Aaron and Aaron - [2011] FMCAfam 80

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AARON & AARON

[2011] FMCAfam 80

FAMILY LAW – Same sex couple with two children – each party biological mother to one child – children conceived through artificial insemination – parties seen as parents to both children – rebuttal of the presumption for equal shared parental responsibility – whether substantial and significant or equal time can be applied once presumption rebutted – weight of children’s views where children wishing to please their parents.

Family Law Act 1975, (Cth), ss.4, 60B, 60CA, 60CC, 60EA, 60H, 60HA, 60HB, 61B, 61DA, 64B, 65AA, 65C, 65D, 65DAA, 65DAC

KB & TC (2005) FLC 93-224
Damiani & Damiani [2009] FamCACF 215
Doyle & Doyle (1992) FLC 92-286
Goode & Goode [2006] FLC 93-286
H v W (1995) FLC 92-598
U v U (2002) 211 CLR 238; (2002) FLC 93-112
R and R : Childrens’ Wishes [2000] FamCA 43

Applicant:

MS B. AARON

Respondent:

MS M. AARON

File Number:

CAC 1160 of 2009

Judgment of:

Turner FM

Hearing dates:

1 & 2 November 2010

Date of Last Submission:

2 November 2010

Delivered at:

Darwin

Delivered on:

7 February 2011

REPRESENTATION

Counsel for the Applicant:

Dr Boss

Solicitors for the Applicant:

Pappas J Attorney

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Farrar Gesini & Dunn

Counsel for the Independent Children’s Lawyer:

Ms Smithies

Solicitors for the Independent Children’s Lawyer:

Legal Aid ACT

ORDERS

That the children of the relationship [X] born [in] 2003 and [Y] born [in] 2005 live with Ms M Aaron.
That Ms M Aaron have sole parental responsibility for the children and keep Ms B Aaron informed in writing of all long term decisions relating to the children.
That each parent have the sole responsibility for making decisions about the day to day care welfare and development of the children whilst the children are in their respective care.
That Ms B Aaron spend time with the children as agreed between the parties but failing agreement as follows:-
(a)During gazetted ACT school terms commencing Friday 11 February 2011 and every fortnight thereafter from after school Friday to before school Monday, such changeover to occur at the school;
(b)Should a public holiday, excluding Easter fall within either side of the weekend time referred to in 4(a) then the time is to be extended to include the public holiday with Ms B Aaron to either collect the children from school the afternoon before the public holiday or return the children to school the morning after the public holiday;
(c)Should the weekend or public holiday time referred to in 4(a) or (b) coincide with one of the children’s birthdays then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 1.00pm on the day of the child’s birthday with delivery and collection to occur at [K] Restaurant at [F];
(d)
Should the weekend time referred to in 4(a) coincide with Mothers Day then Ms B Aaron is to return the children to

Ms M Aaron from 9.00am to 1.00pm on Mothers Day with delivery and collection to occur at [K] Restaurant at [F];
(e)During gazetted ACT school terms commencing Tuesday 22 February 2011 and every fortnight thereafter from after school Tuesday to before school Thursday;
(f)Should a public holiday, excluding Easter fall within either side of the mid week time referred to in 4(e) then the time is to be extended to include the public holiday with Ms B Aaron to either collect the children from school the afternoon before the public holiday or return the children to school the morning after the public holiday;
(g)Should this midweek time referred to in 4(e) coincide with one of the children’s birthdays then Ms B Aaron is to return the children to Ms M Aaron from 5.00pm to 7.30pm on the day of the child’s birthday with delivery and collection to occur at [K] Restaurant at [F];
(h)Should this midweek time referred to in 4(f) coincide with one of the children’s birthdays then Ms B Aaron is to return the children to Ms M Aaron 9.00am to 1.00pm on the day of the child’s birthday with delivery and collection to occur at [K] Restaurant at [F];
(i)In the year 2011 and every alternate year thereafter for the first week of each of the first term, second term and third term gazetted ACT school holidays, with Ms B Aaron to collect the children from school at the end of the last school day in the term and to return the children to Ms M Aaron at [K] Restaurant at [F] at 5.00pm the following Friday;
(j)Should the holiday time in 4(i) coincide with Easter then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 5.00pm Easter Sunday with delivery and collection to occur at [K] Restaurant at [F];
(k)Should this holiday time referred to in 4(i) coincide with one of the children’s birthdays then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 1.00pm on the day of the child’s birthday with delivery and collection to occur at [K] Restaurant at [F];
(l)In the year 2011 and every alternate year thereafter for the first, third and fifth week of the gazetted ACT Christmas school holidays, each holiday week to commence at 9.00am Monday and conclude at 5.00pm Sunday with collection and delivery to occur at [K] Restaurant at [F];
(m)Should this holiday time referred to in 4(l) coincide with Christmas day then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 2.00pm Christmas day with delivery and collection to occur at [K] Restaurant at [F];
(n)In the year 2012 and every alternate year thereafter for the second week of each of the first term, second term and third term gazetted ACT school holidays, with Ms B Aaron to collect the children from [K] Restaurant at [F] at 9.00am on the second Monday of the holidays and to return the children to school on the first morning of school after the school holidays;
(o)Should the holiday time referred to in 4(n) coincide with Easter then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 5.00pm Easter Sunday with delivery and collection to occur at [K] Restaurant at [F];
(p)Should this holiday time referred to in 4(n) coincide with one of the children’s birthdays then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 1.00pm on the day of the child’s birthday with delivery and collection to occur at [K] Restaurant at [F];
(q)In the year 2012 and every alternate year thereafter for the second, fourth and last week of the gazetted ACT Christmas school holidays, each holiday week to commence at 9.00am Monday and conclude at 5.00pm Sunday with collection and delivery to occur at [K] Restaurant at [F];
(r)Should this holiday time referred to in 4(q) coincide with Christmas day then Ms B Aaron is to return the children to Ms M Aaron from 9.00am to 2.00pm Christmas day with delivery and collection to occur at [K] Restaurant at [F];
(s)If either child’s birthdays does not fall within the time allocated as above then the children are to spend time with Ms B Aaron from 9.00am to 1.00pm on the child’s birthday if it falls within a weekend, a school holiday or a public holiday, or 5.00pm to 7.30pm if it falls on a school night with collection and delivery to occur at [K] Restaurant at [F];
(t)If Easter does not fall within the time allocated as above then the children are to spend time with Ms B Aaron from 9.00am to 5.00pm Easter Sunday with collection and delivery to occur at [K] Restaurant at [F];
(u)If Christmas does not fall within the time allocated as above then the children are to spend time with Ms B Aaron from 9.00am to 2.00pm Christmas day with collection and delivery to occur at [K] Restaurant at [F];
(v)If Mothers Day does not fall within the time allocated as above then the children are to spend time with Ms B Aaron from 9.00am to 1.00pm Mothers Day with collection and delivery to occur at [K] Restaurant at [F];
That each parent is entitled to one extended holiday period per year of two or more weeks with the children, such extended holiday not to include Christmas day provided the holidaying parent gives to the non holidaying parent three months written notification setting out the dates of the extended holiday and providing details as to dates of the make up holiday time for the non holidaying parent.
In the event that any holiday period is to be spent interstate then the holidaying parent must provide to the non holidaying parent 14 days prior to the commencement of the holiday written notification as to where the holiday is taking place together with details as to addresses and contact numbers.
In the event that any holiday period is to be spent overseas then the holidaying parent must provide to the non holidaying parent 14 days prior to the commencement of the holiday written notification as to where the holiday is taking place, details as to addresses and contact numbers and provide a copy of the return tickets for the children.
The passports, unless otherwise required by Ms B Aaron for the purposes of booking an overseas holiday or travelling overseas with the children are to be held by Ms M Aaron.
That upon Ms B Aaron providing to Ms M Aaron 14 days written notice as to the location and the time of the church service, Ms M Aaron is to make both children available for the taking of sacraments by either child.
That Ms B Aaron have telephone communication with the children when the children are with Ms M Aaron as follows:-
(a)Every Monday night at 6.45pm with such call to be instigated by Ms B Aaron;
(b)At 6.45pm on the birthday of Ms B Aaron with such call to be instigated by Ms B Aaron;
(c)At the reasonable request of the children with such calls to be instigated by Ms M Aaron.
That Ms M Aaron have telephone communication with the children when the children are with Ms B Aaron as follows:-
(a)Every Saturday night at 6.45pm with such call to be instigated by Ms M Aaron;
(b)At 6.45pm on the birthday of Ms M Aaron with such call to be instigated by Ms M Aaron;
(c)At the reasonable request of the children with such calls to be instigated by Ms B Aaron.
That Ms M Aaron provide the necessary authority to the children’s schools to enable Ms B Aaron to collect and deliver the children to and from school and to obtain copies of all school reports and newsletters, to purchase at her expense copies of school photographs and to be notified of any upcoming school events.
That Ms M Aaron provide the necessary authority to the children’s medical practitioners to enable Ms B Aaron to obtain copies of any medical certificates and reports.
That in the event either child requires a medical appointment or a hospital visit whilst in either parents care then the other parent is to be notified as soon as practicable as to the condition of the child and full details as to the medical appointment or the hospital appointment and are subsequently to be advised of any medicines required to be taken by the child or other medical treatment the child is to receive.
Unless otherwise agreed, neither parent is to attend at the other parents home or work address for any purpose in respect to the carrying out of these orders.
That each parent provide to the other parent within 24 hours written notification of any change in their home or work address, home, work or mobile telephone number or email address.
That the children’s names are to remain the same as appears on their birth certificates and are not to be altered without the consent of both parties.
That neither party will refer to the other in the presence and hearing of the children by their first name, but by the term “Mum’ in relation to the Ms B Aaron and “Mor” in relation to the Ms M Aaron.
The parties will not denigrate each other to the children or in the presence or hearing of the children at any time and shall take steps to remove the children from the presence of any other person denigrating the other party.
That prior to any further court proceedings for children’s matters being commenced both parties must attend counselling or mediation to address the disputed issues.
Should the counselling or mediation prove unsuccessful, then written proof of the counselling or mediation must be provided to the Court prior to the filing of any application.
That pursuant to s.65DA (2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars form part of these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 1160 of 2009

