Wilkies and Ormsby

[2017] FCCA 3027

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKIES & ORMSBY [2017] FCCA 3027

Catchwords:
FAMILY LAW – Parenting competing residence applications – mother lives in Adelaide father lives in Melbourne.

Legislation:
Family Law Act 1975, ss.60B(1), 60B, 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(3)(h), 60CC(6), 61DA(1), 61DA(2), 61DA(4), 61F, 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3)

Cases cited:

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

Applicant: MR WILKIES

Respondent: MS ORMSBY

File Number: MLC 807 of 2016

Judgment of: Judge Harland

Hearing dates: 21 & 22 September 2017

Date of Last Submission: 22 September 2017

Delivered at: Melbourne

Delivered on: 7 December 2017

REPRESENTATION

Counsel for the Applicant:  Mr Cain

Solicitors for the Applicant: Croxford Partners

The Respondent: Self-represented

Counsel for the Independent Children’s Lawyer:	Ms Goldthorp
Solictors for the Independent Children’s Lawyer:	Lampe Family lawyers

ORDERS

1. That all previous Orders be discharged.

2. That the Mother and Father share equal shared parental responsibility for the children:

   (a)X born (omitted) 2005;

   (b)Y born (omitted) 2006 and;

   (c)Z born (omitted) 2011.

3. That the children live with the Father.

4. That the children spend time and communicate with the Mother as follows:

   (a)Half of all school term holidays as agreed and failing agreement, from 12:00pm on the Saturday immediately following the last day of term until 12:00pm the following Saturday;

   (b)For half of the long summer vacation on the following basis:

   (i)From 12:00pm Christmas Eve 2017 until 12:00pm on 10 January in 2018 and each alternate year thereafter;

   (ii)From 12:00pm on 27 December 2018 until 12:00pm on 13 January in 2019 and each alternate year thereafter.

   (c)By Skype each Tuesday, Thursday and Sunday at 6pm, with the Mother to initiate the call and the Father to do all things necessary to facilitate that communication and ensure that the children have privacy during the call.

   (d)Otherwise as agreed.

5. That the parties are to meet at the McDonald’s Restaurant in (omitted) for the purposes of changeover.

6. That the Mother be at liberty to obtain from the children’s schools, at her request and expense (if any) all information that a parent would ordinarily be entitled to, including but not limited to school reports, newsletters and school photograph order forms.

7. That both parents be restrained from:

   (a)Consuming illicit drugs, alcohol to excess or prescription drugs (unless prescribed to them) for 24 hours prior to our during any time with the children;

   (b)Denigrating, abusing, rebuking or belittling one another or members of the other parents family in the presence or hearing of the children or permitting others to do so;

   (c)Physically disciplining the children or permitting others to do so;

   (d)Discussing these proceedings or matters raised therein with the children or permitting others to do so.

8. Without admitting the necessity for it, by consent, the father is restrained from leaving the children with Mr J unattended.

9. That all extant proceedings be otherwise dismissed.

10. That the appointment of the Independent Children’s Lawyer be discharged after the Independent Children’s Lawyer has explained the effect of the orders to the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 807 of 2016

MR WILKIES

Applicant

And

MS ORMSBY

Respondent

REASONS FOR JUDGMENT

1. This case is about the parties’ three children: X born (omitted) 2005, aged 12 (“X”); Y born (omitted) 2006, aged 11 (“Y”); and Z, born (omitted) 2011, aged 8 (“Z”).

2. The mother seeks orders for the children to live with her in Adelaide and to spend time with the father during the school holidays.

3. The father proposes that the children remain living with him in Melbourne and spend half the school holidays with the mother. If the mother moves to Melbourne, he is willing for the mother to spend more time with children and if the mother visits Melbourne, he is also happy for her to spend additional time with the children. He said he previously proposed that the mother have weekends with the children if she can come to Melbourne and that that has occurred once.

4. The proceedings began when the father sought a recovery order after the mother refused to return the children to the father’s care. Since the children were returned to the father, after interim consent orders were made, they have spent a week of the school holidays with the mother in Adelaide.

