Wenz and Alberg

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENZ & ALBERG

[2018] FCCA 2765

Catchwords:
FAMILY LAW – Parenting dispute – significant family violence by father against mother – mother making false statement to police – mother seeking to block father’s time with children – father seeking change of residence or equal shared time – children and parents undergoing family therapy to restore relationships – family report recommending 9/5 regime – children only ever spending 12/2 – order for children to spend time with the father in 10/4 regime.

Legislation:

Family Law Act 1975, s.60CC(3)

Evidence Act 1994, s.140

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant:

MR WENZ

Respondent:

MS ALBERG

File Number:

DGC 3075 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

10 & 14 August 2018

Date of Last Submission:

14 August 2018

Delivered at:

Dandenong

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms Bonney

Solicitors for the Applicant:

Ryan Carlisle Thomas

Counsel for the Respondent:

Mr O’Connell

Solicitors for the Respondent:

Taft Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Kiernan

Solicitors for the Independent Children’s Lawyer:

Robert Halliday & Associates

ORDERS

That all previous parenting orders be discharged.
That the mother and father have equal shared parental responsibility for [X] born 2006, [Y] born 2008 and [Z] born 2014 (collectively “the children”).
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)Each alternate week from the conclusion of kindergarten/school on Thursday, or 3.00pm if a non-kindergarten/school day, to the commencement of kindergarten/school on Monday, or 9.00am if a non-kindergarten/school day, commencing 10 August 2018;
(b)For half of all school term holidays as agreed between the mother and father in writing and failing agreement for the first half in even-numbered years, from the conclusion of school/kindergarten on Friday on the last day of term until 12.00pm on the middle Saturday of the school term holiday, and for the second half in odd-numbered years, from 12.00pm on the middle Saturday of the school term holiday until the commencement of school/kindergarten on the first day of the next term;
(c)For half of all long summer holidays as agreed between the mother and father in writing and failing agreement for the first half in even-numbered years, from the conclusion of school/kindergarten on Friday on the last day of term 4 until 12.00pm on the middle Saturday of the long summer holiday, and for the second half in odd-numbered years, from 12.00pm on the middle Saturday for the long summer holiday until the commencement of school on the first day of the next school year;
(d)On Father’s Day weekend from the conclusion of school/kindergarten on the Friday immediately preceding Father’s Day, or 3.00pm if a non-school/kindergarten day, until the commencement of school/kindergarten the Monday immediately following Father’s Day, or 9.00am if a non-school/kindergarten day;
(e)From 12.00pm Christmas Eve to 12.00pm Christmas Day in even-numbered years;
(f)From 12.00pm Christmas Day to 12.00pm Boxing Day in odd-numbered years;
(g)
On the children’s and the Father’s birthdays, should they fall on a date the children are not in the father’s care, for a minimum of

4 hours and in default of agreement from 3.00pm to 7.00pm;
(h)At such other times as agreed between the mother and father in writing.
That the father’s time with the children be suspended as follows:
(a)For half of all school term holidays as agreed between the mother and father in writing and failing agreement for the first half in odd-numbered years, from the conclusion of school/kindergarten on Friday on the last day of term until 12.00pm on the middle Saturday of the school term holiday, and for the second half in even-numbered years, from 12.00pm on the middle Saturday of the school term holiday until the commencement of school/kindergarten on the first day of the next term;
(b)For half of all long summer holidays as agreed between the mother and father in writing and failing agreement for the first half in odd-numbered years, from the conclusion of school/kindergarten on Friday on the last day of term 4 until 12.00pm on the middle Saturday of the long summer holiday, and for the second half in even-numbered years, from 12.00pm on the middle Saturday of the long summer holiday until the commencement of school on the first day of the next school year;
(c)On Mother’s Day weekend from the conclusion of school/kindergarten on the Friday immediately preceding Mother’s Day, or 3.00pm if a non-school/kindergarten day, until the commencement of school/kindergarten the Monday immediately following Mother’s Day, or 9.00am if a non-school/kindergarten day;
(d)From 12.00pm Christmas Eve to 12.00pm Christmas Day in odd-numbered years;
(e)From 12.00pm Christmas Day to 12.00pm Boxing Day in even-numbered years;
(f)
On the children’s and the mother’s birthdays, should they fall on a date the children are not in the mother’s care, for a minimum

of 4 hours and in default of agreement from 3.00pm to 7.00pm;
(g)As otherwise agreed between the parents in writing.
For the purposes of changeovers that do not occur at the children’s school/kindergarten, changeover occur a Suburb A McDonald’s or such other location as agreed between the mother and father in writing.
That the father continue to arrange therapy for the children with Ms L or her nominee, at the sole expense of the father, and the mother and father follow all lawful directions of the children’s treating counsellor(s).
The mother forthwith obtain from her treating general practitioner and psychologist a letter setting out her current physical and emotional health status and provide a copy of said letter to the father within 7 days of receipt from her treating general practitioner and psychologist.
That each of the mother and father shall keep the other informed of their current residential address, email address and telephone number and advise the other of any changes to these details in writing as soon as possible.
That the parent with care of the children shall promptly notify the other parent of any significant illness or medical condition suffered by the children or either of them as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by the children or either of them together with the name and address of the treatment provider.
That the mother be restrained by injunction from consuming prescription drugs to excess whilst the children are in her care.
That the parties each hereby be restrained by injunction from:
(a)Consuming alcohol to excess or using illicit substances whilst the children are in their respective care;
(b)Denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship with in the presence or hearing of the children or either of them;
(c)Discussing family law matters in the presence or hearing of the children or either of them.
Pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975, the particulars of the obligation these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3075 of 2016

MR WENZ

Applicant

And

MS ALBERG

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of three children. The proceedings originally encompassed property matters but those have been resolved (there was little but debt to apportion).
The applicant father seeks that the children live with him and spend limited time with the mother. In the alternative, he seeks a week about arrangement. The mother seeks that the children live with her and spend three nights per fortnight with the father, as is presently ordered by the Court. The Family Report writer, Ms M, recommends a nine/five arrangement. For the reasons that follow, I am going to make orders for the children to live with the mother in a ten/four arrangement.

Agreed or Uncontroversial Matters

The father was born on 1987. He is a (occupation omitted) who earns approximately $90,000 per annum. The mother was born on 1986. She suffers from Scheuermann’s disease, which is a congenital back problem, for which she has to take substantial amounts of painkillers. She was previously employed as an (occupation omitted) but has not worked since about August 2016.
The parties appear to have commenced cohabitation in about 2005 and the children, [X], born 2006, [Y], born 2008, and [Z], born 2014, followed in due course. The parties never married.
The parties separated on 27 April 2016. At that time the father moved back to live with his own mother. Following an incident on 30 August 2016, relations between the parties became decisively worse and the mother took out an Intervention Order.
Thereafter, the mother has subsequently been charged with and pleaded guilty to a charge of making a false statement to the Police. She accused the father of having sworn at [X] on the telephone when, to put the matter at its best for her, she says this was what [X] told her. A tape recording of the relevant phone call shows that the father did not in fact swear at the child although he accused him of being smart and silly.
Initially, the father spent only supervised time with the children but this has gradually improved to a point where, as earlier described, he now sees the children from Friday until Monday in each alternate weekend.
I note that there have been two section 11F reports. In the first dated 21 February 2017 I note that the father admitted that in course of arguments about money he may have referred to the mother as “stupid or similar”. In the same report [X] disclosed to the interviewer that he was not surprised at the interview and he said that the father was always swearing at the mother calling her the C word, something that upset him and his sister, [Y].
It is worthy of note also that in the second section 11F report dated 9 November 2017 the writer referred to DHHS records that strongly suggested was that the mother was doctor shopping and piling up excessive supplies of prescription drugs.
That report also noted the father to be extremely dogmatic in his style and that counselling was due to take place.
The father repartnered relatively quickly following separation with Ms S. She has two children who live with her and spend time with their father who are [A] aged seven and [B] (spelt in various ways in the materials) who is aged four.

