Agar and Agar

[2017] FamCA 476

FAMILY COURT OF AUSTRALIA

AGAR & AGAR [2017] FamCA 476

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – SPEND TIME WITH – Where the subject of the orders are two children aged 12 and 10 – Where the eldest child has a poor relationship with the father – Where the father has a close relationship with the youngest child – Orders made for the mother to have sole parental responsibility for the eldest child, and for the parents to have shared parental responsibility with respect to the youngest child – Consideration of s 60CC factors – Where orders are made for the father’s time with the youngest child to increase during school terms and school holidays – Where the eldest child is to spend time with the father only in accordance with the child’s wishes – Where the youngest child spending more time with the father is not likely to impinge on the child’s relationship with his older sibling.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Agar

RESPONDENT: Ms Agar

FILE NUMBER: SYC 682 of 2015

DATE DELIVERED: 7 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

THE RESPONDENT: Ms Sproston

SOLICITOR FOR THE RESPONDENT: Sharon Moss Legal

Orders

IT IS ORDERED

1. That the mother have sole parental responsibility for the child B born … 2004.

2. That the mother shall, in the exercise of such parental responsibility, promptly inform the father in writing of any decision concerning a major long-term issue relating to B that she makes, together with all reasonable particulars of each decision.

3. That B shall live with the mother and spend time with the father in accordance with his wishes.

4. That the mother be restrained from changing B’s school or moving his place of residence away from the C Region of Sydney without the consent of the father.

5. That the mother and the father have equal shared parental responsibility for the child D born … 2007.

6. That D shall spend time with the Father as follows:

   i)During the school term each alternate weekend from after school on Friday until 7.00 pm on Sunday (with such time to be suspended during the school holiday periods);

   ii)During the school term each Tuesday from after school until 7.00 pm (with such time to be suspended during the school holiday periods);

   iii)Commencing with the holidays at the end of Term 3 in 2017, in the Terms 1, 2 and 3 school holiday periods for one period of no more than one (1) week as agreed (and failing agreement from the conclusion of school at the commencement of the school holiday until 7.00 pm one week later) upon the father giving the mother written notice of his intention to have D for the holiday period no less than four (4) weeks before the school holiday period commences;

   iv)In the 2017 Christmas school holiday period:

   a.   unless otherwise agreed, from 10.00 am on Saturday 16 December 2017 until noon on Christmas Day; and

   b.   for one period of no more than one (1) week as agreed (and failing agreement from 10.00 am on the first Monday in January until 7.00 pm the following Monday) upon the father giving the mother written notice of his intention to have D for the holiday period no less than four (4) weeks before the school holiday period commences;

   v)From the Christmas school holidays commencing in December 2018 and following, for half of the Christmas holiday period (and in the absence of agreement for the first half in even numbered years and the second half in odd numbered years);

   vi)From 2018, if D spends the first half of the Christmas holidays with the father, he shall spend time with the mother from 5.00 pm on Christmas Eve until noon on Christmas Day. If D spends the first half of the Christmas holidays with the mother, he shall spend time with the father from 5.00 pm on Christmas Eve until noon on Christmas Day.

   vii)On D’s birthday, unless otherwise agreed, he shall spend time with the parent with whom he is not then living from 2.00 pm, or after school, until 7.00 pm.

   (vii)Notwithstanding any other order, D shall spend the weekend including Fathers’ Day with the father and the weekend including Mothers’ Day with the mother.

   (viii)Such other times as agreed between the mother and father.

7. That in relation to D, both parties shall be entitled to attend all events involving D including:

   i)Sporting fixtures;

   ii)Extra-curricular activities which allow for parental attendance; and

   iii)School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

8. That in the event changeover is not to occur at D’s school at the commencement of the father’s time, then the father shall collect D from the mother’s residence and the mother shall collect D from the father’s residence at the conclusion of his time.

