capacity, on his part, to be child focussed.  However, at this stage, Mr Veitch had not been informed of Ms Leslie’s residential address and accordingly, was not in a position to correspond with her directly.

1. The father also experienced some difficulty in obtaining legal advice. This delayed his application to the court by several weeks. On the first mention of his application, he sought a Commonwealth Information Order pursuant to the provisions of section 67N of the Family Law Act as he did not know precisely where in (omitted) Ms Leslie was living in order to effect service on her.  This order required Centrelink to provide information to the court to enable the service of the application on Ms Leslie, which as previously indicated occurred on 24 November 2015. 

2. On the next mention of the case, Ms Leslie appeared in person via a telephone link from (omitted).  On her application, the proceedings were adjourned for approximately a fortnight to enable her to file responding documents.  As I recall, she vigorously resisted any suggestion that the father should spend time with the children concerned on the basis that he was a violent and anti-social person and therefore her relocation to (omitted) was justified. 

3. Ms Leslie did not comply with the order for filing responding documents.  When the matter returned to court, on 16 December 2015, Mr Veitch pressed for some orders, which would allow him to interact directly with X and Y, whom, by this stage, he had not seen for a period approaching six months.  Again, Ms Leslie resisted this application.  It was her position that she would not be able to drive either to Adelaide or further to (omitted) to enable the children to spend some time, with their father, over the forthcoming Christmas school holiday period.

4. In these circumstances, I extended the time for the mother to file her responding documents to 29 January 2016.  More significantly, I ordered that the father spend time with the children between Boxing Day and 16 January 2016 with the children to be exchanged between the parties at the (omitted) police station.  (omitted) being approximately 180kms north of (omitted) and being a location, which I adjudged was reachable by Ms Leslie, notwithstanding her professed difficulties with transport and her indication that the children had no wish to see their father.

5. Thankfully, Ms Leslie was able to get to (omitted) and the time ordered occurred without incident.  However, my impression, up to this stage, was that Ms Leslie prone to obfuscation and was actively resistant to the children spending any time with their father.  These impressions have solidified as the case has continued.

6. This was the background to the parties’ competing applications coming on for interim hearing on 10 February 2016.  Again, Ms Leslie was self-represented. She had not formally prepared any answering affidavit material but had forwarded a lengthy hand-written affidavit to the solicitors for the father.

7. As previously indicated, and for reasons already provided to the parties, I determined that X and Y should be returned to live in the (omitted)/(omitted) area.  In the orally delivered reasons for judgment, I summarised my understanding of the case up to this stage, in the following terms:

   ·Ms Leslie alleged that X had been getting into trouble at school, resulting in his suspension.  She was fearful that he was getting in with the wrong crowd;

   ·In addition her home in (omitted) had been broken into on a number of occasions, which she and the children had found distressing;

   ·In these circumstances Ms Leslie thought it was for the best if the family moved to (omitted);

   ·She alleged she had informed Mr Veitch to this effect;

   ·Prior to the mother’s move to (omitted), her relationship with Mr W had been under pressure. 

   ·As a consequence, he and his children had moved to (omitted).  Ms Leslie herself had followed him to (omitted), in an attempt to salvage their relationship;

   ·Ms Leslie alleged that she had a number of health issues, at the time, which included hypertension and gall bladder problems, which would be better treated in (omitted);

   ·The final hearing should be expedited and a family report prepared.

8. At the time, I accepted that Ms Leslie had limited financial means and it would be difficult for her to terminate her lease in (omitted).  In those circumstances, I granted Ms Leslie a period of around six weeks to make the necessary arrangements.  The scheduled return date coincided with the Easter period and a further period of time in which the children would be in their father’s care.

9. In addition, as previously indicated, the orders gave Ms Leslie an option – she could either elect to return to (omitted) or, if she preferred remain living in (omitted).  Unfortunately, the scheme envisaged by my orders did not have a seamless application, due to the parties’ inability to communicate with each other.  Ms Leslie did not deliver the children as scheduled.  Then Mr Veitch did not return the children to Ms Leslie at the end of the Easter holiday because he was unaware of what election she had made.

10. The parties are highly critical of one another in regards to the failure of these arrangements.  However, when it became clear that Ms Leslie was intending to return to (omitted), Mr Veitch delivered the children to Ms Leslie.  Thereafter, it would appear to be the case that the earlier orders have more or less been able to be reinstated without too much controversy.

11. However, I also accept Mr Veitch’s evidence that during much of 2016, Ms Leslie continued to send him with erratic and emotive text messages which contain statements regarding her allegedly failing health and what she asserts are the children’s true wishes in respect of the appropriate outcome of the proceedings.

The evidence

1. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[12]  I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[13]

   [12]  See Evidence Act1995 (Cth) at section 140

   [13]  See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ

2. The father relies on the following documents:

   i)An affidavit of himself filed 14 July 2016;

   ii)A further affidavit of the father filed on 15 September 2016;

   iii)An affidavit of Ms R filed 20 July 2016;

   iv)An affidavit of his solicitor, Ms D, filed 14 July 2016.

3. The mother relies on the following documents:

   i)Four affidavits of herself filed respectively on 17 May 2016, 25 May 2016, 1 August 2016 and 27 September 2016;

   ii)An affidavit of Ms C filed 1 August 2016;

   iii)An affidavit of Ms Leslie filed 27 September 2016.