MS B AARON

Applicant

And

MS M AARON

Respondent

REASONS FOR JUDGMENT

I have before me for determination two competing applications in respect to the ongoing arrangements for [X] born [in] 2003 and [Y] born [in] 2005.
These children are the children of a same sex relationship between the applicant Ms B Aaron and the respondent Ms M Aaron.
Since separation in May 2009 the parents have been engaged in a high conflict low communication relationship which has resulted in the current court proceedings.
Whilst numerous orders are being sought in essence the applicant is seeking a shared care arrangement of equal time with the children together with equal shared parental responsibility whereby the respondent is seeking orders that the children live with her and have four nights a fortnight with the applicant together with an order for sole parental responsibility.
The Independent Children’s Lawyer whilst not specific about the actual time regime is of the view that the parties should have equal shared parental responsibility and that the children have substantial time with both parties.

Brief background

The applicant is aged 38 and is currently between jobs but works in administration.
The respondent is aged 38 and is in part time permanent employment as a [omitted] with [omitted].
The parties commenced cohabitation in early 2000.
The respondent is the birth mother of the older child [X] who was born [in] 2003.
[X] was conceived through a home artificial insemination procedure utilising donor sperm from applicant’s brother.
The applicant is the birth mother of the younger child [Y] who was born [in] 2005.
[Y] was conceived through a home artificial insemination procedure utilising donor sperm from respondent’s brother.
The children have been and continue to be treated as the children of the relationship and the children have always known each other as being sisters, although biologically they are cousins.
Each party had been actively involved in the care of the children during the relationship, with both parties having had time off employment to assist in the day to day care, although it is in dispute as to who was the primary carer during the relationship.
The relationship started to deteriorate at the beginning of 2009 and by May 2009 the applicant had moved out of the home owned by the respondent in which they had been living as a family unit.
Difficulties with arrangements for the children commenced immediately upon separation with legal practitioners involved within weeks in a correspondence battle.
At first the applicant was having some afternoon time with the children which was then increased to overnight and then to alternate weekends.
Attempts at mediation at Relationships Australia to put more time in place for the applicant were unsuccessful and as a consequence the applicant commenced court proceedings in July 2009.
A family report was ordered and was prepared and released by the Family Consultant Ms L in October 2009 for the interim hearing.
In October 2009 orders were made by Neville FM whereby the applicant spends time with the children four nights a week together with three afternoons a week from 3.15pm to 6.00pm.
A further family report was prepared and released by Ms. L in April 2010.
The October 2009 orders have remained substantially in place leading up to the hearing.

History of court orders

A summary of the orders made are as follows:-
a)On 26 August 2009 Neville FM ordered for parties to attend on a Family Consultant for the purpose of a short form report;
b)On 23 October 2009 Neville FM made interim children’s orders whereby children live with the respondent, and spend time with the applicant every second weekend from after school Friday to before school Monday, every second Monday night and every Tuesday, Wednesday and Thursday afternoon from after school to 6.00pm and for weekends in school holiday periods and three nights over Christmas school holidays;
c)On 5 March 2010 Neville FM ordered for passports to issue and gave permission for the children to travel to Fiji;
d)On 28 April 2010 Neville FM appointed an Independent Children’s Lawyer;
e)On 6 May 2010 Neville FM directed for the matter to be listed for a final hearing on 25 and 26 May 2010;
f)On 26 May 2010 Neville FM vacated the hearing dates;
g)On 4 August 2010 Baumann FM listed the matter for hearing on 1 and 2 November 2010.