5. Since the children were returned to the father pursuant to Court orders, they have lived with the father, his partner Ms A (“Ms A”) and their young son B. The father also has a child from a previous relationship A, born (omitted) 2002 (“A”). Until recently she was living with the father but she is currently living at his sister’s home as she wanted to spend more time with her mother.

6. The mother represented herself at the final hearing. She relied on her trial affidavit and an affidavit she filed responding to the family report.

The parents’ relationship

1. The mother says that during the relationship the father was violent towards her.

2. The parties were in a relationship from 2004 until late 2014 or March 2015. The mother moved out of the home in March 2015. The father says they were living separately under the one roof from November 2014.

3. Post separation the mother spent little time with the children until late 2015. The mother had periods of homelessness after she moved out in March 2015. It is her case that she had no choice as she was threatened by the father and that, because she was reliant on Centrelink benefits, she was not able to secure alternative accommodation for herself and the children.

The father’s evidence

1. The father’s working hours are generally 7.00am to 3.30pm Monday to Friday and occasionally he will work two hours overtime. Ms A assists with the care of children.

2. The father says that Z is on the waiting list for speech therapy and since he has started school his speech has improved. There is an asthma plan in place for him.

3. The father says the living arrangements for A are temporary and that she will move back in with them once they move to a bigger house. Currently she lives five minutes away.

4. The father conceded that X’s skype handle is ‘(omitted)’. He denies that it was learned from him or his sister. He says it is unacceptable. He says he monitors the children’s social media use and no longer allows X to use Instagram.

5. The mother says that X has told her that she is dating. The father says he is aware of the friendship but they are not dating. He says X asked the father if she could date and he told her that she is not allowed.

6. At the father’s house Z and B share a room and X and Y share a room. A attends the same school as the other children. The siblings see each other at school and at other times. The father says he and Ms A plan to move to a bigger house once they have enough money saved.

7. The mother cross-examined the father about the affidavit affirmed and filed 24 February 2016 where he says that he has no criminal associations. The father’s sister Ms S spent time in prison for drug trafficking. After her release she lived in the household with the mother and father and the children for a period of time and continues to live there for a period after the mother moved out.

8. One of the mother’s concerns about the children is swearing. The father and Ms A admit they swear occasionally.  No doubt the children have heard them. The father said his method of discipline of the children when they are rude, swear or do not do their homework is to explain to them what they did wrong and if that does not work he will place them in time out. At the end of time out they need to explain to him what they did wrong and apologise.

9. The girls are receiving tutoring three nights a week in Maths and English. The father says the issues for Z are not so much speech but being distracted and fidgety. The teacher moved him within the classroom and that has helped.

10. The father says his brother, Mr J, lives in (omitted) and the children have seen him three or four times in the past couple of years. He says his brother has not slept over and the children have not been left in the room alone with him. The father consented to an interim injunction preventing him from leaving the children alone with his brother. He does not know the details but there was sexual conduct which occurred between Mr J and his other brother. He does not know the details of the Court proceedings with respect to that. He says since then his brother has had his own children who live with him. His brother lives and works in (omitted). He does not see his brother as a danger and does not think the injunction is necessary on a final basis but is willing to agree to it remaining in place if it sets the mother’s mind at ease.

Ms A’s evidence

1. It is unfortunate that Ms A did not attend the family report interviews. She said she did not attend as she was getting the father’s phone fixed. She said both their phones were broken and that she was not sure how to go about contacting the mother regarding picking up the children after the family report interviews. She agreed that the family report was important.

2. The mother cross-examined Ms A about her evidence about the state of the house when she moved in. She moved in two months after the mother moved out. She said the house was unclean. She said before she moved in she saw the father’s sister trying to maintain the house, vacuuming and doing the dishes and looking after the children. She also said that the mother’s family was messaging the father to find out if the mother was still alive because of her drug use. Ms A says that her father was a drug addict so she has grown up with drug addicts and knows when someone is using drugs. Her brother is also a drug addict. In response to the mother’s allegations that there was drug use in the father’s household, Ms A admitted that once she bought a small amount of marijuana prior to B’s birth. She said she did not smoke at home and does not smoke around the children. She does not believe that she was pregnant at the time she used marijuana.