4. In addition, the parties have provided me with a number of documents, which have been tendered into evidence.  These documents include an album of photographs taken of the mother, X and Y, whilst living in (omitted).  These show the children in a number of happy situations, including at X’s birthday party and his graduation from primary school.[14] 

   [14]  See exhibit B

5. For understandable and human reasons, Ms Leslie was anxious that I see these photographs, which she asserts provide concrete evidence of the children’s contentment in (omitted), which supports her submission that it is their natural preference to return to the town.

6. In addition, I have been provided with letters allegedly written by X and Y following the first two days of hearing before the court in August of 2016 and prior to the hearings presumption on 27 September 2016. [15]  I have also been provided with text messages, which are asserted to have been compiled by Y and which she allegedly forwarded to the mother’s former friend Ms D and to her father, which were allegedly sent in August of 2016.[16]  I will place these documents, in their context, in due course.

   [15]  See exhibits C & D

   [16]  See exhibits F & G

7. In addition, as previously indicated, Ms Nelson has subpoenaed documents from CAMHS and the children’s schools.[17]  The mother, father and Ms R gave additional oral evidence and each was cross-examined.  The father elected not to cross-examine either Ms C or Ms W.

   [17]  See affidavit of Catherine Nelson filed 29 July 2016

8. Ms W is the mother’s sister.  She is obviously closely aligned with the mother and has a negative view of Mr Veitch and Ms R.  Ms C is a friend of the mother and also has a poor view of the father and Ms R.  I do not consider that their evidence was particularly helpful to me.  More significant, in my view, was the absence of any evidence whatsoever from Mr W, who did not attend court to support Ms Leslie.

9. The other significant piece of evidence available in this case is the family report of Ms P.  These various documents and the parties’ additional oral evidence form the material on which the decision of the court is based. 

10. During the course of the hearing, I had the opportunity to observe both Mr Veitch and Ms Leslie at close quarters.  They presented in diametrically opposing ways.  Mr Veitch was laconic and undemonstrative.  His evidence was characterised by understatement and few words. 

11. One aspect of his testimony was however presented with undoubted vehemence and sincerity.  He is worn out by what appears to him to be a never ending series of dramas so far as Ms Leslie is concerned.  As a consequence, he is heartily sick and tired of dealing with Ms Leslie and believes her erratic and reactive personality constitutes a grave threat to the wellbeing of X and Y. 

12. In contrast, Ms Leslie was prolix and voluble.  However, although she was fluent in her testimony, this testimony was not necessarily responsive to the questions asked of her.  In my assessment, much of Ms Leslie’s evidence was infused with self-serving grandiosity and exaggeration. 

13. As a consequence, I did not find Ms Leslie to be a reliable witness.  In my assessment, she has been somewhat manipulative throughout these proceedings and, if confronted with a state of affairs which does not accord with her view of things, she will attempt to think of mechanisms to circumvent it.  As a consequence, I did not find her to be a reliable witness and overall prefer the testimony of Mr Veitch, by a marked degree. 

14. The most concrete example of the grandiose aspects of Ms Leslie’s personality is provided by the text messages, which she sent to Mr Veitch, following her return to the (omitted)/(omitted) area.  In these messages, she asserted as follows:

    ·Mr W had had a heart attack;

    ·She had three heart blocks and sub-valvular membrane stopping blood flow;

    ·She had gall stones resulting from being kicked, by Ms R, in November 2012;

    ·She required a gall bladder operation, which had been postponed because her heart was too weak;

    ·She was believed to have developed multiple sclerosis, as a consequence of stress;

    ·She had a numb left side, brain lesions, the shakes and osteoarthritis, which she attributed to stress caused by Ms R, who was prone to yell abuse at her;

    ·She had had a haemorrhage on the kitchen floor resulting in a miscarriage;

    ·X and Y had read the lies told about her in the affidavits prepared by Mr Veitch for court;

    ·Mr Veitch was cruelly ripping the family apart and both children were desperate to live in (omitted).

15. In her trial affidavit, Ms Leslie asserted that she had not told Mr Veitch what her address in (omitted) was because he had told the children that he would get a hitman after her.  This is fanciful and Mr Veitch denied it.

16. In cross-examination, Ms Leslie could produce no cogent evidence to support her assertions that she was a seriously ill person.  She conceded that there had been no haemorrhage and she had merely taken a pregnancy test, which had turned out to be negative.  It saddens me to say this of Ms Leslie, but my view of her is that she is subject to strong desires to fill her life with drama.  If there is no such drama, she will invent it.

17. This tendency leads her to form short term alliances with individuals who initially believe her accounts of her travails in life but when the truth comes out these alliances inevitably founder.  Regrettably, it is my finding, that Ms Leslie is also inclined to include X and Y in her confabulations.  These considerations led me to a situation in which I found it difficult to accept any significant aspect of Ms Leslie’s evidence as being truthful.  It was impossible to differentiate, in the vast majority of her testimony, where truth (or what passed for it) ended and exaggeration or outright fabrication began.