Orders sought

I do not intend to recite the comprehensive orders sought by each of the parties but to summarise the nature of the orders proposed during the course of these proceedings, including the final orders sought at the date of the hearing.
In her initiating application the applicant sought orders for the children to live with her and spend time with the respondent in the first week from after school Friday to before school Monday then from Wednesday afternoon to Friday morning and in the second week from after school Monday until Wednesday morning.
During the report writing process resulting in the family report released in October 2009, the applicant indicated to Ms L that she was seeking a shared care arrangement of alternating 4/3 and 3/4 days split on an alternate week basis.
During the report writing process resulting in the family report released in April 2010, the applicant indicated to Ms L that she sought orders for the children to live with her five nights a fortnight, consisting of three nights from Friday to Monday in the first week and from Tuesday to Thursday in the second week.
At the final hearing the applicant indicated that the orders now being sought are in week one from after school Monday to before school Tuesday, from after school Friday to before school Monday and in week two from after school Tuesday to before school Friday, a total of seven nights per fortnight, making it an equal shared care arrangement as well as provision for special days.
At all times, the applicant has proposed orders for equal shared parental responsibility.
As to the respondent, the orders sought in her response was that the children live with her and that the applicant spend time with the children every alternate weekend from after school Friday until before school Monday and then for three afternoons each week. It was proposed that holiday time be provided by allowing weekends.
During the report writing process resulting in the family report being released in October 2009, the respondent indicated to Ms L that she was seeking the same orders and did not want the applicant to have the children for longer than a three day block period during school holidays.
During the report writing process resulting in the family report being released in April 2010, the respondent indicated to Ms L that she was seeking orders for the applicant to spend time with the children from Friday to Monday in week one and Monday overnight in week two with no longer than a three day block in school holidays.
At the final hearing the respondent indicated that the orders now being sought was for the children to live with her and that the applicant spend time with the children every fortnight from after school Friday to before school Tuesday with no provision for holidays or special days.

At all times, the respondent has proposed orders for sole parental responsibility to the respondent.
The Independent Children’s Lawyer indicated their support for orders whereby the parties have equal shared parental responsibility and each party has substantial time with the children, although how that was to be achieved was not elaborated.
As to the other various orders being sought, little was agreed upon, other than the notification to each other of changes in addresses and telephone numbers.

Evidence

Both parties are legally represented.
In respect to the applicant I read and considered the following documents:-
a)Initiating application filed 17 July 2009;
b)Affidavit of applicant filed 17 July 2009;
c)Affidavit of Mr M filed 28 July 2010;
d)Affidavit of applicant filed 28 July 2010;
e)Affidavit of applicant filed 13 May 2010;
f)Affidavit of applicant filed 18 October 2010.
Two witnesses gave evidence on behalf of the applicant, the applicant and her flat mate Mr M.
The applicant was cross-examined by the respondent and the Independent Children’s Lawyer.
Submissions were made by the respondent that based on the evidence given in cross-examination that the applicant could not be seen as a credible witness as the applicant was evasive, at times unresponsive, feigned forgetfulness, added information that was not needed, and used cross-examination as an opportunity to make self serving statements.
Certainly throughout her evidence the applicant was given several reminders requesting that she answer the questions, not make statements unrelated to the questions asked and was warned about the making of flippant remarks.
Unfortunately bad or inappropriate behaviour in the witness box is not uncommon in court.
Sometimes it can be caused by nervousness, other times by malice, and other times people through their natural make up just can’t help themselves.
Ms L described the applicant as being very expressive, which is part of her personality.
The applicant herself described herself as a blubbering sooky mess.
The Independent Children’s Lawyer did not agree with the respondent’s assessment of the oral evidence given by the applicant.
When asked by the Independent Children’s Lawyer as to the strengths that the respondent brings to the children, the applicant’s responses were brutally open, describing herself as going “heart first” whereas the respondent goes “head first”, and describing at length how good a parent the respondent is to the children.
I find the applicant despite her unruly behaviour at times in the witness box, to be a credible witness who from time to time downplayed her weaknesses and heightened the weaknesses of the other party, but nonetheless delivered her responses in an honest and open manner.
The applicant’s only witness, Mr M was cross-examined by the Respondent and the Independent Children’s Lawyer.
Mr M confirmed the living arrangements of the applicant, which assisted in my understanding of her situation.
But otherwise the witness brought little by way of other evidence relevant to the matter, and his sweeping unsupported statements as the demeanour of the parties was of little assistance.
I therefore give his evidence minimal weight in these proceedings.
In respect to the respondent I read and considered the following documents:-
a)Response filed 29 August 2009;
b)Affidavit of respondent filed 24 May 2010;
c)Affidavit of respondent filed 9 July 2010;
d)Affidavit of respondent filed 15 October 2010
e)Affidavit of Ms B filed 24 May 2010;
f)Affidavit of Ms B filed 26 October 2010;
g)Affidavit of Ms E filed 20 October 2010.
Three witnesses gave evidence on behalf of the respondent, the respondent, her partner Ms B and Ms E a witness to an incident between the parties in May 2009.
The respondent was cross-examined by the applicant and the Independent Children’s Lawyer.
The respondent is in nature very different in her delivery of her evidence, almost chalk and cheese compared to that of the applicant.
The respondent’s answers were measured and softly spoken, although at times the respondent did go off on tangents.
Like the applicant, the respondent also downplayed her weaknesses and exaggerated the weaknesses of the other party, but nonetheless delivered her responses in an honest and open manner.
The respondent was not as forthcoming in her confidence of the applicant as a parent describing the applicant’s strengths as having a licence, being able to drive them around and teaching them how to cook.
Whilst I find that both the applicant and the respondent are credible witnesses both exhibited behaviour and attitudes that were not child focussed and both demonstrated a lack of insight as to the children’s needs.
This will be canvassed in more detail later in the judgment.
The respondent’s partner Ms B was cross-examined by the applicant and the Independent Children’s Lawyer.
Ms B was a credible witness providing calm and thoughtful responses to the questions.
Ms B provided a useful snapshot as to the blended family unit which has been created with the respondent and the operation of the household that now contains six children, including the two children that are the subject of these proceedings.
I give weight to the evidence provided by Ms B.
As to Ms E, Ms E was an honest forthright witness that gave evidence of an altercation between the parties witnessed by her as a bystander in May 2009.
I do not accept the applicant’s position that the evidence given by Ms E may have been affected by a subsequent meeting between the witness and the respondent.
I give weight to the evidence of Ms E.
In respect to the Independent Children’s Lawyer I considered the submissions.
The only other witness was the Family Consultant Ms L.
I read and considered the two family reports released in October 2009 and April 2010.
Ms L was cross-examined by the applicant, the respondent and the Independent Children’s Lawyer.
It was submitted by the respondent that limited weight should be given to the reports and evidence of Ms L as much has changed since the last report in April 2010.
When Ms L spoke to [X] in March 2010, the big issue foremost for [X] was the adjustment to being part of an impending combined household, which [X] spoke at length about to Ms L.
Since April 2010, the respondent and the children have moved in together with Ms B and her children.
However the information captured in the family reports as to the impact of the separation on the children, the children’s views and their relationship with the parties together with the recommendations by

Ms L cannot be discounted, especially as not much has changed on the parties own evidence as to their low level of communication and the continued high level of conflict.
I therefore give significant weight to Ms L in respect to both her reports and her oral evidence.
In considering the matter, I have had regard to all of the material filed, all documents tendered, all oral evidence and to the submissions made by the parties.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.
In what follows, statements of fact constitute findings of fact.