The Parties’ Affidavits

Much of what the father and the mother had to say is relevantly recorded in the agreed or uncontroversial matters above. I have, of course, read the parties’ affidavit materials in detail but what follows is what I consider to be of significance.
The father’s first affidavit filed 3 October 2016 sets out the parties’ details and the like paraphrased above. He also deals in some detail with a significant incident on 30 August 2016 which culminated in the Intervention Order already referred to. On his own version of the events there was a heated conversation about spending time and property settlement by telephone between the mother and father on that date. The father then attended the former matrimonial home in the evening and entered with his own key. The mother asked the father to leave but had already telephoned the Police making what the father said were untrue assertions that he had forced his way in and was being violent and intimidating. The Intervention Order followed in due course. The affidavit goes on to depose the father’s numerous concerns about the mother’s capacity to look after the children. He referred to significant levels of school absence, and emphasised the mother’s alleged gross overuse of and dependence on prescription drugs arising from her health. He also referred to significant problems arising from the fact that the mother had continued to breastfeed [Z] to an undue age.
In his second affidavit filed 24 February 2017, the father referred to the mother’s false report to the Police about an alleged breach of the Intervention Order. He referred again to his concerns about the children’s school absences and alleged a very poor state of repair of the matrimonial home. He also appended photographs of the childrens’ dirty feet and [Y]’s unkempt hair.
The mother’s first affidavit filed 23 March 2017 accused the father of multiple infidelities during the relationship. She referred to an incident in August 2016 when, while she was sleeping with [Z] in the middle of the night, the father allegedly dragged her out of the bed, screamed abuse at her and insisted that she speak with him in the garage. She referred to the father’s drug use and violence.
In his following affidavit filed 5 April 2017, the father clarified that he used Modafinil as a result of his shift work. He accused the mother of coaching the children. Indeed, this affidavit, and in common with all his affidavits, consists in large part of a stream of denigration of the mother and complaints about her capacity to look after the children. He did depose to the mother pleading guilty to misleading the Police on 7 February 2017 and that she had received a good behaviour bond as a result.
It should be noted that [Y] has a heart condition which is understood to be exacerbated by stress, this being one of the matters referred to in the section 11F report of 21 February 2017. I note that the father referred to [Z]’s alleged sleeping difficulties as “crap” during his interview with the report writer but then he admitted that the child had in fact had sleep difficulties.
In his next affidavit filed 27 June 2017 the father repeated many of his earlier complaints. He also complained that on 7 June 2017 [Y] had been taken to hospital and complained of the mother’s failure to properly inform him of these matters.
The mother filed an affidavit on 29 November 2017. She sought to explain the children’s absences from school at least in large part because of alleged anxiety the father might remove them from school. She also deposed to having moved to Suburb B from May 2016 until September 2017 when she moved to her mother’s at Suburb C. She deposed that the long travel from Suburb B had contributed to the children’s absences. She deposed that more recently [X] had attended 95 per cent of the time and [Y] 92 and a half per cent of the time.
On 26 July 2018 the father filed his trial affidavit. He complained again that [Z] had been breastfed until he was four years old. He complained about what he regarded as obstruction of his participation in the childrens’ affairs including parent/teacher interviews. He repeated his complaints about dirty feet and clothes and the filthy garage. He accused the mother of lying at every turn and detailed his relationship with Ms S and her children. Once again, it is fair to say that this affidavit is a long litany of complaints about the mother. On this occasion, the photographs to which I have referred were repeated but are in colour.
Ms S filed a supporting affidavit on 26 July 2018.
I note that in her interview with the Police arising from her false statement the mother had referred to the father as a “cunt”.
The paternal grandmother, Ms V, filed an affidavit on 1 August 2018. It is a report of her supervision of her son’s time with the children. Unsurprisingly from a mother, it is entirely laudatory of her son.

The Report of Ms L

Ms L has been undertaking reportable Family Counselling with the parties since April of this year. Her written report dated 5 August 2018 has been formally submitted before the Court as a business record. All parties indicated that they did not wish to put questions to Ms L so as not to imperil the therapeutic process. As Ms L accurately recorded on page 2:
“The focus of the sessions was to assist the reconnection between Mr Wenz, and the elder children, [X] and [Y]. [Z] given is young age was observed and able to move flexibly between his siblings and his father.”
The father’s complaints as made to Ms L are in many ways a precis of his extensive affidavit material and read as follows:
“Mr Wenz levelled allegations lack of permeant [sic] accommodation of Ms Alberg, her use of prescription drug use and “doctor shopping” as Ms Alberg’s flaws. He also levelled allegations of Ms Alberg using the children and an income stream and being not supportive of the children financially, despite his child support payments and noted that the year 7 co-ordinator at [X]’s school had informed that [X] did not have the required items to start school.”
The report continued on page 2:
“His underlying frustration was evident when he spoke of the debts he endured. He was also incensed about the allegations of family violence which he vehemently denies. He graphically described his arrest, the handcuffs and the travel in the Police car. He felt humiliated and angry at the injustice he perceived was occurring.”
At page 3 the report continued:
“Through the sessions Mr Wenz was struggling with accepting some responsibility in the dynamics between the couple. He was angry that Ms Alberg had allegedly taken [X] to the Police Station alleging physical assault had been perpetrated upon [X]. Since this allegation he has had CCTV installed in his home to avoid any further allegations being made against him.
He presented a sense of victory when speaking about his vindication that the Police dismissed Ms Alberg’s allegations against his alleged abuse of the children nor Ms Alberg.”
Under the heading on page 3, “The joint session for Mr Wenz and [X] and [Y]” the report said:
“The joint session was strained, silent and difficult for all concerned. [X] and [Y] sat on the chairs whilst [Z] was permitted to roam around the room. [X] and [Y] were quiet and displayed no eye contact with their father initially, as they had their heads down. The conversation commenced about the week and the school. Whilst this was occurring the children were observed to relax and engage. However, Mr Wenz went into questioning mode asking the children why they had told untruths to the Police. He described how he had been arrested, handcuffed and taken away and before the therapist could intervene in the session, he asked the children if they wanted him to be involved in their lives, suggesting that he would withdraw. [Y] initially accepted his withdrawal and said that it would be acceptable to her but [X] was shocked and became mute, and then responded that “it was a hard question to answer”. The session was salvaged by the therapist and subsequently terminated. On debriefing both the children and Mr Wenz, it seems Mr Wenz had needed to speak his mind and he felt calmer as a result, and the children compartmentalised the experience and spoke of other events that they were to enjoy in the coming week.”
Ms L noted that matters between [X] and his father had improved. She also noted the mother’s responses to events which, in my view, are by and large consistent with the mother’s affidavit material.
Ms L noted that [X] still has an underlying issue about his father that he found the father unpredictable at times. Ms L also reported that [Y] had less attachment to the father than [X].

Relevantly, for present purposes, Ms S opined two matters which I think should be reported. Under the heading “In Summary” on page 5 she said:
“The sessions with Mr Wenz showed a need to progress further to assist Mr Wenz with development of insight into his parenting approach and to support him in a change of attitude towards his former partner for the children’s comfort and mental health.
The children’s session supported the need for Mr Wenz to understand the impact on the children of his blunt approach and be invited to focus on developing a comfortable relationship with children where they do not feel judged by him. This is a long-term process.”
Further on the same page the report noted:
“At times Mr Wenz can come across as punitive and autocratic in his parenting and this is his developmental need.
Mr Wenz disputes family violence allegations, and if the family violence is seen to be validated then this shows how Mr Wenz’s lack of insight into his own behaviour is prevalent. Further support, through men’s counselling service would be of assistance in this regard.”

