Zelenko and Heit

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZELENKO & HEIT

[2018] FCCA 630

Catchwords:
FAMILY LAW – Parenting.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MR ZELENKO

Respondent:

MS HEIT

File Number:

NCC 549 of 2015

Judgment of:

Judge Myers

Hearing dates:

5 & 6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Parramatta

Delivered on:

7 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitors for the Applicant:

Mr Elis

Counsel for the Respondent:

Ms Cantrall

Solicitors for the Respondent:	Ms Dufty
Counsel for the Independent Children’s Lawyer:	Ms Greenaway

Solicitors for the Independent Children’s Lawyer:

Mr Duncombe

ORDERS

That all previous orders be discharged.
That the mother and the father shall have equal shared parental responsibility for the child X born (omitted) 2012.
That X live with the father.
That X spend time with the mother as follows:
(a)During school term, from 6pm Friday to 5pm Sunday or until 5pm on the Monday if the Monday is a school holiday, each alternate weekend or as such other terms as agreed;
(b)For the first 10 days of the Terms 1, 2 and 3 of the New South Wales School holiday periods and for 4 weeks of the Christmas school holidays as agreed but failing agreement for the first two weeks and last two weeks of Christmas school the holidays from 10am on the first day until 5pm on the last day during each holiday period;
(c)On the Mother’s Day weekend from after school on Friday to 3:30pm on Sunday;
(d)From 2pm on Christmas Eve to 2pm on Christmas Day in odd numbered years;
(e)From 2pm on Christmas Day to 5pm on Boxing Day in even numbered years;
(f)As otherwise agreed in writing between the parents.
Notwithstanding any other order, X shall live with the father as follows:
(a)From 2pm on Christmas Day to 5pm on Boxing Day in odd numbered years;
(b)From 2pm on Christmas Eve to 2pm on Christmas Day in in even numbered years;
(c)On the Father’s Day weekend from after school on Friday to before school on Monday.
That the parties shall communicate via text message to exchange information about X’s education, health and extra-curricular activities.
That the father communicate with X as follows:
(a)Between 7pm and 7.30pm on Saturday when X is living with the mother;
(b)To facilitate this communication the father shall call the mother’s mobile telephone and the mother shall ensure that X is available to speak with her father.
The mother shall communicate with X as follows:
(a)Between 7pm and 7.30pm on Monday, Wednesday and Friday when X is living with the father; and
(b)To facilitate this communication the mother shall call the father’s mobile telephone and the father shall ensure that X is available to speak with her father.
That each of Mr Zelenko and MS M and their servants and agents be restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2012 from the Commonwealth of Australia.
That X be restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child or children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List until further orders.
Both parents are restrained from denigrating the other parent in the presence or hearing of the child and are to use their best endeavours to ensure that no other person denigrates either parent in the presence or hearing of the child.
That the parents shall not physically discipline X and shall use their best endeavours to ensure that no person uses offensive language in front of X.
That these Orders constitute authority for the parents to each receive copies of school reports, newsletters, notices and school photograph order forms and to attend any school events to which parents are ordinarily invited, including parent/teacher interviews, subject to the convenience of X’s teacher(s).
That these Orders constitute authority for the parents to each liaise with X’s treating medical practitioners and obtain information about treatment of X and any other medical issues.
That in the event X suffers from a serious medical condition or requires urgent medical attention whilst in the care of either parent, that parent will notify the other as soon as practicable.
That the parties shall each keep the other informed of their current residential address, telephone numbers and any e-mail address by:
(a)Providing each other with no less than 28 days written notice of any intention to change their residential address;
(b)Providing each other with notice of any change in telephone numbers and/or e-mail address within 48 hours of any change.
That the mother and father shall do all acts and things necessary to cause X to attend upon a child psychologist for the purpose of attending assistance in respect to her adjustment of transitioning to the full time care of the father and the parties shall comply with all treatment directions of the psychologist.
That despite the provisions of any other order:
(a)X shall spend time with her mother each weekend for the next 4 weekends following the making of these orders at the same commencement and conclusion as set out in Order 4(a) above.
(b)The mother upon giving the father not less than 14 days’ notice may spend time with X where the mother travels to and meets the father at (omitted) Railway Station for a period of 4 hours on 3 occasions or on a Saturday or Sunday on weekends other than those the child would spend with the mother during school term. For the purpose of this Order, the father will deliver and collect X to and from the mother at the (omitted) Railway Station or such other place as agreed between the parties.
That unless otherwise provided for in these Orders, for the purpose of facilitating these Orders the father shall deliver and collect X to and from the mother’s residence in (omitted), NSW at the commencement and conclusion of X’s time with the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