The law

Children’s issues are contained in Part VII of the Family Law Act 1975 (Cth) (“the Act’).
The power of the Court to make a parenting order is provided for in section 65D.
Section 64B(2) provides that a parenting order may deal with one or more of the following:-
(a)    the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c)     the allocation of parental responsibility for a child;
(d)    if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)     the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g)    the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is   made;
(h)    the process to be used for resolving disputes about the terms or operation of the order;
(i) any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
As to who may apply for a parenting order is provided for in section 65C:-
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Pursuant to sections 60CA and 65AA, in deciding whether to make a particular parenting order, the Court must have regard to the best interests of the child as a paramount consideration.
In determining what is in the best interests of the child, I must, firstly, consider the objects of Part VII and principles underlying the objects are set out in section 60B:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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 that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their 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) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In ascertaining what is in the best interests of the child, I must look to the primary and additional factors, as set out in section 60CC (3).
The primary considerations are:-
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are:-
(a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)     the capacity of:
(i) each of the child’s 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;
(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)    if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)     any family violence involving the child or a member of the child’s family;
(k)     any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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 child;
(m)    any other fact or circumstance that the court thinks is relevant.

Section 60CC(4) provides:-
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)    has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)    has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)     has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The framework for determining the nature of the parenting order to make is contained in section 61DA:-
(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 child’s 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)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)   When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(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 child’s parents to have equal shared parental responsibility for the child.
If the presumption of shared parental responsibility applies then the application of section 65DAA is triggered, which provides for the court to consider the child spending equal or substantial or significant time with each parent.

Application of the law

Before considering the competing proposals in respect to the long term arrangements for the children I must firstly determine whether the applicant, who is not biologically related to the child [X], and the respondent who is not biologically related to the child [Y], have the ability to bring their applications under Part VII requesting orders in respect to both children.

As a result of their de facto relationship are both children regarded as children of the parties and are the parties regarded as the parents of both children?

Section 60EA defines a “de facto relationship” for the purposes of Part VII as follows:-
For the purposes of this Subdivision, a person is the de facto partner of another person if:
(a) a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or
(b) the person is in a de facto relationship with the other person.
There is no dispute that the parties were in a de facto relationship at the time of conception of both children.
Pursuant to section 60HA(1) a child is deemed to be a child of the de facto partners if:-
(1) For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if:
(a) the child is a child of the person and the person’s de facto partner; or
(b) the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or
(c) the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.
As the child is not a child of the applicant and not a child adopted by the applicant, then consideration must be given to section 60H(1) and section 60HB.
Section 60HB applies to surrogacy and does not apply.
Section 60H(1) states:-
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
Artificial conception procedure is defined in section 4(1) to include:-
(a) artificial insemination; and
(b) the implantation of an embryo in the body of a woman.
Artificial insemination is defined in the Macquarie Dictionary as:-
“A method of inducing pregnancy by artificial introduction of viable sperm into the canal of the cervix”
I accept in these proceedings that both children were conceived by way of artificial insemination, and accordingly I find that both children are children of the parties and therefore both parties are the parents of the children for the purposes of the Act.
As the parties are parents of the child, I must now determine whether the presumption of equal shared parental responsibility applies as set out in section 61DA.

Does the presumption of equal shared parental responsibility apply?

Section 61DA(1) provides that when making a parenting order the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
Parental responsibility is defined in section 61B:-
“In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C provides that each parent has parental responsibility until the child turns 18 years of age.
The effect of an order for shared parental responsibility is set out on section 65DAC:-
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”

Major long term issue is defined in section 4 as:-
"major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Section 61DA(2) states that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has abused the child or if there has been family violence.
Family violence is defined in section 4 as:-
The “family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of a member of the persons family that causes that or any other member of the person’s family to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The applicant is seeking an order for equal shared parental responsibility.
The respondent is seeking an order for sole parental responsibility.
The respondent submits that the applicant is verbally abusive to the children and at times is rough in her handling of the children.
The issue of risk is dealt with later in this judgment under the heading “Primary Considerations” and “Additional Considerations”.
I find that the children have not been the subject of abuse by the applicant and therefore this aspect of section 61DA(2) does not preclude the application of the presumption of equal shared parental responsibility.
Further the respondent submits that there has been family violence.
On 10 July 2009, the respondent obtained an interim Domestic Violence by consent without admissions against the applicant.
The applicant entered into undertakings including not causing or threatening to cause personal injury to the respondent and not attending at the respondent’s residence.
The interim order was as a result of an altercation between the parties on 22 May 2009 which are set out in detail in the respondent’s affidavit at [129-140] which unfortunately was witnessed by the children.
The incident is denied by the applicant.
There were no breaches of the interim order by the applicant.
The application for final Domestic Violence Orders was dismissed on 19 October 2010.
The respondent maintains that she is still afraid of the applicant, with allegations of stalking by the applicant.
The applicant denied that there had been stalking although admitted that she has on occasion photographed the [vehicle] owned by the respondents partner Ms B, and did it because she had been told by people that it might “come in handy”.
In the April 2010 family report at [3] Ms L states:-
“Ms M Aaron informs that Ms B Aaron was violent in the relationship. I understand there is a two-year Domestic Violence Order in place by consent and without admissions. Ms B Aaron is perplexed and distressed by these allegations. She regards Ms M Aaron as controlling especially in relation to the children.”
I have had the opportunity of observing the parties in the witness box.
Whilst the applicant was often overly dramatic and emotive, the respondent was equally aggressive, albeit passively.
I have no doubt that these parties have the ability to ‘push each others buttons’ and do so often and unfortunately with their children as the audience.
However I do not accept that there is a genuine concern as to family violence, and therefore I find that section 61DA(2) does not prevent the presumption of equal shared parental responsibility being applicable in this matter.
I now turn to whether the presumption has been rebutted, pursuant to section 61DA(4).
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it might not be in the best interests of the child for the parents to have equal shared parental responsibility.
Since separation of over eighteen months ago in May 2009, the parties agree that there level of communication is almost non existent and their level of conflict is high.
Despite quite extensive counselling and mediation, communication, whether by telephone, email or text, continues to be problematic.
The parties refuse to speak to each other on the telephone.
Often the children are used as conduits for information, a practice which cannot continue.
Use of a communication book was attempted but failed when not returned by the applicant.
Ms L comments at [6] of the April 2010 family report:-
“Each adult continues to regard the other as obstructive and controlling. There is little constructive communication between the parties.”
When questioned in cross-examination as to how the communication would improve the applicant thought as that the court proceedings will be at an end it will be better and that they could use third parties.
The respondent provided a similar response.
There was no positive indication from either party that the situation would improve.
Ms L in cross-examination was similarly of the same view stating that in respect to the communication it didn’t look “hopeful for the future”.
Further Ms L expressed that the poor communication and high conflict would make the consultation about major issues difficult for the parties.
Whilst poor communication and high conflict in itself would not necessarily rebutt the presumption of equal shared parental responsibility, there has since separation been several incidents that confirm the parties are unable to do what is best for the children in making long term decisions about major matters.
I have selected from the litany of allegations contained in the large volume of affidavits two incidents which I find are indicative of the parties not being able to reach agreement on long term issues.
The first incident concerned the enrolment of [Y] in her school.
The respondent sets out the incident at [91] and [92] of her affidavit filed 24 May 2010.
The parties had agreed to send [Y] to [omitted] School, the school that [X] attends.
However when [Y] was offered a position in September/October 2009, there was delays in the applicant accepting the position, as well as an altercation in respect to the deposit.
Shortly afterwards the applicant sought to have the respondent’s partner’s name removed from the list of contacts held by the school.
The events do not appear to be denied by the applicant and during cross-examination the applicant expressed that she had concern as to the children’s schooling although the reasons for not articulated.
The second incident is in relation to a dentist appointment for [X] which is detailed at [102] to [105] of the respondents affidavit filed