3. Ms A says she has no idea how the children came to draw the pictures of drug paraphernalia that the mother annexed to her affidavit. She says there were no drugs that their house after the mother moved out.

4. Ms A worked at (employer omitted), as well as (occupation omitted). She was also a (occupation omitted) for a couple of years. She had to get a (certificate omitted) for both jobs.

5. Ms A says when she gets frustrated she does not hit the children or belittle them. She does not swear much. If she gets frustrated she takes time out for herself.

6. The children all spoke of Ms A positively in the family report. B does not attend day care. Ms A says she has the support of her mother who lives half an hour away.

7. Ms A says if she and the father have issues they sit down and talk about it and see if they can sort it out.

8. The father has authorised her to pick up the children during school hours if she has to take them to appointments.

9. Ms A says she hopes she is a positive role model and an extra support for the children. She says it is hard to get X to see her mother. Ms A encourages her and tells her she will have fun. She says she tells her that they only have one mother and she is important. She says she knows the situation is hard and wishes the mother lived closer so the children could see more of her.

The mother’s evidence

1. The mother lives in a three bedroom rented house in Adelaide. Her mother lives next door. Whilst her mother was not a witness in the mother’s case, she was present in Court throughout the hearing. Her brother and one of her sisters live with her mother and her older sister lives a street away.

2. The mother is working part-time as a (occupation omitted). She started this work in (omitted) 2017. She works a few hours a day, seven days a week.

3. The mother agreed that the relationship she had with the father was conflictual. She has never had a stable relationship. Her recent relationships have been marred by violence.

4. The mother said she accepted that it was possible the father returned a positive drug test because of taking codeine but said she was concerned about his latest drug screen. The mother says until she stopped her drug use she used marijuana and the methamphetamine ice (“ice”). She used acid when she was younger. She has never used heroin.

5. When she was younger the mother left Adelaide to get away from the people she took drugs with. However, she used drugs again in Melbourne. She says she did not use drugs when she lived in (omitted) after she and the father separated. Since returning to Adelaide she says she does not speak to anyone in Adelaide who she associated with when she was using drugs.

6. She says she stopped using drugs for a long time then relapsed when she was charged for possession and placed on a diversion program. She says she relapsed when she was trying to see the children but was not allowed. She knew she was still struggling and that she did not have enough supports in place to stay off drugs.

7. The Independent Children’s Lawyer (“ICL”) questioned the mother about why she did not seek the support of her family in 2015 when she became homeless. She said she was embarrassed by the fact the father cheated on her.

8. The mother’s case is that the father’s house is not a safe environment for the children. She says she would be content for the children to visit during the school holidays. The ICL pointed out that there was an inconsistency in her position. The mother said her reasoning was that she can educate the children to avoid drugs and criminal activity. The mother denies denigrating the father and Ms A in front of the children. She says she educates the children by explaining that police officers are good people and to use manners with their siblings. She says her son was not sure if police were good people until she told him that they are. The mother says she has heard the father and his family call the police “dogs” many times. She says she has not referred to the father calling the police “dogs” to the children as she does not want the children to be set against their father.

9. The mother acknowledged that the school reports show that the children are stable at their school. The mother complains that this information is not enough and she needs more information from the father. She agreed that the children are flourishing at school and said that the teachers deserve credit for that and acknowledged that the father and Ms A play a role in that. The mother minimised any disruption the children would experience to their schooling if they moved to Adelaide. The mother said that Y preferred her school in Adelaide and X is to start high school. She said it was only recently that X has refused to visit her. She said she did not know if she was coerced or not. She then said that X told her that the last holidays she had got her period the night before and did not like the drive to Adelaide.

10. The mother accepted the proposition that people can rehabilitate themselves. The mother said she is proof of that. She did not accept that the father’s sister has rehabilitated herself.

