Change of live with orders – O’Connell & O’Connell

Change of live with orders – O’Connell & O’Connell [2015] FamCA 1129 (17 December 2015)

Last Updated: 8 January 2016


[2015] FamCA 1129
FAMILY LAW – CHILDREN – Where final orders were made by consent in November 2012 – Where the mother failed to comply with those orders – Where, save for some infrequent exceptions, the children ceased spending time with the father in March 2014 – Best Interests – Where the children have enjoyed meaningful relationships with the father – Where the father does not pose any unacceptable risk of harm to the children by their subjection or exposure to family violence or abuse – Where an issue of overarching significance was the willingness and ability of the mother to support and promote the children’s important relationships with the father – Where the evidence establishes the children are aligned with the mother – Where, if no remedial action is taken, the trend of deterioration will probably continue until the children’s filial relationships with the father are lost altogether – Where there are dire consequences for the children if they remain living with the mother – Where no reprieve could be expected unless they live with the father instead – Children to live with the father – Where the children need some temporary relief from the mother to settle into the father’s household – Where, after an initial embargo and a period of supervised time, children to spend increasing amounts of time with the mother, culminating in a regime of alternate weekends and half of school holidays

FAMILY LAW – CHILDREN – Parental Responsibility – Where an order for the parents to have equal shared parental responsibility would not serve the children’s best interests – Where the parties’ relationship is riven with conflict – Where the party with whom the child lives should have exclusive parental responsibility – Father to have sole parental responsibility

Mr O’Connell
Ms O’Connell
Ms Moran, Coast Law
17 December 2015
Austin J
8, 9 & 10 December 2015

The following is annotated. For full case:


  1. An issue of overarching significance that emerged in the proceedings was the willingness and ability of the mother to support and promote the children’s important relationships with the father. Regrettably, the mother’s views on that issue were inconsistent and unreliable.
  1. The mother first told the Family Consultant she did not know whether she had the capacity to ensure the children’s future visits with the father,[38] but she later told the Family Consultant she had considered the matter carefully and decided the children should spend no time with the father at all so as to avoid any further traumatisation he causes them. She boldly told the Family Consultant she would leave the choice to the children and not force them to see the father if they were disinclined.[39] In cross-examination, the Family Consultant was adamant she accurately reported the mother’s remarks to her.
  2. The mother’s deliberate decision to not force the children’s compliance with orders requiring them to spend time with the father is consistent with her past conduct, as described by the father, but quite inconsistent with the assertion in her affidavit that she attempted to encourage the children to spend time with the father.[40] I accept the father’s evidence that, at changeovers, the mother gives both him and the children the clear impression, through her statements and demeanour, that she dislikes him and dislikes the children going with him.[41]
  3. Any encouragement she has offered the children to stay in touch with the father has been desultory and feigned. That conclusion follows from her criticisms of the father to the Family Consultant[42] and her admissions in cross-examination that she does not believe he is a “loving father”, she does not think he loves the children, he is not a “good man”, and he is contesting these proceedings simply because of his dislike for her. It does not matter she might never have expressly told the children she does not want them to see the father, as she said in cross-examination, because they know exactly how she really feels. She denied in cross-examination that her adverse feelings about the father might have “rubbed off” on the children, but that denial was either untruthful or additional evidence of her lack of insight.
  4. The excuses offered by the mother for the children’s refusal to spend time with the father have not always been consistent. She deposed it was because “they are all too scared due to [the father’s] violent behaviour towards them”,[43]but she told the father it was because they felt he “live[d] to[o] far away”.[44]
  5. The mother admitted her impotence in ensuring telephone communication between the children and the father. The mother plaintively told the father she could not force them to communicate with him. The father’s perspicacious question of her was “Who is parenting who?”, but the mother lacked the acumen to understand the implications of the question. She replied the children were not puppets and she could do nothing more than simply encourage them.[45]
  6. In recent times, the children have been undeniably disrespectful of and resistant to the father, but the mother has nevertheless exaggerated their reactions to the father. For example, she alleged to the Family Consultant that the eldest child “pulled a knife” in anger on the youngest child on the night following the children’s first visit to the Family Consultant in March 2015. The Family Consultant was intrigued by that revelation because she considered the eldest child enjoyed his session in the father’s company that day. When questioned about it, the eldest child told the Family Consultant no such incident occurred and he only considered using a knife to smash a car window to retrieve a ball he wanted. The knife was not used to threaten his sibling and the incident to which he referred seemed to be an entirely different occasion to the previous visit to the Family Consultant.[46]
  7. The mother said in cross-examination she truly believes the children have no desire to see the father at all. If that is indeed her true sentiment then, given her disinclination to force the children to see the father against their wishes, the future is clear if they remain living with her. They will never see the father and their relationships with him will be lost.[47]
  8. For completeness, it should be recorded the mother also said afterwards in cross-examination that she believed the father was an important person in the children’s lives, she would like the children to see him, and it would be “nice” if they did. However, they were empty platitudes in the face of her earlier evidence and her earlier comments to the Family Consultant.
  9. The Family Consultant clearly identified the possibility of the mother’s deliberate alignment of the children with her against the father.[48] In view of the children’s tendency to settle reasonably quickly with the father in the mother’s absence, their repudiation of him in the mother’s presence and in the public domain must mean they are under extraordinary pressure to support the mother in the conflict, as the father correctly believes.[49]
  10. The evidence was littered with examples of the way in which the children have been manipulated by the mother in her conflict with the father. The children all referred to the father by his first name rather than the term of endearment “Dad” when discussing him with the Family Consultant.[50] Children do not voluntarily dispense with the use of such terms of endearment for a parent unless coerced or induced to do so, which powerfully implies the pressure exerted by the mother on the children and the depth of her disdain for the father. The mother involved the children in her conflict with the father, telling them the details of text communications, which descriptions were sometimes even inaccurate.[51] Even the school principal thinks the mother “discusses more information with the children than is helpful and/or necessary”.[52]
  11. On balance, the evidence does establish the children perceive the need to side with the mother and reject the father. It does not matter whether that has been consciously caused by the mother because, irrespective of whether deliberate or unintentional, the consequences are the same.
  12. The adverse implications for the children were clearly articulated by the Family Consultant. They feel the need to “choose sides”. Although that may give them temporary respite from the parental conflict, they are likely to experience lasting detrimental psychological consequences. They will feel guilt and remorse about rejection of the father, they will eventually blame the mother for the schism in their relationships with the father, they will experience difficulties in their own inter-personal relationships, they will have poorer mental health, and they are liable to develop somatic complaints as a result of their anxiety.[53]
  13. Because the children have been influenced by the mother, their expressed views about the parties are probably unreliable. While the children have uniformly expressed views to the Family Consultant not to see the father,[54] no weight should be reposed in those views.
  14. Aside from the mother’s alignment of the children with her, her impaired parenting capacity is otherwise proven by her inability to control the boys’ outrageous behaviour, either at home or at school. Nor could she control the youngest child during the consultation with the Family Consultant.[55] She rightly confessed her shame, embarrassment, and disappointment at their behaviour. She even has difficulty getting the children to attend and remain at school.[56]Surprisingly, the boys’ bad behaviour is not reflected in their academic performance, since the children’s most recent school reports are quite sound.[57]