24 May 2010.
On 20 May 2010 the children were to spend time with the applicant, but an urgent dental appointment was made for [X] at 3.00pm as [X] had an abscess in her mouth.
[X] missed her appointment as the applicant refused to allow the child to attend the appointment as it was during her time with the child.
The Deputy Principal was involved and the situation unravelled in front of [X].
The child was taken to the dentist the next day by the respondent and was found to have infected gums and was prescribed antibiotics.
It was clear from the applicant’s responses in cross-examination about this incident that her primary concern was her erosion of time with the children and not the need for [X] to be seen to as soon as possible with her mouth abscess.
In both of these incidents the respondent acted responsibly and was child focussed. The applicant was not.
Unfortunately the immaturity of the applicant in her reactions of everything being a slant on her, impacted on her ability to put her needs second and the needs of the children first.
Further these incidents as well as other incidents, such as the dispute over the car seat, and the dispute over the passport have been played out in front of the children causing them stress and unnecessary involvement.
It was evident from the applicants oral evidence that she has engaged [X] in discussions about the court case, citing [X] as the reason why at the hearing, the applicant was seeking week about as [X] told her to go for the “maximum time”.
The bickering, the involvement of the children, and their exposure to conflict, and the problems with decision making due to the applicants perception as to the impact on her rather than the children must cease.
As nothing positive was put forward as to possible changes in the future as to communication and level of conflict then the issue must be resolved by way of court order.
I find that the presumption is rebutted in accordance with section 61DA(4) as it would not be in the best interests of the children for the parties to have equal shared parental responsibility.
I further find that the parties should not share any parental responsibility pursuant to section 64B(2) as it would not be in the children’s best interests.
Further the applicant was accepting of the respondent’s ability to make appropriate decisions for the children and in reality the respondent has made the long term decisions successfully since May 2009.
I therefore order for the respondent to have sole parental responsibility.
I have however taken into account the importance of Catholicism religion to the applicant and this is reflected in the court orders.
As I have made the finding that the presumption of equal shared parental responsibility is rebutted, I am not required to consider an order for equal time or significant or substantial time pursuant to section 65DAA.
The question then arises as to whether the court is precluded from considering an order for equal time or substantial and significant time when the presumption is rebutted.

Can an order be made for substantial and significant time where the presumption of equal shared parental responsibility has been rebutted?

This issue was addressed in detail by the Full Court in Damiani & Damiani [2009] FamCACF 215.
The Full Court determined that substantial and significant time can be considered by the court where the presumption does not apply or, as in this case, is rebutted at [140]:-
“If the presumption of equal shared parental responsibility (s 61DA) does not apply either because it is inapplicable (s 61DA(2)), as in this case, or is rebutted (s 61DA(4)) and an order is not made that the parents are to have equal shared parental responsibility then it is not necessary to consider pursuant to s 65DAA of the Act orders for equal time, or substantial and significant time. However in dealing with the matter on ordinary principles, having regard to ss 60CA, 60CC and 60B a parenting order would ordinarily deal with the person or persons with whom a child is to live (s 64B(2)(a)) and the time a child is to spend with another person or other persons (s 64B(2)(b)). Thus although the presumption of equal shared parental responsibility does not apply a parenting order may yet provide that a child is to spend equal or substantial and significant time with each parent.”
The Full Court then considered whether there existed any decisions in support of this conclusion at [146]:-
"The decision in Goode & Goode [2006] FLC 93-286 is of some assistance in the determination of this ground. In paragraphs 42 to 48 inclusive, the Full Court considered “What is the significance of the specific references to parental responsibility and interim proceedings in the Act?”. We do not repeat all of the paragraphs under that heading however we note the following:
46.However, this is not the only way in which the Court could consider equal time. Even if the presumption is rebutted or is not to apply in the interests of the child, if one or both of the parties is seeking such an order, the Court would normally consider, in the making of an order, what each party was seeking when considering the child's best interests in accordance with the objects in s 60B and the primary and additional considerations in s 60CC.
47.Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child's best interests. Subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced, if it was in the Court's view ultimately in the child's best interests for such an order to be made (U v U (2002) 211 CLR 238; (2002) FLC 93-112 and KB & TC (2005) FLC 93-224).
I must now consider whether it would be in the best interest of the children for the applicant to have equal or substantial and significant time with the children.
I will now address the considerations as set out in section 60CC.

Primary considerations

The benefit of the children having a meaningful relationship with both of the children’s parents

Both the applicant and the respondent agree and acknowledge that the children are loved and cared for by both parents and have a meaningful relationship with both parents, the children referring to the applicant as “Mum” and to the respondent as “Mor”.
Ms L gave evidence that this is a matter where the children are equally attached to both mothers, and where both mothers are equally loved.
I therefore find that the children have a meaningful relationship with both parents, and that any order allowing time to be spent by the applicant with the children will not impact upon the strong bond the children have with their parents.