Family Report of Ms M

Family Consultant Ms M noted the history of the relationship in general terms. She noted that the father works from 6:00am to 3:00 pm and Ms S works from 9:30 am to 4:00 pm. The mother lives in Suburb D . Her father lives in Suburb E.
The report noted at paragraph 10:
“Mr Wenz presented as a concerned and energetic parent frustrated by his perception of the mother as the parent trying to estrange his children from him as well as failing to provide protective parenting for the children.”
At paragraph 14, Ms M noted:
“Speaking further, the father expressed concerns that the mother had stated many lies in her affidavits. He strongly denied any verbal or physical abuse of Ms Alberg by him during their relationship or after separation. Mr Wenz explained that the mother was not a reliable witness and she was already found guilty of perjury after she had made a false complaint to the police that he had verbally abused and swore at [X] which was a fabricated lie.”
At paragraph 20, Ms M recorded the father’s concerns about the children’s health and hygiene issues whilst in paragraph 21, Ms M noted:
“He further stated that in August 2016, the mother lost her job due to concerns about her presentation at work in a highly stressed drowsy state exhibiting signs of not coping in general. In March 2017 the DHHS intervened with the family after receiving notification that Ms Alberg was ‘doctor shopping and overusing pain relief medication’.”
Ms M noted in her interview with the mother that (paragraph 30) there were constant arguments about family finances. She noted that the mother asserted that the father consumed a lot of alcohol on a daily basis and constantly yelled at the children. At paragraph 32 she noted that the father’s decision to separate had emotionally devastated the mother and that it came out of nowhere.
The mother informed Ms M of [X]’s reservations about spending time with his father and the father making [X] read all the Court papers and reports, something the mother said [X] found very difficult (“devastated”). The mother said that [Z] would not thrive if he was away from her for a week. It was noted that there were some complaints that [B] may be assaulting [Z] when he is with the father and Ms S.
Ms M noted that although [X] asserted that he wished to spend less time with his father and more with his mother, he was unable to give much by way of concrete reasons for this. [Y] presented as better aligned to her father and nothing of any moment emerged from [Z]. It appeared to Ms M that the father had prepared better for his time with the children and at paragraph 56, having detailed the father’s position (redolent as always with multiple criticisms of the mother) Ms M observed:
“Ms Alberg’s presentation on the day of the family assessment raised some doubts about her ability to provide wholesome care for the three children on a day to day basis for prolonged periods without support from the other parent. She appeared to lack physical energy and was mentally preoccupied. She seemed emotionally vulnerable and at times quite despondent.”
Ms M noted that some of the difficulties the mother had had in early 2017 might be a result of alleged overdependence on painkillers as the father alleged but also noted that the mother had asserted that she had overcome her difficulties. Ms M noted at paragraphs 64-65:
“64. There are three young children and it is required and beneficial that the parents share care responsibilities relating to the children in this case. Ms Alberg asserts that she has provided primary care for the children up to date. It would seem that at present she may be functioning better than she did in late 2016 and early 2017. During the final hearing of the matter, if no further significant concerns about her parenting becomes apparent, it is beneficial for the children to continue in her primary care as it is familiar to them.
65. The writer is of the view that given the history of the family, the nature of the relationship difficulties between the parents, tender age of the children and [X]’s reluctance to spend increased time with his father, a week about regime would be disruptive and not suitable at this stage.”
Having considered the parents’ position, Ms M said at paragraphs 66-68:
“66. … Considering all of the above factors, the writer is of the view that the children could spend five nights per fortnight with their father in an arrangement spending four nights in the first weekend from Thursday after school to Monday morning and an overnight stay on the Thursday in the second week with equally shared school holidays.
67. The above regime would allow the parents to share the burden of parenting in a more balanced way, involves both parents with the children’s schooling issues and reduces direct contact between the parents with most changeovers occurring during school.
68. It is anticipated that Mr Wenz would provide information to Court about his availability to provide care for the children if the Court allows the children to spend extended time with him.”

The Evidence Given in Court

What follows is taken from my notes. It is self-evidently not a transcript but records those aspects of the evidence that I found significant.

The Opening by the Father

Counsel opened the case on the footing that the father seeks a change of residence for three reasons. First, the father says the mother is not able to parent properly. This is partly because of her medication arising from chronic back pain. Counsel pointed to the absences from school in 2016 and 2017, a failure to engage with the Department of Health and Human Services and a failure to cooperate with the father. [Z] has rotted teeth. The children have had nits. [Y] has had matted hair and they have missed a medical appointment about [Y]’s heart condition. [Z] has severe difficulties with his teeth as a result of being breastfed for too long.
The second matter relied upon is the alleged assertion that the mother would do anything to denigrate the father. In this regard, reference is made to the perjury charge. (As I see it, this is, in fact, a charge of making a false report to Police rather than a perjury charge although, of course, it involves lying on oath).
Third, it is put that the mother would not foster any relationship between the children and the father. She would not tell him her address. She calls him a cunt to the Police and did not tell him of [Y]’s visit to hospital.
The father seeks that the children live with him or, if not, a seven/seven arrangement. He seeks that counselling with Ms L continue.

The Father in Evidence-in-Chief

The father adopted his affidavits as true and correct. He had read Ms M’s report and thought it was accurate overall. He had some issues with Ms L’s report about how he had questioned the children about his arrest. He said that Ms L had asked him about what his intentions were and he said he had been embarrassed by him being arrested at work. He had said he had never been arrested before. He was told everything could be asked. He asked about lies to the Police in the presence of all three children. The children were confronted. [Y] repeatedly said “I didn’t lie”. [Y] was only present for half of one session.

The Father under Cross-Examination by Counsel for the Mother

The father said Ms L and he had been the only person present when he had asked about the mother’s motives. He said that the mother had embarrassed him and had him taken in handcuffs and taken in a car. This was not in front of the children. Ms L had told him no topics could not be discussed. He knew it was reportable counselling. He said he was led down the garden path. It was part of therapy to discuss the issues at hand. He was adamant that anything was permitted. The children should be taught not to lie. This was a key component of the therapy. The children were taken aback and appeared uncomfortable and [Y] denied lying vehemently. He reassured her that this was not the case. This was the first question with the children and he questioned the children about their lies. He said one could use the word strained to describe the session. The children changed when the subject changed.
I would interpolate to say that the father’s evidence about this passage with the children was evasive and unpersuasive. He was unprepared to admit the obvious, namely that he had behaved in an extremely accusatory way to his children.
The father said that the children started the session happy. He told them that the mother and he had issues about versions of events (he was clearly referring to the children’s lies). The father admitted that he had said:
“It’s important to me to know where we stand. The lies make me uncomfortable. It’s important to know if you want me in your lives.”
He said it was important to establish the children’s position. He believed it was a reasonable question and Ms L agreed. [Z] was just playing at the time and not really listening. The elder two both confirmed they wanted him in their lives. Ms L was wrong to say that [Y] said this in her presence. [X] was not shocked. He knew what it was about. [X] said it was a hard question to answer. The father agreed that he needed to speak his mind. The questions were to establish a starting point.
The father went on to deal with his employment. He was a very good worker in a (occupation omitted) and well paid. His base salary is $115,000 together with overtime. Last year he made in excess of $120,000. In 2016 to 2017 he had earned $178,000 but this was unusual. He has only had one raise at the end of 2015. He solves problems but has no subordinates. Sometimes this is onsite and sometimes in the office. Sometimes it is in the (employment omitted). He can work from home but has periodic interstate work. He has not had much interstate work for the last 12 months. Before that he went interstate five to six times. He had many visits all around Victoria and interstate which was also in 2016. The average was four days per trip not ten days. He has worked around Victoria, worked in Sydney and worked in Queensland. For the last 12 months he has visited (regional areas) but not overnight. For the previous 12 months there were maybe up to 120 nights of overnight time away. He had an 18 week program. This was not (occupation omitted) related work. That has now ceased.
The father has about 270 hours of accrued annual leave. He has not taken four weeks leave in years. He can work on Saturdays on call and has done so about 10 times in the last 12 months. In previous years it had been about 20 such occasions. The average is less than one hour but it could be as much as 10 hours if it was migration work.
The father admitted he had not attended a family holiday on (location omitted) in January 2016. He said he was working but he did not have the money. He denied being a workaholic.
The father is in a new relationship now. It has been going on for about eight to ten months and he lives at Ms S’s house. He has not discussed buying a house with her but they may do in the future. He does not believe they will have children. She is 37. He had a house which was sold but there are only debts. Neither of the parties got anything out of it. He still has legal fees to pay but has the assistance of his family. His parents have contributed occasionally but he assumed these were gifts.
The father said that if the children live with him he will not be working Saturdays nor will he working overtime and he will take his holidays. He denied that the proposed time regime was to enable him to work. He said he did not want to remove the mother from the children’s life. The children would spend time with her each Tuesday and Thursday which would mean that they were not away from her for more than four days. The children need to be at school fulltime.
It was put to him that he used to get home between 6:30 pm and 7:00pm but the father said this was not frequent. He did not get back until around bath time. He had taken the Modafinil after his GP prescribed it. He was working weeks half a week night and half a week day and the Modafinil assisted with his ongoing headache. Work is about a 20 minute drive and Ms S works in Suburb F. He has worked with her in the past. She works in a (occupation omitted) role for the (employer omitted) and has about 10 subordinates. She works 9:30 am until 4:00 pm Monday to Friday. Her salary is about $70,000 a year and they pay $2,000 a month in rent.
Ms S’s children go to their father every Tuesday and Thursday and weekends. The time spent is all by agreement.
He has been cohabiting with Ms S since about January 2018. They have not been separated throughout. Ms L’s suggestion that they separated for a period of time in May 2018 is false.
He denied that there had been any assault on [X] by Ms S. In August 2017 [X] made a statement to the Police. He had alleged that the father and Ms S had assaulted him. An interim Intervention Order was eventually withdrawn. He felt betrayed by the mother. There is a good relationship between Ms S but this took time to build. If the children were to live with him there would be five children. There are no problems at present notwithstanding there are two four year olds in the household at weekends. Both he and Ms S work fulltime but his employer will give him flexible hours. His boss owns the business and he has been there for 8 and a half years. [X] will fit in easily. There will be things to be discussed because there are different rules in the mother and father’s households. He does not know what [X]’s routine is at the moment. There is a seamless transfer between houses and there are no issues with [Y]. Ms S had only spent half a session with the children.
In April 2016 he had left the matrimonial home but he continued to return there regularly until August 2016. He denied sexual intimacy with the mother during this time.
The father strongly denied the mother’s allegation that in August 2016 he woke her while she was sleeping with [Z] at about 1:00am screaming at her. He said the event did not occur. He did not yell at her saying, “Get up, you fucking cunt, and come into the garage”. There were no discussions in the garage in the middle of the night. He had not accused her of sleeping with other people and he had not dragged the mother out of the bed. The father said he had recorded the incident on 30 August 2016 on his phone but his phone had been damaged. The mother’s mother was not present initially but her sister was there. The children were at home. He had had a discussion with the mother earlier and he had a key. He was holding his phone above his head in video mode when he came in. He said he was talking but was not forceful. He said he was not impressed at the situation he had found himself in. He had something to get off his chest. He had not seen the children. They then huddled off to the rear of the property. The mother and her sister told him to leave. He said it was “our property” and there was no reason to leave.
When it was put to him that he sent the mother 243 text messages the next day or so he said the number was not that high but admitted he was upset and sent multiple texts. He said he was not verbally abusive to the mother, not once. There were vigorous discussions about marriage and financial issues. He said he had never wished to marry her. He denied calling the mother a fucking cunt but said he might have called her a liar.
Counsel took the father to the section 11F report in which [X] had told the family consultant that the father was always swearing at the mother and using the C word. The father replied that DHHS has said that the children were coached. [X] was coached. It was only a brief interview with Ms A who was late.
The father said he had not threatened to cut off the power to the home. He denied sending exhibit R18. He said the wife manufactured it. He denied sending other texts also and said that his telephone was damaged in November 2016.
I should interpolate again and say the father’s denials of sending these texts were utterly unbelievable.
The father was cross-examined about the mother’s health. He said he believed she has scoliosis and used pain medication. She said it was considerable pain but this was not observable. He said “I do not have Scheuermann’s disease”. She could pick up a child without difficulty. He went on to say “if she was taking pills there would be no pain”. Her diagnosis was made in 2016. The father’s lack of sympathy for the mother’s condition was palpable. The father said various pills had been tried to assist the mother but he understands that the ones she takes are still opiate based.
In cross-examination about [Z]’s sleeping difficulties he said that [Z] went to sleep okay but woke up. He agreed that the mother and [Z] had spent five nights at the (omitted) Centre. He did not agree that [Z] would wake up every 30 minutes. He said he was not informed that the child was taken to Dr N in 2016 to 2017. He was given Valurgen to give to [Z] but there may be allergic reactions. [Z] would be glassy eyed for many days after. [Z] was breastfed until he was four and the mother’s drugs contributed to [Z]’s state. He disagreed that breastfeeding stopped at two and a half. He says [Z] talks about booby which means breast milk. There was an incident when the children rang him when the mother was very drowsy. [Z] had swallowed something on one occasion but this was not on his watch.
He said it was the parents’ responsibility to look after the children. The father admitted photographing the children and photographing the children’s feet and [Y]’s hair. He said [X] might notice him taking photographs. He said most of the photographs exhibited to his affidavits are stills taken from video. He complained that [X] was enrolled in Secondary School without his involvement. He said that the arrears of $7,000 in Child Support arose from the recent assessment.
The father maintained his complaints about the mother’s behaviour in interrupting the Teachers’ Support Group meeting in respect of [X] and [Y]. The father was adamant that there was lateness for the children at school before she moved out of the matrimonial home. He denied that the travel from Suburb B was as much as the mother asserted. He admitted that the children were doing well at school and had improved. [X] is undertaking an accelerated learning program and the children are healthy. He said there was still some non-attendance at school but the mother has the support of the maternal grandmother. He has the support of his own mother. His mother is a fulltime (occupation omitted).
The father completely denied the revelations in the section 11F report to the effect that the father had shown [X] Court documents. He had not shown him any documents and [X] had been coached. When it was put to him that he had a sense of victory arising out of the perjury charge the father said he was relieved when he was vindicated.