11. The mother was sexually abused by her step father as a child. She accepts that there is risk everywhere in society but she said she does not allow people who have been charged with sexual assault into her home. With respect to the father’s brother she says she is the one who took his young brother to Court so he could have his older brother charged with sexually assault.  The mother’s position with respect to the father’s brother is understandable.

12. The mother says she met Mr M when she was homeless and went to live in (omitted). He was violent. She moved to Adelaide later in the year. She left the home she shared with the father and his sister to look for alternative accommodation for herself and the children. She says she was threatened. She denied the proposition that she must have been comfortable enough with the father’s ability to look after the children to leave them with him. The mother says she left so that one parent was clean at that point. The children were not in immediate danger.

13. The mother says she went to the police in Adelaide and asked if she would be breaking the law if she did not return the children to the father. She also sought legal advice. She says she was told to wait until the father sought orders and that he would have to go to dispute resolution first.

14. The mother conceded that she has not spoken to the children’s school. She says she asks the children about school and has asked the father but he has not responded. She said her main concern was the counselling at the school and she asked her mother to email the school about that as her mother had worked at a school and understood the terminology used.  If the mother was so concerned about the children’s school she would not have relied on what the children and the father say but would have spoken to the school directly.

15. The mother believes she can care for the children on a full time basis and does not believe she is at risk of relapsing.

16. The mother has a six month lease for the house she is renting. She says she can renew the lease next year. The mother works three to five hours a day. She does not drive. It takes her between 45 and 60 minutes to get to work. She says getting her driver’s license is her next challenge.

17. The mother was cross-examined about X’s comments to the family report writer that she has a partner. The mother says that she does not have a partner. Mr J is a good friend of hers who lives nearby.

18. The mother sees her GP regularly. She is not taking any medication. She does not believe she has a mental health problem. She believes it was coming off drugs that caused it to appear as though she had mental health issues.

19. The mother says that if the children remain with their father she will meditate and use prayer to prevent her from relapsing as she did the last time she was in a similar situation. She says she is looking forward and does not need anything else to support her. She cannot countenance the idea that she may be tempted to use drugs again. She says her family provides her with external support. In the past two years, she has lost a cousin, her father has been unwell and she has been without her children. She says she has been able to stay off drugs throughout that period and knows she will be able to remain off them.

20. One of the mother’s complaints is about the lack of privacy when she is Skyping with the children and she believes that X does not always attend those sessions. The mother believes this is due to the lack of privacy.

21. Ms A says the children Skype with their mother on their iPads and walk around the house. Ms A says it is difficult to juggle the children during Skype calls in a small house. It is clear that it is difficult to find privacy for the children in the house they are currently living in.

22. The mother’s proposal would see the children separated from their siblings, B and A.

The parties’ drug use

1. The mother says she has successfully rehabilitated. She says she has not used illicit substances since September 2015. She is participating in a group program at (omitted). She started that course on 23 August 2017.  Exhibit A is a letter from (omitted).

2. She says she has been able to rehabilitate herself from drugs because she is no longer living with the father and had discovered (religion omitted). Since the proceedings began both parties have undergone drug tests. The father returned a positive test on 6 April 2017. He said this was because he took Ibuprofen for a toothache.

1. The father conceded that he was aware that the mother was a drug addict when they met. He said he found the mother’s drug paraphernalia and saw her use drugs after X was born. He said he was shocked at the time but was aware of her drug history. He did not do anything proactive in terms of taking her to a doctor or getting outside assistance but says that they tried to do it themselves. He says he witnessed the mother’s drug use on and off for years. He said that he moved his sister in for support. The ICL put to the father perhaps his sister was not the best person to have living in the house given that she spent time in jail for drug trafficking. The father said his sister did not have a history of drug use but was jailed for selling drugs. The father said as far as he knew it was a one-off. The ICL asked the father why he did not disclose his and his sister’s drug history in his initiating affidavit. His affidavit, and those of Ms A and his sister filed in support of his recovery application, all referred to the mother’s drug use. The father said that he guessed that his sister was on parole for two years and all her drug screens have been clean. The father should have disclosed his own family history.