Need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There are two issues raised by the parties which must be explored in the context of this primary consideration.
Firstly the respondent submits that there have been a number of occasions where the applicant has been physically abusive with the children such as rough handling, and verbally abusive such as yelling at the children inappropriately.
The respondent describes the applicant as aggressive and with little patience and as a consequence the applicant is easily triggered and becomes angry.
The applicant generally denies these allegations.
There is however an independent witness, Ms E, who observed, whilst walking her dog in May 2009, an altercation between the applicant and the respondent which took place outside of the respondent’s home.
Ms E observed the applicant yelling at both the children and the respondent regarding taking the children to dance class.
Ms E described how both children were crying.
Ms E observed the applicant grabbing [X]’s arm and roughly pulling the child towards her.
Police were subsequently called, although no further action was taken.
Ms E was concise and consistent in the delivery of evidence during cross-examination.
I therefore find, on the balance of probabilities that the incident occurred.
However it must be noted, that this incident occurred at a time when separation was occurring, a time which was emotive and hostile in an already volatile relationship.
I must now consider what is the risk of harm, if any, to the children, when the children are in the applicant’s care.
From observations of the applicant in the witness box, it is clear that the applicant is demonstratively highly emotive, sometimes displaying unchecked emotions which then lead to inappropriate outbursts quickly followed by apology.
Similar observations were made by Ms L who describes the applicant at [17] of the October 2009 family report as having an:-
“expressive, overt and direct manner with a tendency to freely voice her feelings and thoughts”.
The respondents concern as to any potential harm to the children whilst in the applicants care is reflected in the orders being sought by the respondent.
Whilst no concern is raised as to the applicant spending overnight time, the respondent submits that it is the children’s best interests for any block times such as holidays not exceed three days.
The respondent states that the applicant will not be able to cope with the children if a three day or more period is ordered, and that such a spend time with order may cause the applicant to lose her temper with the children resulting in yelling and other inappropriate behaviour.
Despite this concern however the respondent agreed for the applicant to have extended time of six days with the children to enable the applicant to take them to see their godmothers’ mother in Victoria.
Whilst there were issues with changeover, there were no issues raised by the respondent in respect to the applicant’s care of the children over the extended period of time.
It is disheartening that the applicant allows her emotional state to topple over into her approach with the children in times of stress and conflict, and one would hope that the applicant revisits her parenting style and adopts more constructive child focussed approaches in the future.
However Ms L gave evidence that the children are not afraid of the applicant and further that there are no concerns as to the children’s safety whilst in the care of the applicant.
As to the applicant spending block periods of time with the children, Ms L at [22] of the April 2010 family report states:-
“In relation to school holidays, [X] and [Y] might be ready to contemplate spending blocks of time leading up to a week with each parent before moving to longer periods for the summer vacation”.
I find that the children are not at risk of physical or psychological harm whilst in the care of the applicant, and therefore I give no weight to the submissions of the respondent that the applicant should be restricted to periods of time of three days or less with the children.
Secondly it is submitted by the applicant that the respondent’s partner Ms B has physically disciplined the children by hitting them.
The applicant’s only knowledge of this incident is as a result of brief once off comments made by the children to the applicant.
The respondent denies the allegation, stating that the respondent is the only adult who disciplines [X] and [Y] within the household.
Ms B also denies the allegation, admitting that at times she has needed to physically discipline her own children, but that she would never hit [X] or [Y].
By way of explanation, Ms B thought that perhaps the children had witnessed her physically disciplining one of her children.
On the balance of probabilities, I accept the evidence of the respondent and her partner.
I therefore find that the children are not at risk of harm whilst in the care of the respondent.

Additional considerations

Children’s Views

[Y] at the age of 5½ years has not expressed any views.
[X] however at the age of 7½ years has been consistently vocal in her views as to what should be the future living arrangements for both herself and [Y].
In the October 2009 family report [X] states at [9]:-
“if only Mum had three days and Mor had three days…I think [Y] would like that as well”
In the April 2010 family report [X] states at [14] :-
“it would be good if we could have a week with mum and a week with Mor”
Just prior to the hearing the applicant gave evidence that [X] asked her to go for the “maximum” time.
The leading authority on children’s wishes, (now referred to as views) is the Full Court decision of R and R : Childrens’ Wishes [2000] Fam CA 43 where after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286 the Full Court states at [44]:-
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.”

As to the weight to be given to such wishes the Full Court states at [54]:-
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”
The applicant submits that [X] has always wanted week about because she wants her and her sister to spend time equal time with both parents.
The respondent submits that little weight should be given to the views of [X] as the main purpose for expressing these views is to try and keep the peace between the parents.
The respondent relies on [X]’s comments captured at [14] of the April 2010 report whereby after telling the report writer about week about [X] said:-
“so one doesn’t get more time than the other- I don’t want things to get worse….they’re mean to each other – I don’t want them to get meaner to each other – they fight about how many days they have with us – fifty/fifty will stop them fighting”.
Ms L, despite long and somewhat unrelenting cross-examination on this issue, maintains that [X] has expressed a view which together reflects her wishes for the long term arrangements for herself and her sister as well as offering an arrangement which in her eyes is a way to resolve the ongoing issues between the parents.
Ms L describes [X] as a thoughtful observant and articulate child who is well-adjusted for her age.
The parties themselves describe [X] as a child who wants to please, saying things that she thinks might make the other person happy.
I find that [X] has expressed her views freely and has not been influenced by either parent.
However the circumstances of the situation, with the high level of conflict between the parents, has required, unfortunately for [X], to take on an almost adult, if not parental role herself in trying to make things better and make things work.
I find that her reasons for expressing the view are multi faceted and cannot be restricted to any particular aspect.
As to the weight I give these views, I acknowledge and accept that the children have an equally strong bond with both parents.
The reality for these little girls is that they have two mothers that love and nurture them with each mother bringing something completely different to the relationship and in return these children love their both mothers, and want to see them both as much as they can.
But this is only one factor I must consider in deciding the arrangements, but it is a strong factor to which I must give weight in support of the applicant having substantial time with the children.

Nature of the relationship of the children with each of the parents and other persons