NCC 549 of 2015

MR ZELENKO

Applicant

And

MS HEIT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is a final parenting decision in the matter of Zelenko and Heit in respect of the care and living arrangements for the parties’ child, X born (omitted) 2012, now aged six years of age six years and one month of age.
The applicant father, Mr Zelenko, seeks final orders that provide:
a)the parties have equal-shared parental responsibility for X;
b)X live with the father;
c)X spend time with the mother on Friday night until Sunday afternoon each alternate weekend;
d)X spend half of each of the school holidays with the mother and the father as well as spending time with both parents on such occasions as Christmas Day and X’s birthday;
e)that X have telephone communication with both parents when not in that parent’s care; and
f)that X spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother.
By consent the father sought orders that X’s name be placed on the airport watch list.
The father sought orders that provided that, in the event the Court finds X should live with the father, then change-overs should occur as agreed between the parties and, failing agreement, by the father delivering X to the mother’s residence in (omitted) at the commencement of X’s time with the mother and the father to collect X at the conclusion of X’s time with the mother from the mother’s residence at (omitted).
The respondent mother, Ms Heit, seeks orders in accordance with the minutes of order provided to the Court by the Independent Children’s Lawyer forming Exhibit “C” in the proceedings save and except for orders that provide for the mother to hand the child over at the railway station at (omitted). The mother instead seeks orders that the child be handed between the parties at the (omitted) railway station.
The orders sought by the mother and Independent Children’s Lawyer provide:
a)that the mother and father have equal-shared parental responsibility for X;
b)that X live with the mother and spend time with the father during school holiday time from after school Friday until 3.30 pm Sunday or 3 pm on a Monday, if the Monday is a school holiday;
c)each alternate weekend thereafter, the father’s time shall recommence on the second Friday of each school term; and
d)one half of each of the terms 1, 2, 3 and 4 New South Wales school-holiday periods with particular times being provided for in proposed orders 3.21 to 3.24 of Exhibit “C”.
The proposed orders further provide for the father to have Father’s Day weekend with X and for time to take place between X and the father at particular times on Christmas Eve until Christmas Day on odd-numbered years and Christmas Day till Boxing Day in even-numbered years or otherwise as agreed between the parties in writing.
Exhibit “C” further provides that X shall live with the mother at particular times from Christmas Day till Boxing Day in odd-numbered years and Christmas Eve until Christmas Day in even-numbered years as well as the Mother’s Day weekend.
Exhibit “C” provides for the parties to communicate via text message with particular times for that communication to take place. Provision is made for the child’s name to be placed on the Airport Watch List as provided for in the orders sought by the father by consent.
Orders were sought by the mother and the Independent Children’s Lawyer that restrain the parties from denigrating one another in front or within hearing of the child and to use their best endeavours to ensure no other person does so. Orders were also sought to prevent the parties from physically disciplining X and using their best endeavours to ensure that nobody uses offensive language in front of X.
The proposed orders were to provide or constitute an authority for the parents to receive copies of school reports, newsletters and school photograph order forms and attendances to which either parent or any parent might ordinarily be invited for X’s school. The proposed orders further provide for an authority for the parents to liaise with X’s treating medical practitioners, and should X suffer any serious medical condition or require urgent medical attention, the other parent will notify the parent with whom the child is then living or spending time with will notify the other parent. The parents are to keep one another informed of their current email address and telephone number and residential address with a provision for the parents to provide reasonable notice to the other within a certain time-frame. The orders provide that the mother is to do all acts and things necessary to cause X to attend upon a child psychologist for the purposes of obtaining assistance in respect of her adjustment of transitioning to the fulltime care of the mother.
During the proceedings, the Court indicated to the parties the possibility of the Court making additional orders that were not sought by any party, namely, that:
a)X initially spend additional weekend time with the parent with whom she does not live beyond alternate weekends to assist her with transition from the existing equal-time arrangement; and that X spend additional time during the school holidays with the parent with whom she does not live akin to one and a half weeks during each of the end of terms 1, 2, 3 school holidays and four weeks during the Christmas school-holiday period.
b)The Court further suggested that it could make an order that, should the parent, with whom X did not live, were to travel to (omitted) or to (omitted) – dependent upon whether X lived with the father or mother – that X could spend additional time with that parent of up to three individual weekend days upon reasonable notice being provided to the other parent.
The Court granted the parties procedural fairness in respect of the Court potentially making additional orders. Counsel for each of the respective parties obtained their clients’ instructions. Counsel for the father, counsel for the mother and counsel for the Independent Children’s Lawyer each indicated that they had received instructions they would not oppose the making of any such orders by the Court.
By way of background – the father was born in (country omitted) on (omitted) 1969. He is 47 years of age. The mother was born on (omitted) 1984 and is 33 years of age as at today’s hearing. The father has two sons not of the relationship, A, 23 years of age, and B, 22 years of age. The mother has three children not of the relationship, C, 15 years of age, D, 10 years of age, and E, aged eight years.
D lives with her father at (omitted) on the (omitted). The father has partnered with a person, Ms M, born (omitted) 1979, who is 38 years of age. Ms M has four children not of her relationship with the father, namely, F, aged 19 years, G, aged 14 years, and H, aged nine years, and I, aged 16 years. G and I both live with their father at (omitted). Ms M’s daughter F and the father’s son B are in a relationship.
The father lives in a home that he owns free of mortgage at (omitted). The mother resides in a housing-commission home she has at (omitted) on what was described at the hearing as a “long-term permanent continuing lease”. Is an agreed fact between the parties, that their respective homes are some two and a half hours’ drive apart. The mother is unable to drive and has literacy problems that may well have prevented her acquiring a driver’s licence. The mother is wholly reliant on public transport. The father by way of contrast drives and has a driver’s licence.
The father receives a disability support pension. The father’s partner, Ms M, is undertaking work with (omitted) through the work-for-the-dole scheme. Residing within the father’s house-hold is the father, Ms M, H, F and B, although the Court accepts that F and B are only residing temporally within the father’s home until B obtains employment following the loss of his job. Otherwise X resides in the home one week each fortnight.
Residing within the mother’s home is the mother, C, E and X one week each fortnight. The mother gives evidence that one week ago, one of C’s friends had resided in the home for some period until the mother asked her to leave.
The mother gives evidence of having been in a relationship that ended three months ago. The mother explained during cross-examination that the relationship came to end, because C is extremely jealous of the mother spending time with anybody else. The mother gave evidence that C does not want the mother to have a boyfriend and does not like it if the mother has friends.
The parties commenced what both parties described as an on-and-off relationship in 2011 that both parties agree finally ended in October of 2014. During the period of the relationship the parties at times resided together in Sydney and then towards the end of the relationship in (omitted).
On (omitted) 2012 X was born. Both parties agree that, from the time X was about two months of age, the father was what was described as a hands-on father, doing such things including bottle-feeding X. Following the parties’ separation in 2014, X commenced spending time with both parents on a shared-care week-about arrangement. In February 2015 the parties attended upon mediation and on 23 February 2015 entered into a parenting plan that forms Annexure “A” to the father’s trial affidavit. The parenting plan provides that X is to live with both parents on a week-about basis and further the parties have equal-shared parental responsibility for X.
Except on two occasions where the father withheld X from spending time with the mother, the arrangement of equal time has continued up to the present day, including following X commencing school.
Probably one of the most unusual features in this matter is that of X attending two public primary schools on a week-about basis. The letter of Assistant Principal Ms J of (omitted) Public School that forms Annexure “C” to the father’s affidavit concisely sets out the arrangement and provides:
X is currently a shared enrolment with (omitted) Public School in (omitted) and (omitted) Public School in Sydney.
Both parties agree X has a strong, loving relationship with the other parent. Both agree the other parent was a good parent. Both parents were moved to tears in cross-examination when they were asked to reflect upon the effect of X being separated from the other parent as a result of the orders the parties sought before the Court. The parties made it clear to the Court, that despite whatever orders the Court might make with respect to with whom X might live, they would not move to live closer to one another to make a continuation of equal time possible.
Cross-examination and submissions in the proceedings focussed upon issues relating to C, and any negative effect she may have upon X; G and any negative effect she would have on X; the effect of separation of X from her siblings; and, the capacity of the mother to cope with three or four children where she may become what was termed in the proceedings as “overstretched”.
The Court notes that during submissions counsel for the mother conceded that G did not pose a risk to X, and that cross-examination on the topic of G’s behaviour was undertaken to demonstrate failings in the father’s disclosure to the Court and the Family Consultant, around issues relating to G’s behaviour. It was submitted these failings demonstrated the father was, in the words of counsel for the mother, “building a case against the mother”.
The Court turns to the arguments concerning C. The mother set out in her affidavit at paragraphs 179–195 issues relating to C that provide:
179. C is currently fifteen years of old and is going through puberty.
180. C is a typical teenage girl. She does not like people touching her things and will tell people to leave her room, if they touch her things. She is also a loving sister and daughter.
181. For around 12 months after my relationship with Mr Zelenko ended, C, has said on a number of occasions words to the effect of “I’m worried you will get back with Mr Zelenko and he will go off at me again. I would rather you be on your own and not be with anybody”. I said to C words to the effect “It will never happen. Why are you so worried about this?” C said words to the effect of “I am scared he will be the same way he was. He used to always call me names and shout at me”.
At paragraph 182 the mother goes on to state:
182. C and I have arguments when I ask C to help me clean up. C has said to me words to the effect “I’m not the only kid here”.
The mother deposes to saying words to the effect “I know that, but you need to set an example for your sisters”. The mother set out at paragraph 182 of her affidavit that C called her a fucking idiot a few times during disagreement, and that the mother had said to her words to the effect “You should not be using that bad language, not around your sisters and not to me. Do your friends use this language with their mothers?”
The mother deposes at paragraph 184 that she does not respond to C in a disagreement by calling her names or arguing with her, as she tries to set an example for C about the type of behaviour C should have, if C had a disagreement with somebody.
The mother deposes that on 31 October she took C to see Dr G. Dr G conducted a behavioural assessment on C. The mother suggests Dr G did not identify behavioural issues; however, recommended that C see a psychologist. The mother deposes to working with the school to organise C to speak to somebody. At paragraph 186 the mother deposes that in late 2016 C was brought home by the police. She had lied to the mother about staying at a friend’s home. The police found C and her friend at an oval where there was an incident between some teenage boys and the mother understood one of the men had been stabbed.

The mother deposes that she spoke to C after the incident and told her she needed to be honest with the mother about where she had been so that the mother could know C was safe. The mother deposes at paragraph 187 she believes some of C’s behaviours are as a result of friends that she has at school and that the mother has spoken with C about her friends. The mother suggests that C has told her that one girl in particular has no friends so she feels like she has to be friends with her. The mother deposes that she had spoken to the school a couple of times about C’s behaviour and that the school attempted to get C into counselling at school. The mother deposes that C did not want to attend initially; however, she ended up seeing a counsellor for a few sessions.
The mother deposes that the counsellor then called the mother to discuss how C was going. However, once C found this out, C did not want to attend counselling any more. The mother deposes that in around May or June 2017 she took C to headspace at (omitted) and that when they arrived at the door C was worried about seeing the counsellor and that she did not want to attend. At the end of school term in 2017, C went to spend some time with her father at (omitted). C then remained with the father. C’s father and the mother then discussed C changing schools, following which C attended (omitted) High School. Towards the end of term 3 or early term 4, C moved back home with the mother and commenced at (omitted) High School during term 4. In term 4 the mother deposes C disclosed she was suffering bullying at school.
The mother subsequently spoke to the school about C being bullied. C told the mother that she was still being bullied despite the mother talking to the school and asking them to put in place arrangements in place to prevent C being bullied. The mother deposes she spoke to the school around this time and C’s year advisor who told the mother she was hoping to work with C in 2018 to help prepare her for an apprenticeship. C told the mother she would like to do an apprenticeship in (omitted).
The mother deposes C’s relationship with X improved significantly since she returned to live with the mother. For example, the mother deposes C would spend time playing games with X and would often buy her small gifts like Barbie dolls or clothes.
There have been difficulties in the relationship between C and X. The mother took C to see a consultant paediatrician in November 2016 – Dr G. The mother gave evidence in cross-examination that she did so because of the ongoing difficulties in relation to the relationship between C and X. Tendered in evidence is a letter of Dr G dated 1 November 2016. The letter of Dr G written to Dr Z of the (omitted) Medical Centre, a practice of which the mother attends, provides, as follows:
I assessed C today. The main reason that C’s mum, Ms Heit, has brought C is because of behavioural issues. There is a Court battle going on between Ms Heit and her ex-partner, Mr Zelenko. Apprently Mr Zelenko took their daughter, X, at six months of age and there has been a battle getting her back since. At the present time, X attends on week at Ms Heit’s place and one week at Mr Zelenko’s place and Full Court case is pending. The father, Mr Zelenko, dislikes C according to Ms Heit.
She states that Mr Zelenko does not want X to be in contact with C because of her behavioural issues and the Court have asked for her to be assessed. Ms Heit’s previous partner, Mr J, now lives in (omitted). C sees him approximately every second weekend and during some school holidays. I am told that he took C in her infancy and C was not returned to Ms Heit until seven years of age. At that time the Court concluded with pathology specimens that Mr J was misusing drugs. He had accused Ms Heit of misusing drugs but the Court found no evidence in her blood samples of any inappropriate drug use and C’s care was awarded to Ms Heit.
Ms Heit says that she missed a lot of early bonding with C because of that. Ms Heit also states that when she started having a relationship with Mr Zelenko he was, at times, very hard on C. She stated that when he was in the gym and C was a young child, she would wet herself and he would just let her sit in it. There seems to be a significant amount of tension and pressure based on whether C’s behaviour are appropriate enough for X to come back into Ms Heit’s life. There are various stresses that complicate the whole issue. Obviously, C’s relationship with Mr Zelenko is poor and for C to accept Mr Zelenko’s younger daughter into her family is something that is obviously going to take some time. C, at age 14, finds a four year old’s antics difficult to cope with and that creates angst within the household.
C’s father, Mr J, apparently only pays $50 child support each month, yet when C goes to stay with him he asks Ms Heit for $20 petrol money. C cannot see why Ms Heit would not provide money to Mr J. C was born at term after Ms Heit had gestational diabetes requiring insulin during the pregnancy. She was born via caesarean section at (omitted) Hospital and apparently was admitted for a couple of weeks in special care nursery of being at low blood sugar levels. She has had no major medical problems apart from some mild asthma when she was younger and no operations. She has some mild allergies to penicillin and has a rash before in association with that. She is fully immunised. C says that she performs in the average range at school. She is currently in year 8 at (omitted) Public School. Ms Heit says that lately C has been very oppositional and defiant. C will swear at Ms Heit and Ms Heit gets frustrated and ends up swearing back.
The Court notes this is in stark contrast to the evidence deposed in the mother’s affidavit. The letter goes on to state:
C has been truanting class and school and hanging around with a crowd that are encouraging her to act inappropriately. Recently C stated that she was staying at a friend’s place but was out partying – was found in the street and being chased by some men was brought home by the police. Apparently Ms M has been to Brighter Futures in the past and also tried to take C to headspace and some counsellors but she was unwilling to comply. C, at least, seems to answer some questions today and I indicated to her that the problems she is having are in part due to relationships issues and breakdowns with family. I think she would benefit from talking to a psychologist and I have given C and Ms Heit the number of some local psychologist through Ms K’s or Ms R’s practice so that C can hopefully engage with one of them to sort out her issues.
Despite the recommendations of Dr G, the mother has been unable to cause C to attend upon ongoing counselling. The Court heard the mother’s evidence in relation to the significant jealousy C finds around the mother spending time with anybody else, including being jealous of X. The Court heard the evidence of a change in C’s attitude to X after having returned from living with the father. The mother was extremely unclear as to when C returned. Having heard the mother’s evidence, it would appear that C has been living in the mother’s home again for some eight weeks after having left to live with the father some time in 2017.
The Court remains concerned around the significant influence C is able to exert over the mother where, on the mother’s evidence, her most recent relationship ended as a result of C not wanting and not liking the mother having a relationship or friends. The mother gave evidence of C’s jealousy stemming from the fact that C’s father removed her from the mother’s care during what the mother described as C’s early bonding years.
The Court considered the family report prepared by Regulation 7 Family Consultant Mr J prepared on 29 April 2016. At paragraph 19 of the family report, the Family Consultant noted that the mother said to him, in the interview process for the report, that a relationship with the father ended because the father was always “picking”. The mother went on to tell the Family Consultant that his – being the father’s – kids would always bully C and that the father would argue with her about C and blame C for problems in their relationship.
At paragraph 23 of the family report, when asked by the Family Consultant further about C, the mother agreed that C had a behavioural problem. The mother went on to tell the Family Consultant that C soon recovers from her tantrum and it will all be over. The mother told the Family Consultant the father would call C a “fat bitch” and that he would be unsympathetic. The father conceded during cross-examination that he had called C “dumb” and also “lazy” but denied calling C a “fat bitch”. The mother gave evidence during cross-examination that she would swear at times at C when C was having tantrums.
The mother suggested to the Family Consultant C had not recovered from the departure of her father several years ago and may need special assistance. The mother went on to explain to the Family Consultant that she was seeing a counsellor from WILMA, the Women’s Health Centre and that the counsellor may refer C for assessment. The Family Consultant noted at paragraph 33 of the report that for the brief time C was seen during the assessment, she was polite and positively involved. The Family Consultant noted C engaged well with X in play and verbally during observations.
During cross-examination, the Family Consultant gave evidence that C appears to be a somewhat troubled child; that C may identify X as a scapegoat and take things out on her. The Family Consultant opined that C is not wanting to dilute her mother’s attention and that X could be given a hard time by C. The Family Consultant suggested that C could focus upon X as an adversary and focus her antagonism upon her. The Family Consultant suggested that X may suffer a significant adjustment task in the mother’s household at a time when X is needing as much attention as she can get.
Ultimately, the Family Consultant suggested C will be tough upon X in the short terms.
The father gave evidence as to his observations of the difficulties experienced with C at paragraph 9 and onwards in the father’s trial affidavit. The father sets out that between 2011 and 2013 he lived with the mother at (omitted), and that in about July of 2011, C refused to go to bed at her bedtime and that time the mother called C a “fat cunt”. The father said he watched the mother chase after C to C’s room and that he saw the mother’s fist connect with the side of C’s head about three times. The father gave evidence he went to pull the mother off C and that as he did so one of the mother’s punches made contact with C’s upper chest.
The father deposes at that time the mother turned to him and said, “It is none of your business” to which the father deposes he said in reply, “I will do what I want” and he then walked out of the room.
The father deposes, at paragraph 23, that when the parties were residing together, C and the mother would scream and swear at each other regularly and that when C did this he would punish C by making her sit in a corner for 10 minutes or until such time as she behaved. The father deposed the mother and C would scream and swear at each other around two or three times a week. By “screaming and swearing” the father deposes that they would insult each other using various swear words such as “shit”, “fuck” and “cunt” and that it always appeared to the father that they were yelling at “the top of their lungs”.
The father deposes that X was always exposed to this behaviour. The father deposes that in September 2011 he heard the mother and C screaming at each other. He heard a couple of bangs like things being dropped and he walked into the kitchen and saw the mother holding C by the back of the shirt with her left hand. C was bent over at the waist. The father watched as the mother slapped C on the back of her head about four times while she was bent over. The father deposes that he got between C and the mother, pushing them apart and that he then had the following conversation with the mother in which the father said, “You’re going to lose those kids if this keeps happening; it’s too much”. The father deposes that the mother broke down and started crying and put her arms around him. The father says that by this comment he meant that the kids would distance themselves from the mother and that they would not have a good relationship with her as opposed, for instance, to being removed by the Department of Family and Community Services.
The father said that he spoke to C the following day on the back porch, saying to her words to the effect, “You must stop aggravating your mother. Do you want your mother to be happy?” To which the father deposes C shrugged her shoulders. He repeated the question to C and the father deposes C said “yes”.
The father deposes that on one visit, he saw the mother throw little toys at C and that C had a broom in her hand and she hit the ceiling with it. The mother and C then struggled with the broom and then the mother chased C with the broom outdoors.
The father deposed that when C did not get her own way, she would kick walls and that C would do that about once a week and that during the time he had known the mother, he had repaired about 15 holes in the wall. In about June 2014 during the school holidays, the father deposes he walked into the kitchen – X followed him in and that he saw C try to kick the mother away while the mother was pushing her against the fridge with her left hand. The father suggests that he saw the mother punch C three times in the head with a closed fist. The father deposed that X ran to the father for a hug so he took her into the lounge room to move away from the incident.
The father deposed that following the incident, he had a conversation in which she said, “What would happen if X got in the middle and she gets hurt?” To which the mother is alleged to have said, “That will never happen”, to which the father then responded, “How do you know?”
The mother denied that she had hit C during cross-examination, though did concede that C had at times put holes in the walls and that there had been swearing between the mother and C but denied that the word “cunt” had ever been used by the mother.
The mother gave evidence around her continuing difficulties to have C attend school and ongoing significant difficulties in relation to C being bullied at school. The mother appeared genuinely upset during the hearing where she had been unable to prevent C being victimised and abused by bullies at school, and particularly where C’s school appeared to have made little or otherwise futile attempts to prevent this occurring. The mother also appeared upset where she had been unable to engage C in any form of counselling as a result of C’s ongoing refusal to do so. C is, in the view of the Court, very much a victim of ongoing bullying that has and continues to cause difficulties for the mother with respect to C engaging in school.
The Court is significantly concerned around C’s ongoing needs in the mother’s household and the effect of X on C and vice versa where X will spend close on double the amount of time in the mother’s household than she currently does if the Court makes orders in accordance with those proposed by the mother and the Independent Children’s Lawyer.
The issues of difficulties being experienced in the father’s household with Ms M’s daughter, G, was significantly explored during cross-examination. The Court notes that G has been a victim of school bullying.
G’s behaviours, while difficult, are, in part, mitigated by the reality that G has been engaged and would appear to be continuing to be engaged in counselling. Importantly G does not live with the father and Ms M and instead, although only recently, lives with her father. Counsel for the mother conceded during submissions that the mother does not propose G poses any form of risk to X, but rather issues were raised to demonstrate the father’s failings around disclosing G’s behavioural problems.
The Court heard submissions made by counsel for the Independent Children’s Lawyer and counsel for the mother on the topic. Although the father, it is true, did not disclose the issue around G the Court is not persuaded such failure is material to the Court’s determination that the father has the capacity to provide for X’s needs including her emotional needs and prevent X being exposed to risk. This is particularly so noting counsel for the mother’s submissions to the effect that the mother does not contend that G poses a risk.
Raised during cross-examination and during the hearing was the issue of the separation of X from her siblings C, D and E. Counsel for the Independent Children’s Lawyer in submissions placed heavy emphasis on this, as did counsel for the mother. The Court notes that C has only recently moved back into the mother’s household after unsuccessfully moving to live with her father on the (omitted) and being enrolled in the (omitted) High School.
D has recently self-placed to live with the father and no longer resides the mother’s home. The Family Consultant gave evidence about sibling relationships during cross-examination, opining relationships are important and help form healthy adult relationships. The Family Consultant suggested if X were not with her siblings, she would question why she was not with them and that such an issue could be counterproductive into adulthood. The Family Consultant suggested if X did not live with her siblings, she could become resentful. However, the Family Consultant was clear to point out that where risks in the mother’s household were detrimental to X, then whatever benefit she might gain from being with her siblings would be negated.
The Court agrees with the Family Consultant’s views in that exposure of X to various risks in the mother’s household would negate benefits X would derive from living with her sisters.
The Court heard cross-examination and submissions on the topic of the mother’s capacity. The mother has had an extremely hard and difficult time during her childhood. The mother was sexually abused when she was nine years of age. The mother disclosed her abuse at age 17 and was diagnosed with depression and post-traumatic stress disorder. The mother made complaint, and the perpetrator of the sexual abuse was charged and prosecuted.
The mother went on to suffer significant bullying at school and later in life suffered post-natal depression after C was born. The mother has seen her doctor for anxiety over the years and is able to manage that anxiety through what the mother describes as breathing techniques or otherwise exercises. The mother gave evidence that she has not threatened self-harm during her relationship with the father. The mother currently takes Seroquel to assist her with anxiety and sleep at night. In the view of the Court, the mother has appropriately done those things necessary to look after her mental health.
The Family Consultant had raised some concerns during cross-examination around the potential for the mother to become what was described as “overstretched” and find herself unable to cope with the children and the demands placed upon her. The Family Consultant was clear to say that the Court would need to evaluate the benefit of X living with the mother against the mother being overstretched. Material produced on subpoena to the Court on 20 April 2017 from the mother’s doctor forming Exhibit “F” in the proceedings contains a medical note made on 4 January 2017 in respect of the mother that provides:
…depressed, sick, crying, unsettled, feels like she does not want to be around her kids – tried many antidepressants in the past – depression, panic attacks – trial of Seroquel – discussed weight loss, very depressed re gaining weight for trial of Seroquel.

In the view of the Court, the mother has and continues to do the best she can. She is a good mother who loves her children. She has a particularly hard time with C, whose ongoing behaviours are no doubt exacerbated by the unrelenting bullying she receives at school. It is the view of the Court that the mother has on some occasions been unable to cope. The mother, in the view of the Court, is weighed down by the task of looking after C. The Court expects things would be more difficult rather than less if X were to live with the mother full time and be required to undertake the travel arrangements suggested by the mother or by the Independent Children’s Lawyer in the orders sought by them that would occur each fortnight.
The Court expects that where C has not undertaken counselling and X moves to live in the mother’s household full time, the mother would experience greater demands and greater stress. The Court is cognisant that in January 2017 X was not living with the mother full time. The Court has considered the evidence of the previously poor communication between the parties but is significantly heartened by both parties’ evidence to the effect that communication and cooperation between the parties has been significantly improved. The mother was able to provide various circumstances in which that had taken place.
The Court considers those matters set out at section 60CC of the Family Law Act 1975.
The Court accepts there is a significant benefit to X having a meaningful relationship with both parents. The Court considers the need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The Court finds that X will not be subjected to abuse or family violence by the father resulting in physical or psychological harm to her. The Court finds the mother will not expose X to abuse and neglect. Unfortunately, given the difficult nature of C’s ongoing problems, there is a real possibility of X being exposed to family violence by C.
C’s jealousy towards X will only, in the view of the Court, be exacerbated by X living with the mother full time. Having heard the Family Consultant’s evidence, the Court considers there is a need to protect X from being exposed to abuse and family violence by C. The Court cannot take into account or give weight to any views expressed by X where there was no evidence before the Court of the same. In any case, given X’s level of maturity and understanding, the Court would have given those views little weight. The nature of the relationship between X and both parents is a good, healthy, loving one. The Court considers she would be equally attached to both parents. The Court considers X has a loving relationship with the father’s partner Ms M, and Ms M’s children. The Court considers that X has a loving and strong bond with her sisters.
X is, in the view of the Court, however, too young to understand her sister C’s difficulties, too young to understand C’s resistance to schooling, too young to understand C’s resistance to counselling and too young to understand C’s strong jealousy of X. C is jealous of her mother’s time to the extent that C does not want the mother to have a relationship with another partner or friends. C has found X difficult and, in the view of the Court, will continue to do so. While C loves her sister, the relationship is a fraught one where on the mother’s evidence C is jealous of X. The Court understands X has a good relationship with her adult brothers.
The Court notes the parties have taken to the opportunity to participate in making decisions about major long-term issues in relation to X, to spend time with her and communicate with her. Both parents have fulfilled their obligations to maintain X. There will be a significantly detrimental effect upon X by ending the equal time arrangement she has experienced for most of her life and for at least as long as her living memory exists. In a situation where neither party is willing to move closer to one another, unfortunately this circumstance must change.
X will likely experience loss and grief. She will need significant support. The Family Consultant points out X will suffer a significant adjustment task. It is this difficult adjustment task that makes C’s jealousy around not wanting to dilute her mother’s attention all the more salient. In either household on either proposal X will be separated from other children and from her siblings.
The effect of that separation, in the view of the Court, and the loss and perhaps grief around not seeing those children and siblings is somewhat less than the loss X will experience of losing one of her primary carers where X has for the whole of her living memory enjoyed both. The effect of the separation of C on X may perhaps be of some benefit. The Court heard the mother’s evidence of C having a new attitude towards X after returning to live with the mother.
The Court considers the possibility that X’s absence from C may, through a reduction in the frequency of time she spends with her, alleviate in part C’s jealousy of her, particularly where the mother, through no fault of her own, has been unable to engage C in counselling as recommended by Dr G. The Court considers the parties’ proposal with respect to the practical difficulties and expense caused by the distance the parties must travel to collect and return X between one another. The Independent Children’s Lawyer proposes the mother collect and return X to and from the father at (omitted) Railway Station.
The mother gave convincing evidence of the difficulties that arrangement would cause her and X where the journey to (omitted) Station would involve buses and multiple train travel of approximately two hours each way. The mother does not have a driver’s licence. The mother suggests orders that she travel to (omitted) Station, although easier, is still a significant journey involving bus and train travel. The father’s proposal where X lives with him, that he collect and return X to and from the mother’s home significantly reduces the practical difficulties and expense around X travelling between both households.
The Court considers that having heard all of the evidence, both parties have the capacity to provide for X’s intellectual and emotional needs at this moment. However, the current circumstances as they exist at this moment will not continue. One party will have the greater care of X. It is the view of the Court that having X full time in a household where the mother gives evidence she finds it somewhat difficult to cope will place a real stress on the mother’s capacity to provide for X’s needs, including her intellectual and emotional needs.
The Court is of the view the father will have the greater capacity to provide for X’s intellectual and emotional needs if X were to live with him.
While the mother raises the issue of the father having been born in an (religion omitted) faith where the father is now a practising (religion omitted), born in (country omitted), there is insufficient evidence to allow the Court to give weight to the considerations of maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child’s parents. The Court is not aware X is an Aboriginal or Torres Strait Islander child.
Despite some criticism directed towards the parties placing X into two schools in a week-on/week-off arrangement, the Court finds the parents have an appropriate and loving attitude towards the responsibilities of parenthood. The Court notes the state of the evidence with respect to the allegations of family violence. The evidence does not allow the Court to find that either party has perpetrated family violence, although the Court can find that many of the behaviours exhibited by C do, when measured against the definitions of family violence contained at section 4AB of the Family Law Act, amount to family violence.
The Court is not aware of the existence of family violence orders applying X or to any members of her respective families. The Court considers the desirability and preference for making orders that would be least likely to lead to the institution of further proceedings.
The Court considers those provisions set out at section 61DA of the Family Law Act1975, the presumption in favour of equal shared parental responsibility when making a parenting orders rebutted by reasons where there are reasonable grounds to believe that a child or person with whom the child has lived with has engaged in the abuse of the child or another child or family violence.
The Court does not rebut the presumption in favour of equal shared parental responsibility by those reasons of abuse of a child or another child who at the time was a member of the X’s family or by reason of family violence. The Act provides at subparagraph (4) the presumption may be rebutted by evidence that satisfies the Court it would not be in the interests of the child for the parents to have equal shared parental responsibility for the child.
The Court considered the cross-examination of the counsel for the Independent Children’s Lawyer with respect to the parties’ communication. The Court is satisfied that if the Court made an order for equal shared parental responsibility, it would not lead to the institution of further proceedings as the parties would be able to compromise and communicate sufficiently to make equal shared parental responsibility for this little girl work. The Court does not rebut the presumption in favour of equal shared parental responsibility and, accordingly, it will make an order that the parties have equal shared parental responsibility for X.
The Court is required to consider the provisions of section 65DAA of the Family Law Act 1975 that provide the Court is to consider this child spending equal time or substantial and significant time with each parent in certain circumstances. Subparagraph (1) provides that subject to subsection (6), if the parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility, the Court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child and;
b)consider whether the child spending equal time with the parents is reasonably practicable.
Having considered those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), the Court considers that it would be in the best interests of X that she spend equal time between both parents. However, when considering those matters set out at subparagraph (5), the Court notes the parties simply live too far apart for the arrangement of equal time to be reasonably practicable. And whilst the parents have the current and future capacity to implement an arrangement for the child to spend equal time and whilst in the view of the Court the parties do have the current and future capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement for equal time, it is the view of the Court that the distance of the parties is just simply too far; it becomes impracticable and otherwise the impact that the arrangement would have on the child being in two schools would be detrimental to her.
It is the shortcomings of the distance between the parties that makes equal time impracticable. Similarly, when I turn to those considerations found at section 65DAA as to whether or not X should spend substantial and significant time as defined at subparagraph (3) of the section 65DAA to include days that fall on weekends and holidays and days that do not fall on weekends and holidays – in other words, weekdays; and the time the child spends with the parent allows the parent to be involved in occasions that are of particular significance to the child and allow the child to be involved in occasions and events of particular significance to the parents and allow for the other parent to be involved in the child’s daily routine. The Court finds that whilst it would be in the best interests of X to spend substantial and significant time with both parents, it is not reasonably practical when the Court considers the provisions set out at section 65DAA, subparagraph (5)(a).
The parties live two and a half hours apart. They live too far apart to make a substantial and significant time arrangement practicable. And although, again, while the parties have the current and future capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement of that type, the Court turns back to the fact the parties live too far apart to implement an arrangement. The parties live too far apart for it to be reasonably practicable. The arrangement where this child attends two schools is detrimental upon her. The Court finds that substantial and significant time is not reasonably practicable.
Having considered those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), section 61DA, section 65DAA, the Court finds that it is in the best interest of X that she live primarily with the father. The Court considers that it is in X’s best interest that she spend additional time with the mother than was provided for in the orders provided by any of the parties in the proceedings, and therefore makes the following orders.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 15 March 2018

[2018] FCCA 630

7 February 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Injunction

Remedies