18. In this context, I accept Mr Veitch’s evidence that Ms Leslie has discussed her various fabricated or at best exaggerated health complaints with the children, which have included Parkinson’s disease; kidney problems; and a heart condition.  I also accept that she has told the children her condition is terminal and she has death premonitions.  I agree with Mr Veitch’s view that this is not an emotionally healthy environment for them.[18]

    [18] See father’s affidavit filed 14 July 2016 at paragraph 134

19. Ms R presented in a similar fashion to Mr Veitch.  She is heartily sick and tired of being the subject of outlandish complaints of misconduct, by Ms Leslie, particularly in regards to assaulting either her own children or X and Y.  She concedes that, on one occasion, she did smack X on the bottom but this occurred after he had broken a window by throwing a shoe at it and had punched her daughter J in the eye.

20. The major controversy between her and Ms Leslie concerns the events of November 2012, which led to Ms R being charged with assaulting Ms Leslie.  This in turn led to a flurry of intervention orders and was a precipitating factor in the second round of proceedings between the parties. 

21. Ms Leslie denies ever having assaulted Ms Leslie, although she was charged by police in respect of a complaint made by Ms Leslie. However, it is common ground between all concerned that the police withdrew the charge at an early stage.  It is Ms R’s evidence that Ms Leslie has subjected her to provocative behaviour on numerous occasions, driving past her home and being abusive towards her.  I accept Ms R’ evidence that she is over Ms Leslie and now wishes to lead a quiet life without any interference from her.

22. Ms R presented as a modest and un-effusive person.  She is a self-employed (occupation omitted) with a contract for the (employer omitted).  J’s father is deceased; whilst I’s father has played no part in his life.  In these circumstances, Mr Veitch is the major paternal role model for these children, as well as for A and X and Y.

23. It is Ms R’s evidence that the five children are a close knit group, who share activities and interests together.  She speaks highly of Mr Veitch’s capabilities as a parent.  In all the circumstances of this case, I do not accept Ms Leslie’s criticisms of her.  Mr Veitch also believes that X and Y have a close bond with their half-sibling A.

24. If the children come to live with their father and Ms R, Mr Veitch proposes enrolling them at the (omitted) School, which provides both primary and secondary education.  The children have attended the school in the past as well as a church group in the town.  As a consequence, it is Mr Veitch’s evidence that the children are familiar with (omitted) and have connections in the town.  I accept that his home is likely to provide suitable accommodation for the children.  It has four bedrooms and a granny flat.  Mr Veitch and Ms R have a seven seater motor vehicle.

25. Mr Veitch regards Ms Leslie as duplicitous and difficult to deal with.  I accept his evidence that she has told him and the children that she has plans to live not only in (omitted) but other rural centres in South Australia.  As such, there is a nebulous quality, not only to Ms Leslie’s evidence but also her plans.  I accept that, since her return to (omitted), Ms Leslie’s accommodation has not been stable.  Accordingly, in general terms, it seems to me that Mr Veitch’s life is the more stable and organised.

26. It is a strong plank of Ms Leslie’s case that Mr Veitch has been largely disinterested in the children’s lives, particularly their sporting activities.  As a consequence, it has been she who has regularly taken the children to their activities.  Mr Veitch confirms that X is a good (hobby omitted) and Y a keen (hobby omitted).  

27. In these circumstances, I do not accept that Mr Veitch is disinterested in the children’s sporting activities.  In his affidavit evidence, he deposes to engaging, with the children, in a wide range of activities when the children are with him. These include (hobbies omitted).[19]

    [19] See Mr Veitch’s affidavit at paragraph 46

28. During the family report observations, Mr Veitch and Ms R asked the children about their (hobbies omitted) activities.  In contrast, the children described their mother as not being interested in spending quality time with them but of being more interested in her mobile phone.  In these circumstances, if Mr Veitch has missed some of the children’s sporting activities, I am of the view that this is because Ms Leslie has attempted to exclude Mr Veitch from being involved in this aspect of the children’s lives. 

29. In this context, the evidence indicates that Ms Leslie elected not to tell Mr Veitch when X was selected to run onto the field, with the (omitted), at one of their home games.  This was an emotionally potent event, both for X and the father.  In my view, there could be no doubting the sincerity of Mr Veitch’s regret that he had not known of this event. 

30. Mr Veitch is critical of Ms Leslie for not adequately supervising the children’s internet access.  He alleges that Y was able to access internet pornography, which she showed to J.  He required the assistance of his adult daughter, Ms S, to delete this material from Y’s mobile phone. 

31. It is also Mr Veitch’s evidence that Ms Leslie is not sufficiently vigilant about Y’s use of snapchat and Instagram.  It is his evidence that Y has been able to communicate with adults, through these media, whilst herself posing as an adult.  For obvious reasons, he is very concerned that this has the potential to put Y at grave risk.  Given Ms Leslie’s own significant usage of social media, I do not dismiss these concerns easily.  I am also concerned about Ms Leslie’s propensity to utilise the children as confidents in respect of adult issues.  This is particularly characterised by her allowing the children to read the court affidavits.

32. During the course of the final day of hearing, Ms Leslie was cross-examined about a series of text messages, which had originated on Y’s phone and which were directed to the mother’s former friend, Ms D.[20]  Ms D had attended court, with Ms Leslie, when the final hearing commenced. 