Ms L in the preparation of the family reports had the opportunity to observe the children with the parents on two occasions.
It was observed by Ms L that the parents have very different parenting styles.
The parties themselves acknowledged their different parenting styles during cross-examination.
Ms L describes the applicant as having a robust, albeit warm, direct and lively manner and observed that the children responded to this with enthusiasm. Ms L observed that there was an easy and relaxed flow of communication between the children and the applicant and their activities were focused and constructive.
Ms L describes the respondent as having a calm practical and nurturing manner with the children and that the children delighted in her company. Ms L observed that the children related to respondent with ease and there was an ongoing flow of communication.
Ms L concludes that the children have a close and loving relationship with both mothers.
[X] articulated this relationship in October 2009 family reports [X] remarks at [9] “I’m close to both” and at [10] [X] stresses to the report writer “both are special to me”.
[Y] in the October 2009 family report at [13] remarks “I said I love you both”.
I accept this evidence and make a finding that the relationship of the children with the parents is healthy and nurturing and provides the children with more than adequate proper parenting to help them achieve their full potential, and further that an order for time with the applicant, whether equal time or substantial and significant time will allow these relationships to continue.
In addition to the parents, the children have a relationship with respondent’s partner Ms B and her four children, two girls aged, 8 and 7 and two boys aged 10 and 6, as both adults and six children are now living under the one roof in the home formerly occupied by the parties and the children.
Ms B is not a stranger to the children, having been a family friend of the parties for some six years.
As with all melded families, there have been some issues for the girls in re-adjusting not only to the separation of their parents but to being in a household with four other children ranging in age from 5 years to 10 years.
Certainly that was foremost in the mind of [X] when she met with the Ms L in March 2010.
[X] openly expressed concerns about having to share things and not having her own space, although as to the relationship itself [X] comments at [13] of the April 2010 family report that Mor and Ms B are “very sweet together”.
The respondent gave evidence that she has taken on board the concerns raised by [X], ensuring that [X] and [Y] share a room together and that there is specific space created for [X]’s keyboard and microphone and that certain personal items of [X]’s are off limits to the other children.
Further evidence was provided as to the routine the children are in, what is expected of them and how the household is run.
Sadly Ms B is being treated for breast cancer and undergoing chemotherapy.
Despite the illness, it is evident that respondent and Ms B have ensured that Ms B’s medical condition has had minimal impact on the household and both have taken steps to ensure that the children are cared and parented for in the combined family unit.
Much was made as to whether it was as calm a household as the respondent made out.
But after listening to the evidence of the respondent and Ms B, I accept that it is as calm and as organised a household as is possible with six children under the age of 10 years
Further I find that [X] and [Y] have established relationships with the other children and have accepted Ms B as an important adult figure in their lives, referring to her openly, and of their own choice as “Mumma”, the term of endearment used towards Ms B by her own children.
Whilst I find that the children have equal attachment to both parties, the children also have a strong relationship with Ms B and her four children.
This is a consideration that has been given considerable weight in determining the ongoing arrangements for the children.
I therefore find that the children’s home is primarily with the respondent and the extended family unit, and as such an order be made for the children to live with the respondent.
Further I find that an equal shared care arrangement for the children would not be in their best interests.
These parties can’t agree on anything when it comes to the children. The level of communication and co-operation needed for an equal share care arrangement to work is non- existent.
However because of their strong bond to both parents, substantial and significant time must be considered for the applicant.

The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the parent.

A large number of voluminous affidavits were filed by both parties.
These affidavits regale numerous incidents which illustrate an almost complete breakdown of communication between the parties and a continuing high level of conflict.
The applicant sees the respondent as controlling, especially in relation to the care of the children and non communicative.
The respondent sees the applicant as violent, impatient, and lacks emotional stability.
Ms L observed both mothers, albeit so different in personality, as both being assertive and that the respondent was more unable to reconcile the differences with the applicant than the applicant can with the respondent.
Prior to separation the parties attended Relationships Australia.
After the first series of interviews for the family report which was released in October 2009, Ms M Aaron and Ms B Aaron agreed to attend an “Assisting Responsible Care for Kids” program referred to as ARCK.
Unfortunately the program has not assisted in improving relations between the parties.
It is obvious that the separation was difficult and messy and the numerous issues between the parties continue to remain unresolved creating conflict and resulting in repeated inappropriate behaviour from both parties.
Unfortunately this behaviour has not gone unnoticed by the children
In the October 2009 family report [X] states at [8]:-
“they should just talk to each other and be nice to each other – not be separated any more…if I had a magic box, I’d do anger tricks for them.”
In the April 2010 family report [X] states at [15]:-
“I feel sad about things a lot.”
Ms L observes that both children are struggling to cope, and that the conflict between their mothers is very stressful for them.
But even addressing that conflict was another basis for a dispute when the respondent arranged for the children to attend counselling but didn’t inform the applicant.
Both parents acknowledged to Ms L the negative impact of their ongoing conflict on the children, and Ms L observed that both parents appear emotionally exhausted by their acrimonious relationship.
But amazingly and despite their totally dysfunctional relationship post separation, Ms L states that the children are an absolute delight, and that is to the credit of both parties.
On a positive note the parties, despite their views of each other acknowledge that they each love and care for the children and should be, in some way, in the children’s lives.
The respondent acknowledges that the children would like to see the applicant more than they do at present.
But the history of this matter both before the court proceedings were brought and since the court proceedings have been commenced demonstrate a reluctance and inability for either party to successfully facilitate and encourage a close and continuing relationship between the children and the other parent, and I am not convinced that this will improve over time.
This necessitates the making of lengthy and comprehensive orders which address specifically three aspects of their co-parenting which have been the subject of extensive conflict.
The first is the location of the changeovers.
A combination of the applicant’s emotive outbursts and the respondent’s quiet stubbornness has proven to be a recipe for disaster whenever the parties see each other.
The affidavits are littered with such examples, most of which unfortunately are played out in front of the children.
Physical contact between the applicant and the respondent must be minimalised.
The best way to address this which has been suggested by both parties is wherever possible changeover should occur at the school.
If not at school then it needs to occur at a public place where hopefully parties will be better behaved.
Changeover at Marymead has not been a success. There has been confusion as to where at Marymead it should occur. There have been disputes as to whether Marymead is suitable.
This is a situation where the involvement of a third party contact centre would not be appropriate as there will always be difficulty as to the hours the centre operates and whether that fits into the changeover routine, and further these parents do not need an audience.
[K] at [F] has been suggested by the respondent as an alternative and it doesn’t appear to be disputed as suitable by the applicant.
I therefore find that [K] [F] is the venue to be used if the school cannot be utilised.
The second area which causes grief is the frequency of changeovers not only because of the difficulties in respect to the parties’ interaction with each other but also the concern as to the disruption to the children’s routine.
The interim orders which have been in place since October 2009 provide for the applicant to spend three afternoons a week with the children as well as weekly overnight time.
The proposed orders by the applicant involve three periods of time per fortnight which requires a total of six changeovers.
The proposed orders by the respondent provide for one period of time per fortnight, which requires a total of two changeovers.
I find that changeovers do need to be minimised, although the conflict issue has been significantly addressed in the orders by the places where the changeover is to occur.
The orders provide in a fortnightly cycle for the applicant to spend time with the children every second weekend from after Friday to before school Monday and in the second week from after school Tuesday to before school Friday. This provides for four changeovers, all of which are to take place at the school.
The third area which has been the subject of much dispute is in respect to the decisions for the children.
As to long term decisions, an order has been made for the respondent to have the sole parental responsibility for the children, as per the reasons set out earlier in this judgment.
As to the day to day decisions, an order has been made whereby the party who has the children in their care will be responsible for making the day to day decisions for the children. This will reduce the squabbling between the parties over the day to day care for the children.