2. The father admitted to using marijuana when he was younger. He denies using drugs more recently. He undergoes random drug tests for his work depending on what jobs he is allocated. When he was first employed he underwent a medical assessment and drug testing was part of the induction process. He says he usually has to undergo drug testing when working on (omitted) jobs.

3. The father and Ms A admitted that Ms A bought a small amount of marijuana for her use without him knowing. He says he was disappointed in that but it is not an ongoing concern for him. It was before she had B. The father says he is not for or against drugs.

4. The mother was cross-examined about exhibit A which is the letter the mother tendered from (omitted). The mother only started the group course in August 2017. She says that she is like a mentor for many in the group as she has gone for so long without drugs. She agreed that there is no reference to that in the report. The report references to it being early days. The mother says she started the course to show that she is safe and off drugs. The mother was candid in her evidence. Her primary support is her faith in God. She feels that it was is keeping her clean. She was asked that if she has been drug free since 2015, why did she enrol in the course so recently. She says her lawyer was concerned that she did not have enough evidence. She is confident that she will not relapse. She says if she was going to relapse she would have a long time ago. She is seeing another counsellor for various issues. She says she is doing it to better her life for her children’s sake. The mother conceded that this is the first time she has participated in rehabilitation.

5. Counsel for the ICL asked the mother what supports she has accessed since September 2015 when she relapsed. She says she found God and she meditates. It is mainly her faith in God and her family support that keeps her from relapsing. She does not attend church. She lights candles at home and prays.

6. Her doctor is very aware of her drug history as she refuses to take any painkillers. Her positive drug test was on 16 August 2016 for opiates was because her dentist insisted she take Nurofen Plus for a tooth ache. She is not concerned that by taking the medication she would relapse as she does not want to take drugs.

7. The mother admitted that she did not include her possession charge in her first affidavit. She says at that stage the matter was still going to Court and she was not sure the charge was going to stick. She conceded that this Court would be interested in the charge whether or not it was upheld.

8. The mother was admitted to (omitted) Health in 2014. The mother says she admitted herself for mental health issues as she was not coping with the situation. She was cross-examined about the hospital notes. She accepts the notes as accurate but does not remember going to hospital and does not remember what she said as she was suicidal.  Counsel for the ICL put to her that this was a serious episode in 2014, but the mother says now she does not need help. The mother says she has a new counsellor that she has not started to see yet. She says it was set up on Monday before Court and was by the referral from (omitted). She attends (omitted) three times a week. She thinks there is about five weeks left of the course but she is not sure.

9. The Department of Health and Human Services (“the Department”) got involved with the family in 2014. The notes record that the mother identified that ice was a big problem for her and she would go back to it when there was problem. She says she was pretty honest when speaking with the Department workers but then says the father told her to tell them he did not take drugs so that they would not take the children away. The mother also told the Department that he was a good father. She says at the time she believed that was the truth.

10. The ICL asked the mother if she has learnt additional strategies through (omitted), in addition to her faith, to avoid wanting to take ice again. She said they talk about the negative effects that drug use has on you and your family.

11. I accept that the mother is sincere in her belief that she will not relapse again, but it is of concern that the mother has had little in the way of external supports, other than her family, and that she has only recently engaged in rehabilitation in the lead up to the final hearing.

Expert assessments

1. After the mother moved out of home the father facilitated the children spending time with the maternal grandmother in Adelaide. The father agreed to the children spending from 27 December 2015 to 17 January 2016 with the maternal grandmother and mother as the mother had moved to Adelaide by that time. The mother did not return the children as agreed, and the father commenced proceedings on 3 February 2016 seeking an urgent recovery order.

2. The family attended a Family Consultant for an urgent s11F conference when the father’s recovery application came before the Court on 23 February 2016. The mother told the family consultant that she did not return the children to the father because she was concerned about their physical care, as she said they had nits and matted hair when they arrived at her house. She also said she was concerned about the communications she saw the children’s iPad which she believed confirmed that the father and his partner were using drugs and that his partner was selling drugs. The mother enrolled the children in school and kindergarten in Adelaide.