    [20]  See exhibit F

33. However, it was Ms Leslie’s evidence that she and Ms D had fallen out because Ms Leslie had pretended to be pregnant to Mr W and had arranged for her oldest child to be bashed up in Queensland.  The messages urged Ms D, in no uncertain terms to leave mum alone.  They further indicated that X and Y wanted to stay in (omitted) and still did.  Y also indicates that she loves Mr W as her and X’s step-dad. 

34. Ms Leslie vehemently asserted that the texts had originated with Y, who had read out what she had written to her mother.  The chain of messages concludes at 11.40pm, with Ms D terminating the conversation.  It seems to me to be more likely than not that Ms Leslie authored the texts, using Y as a cover, to berate Ms D. 

35. In this fashion, she has purported to express the views of the children, which are congruent with her own.  These are not the actions of a mature or insightful parent.  On the other hand, if the text messages are Y’s, which appears doubtful, Ms Leslie has actively condoned the child berating her former friend, in graphic terms, when the child should have been in bed.  Either way, the correspondence in question is not at all edifying. 

1. In these circumstances there is no cogent evidence to indicate that the children are at any significant risk of coming to harm, in any emotional or physical sense, whilst in their father’s care.  On the other hand, I find that Ms Leslie’s life to be an unstable one and her personality reactive and unpredictable in nature.  These factors do, in my view, represent a significant degree of risk for X and Y, particularly in a psychological sense.

2. In interview with Ms P, X and Y raised concerns about their mother flying off her rocker and becoming angry with them.  I accept that X does have issues, arising from his relationship with his mother, which she is neither well placed nor motivated to attend to.  It is significant that Ms Leslie declined the assistance of CAMHS for X, when she preferred to move to (omitted), in order to pursue her relationship with Mr W. 

3. X’s issues, in respect of his education, both at this earlier stage and more recently are long standing and serious.  They have resulted in him becoming resistant to attending school regularly and of behaving inappropriately, when he does attend.  These problems required Ms Leslie’s urgent and insightful attention, which they did not receive.  When the school referred X to CAMHS, Ms Leslie was largely dismissive of their concerns and preferred to deal with X’s issues, as she saw fit.

4. In these circumstances, I accept that X is at something of a cross roads, in respect of his relationship with school and education generally.  If X’s school refusal becomes entrenched, it has the potential to blight his maturity and restrict his opportunity in adulthood which, in turn, will have implications for his long-term level of emotional functioning and in terms of playing a productive role in society. 

5. X needs to have sufficient literacy and numeracy skills to allow him to lead a fulfilling life and, if he wishes and is able, to have some form of tertiary or vocational education, in his later teen age years.  They have obvious implications for what sort of employment he will obtain.  These objectives will not be achievable if he does not attend school regularly.  If he has a deficient education, X is likely to have low self-esteem as a young adult and feel that he does not fit in properly in the world at large.

6. In this context, I find that Mr Veitch is likely to be the more capable parent of attending to X’s psychological needs and ensuring his regular attendance at school.  In my assessment, this is likely to be central to X’s ongoing emotional wellbeing, in the medium to longer term.  To put it bluntly, X is in danger of becoming a habitual truant, if he remains in his mother’s predominant care.  This places him at significant risk of coming to long-term emotional harm and of not reaching his full potential as an adult.  As CAMHS noted – school is a protective factor for X.

7. I accept Ms P’s assessment that Mr Veitch is the more competent and reliable parent in a wide range of areas.  His domestic and emotional situation is a far more stable one than Ms Leslie’s is.  These too are likely to be strongly protective factors for both Y and X.  It is significant that Mr Veitch is likely to be the more involved parent, with the children and their activities, whilst Ms Leslie has adopted a more passive approach to parenting.  This was a central finding of Ms P, in the family report.

8. I am also satisfied that there is cogent evidence to indicate that Ms Leslie has a well-established propensity to involve the children in adult issues.  She has attempted to influence the children to support her position in these proceedings.  As Ms P noted, Ms Leslie has difficulty in differentiating what are her needs and what are the needs of the children.

9. Ms Leslie’s plans for the future are unclear, particularly in regards to where she proposes to live, depending on the ultimate outcome of the case.  I understand that her preference is to live in (omitted) with the children.  However, if she is unsuccessful in this regard or it is determined that X and Y should live predominantly with their father in (omitted), Ms Leslie has not specified what she will do. 

10. In this regard, I am not confident that she has closely considered her position.  I accept that she is likely to be emotionally overwhelmed by a decision, which she considers adverse.  Her furniture remains in storage in (omitted) and since her return to (omitted), in March of 2016, she has stood poised to leave, at the earliest opportunity, notwithstanding her long-standing connections in the area.

11. Given the ages of the children concerned and the strength and length of their relationship with each of their parents, I am satisfied that both X and Y will be able to maintain a satisfactory level of relationship, with each of their parents, regardless of the outcome of the case, through spending regular periods of time, with the non-resident parent, during school holiday periods, if weekend term time is not possible.

12. Older children are frequently able to maintain their relationships with significant people, including a parent, over distance, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[27]  As Kay J pointed out in Godfrey v Saunders[28] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.