When it was put to him that Ms L’s notes of 29 June 2018 showed the father portraying the mother in a negative light, the father said perjury was negative. He said it was about the children having a good relationship with both parents. He is still very disappointed with the mother.

The Father in Cross-Examination by Counsel for the Independent Children’s Lawyer

When counsel put it to the father that Ms L’s report suggested that both parents might have the responsibility for the history of the matter, he replied, “of course, it takes two to tango”. The break up arose out of financial strain. When counsel put it to him that it arose out of his infidelity, he said this was when the children were two years old. He started his relationship with Ms S in about 2016. They worked together in 2016. He said rather coyly that in early 2016 “we went out for drinks. Things happened”. The mother did not know about this. When challenged by the Court, he eventually conceded that he meant that he had become sexually intimate with Ms S at that time.
Counsel cross-examined the father about the incident on 30 August 2016 when he came in with his phone as a camera. He said they had not discussed her vacating the premises. In hindsight he should not have done it. He should have left when asked. He said they had robust discussions arising out of his frustrations about money. Initially, he was to pay for the mortgage and the mother was to pay the utilities. This changed after the Police charges and these proceedings. Ms L was not privy to subpoenaed documents. The father said he had his name dragged through the mud by false allegations and Ms L did not know this. The time with the children was half a session and the one session with [X]. He said that parents need to be able to discipline children if this is necessary. He indicated that he would do so.
In re-examination, the father denied again threatening to cut off the power. He paid this until settlement as he did the other bills. He is paying his Child Support arrears over time at $1,000 a month. He is prepared to continue treatment with Ms L. It is important for the children and he will pay.

The Evidence of Ms S

Ms S adopted her affidavit as true and correct.
Under cross-examination by counsel for the mother, Ms S said she was hopeful that she would buy a house with the father in the next couple of years. She has her own savings, and she is not sure if the children will live with the father. It is important that they care for the five children they have first. She is a (occupation omitted). She has no weekend work. She has been employed for two to three months and can work from home. She does not undertake overtime. She has flexible hours from 9:30 am till 4:00 pm Monday to Friday. On Tuesdays and Thursdays, the children go to their father and she sometimes works back till 5:00 pm or 5:30 pm. Her childrens’ school is close to home, but her work is 40 minutes away. She has been living with the father since January and they have not separated even for one night since. Her relationship with [X] is a lot better now. Initially, [X] was emotional. She quite enjoys [X]’s company. The allegations of assault made against her were difficult and hard to handle. She took a bit of a step back. She did not want to pressure [X] but would let him come to her. Things have improved dramatically since counselling started. There are now jokes. They do not talk about [X]’s mother. She understands that if the father is successful they would have five children. She said that they would manage quite well. Having two four year olds was not an issue. Although she enjoys her work, the flexibility is more important. She was sure it would be very difficult for the children not to live with their mother, and she discussed this with the father. The children would need counselling. The five children get along really well, but it would not be an easy process.

The Evidence of the Paternal Grandmother, Ms V

Subject to minor corrections, the grandmother adopted her affidavit as true and correct.
She was aware of Ms L’s report but had not read it. The parents lived with her for seven years. This was from [X]’s pregnancy until [Y] was four. [Y] is attached to the father, and this was always a very close attachment. [Y] was quite affectionate with hugs and kisses, and she is now exactly the same. She loves the father to bits. She has a stronger attachment now because she does not see him so often.
The grandmother was not examined in any significant way by either Mr O’Connell or Mr Kiernan. She did confirm in answer to a question from the Court that she had seen the father frequently with the children.

The Opening of Counsel for the Mother

Counsel confirmed that the mother sought that the father spend time with the children each alternate weekend from Friday to Monday and one night in the off week. School to school Wednesday or Thursday would be proposed. The mother was always the primary carer, but while the father assisted, he was working hard. The mother only worked part-time during the marriage. The mother’s health led to pain in her back which was only really diagnosed in 2016. She was trialled for pain relief and had made a vast improvement in the last seven to eight months. She is not now working. The children are doing extremely well at school. Their absences at school in the past were admitted because this related to the difficulty of separation and the move to Suburb B. It would be helpful to continue with Ms L to address the problems between the father and [X].