The likely effect of any changes in the children’s circumstances, including separation from either parent or other person.

The children are equally bonded to both parents.
The children have for over the past year been in a shared care arrangement albeit not equal shared care and despite the ongoing disputes between the parties, there is nothing before me to support that the children do not transition well between the households.
I find that the orders will not have any impact on the children’s relationship with the other parent, or with the respondent’s extended family unit.

The practical difficulty and expense of the children spending time with or communication with a parent

Issues were not raised by either party in respect to this consideration and therefore I have not taken it into account.

The capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs

Whilst concerns have been raised by the respondent as to the applicant’s ability to care for the children on an extended basis, this is not supported by the evidence.
Ms L in the October 2009 family report at [17] makes the following observation:-
“Both mothers impress as assertive in their own way. Both impress as caring and loving parents in their own way. Both exhibit positive parenting attributes and an understanding as to the children’s needs. It would appear that, albeit different in their parenting approaches, each parent is responsive to the needs of the girls. This is reflected in [X] and [Y]’s obvious attachment to both mothers.”
This observation was reiterated in the April 2010 family report at [17]:-
“The children were, again, observed to have a close and secure attachment to both mothers. As before, both adults, in their own way, were observed to be thoughtful and caring parents.”
I find that each party has the capacity to meet the children’s needs and that the orders will allow this capacity to continue.

Maturity, sex, lifestyle and background of the children

The children have a clear understanding that they are each others sisters and they acknowledge and love their two mothers.
The respondent has re-partnered, and added to the equation is another mother type figure and four step siblings.
As time goes by, there may be a need to explain the family dynamics.
I am confident however that if and when that time comes, the parties despite their animosity for each other will handle the matter appropriately and effectively, and will place the children’ needs above their own.

The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents

The parties in their written evidence and in cross-examination each minimised their negative behaviour whilst maximising the bad behaviour of the other party.
But, whether the parties acknowledge it or not, both have conducted themselves appallingly in their dealings with each other since separation, often failing to take steps to shield the children from exposure to their immature behaviour.
An improvement in their behaviour towards each other would be highly beneficial to everyone, but it will take a concerted effort from both parties, and indications of that occurring are not high.
However when it comes to the children, it is clear that they each love and cherish the girls, and take their role as mothers very seriously.
I find that each parent has a positive attitude towards their children and to the responsibilities of parenthood, and that this will enable the parties to work with the orders made to provide a beneficial ongoing arrangement for the children.

Family violence involving the children

I accept that there was inappropriate rough handling of the child [X] at the incident witnessed by Ms E.
I accept too, having observed the applicant in the witness box, and taking into account the observations of the report writer, that the applicant is highly emotive which may lead to overreaction and dramatic behaviour.
I do not accept however that the applicant has been the perpetrator of family violence towards either child.
I therefore give this consideration no weight.

Family violence order

I am not required to give weight to this consideration as a final family violence order was never made.

Whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings

Because of the high conflict and low communication the orders made are comprehensive.
The parties need to find a way to work with these orders and to communicate with each other in an effective way about children’s issues.
If that fails, then the parties are required to attend counselling or mediation before commencing any further court proceedings.
Hopefully this will assist the parties in reaching agreement without the necessity of another stressful court process.

Other facts or circumstances

Children being taken interstate without prior knowledge

The applicant raised concern as to the respondent taking the children interstate without her knowledge.
It would appear that this has arisen out of an unfortunate incident where the respondent took the children to a water park in New South Wales without telling the applicant which resulted in the applicant not seeing one of the children for their birthday.
Included in the court orders is an order whereby the parties must notify each other in the event that the children are taken either interstate or overseas.

Use of communication book

As to a communication book, this was tried and failed. Further there was an expectation on the children to pass the book to the other party.
I do not want to set the parties up for further failure. Further the involvement of the children in the adult issues must be brought to a stop.
I have therefore not made an order as to the use of a communication book.
If the parties cannot bring themselves to communicate verbally over the telephone then they can utilise texting and emails as they have done in the past.

Parties to be referred to as Mum and Mor and not by their first name

The applicant is seeking an order that neither parent refer to each other in the presence of the children by their first name.

As indicated earlier, the children refer to the applicant as “Mum” and to the respondent as “Mor”.
Ms B is referred to as “Mumma”.
The concerns that the respondent refers to “Mum” as “[first name omitted]” to the children is contained in the October 2009 family report at [11]:-
“[X] occasionally refers to Ms B Aaron as “[first name omitted]” which suggests that her perception of this adult as a mother figure might be in the process of being diluted to some extent. It was noted that Ms M Aaron refers to Ms B Aaron as “[first name omitted] to the children. [X] informs “normally we call her “Mum” – other people call her “[first name omitted]” – I don’t like calling her “[first name omitted]” – she was my Mum.”
In order to avoid any further dilution, I have included the order sought by the applicant.

The applicant’s mental health

It is alleged that the applicant is emotionally unstable.
The applicant in cross-examination admitted to having suffered from anxiety in the past, and in 2009 after the separation sought medical help as she was not sleeping and was sad.
The applicant denied that she is suffering from any mental health issues, or from any anger issues, and submitted that she has never had any problems dealing with the children.
I accept as there was no evidence to the contrary that the applicant does not suffer from any mental health issues.
I do accept however that the applicant does at times suffer from anger and frustration and that this at times has resulted in inappropriate behaviour.
However the incidents outlined by the respondent clearly show that the anger and frustration is directed by the applicant to the respondent and that unfortunately as a bi product it impacts on the children.
This has been addressed in the orders by minimising the contact between the parties at changeovers.

Conclusion

This is a matter, where after sifting through the numerous allegations, what are left are two compassionate and caring parents who love their children dearly and have managed, despite their own post separation dysfunctional relationship, to raise two beautiful well adjusted children.
The parties’ relationship is extremely damaged and the parties have continued to demonstrate a low level of communication and a high level of conflict.
Unfortunately, despite the use of mediators and counsellors, it is unlikely that the situation will improve.
This together with their complete lack of trust for each other is such that it is not in the best interests of the children for the parties to be able to co-parent and make the necessary decisions for the long term benefit of the children.
Although both parties are capable of making the decisions the respondent has consistently demonstrated a child focussed approach and it is for this reason I have made an order for the respondent to have sole parental responsibility for the children.
The children are now part of an extended family unit in the house they have always known as their home, and for the past fifteen months have lived with the respondent and spent time with the applicant.
The orders now provide for substantial and significant time for the applicant to spend time with the children.
It is not in the best interests of the children to order equal time with both parents.
Because of the parties’ acrimonious relationship, it is impossible for these parties to co-operate on any level.
The orders are comprehensive, leaving little to be disputed between the parties.
Hopefully the parents can now focus on improving their relationship, which would be of great benefit to the children, releasing everyone from the burden this long winded and continual conflict has placed upon them.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and fifty-one (351) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 7 February 2011