    [27]  See D and S V (2003) FLC 93-137 at 78, 280

    [28]  See Godfrey v Saunders 2008 FLR 287 at 298

13. In this context, it is necessary to consider the benefits, which will come to the children of having a meaningful level of relationship with each of their parents.  In spite of all the conflict which has surrounded them, since their parents separated around nine years ago, X and Y know and love both their parents well.  As a consequence, it is likely to be central to their well-being that they continue to see both their father and mother, as regularly as possible, in all the circumstance which prevail following the conclusion of this litigation.

14. It would also be beneficial for them, if the endemic conflict between their parents could cease, but this appears unlikely to occur.  Mr Veitch deals with the conflict by withdrawing from it and adopting a persona of passive dismissal and distain for Ms Leslie.  For her part, Ms Leslie adopts a more dramatic and active role in promoting the conflict.  She is not likely to respond to a significant change in the children’s living arrangements or the rejection of her (omitted) plans with any degree of equanimity. 

15. In these circumstances, the harbingers for any reduction in the level of conflict between the parties are not good.  Ms Leslie has not demonstrated any great capacity to let things drop.  As a consequence, I am gravely concerned that all future arrangements for the care of the children have the potential to be highly problematic, especially if the children come into Mr Veitch’s care and Ms Leslie remains living in the (omitted) area.  In addition, making arrangements over distance is also likely to be fraught with difficulty, given the inability of the parties to communicate effectively in respect of making even the simplest of arrangements.

16. Notwithstanding these likely difficulties, the children will benefit from being able to interact regularly with each of their parents.  Orders to ensure that the children continue to benefit from these meaningful relationships need to be constructed to take into account whether Ms Leslie elects to live in (omitted) or the (omitted) area or indeed elsewhere.

The additional considerations

a)The children’s views

1. The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding.  The legislation speaks of views rather than wishes.  The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[29]

   [29]  See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56

2. In my view, the most appropriate person to examine what are the views or preferences of X and Y, in this matter, is Ms P.  Ms Leslie is not a reliable person to relay the children’s views with any degree of accuracy.  I am satisfied that she, in attempting to do so, will only convey her own preferences or attempt to subvert what are the children’s actual views. 

3. What is clear from Ms P’s report is that neither X nor Y wishes to live in (omitted).  Their preference is to continue to live in the (omitted) area because this is where members of their extended family live, particularly their many half-siblings.  I accept that this is their unequivocal view, which has not been influence by Mr Veitch. 

4. The children are well aware that this view does not accord with their mother’s preference.  The children know she is very keen to move to (omitted).  In these circumstances, following the family report interviews, they expressed concern that Ms Leslie would yell at them for expressing their preference.  The children seemed quite habituated to this practice, on their mother’s part and be able to manage it, to some extent.  These factors suggest to me the validity of X and Y’s position, as put to Ms P.  Notwithstanding their anticipation of how the mother would respond to their view, they were confident enough to put it nonetheless to Ms P.

5. Ms Leslie has expressed doubt that the children’s view, as expressed by Ms P, is correct.  Whether Ms Leslie’s doubt is genuine is hard to determine, given the lengths she has gone to in order to obtain a recantation from X and Y.  On balance, it seems to me, more likely than not, that Ms Leslie is aware that the children are not greatly in favour of (omitted), but she has endeavoured to pressure them otherwise nonetheless.  This is not a child-focussed response to the dilemma of the situation. 

6. In my view, this is a major dispositive factor, which militates against Ms Leslie’s plan to relocate the children to (omitted).  The two other factors, which negate this proposal, are the lack of certainty regarding her relationship with Mr W and the fact that, given her various problems in life, it is imperative that the children be close to their other parent, in the event that Ms Leslie becomes incapacitated for any reason. 

7. In the past, through the agency of Mr A, X and Y’s ostensible views have been central to the shaping of previous court orders for their care.  Although the children were extremely young at the time, Mr A’s first report led to the separation of the siblings and his second to their reunification, in Ms Leslie’s household.

8. In this context, I note that Mr A, in his second report, was concerned that Y had a propensity to play her parents off against one another, in order to achieve her preferred outcome, in the context of what Mr A described as a power vacuum.  Accordingly, these are children who are likely to be accustomed to influencing arrangements for their care.  I accept their preference is to remain living in (omitted) is a valid one and must be given weight by the court.

9. Ms Leslie is likely to be a more permissive parent than Mr Veitch.  Certainly, it would seem that Ms Leslie has a more tolerant attitude towards Y’s use of social media and more of a propensity to treat her as an equal.  In these circumstances, Y may have a preference to live more with her mother than her father because she perceives her mother to be the more easy going or obliging parent.  Mr Veitch is not likely to think such an approach is in the children’s overall best interests.

10. Ms P did not examine the children’s views, in respect of the possibility of them coming into their father’s care, regardless of the (omitted) issue.  Y only expressed a view that she felt closest to her mother, whilst X did not say.  He seems to be a somewhat reticent child.  In addition, he has spent more of his childhood in his father’s care than has Y.  Accordingly, in my view, the children’s views have not been delineated with a great deal of precision, in the case, given that I am dubious in respect of how Ms Leslie has described them.

11. X and Y are relatively mature children, who are well acquainted with the difficult dynamics of their parents’ relationship.  As such, they are likely to have been well aware of why they had been taken to see Ms P and, as such, are likely to have been reasonably frank with her. 