The Evidence of the Mother

The mother adopted her affidavits as true and correct. She said she was probably wrong about the date she was pulled out of the bed (she asserted she was not good with dates).
Under cross-examination by counsel for the father, the mother confirmed that she last worked in June 2017. She hoped to go back to the workforce. The father left in April 2016. At that time, she did not think he had left to live with Ms S. He came to help the family till August 2016. The mother had morning shifts starting at 6.45 am about two minutes from home. She dropped [Z] off at 6.30 am at Childcare. The maternal grandmother was always involved. She still believes what she told the Police, even though she pleaded guilty. She was told she should or she might face a heavier penalty. This was in February 2017, and she received a 12 month Good Behaviour Bond. She heard the father call [X] a “fucking smartarse” but could not remember the date. She had an Intervention Order at the time, but the children were not on it. She had only sought an Intervention Order against the father. It was put to the mother that she attended the Police station on 30 August 2016 following an alleged incident on 20 August 2016 and that there was a 10 day gap. The mother said she was told to report the incident to the Police by Victoria Legal Aid. She went to report the assault. She did not know it would lead to an Intervention Order. She denied doing this to keep the father away from the children. This was because he pulled her out of bed. She said she loved him very much and forgave him a lot. She conceded the father told her on 30 August that he would start proceedings, but this was after she had returned from the Police station.
The mother said that the father told her on 30 August 2016 that if she did not come back with an apology, he would start legal proceedings.
She reported the incident of the 1:00 am assault on 20 August 2016. She conceded that there was 10 days in between before she reported it. She was often frightened of the father. She had problems at work in those 10 days. She had received a warning letter which suggested that they were concerned whether she was coping with the breakdown of the relationship. She was bullied at work. There were concerns she looked tired. She remembered the letter (which was tendered as exhibit R2). She had, in fact, taken the father to a work meeting on

26 August. She was asked not to bring him back. She has had problems with her back since she was a child.
There was an interim Intervention Order on 2 September 2016 which included the children. She did not make the children available to the father until Court orders in November 2016. She stopped work before Christmas 2016. She was tired and stressed but working okay. The children did not want to see their father. She had not contacted the father or grandmother. It was very distressing for her and the children. The father was still telling her to move forward on 30 August 2016. The two children were seeing a counsellor at school.
The Intervention Order was changed on 24 October 2016 to allow email contact. She did not contact the father.
The Court ordered supervised time on 30 November 2016. She was contacted by the Department of Health and Human Services. She thought the father had notified them twice. She did not remember the worker’s name. The Police came the first time. She denied that the Department thought that the children had been coached.
The mother was cross-examined about her interview with Police Officer A in relation to the breach of the Intervention Order. She had told the Constable that she had heard the father say “fucking smartarse” to [X]. [X] had told her it had happened. He had told her he was not lying. She could imagine this must be very upsetting for the father. She had not thought this would help them co-parent. The December 2016 Intervention Order was just her.
The mother was cross-examined about allegations made before Judge Wilson on 22 May 2017. These were allegations that the father and Ms S had hit [X]. She was told to put in an affidavit.
She had gone to the Suburb D Police in August 2017 because she wanted to put the children back on the Intervention Order because the father and Ms S had hit [X] on the head and the father had made him hold live wires. She took [X] to the Police Station and [X] made a Police statement. I should say that the mother’s answers as to her motivation about this incident struck me as being prevaricating. She denied wanting to get the father in trouble again. She knew Court was coming up, but this was just a coincidence. Time then progressed in August 2017 to unsupervised.
The mother admitted that the children missed a lot of school in 2016 to 2017. Initially, she struggled because the children were fearful, then there was long travel from Suburb B. There was a 60 day settlement on the matrimonial home, then she moved to Suburb B, which was a four hour round trip. She was pressed as to how long this really took and I formed the impression that the journey was less than this somewhat exaggerated figure. The children were seeing the counsellor from the start but more after separation. The father had been abusive for a long time. He was not physically violent but was verbally so. This happened while living with his mother.
The mother thinks that [Y] has an attachment to the father. [X] has improved a lot since he started seeing Ms L. She did not know what it was like with [Z]. [Z] says Ms S’s child is violent to him.
It was put to the mother that she had taken [X] to the Police on 7 August 2017 to stop the father’s time but she denied this. She did not want unsupervised time in August 2017. She wants four/ten, not five/nine, because the routine now is good. She could accept five nights if it was what was best. Equal time would be too much. She would not like it. She enjoys time with all her children. [Z] is in kinder from 9.30 am to 2.30 pm three days per week.
The mother had not referred herself to Child FIRST. She had tried to follow the orders. She did not tell the father she had taken [X] to hospital but texted him. She had missed one appointment with a cardiologist for [Y] but had gone to every other appointment. She did not get a laptop for [X] for Year 7. The father bought it and got him organised. She had not talked to him. [X] was automatically enrolled as School 1 is the only secondary school in Suburb D. She gave the school the father’s details. She had taken [Z] out of Childcare in late 2017 but did not consult the father. It would be good that the relationship with the father is restored.
[Y] had had a tooth out this year. She was in the toilet with [Z] when this occurred, and the practice had her old number. It was just a mistake.
The mother has been prescribed various drugs starting in 2016. This was while the father was still there. She only takes drugs as prescribed. She said, “You go to the doctor every 14 days and they give you 14 days’ worth of the drug”. Another drug had affected her badly and made her more tired. She did not think she had been pharmacy shopping in 2017. I interpolate that these answers were unconvincing and I regard the Department’s report as being more believable.
She did not know that she was on a prescription shopper list. She only went to another clinic if her GP was not there. She was not having too much medication.
She has taken [X] to Headspace. The children told her they were scared of the father. [Y] did get matted hair. The disarray in the garage was because the father had been throwing things around before he took the photographs. She had ceased breastfeeding [Z] when he was two and a half. She might have been breastfeeding while she was on drugs but not for long. She spoke to her GP about this. [Z] calls Yakult booby, which explains why he used that word.
The mother was happy to go and see Ms L and would take [X]. [X] thinks it is going well. It is better the children stay in their routine. The father helped when he was at home, but he worked a lot. [Y] used to do (hobby). The father said he would pay for it but then said he could pay half. The mother could not afford it all, so it stopped. She conceded she had probably told the Police “he’s a cunt”. She said he called her this a lot. He has always been like that. She would never say this in front of the children. She did not know what the father is like as a father now.
The mother did not agree with Ms L’s assessment of her as being generally lacking in energy at the interview.
The mother said [Z] was not ready for school. He is in four year old kinder, and the teacher has told her that she had told the father before she told her. She does not believe the father has flexible work and did not know if she could work one week out of two in the event of shared time. She always encourages the children to go to their father. When it was put to her the children told the Independent Children’s Lawyer that they wanted more time with their father, she said she did not know.
The mother denied having seen a letter from the Department dated

6 December 2016. She remembered speaking to Officer B. She said she had wanted an Intervention Order to protect the children from the father. She had told the officer how aggressive the father was. He was yelling at her and the children. She conceded that the father had assisted her from April till August 2016. She had agreed to undertake a drug screen which turned out to be clean. The father had previously told her he would call the Department. The father was concerned that she was not using her prescription drugs properly. She denied drug abuse to the Department. The Department had not told her that they thought the children had been coached. She had not had previous Departmental involvement. She had no idea what they would do next.
The mother agreed that no time had taken place with the father until the orders made on 13 November 2016 for supervised time. She had not offered more than what the Court had ordered. Longer time had been ordered by Court order until 22 May 2017, but she had not offered birthday time in the meantime. On 22 May 2017, she had raised issues of violence before Judge Wilson. This was about [X] being hit by the father and Ms S and exposure to bare electrical wires. She conceded that these matters were not put on affidavit. She had only put forward what [X] had told her. She then took [X] to the Police Station on 7 August 2017. Nothing had emerged from the statement that [X] had made to the Police officer concerned. When it was put to her that [X]’s teacher in Year 6 in 2017 had said that [X] wanted to see his father but could not tell the mother, she said that the teacher had not told her this.
Under cross-examination by counsel for the Independent Children’s Lawyer, the mother conceded that the breakdown of the relationship with the father was traumatic. She was struggling with medication and also had difficulties with her boss at work. She had readjusted with the children but times were tough. She conceded that [X] had been protective of her. When it was put to her that [X] was aligning with her, the mother said that [X] might be protective but he had seen the father screaming at her.
It seemed to me that the mother displayed a lack of insight in seeing the extent of [X]’s alignment with her. She denied that [X] was telling her what she wanted to hear and still did not think this was the case. She said she always spoke positively about the father. She agreed, however, that taking [X] to make a statement about the father was not positive. She said she could have done things differently in the period after 30 August 2016. She thought it was right to obtain an Intervention Order.
In re-examination, the mother was asked about the meeting at work on 26 August 2016. She agreed she had taken the father to a meeting. She was unable, however, to say which of the dates of 19 August or

26 August 2016 was correct. There was more than one meeting. She did not remember whether the assault she had asserted by the father at 1 in the morning was before the meetings. She said she never had a choice that he was coming to the meeting. She did not leave her employment for months after the letter and this was close to 12 months.
When re-examined about the incident on 30 August 2016, the mother said she had been to the Police before this. She spent the entire day getting messages from the father, who wanted to know if he would take her to Court. She had spoken to Legal Aid, following which she reported the matter to Police. Then she received texts from the father. She then went home and her mother was there. The father came in and said that if she did not come to talk to him, they would all go down guns blazing.
When re-examined about the incident where she had taken [X] to the Police in 2017, the mother said she had not been in the room. Her sister had found [X]’s diary and it had stuff written in it about assaults and electric wires. She was not in the room when [X] made his statement to the Police but her sister was there as a third person. Her sister had found the diary one or two days previously. The diary was not now available.
When re-examined about her affect when she saw Ms M for the family report, the mother said that she was tired. [Z] was a boy who did not sleep well. She was also a bit stressed when she went to see Ms M.