9. hat the mother shall do all acts and things and give all consents and directions to any school(s) the children B and D attend so that the father can obtain from that school all relevant information regarding the children’s school attendance, progress and behaviour and to enable him to receive copies of the children’s school reports, school photographs and any school newsletters and correspondence, if he so wishes.

10. That the mother shall ensure the father is kept informed of any medical problems or illnesses suffered by the children, any medication prescribed for the children and any other matters relevant to the children’s welfare.

11. That in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as possible after the first contact with the hospital.

12. That either party is permitted to travel overseas with the children (save that whether B travels overseas with the father is to be in accordance with his wishes) provided that:

    a)   The travelling parent provides at least four (4) weeks’ notice to the other parent of the intended overseas travel;

    b)     The travelling parent provides to the other parent an itinerary for the travel two (2) weeks prior to the departure with:

    i.Flight details including flight numbers and departure and arrival details; and

    ii.Accommodation details, including addresses and telephone contact details.

13. That the mother shall hold the children’s passports but in the event the father wishes to travel overseas with D (and/or B in accordance with his wishes) the mother shall provide the passport(s) to the father not less than fourteen (14) days prior to the departure date and the father shall return the passport(s) to the mother within fourteen (14) days of return from the overseas travel.

14. That the mother and father shall do all acts and things necessary to obtain and renew the passports for the children as and when the passports expire including signing any necessary documents at the mother and father’s joint expense.

15. That the mother and father shall each have reasonable telephone communication with D when he is in the care of the other parent.

16. That the mother and father shall keep the other informed of their contact telephone numbers and address and shall notify the other parent of any change to those details at least forty-eight (48) hours prior to such changes or as soon as practicable immediately thereafter.

17. That for the purposes of communicating information the mother and father shall communicate by telephone for matters of an urgent nature and otherwise communicate by SMS (text message) about day to day matters including arrangements for the father to spend time with D.

18. That the mother and father shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

19. That pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Agar & Agar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 682 of 2015

Ms Agar

Applicant

And

Mr Agar

Respondent

REASONS FOR JUDGMENT

1. Mr Agar (“the father”) and Ms Agar (“the mother”) are the parents of B, born in 2004, and D born in 2007 (“the children”).

2. The mother and father physically separated on about 4 November 2013 after a period of separation under the same roof. The children have since remained in the primary care of the mother.

3. It is an agreed fact that the child B, who is now aged almost 13 years, is estranged from his father.

4. The father does not ask the Court to make any orders for B to spend time with him but seeks equal shared parental responsibility for B.

5. In relation to the child D, the parents have agreed that they have equal shared parental responsibility for him, and have further agreed to an extensive suite of orders including weekend time. However, there remains disagreement with respect to how much time D should spend with his father during the school term and school holidays.

6. The mother and father are unable to agree on the following matters:

   ·    Parental responsibility for B;

   ·    Whether D should spend each Tuesday afternoon with his father as the father proposes, or each alternate Tuesday afternoon as the mother proposes;

   ·    How the school holidays should be divided. The father asks for half of all school holidays. The mother proposes that he have one week in each holiday, including the Christmas holidays;

   ·    How Christmas Day should be organised. The father proposed that D should spend Christmas Day with the parent with whom he was living at the time, according to the holiday arrangements. The mother proposed that D always spend time with the father from 5.00 pm on Christmas Eve until noon on Christmas Day;

   ·    Changeover. The father proposed that he collect D from the mother at the commencement of his time and the mother collect D from the father at the end of the time. The mother proposed that the father do all of the travelling.

7. The Court was assisted by two reports from a Family Consultant, the first prepared in 2015 and the second in 2017.

THE EVIDENCE OF THE FAMILY CONSULTANT

1. The Family Consultant interviewed the family in September 2015 and prepared a memorandum dated 17 September 2015. At that time she noted that the current parenting arrangement was that D spent time with his father each Tuesday after school and each alternate Sunday from 8:00 am to 6:00 pm. At that time, B had not spent time with his father for two years since shortly after separation.

2. The Family Consultant interviewed each of the boys. She noted that B spoke about topics and incidents relating to his father in a similar tone and language to the mother. B told the Family Consultant that when D goes to spend time with his father on Sundays he does not know what to do with himself and “sits all day” with nothing to do. B said that he and D have a close relationship. The Family Consultant reported:

   [B] said that he often feels as if he is in the middle of his parents’ dispute and “is now completely involved in it”. He appeared to be very aware of the issues between his parents and stated that his father had done “a very bad thing” on Tuesday night (two evenings prior to these meetings) by telling [D] to ask for “50:50” time. [B] believes that his father did this to make him [B] spend time with him.

3. The Family Consultant recorded:

   [B] said that, prior to the separation, things were “fine” at home, that his father never swore at him but was always “nice” to him, that he took him [B] everywhere and they did a lot of fun things together. [B] said that, when he was nine years old, he realised that things were bad between his parents. He said that he can remember his parents saying “rude words to each other” and that his father was inappropriately swearing at his mother. [B] also described the incident he witnessed when his parents were fighting over the keys and he said that his father pushed his mother and she fell onto the ground and hurt her hand on the keys.

   [B] said that his father is “fine with [D]” but is “irresponsible and rude” towards him and [the mother]. He said that [D] wants to spend more time with their father and often asks their mother about this. [B] said that he does not believe that his father cares about him and that he only does things for [D]. [B] spoke extensively about this and appeared to feel quite hurt about this situation.

   [B] said that he would like to spend time with his father if it were initially supervised by his mother or maternal grandfather. He believes that his father does not ask to spend time with him. [B] wishes that the separation had never happened. He also wishes that he could trust that things would be fine if he went to his father’s home.

4. The Family Consultant also spoke to D. D told the Family Consultant that he loves cuddles with his mother and with his father. The Family Consultant commented that D did not appear to be as anxious during the assessment as was B. D described enjoyable activities that he does with both his mother and his father. The Family Consultant reported:

   [D] said that he likes going to his father’s home and wants to spend more time with him. He said that his father looks after him “nicely” and added that, before the separation, his father looked after him and [B] and took them to sport. [D] said that he would like to begin with one or two overnights with his father and then increase to three or four. He added that he does not want a week about arrangement because he would miss his mother and brother too much.

5. The Family Consultant noted:

   During informal observations of the children with [the father] in the waiting area, [B] ignored his father in the morning, but when taken past his father to say goodbye, his father put his arm out and [B] went for a hug and hugged his father. [D] was observed to hug his father when he saw him and when saying goodbye.

6. The mother told the Family Consultant that there was ongoing verbal abuse from the father towards her during the relationship. The father told the Family Consultant that there were arguments between him and the mother where both of them were verbally abusive and would swear at each other, primarily towards the end of their relationship. Both parents told the Family Consultant that the children had witnessed some of the arguments and abuse between them. Both parents told the Family Consultant that there had been no incidents of concern between them after the separation.

7. The Family Consultant described two incidents of alleged physical abuse by the father directed towards the mother. The mother alleged that in 2011 the father threw his wedding ring at her and later, she alleged, tried to remove her wedding rings leading to a tussle between them over the rings. The mother alleged that, the next day, the father cornered her in the dining room and punched the wall next to her face twice. She told the Family Consultant that when the children heard the noise they entered the room.

8. The mother alleged that in October 2013, after the father changed the locks to an area under the house, they fought over the bag of keys. The Family Consultant noted that there are opposing narratives regarding this incident but both agreed the children were present. The mother alleged that the father threw her to the floor during the incident and the father alleged that the mother deliberately dropped to the floor. The police were called leading to an interim Apprehended Violence Order (“AVO”) being taken out against the father. The AVO was later withdrawn.

9. In relation to the relationship between the parents, the Family Consultant commented that there is a poor co-parenting relationship with minimal communication. However, she said the parents seem to be able to communicate face-to-face, by telephone or by text message and to make or change arrangements for the children. The Family Consultant reported “[The father] believes that [the mother] has always made the decisions regarding the boys and that he is provided with little information about them. [The mother] said that [the father] was never involved in events, such as parent teacher interviews for the children.”

10. The Family Consultant commented “[The mother] alleged that [the father] treats [D] and [B] differently and favours [D] and is angry at [B]. She emphasised that the boys are very close and she does not believe that they should be separated. [The mother] said that [B] finds it difficult when [D] spends time with his father.”

11. Both parents have told the Family Consultant that they would consider attending family therapy. The father told the Family Consultant that he had been very upset by B’s refusal to spend time with him. The father agreed to a proposal for the maternal grandfather to be present if B wanted to spend time with him at a park or a café as had been suggested by B.

12. The Family Consultant commented:

    If the relationship, which reportedly by both boys, was positive prior to separation, cannot be repaired, [B] is at risk of being placed in a situation of emotional and psychological risk as he matures.

    It is possible that [the mother’s] strong feelings about the alleged family violence are contributing to [B’s] anxieties about spending time with his father.

    The family may benefit from receiving family therapy to assist them with these issues. However, it is not certain that the parents would pursue this.

    Reportedly, the relationship between [the father] and both boys was warm prior to separation. It appears that [D] is comfortable spending time with his father and is not at risk when with him. He wants to spend more time with him and this is likely to be beneficial to him.

13. B told the Family Consultant that he would spend time with his father if his maternal grandfather was present and if the time was for short periods, for example in a park or a café. The Family Consultant commented:

    Although close siblings, the children are at different stages in this matter. [D] could benefit from beginning to spend overnight time with his father and [B] could benefit from beginning a process of feeling safer with his father by regular short periods of time, possibly with his maternal grandfather present. It is imperative that the disruption between [B] and his father be resolved. Interim Orders specifying the time that [B] and [D] might spend with their father could assist this situation.  

14. The Family Consultant saw the family again in April 2017 and prepared a report dated 26 May 2017. She reported that the maternal grandfather had supervised the father’s time with B for eight one hour sessions which ceased in February 2016 when B stopped spending time with his father.

15. The Family Consultant reported that from October 2015 D had begun spending time with his father from 5.00 pm on Saturday until 6.00 pm on Sunday each alternate weekend and each Tuesday from 3.00 pm until 6.00 pm. In addition, the father attended D’s sporting activities. At that time, B was not spending any time with his father and had not done so since February 2016.

1. In the course of the interviews the father told the Family Consultant that, although this was not what he wanted, he was not seeking orders for B to spend time with him since it was clear to him that B did not wish to do so. The father told the Family Consultant that B had seen two different counsellors in 2016 but the counselling was discontinued when it was made clear that B did not want to spend time with his father. The Family Consultant recorded:

   He [the father] expressed the belief that the fight between him and [the mother] and the Court process has impacted negatively on [B] and that his ([B’s]) negative feelings towards him have become more entrenched over time. [The father] believes that he cannot change [B’s] views and feelings at this time. He said that he buys [B] presents for special occasions and that [B] accepts these but does not speak with him at other times.

2. The father told the Family Consultant that he has attempted to negotiate with the mother to spend more time with D but that she had not responded. It was the father’s belief that during their life together and after separation it was the mother who determined the direction of the family.

3. The Family Consultant reported that the mother appeared to be fixed in her views about the father and the time that he should spend with the children.

4. The Family Consultant spoke with B who was then aged 12 years and

   
   

   eight months. She reported that B told her that he blames his father for bringing the family to court. The Family Consultant reported “During the family report assessment, B’s comments about his father were wholly negative and they appeared to be similar in tone and expression to those of the mother. B appears to have totally rejected his father and said that he cannot remember any happy time with him.”

5. In contrast, the Family Consultant noted that during the interviews in 2015 B remembered many very positive aspects of his relationship with his father and described the times they spent together warmly.

6. D, then aged 10 years and two months, told the Family Consultant that he misses his mother, his father and his brother when he is not with them. D said that he likes spending time with his father and he would like to go to the park and ride his bike with his father more. She reported, “D initially said that he would like the time that he spends with his father and mother to stay the same and then added that he would also like a ‘bit more time’ with his father. At the end of the assessment, D repeated that he would like ‘a bit more time’ with his father.”

7. D told the Family Consultant that he didn’t know why B was spending no time with his father but that this was B’s choice. D told the Family Consultant that he wished his parents would stop fighting. The Family Consultant observed both of the boys with the father and commented:

   Observations of [D] and [B] with [the father] were notable for the difference in response of each boy towards [the father]. [D] was enthusiastic on seeing his father and gave him a big hug and kiss while [B] was reticent and initially unresponsive to [the father]. Throughout the observations, [D] appeared to be watching his brother’s reactions, but this did not appear to reduce the warmth of his own response to his father. [B] was cooperative with the family consultant to join the observation, but he did not participate in any activity. Despite his reticence, [B] appeared at times to want to respond to his father and, as the observation progressed, he did respond, albeit minimally, to [the father’s] attempts to draw him out in discussion about sport and his activities.

8. The Family Consultant noted:

   [D], on the other hand, engaged fully with [the father] in the games they played together and they appeared to have a warm, affectionate, “chatty” and relaxed relationship. [The father], who appeared to be somewhat uncomfortable with [B’s] lack of response, made several invitations to [B] to join in the game and continued to attempt to engage him in conversation by asking him questions about sport. During the observation, [the father’s] efforts to engage with [B] appeared genuine and interested and [B] appeared to begin to respond, albeit minimally, to his father as the observation progressed.

9. The Family Consultant noted “At the end of the observation, when [the father] said goodbye to [B], he replied to his father, albeit minimally. [D] said an affectionate goodbye to [the father].”

10. The Family Consultant commented that despite the limited time D currently spent with his father, he appeared to have a warm, affectionate and relaxed relationship with him.

11. In relation to the varying proposals for Tuesday evening, the Family Consultant commented that maintaining each Tuesday would be important for consistency for D. D stated that he enjoys his time with his father and that he wants extra time with him. The Family Consultant believed that D would benefit from spending more time with his father. She opined that the sibling relationship between B and D was strong and was likely to be sustained even if D were to spend more time with his father. She specifically stated “It is considered unlikely that their sibling relationship would be impacted negatively should D spend additional time with his father.”

12. The Family Consultant stated:

    It would be concerning if [B’s] and [the mother’s] strong negative views about [the father] were to impact negatively on [D’s] relationship with his father as he matures. During the assessment, [B] appeared to express the opinion that, as [D] matures, he will come to a different view of their father, as he ([B]) has done. Indeed, it may become more difficult for [D] to retain his positive view of his father as he holds the minority view in his family. [A] significant risk remains that [D’s] relationship with [the father] will follow the course of his brothers. This may be a significant factor that supports [the father’s] proposal for slightly more time with [D].

13. In relation to school holiday time, the Family Consultant was of the view that D had reached an age where he would be able to tolerate periods of time up to one week away from his mother and that he might also benefit from spending more enjoyable time with his father during the school holidays. The Family Consultant commented that shared school holidays would enable the father to take D away on short trips. In relation to the mother’s concern that B and D would be separated during school holidays, the Family Consultant commented that it might be of assistance if holiday time were to be slowly graduated, commencing with D spending shorter blocks during the school holidays with the father.

14. In relation to B’s relationship with the father the Family Consultant reported, “The family consultant considers that B’s negative feelings about [the father] are influenced by [the mother]. It is of serious concern that the extent of B’s rejection of his father appears to be out of proportion to this alleged incident.” The Family Consultant was here referring to an incident that was said to have occurred in 2012. The Family Consultant noted that this incident, which was reported by B at the interviews in 2015, had not in fact been recalled by B until his mother had reportedly shown him her notes on her iPad.

15. The Family Consultant also expressed concern that although B reported positive memories of his father in 2015, he did not in 2017 recall those instances and he appears to have developed a fixed negative view of his father.

16. The Family Consultant recommended that D should spend time with his father each alternate weekend from after school on Friday until 7.00 pm on Sunday and each Tuesday from after school until 7.00 pm, and that school holidays should be equally shared.

17. In cross-examination, the Family Consultant did not resile from her recommendations.

PARENTAL RESPONSIBILITY FOR B

1. The father complains that the mother makes decisions relating to B’s schooling without consulting him and that he is provided with no information about B’s progress. His complaints are partly addressed by the mother’s proposed order to the effect that she authorise the school to provide to the father all information about both children which is usually provided to parents.

2. In cross-examination, the father said that his main concern was that the mother would receive a promotion in her job and move away with the children and that he would not be able to prevent that happening.

3. The Family Consultant commented that, although it would be of benefit for B if his parents shared parental responsibility for him, this does not seem to be practicable having regard to B’s disrupted relationship with his father. I accept that evidence.

4. In submissions, counsel for the mother agreed that an order could be made restraining the mother from moving B away from the C Region area of Sydney or changing his school without the consent of the father.

5. The only practical solution is for the mother to have sole parental responsibility for B but she should be required to provide information regularly to the father and she should be restrained from changing B’s suburb of residence and his school without the consent of the father.

D’S TIME WITH THE FATHER ON TUESDAYS

1. The Family Consultant has recommended that it is important for D to have the continuity of spending each Tuesday with his father.

2. The mother’s opposition is based on her wish for D and B to spend time together. In her parenting questionnaire, the mother stated “[D] is best friends with neighbours (sic) son who he has known most of his life. They spend most weekends between each home.” It would seem that the mother is content for D to spend time away from B with D’s own friends but not with his father.

3. The boys are at different ages and stages of development. Presumably, B also has friends and activities with whom he engages on his own and without D. That, too, is appropriate.

4. Travel is not an issue as the parents live in close proximity.

5. The father deposed that he and D go rock climbing on Tuesday afternoons, an activity that D enjoys.

6. In the course of the interviews for the family report, the mother said that if D’s weekend time was to be increased by one night, so as to commence on Friday after school instead of Saturday morning, then D should spend time with the father on alternate Tuesdays rather than every Tuesday.

7. It is difficult to view the mother’s opposition to the Tuesday afternoon time with the father as anything but an attempt to limit D’s time with him. She did not suggest that D does not enjoy the time he spends with his father.

8. I accept the evidence of the Family Consultant that D’s relationship with B will not be put at risk by his spending more time with his father. To the contrary, it is possible that D’s relationship with his father will be put at risk by his spending less time with him.

9. D will spend each Tuesday evening with his father.

SCHOOL HOLIDAYS

1. The father’s original proposal was for the holidays to be equally divided. He accepted the recommendation of the Family Consultant that, initially, a four day on/four day off regime could be beneficial.

2. The mother proposed that D spend one week of his holidays at the end of Terms 1, 2 and 3 (“the short holidays”) with the father (which she submitted would amount to almost half of the short holidays), and one week during the long Christmas holidays.

3. At the present time, the boys are cared for by their maternal grandparents during school holidays.

4. I accept the submission on behalf of the mother that a four day on/four day off split during holidays would involve too many changeovers and that, in the short holidays, the time should be equally split, approximately one week with each parent.

5. I also accept the recommendation of the Family Consultant that the Christmas holidays should be equally divided.

6. D will be eleven years old in January 2018. For the school holidays at the end of Term 4 in 2017, D should spend two periods each of one week with the father. If the parents cannot agree, the weeks should be the first week of the holidays and a week from 10.00 am on the first Monday in January until 7.00 pm the following Monday. That proposal will allow the mother to holiday with the boys for three weeks as she has done in the past.

7. The first day of the Christmas holiday in 2017 is Saturday 16 December 2017. To avoid multiple changeovers, if D is to spend the first week with his father, the week should commence at 10.00 am on 16 December 2017 and be extended until noon on Christmas Day.

8. In the school holidays at the end of Term 4 in 2018 and thereafter, D should spend half of the holiday with his father and in the absence of agreement, that should be the first half in even numbered years and the second half in odd numbered years.

9. Both parents agree that D should spend time with each parent on his birthday which falls in the school holidays. In the absence of agreement, D should spend time with the non-resident parent on his birthday from 2.00 pm until 7.00 pm.

CHRISTMAS DAY

1. There does not seem to be any real disagreement that D should see both his parents on Christmas Day.

2. The orders will provide that, from Christmas 2018 and following, if he is with his father for the first half of the holidays, he will spend time with his mother from 5.00 pm on Christmas Eve until noon on Christmas Day. If he is with his mother for the first half of the holidays, he will spend time with his father from 5.00 pm on Christmas Eve until noon on Christmas Day.

CHANGEOVERS

1. The proposal of the mother is that, where changeovers do not take place at school, the father should do all the travelling. On her behalf it was submitted that, if she has to collect D from his father, B has to come too. The trip is a ten minute trip, or twenty minutes round trip. I do not accept that B cannot stay at home for that period of time, particularly as the mother and the children currently live with her family. Even if the mother moves to other accommodation, it is not unreasonable for B to be left alone for that time.

2. The father’s reason for wanting the mother to collect D is that, he said, she complains if he is running late. If the mother is responsible for collection, that tension is removed.

3. The Family Consultant said in her oral evidence that participation of both parents in travel arrangements is preferable.

CONCLUSION

1. Insofar as the issues in dispute in relation to D are more than merely machinery provisions, it is necessary to have regard to the matters in section 60CC of the Family Law Act 1975 (Cth).

2. There is no dispute that it is in D’s interest that he has a meaningful relationship with his father. In that regard, I accept the evidence of the Family Consultant that he should spend as much time with his father as is consistent with his welfare.

3. While there have been allegations of family violence, there is no allegation that anything inappropriate has occurred since separation and there is no necessity to protect D from consequent psychological harm.

4. D’s views have been consistently expressed since 2015. He wants to spend more time with his father.

5. D has strong and loving relationships with his mother, his father, his brother, and his extended maternal family. Nothing in the orders which are proposed will affect the maintenance of those relationships.

6. The father has consistently sought more time with D. I accept his evidence that the mother has failed to allow him to participate in decision making for both children and that she has not ensured that he be provided with information about their welfare and progress.

7. The mother complains that the father has not assisted with the financial support of the children, in particular, that he does not assist with their school fees. However, she has not sought a departure order and the evidence is that the father pays child support as assessed.

8. The small increase in D’s time with his father that will be achieved by these orders will not have any negative effect on D’s relationship with his mother, brother or maternal family.

9. The parents live in close proximity and there are no practical difficulties in D moving between his parents’ homes.

10. Each of the parents is able to provide for D’s needs.

11. The mother has resisted the father’s efforts to spend more time with D. I accept the evidence of the Family Consultant that B has been influenced by his mother and that the current state of B’s dysfunctional relationship with his father is, at least in part, because of her influence. There is a risk that, if D does not spend adequate time with his father, their presently warm and loving relationship will deteriorate as, I am satisfied, B’s once warm and loving relationship with his father has done.

12. The allegations of family violence have been considered by the Family Consultant. The father denies that he acted as the mother alleged. There is no corroborative evidence. I do not regard B’s evidence as being independent of the mother’s. I am conscious that B told the Family Consultant that he was reminded of an event of alleged violence when his mother showed him her notes. No other person, who might have witnessed the events of which the mother complains, gave evidence in the mother’s case.

13. I am unable to make any finding about whether family violence occurred.

14. There is no suggestion that D is at risk in the care of his father.

15. Neither parent suggests that an order for equal shared care of D would be appropriate. The regime which the father seeks is appropriate to maintain and foster D’s relationship with his father while not impinging on his relationship with B.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 July 2017.

Associate:

Date: 07/07/2017