12. I acknowledge that the children’s views are important.  However, I do not have a strong sense that they have a great preference to live with one or other of their parents, certainly not so far as X is concerned.  As such, I do not think that Y’s expression of a greater closeness to her mother can be regarded as a factor leading the court to veto Ms P’s recommendation in the case, which is based on the greater proficiency of Mr Veitch, as a parent. 

b)     The nature of the children’s relationship with each of their parents and significant others

1. The children are part of a complicated extended family, which is based in the various small towns, lying at the head of the (omitted).  These relationships are important to both X and Y and provide a sense of stability and continuity for them.  In contrast, although the children may have made friends in (omitted), the fact remains that they have no close friends in the town, having only lived there for a period of six months and not at all in the past year.  The great proportion of their lives has taken place in (omitted) and its surrounds.

2. Ms Leslie must decide for herself where she proposes to live in the longer term.  I can understand why she wants a change from (omitted), where she has lived for most of her life.  I accept that she has limited opportunities in the area, particularly so far as employment is concerned.  It is difficult to see that she would necessarily have greater opportunities in (omitted), albeit that it is a larger provincial town in rural South Australia.  Undoubtedly, the main attraction of (omitted) is the fact that Mr W lives there.  However, in my view, she did not think through the consequences of this move for X and Y.

3. Ms Leslie speaks effusively of the strength of the children’s relationship with Mr W and his children.  However, they did not take any part in the family report process and Mr W has not been called to give evidence to the court in respect of any plans he may have to resume any significant role in the family concerned in this case.  Accordingly, I have no way of assessing what sort of person and role model he represents for X and Y.

4. I accept that Ms Leslie has a fervent desire to re-kindle her relationship with Mr W and sincerely believes that her future happiness is dependent upon it.  However, in my assessment, she does not have realistic expectations in respect of her prospects of resuming this relationship.  Nonetheless Ms Leslie has centred her case on her relationship with Mr W and has either attempted to influence the children in this regard or fabricated their views in an effort to support her preferred outcome.  In so doing, in my view, she has demonstrated a lack of insight.

5. At this stage, the children also have a significant relationship with their half-sibling A and with Ms R’s two children, J and D.  They have spent a great deal of time, with these children, as part of the one family unit.  The children also share a close relationship with Ms Leslie’s adult children, who live close by in the (omitted) area.

6. However, undoubtedly, the children’s most significant relationships are with their parents.  It is in X and Y’s best interests that these parental relationships be maintained, regardless of the degree of conflict in their parents’ relationship and the emotional problems, which this may pose for them. 

c)     The extent to which the parents have taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the children

1. In my view, both Mr Veitch and Ms Leslie are interested in everything to do with X and Y.  In this context, I reject Ms Leslie’s assertion that Mr Veitch has been disinterested in the children’s educational and sporting activities. 

ca)    Provision of financial support for the children

1. Neither party is in a strong financial position.  As a consequence, this was not a case which focussed on the provision of financial support for the children.  Certainly, there is no evidence to indicate that Mr Veitch is pursuing his application as a consequence of any financial consideration. 

d)     The likely effect on the children of any changes in their circumstances

1. Up to this stage, the children’s lives have been subject to a great deal of change, against a background of their parents’ continuing struggle with one another.  Since the commencement of the current round of proceedings, they have moved from (omitted) to (omitted) and back again.  Upon their return, they have lived in several sets of temporary accommodation, as Ms Leslie has made clear her preference to return to (omitted), as soon as possible. 

2. In my view, a sense of stability and certainty in arrangements for their care, is likely to be very important to X and Y’s wellbeing.  In my assessment, Mr Veitch, in tandem with Ms R, is far better placed than Ms Leslie to provide a stable and predictable home life for X and Y. 

3. I accept that it will be a major transition, for the children, to come into their father’s predominant care and to change school to the (omitted) School.  However, in my assessment, both children are likely to be able to accommodate such a change.  Firstly, the children have a strong relationship with their father’s household and have spent a great deal of time in it.  Secondly, in the past, the children have been students at the (omitted) School. 

4. Accordingly, in my assessment, it will not be a leap into the dark for X and Y to live with their father predominantly.  The more difficult aspect of such a change is how Ms Leslie will respond to it and what implications this will have for the children.  In the past, Ms Leslie has exhibited a great deal of difficulty in adjusting to changes of circumstances, which she finds upsetting or difficult. 

5. In these circumstances, I would be naïve to think that she would readily accept a significant change in the children’s living arrangements.  Rather, I fear that she is likely to do whatever is in her power to undermine such a change in arrangements.  The question therefore is whether this risk is of sufficient moment to postpone the change in living arrangements, for the children, proposed by Mr Veitch and supported by Ms P. 

6. In this context, in my view, it is germane to consider what the other available options are likely to be and assess their viability, against Mr Veitch’s proposal.  In my view, Ms Leslie’s proposal to relocate the children’s home away from (omitted) to (omitted) is clearly untenable.  Accordingly, the only other option is for the children to continue living with their mother, but only on the proviso she remains in the (omitted) area. 

7. As with a change of residence to the father, Ms Leslie is likely to be highly resistant to such an outcome, which she will regard as highly unfair to her.  As such, there is the possibility that she will attempt to work against it, as she has done throughout these proceedings to date, when she has disagreed with any arrangement imposed upon her.