The Evidence of Ms M

Subject to one correction, Ms M adopted her Family Report as true and correct.
When questioned by counsel for the Independent Children’s Lawyer, Ms M confirmed that there was no contradiction between her remarks about the mother. People are often under pressure. The mother had been to the therapist as well as her on the day of the interviews and it took till the afternoon to see her. The mother did not look as though she was on drugs. She seemed depressed and unhappy with how things were. The children were difficult to contain on what was a long day.
When asked if [X] was saying what the mother wanted to hear, Ms M said [X] had a functional relationship with his father before separation. The first child has responsibilities when separation takes place. [X] was a conflicted child, and the father thought [X] had been made to be defiant of him. To an extent, [X] protects the mother, but he is also grieving about separation. The mother does not want to believe that the children are happy at the father’s home. The second and third children are in a different mode after separation. It could be that [X] seeks to spend more time with his father but does not tell the mother. This is common. Many children do not want to upset their mother. [X] had not told her he wanted more time with his father. [X] was tearful and expressed the view that he was made to spend more time with his father after he saw counsellors. Ms M conceded that [X] might have told the Independent Children’s Lawyer he wanted more time with his father.

Under cross-examination by counsel for the father, Ms M said she was not surprised that [X] wants more time with his father. There were some concerns about the mother’s capacity to care for him. The father might be able to provide proper care of the children, but the children are not ready for his full-time care. Since birth, they have lived mostly with the mother as the primary carer. The children definitely do not want to live full-time with the father. She had not seen any problems between [Y] and the father, who was comfortable in his presence. The father had said he was involved with the children before separation, but given that the youngest child is four and the ages of the other children, living in two different homes and with different parents who cannot communicate and had different lifestyles, it would not be comfortable for the children. [Z] is very attached to his mother. Ms M did not support shared care when [Z] reaches school age. She was aware that the parents had lived with the paternal grandmother until [X] was six. She thought contact with the father each week was desirable. She said the father could keep an eye on their progress. She had no concerns about the father’s capacity to parent. She nonetheless said the father should not have more than five nights per fortnight because he has not previously seen them for more than two nights per fortnight. She acknowledged the child, [Z], sat on the father’s knee at the interview and said he was the happiest at the moment. [Y] enjoyed the session, but there was nothing to say she was close to anyone. She was not surprised that the children wanted to spend more time with the father and had told the Independent Children’s Lawyer this. The children seemed fine in the presence of Ms S, but [X] was disconnected with everyone. The relationship with Ms S started only in July 2016, and they were workmates before that. The mother was still embittered in July 2018. Ms M had no concerns about the children spending half school holidays with their father.
Under cross-examination by counsel for the mother, Ms M was clear that she preferred that there be one night in the off week. She agreed that the fact the father had installed CCTV and the mother withheld her address from the father supported the proposition that shared care would not work. She said [X] kept his distance at the interview from the father. She opined that the children might be different with her than with Ms L because they had seen her more often. [X] was conflicted and could say different things to her and to the Independent Children’s Lawyer. From what [X] said, he cannot have effective communications with the father because the father does not understand what he says, and this upsets [X].
Therapy will be a long-term process. The father was very happy about [X]’s relationship with him, but she did not see this. It is possible that [X] is hiding his feelings. Ms M had some concerns about a five/nine regime. It depended upon the evidence before the Court and depended upon the mother’s capacity to cope. Whether it be four or five nights did not matter. It depended on how the mother was coping.

The Submissions of the Independent Children’s Lawyer

The Independent Children’s Lawyer proposed that there be a regime from Thursday to Monday in one week and one night in the off week, a regime of nine/five. Counsel submitted that the incident on

27 October 2016 shows how things went off track. This was the day upon which it was alleged that the father had described [X] as a “fucking smartarse” on the telephone, whereas, in fact, he had described being a little smart. This was an embellishment and the mother’s evidence was, in fact, hearsay. The mother had relied on [X]’s account which was clearly wrong, but she was still saying this. The mother did not understand this embellishment, and the Court should make a finding accordingly. It was submitted the mother was the primary carer until separation and that a period of co-parenting followed until 30 August 2016 when a dispute arose. Inordinate text messages were sent by the father at about this time, and the father announced the relationship was over. He attended on 30 August 2016 with his iPhone as a camera and was asked to leave and refused. The children were present. An Intervention Order was taken out on 3 September 2016 and relations were worse thereafter. Time was stopped until November 2016 and the children, and in particular [X], were protective of the mother. The mother was then dealing with the breakdown of the relationship, her back pain and related drug issues. She had made some bad judgments. She had had problems at work at the same time. The mother was also caring for the children on her own. Counsel submitted that both parents loved the children but they had not coped well with separation, particularly the mother. It was submitted the father was positive in the witness box. He has been hurt by his separation from his children. He is possibly somewhat dogmatic and had expressed some unattractive scepticism about the mother’s back issues. He had, however, conceded in hindsight that he could have acted otherwise. It was submitted that his new partner, Ms S, was extremely sensible and would not have hit [X] in the head. The paternal grandmother was a loving mother who had housed the parties for six years or more.
The mother had a lot to put up with. She had nonetheless made telling errors, including the false statement to the Police. The father did not see the children from 30 August until November 2016, following which there was supervised time. It was submitted that Ms M’s recommendations should be adopted but that more than five nights would be too much. The parties should continue therapeutic counselling with Ms L. The father’s household would face problems with five children. School attendance was now satisfactory and the children were thriving, and, indeed, it is noted that [X] is extremely intelligent.

Submissions by Counsel for the Mother

Counsel conceded the false statement made to Police. He submitted that the relationship between the father and [X] was improving but was a work in progress. This was not just a question of the mother alienating the children. [X] has told Ms L he does not like the father denigrating the mother. [X] and [Y] do not like questions about their mother. The father had thought it was appropriate to question the children about lying but he should not involve the children in the proceedings. Ms L had said there were difficulties with the relationship between the father and [X], and Ms M tended to agree. It was submitted that the mother’s concession that the father had a relationship with [Y] was to her credit. [Z] was four years old and two months at the date of separation and was very close to his mother. He often cries when he is not with his mother. It was submitted that there should not be a change to primary care with the father. Although things are now quieter than in the 2016 to 2017 period, there is still acrimony between the parents. The father has installed CCTV and the mother will not give her address to the father. Caution is therefore necessary. The father is still questioning the children. [X] does not want to go to the father for a long time but wants more time than present, as does [Y]. The mother has said the father was abusive to her over the years but this was mostly verbal. There are no allegations the mother was abusive to the father in front of the children. There had been financial stress which had led to arguments and obscene abuse, as [X] had said, of the mother by the father. It was submitted that the father was callous about the mother’s pain levels, and it was submitted that the father had dragged the mother out of bed and called her a “cunt” in August 2016. 242 text messages had been sent in a short time. The father came with a camera and would not leave.
The mother was the primary carer. The fact that the father had earned $178,215 (from a base of about $115,000) showed that he worked very hard and it was likely he would continue to work weekends and interstate. He wants to buy a home. As with Ms M, counsel suggested the Court should be sceptical about the father’s work hours. He had only been with his current partner for six months, and the new household would have two four year olds and five children. The father’s application that the children live with him should be rejected.
Counsel dealt, in terms designed to exculpate, with the school absences and the photographs of the children that the father had put on affidavit. It was submitted that the father taking the photographs was a problem, something with which, with respect, I agree. The mother was vague about dates but was lucid and intelligent and has support from her mother and family. Counsel sought to explain away the mother’s failures to involve the father in the children’s various illnesses. It was submitted that four days per fortnight was appropriate and that the therapy was still in early days. There should be one day in the off week.