3. The family consultant recorded that the mother had a long standing history of drug use, including ice, and that the mother alleged that the father also used drugs throughout their relationship. The mother also said that the father’s sister moved in with them and she had been jailed for drug trafficking and also used drugs. The father denied the allegations that he used drugs throughout the relationship or was using them currently.

4. The mother alleges that the father was physically violent towards her during the relationship but the family consultant recorded that apart from one incident the mother was not able to recall specific events. The father denied family violence except for one occasion when he pushed the mother and she fell into a swimming pool.

5. The mother says she was diagnosed as having borderline personality disorder in 2014 and the father alleged that the mother threatened to self-harm on several occasions and was hospitalised at least once

6. The parties acknowledged that the children had been exposed to their arguments and also to the mother being drug affected and that her behaviour had been unpredictable and erratic at times

7. The family consultant interviewed the two girls and observed Z. The girls described feeling worried and scared when their parents argued and when their mother would not come home for weeks at a time. The family consultant concluded that the girls had experienced significant pressure to say they wanted to remain in Adelaide with their mother. They told the family consultant they did not want to hurt their mother’s feelings but they wanted to stay with their father. They felt the pressure of having to choose and were reassured and relieved once they did not have to do so. The family consultant also noted that the girls had attended two schools in short period of time they had been with their mother which was unsettling and disruptive to them. The family consultant recommended that the children be returned to their father’s care and that they spend time with the mother for one week in the school holidays in Adelaide with the maternal grandmother to be in substantial attendance.

8. After hearing the evidence of the family consultant, the parties, with the assistance of their lawyers, the mother and father entered into consent orders which reflected the recommendations.

9. The mother underwent a psychiatric assessment conducted by Dr M. Dr M was not required for cross-examination.  He recorded that the mother told him that she was diagnosed with borderline personality disorder when she was coming off the drugs and that that was the cause. He noted that was possible and could not confirm a diagnosis but noted that the mother has some unhelpful personality traits.  He concluded that provided she stayed off illicit drugs the prognosis was good.

The family report

1. The family report was released on 23 August 2017.

2. The family report writer recorded the parents’ disparate positions. The mother’s case is that the children are exposed to drug use and lack of care in the father’s home. She believes she can give the children a stable home with the support of her extended family.

3. The father’s case is that the children have a stable home with him. He believes the mother is not able to give them the same stable home life and the children are settled now they are not exposed to the mother’s drug use and erratic behaviour. He wants the children to spend regular time with the mother and cannot understand why the mother does not move back to Melbourne. The mother says she will not move back to Melbourne as she believes she will be harassed by the father and his friends and believes they are still taking drugs.

4. The father told the family report writer that the mother only saw the children a few times after she left the home. He trusted her when she asked to see the children in Adelaide over the summer holidays.

5. X did not go to Adelaide with her siblings to stay with her mother during the July school holidays. The mother said that she did not want to force X to go.

6. The father says that X had not wanted to go to Adelaide for the two previous holidays but he had told her she had to go. With respect to the last holidays the father says she was adamant about not wanting to go. He says she told him that she was not comfortable about going. He says he spoke to his lawyer about whether he had to force her to go or whether she can choose.

7. X was positive in her interview with the family report writer about her father and Ms A and her mother. X says she was relieved to be returned to her father’s care in February 2016. She told the report writer that she would prefer to live with her father in Melbourne. Sometimes she is scared that her mother will not let her return to her father’s care and that she feels safer with her father.

8. X said she would like to see her mother more on weekends in Melbourne. The family report writer gave evidence that X may feel more comfortable spending time with her mother once final orders are in place.

9. Interestingly, Y mentioned that both parents worry about them when they are with the other parent.  This is not good for the children. Both parents should be mindful of this. Y wants to live with her mother. She says she did not tell the family consultant that when she was interviewed for the s11F report because she was copying X. She also said that she has more friends in Adelaide.  She said she was prepared to be separated from X.

10. Z was excited to see his mother and grandmother at the family report interview. Z initially said he wanted to live with his mother. He later said he wished his parents were next door neighbours and then said he wished they lived together in the same house.