8. Accordingly, in my view, there is not a great deal of difference, in the possible detrimental effects for the children, of either of the proposals available, so far as Ms Leslie’s capacity to accept them is concerned.  In all these circumstances, in my view, the obvious beneficial consequences for X and Y of living with their father, greatly outweigh any possible negative ones. 

e)     The practical difficulties and the children spending time and communicating with each of their parents

1. After the children moved to (omitted), in mid-2015, they did not spend any time, with their father, for a period of approximately six months.  The distance between (omitted) and (omitted) is significant, but not insurmountably so.  Notwithstanding these factors, given her financial circumstances, Ms Leslie is likely to find it difficult to fund the children travelling regularly to (omitted), if she lives with them in (omitted).  However, the more pressing difficulty is likely to be Ms Leslie’s unwillingness to support the children spending regular time with their father, if it can be avoided.

2. If both parents and the children continue to live, in the (omitted) area, logistical issues for the children to spend regular periods of time, with both of their parents, will not be unduly difficult.  However, if Ms Leslie elects to leave the area and the children remain living with their father, obvious financial implications will arise. 

3. In my view, Mr Veitch is likely to be more amenable to court imposed requirements that he facilitate the children spending regular spending school holiday periods, with their mother, if she resides in areas of South Australia, which effectively rule out regular weekend time during school terms.  On the other hand, Ms Leslie is not.  As such, in my view, this is a consideration which favours Mr Veitch’s position.

f)      The capacity of the parents to provide for the children’s emotional and educational needs

1. In my assessment, this is the most significant additional consideration relevant to the best interests of X and Y.  In my view, Mr Veitch is better placed to provide for the children’s emotional and educational needs, to a marked degree. 

2. I reach this conclusion, for the following reasons:

   ·In mid-2015, when X was referred for counselling, at CAMHS, Ms Leslie declined the assistance offered, preferring to move to (omitted).  In so doing, I accept that she prioritised her own needs before those of X;

   ·In these circumstances, Mr Veitch is better placed to ensure that X receives the psychological assistance, which he requires.  In addition, he is better placed to ensure X attends school regularly;

   ·In this regard, it is telling that X has not displayed any behavioural problems, whilst in his father’s care;

   ·Ms Leslie has attempted to involve the children, in the current proceedings, by the provision of the two letters purportedly written by the children.  If the children did write the letters concerned, I am satisfied that they did so at their mother’s direction;

   ·The children reported to Ms P that Ms Leslie yelled at them and went off her rocker.  The children appeared habituated to this type of behaviour and told Ms Leslie not to engage in it, following the family report interviews.  This suggests that the children, particularly Y are used to taking an adult role in respect of some aspects of their mother’s conduct;

   ·Ms Leslie has either encouraged Y to become involved in her dispute with Ms D or has used the child’s identity in order to pursue the dispute herself.  In either eventuality, this is not psychologically helpful for Y;

   ·The father has a more stable personality than the mother’s dramatic one, which leads her to make exaggerated statements to the children. 

3. In my view, these factors support the father’s position.  In her evidence, Ms P described Ms Leslie as a parent, who lacked insight and tended to externalise her own responsibilities.  She was concerned that Ms Leslie declined therapeutic intervention for X and was struck by the fact that his presentation and attendance at school noticeably improved in his mother’s absence.

4. These factors led Ms P to recommend that Ms Leslie seek out psychological assistance for herself and led her to view Mr Veitch as the more competent, stable and responsive parent.  I accept these recommendations.

g)     The children’s maturity, sex, lifestyle and background

1. The parties share a similar background.  As such, the children will not experience any great change in their lifestyle, if they move to live in Mr Veitch and Ms R’ household.  Otherwise, the matters which arise for consideration under this criterion are not applicable in the case. 

h)     Aboriginality

1. This is not a relevant consideration in the case.

i)      The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties

1. I accept Ms P’s assessment that Mr Veitch is the more competent and stable parent.  I also accept her assessment that Ms Leslie is adept at articulating her own needs but not necessarily those of X and Y.  Regrettably, it is my view that, throughout the proceedings, Ms Leslie has not demonstrated a high degree of insight into what it is to be a responsible parent. 

2. Primarily, Ms Leslie wishes to move to (omitted) because it is what she wants.  This has led her to an idealised view of (omitted) and, almost certainly, an unrealistic expectation that she will be able to resume her relationship with Mr W.  She has remained fixated on this possibility, notwithstanding its unlikelihood.

3. One of the ironic aspects of this case is that Mr Veitch would have been open to compromising the proceedings on the basis that Ms Leslie agree to living in (omitted) with the children.  Ms Leslie was not willing to accept such an outcome, notwithstanding that she had not been able to resume her relationship with Mr W. 

j)      Family violence

k)     Any family violence order

1. For reasons already provided, I do not accept Ms Leslie’s characterisation of Mr Veitch as a coercive and controlling person.  At best, Ms Leslie’s concerns, in this regard, are historical in nature.  Her allegations of violence, directed against Ms R, did not proceed to hearing and are denied by Ms R. 

2. I accept that, from time to time, relations between Mr Veitch, Ms R, on the one hand, and Ms Leslie, on the other were volatile and characterised, on a few occasions, by violent altercation.  However, these incidents occurred many years ago now.  In these circumstances, I do not find that Mr Veitch represents a seriously flawed role model, for the children, in respect of how to deal with conflict appropriately. 

l)      Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

1. Finality is generally preferable in children’s cases.  Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. 

2. These have been the third set of proceedings concerning X and Y.  The various documents produced in those proceedings occupy five court files.  There have been three family reports produced and numerous interim hearings and orders.  The extent and intensity of this litigation is not supportive of the children’s emotional wellbeing.

3. I accept Mr Veitch’s evidence that he only instituted the current proceedings, because he felt he had no other option.  I accept that this is so.  The proceedings began because of Ms Leslie’s unilateral action in moving to (omitted), with the children, when she must have known it was highly improbable that Mr Veitch would acquiesce to the children living far away from him. 

4. One of the bases, on which Ms P puts her recommendation that the children should remain living in close proximity, with their father, is in order to provide a readily accessible alternative source of care, for X and Y, if Ms Leslie becomes incapacitated for any reason. 

5. In this context, it may be the case that, if the children come into Mr Veitch’s care, at this stage, it will lessen the possibility of there being further litigation between the parties.  However, on balance, this seems unlikely.  Ms Leslie will not readily accept such an outcome.  Rather, she is liable to do whatever she can, including recourse to further litigation, in order to reverse it. 

6. However, given the significant concerns raised regarding Ms Leslie’s parenting, in my view, the high probability of there being yet more litigation, regarding care arrangements for X and Y, should not be a factor of sufficient moment to dissuade the court from making the orders, which it considers are likely to be in the children’s best interests, at this stage.

7. X is fourteen years of age, Y is twelve.  Both children are likely to vote with their feet over the course of the next few years.  It is this development, which in my view, is most likely to need to the cessation of proceedings between the parties.

Presumption arising under section 61DA

1. I am satisfied that the presumption of equal shared parental responsibility, created by section 61DA, is rebutted in this case.  Given the ongoing rancour between the parties and their inability to communicate effectively with one another, I am satisfied that it would not be in the children’s best interests for the presumption to be applied.

2. Accordingly it is not necessary for me to consider whether an equal time (or a significant and substantial time) regime should be inaugurated in respect of the care of X and Y.  In any event, I am satisfied that neither such arrangement would work.  The children would be pulled from pillar to post.  Notwithstanding the strength and importance of the children’s relationship, it is clear to me that the children need to live more with one parent than the other.

Conclusions on section 60CC factors

1. As a consequence of weighing up and considering the various section 60CC factors, I have come to the conclusion that, overall, they favour the children coming into to the predominant care of their father, despite the fact that they have lived mainly with their mother for many years.  I reach this conclusion primarily because I consider that Mr Veitch is better placed to provide for the children’s educational and emotional needs and is likely to be the more stable parent.

2. X and Y’s lives have not been stable for the last few years.  During this period X, in particular, has been at risk of educational failure and psychological harm.  He needs urgent assistance in this regard and a calm and stable household.  I am not persuaded that Ms Leslie is able to provide such things, particularly whilst she remains fixated on an alternative life in (omitted).

3. In these circumstances, Ms Leslie retains her prerogative to live wherever she wishes.  In the event she chooses to remain living in the (omitted)/(omitted) area, I propose that the children spend time with her on alternate weekends and for other of school holidays.  If she chooses to live elsewhere, I am satisfied that X and Y will be able to maintain a meaningful level of relationship with their mother if they spend half of each school holiday in her care.

4. I appreciate that this change will be a significant one for all concerned, including Ms Leslie, who will be shocked and hurt by it.  However, all things considered, I believe it is likely to provide the best outcome for the children, particularly because it will provide their lives with structure and predictability.  I am also satisfied that the children will be able to accommodate the change envisaged.

5. In these circumstances, I propose making an order that will authorise Mr Veitch to enrol the children at the (omitted) School for the start of the 2017 academic year.  I have endeavoured to complete these reasons for judgment so this objective can be achieved.  I will also make an order mandating the father to obtain the necessary referral, for X, to CAMHS and for him to obtain appropriate counselling at school.  

6. There remains the question of how parental responsibility is to be otherwise divided between the parties, in the absence of the presumption of equal shared parental responsibility.  As a consequence of these proceedings, Mr Veitch has been authorised to make a significant and major long term decision in respect of the children – he has been able to enrol them at the school of his preference, which is near to his home.  In addition, he has been authorised to make significant counselling decisions, in respect of X.

7. I accept that Ms Leslie will always remain deeply interested in every facet of the children’s lives.  However, the evidence available to me indicates that she and Mr Veitch struggle about everything to do with the children, particularly about such things as school, education and counselling. 

8. In these circumstances, I consider that one parent has to be conferred with sole responsibility for making decisions about such things as educational matters, school and counselling and any psychological treatment the children may require in order to ensure that important decisions about these matters are made in a timely fashion.  It makes obvious sense that that parent should be Mr Veitch. 

9. Otherwise, I propose that he and Ms Leslie share responsibility for making other long term decisions in respect of the children, particularly in regards to any major long term health issue arising for either X or Y.  As such, it will be necessary for Mr Veitch to provide the necessary information about such issues to Ms Leslie so that she can be consulted about them.

10. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and ninety-five (295) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:   30 January 2017

[11]  See mother’s filed 17 May 2016 at pages 42-44