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FAMILY COURT OF AUSTRALIA CONDON-NIXON & RIVERS [2012] FamCA 7

FAMILY LAW CHILDREN - Final parenting and childrens orders Sole parental order Rebuttal of presumption of equal shared parental responsibility Time spent and communication orders Alleged sexual abuse and family violence Family intervention orders Criminal proceedings Self represented litigant Allegations of stalking and inappropriate behaviour Total lack of communication and respect between households Conduct of the parties Notifications to the Department of Human Services Family Consultant and other welfare reports Role of Independent Childrens Lawyer and recommendations made by them Need for a final defended hearing Finality of orders Injunctive orders Restraint on issuing further proceedings without Court approval

Family Law Act 1975 (Cth) s 60CA s 60CC(2) s 60CC(3) s 60CG s 61B s 61DA s 65DA s 121

APPLICANT: RESPONDENT: INDEPENDENT CHILDRENS LAWYER: FILE NUMBER: DATE DELIVERED: PLACE DELIVERED: PLACE HEARD: JUDGMENT OF: HEARING DATE:

Ms Condon-Nixon Mr Rivers

MLC

482

2008

16 January 2012 Melbourne Melbourne Young J 19, 20, 21 and 22 December 2011

REPRESENTATION COUNSEL FOR THE APPLICANT:


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SOLICITOR FOR THE APPLICANT: COUNSEL FOR THE RESPONDENT: SOLICITOR FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: Mrs Howe Jane Baldwin Ms Buchanan Septimus Jones & Lee

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INDEX
ORDERS.......................................................................................................................4 Ms Condon-Nixon .......................................................................................................1 REASONS FOR JUDGMENT.....................................................................................1 ISSUES.........................................................................................................................1 ORDERS SOUGHT......................................................................................................2 SUMMARY OF ORDERS............................................................................................5 AFFIDAVITS RELIED UPON.....................................................................................5 NOTICE OF CHILD ABUSE.......................................................................................7 PREVIOUS COURT ORDERS....................................................................................7 FAMILY INTERVENTION / VIOLENCE ORDERS.................................................10 BACKGROUND FACTS...........................................................................................15 RELOCATION WITHIN AUSTRALIA.....................................................................16 LITIGANT IN PERSON.............................................................................................17 OBSERVATION OF WITNESSES.............................................................................19 STANDARD OF PROOF...........................................................................................21 BEST INTERESTS OF THE CHILDREN.................................................................22 MOTHER....................................................................................................................22 FATHER......................................................................................................................25 RISK OF ABUSE IN FATHERS CARE....................................................................27 LACK OF COMMUNICATION BETWEEN PARTIES............................................33 CREDIT FINDINGS...................................................................................................34 E..................................................................................................................................34 L .................................................................................................................................36 Mr NIXON..................................................................................................................39 MS L RIVERS............................................................................................................42 MOTHERS OTHER WITNESSES...........................................................................45 FAMILY CONSULTANTS REPORTS......................................................................47 DEPARTMENT OF HUMAN SERVICES REPORT.................................................57 FAMILY LAW ACT 1975 (Cth) RELEVANT SECTIONS .....................................58 SECTION 60CC CONSIDERATIONS.......................................................................62 SPEND TIME ARRANGEMENTS............................................................................67 FUTURE SECONDARY SCHOOLING....................................................................68 SURNAME.................................................................................................................69 TELEPHONE CONTACT..........................................................................................70 INJUNCTIONS...........................................................................................................72 COMMUNICATION BOOK......................................................................................73 MEDICAL PRACTITIONERS...................................................................................73 FURTHER APPLICATIONS......................................................................................74 CONCLUSION...........................................................................................................75 COSTS........................................................................................................................75

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ORDERS
IT IS ORDERED: 1. 2. THAT all previous parenting and childrens orders and injunctions be discharged. THAT the father have sole parental responsibility for the children of the marriage E RIVERS born December 2001 and L RIVERS born March 2004 (the children). 3. 4. THAT the children live with the father. THAT the children spend time and communicate with the mother as follows: (a) during school terms on each alternate weekend from after school on the Thursday until the commencement of school on the following Monday morning save where that day is a Public Holiday or a school curriculum day and then until the commencement of school on the Tuesday; (b) (c) (d) (e) for the second half of each of the first, second and third school term holidays; during the December / January school holidays from 4.00 p.m. 24 December until 7.00 p.m. on 14 January in the following year; on the Sunday of Mothers Day in each year from 6.00 p.m. on the Saturday until the commencement of school on the Monday morning; in the event that the Sunday of Fathers Day falls on a weekend when the children would normally be with the mother then her time with the children on that weekend is suspended from 6.00 p.m. Saturday so that the father may enjoy all of that Sunday and he is to return the children to school on the Monday morning; (f) on each of the childrens birthdays the family household in which the children are then not residing spend a period of no less than two (2)

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hours, or such further time as may be agreed, but not so as to interfere with any schooling; (g) the alternate extended weekend time enjoyed by the mother is otherwise to be suspended during the first half of all school terms and December / January school holiday period from school break-up until return to school; (h) by telephone on each Sunday and Wednesday between the hours of 7.00 p.m. and 7.30 p.m. and these telephone conversations are not to be recorded or transcribed and the parent with whom the children are then residing are to ensure that the telephone call is made punctually at 7.00 p.m. to the nominated telephone (preferably landline) of the other parent; (i) at all such other times as the parents may agree, and which should include a reasonable time on the birthday of each of the parents and on the birthdays of each of the children of the other spouses, that is of R and M; (j) 5. other times as may be agreed. THAT all changeovers of the children which do not occur at their respective school(s) punctually occur at the McDonalds Family Restaurant, B Street, Melbourne Suburb 1 and be facilitated by a parent or a person well known to both of them. 6. 7. THAT the children are to continue in and complete their primary school education at School 1, Melbourne Suburb 2. THAT the father is to determine the appropriate secondary school for each of the children to attend and he is responsible for their enrolment in and preparation for secondary schooling. 8. 9. THAT the children are to continue to attend a general medical practitioner at the W Medical Centre, save for any emergency situation. THAT the father must ensure that the child L continues to regularly attend upon her paediatrician, Dr N, and her designated speech therapist and both parents are entitled to forthwith receive any report or opinion that is prepared and available.

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10. THAT each parent will, as soon as practicable, notify the other in relation to any illness, injury or accident sustained by either of the children whilst in their care if it is significant enough to warrant medical attention. 11. THAT the father do all acts and things and give all necessary instructions to advise the childrens schools that he is the primary parent responsible for their enrolment and attendance but he is to authorise and request the school to make available forthwith to the mother copies of all school reports, newsletters and other relevant information pertaining to the children and nothing in these orders will preclude the mother from attending any significant and scheduled school event or occasion normally attended by a parent. 12. THAT neither the mother nor father, or other adult members of their household are to physically discipline the children or allow any other person to deliver any such discipline. 13. THAT the mother and father and their servants or agents be and are hereby restrained by injunction from: (a) (b) abusing, insulting, belittling or otherwise denigrating the other party or members of the household; discussing these proceedings with, or in the presence of one or other of the children or from permitting any other adult member of the household so to do; (c) from making (without proper and substantial evidence) unfounded allegations of sexual abuse or other forms of abuse or violence of or concerning the children to any other person or to the Department of Human Services. 14. THAT subject to the provision of any specific school or sporting uniform that may be required each of the mother and father are otherwise required to provide all clothes, school requirements, toiletries and other items necessary for the children whilst they are in their respective care and to punctually return any item belonging to the other household. 15. THAT the parents are to continue using a communication book to accurately convey information to the other in relation to both children and all of their

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school, health and other social issues and that book is to be placed in the childrens school bag at all changeovers. 16. THAT the mother be restrained from issuing any further parenting, childrens or specific issue Application of or concerning the children and their welfare in this Court, or in the Federal Magistrates Court, without first obtaining the leave of a Registrar of the Court, upon proper material filed. 17. THAT the children are to be and remain known by the surname Rivers and both parents and their servants and agents are restrained from identifying or referring to the children under any other surname or hyphenated surname. 18. THAT the appointment of the Independent Childrens Lawyer be discharged as of 1 March 2012. 19. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders. 20. THAT all extant Applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J. 21. THAT there be no orders as to costs of and incidental to the hearing. IT IS CERTIFIED 22. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the father and Independent Childrens Lawyer.

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

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FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 482 of 2008

Ms Condon-Nixon Applicant And Mr Rivers Respondent And Independent Childrens Lawyer

REASONS FOR JUDGMENT ISSUES


1.

The time for final parenting and children orders has arrived. The two children of this marriage E born in December 2001 and L born in March 2005 (the children) have lived in an agreed shared parental arrangement since shortly after their parents separated in late 2006. Largely as a result of continuing and escalating parental and household conflicts, a lack of communication, claims of alleged sexual abuse and other inappropriate behaviour and many Court Applications and hearings both parents, supported by each of their new spouses, have now sought a sole parenting order. The issues before the Court to be determined are therefore orders to be made in the best interests of the children for parental responsibility, as to where the children should live and with whom they should spend time and all related ancillary orders including orders as to schooling, change of surname and necessary injunctions.

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ORDERS SOUGHT
MOTHER
2.

The mothers Amended Application in a case was filed 23 November 2011 and the final parenting and childrens orders that she has now sought are identical to those identified in that document. The mother sought sole parental responsibility for the children and that they live with her and spend time with the father provided that he continued to live in the Melbourne metropolitan area. The mother identified in paragraph 4 of her Amended Application the alternate weekend periods and other holiday and special occasion times that the children should spend with their father. As an overview she proposed that he have only alternate weekends from after school on Friday (later amended by her to the Thursday) until the commencement of school on a Monday morning, alternate Wednesday afternoons from after school until 7.00 p.m. (later withdrawn by her) and effectively almost half of school holidays, and on other special occasions. The mother, as is evident from her Amended Application, sought specific orders controlling the fathers time and responsibilities with the children, most significantly that he is to be in attendance at all times when the children are in the presence of his new wife. It is not necessary to detail with particularity all of the orders sought by the mother in paragraphs 5 27 (inclusive) of her Amended Application but they are all matters addressed in evidence by the mother and her witnesses and which I have considered. I highlight paragraph 25 wherein the mother required the father to do all acts and things and sign all documents to effect a change in the childrens surname from Rivers to Condon-Rivers, but with the qualification that such name change not be implemented in their primary school, School 1, Melbourne Suburb 2.

3.

4.

5.

6.

7.

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8.

The mother requested that a passport issue for each of the children though there is no evidence before the Court on her behalf as to any contemplated overseas holiday. I have decided not to grant such an order and there is no foreseeable need for either of the children to hold a passport. FATHER

9.

The orders sought by the father are detailed in his Amended Response filed 30 November 2011 and as were updated in the orders sought as contained within his outline of case filed 12 December 2011. However in the opening of his case he sought a very significant change in the orders sought for parental responsibility. The father at all previous times had applied for the parties to have equal shared parental responsibility for the children save that he sought to exercise sole parental responsibility as to matters of their health and education. In a further case summary document filed by leave of the Court on the first day of the hearing and being document No. 142 in the Court Index the father sought an order that he have sole parental responsibility for the children. His case has been conducted on that basis. The further additional order now sought by the father is contained in paragraph 18 of the most recently filed document and that is for an order that the mother be required to seek the leave of the Court before filing any further Application in relation to parenting matters. The mother opposed that Application. The father initially proposed that the children spend time and communicate with the mother on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, or if a public holiday then until the Tuesday. Otherwise he proposed further special occasions and birthdays and for the second half of all school term holidays. In his final orders sought he also extended the alternate weekend period to commence on the Thursday so that the parent with whom the children do not live would have some limited but regular involvement with their school days, as recommended by the Family Consultant.

10.

11.

12.

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13.

In the Christmas long vacation holidays the father has carefully proposed that both children spend time with the mother from 4.00 p.m. on Christmas Eve until 7.00 p.m. on the 14th of January in each following year, that is the mother has every Christmas Day and the period thereafter. The remaining orders sought by the father related to the management of the childrens medical, general health and educational issues, injunctions and nondenigration orders and other ancillary matters that he proposed and which were intended to facilitate at least some form of workable relationship with the mother and other adults. INDEPENDENT CHILDRENS LAWYER

14.

15.

At the commencement of the proceedings a document entitled Preliminary View of the Independent Childrens Lawyer was filed and provided to both parents. That submission sought the discharge of all previous court orders and proposed that both parents have parental responsibility for the children when they are in their respective care and that there be equal shared parental responsibility for decisions relating to education and medical needs. The orders proposed that the children should live with their father and spend designated time with their mother and those periods were identified as being each alternate weekend from after school on the Thursday until the commencement of school on the Monday, save if that day is a public holiday, for half of school holidays and other birthdays and special occasions and further telephone contact.

16.

17.

18.

There were other orders sought to promote communication, ongoing counselling for the children and to ensure that both parents have knowledge of all educational and medical concerns for the children and have relevant information and documents available to each of them. The primary witness relied upon by the Independent Childrens Lawyer was the Family Consultant Ms C and in her follow up Report filed 5 December 2011 she had made specific recommendations including for the exercise of parental

19.

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responsibility by each of the parents when the children were in their respective care.
20.

The Family Consultant was cross examined upon that recommendation and during the hearing she became aware of further evidence including a tape recording of a telephone conversation between the father and the children. She was also questioned on the substantial level of ongoing conflict between the parties and she was then aware of the particulars of the final parenting orders sought by both the mother and father where they jointly opposed any order providing for a shared equal parenting arrangement. Ms C then modified her recommendations. The final submitted orders sought by the Independent Childrens Lawyer were for the children to live with the father and that he have sole parental responsibility. That outcome represented a significant shift from the orders they had sought at the commencement of the proceedings. Counsel for the Independent Childrens Lawyer, Ms Buchanan, was very firm in her final submissions that there should only be a sole parenting responsibility order made in favour of the father and that it was not in the best interests of the children for there to be shared parental responsibility.

21.

SUMMARY OF ORDERS
22.

At the outset therefore there was a very defined position adopted by both parents before the Court. They each sought sole parenting orders on the basis that they are unable to communicate with or make decisions in consultation with the other parent. There is a significant background history in the Federal Magistrates Court of court proceedings, injunctions and other court orders and also intervention orders from the State Magistrates Court. These matters are more fully considered throughout these Reasons for Judgment, but always with the primary focus of the best interests of the children.

AFFIDAVITS RELIED UPON


23. The mother relied upon the following evidence:

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her trial affidavit filed 21 November 2011 and the many annexures thereto; the mothers Financial Statement filed 24 November 2011; the affidavit of her new husband, Mr Nixon filed 21 November 2011; the affidavit of Ms H filed 4 July 2011; the affidavit of Ms S filed 21 November 2011; the affidavit of Ms I filed 21 November 2011; the affidavit of Ms B filed 21 November 2011; the affidavit of her father, Mr L Condon filed 4 July 2011; and the affidavit of her mother, Ms J Condon filed 4 July 2011. his trial affidavit filed 30 November 2011 and its annexures; his further affidavit in reply filed 5 December 2011; his Financial Statement filed 30 November 2011; the affidavit of his new wife, Ms L Rivers filed 30 November 2011; and the further affidavit of his new wife in reply filed 5 December 2011.

24.

The father relied upon the following evidence:

25.

In addition the fathers solicitors filed two outline of case documents, on 12 December 2011 and 19 December 2011 which included a substantial chronology and statement of background facts which were not challenged by the mother.

26.

The Independent Childrens Lawyer relied upon the following evidence: the affidavit and updated Family Report dated 5 December 2011 from the Family Consultant Ms C; the earlier Family Report dated 20 May 2011, prepared by the Family Consultant Ms C; and

the affidavit of Ms Z, Protective Worker in the employ of the Department of Human Services who filed a substantial 20 page report prepared by Ms Y, Senior Protective Worker and dated 18 February 2011, together with the recommendations then made by the Department.

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27.

I have carefully read and evaluated all of the affidavits and each of the Reports of the Family Consultant and of Ms Y. At the commencement of the case I raised with counsel for the father and the Independent Childrens Lawyer and with the mother the issue of the many inadmissible facts, comments and observations and other statements contained within affidavits relied upon. I confirmed that the approach of the Court would be to wholly disregard all such inadmissible evidence and that I would concentrate upon the established facts and evidence relevant to a determination of orders that are in the best interests of the children. The case was conducted on that basis and these Reasons for Judgment have been drawn to incorporate only proper and relevant evidence.

28.

NOTICE OF CHILD ABUSE


29.

On 22 November 2010 the mother filed a very detailed Notice alleging seven separate episodes of child abuse or inappropriate conduct and behaviour by the father or Ms L Rivers. She had annexed to that Notice a copy of the interim intervention order made at the local Magistrates Court in early February 2011 and the affected family members there named were the mother and both E and L. The issues raised in that Notice have been generally considered throughout this Judgment and, where applicable, appropriate findings made. I have found there to be no evidence or not sufficient evidence to properly substantiate any of those allegations.

30.

PREVIOUS COURT ORDERS


31. These parents have been involved in court proceedings in this Court, or in the Federal Magistrates Court, since the father first filed an Application on 18 January 2008.
32.

Final orders were made by consent in the Federal Magistrates Court on 31 March 2008 and I have read those orders which were made at a time when all parties were represented by counsel and solicitors. In summary those orders provided for the parents to have equal shared parental responsibility for both

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children and for there to be an alternate week arrangement for the children to live in each of their households. 33. There were then pronounced substantial ancillary orders as to school enrolment, injunctions, co-operation with the medical needs of the children, Girl Guides or swimming lessons and other like orders to substantially regulate the conduct and activities of the parties.
34.

Throughout the 2009 calendar year there were various alleged issues that arose and whereby the mother sought medical and other assessments of the children and notifications were made to the Department of Human Services. The police were involved and the mother filed a Notice of Risk of Abuse and further Applications were filed which led to a re-commencement of defended proceedings in the Federal Magistrates Court. On 12 May 2010 all of those proceedings were resolved and final consent orders were pronounced by Federal Magistrate Hughes. Again both parties were represented and counsel appeared for the Independent Childrens Lawyer.

35.

36.

The basis of the final consent orders were to discharge all previous orders, for the parents to retain joint parental responsibility for both children and for the children to live with each of their parents on an alternate week basis.

37.

Again, and in summary there were various orders for time to be spent with the children on holidays and other special occasions, telephone communication and the instigation of a communication book, schooling and injunctive orders and orders to limit the medical, dental and other professional services for the children save in appropriate circumstances. On that occasion an order, by consent, was pronounced for the children to be and remain enrolled in School 1, Melbourne Suburb 2 under the surname Rivers and the parents were injuncted from using any other surname for the children at all times.

38.

39.

On the basis that these were final orders the appointment of the Independent Childrens Lawyer was discharged. Within five months of those final orders there arose factual disputes and allegations between the parents and more particularly between the mother and

40.

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the fathers new wife, Ms L Rivers. In particular the mother alleged that Ms L Rivers had physically assaulted one of the children and police investigations were commenced and on 22 November 2010 the mother filed a further Notice of Risk of Abuse and overheld the children from the father. 41. Proceedings were instituted again in the Federal Magistrates Court who immediately transferred those proceedings to this Court. The Department of Human Services were involved and interviewed the father and the children, and others.
42.

On 25 February 2011 the proceedings were listed before Senior Registrar FitzGibbon who made orders by consent varying the terms of the earlier final consent orders of 12 May 2010. These orders varied the childrens living arrangements with both parents and, on an interim basis, placed a restriction upon the father from leaving the children, or either of them, alone with his new wife. The father was required to be in attendance during all periods when the children were in her presence. This was to prove to be a very substantial burden on the Rivers household.

43.

A further Family Report was ordered and it was pursuant thereto that Ms Cs initial Report was prepared and received into evidence in these proceedings. There was reference in paragraph 16 of those interim consent orders for the matter to be considered as a Magellan matter and leave was reserved to apply for a mention in that list to the Registrar. It is now evident that there are no Magellan issues central to this case, save perhaps the aggressive and inappropriate conduct of the parents and their inability to have any meaningful communication or discussion with each other. For the purposes of this hearing it was highlighted to the parties and accepted by them and by the Independent Childrens Lawyer that this case has no Magellan context and the issues to be heard and determined in these proceedings related exclusively to the welfare and best interests of the children and appropriate parenting and related orders. Thereafter the matter was listed before the Court for the release of the Family Consultants Report, for case management issues before me, including the requirement upon the father to make, file and serve an affidavit advising the

44.

45.

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Court of the outcome of proceedings in the Magistrates Court where the police had brought proceedings against Ms L Rivers over an incident allegedly involving her assault upon the child L.
46.

Subsequently, on 27 September 2011, I made orders requiring the parties to cooperate and do all acts and things to facilitate the church baptism ceremony for each of their daughters and although that remained a matter of complaint the ceremony went ahead and both children were finally baptised. The issues as to the identity of the godparents, the fathers non-attendance and other matters identified by the mother are not central to the determination of the primary issues in these current proceedings. They better reflect the ongoing conflict and mistrust between the families.

47.

FAMILY INTERVENTION / VIOLENCE ORDERS


48.

There have been various family violence orders sought and granted as between the mother and Ms L Rivers and these have assumed significant importance in the evidence of the parties and Ms L Rivers and are matters that required balanced consideration in these proceedings. They are relevant s 60CC(3) additional considerations. On 23 November 2010 the mother obtained an intervention order against Ms L Rivers who then obtained an order restraining the mother from attending at her work premises. Eventually that latter intervention order was withdrawn against the mother and in the fullness of time the mothers order against Ms L Rivers lapsed. It is not necessary to make a finding upon whether the mother had pulled out of an agreement to mutually withdraw the respective orders. The intervention order obtained by the mother is annexure A to the affidavit of Ms L Rivers filed 30 November 2011. The impact of that order was that she was restrained from approaching or remaining within 20 metres of a protected person or from being within 200 metres of the mothers residence or the childrens school. What was significant about the terms and impact of the interim intervention order was that the children were named as affected family members and thus there was an immediate restriction imposed upon Ms L

49.

50.

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Rivers having contact with or being within 20 metres of both of them. As a result Ms L Rivers could not be present in her own home if the children were there with the father and consequently he had to exercise time with the children away from both the family home and his new wife. As it transpired that was a wholly unreasonable outcome.
51.

Ms L Rivers intervention order against the mother was based upon the mothers sudden and unexpected appearance at her workplace, as deposed to in paragraph 20 of her affidavit filed 30 November 2011. The mother said that Mr Nixon had an account at that sales office and that she attended at his request to make a purchase. She entered only the retail shop and not the office administration building which was adjacent but separate from the shop. There was no discussion or physical or verbal contact between them but nevertheless Ms L Rivers evidence was that she found the behaviour of the mother really intimidating. I have made no specific finding upon this event save to record that it further inflamed the extended family situation. The incident leading to the mother obtaining her intervention order on 23 November 2010 arose out of an incident at a local swimming pool on 10 November 2010. The facts are detailed by the mother in paragraphs 42 47 (inclusive) of her trial affidavit and otherwise are responded to and objected by the father and Ms L Rivers. L was in a learn to swim class and left the pool with Ms L Rivers whom the mother alleged was then quite agitated and coarse in her dealings with L. It transpired that L suffered a scratching injury to the back of her hand allegedly from the nails of Ms L Rivers. When the mother later saw those marks on the next occasion when L was with her she sought a medical report and the matter was reported to the Department of Human Services and thereafter, and likely on their recommendation, the mother contacted the SOCA Unit at Melbourne Suburb 3 Police Station. It was those background actions that led to the November 23 2010 intervention order sought and being granted by the court. The police prosecuted Ms L Rivers on a criminal charge and that case was heard in the Magistrates Court in early September 2011 before Magistrate

52.

53.

54.

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Bakos. Judgment was reserved and handed down on 21 September 2011. The Reasons for Judgment were available to this hearing on a computer disk and, at the request of the parties, that Judgment was played in Court and tendered as an exhibit in these proceedings.
55.

That was somewhat helpful in this hearing in that it provided an insight into the evidence that was before the Court on those charges and a better understanding of why the Magistrate dismissed the criminal charge laid against Ms L Rivers. The conflict in and the confusing nature of the evidence was there highlighted, particularly that given by the children and also, in large part, by the mother. I emphasise that I have not looked behind that decision but the reasons were helpful to also illuminate the ongoing conflict and level of dispute between the mother and Ms L Rivers, the allegations and the way in which they were investigated and prosecuted and, above all, the very difficult family circumstances in which E and L must live. The other purpose for allowing the playing of the disk of the Reasons for Judgment was to hear and confirm that part of the Judgment where the Magistrate recorded that the mother had denied ever accusing either the father or Ms L Rivers of the damage to her motor vehicle on 26 August 2011, an incident hereafter discussed.

56.

57.

58.

It is proper to record that the mother submitted that significant care should be exercised in drawing any conclusions from the Judgment of the Magistrate, particularly because the children had been in the care of the father on the night prior to their interview, the events were recorded some nine months after the incident and the child L has special needs and her evidence was always likely to be unreliable and given under great difficulty. I have balanced all of those aspects of the mothers submissions. There are matters and facts of and related to that swimming pool incident and Ms L Rivers handling of the circumstances that are relevant to the determination of the parenting issues before me. I have carefully read and listened to the evidence of the parties and the witnesses and I have carefully balanced the evidence of the mother against the denials of the father and Ms L

59.

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Rivers and, in her affidavit in reply Ms L Rivers is adamant in that I did not hurt the children, I did not drag [L], I did not hurt [L], I did not hurt [L] with my nails or otherwise. The mother challenged Ms L Rivers on this issue in her cross examination of her and again the denials were repeated and any suggestion that she had intentionally injured L was again rejected. Nevertheless I am satisfied that although there were some scratch marks to Ls hand as evidenced by the medical practitioner and the police the incident was fully examined and the outcome was final. I do not find that there was any intentional violence shown to L on this occasion and that incident was not a primary or additional consideration that directly influenced the outcome in this hearing.
60.

This incident served to highlight the conflicts and tensions which exist between the adults in these proceedings, most certainly between the mother and Ms L Rivers. On 31 August 2011 the mother sought a further intervention order against Ms L Rivers but ultimately accepted various undertakings as to conduct and behaviour. In the case management proceedings before me shortly prior to the commencement of this trial the mother had indicated in open court that she intended making another Application for a Family Violence Intervention Order against Ms L Rivers. On the first day of this hearing the mother advised the Court that she had been granted, on an ex parte basis, an order restraining Ms L Rivers from assaulting, molesting or intimidating her or from being in the vicinity of her home. The order did not extend to the children. That order is marked as exhibit M1 in the proceedings and it is a matter which I have had proper regard to given it is a current and validly made order of the court, notwithstanding that it was made in the absence of Ms L Rivers who elected not to attend the proceedings. From what I have heard of the alleged car tailgating incident it was minor, of no impact upon any of the children and most likely it was an opportunity too good for the mother to ignore. I have hereafter made certain findings on this issue.

61.

62.

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63.

In these proceedings I was asked to order the release and publication of the two Family Reports of the Family Consultant dated 20 May and 5 December of 2011. I delivered an extempore Judgment in which I considered the circumstances of the initial application for an intervention order lodged by the mother on 30 August 2011, the hearing and adjournment thereof and the subsequent application to reinstate those proceedings and the further order then made on 15 December 2011. Without now restating those reasons I intend that they be incorporated within these Reasons and I rely upon them. I concluded that it was appropriate and in the best interests of the children and that it may be of some importance for the presiding Magistrate to have the opportunity to have presented and to read, at their discretion, those welfare reports. To the extent that there may have been a prohibition on their release pursuant to s 121 of the Family Law Act 1975 (Cth) (the Act) I relaxed that prohibition so that the Magistrate and the Co-Ordinator of the Magistrates Court could accept and read those reports. In the context of the children and parenting decisions before me that Magistrates Court history is important as it highlighted the attitude and capacity of the mother and Ms L Rivers on personal, parenting and inter-family relationship disputes. It highlighted the acrimony and mistrust between each of them and is part of the foundation upon which both parties relied to persuade the Court to rebut the presumption of equal shared parental responsibility and, in place thereof, pronounce a sole parenting order. considerations within s 60CC(3) upon which I have relied. They are additional

64.

65.

66.

I record that in the proceedings before me, and in respect of the facts relevant to the current interim intervention application the wife has before the local Magistrates Court in mid January 2012, she has given an assurance that the children will not be named therein as an affected family member. The future conduct and actions of the mother in that regard await further scrutiny.

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BACKGROUND FACTS
67.

The parents met in late 2000 and commenced cohabitation in or about August 2001. They married in October 2002, separated in October / November 2006 and a Decree Nisi of Dissolution of Marriage was pronounced in April 2008. The father is 29 years of age and a technician by occupation. His disclosed salary is $529 per week and he receives government rental assistance, family tax benefits and a carers allowance for his youngest daughter. evidence before me that he suffers from dyslexia. There is

68.

69.

The father remarried his present wife, Ms L Rivers in April 2011. Ms L Rivers has an 11 year old daughter, M, from her prior marriage and that child had adopted the surname Rivers.

70.

The mother is 30 years of age, is not engaged in outside employment and is a full-time mother and undertakes all of the domestic tasks for her new family. The mother remarried Mr Nixon in May 2011. They have two children of their relationship, X who is almost two years of age and Q now nine months of age. Also living in their home, which is owned by the mothers parents and from whom they rent, is the child R, aged almost ten years who is Mr Nixons daughter from his prior relationship. She attends the same school as the two children of the marriage, though she is now in grade 3. Mr Nixon is 45 years of age and he has two other adult step children, of whom he is not the biological father, aged 20 and 21 years. The two children of the marriage attend School 1, Melbourne Suburb 2 where they are now in grades 4 and 1 respectively. A matter of dispute in the proceedings arose out of the fact that the three children, R, E and L all attend the same primary school and therefore the parents, but more particularly the mother and Ms L Rivers are often in contact with each other at the finish of school. This has led to various incidents and the suggestion has been levelled at the mother that she enrolled R in this school only to monitor the other week activities of the father and Ms L Rivers and to keep herself more closely involved with and able to supervise E and L. I find that, most likely, there is a large measure of truth in that allegation and it is

71.

72.

73.

74.

75.

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helpful to a better understanding of the mothers attitude and approach to the matters in dispute in this hearing.

RELOCATION WITHIN AUSTRALIA


76. These proceedings were presented to this Court and proceeded on the basis that both parents and their new spouse and families would live in and around the Melbourne metropolitan area.
77.

The mother raised the risk of relocation in paragraphs 64 67 (inclusive) of her affidavit. She asserted that the father had no family in Victoria and that his new wifes family resides in North Queensland. That issue has been addressed by the father and Ms L Rivers and I accept their assurances that they will live for the foreseeable and ongoing future in and around the northern suburbs of Melbourne, albeit that they live in rented accommodation on a two year lease and have no firm security of tenure in their present home. The mothers background and early years were in Western Australia and her parents are still happily married and reside in Western Australia, as does her younger brother. The mother lived in Town 1, Western Australia until 2000 when she relocated to Melbourne and thereafter met and then married the father.

78.

79.

Likewise the father was born in Western Australia and his early history is deposed to both by himself and by the mother in paragraph 13 of her affidavit. I have accepted the position of all parties that they will live in Melbourne and want their children educated at School 1 and thereafter an appropriate secondary school which, in itself, is a matter of real dispute. Their spouses have children living and being educated in and around the same Melbourne suburbs and thus the location of extended family would likely ensure that these parents and E and L remain living within the Melbourne metropolitan area.

80.

81.

I do emphasise that is the basis upon which this hearing has been conducted and upon which I have determined final orders in the best interests of both children.

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LITIGANT IN PERSON
82. As the mother was self represented I endeavoured at all times to ensure procedural fairness and that she had a proper understanding of the procedures of trial and of her rights in conducting her own case. I am satisfied that she had a very substantial factual knowledge of all matters in issue. She was positive in the way she presented her submissions to the Court and asked questions of the father and his witnesses and the Family Consultant. She conducted herself appropriately in Court and at all times appeared to be informed of the factual issues that were in argument before the Court. 83. The decision of the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072, modified the guidelines used in proceedings where a litigant appeared without representation from what was previously said by the Full Court in Johnson v Johnson (1997) FLC 92-764. 84. Those Guidelines are explained by the Full Court to be as follows: (a) a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial; (b) a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses; (c) (d) a judge should explain to the litigant in person any procedures relevant to the litigation; a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation; (e) if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considered that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
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(f)

a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

(g)

if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

(h)

a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);

(i)

where the interests of justice and the circumstances of the case require it, a judge may: draw attention to the law applied by the court in determining issues before it; question witnesses; identify applications or submissions which ought to be put to the Court; suggest procedural steps that may be taken by a party; clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias. 85. The Full Court in Re F: Litigants in Person Guidelines, after stating that the skill set of each individual litigant in person could vary greatly, further held at paragraph 229 that:
With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should

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the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case

86.

The Full Court had earlier said at paragraph 225


"we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person's position within the litigation."

87.

This decision in Re F: Litigants in Person Guidelines has been affirmed and followed in subsequent decision of the Full Court and in particular the Full Court in Dobbs & Brayson (No 2) (2007) FLC 93-354 at 82,076 upheld its applicability to Less Adversarial Trials under Division 12A:
These guidelines were formulated in respect of trials prior to the introduction of Division 12A by the amending Act. However, we think the statements set out in the guidelines generally remain relevant and apposite to child related proceedings conducted under Division 12A.

88.

As I said earlier the trial was conducted in a manner designed to ensure that the mother was understanding of the process and her rights. I am satisfied that she was given procedural fairness.

OBSERVATION OF WITNESSES
89. I have had what I consider to be in this case the very real benefit of observing the mother and father and their witnesses in giving their evidence on oath and in observing them in the courtroom, their demeanour, behaviour and character and also when they were cross-examined. That observation of them has been of real assistance in formulating appropriate orders. Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at

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154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at P313:
By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff..

90.

I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other exhibits in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment. I stress that, in this case, my court observations of the parties were of real benefit and importance.

91.

The unique role and observations of a trial Judge have been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.

92.

In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
10. The Court of Appeal appears to have intervened on the basis, first, that the judges conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judges evaluation of the fathers present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do

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so again depended crucially on the judges evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere.

93.

I have recorded my observations of the parties and others and made findings on their evidence as part of my evaluation of this case.

STANDARD OF PROOF
94. The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required. Allegations in this case were serious, and were likely to have had a profound impact upon people and these were strictly evaluated. 95. S.140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account: (a) (b) (c) 96. the nature of the cause of action or defence; and the nature of the subject matter of the proceeding; and the gravity of the matters alleged.

While Dixon J.s classic discussion in Briginshaws case of the operation of the civil standard of proof does express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach, as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd v. Gama (2008) 247 ALR 273, at para. 139 is that :
. . . references to, for example, the Briginshaw standard or the onerous Briginshaw test . . . have a tendency to lead a

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trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.

97.

Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the view that reference to the Evidence Act, rather than Briginshaw, is appropriate.

BEST INTERESTS OF THE CHILDREN


98. In determining final children and parenting orders I have primarily focused upon the best interests of the children and throughout my assessment and evaluation of the evidence of the parents and other witnesses I have carefully considered the primary and additional considerations as are set out in s 60CC(2) and (3) of the Act. I have later in these Reasons for Judgment referenced each of these sub-sections and made summary findings of relevant facts thereunder. My focus however in analysing the evidence of all of the witnesses and the Family Consultants has been to establish the benefit to the children of having a meaningful relationship with their parents, to ensure their protection from all forms of abuse and family violence and otherwise to assess the attitude and capacity of parents and others and evaluate other additional considerations with the aim of pronouncing a final order that is overwhelmingly in their best interests.

MOTHER
99.

The mother is fully engaged with the care, support and upbringing of the two children of her current marriage, the child R and, on a week about basis, E and L. She attends fulltime to their medical and schooling needs and to the upkeep of the home and her support of her new husband. The mothers evidence, both in her affidavit and given orally under cross examination, strongly focused upon the need for her to be awarded a sole parenting order and for the father to have only alternate weekend and holiday time with the children. The offer of mid-week time was not maintained.

100.

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101.

The mother capably presented her case to the Court in this hearing. manipulative and controlling person.

My

findings of and observations about her are that she is somewhat an obsessive, Her focus was upon achieving the outcome for which she had plotted. She was particularly dismissive of Ms L Rivers and her life and role within the fathers household. She would not acknowledge any positive contribution that the father and Ms L Rivers had made to the welfare and upbringing of the children.
102.

The mother asserted that the father had no real ability to care for the special medical needs of L and in particular made reference to various subpoenaed medical reports and files to underscore her complaint of the fathers lack of attention to medical appointments and her health concerns. Under cross examination her various complaints to medical practitioners, the Department of Human Services and police were highlighted, though on all occasions I have failed to find any proper or sufficient evidence to justify her concerns or the concerns of others about the father and his household. The mothers evidence concentrated upon the unsuitability of Ms L Rivers to have any substantial care and involvement with E and L. In previous court orders there has been a requirement for the father to be present at all times to supervise Ms L Rivers time with these children. I have given careful attention to the mothers substantial complaints and I conclude that she has convinced herself of the failings and lack of standards of Ms L Rivers. That is not supported by an overview of all of the evidence. I find no need for any level of supervision of Ms L Rivers. The centrepoint of the mothers submission is that she holds firmly to the belief that the children in the presence of the father and Ms L Rivers are now at risk from inappropriate behaviour, but not of a sexual abuse type. It is clear from the evidence, the notifications to the Department of Human Services and previous court hearings that the mother did develop and harbour a concern, perhaps better described as an obsession, that the father had or was capable of sexually abusing one or both of the children. She, or others on her behalf pursued that issue over several years without any proper foundation or evidence

103.

104.

105.

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and I find, on what I have read in evidence and heard in the proceedings and all the background information considered, that there was never any basis to those allegations of inappropriate sexual behaviour. That issue was not pursued by or on behalf of the mother in these proceedings. I find that the mother was largely tactical and opportunistic in her actions.
106.

The mothers concerns have focused primarily on what she perceives to be manipulation of the children by the father and Ms L Rivers and the continuing risk of physical and emotional abuse to which they are exposed by living on a week about basis and at other times in the fathers home. I have elsewhere in these Reasons substantially considered her abuse and risk allegations and the various incidents where she alleged she had been targeted, most likely, by the Rivers. There is not sufficient evidence to support her allegations.

107. In this context I have carefully read and evaluated paragraphs 31 67 (inclusive) of the mothers affidavit.
108.

The mother has detailed various threats, abuse and inappropriate actions of the father or Ms L Rivers but, leaving aside the incident at the swimming pool on 12 November 2010, they are largely unsupported by others and not appropriately based on any proven facts. As an example I reject the allegations made and concerns of the wife in paragraph 47 of her primary affidavit. I do not find that the children are at immense risk of psychological abuse by the father due to his uncontrollable outbursts at the children denigrating me. This episode related to a recorded telephone conversation, elsewhere considered in these Reasons for Judgment. Whilst the fathers words and his response was highly inappropriate and very immature its actual tone and delivery as recorded over the telephone to L was somewhat offhanded and not said in anger. Generally I conclude that the mother has exaggerated her allegations and concerns, however that is said with the caveat that I have no doubt that the four relevant adults in these proceedings, and most likely the mother and Ms L Rivers are capable of provocative and hurtful comments and actions towards each other.

109.

110.

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111.

What I have carefully evaluated is all of the evidence of and related to the mothers actions, allegations, notifications and generally her obsessions with the fathers household, more particularly since the arrival of Ms L Rivers as a member of that household. There is a very clear and documented history of continual conflict and carefully prepared and planned actions and these have had a very unsettling impact upon both households but more particularly upon the children whose lives have been substantially exposed to the conflict, bitterness and ongoing contest between their parents and households.

FATHER
112. The father works full-time in a retail shop. He works from approximately 11.30 a.m. 5.30 p.m. five, and sometimes six days a week.
113.

I accept his income and financial circumstances to be generally as disclosed in his Financial Statement and he was not cross examined upon any financial issue. The income of his household and their outgoings are also in evidence in paragraphs 184 189 (inclusive) of his primary affidavit. The total household income of his family is approximately $1,200 per week. He and Ms L Rivers rent their home for $430 per week and they have a two year lease. I accept that they do intend to live in and around Melbourne Suburb 4 for the foreseeable future. I most certainly accept that the Rivers family needs to be careful with its money and live within their means and pay expenses. The father received legal aid to cover his costs of these proceedings, in contrast to the mother whose legal aid application had previously been rejected and therefore she was self represented. The father has limited reading skills, but said that he could not read a whole book. He volunteered that I am not much good at handwriting. He asserted that he had taken the children to all properly scheduled medical, dental and related health appointments and there was some clear level of dispute with the mother when she had arranged unscheduled appointments during his week about time with the children. He likewise said he had attended school teacher / parent meetings and otherwise had had some discussions on a

114.

115.

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six monthly basis about his daughters with their teachers. He was however somewhat unconvincing in regard to his past involvement with the children at their school and he must become more interested and active in their schooling.
116.

The father was adamant in his denial of any physical or sexual abuse of the children and his response in his affidavit was clear and definite and in that regard I accept his evidence. The father is not a confident or self assured person. He is hard working and conscientious in his employment and has spent considerable time with the children. Nevertheless he must now substantially rely upon Ms L Rivers to coordinate and implement the childrens regime. The father has tended to occupy a more limited and somewhat background role in the childrens early education and health issues and it is time that he became more assertive and involved with their welfare and progress.

117.

118.

There have been occasions where the father has simply not had the necessary personal skills and understanding to fully deal with the family situations that have arisen and to counter the many allegations made against him by the mother and others. It may be that his low level response, on past occasions, has permitted the continuation of proceedings and orders that have severely impacted upon his family and household. He is not a person comfortable with litigation or the courtroom process and that is a marked difference between he and the mother. Overall I find the father to be loving and caring of his children and of others within his household. He must certainly show a greater level of maturity and understanding of the childrens situation and continue a willingness to foster their relationship with their mother. On balance I find that he is capable of a greater level of responsive behaviour and conduct than is the mother and that is one of the additional considerations within s 60CC(3) that I have carefully contrasted and evaluated. He most certainly is very loving of the children and with the assistance of Ms L Rivers and their secure marriage would be able to properly provide for the emotional and intellectual needs of both children.

119.

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120.

I can find no likely adverse effect upon the children were they to primarily live with their father, given the substantially shared arrangements that have existed over past years.

RISK OF ABUSE IN FATHERS CARE


121.

The mothers case for a sole parenting order has been substantially based upon the risks to the children from their manipulation by the father and Ms L Rivers and what the mother alleged to be a serious risk of emotional abuse to them if they were to live with the father and more particularly Ms L Rivers. These concerns of the mother are highlighted at paragraphs 31 58 (inclusive) of her trial affidavit and the accompanying annexures which I have carefully read and evaluated. The mothers evidence must first be understood in that she said she is very positive of the father and his relationship with the children. Her evidence under cross examination was that the girls adore him they run to him they love him but not [Ms L Rivers]. She continued and said that he is a good father. She added that he takes the children out he spends money on them he can be good with the girls . That is evidence supportive of the fathers parental role. The mother had a very different attitude to and a high level of criticism of Ms L Rivers. She alleged that the father is highly led by [Ms L Rivers] influence and he follows her guidance. Of recent times the mother has detailed very specific episodes of alleged abuse perpetrated upon her, predominantly she would assert, by Ms L Rivers and the examples upon which she was cross examined could either lend support to her stringent criticisms of the fathers new wife or otherwise show her to be a highly calculating, manipulative and scheming person preoccupied with obtaining a court outcome in her favour at any personal and emotional cost to others, including the children. In paragraph 48 of the mothers affidavit she highlighted an incident which occurred on about 20 August 2011 where the words bitch were painted on her

122.

123.

124.

125.

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house and six days thereafter the words die dad haters were texta coloured on the front panel of her motor vehicle. She alleged other and continuing verbal abuse from Ms L Rivers.
126.

The mother had no actual knowledge or proof of the person(s) who defaced her house and motor vehicle with these provocative and hateful words but she strongly asserted it was most likely from the fathers household and more particularly Ms L Rivers. Significantly that is very different from her evidence to Magistrate Bakos. The police were involved, photographs were taken but ultimately no charges have been laid. I was left unsure if the police investigations are continuing. The police officer from the Melbourne Suburb 3 was on holidays and, notwithstanding my requests of the Independent Childrens Lawyer to urgently investigate this matter, the police file, evidence and photographs could not be located. Surprisingly the mother and Mr Nixon could not locate any photographs that she asserted they had taken of the offensive language. I accept however that it is likely that the police were called, there most likely is a pending investigation and photographs were taken of the mothers house and motor vehicle. Significantly there was no cross examination of the mother or Mr Nixon upon these events or upon the mothers claim that the cost of cleaning the texta colour from the front of her motor vehicle was $280. As the evidence stood at the conclusion of the hearing I was unable to make positive findings as to what person(s) was responsible though I was certainly strongly inclined to the position that it was not the Rivers. That position was strongly re-enforced by the mothers evidence in the Magistrates Court criminal proceedings against Ms L Rivers where the judgment played to the Court identified in those proceedings that the mother had denied ever accusing either the father or Ms L Rivers of being responsible for any damage to her motor vehicle on that day. That admission is a significant matter and it was not challenged by the mother in these proceedings. I am unable to make a finding that the mother, or others on her behalf, damaged her own motor vehicle, and

127.

128.

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also her home but that remains an open situation which adds to the level of intrigue and tension in this case.
129.

A second and in many ways a far more concerning incident related to postings on Facebook. Again the evidence was somewhat confusing though the father and Ms L Rivers have wholly denied their involvement. The mothers affidavit detailed these issues and surrounding facts in paragraphs 57 and 58 of her affidavit and annexures LN14 and LN15.

130.

I am troubled by this event and conduct in that the mother was exposed on Facebook and described as a liar, manipulator, dad hater, child neglecter, child abuser and stalker. Accompanying those very serious allegations were her disclosed address and current mobile telephone number and a cross reference to her business interests. Facebook page. The mothers photograph was displayed on that

131.

The intrigue is perhaps further heightened by the fact that the mother has in evidence a Facebook page of Ms L Rivers and her Facebook contact address itself raised many questions in the context of this abuse and provocative conduct which is in evidence in these proceedings. That Facebook address (nickname) of Ms L Rivers is, somewhat surprisingly http://Facebook.com/...

132.

The similarity to the Facebook name of the site exhibited in LN15 is obvious but not conclusive. The mother asserted or implied that Ms L Rivers has both stalked and abused her and has gone public by creating the particular Facebook page and posted abusive and unproved allegations about her and disclosed to the world where she can be located.

133.

134.

The concern of the mother was further heightened in that it took her approximately three or four weeks of daily reporting to have this highly offensive Facebook site removed. The mother was cross examined by Counsel for both the father and the Independent Childrens Lawyer with the focus of establishing that she created that Facebook page and lodged the entries thereon. By reference to other

135.

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Facebook searches and entries, tendered as exhibit ICL1 there was an endeavour to establish the mothers involvement but I find that was unsuccessful and no outcome was proved under this line of cross examination.
136.

Of significance was the cross reference to paragraph 4 of the affidavit of Ms H, filed by the mother in support of her orders sought where the deponent said:
I consider the mother to be a highly intelligent and organized woman, in past years she established a parenting website supporting other mothers called [] which she later handed the management on to another person.

137.

The mother sought to limit the extent of her own computer and website skills and said that she had not established the website but had loaded and managed the program which required only limited computer and technology skills.

138.

I am substantially inclined to the view that the mother has taught herself considerable typing, computer and technology skills but that does not enable me to find to any proper standard of probability that the mother did actually create the Facebook page and put herself and family in some level of danger with the posting of her residential address and telephone number thereon.

139.

Again I express (as I did in the hearing) a level of some surprise that, given the prior disclosure of this Facebook page and the significant allegations involved therewith that there had not been proper and timely inquiries made, including a court subpoena or at least written requests to the website controller to disclose information such as the date of establishment of the site and any personal or identifying information of and related thereto. I have balanced the evidence and my concerns against the fact that Ms L Rivers is also an active user of internet blog sites and of Facebook and has her own Facebook page and her blogger name [] and her Facebook nickname. I do record the very forceful denials of Ms L Rivers to having established or in any way whatsoever been involved with this Facebook site and the entering of the mothers personal details thereon. On a balancing of all of the evidence I accept her denials. Likewise and to the extent that the mother sought to develop the theory that it would have been one of Ms Rivers extended family members who was responsible, I reject that outcome.

140.

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141.

The fathers case was conducted on the basis of suggesting or inferring that the mother was responsible for the defacing of the home and motor vehicle. That was denied by the mother. There is no proper evidence upon which I could conclude that she, or a person on her behalf, was responsible for those actions. I do accept that Mr Nixon was not involved. I was inclined to the view that the mother most likely was involved in some way but, on the stricter level of probability I am unable to make that finding and it is not a matter which I have balanced against the mother in determining the final orders that I have pronounced. I however record my high level of suspicion and I still do not understand why the mother herself did not photograph the offending words and damage and retain that evidence for the various courts where the incidents have subsequently been raised. Aside from the defacing of the home and motor vehicle and further aside from the Facebook postings there are numerous other references in evidence as to where the mother alleged that Ms L Rivers has stalked or abused her and other issues of road rage. I do not find that such further incidents have occurred. The very essence of the mothers case is that E and L are at a real risk of emotion, physical and psychological harm being done to them by Ms L Rivers due to her overwhelming and uncontrolled abuse, harassment and erratic behaviour that she has continually displayed towards the mother. All of those allegations are very strongly denied by Ms L Rivers. I have read and carefully evaluated the mothers evidence in paragraphs 51, 52, 53 and 54 of her affidavit, balanced against the responses thereto by the father and Ms L Rivers. There were further incidents of harassment alleged including the mother asserting that in recent days she had been tail gated by Ms L Rivers at a time when the mother had R and Q in her car and Ms L Rivers had M, E and L in her car.

142.

143.

144.

145.

The mother alleged that a vision of the incident was recorded on her Nokia mobile phone and that she had been to the police who, on an enlarged version of the video could identify a red car and its number plate. That video was shown to Counsel out of Court on the first hearing day.

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146.

I was advised by Counsel without objection that the video was inconclusive, that there was no proper identification of any motor vehicle or its number plate and thus the video was not tendered in evidence and I have not had the opportunity to view same. It is important to understand that this tail gating episode, to which I have earlier made reference, was the trigger for the mother to approach the local Magistrates Court and obtain, ex parte, an interim Family Violence Order against Ms L Rivers which is to continue until the further hearing date in mid January 2012. The mother cross examined Ms L Rivers on this alleged incident and she wholly denied and explained the events of the afternoon which occurred after they had each collected children from primary school. Ms L Rivers has been clearly distressed by the many incidents and complaints of and made by the mother and that was very apparent from her demeanour in giving evidence. On this issue I am inclined to the belief that the mother slowed or stopped her motor vehicle in a right turn lane and waited so that Ms L Rivers car would be behind hers when they were each stationary and waiting to execute that turn. The circumstances of the making, or the extension, of the interim family intervention order against Ms L Rivers, if correct, are somewhat concerning. Ms L Rivers explained that she could not take further time off work at the risk of losing her employment. She attended at the local Magistrates Court on the day prior to the hearing on 15 December 2011 and indeed her attendance was on the day that the mother had forewarned her in my Court that such an application was forthcoming. Ms L Rivers evidence was that there was little or no information offered to her at the local court, that the process was largely an initial paperwork entry and then a hearing if and when time permitted. Those events may or may not be a fair and accurate description of the procedure in a very busy local court and they are not intended as any form of criticism but the outcome was a continuing interim order made on facts that are strongly disputed and open to a great level of suspicion and tactical manoeuvring.

147.

148.

149.

150.

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151.

Put simply the mothers evidence on this tail gating issue, or the resulting interim intervention order, has played no part whatsoever in my determination of final orders that are in the best interests of the children.

LACK OF COMMUNICATION BETWEEN PARTIES


152. Both the mother and father and each of their new spouses have highlighted in their affidavits and viva voce evidence their inability to talk to or communicate with each other.
153.

The father gave oral evidence that the parties raised issues only in the communication book which for the mother was in her handwriting and for the father was largely typed entries cut and pasted by Ms L Rivers. There have been no meaningful discussions between the parents for years. Both parents emphasised that they do not talk to the other party or their spouse. There is no communication by text message or by email. There has been, predominantly from the mother, an effort to involve the children in discussions and for the purposes of obtaining information about the other. That has had an adverse impact upon the children who are now very careful of what they say and how they respond to issues raised by their parents of and concerning the other household. The children should never have been put in such a position but neither of these parents have any proper or thoughtful understanding of the pressure, tension and difficult circumstances in which they have placed them. Mr Nixon gave evidence that he had spoken to the father only two or three occasions over the past few years. Likewise Ms L Rivers has not had the need or occasion to speak directly to the mother or Mr Nixon on any issue of or concerning the children. What was most apparent was the hostile relationship between Ms L Rivers and the mother. They do not talk and clearly have no time or respect, one for the other. Most likely they will never make any reasonable endeavour to co-operate with the other on childrens matters. That has all contributed to a toxic adult relationships which the children must be acutely aware of and under the pressure of which they must live their lives.

154.

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155.

I have concluded that the refusal of the parties to communicate and the very hostile attitude of the respective households towards each other, and I see no future improvement on this issue, is one of the primary reasons why I have determined that it is proper to accept the primary position sought by both parents and to find that a sole parenting order is appropriate and for the presumption of equal shared parental responsibility to be properly rebutted.

CREDIT FINDINGS
156.

Throughout these Reasons for Judgment I have made findings upon the evidence of the parties and the various witnesses and as to certain events that have, or have been alleged to have occurred. Generally I prefer the evidence of the father and Ms L Rivers as against the evidence of the mother. The mother is somewhat obsessive in her conduct of the proceedings, the complaints and allegations made and her recording and documenting of same and her focus is as much upon hurting or destabilising the life of Ms L Rivers as it is upon having the children live with or spend more time with her. Save where I otherwise have made specific findings I therefore have generally preferred the evidence of the Rivers household and I have only accepted the mothers evidence on disputed matters where it has been corroborated. That said I have however accepted much, but not all, of the evidence of Mr Nixon.

157.

158.

159.

E
160. E is described by her father as a very happy and social child. He said she enjoys good health, is progressing very well at her school where she is settled and has very strong friendship groups.
161.

Somewhat in contrast the mother says in paragraph 109 of her affidavit that E has been exhibiting concerning behaviour as a result of spending time in her fathers care. She asserted that she has recently been misbehaving at Girl Guides and has displayed anger conduct and tested the boundaries of good behaviour. There were a few examples of bad and unexplained conduct

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identified in the hearing but I have drawn no specific adverse finding therefrom.
162.

The mother acknowledged that E enjoyed good health albeit with a slight intolerance to oranges. She takes no prescribed medication. In her first and detailed Family Report of May 2011 the Family Counsellor reported and I have placed weight upon her observations that:
[E] presented as a thoughtful, fair and wary girl. According to her parents she has met all her developmental milestones within the normal framework. [E] was observed as quite reticent during the interview, she found it difficult to make eye contact and answered I am not sure to inquiries about each of her parents and [Ms L Rivers]. [E] did say what she liked about her father and [Ms L Rivers] was that they take me out places and I miss [Ms L Rivers] it is not fair when we cant see her. [Es] family drawing was very detailed, she spent quite some time on it. She drew [Ms L Rivers] and her father first and second and with significant detail and colours, then [M], [E], [L] and then her mother and her family. [E], consistent with her presentation in the previous Family Report has a very inclusive view of her family and the individuals that make up this entity.

163.

164.

In the most recent and updated Family Report Ms C reported upon an almost ten year old child who displayed symptoms of stress and anxiety and perhaps is both uncertain in her life and a little sad. The outcome of her interview with E is recorded by the Consultant in paragraph 16 of that Report which reads as follows:
[E] is in Grade 4 and is making modest progress at school. She presents with symptoms of stress and anxiety regarding the parenting situation as she struggled to make eye contact and answered most inquiries quietly and said dont know. [E] valiantly attempted to verbalise an even-handed attitude to both her parents promoting positive aspects of each parent. She was more responsive when direct inquiry was made regarding the week about arrangement and said it is hard because I can never know where I will be and cant organize play dates and I dont know what I will be doing for my birthday. [E] also lamented she misses out on aspects of her sisters development. There appeared to be a feeling of hopelessness and having to rely on herself as she said sometime I sign my own reader because my parents (she did

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not specify either parent) are always too busy. [E] internalizes her feelings and remains wary and unconvinced she can rely on the adults in her life for support and guidance.
165.

This updated report and its findings are troublesome and portray a child who is endeavouring to balance the conflict and emotion of both of her households. It is unfair that she carries this level of responsibility and I conclude that the certainty and finality which would follow upon a sole parenting order are in her best interests. (S 60CC(2)(l). E must be given every opportunity in life and to develop and progress in school and socially to the best of her ability. That will require significant parental discipline and co-operation and above all else an understanding of the impact of the separation and the conflict between the households is having upon her.

L
166. L is in Grade 1 at the same school as her sister and her step sister.
167.

The father said that L required a lot of routine and structure in her life and she benefits from age appropriate activities such as guides and swimming. She has been diagnosed with Global Development Delay. She has difficulties with her speech though she has, according to the father, settled into school very well, enjoys her class and is making progress. The school is aware of her special needs and are able to tailor programs to ensure her ongoing progress and development. The mother has identified her concerns about Ls health in paragraphs 101, 102 and 103 of her affidavit which I have carefully read and evaluated. L has been diagnosed as suffering from asthma and the mother in those affidavits raised the issue that she might have epilepsy, but that concern is not at all supported by the various medical evidence subpoenaed to Court and upon which the mother was cross examined. In the course of the mother detailing another complaint against the father and Ms L Rivers it emerged that L is now on a daily prescribed course of Ritalin. The fathers evidence was that she commenced this medication in mid 2011 and

168.

169.

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her doses have been variously adjusted. She is given the medication twice daily, not just when at school but also on weekends. The father described her as being very active when not taking the medication. It is important to emphasise that, on the evidence of the medical records before me, this medication is supported by both parents and Ls present medical treatment is not an issue in contest before me provided the advice of her regular doctors is strictly maintained and followed by all adults. Both parents are capable of following that advice.
170.

What brought this issue to the attention of the Court, aside from all of the subpoenaed medical records, was the mothers complaint that the father had not provided the medication to the before school care on the second day of this hearing. The school had then rung both the mother and father to authorise their treatment of the child by giving her a Ritalin tablet from the supply that the mother had left with them for emergency situations. On balance the fathers overlooking of supplying the daily medication to the primary school on this occasion, given that it was 7.30 in the morning and he was focused on his court attendance shortly thereafter, is not a matter that I hold against him in determining the outcome of these proceedings. The mother is highly critical of the father and his care and attention towards L. She asserted, I find unfairly, that he is more concerned about the time he has to take off work than her particular needs and medical requirements.

171.

172.

173. It is very apparent from the mothers evidence, including paragraphs 103 and 104 of her affidavit that these parents have not, will not and cannot agree on medical appointments and the level of care and attention that L requires including dental, paediatric and speech therapy issues.
174.

The mother has observed that L has recently been behaving badly. She says in paragraphs 111 and 112 of her affidavit that she has been ignoring her guides leaders instructions as well as her swimming teacher but, on the evidence before me, it is difficult to be critical of L and indeed the mother targeted those criticisms more to the fact that she alleged they occurred during times when L

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was living with her father. On the evidence I cannot accept the validity of those criticisms as a finding against the fathers parental care and skills.
175.

In her first report, at paragraph 42, the Family Consultant identified the obvious special needs of L. She is there described as having a borderline intellectual disability. She had attended an early intervention service for assessment of her special needs and has been under the ongoing care and attention of a paediatrician and general practitioner. Her physical and emotional care and wellbeing are obviously matters of very crucial importance both for her upbringing and the family generally.

176. Ms C identified that she had difficulty in following directions and her speech was difficult to understand. 177. In her most recent Report, paragraph 17, Ms C reported that her behaviours are said to have improved. She observed that L engaged easily and clearly stated her views of sharing time between her parents.
178.

There is evidence before the Court of the observations which the Family Consultant made of the children with each of their parents and Ms L Rivers. In her recent evaluation Ms C said, and I accept, that both children love their parents equally and are able to take pleasure in spending time with each of them, in spite of the conflict. Likewise I have read and have had significant regard to the earlier observations that Ms C recorded in paragraphs 43 45 (inclusive) of her first Report and the evaluations that she made in some considerable detail in that first Report.

179.

180. On a somewhat optimistic basis Ms C concluded her evaluation, in her first Report, at paragraph 63 with the stated professional opinion that:
Ultimately the best arrangements for [E] and [L] will be with one parent who can provide them with continuity, stability and the least exposure to the potential for their future relationships with one of their parents to be suspended. The children also need a parenting arrangement that does not interfere with the major developmental tasks to be fulfilled, namely, their educational and cognitive development, their ability to form and sustain positive social friendships and strong emotional connections with their parents and other adults in their lives. The role of each of their parents with

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their respective partners is to provide support and moral guidance and this cannot be maintained if there are continuing attacks by either parent.
181.

I have otherwise considered and evaluated the more up to date recommendations of Ms C and matters that arose in her evidence and cross examination subsequently in these Reasons for Judgment.

Mr NIXON
182. The mothers husband gave evidence and was cross examined upon his affidavit filed 21 November 2011. 183. I accept that he has very limited computer and internet skills and had no part in creating any Facebook page or posting other material under challenge in these proceedings. 184. He acknowledged his affidavit was prepared, drafted and typed by the mother but he maintained that all of its contents were true and correct.
185.

Mr Nixons evidence firmly established the total lack of respect and communication between each of the families. From his evidence I was able to obtain an insight into the impact which the family conflict, allegations and insults have had upon the children in their daily life, but in particular at school. Not only does Mr Nixon feel somewhat ostracized at the childrens parent and school events but he gave compelling evidence of his observations on occasions when he would deliver the children to school in the morning, along with his daughter R. That observation was that R immediately joined in groups of other children but E and L often appeared sad, did not have the same circle of friends and he implied that they were treated slightly different than other children. The answer might be that R is a particularly outgoing and confident girl but equally so the atmosphere of the school and the knowledge of other parents and children of their family background circumstances, issues and complaints may impact upon these children. Counsel for the Independent Childrens Lawyer urged the acceptance of Mr Nixons evidence and described him as a truthful witness.

186.

187.

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188.

The further paragraphs of Mr Nixons affidavit highlighted many of the complaints that have arisen between the respective households. I do understand and balance the fact that his affidavit was almost entirely prepared and crafted by the mother and thus it is comprehensive and focused on many of her concerns. His affidavit does give a level of insight into the father and his behaviour. I have balanced his evidence of the fathers reactions and behaviour against that evidence of the father in his affidavit in response. I am left with the conclusion, confirmed by my observations during the trial, that the father has made some derogatory comments of the mother, has voiced complaints that are unreasonable and has certainly assisted in spreading criticisms and complaints of the mother and her behaviour within the school and local community. I have found the father to sometimes have an immature outlook and he does not handle all situations well. I am satisfied that Mr Nixon does enjoy a comfortable, and most likely a good relationship, with E and L. He does not project himself as a father figure to those children and well understands that Mr Rivers is the childrens father and should be so referred to by them. I focused upon paragraph 20 of his affidavit and his acknowledgement of the emotional stress placed upon the children, not just from the now concluded criminal matter but over many issues in recent years. I balanced the fact that this paragraph was most likely crafted by the mother and it must be properly read as applying to the children in an overall situation. I find they are subject to continual emotional pressures and the reality is that they must tip toe around both households for fear of upsetting one or other of the adults. Seen in that context the childrens lives have been very difficult since separation and more particularly since the relationship commenced between Mr and Ms L Rivers. Overall Mr Nixon gave his evidence in a direct manner and he very properly highlighted the events that he did not witness and generally his evidence was confined to matters of which he had some knowledge. I did find that his oral

189.

190.

191.

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evidence was more balanced and refreshing, and in his own words, rather than his more formal and carefully crafted affidavit.
192.

I do accept that the father was the aggressor and had made certain threats to bash him but they were in the heat of discussion, and the likelihood of physical violence then occurring was not high. Indeed I conclude that on the most vocal occasion Mr Nixon remained in his car and the father was standing nearby. Direct physical violence as between each of the four adults was not a real issue in this case.

193. I was left with the very clear impression that both of these gentlemen could develop an understanding of each other and the substantial responsibilities they each have for their own children and others within their household. Unfortunately with the presence and impact of each of their spouses that is an unlikely scenario.
194.

There is no issue that Mr Nixon was and remains wholly supportive of his wife and of their extended family. I do find that he has a limited, if any knowledge at all, of some of the past complaints, activities and actions of the mother. Mr Nixon is a hard worker and looking to improve his employment and financial status by further initiatives and qualifications. He works from 6.00 a.m. until 3.30 p.m. each day and on weekends in a field of the construction industry. He is thus away from home for extended periods and certainly for all of the school day. Some issues arose in the affidavit and during trial of the family dog, a small breed of dog called and whether he presented any danger to the children. I have balanced paragraph 5 of Mr Nixons affidavit against the fathers reply in paragraph 58 of his further affidavit and the other evidence before the Court, but ultimately all Counsel agreed in their final submissions that there was no issue, the dog did not present any danger or concern to the children and that I should make no orders or any other findings on this subject.

195.

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MS L RIVERS
196.

Ms L Rivers is 28 years of age and she commenced a relationship with the father in 2007, began living in a de facto relationship with him in 2008 and they were married in April of 2011. Her daughter from a previous relationship, M (now Rivers) is 11 years of age and attends a different primary school from that of the children. The evidence was that the child selected this school and in future years she will go on to a secondary school in Melbourne Suburb 5, the same as the father proposed for both E and L. Both in her affidavit and in her oral evidence to the Court Ms L Rivers was wholly supportive of the father, his relationship with the children and in particular rejected any complaints of sexual abuse that had previously been made against the father. I have found those complaints to be without foundation and I find that Ms L Rivers would never have allowed her daughter M to live in a home with the father if she had even the slightest of concerns as to his past actions. I have read carefully the affidavit of Ms L Rivers filed 30 November 2011 and have listened to and assessed her oral evidence, particularly when under cross examination by the mother. I have read and assessed the further affidavit filed 5 December 2011 of Ms L Rivers, which is a response to the mothers primary affidavit. The primary conflict in this case is between Ms L Rivers and the mother. I observed in the Courtroom a very significant degree of animosity and upset between each of them. They have a hostile relationship that is most unlikely to improve over time. I have elsewhere considered the various criminal complaints and intervention orders that the mother has taken out against Ms L Rivers. Their impact upon the Rivers household, primarily upon Ms L Rivers herself, has been very considerable. She was forced to leave her home when the children were spending time with their father and there has been a very significant level of trauma and upset imposed upon the Rivers household. She appeared physically drained from those court proceedings and their impact upon her and her new life and household.

197.

198.

199.

200.

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201.

Her oral evidence supported her affidavit and she denied having ever hurt or abused the children, particularly L. I accept her evidence and in reaching that finding I am of course aware of the transcript of the Judgment of Magistrate Bakos in dismissing the police charge laid against her. I have listened carefully to the evidence of and concerning the incident at the swimming pool on 10 November 2010. I accept the unchallenged medical evidence that there were scratch marks on Ls hand and most likely they were caused, albeit accidently, by Ms L Rivers grabbing hold of her hand as she started to run towards their car. I do not accept that any of the injuries or marks to her hand were deliberately caused and I do not accept they were of any significant nature. That episode however was the basis for an intervention order and hearings including the police charge laid and it was wholly out of proportion to the events of the day and, as I am acutely aware from all of the evidence in this hearing, of the tactical issues and personal dislike exhibited by the mother towards Ms L Rivers and now equally responded to by Ms L Rivers towards the mother. The impact upon the Rivers household of the various Magistrates Court hearings has been substantial. It imposed pressures upon their personal relationship. The children were aware of the Court proceedings and I do not doubt that people within the school community were aware of the charges and there was additional pressure upon the employment circumstances of Ms L Rivers. Perhaps the only beneficial outcome is that the relationship of Mr and Ms L Rivers has remained very solid, perhaps even greatly improved, by their united stance and mutual defence of all allegations. I accept that Ms L Rivers would not intentionally hurt the children. I accept that she loves them as the supporting partner of Mr Rivers but she has not endeavoured to usurp the role of mother and must not do so. From my observation of Ms L Rivers and the mother, and from their evidence, it is clear that Ms L Rivers is intimidated and emotionally upset by the mother. I accept that she endeavours to avoid the mother, does not enter her area and

202.

203.

204.

205.

206.

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personal space and is somewhat preoccupied with the thought that the next complaint or criminal action instigated by the mother is never far away. I find no evidence to support the mothers allegation that she has stalked her.
207.

I accept Ms L Rivers evidence that she did not create or organise the Facebook page. Similarly there is no evidence upon which I can find that Ms L Rivers defaced the house or the car, as was alleged or implied. Indeed, on all of the evidence, I find that Ms L Rivers would almost certainly have not gone to and has not been upon the home property of the mother and that finding would be conclusive that she did not write on the house or car. I find it most likely that she did not engage or incite others to that undertaking. On careful evaluation I accept the evidence of Ms L Rivers as detailed in paragraphs 22 and 31 of her response affidavit. As to the incident involving the driving of the motor vehicle which is now the subject of an interim intervention order I declined to view the alleged mobile phone video recording of some part of the incident. I have heard the evidence of the mother and Ms L Rivers and there was no apparent intimidation or threatening behaviour that I could find directed towards the mother on that occasion. Very much the opportunity for or the apprehension of an issue may have been a factor for the mother and I am acutely aware of the tactical opportunities which the mother would likely have foreseen in obtaining another ongoing intervention order. I do strongly express the view that on these facts it would be highly inappropriate if the mother persisted in any application to identify the children as affected family members. Such an action would be contrary to the best interests of the children as its impact upon them and the Rivers household would be substantial and unwarranted. An issue that was identified in the affidavits and which was strongly pursued by Ms L Rivers in her evidence, and denied by the mother, was whether the childrens hair was regularly infested with head lice. I find that, unfortunately, that has been a common occurrence and that issue has been somewhat neglected by the mother but properly treated within the fathers household. I

208.

209.

210.

211.

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accept the evidence of Ms L Rivers in paragraph 12 of her first affidavit where she identified school clothing and other items lost in transit and perhaps a more casual and less focused regime within the mothers home.
212.

I accept the evidence of Ms L Rivers in paragraph 34 of her affidavit and that has underlined the close relationship that she has both with the father but more particularly with the children. I accept that she has not denigrated them to their mother nor sought to undermine the role of their mother. I accept that she and the father have shown a willingness to promote the mother and children relationship that has not been reciprocated by the mother to their household. I do accept that the issues raised by Ms L Rivers in paragraph 33 of that affidavit highlight the mothers strong and likely continuing belief of the abuse and manipulation of the children in the other household. I do find that there are significant concerns of the mothers preparedness and ability to willingly promote the ongoing father and children relationship and that is one of the additional considerations highlighted within s 60CC(3)(c) of the Act that I find is of significance in this hearing.

213.

MOTHERS OTHER WITNESSES


214.

I have read and evaluated the evidence given by the various witnesses who filed affidavits on behalf of the mother. They were not required for cross examination and thus their evidence is before the Court. The father responded briefly to the affidavits of Ms I, Ms B and Ms S and in that regard I have read paragraphs 70 and 85 of his updated affidavit. Ms H has supported the mother whom she describes as a highly intelligent and organised woman. She has observed the mother to be caring and loving of the children and is critical of the father on the one and only occasion when she met him.

215.

216. There are however no dates provided in her affidavit of and relevant to her observations and evidence and as she resides in Western Australia it may be that her evidence relates to past years and not the more recent post separation years when all conflict has arisen.

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217.

Ms S lives in Melbourne Suburb 6 and is supportive of the mother. She has had little, if any contact with the father. Her evidence which I accept is that, in her opinion, the children are well kept, happy and well looked after it is obvious to see they are much loved by their mother and that in turn they love their mother dearly. Ms I knew both the parents and she was positive in her words concerning the mother, saying that she is a warm hearted person and a very loving and caring mother to the children. She contrasted the mothers position to that of the father who she described as negative and abusive.

218.

219. Thereafter her affidavit does provide substantial support of the mother and is most certainly critical of the father, his language, ridiculing of the mother and general negative criticisms and abuse.
220.

After a period interstate she has now resumed contact with the mother and the children and has given evidence of her recent observations of the children, of the mothers household and of the mothers emotional wellbeing, all of which I have considered. The affidavit of Ms I was superficially helpful and, subject to one substantial issue, could have been an affidavit of importance. That issue was that, in paragraph 71 of his further affidavit, the father deposed that, following separation, he was in a personal relationship with this lady. He then deposed that my relationship with [Ms I] broke up when I met my current wife [Ms L Rivers]. [Ms I] was very angry about the breakup. It would have been prudent for this witness to have been required for cross examination.

221.

222. Otherwise the father, in paragraphs 72 84 (inclusive) of that affidavit responded to the various issues which had been raised against him and primarily he denied each of the allegations of concern.
223.

On balance I therefore largely disregard the evidence of Ms I. The mother was aware of the fathers response and indeed advised the Court that she had communicated that response to the deponent. There could have been a follow up affidavit if the fathers allegations in paragraph 71 of his affidavit were false and malicious or she could have sought leave to call Ms I as a witness. Ms B supported the mother as caring and devoted to her children.

224.

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225.

The mothers parents, Mr L and Ms J Condon travelled from Western Australia and were in Court to support their daughter throughout these proceedings. Their evidence is strongly supportive of their daughter, her relationship with the children, her household and generally her relationship with other children, with Mr Nixon and the quality of the household that she maintains. Their evidence is also critical of the father, his lack of respect for the mother and his denigration and abuse of her. I have carefully read and evaluated their affidavits and their recommendations and support of their daughter, which I respect, but they have not influenced me from the orders I have decided upon.

FAMILY CONSULTANTS REPORTS


226. Ms C is the Family Consultant who was directed to prepare a Family Report on the parenting and all related issues for E and L.
227.

Her tertiary qualifications and relevant employment history are annexed to each of her Reports and they were not the subject of any challenge in the proceedings before me. The first Family Report is dated 20 May 2011 and has been received into evidence. The Report itself identified the interviews that were conducted, the telephone information sought and the various affidavits and subpoenaed documents read. For the purposes of these proceedings before me I have not separately read and there is not submitted in evidence the earlier Family Reports prepared in April 2010 by Dr HH or the earlier Report of March 2008 completed by Ms MM. There is agreement between the parties that I can accept that Dr HHs Report found no evidence of any dysfunction in the childrens relationship with the father or evidence to support any allegations of sexual abuse. Ms C had also read and identified the psychiatric report which Dr SS had prepared in September 2009 following upon his consultation with the mother where he concluded that she does not have any diagnosed psychiatric illness and that she does not present as a risk to the children. There has been no updated psychiatric report sought for either of the parties and no such issue has

228.

229.

230.

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been in contest before me and, by agreement I was advised that I could accept and rely upon that earlier professional opinion of Dr SS. 231. The Report of Ms C of May 2011 is extremely comprehensive both in the sources of information sought by her and in her commentary, report and evaluation of the parenting and childrens issues that then presented themselves in this matter.
232.

I have carefully read her assessment of all relevant adults and of the children and the observations she made of their time with their parents and other adults. It has been of considerable assistance to me. In her evaluation of the case, its many issues and as an assessment of the parents Ms C reported that:
48. In many respects this is a complex case where allegations and counter allegations between the parents have taken up considerable energy, created anxiety and left the children in between two warring parents. The recent allegations against [Ms L Rivers] and the possible level of risk she presents to the children now and in the future has added to the complexity. The childrens relationship with [Ms L Rivers] and [M] has been compromised as her time is monitored and supervised by [the father]. Past allegations of sexual abuse by the father have been addressed as have concerns about the mothers mental health. Neither of these issues has been proven and there is nothing to suggest the mother has a psychiatric illness. The principal reason why this matter is before the Court at the present time is the allegations made by [L] that [Ms L Rivers] physically harmed her. [Ms L Rivers] has been charged and the allegations substantiated by DHS. It would appear the alleged incident has sparked a series of events which has led to changes in the time [Ms L Rivers] is able to spend with the children. The physical abuse charge has resulted in significant disruptions in the childrens lives. They have again been placed temporarily with their mother and had their time with their father and [Ms L Rivers] and their family suspended.

233.

49.

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50.

[The father] presents as a caring father who is committed to his children and his emotional attachment appears to be well developed as evidenced by the significant ease, happiness and attachment noted during the observation. Added to this, the behaviour of the children in the company of [Ms L Rivers] conveyed a sense of dependence, reliance, trust and security. Both children and [L] in particular actively sought out [Ms L Rivers] in the observation and appeared to delight in spending time with her. The childrens actions clearly demonstrate they see her as a significant and safe person in their lives. Superimposed upon this is the history of difficulty that appears to have existed between [the mother] and [the father] since the introduction of each parents new partners. [The mother] presents as a caring but also anxious parent as she worries about the childrens experiences whilst in the fathers care. She has engaged a number of professionals with managing the children in regard to the allegations of sexual and physical abuse. None of the sexual abuse allegations have been proven and the physical abuse charge against [Ms L Rivers] is awaiting a Court hearing. Notwithstanding, the incident of alleged physical abuse has been assessed by DHS as a likely reaction to a stressful situation and is not considered an indicator of how [Ms L Rivers] parents either her own child [M] or [E] and [L]. The mothers consistent allegations against the father place the children in an untenable situation which they should not have to maintain.

51.

234.

Thereafter the Family Consultant considered the circumstances required for an effective shared parenting arrangement and thereafter, and again of real assistance to the Court, commented upon both households:
54. If the children were to be placed in the care of their father and ultimately [Ms L Rivers] they would be afforded a stable home life and consistent attendance at the one school. They would be able to form solid social relationships and continue to attend extra curricular activities to enhance their development. Importantly, the children may in this arrangement, be less exposed to the disruptive effect of the allegations, which may have led them to believe their father is abusive and their stepmother will harm them, all of
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which impact on their emotional development and ability to form trusting relationships. It would be the responsibility of [the father] and [Ms L Rivers] to ensure the children are not exposed to any form of physical discipline at any time. 55. If the children were placed in the care of their mother they would also be provided with a stable home and the opportunity to form strong relationships with their half sisters and [R]. What is of concern in this arrangement is the uncertainty about whether [the mother] will make a decision and relocate the family to the country as was her plan in 2008. If a move was to occur and/or further allegations made against the father and [Ms L Rivers] the childrens sense of stability and safety will again be undermined and they may be at risk of emotional and behavioural difficulties. The risk of this occurring is, in the Consultants assessment, too great and could possibly lead to the severing of a relationship with their father and [Ms L Rivers]. The parents in this dispute appear to be unable to separate out their own relationship issues and uncertainty about the future with regards to the children. Each parent remains critical of the others parenting, the father raising concerns about environmental neglect and the mothers random commitment to their education. The mother on two occasions raising concerns about sexual abuse by the father and more recently allegations of physical abuse by the fathers partner. Each has involved services aimed to validate their particular views. It is concerning that the childrens lives have been subjected to what are becoming fairly constant allegations of abuse and neglect at the hands of each of their parents and now a step parent. It remains a concern as to how [E] and [L] are to achieve their developmental tasks and develop a sense of safety and certainty in their lives when they are interviewed relentlessly by professionals and caught in the cross fire between their parents ongoing disputes.

56.

57.

235. Reflecting upon the present and future needs of the children Ms C commented that:

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60.

The children need a life that is not routinely complicated by allegations of abuse. [Ls] development and learning is already compromised and she requires ongoing professional interventions. [E] according to her parents is doing well but she is also affected by the conflict and persistent allegations that disrupt her family life. The allegations have affected the childrens social development as the childrens access to play dates and birthday invitations have not been forthcoming. Currently they are unable to spend time with [Ms L Rivers] alone which not only impacts on their relationship with her, but also with [M]. What they understand about what has happened is unclear, but what they do know is that their lives have changed. [E] seemed closed and wary and unlike previous reports she was unable to say anything positive about either of her parents such is her wariness of what may transpire.

236. The then recommendation of Ms C was that E and L would benefit from a parenting arrangement where they lived full-time with one parent and spent time with the other parent on a weekend and holiday basis. That outcome was most carefully expressed in the following terms:
63. Ultimately the best arrangements for [E] and [L] will be with one parent that can provide them with continuity, stability and the least exposure to the potential for their future relationships with one of their parents to be suspended. The children also need a parenting arrangement that does not interfere with the major developmental tasks to be fulfilled, namely, their educational and cognitive development, their ability to form and sustain positive social friendships and strong emotional connections with their parents and other adults in their lives. The role of each of their parents with their respective partners is to provide support and moral guidance and this cannot be maintained if there are continuing attacks by either parent.

237.

As the Judicial Case Officer for these proceedings I requested an updated Family Report to be prepared by Ms C and she interviewed for that purpose each of the four relevant adults and the two children and read the subpoenaed documents from their primary school and all updated affidavits of evidence

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filed with the Court. Her updated Report is filed 5 December 2011 and subject to the final orders now sought by the parties, it has been of significant assistance to the Court in evaluating the proposals of each party and their orders sought. 238. Ms C had the considerable advantage of having been involved with this extended family and having prepared her earlier detailed Report. She brought that background knowledge to the preparation of her further Report, coupled with updated interviews and relevant inquiries.
239.

Her commentary is very much to the point and I consider it to be perceptive and appropriate. In particular I have had careful regard to her observations and professional opinions expressed in the following paragraphs of this updated Report:
21. [E] and [L] are at the centre of the parental conflict through allegations of abuse, counter allegations and contradictory parenting and may be vulnerable to alignment if the conflict and acrimony in the parental relationship continues. Research on parental alignment hypothesises that age and cognitive capacity are the foremost predictors. [E] at almost ten years of age was noted to have become increasingly watchful, unwilling to speak about either of her parents and vigilant as her awareness of the increasing loyalty demands from her opposing parents weigh heavily. Research highlights that children in shared parenting arrangements exposed to constant conflict and trying to manage their own stress tend to do better in one primary home with contact with the other parent in discrete and consolidated blocks of time. It is important [E] and [L] feel anchored in a secure emotional base, learn how to problem solve and have established routines to help them feel in control. Stability and predictability will assist them in developing confidence, the ability to take reasonable risks and to consolidate age appropriate developmental skills and abilities. [E] in particular, is approaching the developmental stage where life outside the immediate family begins

22.

23.

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to take on more importance as do social and recreational activities with friends. The level of conflict between the parents matters; it causes stress to the children, as they struggle with the day to day management of their belongings, leaving items at one parents home, the organization and follow through of homework and making plans with friends. The stress is accentuated as [E] and [L] continue with extra curricular activities which are fraught with the competition and stress of the parental conflict. 24. The outcomes of these constant disruptions has resulted in the childrens contact with their father being suspended for periods of time and more recently all contact with [Ms L Rivers]. This has got to cease, [E] and [L] deserve a childhood where they are not beleaguered by negative comments and subtle pleas for loyalty by their parents or feel they are the responsible for solving their parents dispute. They should not be emotionally punished and pushed into polarised positions because of their parents demonstrated inability and/or unwillingness to parent them co-operatively and maintain a consistent child focus. It is the Consultants assessment the allegations of abuse, stalking behaviour and harassment made by [the mother] will continue. This will likely result in [E] and [L] being subjected to divisive influences, their energies diverted to forecasting the emotional weather in each household and which are likely to be in excess of the possible influences that may operate in their fathers care. If the father was not in the childrens lives there would be concern for [Es] and [Ls] psychological well-being. It is for these reasons the consultant supports the children living primarily with one parent. Ultimately a parenting arrangement which provides definite structure and a consistent routine may assist in containing the parental acrimony and stabilize the family. In time it is possible that there will be a dissipation of the strong feelings and one-sided views. The Consultant concluded that an arrangement that will be in the best interests of the children and one that will maintain significant and meaningful relationships with both parents is for the children to live full time

25.

26.

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with [the father] and spend consolidated periods of time with their mother. 27. The impact on [the mother], if the children are placed with their father will likely be considerable especially initially, but importantly, in the long term it will quarantine the children from the intense parental conflict and the responsibility they feel for fixing their parents conflict. [E] and [L] would continue to spend regular time with their younger half sisters and [R] and be a part of each others lives. Looking forward, the parents would benefit from flexibility in their attitudes and approach, to not view this proposed arrangement as finite, but rather think of it as fluid and changing to meet the girls developmental needs. During the adolescent period children are known gravitate to and want to spend more time with their same sex parent which may be a consideration in the future. The proposed arrangement is one that seeks to protect [Es] and [Ls] relationship with each of the parents now and into the future by providing them with stability and consistency across what has become an emotional minefield for them. Whatever parenting arrangement is adopted it is important the parents are flexible and are able to listen to their children as they develop. Currently six childrens lives are affected by the parental/step parent conflict and all are at risk of ongoing psychological damage. Parenting in step families may at times represent a challenge to all the adults but the parents and other adults need to sacrifice their interests to those of the children not the other way round. It is incumbent upon them to make every effort to co-operate and provide the children with optimum parenting and the opportunity to form meaningful relationships with each adult and to assist their adjustment to the different parenting styles and combinations of relationships.

28.

29.

240.

Ultimately Ms C recommended that E and L live full-time with their father without the necessity for any supervision of Ms L Rivers time with them in that household. She recommended that the mother spend time with the children each alternate weekend from the close of school on Thursday until the

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commencement of school on Monday or, if a public holiday or curriculum day then to the Tuesday. That recommendation is of interest in that it differs from that contained in her earlier Report by including the extra evening (Thursday) which the Consultant thoughtfully explained was to have the mother involved within some school time and not only on weekends and holidays. That is an option to which I have given very careful consideration and have accepted in determining orders that are in the best interests of both children.
241.

It was her recommendation (v) that caused some level of cross examination and reflection as Ms C initially recommended, rather than a sole parenting order, that each party have parental responsibility for E and L whilst in their care but otherwise shared parental responsibility for all decisions regarding their education, medical needs and ongoing welfare. That position was moderated by her under cross examination by Counsel for the children. That initial recommendation was somewhat different to the recommendation at sub-paragraph (iii) of her earlier Report and, in any event, is significantly different from sole parenting orders sought by both parties. I have carefully balanced the evidence and recommendations of the Family Consultant on the final form of orders that best define and protect the interests of these children and their future upbringing. For this family and these children I have carefully evaluated and considered the primary and additional considerations identified in s 60CC(2) and (3) in determining the specific orders and family routine that must be enforced to safeguard and promote these children. Ms C was cross examined at some length by Counsel for the father and the Independent Childrens Lawyer and also by the mother. The primary concerns and issues which arose from her viva voce evidence included:

242.

243.

244.

that the mother is becoming more and more paranoid of Ms L Rivers and her involvement with the children; that the Rivers household offers more routine and predictability for the children;

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that the past orders for shared care made by consent in 2008 and 2011 have been to the detriment of the two children; as a team the Rivers family will be best able to provide for the future needs and requirements of the children.

245.

In the context of the evidence of the Family Consultant an issue had earlier arisen of a recorded telephone conversation which the mother had made of the father talking to both children. That conversation had been recorded by the mother having placed her activated mobile telephone alongside the landline when a call was made by the children to their father. Notwithstanding earlier concerns by Counsel who had listened out of court to the recorded telephone conversation it was, by consent, admitted into evidence and played to the Court (it having been previously loaded onto a disk which was played in Court). The content of that recorded telephone conversation had become an issue during the mothers cross examination of the father and particularly when he had denied making various insightful and inappropriate comments to the children. The telephone conversation certainly supported the mothers evidence and criticism of the father and he had falsely denied: that he encouraged E to mess up her bedroom, tip out her drawers and clothes; and

246.

that he had told L, who had offered to make a cake for the fathers birthday with her mothers assistance, that she would likely poison him.

247.

Both comments were inflammatory and derogatory of the mother and her household and significantly were denied by the father before the tape was played to prove his mistruths. His evidence on this issue reflected very poorly upon him and it was an issue considered in assessing his attitude and capacity as a parent. That tape was played in the presence of the Counsellor, with the agreement of all parties and she commented that the fathers actions and comments were stupid and disappointing. However, in answer to a question in re-examination from Counsel for the Independent Childrens Lawyer Ms C said that such evidence did not change

248.

249.

250.

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her professional opinion, that the children should live with their father and in the Rivers household wholly unsupervised and there should be ancillary orders made of the type recommended in her final Report to give greater certainty and monitoring to the childrens upbringing.
251.

The Family Consultant had devoted very considerable time and effort to the preparation and evaluation of both Reports and I have determined to give substantial weight to her evidence and final amended recommendations.

DEPARTMENT OF HUMAN SERVICES REPORT


252.

The Independent Childrens Lawyer filed an affidavit of Ms Z on 15 December 2011. Ms Z is the Acting Team Leader for the Eastern Region, Department of Human Services and, in the absence of the report writer, Ms Y, who is no longer in the employ of the Department, she filed a copy of a Report prepared in February 2011.

253. That Report is helpful in that it provided a detailed history of previous notifications, investigations and reports. It highlights that the first Report received was in May 2005 and that was in relation to the household circumstances of the then family, the conditions of the accommodation and bedding and appropriate care for the health of L who was then fourteen months of age.
254.

Whilst there has been no challenge to the contents of this Report, and no cross examination on its contents, I have nevertheless read and considered the further notifications and intake reports summarised therein. There are in total nine reports received by Child Protection of which three have been investigated though no reports have been substantiated. The mother in evidence, or from the Bar Table, stated that she made only one notification and that others were made by medical practitioners or persons unknown to her. It has not been suggested that any notifications were made by or on behalf of the father.

255.

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256.

It is apparent that the final seven notifications, that is those made on or after 13 August 2007 were primarily focused upon a complaint made against the father or Ms L Rivers. Again each of the complaints was unsubstantiated. In January of this year, and pursuant to an order of this Court, Child Protection intervened and further investigated the alleged concerns of and risks to which E and L were reportedly exposed. There were interviews with the mother, the father and Ms L Rivers and the children and other relevant sources of information including the school, medical practitioners and the police.

257.

258.

259. The ultimate conclusions reached by the author of the Report and the Department was that:
There is minimal likelihood that [E] and [L] would be at future risk of harm in the care of [the father] (or [Ms L Rivers]) and therefore the decision had been made for the case to proceed to closure given the various factors identified on pages 18 and 19 of that Report.

260. I have found the Report most helpful in providing a detailed background history. The conclusions are well considered and carefully expressed and highlight the careful attention and detail that was given to the preparation of the Report and to its recommended outcome.
261.

Whilst of itself not conclusive, when read together with each of the Reports of the Family Consultant, all of the Reports do provide a very solid platform of information to the Court and a level of reassurance that the best interests and welfare of E and L has been substantially investigated and the recommendations made as to their future care has been well based and thoughtfully considered.

FAMILY LAW ACT 1975 (Cth) RELEVANT SECTIONS


262. Section 60CA of the Act requires the court, in deciding whether to make a particular parenting order in relation to children, to have regard to their best interests as the paramount consideration. This has been my primary focus throughout my evaluation of all of the evidence.

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263. The objects of and principals underlying Part VII of the Act and its amendments are intended to ensure that the best interests of children are paramount and are fully and wholly considered by the court in determining appropriate parental responsibility orders. 264. It is important for the parents to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s60B of the Act. The objects are there stated to be:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring children. that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their

265. Sub-paragraph (2) thereof highlights the principles underlying those objects which are:
(a) children to have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) (d) (e) parents jointly share duties and responsibilities concerning parents should agree about the future parenting of their children have a right to enjoy their culture. the care, welfare and development of their children; and children; and

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266. I have had careful regard both to the objects and principles as expressed above. There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case, partly nullify those objects and principles. The parents and extended family have a largely un-co-operative and very strained relationship with personal and communication issues which I have fully explored. Ideally, as parents, they should be more understanding and respectful of each other and it would be very helpful but on the facts of this case somewhat optimistic if they each reflected upon and acted more positively to perform their primary obligations to the children. 267. Section 61DA of the Family Law Act 1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s 61B. The specific sub-section provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the childs parents to have equal shared parental responsibility for the child. (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: (a) (b) abuse of the child or another child who, at the time, was a family violence. member of the parents family (or that other persons family); or

268. The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the childs parents to have equal shared parental responsibility for the child.

269. As I have earlier highlighted both the mother and father have sought a sole parenting order. Each of them have asked that the presumption of equal shared parental responsibility for each of the children be rebutted.

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270. The Independent Childrens Lawyer, in her final submissions to the Court supported the making of a sole parenting order and submitted to the Court that outcome was as recommended by the Family Consultant in her oral evidence and further considered circumstances of this family. 271. I conclude that it is proper and in the best interests of both children for the presumption of equal shared parental responsibility to be rebutted. In this case there does need to be made a sole parenting order. That is an outcome that is in the best interests of the children. 272. The primary reason is the total breakdown in communication between both the parents and their respective households. There is no level of respect and there is a significant level of upset and distrust between both households and my conclusion is that scenario will continue for at least the foreseeable future. 273. The lengthy past history of notifications, alleged abuse, conflict, court hearings and family intervention orders and the general attitude of the relevant adults all enforce the requirement for a strict regime of sole parental control and responsibility. 274. I find it is not in the best interests of E and L for their parents to exercise equal shared parental responsibility. In particular on education and health issues that would be inappropriate and would lead to further and greater upset, tension and conflict between the families. Both children would be the losers. 275. In determining the sole parental responsibility outcome I am primarily focused on the welfare of the children, decisions being made and enforced by one parent and a level of structure and stability being brought to their lives. That may perhaps be an optimistic hope and intention but nevertheless the factual background of this case and my careful observation of all relevant adults and their evidence necessitates such an outcome. 276. Within the requirements of sub-paragraph (2) of s 61DA I do not find that there has been physical or emotional abuse of either of the children, or of any other of the children of the respective households. father. I reject the various past allegations of sexual abuse that had been levelled by the mother against the

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277. As to family violence I have the evidence of the various intervention orders and other events, stalking allegations and misbehaviour alleged primarily by the mother as against the father and Ms L Rivers. Again I have elsewhere explained each of these various events and, where it was possible, made certain findings but, on an overview it is more the existing toxic relationship between the households and the lack of communication and mistrust which enforces the need for the rebuttal of that presumption. 278. The fact that both parents opposed any continuing shared parental responsibility, and each sought for themselves a sole parenting order is a matter of importance when evaluated in the context of all of the other facts of this case to which I have previously made reference.

SECTION 60CC CONSIDERATIONS


279. How the court determines what is in the best interests of children is prescribed by s60CC of the Act and there are both primary and additional considerations that I have fully considered and evaluated. I have identified those relevant considerations and evaluated them throughout my reasons for Judgment and in considering the evidence of the father, mother and their witnesses and then further reflected upon them in my determination of orders that are in the best interests of the children. 280. The primary considerations are:
(a) (b) the benefit to the child of having a meaningful relationship with the need to protect the child from physical or psychological harm both of the childs parents; and from being subjected to, or exposed to, abuse, neglect or family violence.

281. Children must be in a position to maintain and enjoy a meaningful relationship with both their mother and father. This is a difficult task in parenting cases where there is a continuing level of conflict, violence and abuse and a lack of respect or understanding of the other parent. 282. I accept that the children have a close and loving relationship with each of their mother and father. Within the separate households I find that they also have a good relationship with Mr Nixon and Ms L Rivers.
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283. There is however a very significant risk that their meaningful relationship with both parents will be adversely affected unless there is a marked change in attitude and behaviour by the adults and I am firmly of the view that any continuing shared parenting relationship would be both unworkable and contrary to the best interests of the children and certainly would impact upon their meaningful relationships with the households, particularly the fathers household. 284. Sub-section(2)(b) thereof is important to be evaluated in a determination of their best interests given the alleged physical and psychological harm to the children from exposure to the conflict, threats and inappropriate behaviour between the households and primarily between the mother and Ms L Rivers. 285. The best interests of the children are served by a sole parenting order and a requirement that they live predominantly with one of the parents and spend time in a regulated and clearly defined arrangement with the other parent. 286. I have throughout these Reasons for Judgment focused upon the best interests of the children but I do emphasise that I do not find that they are in need of personal protection from any physical harm from either of the parents or the other spouses. I do not find that they have been neglected and there is no physical violence or threat to them from within any particular household. Otherwise I have substantially highlighted and do not repeat again the conflict and issues to which they have been exposed and which must now cease. 287. I conclude that the children will have the best opportunity of maintaining a meaningful relationship with both parents if they primarily live with their father and spend weekend and holiday and other time with their mother. That outcome defines the time to be spent by the mother and, subject to her acceptance thereof, it should limit her continuing actions to upset or destabilise the Rivers family and in particular to inflict further emotional stress and embarrassment upon Ms L Rivers and undermine her relationship with the children. 288. It is therefore under the umbrella of these primary considerations, and significantly accepting the final considered recommendations and submissions

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of the Family Consultant and the Independent Childrens Lawyer that I have decided upon the final parenting and childrens orders which are pronounced contemporaneously with delivery of these Reasons for Judgment. I must add that I have also balanced the relevant additional considerations, as outlined hereafter, in arriving at my considered opinion of the family structures and parenting and time spent arrangements that will best provide for these children. 289. The relevant additional considerations of s 60CC(3) must be considered within the framework of deciding the best interests of the children and with whom they are to live and the spend time with. Within that framework and having regard to the specific issues in dispute before the court the additional relevant considerations that I have considered and assessed in determining their best interests:
(b) (i) the nature of the relationship of the child with: each of the childs parents; and (ii) (c) other persons (including any grandparent or other relative of the child); the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d) (i) the likely effect of any changes in the childs circumstances, either of his or her parents; or (ii) (f) the capacity of: (i) each of the childs parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child; including emotional and intellectual needs; any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; including the likely effect on the child of any separation from:

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(i) (j) (k)

the attitude to the child, and to the responsibilities of parenthood, any family violence involving the child or a member of the childs any family violence order that applied to the child or a member of (i) (ii) the order is a final order; or the making of the order was contested by a person;

demonstrated by each of the childs parents; family; the childs family, if:

(l) child; (m)

whether it would be preferable to make the order that would be least

likely to lead to the institution of further proceedings in relation to the any other fact or circumstance that the court thinks is relevant.

290. I have not had regard to the wishes of the children given that they are not of an appropriate age or level of maturity. 291. Throughout my Reasons for Judgment I have carefully reflected upon the nature of the relationship which the children each share with all relevant adults. Individually they have a close and loving relationship with their parents and I have no evidence of any conflict or difficulty as between the children and Ms L Rivers or Mr Nixon. However I find that they are more likely to enjoy a normal family life in the home of their father and I am mindful of the observations and findings of the Family Consultant which I have accepted. 292. I conclude that the father and Ms L Rivers are substantially more able and willing to facilitate the childrens relationship with their mother than that which would occur on the reverse scenario. I do not accept that the mother would promote any proper relationship between the children and Ms L Rivers and thus that would adversely impact upon their relationship with their father. This has been an important factor in my pronouncement of final orders. 293. I do have a very considerable issue with the attitude of the mother as a parent and with her capacity to parent the children throughout their junior and teenage years. I have found that her actions towards the father with the earlier notification or false accusations and more lately those various allegations made

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against Ms L Rivers have distracted her from a primary role as homemaker and parent to the children. Her attitude has been to criticise or detract from the other household rather than promote her own parental and motherly skills. That is unfortunate but I find it is deeply engrained within the mothers emotional and psychological persona. She will not likely change, particularly given that she is so well acquainted with the court system and, if not restrained, has the ability to file complaints, appear for herself at Court hearings and well argue her cause. 294. I do not suggest that the mother is not a good housekeeper and there are no current complaints about her care and upbringing of her younger children, from her marriage to Mr Nixon. I would well expect that Mr Nixon would require a clean and liveable household and a significant level of care and devotion by the mother to X and Q. The reality is, from some of the references in the earlier Department of Human Services Report, that I hold some background concerns about the mothers likely performance under emotional stress and difficult lifestyle circumstances. She needs, and so far she has had, the support and companionship of Mr Nixon. 295. I have throughout these Reasons for Judgment addressed the various issues of family violence as were alleged, inclusive of sub-paragraphs (j) and (k) which are additional considerations in determining the best interests of the children. I have had regard to s 60CG and have carefully considered and balanced the risk of family violence. 296. I am hopeful that my final parenting and childrens orders should lessen the frequency of Court proceedings, though the reality is the mother will be ever vigilant as to the parenting capabilities and behavioural issues of Ms L Rivers. 297. What I have strongly concluded was that the time was now right for a change from previous negotiated Court outcomes. Shared parental responsibility was wholly inappropriate for these children. Perhaps the family did need a defended hearing where they could each present their case and cross examine other witnesses, but now that that has occurred it is time for both households to

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be accepting of this final decision and endeavour to place past conflict behind them and concentrate on the future of the children. 298. Finally I have had regard to the other facts and circumstances that curiously were part of the evidence in this case. Whilst there may have been insufficient evidence to conclude findings on an appropriate balance of probabilities I have earlier discussed my concerns upon the Facebook issue, the comments written upon the house and motor vehicle and other unexplained events where I found that the father or Ms L Rivers were almost certainly not involved.

SPEND TIME ARRANGEMENTS


299. It was ultimately a matter of agreement between all parties that the parent with whom the children do not live should spend time with them each alternate school week from after school on the Thursday until the commencement of school on the following Monday morning, or if that day is a public holiday or school curriculum day then until the Tuesday. Such a period of time is the specific recommendation of the Family Consultant and, whilst not initially sought by the parents it is now a matter of agreement. I find that timetable to be in the best interests of the children and I have so ordered. 300. There was general agreement as to a sharing of school holidays, with the mother to have the second half of school holidays during each of the first, second and third school terms and I have so ordered. 301. The December / January school holidays were a matter of agreement. The father does not celebrate Christmas Day, rather the morning of Christmas Eve and thus by agreement the children will be with the mother in each and every year from 4.00 p.m. Christmas Eve until 7.00 p.m. 14 January of the following year. The father will then enjoy his uninterrupted holiday period from their return to him on 14 January until the commencement of the school year.
302.

I have made orders for a sharing of significant days, primarily birthdays and the mother will have the children on Mothers Day and likewise the father will have the children on Fathers Day. All up therefore the mothers time spent with the children is both substantial and significant though that outcome was

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not a required consideration of the Court given that I have not ordered an equal shared parental outcome. 303. It is appropriate that both parents attend all formal school parent / teacher interviews and special school occasions such as concerts, major sporting events and the like and, with this direction to the parents, this is a matter that they should be capable of arranging. 304. I have decided against any award of mid-week school time to the mother in the other week, that is when she does not have the Thursday evening and Friday periods with the children. Further time in this other week would be disruptive to the children and would likely ensure continuing parental conflict.
305.

All changeovers which do not occur at the childrens school should continue to occur at the McDonalds Family Store, Melbourne Suburb 1 unless otherwise varied with the consent of the parents. It is appropriate that there be some flexibility associated with these changeovers and therefore either of the parents or their new spouses or an adult person known to the children may collect and return them on all occasions.

FUTURE SECONDARY SCHOOLING


306. The children presently attend a Catholic primary school. The parents have not and will not agree on a secondary school for the children to attend and for E this will be a relevant issue in the 2014 school year.
307.

The mothers evidence on religion and the Catholic upbringing is highlighted in paragraphs 105 1- 108 (inclusive) of her affidavit. Her evidence is that her family is very religious and that she has had a committed and religious upbringing. Mr Nixon was a baptised Catholic and supports the children in their Catholic faith and the mother is currently undertaking religious education with the aim of being confirmed and participating within holy communion within the Catholic Church. There has been a significant issue of recent times about the baptism of the children and only after much conflict and indecision, and an Order of the Court, were they able to be baptised. Given that they are attending a Catholic primary

308.

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school that may have been a matter of some importance to them. Indeed at the baptism the father elected not to attend when the parents could not agree on who would be the childrens Godparents. Further there was a disagreement over the registration of the fathers name on the baptism certificate and his response to that issue and the action he sought was identified in exhibit M4.
309.

The fathers explanation, which was somewhat unsatisfactory, was that if he was not to be at the baptism then he wanted to ensure that Mr Nixons name was not placed on the certificate as father and he otherwise preferred it to be left blank. I did find his position to be very difficult to comprehend and for the children, with no father named on the certificate which they will likely see on many future occasions, then the decision is somewhat incomprehensible and showing poor judgment. The mothers discussion on future secondary education is detailed in paragraph 95 of her affidavit. Her preferences are either School 1 or School 2. Private schools or Catholic secondary schools are not an option because of the yearly fees. The fathers choice is Melbourne Suburb 4 High School and likewise his family is not able to afford a private or Catholic education.

310.

311.

312. There is no issue that both children will receive a very good education at a Government secondary school. That is a very proper outcome but the children need the support and encouragement of both households and a total acceptance and commitment to the school in which they are enrolled and attend. 313. The choice of the future secondary school is a matter to be determined by the parent with sole parental responsibility. What the children need is a sole decision maker and certainty on their future secondary education and, the sooner the decision is made and enrolment is activated then the children, particularly E, have time to know and accept of their future school.

SURNAME
314.

The children have always been known by the surname Rivers. That is their registered birth name. The father desired to maintain that name and will not

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discuss or accept any compromise or hyphenated name. The mother has asked the Court to order that the children be known under the surname of CondonRivers.
315.

The fathers new wife has taken the name of Rivers and her daughter is now known by that surname. The mother has adopted the surname of CondonNixon and her two children of her recent marriage are known by that surname. R has retained her surname of Keith.

316. Given that I have pronounced a sole parenting order it is strongly in the best interests of E and L that they carry the surname of the parent with whom they will hereafter live. They need a certainty and continuity of surname. That outcome is clearly in their best interests and it is what I will order.
317.

I record that, in paragraph 24 of the final consent orders pronounced 12 May 2010 there was then made an order that the children be and remain enrolled in school under the surname Rivers and that the parents use that surname only for the children at all times. That situation should continue. I have therefore ordered that E and L be known under the surname of Rivers and use that name for all purposes.

318.

TELEPHONE CONTACT
319.

By paragraph 12 of the initial consent orders pronounced 31 March 2008 the parents were each required to facilitate the children taking a call from the other parent on Monday at 7.00 p.m., at the shared expense of the parties and otherwise they were to facilitate the children communicating with the other parent at all reasonable times as requested by the children. That order was subsequently discharged by consent but nevertheless the parents were ordered to keep each other advised of their current residential address and telephone number (in paragraph 21 of the Orders dated 12 May 2010).

320. The current telephone contact order is to be found in paragraph 11 of the final parenting orders pronounced by consent on 12 May 2010 and that order provides for the children to have telephone communication with the nonresidential parent at 7.00 p.m. each Tuesday and the parents were required to

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ensure the children have privacy for the call. responsible for the children placing the call.
321.

The residential parent was

The children are of an age where they can meaningfully talk to their parents on the telephone and that is a valuable means of further communication for the children provided it is not corrupted by the parents actions, or the actions of other adults. I have evidence of one particular telephone conversation before me where the call was recorded by the mother and where the father displayed an extremely casual attitude and level of interest to the children and their questions. I do understand that the fathers input was sought to be explained by the then circumstances, the stress and conflict between the parents and his lack of telephone discussion skills. Nevertheless there were issues on that occasion and the parents must ensure that there are no further issues and conflict over the facilitation of telephone calls.

322.

323. Nevertheless it is important that there be a structured regime of telephone calls and I have ordered accordingly.
324.

There is no agreement as to the day of the week and the regularity of future telephone calls. The mother proposes one call only on a Monday evening at 7.00 p.m. The Independent Childrens Lawyer proposed that there be a telephone call to the fathers landline placed by the mother on each Tuesday and Thursday at 7.00 p.m. The father proposed that the mother telephone the children at his residence on each Wednesday and Sunday between 7.00 p.m. and 7.30 p.m.

325. All parties agreed that there must be privacy provided to the children, that no parent should record or interfere in the telephone call and that ideally it should be made to a landline. 326. The issues that I have considered as to the day of any telephone call(s) include the childrens swimming lessons and other extracurricular activities and the appropriate day of the week. 327. I have concluded that Sunday and Wednesday between the hours of 7.00 p.m. and 7.30 p.m. are most appropriate and I will so order. I have further ordered

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privacy for the children and their telephone conversations must never be recorded or transcribed.

INJUNCTIONS
328.

I conclude that it is necessary for there to be ongoing restraints upon each of the parents, their servants and agents so as to endeavour to regulate a level of proper and respectful behaviour.

329. No party is to physically discipline the children or allow their spouse or others to behave in such manner. 330. I have made orders to restrain each party and their servants and agents from abusing, insulting, belittling or otherwise denigrating any member of the other household and particularly from discussing these proceedings with the children or in their presence or allowing any other person so to do. 331. I conclude that these injunctions are absolutely necessary in this case and all relevant adults must understand the real potential to do harm and damage to the children by continuing the conflict between the households and allowing the children to observe, hear or be involved in any ongoing dispute. 332. Realistically I well understand that my strong words and findings in this Judgment may not bring about an improved level of behaviour and conduct by all relevant adults but hopefully they have the capacity as a parent or other spouse and the appropriate attitude to reflect on their behaviour and conduct over recent years and now act with the welfare and best interests of the children in mind rather than any personal and wholly misguided vendetta against others.
333.

The Independent Childrens Lawyer had sought an order that, in the event that either parent had any concerns about the children being at risk in the home of the other parent they would be required to first voice their concerns with the other household before presenting the children to any medical or law enforcement professional. I do not propose to pronounce any such order but I take this opportunity to encourage the parties to discuss any issue of concern with the other household in an organised and structured manner and without emotion or heated argument. Again that perhaps is optimistic but it is a procedure that would be in the best interests of the children.

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334.

A further order sought by the Independent Childrens Lawyer in paragraph 8(a) of their orders sought was to enrol the children in a post separation program at a Family Mediation Centre. I have considered this request but I will not make such an order as it is somewhat impractical given the time and travel distance involved from the respective households and I was not asked by either parent to consider this outcome. Finally this was not a matter urged upon the Court in the final address of Counsel for the children. The final like order sought by the Independent Childrens Lawyer was identified in paragraph 10 of their orders sought and that was for any dispute as to issues of education, health or any other parenting matter to be referred to mediation prior to any application being made to a Court. Again that may be a very sensible scenario, on the facts of this case, I will not require either of these households to first commit themselves to a structure of mediation. I have determined to limit applications to this Court by granting the father the order sought in paragraph 18 of his orders, as I have hereafter discussed.

335.

COMMUNICATION BOOK
336. Past Court orders have required the parties correspond and pass on information via a communication book. That has worked well and in reality is the only viable means of communication between these households. The mother has managed to collect all of the past books and some of their pages have been used in evidence in these proceedings. 337. I am asked by both parties to maintain an order for a communication book and this I will do.

MEDICAL PRACTITIONERS
338. Both children, particularly L have used the same general practitioner and specialist doctors where required and that should continue. Their medical records have been subpoenaed to Court and the extent of the involvement of these doctors with each of the children is apparent and should continue.
339.

I will require the sole parent to maintain the current medical services for the children. The other parent has no entitlement to make any regular medical

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appointment and must not change practitioners, save in an emergency.

emphasise therefore that it is the responsibility of the fathers household to make all appropriate general practitioner, paediatric and speech therapy appointments as required and, save for a genuine reason both children are to attend the general practice of the W Medical Centre.

FURTHER APPLICATIONS
340.

In paragraph 18 of his orders sought the father requested the Court place a restraint upon the mother filing further Applications in relation to parenting matters without the leave of the Court having been first obtained. I am acutely aware of the litigious history of these proceedings, the number of Applications issued in various courts by the mother and her attitude towards and fixation upon Ms L Rivers. I carefully balance all of those issues, and my general observations of the parties in this trial with the right of a parent to genuinely and appropriately seek orders that are justified and in the best interests of the children. On balance a level of finality of court proceedings would be a substantial benefit for the children. I have therefore determined to require the mother, before any further Application is filed on parenting or ancillary issues in this Court or the Federal Magistrates Court to first obtain the leave of a Registrar which would only be given for genuine or urgent reasons and upon proper material filed. This order is in the best interests of the children and if a genuinely urgent situation arises and is explained to the Court leave can be obtained in proper circumstances. I emphasise that I was not asked to find that the mother is a vexatious litigant and I have not made any such order.

341.

342. On balance it is unnecessary to extend this restraint to the father as I have assessed that it is unlikely he will file any further Application in the immediate future, save for enforcement issues if and when they may arise.

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CONCLUSION
343.

In conclusion therefore it is very strongly in the best interests of the children that a final sole parenting order be pronounced and that the children live with their father and spend time and communicate as structured with their mother.

COSTS
344.

I would intend to make no orders as to costs. The mother was self represented and both the father and the Independent Childrens Lawyer were legally aided. This hearing was required to achieve final and workable orders and a better outcome for the extended family. It would not be just to make any costs orders.
I certify that the preceding Three Hundred and Forty Four (344) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 16 January 2012 Associate: Date:

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