Submissions of Counsel for the Father

Counsel submitted it was important there be a meaningful relationship for the children with both parents. The mother’s behaviour had shut the father out. From April until August 2016, the father had been present in the children’s lives, but he wanted to move on. The mother responded by going to the Police on 30 August 2016 and complaining of an incident on 20 August when she had been dragged from her bed, but in the meantime or at the very least at about that time had taken the father to one or more meetings at her work. It was submitted that this was totally incongruous. It was submitted the mother obtained the Intervention Order for litigation advantage. It was submitted that the mother was ill and unable to cope. It was submitted that from

30 August 2016 onwards, the mother was playing snakes and ladders. Every time the father came to Court, the mother put him back. The paternal grandmother had said the father was hands-on. For more than two years, the father had been put at a disadvantage regarding his children.
It was submitted the father was a hard worker, but the mother also worked until one year after the difficulties in August 2016. Her first evidence was that she stopped in late 2016. The parties were both 18 when the first child was born and there had been no Police or Department involvement. The mother had made a false statement to the Police. [X] had been taken to the Police Station to make a statement when this was a serious step which led to no consequences. The father was not charged. The mother and maternal grandmother were charged and the latter had not been called as a witness. There was a need to protect the children from harm. The family report said there was no fear on the part of any of the children. There was some distance between [X] and the father, but [X] was conscious of the mother’s view of the father, which was not positive. The father had a bond with both children. Why in these circumstances should it not be week-about? The parents would not have to meet. The father was prepared to wait for week-about until [Z] was at school. The father was prepared to accept the recommendations of the kindergarten as to whether he should repeat kindergarten and was prepared to wait until [Z] was at school for week-about. There were problems about school attendance in 2016/2017 when the mother was working and all she had to do was get the children to school. The mother had been doctor shopping in 2016, according to the Department. The Court should change residence if it decided that the mother would not foster a relationship with the father.

Findings about the Credit of the Parties

I have already made some brief remarks in passing about both the primary players. It is always regrettable to make findings about a witness that may be hurtful to them, but the facts of this case make this inevitable. At times the father was evasive and some of his answers made no sense. The father’s lack of sympathy for the mother’s back pain, whilst not perhaps in itself overly important, was redolent of his dismissive attitude towards her. He was endlessly critical of the mother not only in his affidavits but more generally. I regret to say that he came across to me as a controlling bully.
The mother was, as Ms M herself described, lacking in energy and appeared to me to be somewhat sad. Some aspects of her evidence were utterly unsatisfactory. She appeared unable to accept the obvious fact that she had made a false statement to the Police and, in my view, she must have known it was false. She may or may not have known that [X] had made the assertion to her as to what was said, but she must have known, as must her mother, that it was not said in their presence. This stands vividly against her. Nonetheless, and allowing for the fact that she was a very poor historian as to dates, the mother impressed me as generally honest, and if I may say so, notwithstanding my earlier remarks, I would say the same of the father.
It should be noted that the fact that the parties may have believed what they said does not mean that I am required to accept it.
The father’s new partner, Ms S, was an outstanding witness. She was sensible, composed, down to earth and altogether impressive. It is to be hoped that her presence in the father’s life and that of the children will enable the parties to move forward.
I do not accept the assertion that the paternal grandmother was as good a witness as counsel for the father and Independent Children’s Lawyer suggested. She was, in my view, obviously partisan. While her answers were given with composure and sincerity, they often involved gushing answers far beyond what was actually asked. I have no doubt she was an honest witness, but she was a very partisan one.

Findings about the Facts

These parties met when they were very young. The father is an energetic, dynamic individual. He completely dominated the mother in the relationship. I have no doubt that he was dismissive of her on a regular basis. He himself concedes calling her stupid or words to the same effect. I accept the mother’s evidence that he routinely ridiculed her intelligence and diminished her. Her whole demeanour in giving evidence is entirely consistent with the materials as a whole. She was overborne, bullied and belittled throughout this relationship. This may well not be a matter that the father himself fully appreciated at the time. His very assertive and dominant personality might suggest that this was simply something he thought was the norm. Nonetheless, I accept that he belittled her and swore at her. While the evidence of [X] must be approached with caution, given that he is clearly keenly now aware of his mother’s views of the father, it wholly supports this assertion. The fact that the mother herself has been prepared to describe the father in similarly unflattering terms to third parties does not belie this conclusion.
I accept that the mother had forgiven the father a lot during the relationship but that it still came as a shattering blow to her when the relationship came to an end. The father moved out in April 2016, and consistent with her ongoing affection for the father it is no surprise that she allowed him to be involved in the children’s lives quite significantly until August 2016. In the interim, he had, of course, commenced another intimate relationship with his present partner, Ms S.
On what I regard as the important instance of the alleged assault in August 2016, I can state my views shortly. I have no doubt whatever, having heard and seen both parties give their evidence, that the father let himself into the matrimonial home in the middle of the night, dragged the mother out of bed by the foot and screamed at her that she was to go and talk to him. Whether this happened in the garage or otherwise is immaterial. It took the mother 10 days or thereabouts to go to the Police, and in the interim she undoubtedly went to various meeting or meetings with the father. Her evidence is that he just decided he was coming, and that is entirely consistent with his domineering role in her life. I do not regard this inconsistency being of any moment but rather regard it as symptomatic of the mother’s subordinate and browbeaten role in the relationship. These events either happened or they did not, and as I find they did, and I make this finding notwithstanding section 140 of the Evidence Act 1994 and the significance of the finding itself. The father’s demeanour in dismissing these allegations was, in my view, wholly unpersuasive and the evidence of the mother was compelling.
Scarcely surprisingly, the mother thereafter ceased the father’s time. This was, of course, misconceived and misguided. It did not owe anything to risks to the children but rather risks to the mother. Nonetheless, it is a very understandable human reaction. It has informed the mother’s conduct ever since.
On 30 August 2016, the father compounded his behaviour. He sent the mother a hysterical number of what were undoubtedly extremely unbalanced texts and/or messages. She went to the Police, plucking up her courage to do so at the death knock, and did this before he had told her that the relationship was at an end. It was not a response to this intimation. The father told her in the most abusive terms of his intentions and, once again, it is apparent as a matter of ordinary human emotion why the mother responded as she did.
This is all the more so given the fact that the father attended upon the matrimonial home and behaved in an appalling fashion. He now concedes he could have done better and it is plain that he could. It is no wonder that the mother’s mind was set against him from this point. Albeit that it would take an Olympian level of tolerance, this was an overreaction.
There matters stood until the report to Police on 27 October 2016. The mother plainly allowed her emotions to get the better of her and she lied to the Police, as did her own mother. This stands wholly to her discredit and is lamentable. She allowed her anger and distaste at the father to get the better of her, and she has paid a penalty for it. This, however, does not mean that everything she said is untrue.
From there on, the matter winded its way through the Courts with time moving from supervised to unsupervised. In mid-2017, the mother says, and it has not been seriously challenged in cross-examination, that her sister found a diary belonging to [X] which purported to report assaults by the father and Ms S. This was leapt on with alacrity by the mother, who went to the Police and was prepared to allow [X] to make a statement inculpating his father in offences. Once again, the mother has allowed her emotions to get the better of her.
All of this, however, is to be seen in context. The mother was recovering (although she was not fully recovered) from the shattering blow of the end of her relationship with the father. He had re-partnered with somebody else virtually immediately after he left her. This left her hurt and, as it were, defiled. She also had been only recently diagnosed with her back issues. A regime of trial and error for drug painkillers had been adopted which slowed her down and made her inadequate as a mother. The inadequacy is not just revealed by the correspondence from her employer in 2016 (exhibit R2) but more decisively by the Department’s reports and the school attendance records. It is plain that she was not coping at that time.
Nonetheless, and having said all this, it is plain that there is no reason to presuppose that the mother’s desire to take [X] to the Police was occasioned simply out of malice. The mother presented as a person who uncritically accepts everything that her children tell her. This is a common failing and a natural one.