11. The family report writer concludes that ideally the parents would live in the same city so the children could spend substantial and significant time with both parents. The mother has strong reasons for seeking to remain in Adelaide where she has family supports in place. The father has no connections in Adelaide. In circumstances where the parties will remain living in different cities, he recommends that the current living arrangements remain in place.

12. The mother feels that if the family report writer conducted the interviews in the reverse order that he would have known to ask the father other questions. She says if it was the other way around it would have been a more in-depth report. She accepts that the family report writer is an expert in assessing families but there were some things he was not aware of until she spoke to him. She agreed that she spoke to him before he wrote the report. She says she did not contact the family report writer after he interviewed her as she did not know she was allowed.

13. The family report writer was cross-examined. He said that the children expressed three different views. The fact that they did this suggests that if any pressure was placed on them, it did not work. The family report writer replied to the mother’s questions that he did not think if he had questioned the mother first it would have made any difference to his report. Of course one parent always has to be interviewed before the other. The family report writer’s practice is to interview the parent with primary care of the children first.

14. The mother asked the report writer about Y and the fact that she has a strong faith in God. He said that partly Y may be strongly identifying with her mother.  He talked about different households having different values. He said they do have a female role model in the father’s household in Ms A, but she is not a replacement for their mother.

Legal Principles and their application to children’s issues

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.

3. In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. 

9. In her trial affidavit the mother alleged that the father was violent towards her during the relationship. This was not explored during the hearing. The ICL notes that this was probably due to the mother being self-represented. The ICL submitted that the children were clearly exposed to their parents fighting but the matter has moved on since then.

10. Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).

11. If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.

12. Although the father was seeking sole parental responsibility citing the parents’ poor communication, by the end of the hearing he had changed his position.  I find it is in the children’s best interests that the parents share parental responsibility. The mother has valuable input to provide with respect to the major decisions impacting on the children’s welfare. The parents may be assisted by using an online parenting communication tool such as My Mob, Two Houses or Our Family Wizard.

13. For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.

14. The children have expressed differing views about their preferred living arrangements. X does not want to move.  Y does. I have some concerns that Y and particularly Z are not mature enough to understand what such a move will be like for them in reality. In the short time they were in Adelaide with their mother they went to two schools. If they were to move they would be separated, not just from their father but also from the half siblings.

15. Whilst the mother was the children’s primary carer during the relationship, the children have been in the father’s care for the past two and a half years. Whilst the mother is critical of the father’s care and his household, the children’s school reports do not support there being significant concerns. The father has provided clear drug tests apart from the one where he was taking ibuprofen for a tooth ache. The children saw little of the mother in 2015 and apart from the period when the mother overheld the children; they have primarily seen her during school holidays.

1. All the parties and the witnesses in this case gave their evidence in a straight forward and sincere manner.

2. The mother has made great strides in beating her drug addiction in difficult circumstances. It is a long standing issue for her. I accept she sincerely believes that there is no chance that she will relapse. However, she has only recently engaged in drug rehabilitation counselling and primarily relies on her family and her faith in God. 

3. In this case, because of the distance involved, neither party seeks an order for equal time or substantial and significant time. Whilst the father remains in Melbourne and the mother in Adelaide, it is only realistic for the parent who does not have the care of the children during school term to spend time with the children during school holidays and for special times, including the occasional weekends.

4. The mother’s concerns that the father’s household exposes the children to drugs and a lack of emotional care and attention is not supported by the evidence.

5. I am satisfied that it is in the children’s best interests that they remain in their father’s primary care in Melbourne. The evidence is that the children are doing well at school and are settled in their father’s care.  They have half-siblings in Melbourne. It would be disruptive to the children to have them move to Adelaide. Whilst the mother remains living in Adelaide (I note she has very good reasons for doing so) the children are only going to be able to spend time with her during school holidays and at other times if the mother visits Melbourne. There is no need to continue the requirement that the maternal grandmother be in substantial attendance. No one sought that that order be continued on a final basis. It is not necessary.  For the reasons I have given I am satisfied that the orders I make are in the children’s best interests.

I certify that the preceding one-hundred-and-six (106) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 7 December 2017