  1. The youngest child’s delinquent behaviour is undoubtedly influenced by his diagnosis with autism, but that is not a complete answer. The father,[63] the single expert in the former proceedings,[64] the children’s school principal,[65]and the Family Consultant all believe the mother’s parenting style is a contributing factor. The children’s emotional disturbance has been so acute they were even incontinent for some time,[66] which even in the case of the youngest child could not possibly be attributable to autism. Children of their age do not lose control of their bowel or bladder without either a physiological reason, and there was none, or unrelenting anxiety, of which there is plenty.
  2. The evidence reasonably suggests the deterioration in the boys’ behaviour roughly correlated with them ceasing to spend regular time with the father in March 2014. That was the view of the father,[67] the youngest child’s psychologist,[68] and the school principal.[69] The mother admitted she also conceded the correlation at a school meeting to discuss their behaviour in April 2014. The Family Consultant believed the deteriorating behaviour of the boys is “highly likely” to be attributable to the mother’s psychologically abusive alignment of them.[70]
  3. The father’s belief the children are much better behaved in his care[71] was corroborated independently by his partner,[72] staff at the children’s school,[73] the youngest child’s speech therapist,[74] and the youngest child’s paediatrician.[75]
  4. In the last proceedings, the single expert advised that “if [the mother] again withholds the children, a change in their residency would be indicated”.[76] In effect, the mother has now been withholding the children from the father since at least July 2014. Although the children recently visited the father twice under the supervision of J Group staff, it is not an encouraging development. While the father thought the visits went reasonably well, the mother said in evidence they did not. She said the children refused to go again.
  5. The Family Consultant recommended the children be moved to live with the father, provided the children are not at unacceptable risk of harm in his care,[77] which finding is made. The Family Consultant said in cross-examination the children need a reparative environment, which will more likely be afforded by the father than the mother. The stage has been reached where it would be derelict for the Court not to remedy the impasse with a fundamental restructure of parenting arrangements.
  6. As the mother correctly contended, the reversal of the children’s residence would be an enormous change for them, but difficulty should never be an insuperable impediment to change for the better. The Independent Children’s Lawyer submitted that a change of residence would at least afford the children an opportunity to do better than they have, but in reality they could hardly do worse. The mother conceded in cross-examination it was “a long time” since the children have been happy and her impression is correct because it accords with the view of at least the youngest child’s psychologist.[78]
  7. There is, of course, a risk the children will rebel and abscond. However, it is no less probable they will experience great relief from the alleviation of the pressure exerted by the mother and they settle with the father reasonably swiftly. The father will have the support of his partner, who lives with him, and the paternal grandparents, who live adjacent, to settle the children. As a unified group, they are more likely to bring a level of sophistication to the children’s care which has eluded the mother.
  8. The father maintained his work experience equipped him with skill to better control the children,[79] which the Family Consultant accepted as being correct.[80] Her acceptance of the father’s self-confident opinion was not “blithe”, as the mother submitted. The father presented extremely well. He was open, careful, and measured. He abstained from any gratuitous criticism of the mother and explained his conduct and opinions coherently.
  9. The children’s move to live with the father would entail a change of schools, but at least the youngest child was due to change school if he remained living with the mother anyway. The Department of Education can no longer cope with him at his present school. The father has investigated the school he wants the children to attend if they live with him and he contended it had comparable resources to the school the Department of Education intended the youngest child would attend next year if he remains living with the mother.
  10. Both parties live in Region I of NSW. Their homes are separated by a road journey of about 45 minutes duration. There is no practicable impediment to the exchange of the children between them on a reasonably frequent basis.
  11. The mother criticised the father for not contributing to some dental expenses related to treatment of the children, but the legitimacy of such criticism was ameliorated by the father’s experience in this and the former litigation. The father explained he was brought to the brink of insolvency defending the mother’s baseless allegations in the last proceedings, meaning he was self-represented in these proceedings. The mother’s baseless allegations against him in these proceedings could also draw valid criticism, so his exasperation with her is understandable. It is common ground he has always paid child support in accordance with assessments.


  1. The evidence does not permit of reasonable grounds to believe the father engaged in child abuse or family violence (s 61DA(2)), so the presumption of equal shared parental responsibility applies.
  2. However, the presumption of equal shared parental responsibility is rebutted by the evidence, which surely proves an order in those terms would not serve the children’s best interests (s 61DA(4)). The parties cannot co-operatively parent the children. The mother cannot hide her contempt for the father. She could not refer to him by name. At the children’s school, she refers to him as “the father”, as she did in oral evidence at trial. She admitted to school staff she could not call him by his name because “she couldn’t move on”.[81] It was common ground the allocation of parental responsibility should be exclusive to one parent and should follow the determination about with whom the children should live.
  3. The children should live with the father, despite the risk they may remonstrate against the change. They will probably settle in his care. The only alternative is to leave them living with the mother, but that is untenable because nothing will change. The mother was pressed about how she could now make the children spend time with the father, as she now proposed, when the existing orders requiring exactly that to occur have not been successfully implemented by her for at least 18 months, and she had no answer. That is because there was no logical answer for her to give.
  4. The mother’s counsel finally submitted the Court should contemplate making only interim orders, rather than final orders, even though that was not the mother’s actual proposal. The rationale was that, regardless of whether the children temporarily move to live with the father or stay with the mother, a review several months hence would eliminate the need for the current prognostications about whether the children’s residence with the father will be successful or whether the mother will successfully implement the children’s regular visits with the father.
  5. The finality of litigation, although desirable, cannot always be wisely achieved in one step (see Marriage of Archbold (1984) FLC 91-532 at 79,309-79,310), but very persuasive reasons are required not to finalise litigation. Predictions about a family’s affairs are matters upon which minds will inevitably differ and findings by a Court in relation thereto permissibly fall within a wide range of discretion (see U v U [2002] HCA 36; (2002) 211 CLR 238 at 262-263). But such predictions are integral to all proceedings under Part VII of the Act and this case is no different. The interminable controversy between these parties has raged for almost four years and they have now endured two bouts of litigation. It should not be prolonged. Final orders should be made.
  6. The Family Consultant recommended a short embargo on the children’s personal interaction with the mother to enable them to settle in the father’s residential care, though she carefully abstained from recommending what regime would then follow.[82]
  7. The recommendation of the embargo period is adopted and an injunction is imposed to prevent the mother’s frustration of it.
  8. The father joined in the Independent Children’s Lawyer’s proposal about the nature of the children’s interaction with the mother that should follow the embargo period. Their proposal is adopted as sensible. The mother could have no real argument. It is akin to the regime she proposed for the children and the father if the children remained living with her. The regime graduates, easing the children back into a routine with the mother over the next 10 months, and culminates with them spending time with her for three nights each fortnight on alternate weekends in school terms, for one-week periods in school holidays, and on other special occasions.
  9. The changeover venues for the children are their school and a public restaurant at Suburb E, which is about equidistant between the parties’ homes.
  10. An order is made permitting the children to have telephone communication with the mother once each week and with the father once each week when they stay with the mother during school holiday periods. The parties were agreeable to an order of that sort. Communication twice each week is too much. Once is enough. There is no need to place an embargo on telephone communication in the same way that applies to the children’s personal interaction with the mother.
  11. The mother sought an injunction restraining the parties’ corporal punishment of the children. It is granted because the father consented.
  12. The mother and Independent Children’s Lawyer sought an injunction restraining the children being left in the unsupervised care of the father’s partner’s two adult sons. It is granted because the father consented.
  13. Because the mother has made many past allegations of misconduct against the father in relation to his treatment of the children and because she said in cross-examination she would remain vigilant about reporting future complaints made by the children about the father, an order requires copies of the orders, these reasons, and the Family Reports to be furnished to the investigating authorities if and when any other complaint is made.
  14. All remaining orders were either the subject of consent or could not attract any reasonable complaint.
  15. An order requires the children to be promptly produced to the Family Consultant for them to receive a balanced explanation of the orders, so they can make sense of what will become of them.


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