There is nothing to suggest that, however misguided it may been, the mother’s taking [X] to the Police was activated solely out of malice against the father. It arose from a genuine, albeit misconceived, understanding.
In saying this, I should make it clear that it is quite apparent that the father adores his children and there is nothing to suggest that either he or Ms S would ever have assaulted [X] or exposed him or the other children to harm.
The vivid paranoia that each parent has about the other is, in my view, misguided. The father has undoubtedly been violent and abusive to the mother and [X] undoubtedly dislikes this (as to an extent does [Y]) but there was nothing to suggest he would ever be violent or cruel to his children. He and Ms S will need to keep a careful eye on the two four year olds in their household when they are together because it would appear there is some strain between them, but there is nothing to suggest a lack of proper love and concern on their part. Similarly, the mother has as time has gone by made major improvements. The children’s attendance at school is now perfectly satisfactory. With the assistance of Ms L, she may be coming to terms slowly but surely with the separation and what she sees as the infidelity of the father. It should be noted in passing that the father is a man who has said to the Court that he is not a man for marrying, and when taxed with his infidelities he had sought to dismiss these away as merely being when the children were only two years old. He is not a man who puts fidelity at the forefront of his obligations.

The Statutory Pathway

Against this background, we come to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

All parties seek an order for equal shared parental responsibility. Notwithstanding some very regrettable family violence, I agree that such an order should be made. Both parents clearly should have a role in major decisions about the children.

The Primary Considerations

Everyone agrees that it is in the best interests of these children to have a meaningful relationship with each of their parents. Everyone agrees that it is in their best interests not to be exposed to family violence or the risk of abuse, albeit that each have much to say about whether that would or would not attain according to the regimes for which they contend.

Section 60CC(3), the Additional Considerations

Section 60CC(3)(a)

[X] has expressed considerable reservations about spending time with his father in various contexts but has also told the Independent Children’s Lawyer he would like to spend more time with him. [Y]’s position is more opaque. All three children enjoy a reasonably relaxed relationship with their father. [Z] sat on his knee at the family report interview. In my view, [X] is, as Ms M says, a conflicted child. He has adopted a somewhat protective position for his mother. He does not like the abuse that the father has undoubtedly expressed towards the mother. [Y]’s view is more opaque. [Z]’s views must be approached with caution, as must those of [Y]. It would seem that they have a slightly bifurcated relationship with their father but this may well have been contributed to by perceptions as to what the mother’s views of any relationship between them and the father might be.

Section 60CC(3)(b)

The children have a warm and close relationship with their mother who, as I find, has always been their primary carer. I totally reject the evidence of the paternal grandmother that the father was, so to speak, either the primary or at least a significant carer while the children were in her care. She struck me as being a thoroughly partisan witness. The father was working long hours, including making $178,000 in 2015, and there is no doubt in my mind that the mother is and has always been the primary carer and primary attachment of the children. The children nonetheless had at the very least a workable relationship with their father and with Ms S (the latter in [X]’s part improving following the low point of the Police revelations) and each grandmother is plainly well on the scene.

Section 60CC(3)(c)

It is clear that each of the parents has taken, or attempted to take, steps to be involved with the children’s long-term issues and to spend time and communicate with them. The father had energetically prosecuted his case to judgment.

Section 60CC(3)(ca)

Both parents have clearly made their best endeavours to maintain the children and there is nothing more to be said.

Section 60CC(3)(d)

There is no possible doubt in the face of the evidence as a whole and in particularly the clear evidence of Ms M that separation from the mother as a primary carer would not work for the children. Despite being skilfully pressed by counsel for the father, Ms M was not prepared to accept that anything more than a five/nine regime was appropriate. Ms M’s evidence was given within the area of her professional competence and I accept it. There is no doubt that to send the children to live with the father, which is his primary position, or even to spend equal time would be extremely disturbing to such young children. It should be noted that, whatever the cause, [X]’s relationship with his father remains to an extent difficult and even that of [Y] is by no means highly clear.

Section 60CC(3)(e)

There is no practical difficulty and expense of the children spending time with their parents, save the parents’ views about one another.

Section 60CC(3)(f)

Both of the parents have their weaknesses and their strengths. On the mother’s part, she is unable to see that her own views may impact on or, indeed, formulate the children’s views about their father. This lack of insight is a difficulty. Furthermore, in the period 2016 to 2017 she was unable for a variety of reasons properly to care for their wellbeing. The children were unkempt, had poor personal hygiene and were not attending school. Nonetheless, these matters seem to have dissipated, if not wholly disappeared (particularly in relation to school attendance) and there is nothing to suggest that the children are not competently cared for in the mother’s household.
The father’s capacity is, in my view, more questionable. He clearly adores his children, but he has an aggressive, domineering personality. He was unable to avoid upsetting the children in a session with Ms L in his accusatory questions about lying to the Police. While he says, self-pityingly and misguidedly, that he was led up the garden path, the best that could be said of him is that he took the opportunity open to him with both hands to get off his chest something that was important to him but damaging to the children. His obsession with himself, while wholly understandable given the hurtful nature of the allegations, suggests a lack of adult insight into his actions qua the children.

Section 60CC(3)(g)

The father is a domineering bully and the mother is a subservient, beaten down woman. This is the net result of their relationship together. The children are very young (even [X] is by no means an adult) and they appear to be sensitive children judging from the conflicted messages they send. It is to be hoped that counselling with Ms L will improve all aspects of this dynamic.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

The father’s attitude to the children is one to an extent of possession, as is that of the mother. They both love the children. The difficulties, in my view, in this case arise from their attitudes towards the responsibilities of parenthood insofar as it is involves dealing with one another. Both are for the reasons already expressed significantly compromised.

Section 60CC(3)(j)

There is no doubt in my mind that there has been family violence by the father. This has involved regular swearing and yelling at both the mother and the children and the assault when he dragged her out of the bed in 2016. It should be noted that the mother has not alleged any other prior instances of physical violence. That makes it all the more likely, in my view, that this occasion is true. The father’s refusal to accept this while understandable is concerning.

Section 60CC(3)(k)

This is no longer relevant.

Section 60CC(3)(l)

In my view, it is clearly preferable to make final orders and, indeed, no party has suggested contrarily.

Section 60CC(3)(m)

It is important to note that for all the difficulties in the past, the parties are moving forward. Everyone seems to agree that counselling with Ms L is beneficial. The parties must embrace this or they are highly likely to find themselves back in Court one way or the other.
It should be made plain that for all the failings to which I have pointed, each of the mother and father are devoted parents. They adore their children and want only the best for them. Neither of them is, in the scheme of things, an evil or revolting person. They are persons who have been through a very difficult time which has not brought out the best in them. On the father’s part, his rage at his circumstances has given rise to the acts of regrettable violence. On the mother’s part, it has given rise to an occasion of a false sworn statement (a matter not in any way to be underestimated) and a misguided desire to calumny the father with false allegations, even though she may not herself always have believed them to be false. It is sincerely to be hoped that the conclusion of these proceedings and the guidance of Ms L will help the parties move forward.

Conclusion

It is instantly obvious that the father’s proposal that the children live with him is not in the children’s best interests. Counsel for the father’s final submissions concentrated on his week-about proposal and this was a sensible way to deal with the matter.
Nonetheless, it is quite apparent that a week-about arrangement is not in the children’s best interests. The children have lived with their mother as their primary carer all their lives, and [Z] is still very young. He misses his mother and cries when he is not with her. The father’s relationship with the two older children while steadily improving is by no means yet a finished work. The notion that they should live with him on an equal time basis where the parents’ interpersonal dynamic is so poor is utterly misconceived.
This brings us to the nub, as I see it, of whether there should be a nine/five or four/ten arrangement. Ms M said that it did not really matter and, with respect, I entirely agree. The fact is that the children have only spent two nights with their father of recent times, even though I also accept this has been because of the mother’s blocking tactics. In my opinion, the matter should move to a regime of Friday to Monday each alternate weekend with one night on the Wednesday to Thursday night in the alternate week. This is a four/ten arrangement.
It is important to remember that time regimes are not about quantity but about quality of time. The weekend time will give the children time to be with Ms S’s children in what is to be hoped is a productive and not off-putting sense. All concerned will need to keep a careful eye upon this relationship. Ms M’s evidence was that the children should not be too long away from their father is evidence given with conviction and which I accept. In the end, I think a jump to five/nine from two/twelve is too much too soon. There will be orders for a four/ten regime.
It should be noted that there is a not insubstantial element of agreement including that there be equal shared parental responsibility and equal time in school holidays. It is to be hoped that when this proceeding is finished and the dust settles and Ms L’s ministrations have effect that the parties will be better able to cope with those areas of disagreement that may arise. I will order the parties to attend mediation prior to the issue of any further proceedings because, in my view, their initiatives will be far better spent in this regard than otherwise.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 5 October 2018

[2018] FCCA 2765

5 October 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies