Arthur and Ballantine

FAMILY COURT OF AUSTRALIA

ARTHUR & BALLANTINE

[2017] FamCA 84

FAMILY LAW – CHILDREN – PARENTING – where the narrow issues related to parental responsibility orders and the sharing of time – where the parents could not agree on simple issues in circumstances where their children were very clear about what they saw as beneficial and practicable – orders made reflecting their views.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

APPLICANT:

Mr Arthur

RESPONDENT:

Ms Ballantine

FILE NUMBER:

DGC

2866

2013

DATE DELIVERED:

22 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9, 10, 13 & 14 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Werner

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

THE RESPONDENT:

In Person

Orders

That the husband and wife have equal shared parental responsibility for the children B born … 2003, C born … 2006, D and E born … 2009.
That the children live with the husband during school terms in each week from the conclusion of school on Thursday (or 9.00am on the Thursday if it is not a school day) until 9.00am on the following Sunday.
That during the long summer holiday period, the children live with each parent on a week-about basis commencing on a date to be agreed and, in default of agreement, in the 2017/2018 holidays and in alternate years thereafter at 10.00am on the second Sunday and for the 2018/2019 summer holidays and in alternate years thereafter, at 10.00am on the first Sunday.
That the children spend time with the husband during the Easter holiday period as follows:
(a)in 2017 and in every alternate year thereafter, from 5.00pm on Easter Sunday until 5.00pm on Easter Monday; and
(b)in 2018 and in each alternate year thereafter, from 5.00pm on Easter Saturday until 5.00pm on Easter Sunday.
That the children spend time with the husband on Father’s Day from 5.00pm on the Saturday evening prior to the commencement of Father’s Day until the commencement of school on the following Monday morning.
That save as otherwise provided in these orders, including those for which agreement is reached as reflected in the minutes of orders attached, the children live with the wife.
That the husband’s time on any Sunday which coincides with Mother’s Day shall be suspended from 5.00pm on the Saturday evening prior to Mother’s Day.
That the parties do all such acts and things required to obtain passports for the children and the necessary costs be shared equally between them. During all odd numbered years, all passports shall be held by the husband and in all even-numbered years, by the wife, and such passports as are necessary for international travel shall be provided no later than 14 days prior to the agreed holiday trip for the children.

BY CONSENT IT IS ORDERED THAT:

Christmas

That the children spend time with the husband during the Christmas festive period at times to be agreed between the parties and, in default of agreement, as follows:-
(a)every year from 5:00pm on 25 December until 5:00pm on 26 December; and
(b)in 2018, and each alternate year thereafter from 5:00pm on 24 December until 10:00am on 25 December.

Changeovers

In the event that changeover does not take place at school then all changeovers occur at an agreed location and, in default of agreement, at the husband’s home at the conclusion of his time with the children and at the wife’s home at the conclusion of her time with the children.

Communication

When the children are in the care of one parent, that parent facilitate the children’s communication with the other parent including via telephone, SMS and/or email for such reasonable duration and at such reasonable times as requested by the children.
Each party facilitate the other parent’s reasonable requests to speak to the children by telephone or other electronic communication.

Restraints

The parties, by themselves or their agents, be restrained from:-
(a)questioning the children about the personal life of the other parent;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of any third party engaging in such behaviour;
(c)discussing these proceedings/orders and/or negotiations about parenting, with, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these orders;
(d)showing to, or leaving accessible to, the children any document connected with these proceedings/orders;
(e)showing to, or leaving accessible to, the children SMS text messages, emails or other written communications, between the parties; and
(f)discussing with the children their opinions of the other party’s parenting and/or parenting decisions.

Miscellaneous

Each party be at liberty to:-
(a)obtain school reports, school notices, school newsletters and the like for the children;
(b)attend separate parent-teacher interviews for the children;
(c)attend all school activities and functions; and
(d)each party do all things necessary and sign all such documents as are required to facilitate same.
Each party:-
(a)keep the other advised, at all times of his/her current residential address, email address, mobile telephone number and notify the other within seven (7) days of changes to any of these;
(b)keep the other advised, at all times, of any medical emergency, illness or injury requiring treatment of, or consultation with, a medical practitioner or allied health professional, suffered by the children while in his/her care;
(c)keep the advised, at all times, of the names and contact details of all medical practitioners and allied health professionals treating or consulting the children; and
(d)do all such acts, and sign all such documents, as may be required to authorise such medical practitioners and allied health professionals to communicate directly with the other party.
That pursuant to s.65DA(2) and s.62B, 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 these particulars are included in these orders.
That all outstanding applications are otherwise dismissed save as to any issues of costs.

AND THE COURT NOTES AT THE REQUEST OF THE PARTIES:

A.As recommended by Ms I, Family Consultant, the parties have agreed to:
a)each attend a post orders Parenting Program such as the programme offered by J Group in Suburb G;
b)each attend a Tuning into Teenagers Program as provided by… and
c)take responsibility to sew a name label or otherwise identify which clothing they have purchased for the children and to be responsible for keeping the children’s clothing separate for so long as the parties seek to keep the children’s clothing separated.

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 Arthur & Ballantine 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 MELBOURNE

FILE NUMBER: DGC 2866 of 2013

Mr Arthur

Applicant

And

Ms Ballantine

Respondent

REASONS FOR JUDGMENT

These proceedings concern the four children of Mr Arthur (“the husband”) and Ms Ballantine (“the wife”). The children range in ages from 14 down to eight years. Notwithstanding the marriage in this case has long ended, I refer to the parties as “husband” and “wife” for my convenience.
There are two categories of issues in dispute which indicate the depth to which the parties’ levels of communication, trust and dislike for each other has plummeted. They relate to decision-making (that is, the sharing of parental responsibility) and the sharing of the time of their respective caring for the children. This is not a complicated matter but sadly, it needs the court’s intervention.
The husband was the applicant and the wife, the respondent. The husband was represented by counsel and the wife represented herself.
The husband’s proposal was generally a retention of the status quo. The wife’s proposal would see a reduction of the husband’s time and involvement with the children.
Thus, the parties sought orders for:
·Equal shared parental responsibility (in the husband’s case) and sole parental responsibility but only in respect of education and medical decisions (in the wife’s case);
·The children to spend from Thursday to Sunday each week with the husband (his position) as against Thursday to Monday in alternate weeks plus Thursday overnight into the Friday morning in the other week (the wife’s position);
·The long summer holidays to be spent by the children on a week-about basis (the husband’s position) as against a two week period with the husband commencing on 26 December (the wife’s position);
·An alternating arrangement at Easter so that Easter Sunday in particular would be shared (the husband’s position) as against isolating Easter Sunday from 10.00am in the wife’s care (the wife’s position);
·Father’s Day to conclude on Monday morning (the husband’s position) as against Sunday night (the wife’s position); and
·The children’s passports to be held by the wife.
Numerous other orders were drafted as proposals of the parties but those that I have identified above are the ones that mostly require court intervention. The orders that precede these reasons include those made at the request of, and by the consent of, both parents.

Background

The husband is aged 44 and the wife 40. They married in 2000 and separated in either October 2012 or April 2013. It does not matter which. What is important however, the wife said that when the husband moved out, the children “really struggled” with his move and “were crying all night”. (Wife’s affidavit [27]).
The wife’s evidence about that separation period was that the husband stalked and harassed her including hacking into her electronic devices. The allegations were denied and explained. Save as to the issue of the presumption in s 61DA of the Family Law Act 1975 (Cth) (“the Act”), these have little or no relevance to the outcome.
It is not seriously the subject of dispute that the husband involved the children in the breakdown of the relationship by telling them about various adult and court issues along with showing distress in front of them. He acknowledged that that was harmful to the children and denied it was still happening. He agreed that in 2015, it was of sufficient concern to become the subject of injunctive consent orders. He maintained that he had complied with the orders. The wife disagreed and pointed to some observations of the appointed family consultant. Whilst that was her observation, the evidence before me does not permit such a finding.
The parties’ almost 11 year old daughter told the family consultant her father understood her feelings better than did her mother. The family consultant thought the child understood her father’s feelings because he had freely discussed his plans, views and the parenting decisions that needed to be made. Whilst that was the view of the family consultant, the husband denied it was still happening. The child told the family consultant that the husband had discussed his proposed parenting arrangements and that both parents had told her not just about the family consultant’s appointment but also why they were attending the appointment.
In respect of the husband’s position, these children have lived his proposal for most of the last two years. It is more concerning that despite four years elapsing since the parties’ relationship ended (noting that there were problems prior to that occurring), the children are still observing the parental conflict. The issue of what these children have been told is important if their views have been manipulated. I find that not to be the case here but rather, the children want to be with both parents. They want the continuation of the current arrangement under which they share time with their respective parents. I find the husband has not, since the order, manipulated or overtly influenced the children to support his position.
For the purposes of viewing how any changes to the status quo would affect these children, the period since separation indicates what they have been accustomed to, how each has managed the sharing arrangements but also what position each has adopted in the views they are currently expressing.
In addition to a window into that period, the same time gives a snapshot of what lies ahead on the basis that the parties’ relationship is poor and is likely to remain so.
When they separated, the husband vacated the parties’ home and began renting accommodation. There was initially a flexible arrangement about the care of the children.
In March 2014 when the parties filed a joint application for divorce, they described the care arrangements as four nights per week by the wife and three nights per week by the husband. Each said there was no “plan” to change those arrangements. Whilst the wife now indicates that her position was manipulated at the time, she was still prepared to swear those facts to be true. Whilst the application only related to the parties’ divorce, the welfare of the children was considered.
By October 2014, the parties had agreed on a shared care regime in any event. That arrangement meant that the husband was caring for the children from after school on Thursday to 9.00am on Sunday in each week.
In December 2015, the husband issued proceedings and in March 2016 after a contested hearing, I made the following orders:
1.That until further order, the children B born … 2003, C born … 2006; D and E both born … 2009 live with the father as follows:
(a)During all school terms in each week from the conclusion of school on Thursday (or 9.00am on the Thursday if is not a school day) until 9.00am on the following Sunday;
(b) For one half of each school term holiday period:
i.for the first half of all school term holidays for 2016 and for a similar period in each alternate year thereafter commencing at 10.00am on the first Sunday of the holidays and concluding at 10.00am on the middle Monday of those holidays; and
ii.for the second half of all school term holidays for 2017 and for a similar period in each alternate year thereafter commencing at 10.00am on the middle (second) Monday of the holidays and concluding at the commencement of the first day of school;
(c)for one half of the long summer holiday period:
i.in 2016/2017 and for a similar period in each alternate year thereafter, for the first week of the long summer holidays commencing at 10.00am on the first Sunday and for a similar period in each alternate week thereafter; and
ii.in 2017/2018 and for a similar period in each alternate year thereafter, for the second week of the long summer holidays commencing at 10.00am on the second Sunday and for a similar period in each alternate week thereafter;
(d)during the four day Easter holiday period (if not part of the school term holidays);
i.in 2016 and for a similar period in each alternate year thereafter, from 5.00pm on Easter Saturday until 5.00pm on Easter Sunday; and
ii.in 2017 and for a similar period in each alternate year thereafter, from 5.00pm on Easter Sunday until 5.00pm on Easter Monday;
(e)for Father’s Day in each year from 5.00pm on the day before Father’s Day until the commencement of school on the day after Father’s Day (or 9.00am if not a school day).
In my reasons for making the orders, I said I could not make findings of fact because the evidence had to be tested. It has now been tested but I find the determination of the allegations has made little difference such as to justify changing the status quo. It transpires that the wife takes issue with, and the husband seems to agree, an error in those 2016 reasons. I misunderstood the timing of the wife’s lengthy overseas holiday. Having re-read the matter, the error makes no difference and the outcome would have been the same. The husband indicated the 2016 outcome should not be changed and I consider that is best for the children for the reasons that follow.
This case is a search for what is in the best interests of the children, not so much their parents. Whilst the parents’ positions are relevant, the court is not bound by those proposals.
The first issue in dispute relates to the question of equal shared parental responsibility. The wife views the husband as untrustworthy and untruthful. Much of her attack on his evidence related to issues that could only have gone to his credit but this is a case where credit hardly assists in the determination of the substantive matters because, in my view, the evidence is relatively clear.

Equal shared parental responsibility?

The only dispute here relates to the question of decision-making about education and medical issues. In other words, the wife was content for the parties to share all other responsibilities of a major long term decision making nature.
Equal shared parental responsibility focusses on major long term issues which the legislature in s 4 of the Act has defined to mean 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 the parent.
During the proceedings, the wife made an observation that issues about religious upbringing, children’s names and living arrangements were not likely to come up in the future but issues of education and health are. The definition provides for matters outside of all of those matters.
If an order for equal shared parental responsibility is made, s 65DAC provides that it is taken to require any decision of a major long-term nature to be made jointly by both parents. Each parent is required by the order to:
(a)consult the other person in relation to the decision to be made about that issue; and
(b)make a genuine effort to come to a joint decision about that issue.
Section 65DAE does not require consultation about issues that are not of a major long-term nature.
The parties therefore have to determine what is of a major long-term nature and what is not.
Section 61B provides a definition of parental responsibility. It means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Thus, anything that affects a child’s long term future, even though not necessarily falling within the definition is a matter about which the parents have to consult and make a genuine effort to come to a joint decision. That envisages that there will be cases where parties cannot reach agreement but nonetheless, they are required to make a genuine attempt to do so. An impasse is not a trigger to return to court. The parties have to make the effort including using community and private resources. For example, in relation to issues about the psychological health of children, the parties would be expected to consult experts who could assist and guide them.

While s 65DAC provides something of a test as to the practicability of parents being able to fulfil a joint decision making process, the question should be whether or not the child’s welfare is likely to be prejudiced either by a party refusing to make a genuine attempt to resolve the issue or causing an impasse by a long and drawn out process prejudicing that welfare. If either of those occurred, it would be better for one parent to solely have that particular responsibility.
In this case, the wife pointed to what she saw as problems in both education and health. There is no doubt the parties were struggling in 2016 to reach an agreement about their child B. Whilst that issue was ultimately resolved, an examination of why the problem arose does nothing to assist. B ultimately told his father that he wanted to change schools. Both parents seem to have been aware that B was unhappy and having problems; ultimately, common sense prevailed. The wife cross-examined the husband about discussions that had taken place concerning schools desired by the husband that would have prejudiced her in some way. The evidence does not support a conclusion that the husband was not being genuine about the consultations nor that B was prejudiced in some way. B commenced his new school and now seems happy.
The wife anticipates that the same, or a similar problem, will arise in respect of the other three children. That was evident from the fact that she cross-examined the husband about his intentions for the future. Notwithstanding the lack of communication between the parties, they appear to be very much in agreement about what is best for the younger children in the future. It was sad that their consultation was occurring through a cross-examination process.
The wife cross-examined the husband about issues as to his credit. In my view, the evidence does not support a conclusion that the husband has lied about anything. Nothing I have heard would entitle me to make an adverse finding about the husband in a way that supports the wife’s assertion that in future, there will be major difficulties in arriving at a decision about the schooling of the younger three children such as to put them at risk of not being able to attend school and obtain proper tuition.
I have little doubt on the basis of the parties’ current relationship, they cannot communicate easily but in the courtroom, where the husband was being cross-examined by the wife who was representing herself, he was calm and responsive and she, equally respectful. They communicate together by text message. There is no reason to find that that will change in the future. Accordingly, the decisions about the future education of the children can be made even though they may take some time and ultimately require some input from educational professionals. Common sense therefore dictates that the process by which any decision is to be made, needs to be commenced early. In my view, there is no basis to make an order excluding education from equal shared parental responsibility.
The second issue relating to parental responsibility concerned medical issues. The wife’s main concern seemed to be that the husband would prejudice the children because he would not involve her in decisions. She pointed to one specific example relating to where C was cut accidentally and the husband took her to hospital where she was properly treated. The husband did not contact the wife and she did not become aware of the problem until a day later. C told the wife what had happened. When asked why he had not said something, he replied that, at the changeover, C ran off to her mother before he could say anything. But that raises the question of why he had not said something at the time of the hospital visit. The husband’s view was that it was not serious such as to involve the wife. The answer to that question might depend on whether or not it was sufficiently stressful and distressing for C such that she would want to then leave her father and go home with her mother. The evidence does not support such a conclusion. Rather than focus on the husband’s lack of advice to her, the wife’s cross-examination and the evidence upon which she relied to support her concern, related to hospital notes suggesting that the next step after the hospital was for a follow-up visit to the child’s general medical practitioner. However, there is also a note on the hospital file to the effect that should the child’s health situation change, resort should be had to the general medical practitioner. As no evidence was specifically called from the hospital about what all this meant, I am not in a position to determine what advice the husband was given.
My only concern was that the husband had not told the wife of the matter but that now seems to have no longer been an issue because, as the husband observed, on the one occasion since then, he has contacted the wife. That incident related to him taking the child to the emergency department because of a bee sting.
Again, the poor relationship between the parties and their overt dislike for one another, is not a basis upon which a court should exclude the husband from having involvement in the decision-making processes about the child’s then health. Unlike the education situation, health often requires a more urgent reaction by a parent. Nothing in the evidence indicates that the husband would put one of the children in a dangerous position. All of the evidence points to the fact that his poor communication skills with the wife (to which she acknowledges she has contributed) need to be addressed by some form of counselling and as such, this dispute has really only highlighted a lack of common courtesy.
Because of the nature of the relationships between the parents and each of the children to which I shall turn below, I find that the children want a significant part of each of the parents’ lives and are currently content with the arrangements. There is no basis for the court to find that any of the children would be distressed by the absence of either parent if they had a health problem. In relation to other health issues of a longer term nature such as psychological health, both parents seem to have been involved in any event.
Another example to which the wife referred was speech pathology for E and D. Apparently, home programs were recommended and the wife said that she forwarded those to the husband on 12 March 2015. She said “on numerous occasions” she asked the husband to carry out the home program but the children told her that they had never done the speech pathology with their father. His view was that he did it sometimes. The husband maintained that he had spoken to the speech pathologist (and he obviously had) but that led to an accusation that he had been given information but he had not passed it on to the wife. When that accusation was put to him, he responded that he thought she had received it (presumably direct from the speech pathologist).
The wife pointed to another associated issue. In October 2015, the school teacher of E and D suggested that the parties engage a speech pathologist because their difficulties were affecting their reading, writing and spelling. Rather than speak to the husband (which I accept would have been difficult) the wife sent him an email to which he did not respond for a month. He then (albeit slowly) agreed to the private speech pathology and the sessions began in December 2015. The wife pointed to the fact that because the husband did not do the speech pathology practices whilst the children were in his care, the sessions took longer than they should have. They were ultimately discontinued in September 2016. Apart from an assertion (unsupported by any corroborative evidence) that the implementation of the program was delayed, there was no evidence of disadvantage to the children. However, it is obvious that the husband did involve himself in the program albeit not perhaps as diligently as the wife would want and now, fortunately, the problem has gone away.
Each of these parents has a different style of parenting and sees different issues as important. The husband did not see speech pathology as critical or one that needed urgent attention. The wife focussed on these flaws (if that is what they are) in the husband’s parenting but there is no suggestion otherwise that he did not properly care for the children when they were in his care.
As I earlier observed, s 65DAC requires parents to make a genuine attempt to consult and resolve issues in dispute about such things as health but the respective parents have different attitudes as to the promptness with which they have to attend these issues. The difficulty does not lie in that so much as the fact that their communications skills are hampered by their dislike for one another. As can be seen at the commencement of these reasons, there is a notation to the orders that the parties have agreed to obtain professional assistance about communication at J Group in Suburb G.
Another issue that the wife raised relevant to the question of parental responsibility related to another incident involving C. It seems C was sexually assaulted by another child of her age and then only days after the school had become involved, by keeping the two young children away from each other, C then perpetrated the same behaviour. It could not be said that the husband did not treat the problem seriously but again, this was an example where the wife argued that trying to get some agreement about such things as mental health assistance, would not be possible if there had to be consultation. In circumstances where even on the wife’s case, the children would be in the husband’s care for a significant period of time, removing responsibility for making major decisions of the nature of health and education, requires very carefully consideration to see whether it would make any difference. There were other issues raised by the wife but in all cases, I find that the delay in a resolution of any of those problems, arose because of the poor communication between the parties and their dislike for one another. Hopefully, that will now be resolved. In my view however, there is no basis to find that what has occurred to date in either the educational sphere or that relating to the children’s health, has prejudiced these children. It undoubtedly has frustrated the wife but that is not a basis upon which the court should remove the husband’s responsibility at law. Accordingly, there is no basis to make the orders sought by the wife.

Family Violence

It was the wife’s case that the husband had been violent right throughout the relationship. Apart from incidents where he conceded physical contact occurred as a result of actions of the wife, the husband denied being violent. In his reply, the husband admitted to threatening to harm himself during the first two years of the marriage. The wife referred to that as an example of family violence. When asked what was the relevance of all of her allegations, the wife point primarily (but not exclusively) to the rebuttal provisions in s 61DA of the Act. For the reasons that follow, I reject her claims.
Family violence is defined in s 4AB of the Act to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The fear of the wife in respect of his assertion of self-harm was said to be that the husband would carry out his threat. Although she was apparently worried about him, she must have been reasonably comfortable to continue with the relationship and thereafter have the four children. In 2001, at the insistence of the wife, the husband obtained professional help. On his version, they both obtained help.
Despite the help, the wife asserted that the discussions with the psychologist built to a point where the husband became enraged and abusive. She said he would frequently become physical with her, wrestling with her and resulting in her suffering injury. She said on two occasions he choked her and on countless occasions, pinned her down on the bed whilst screaming into her face. He also punched a hole in the plaster wall.
In his reply, about his understanding of who was seeking help, the husband said that both parties obtained assistance from the psychologist but when the psychologist made comments to them both that some of the issues in the relationship were due to the actions of the wife, she refused to return for that help.
These events all occurred a long time ago in the context of the parties’ relationship but there was nothing provided by the wife that objectively corroborated her version of events. The same must be said of the husband but he was not seeking any findings in relation to family violence. His counsel opened the case for him on the basis that there was no relevance in those allegations, they were stale in terms of time and many were unparticularised. Albeit that she was unrepresented, the wife confirmed that her affidavit had been drawn by a solicitor, read by her, and “settled” by her. The fact that vague and unparticularised allegations were put into the affidavit in an attempt to prove family violence, was unhelpful whether prepared by the lawyer or the wife.
In relation to some of the specific allegations, the husband countered with accusations of verbal abuse by the wife to which he said he responded by retreating to the garage. He specifically denied having choked the wife but countered that it was in response to her choking him that he put his hands around her throat.
As one would expect from a person who is not a lawyer, cross-examining the husband was difficult. I explained to her before the proceedings commenced that she needed to test the evidence. I explained cross-examination. Despite that and being in possession of the husband’s affidavit in reply to her allegations, nothing that the wife put to the husband about these incidents, was more than a repetition of her assertions to which he responded with the same denials as he had put in his affidavit.
The wife alleged that she would often move away from the husband when he became enraged, including hiding in the bedroom, the toilet or the shower and that the husband would chase her and force his way in. She gave an indication that he partially pulled a bedroom door off its hinges and broke the door handle whilst putting a hole in the door.
Unfortunately, this was not an occasion with particulars. I have no idea what particular time she is talking about. However, in his reply, the husband knew what she was referring to because he said that it was he who had to get away from the wife who was following him around accusing him of being unsupportive. She was abusive and insulting to him and he gave examples of her conduct. He too did not give any temporal context to those allegations. He did indicate that on one occasion he broke the window next to the front door because the wife had locked him out and refused to let him back in. He said she dead-bolted the door and then put the chain on it and he broke the window so that he could open it.
I am not in any way trivialising or minimising the seriousness of family violence but it is important that there be some temporal connection with the events alleged so that they can be properly tested in cross-examination. Counsel for the husband said that he was unable to give any more detail than what his client had put in the affidavit because the wife did not particularise those allegations.
Not being able to find there was lack of credibility on the part of either parent, the allegations of violence have to be determined on the basis of which of the two versions is more probable bearing in mind the accusations each makes against the other. The wife’s version (unparticularised as it was) failed to make any mention of the details to which the husband referred. She did not challenge any of what he said in cross-examination. He was not asserting that this was an incident of family violence on her part. There was no suggestion that police were involved or that any other person such as the neighbour was called upon to defuse the problem. To the extent that this may have been raised as a problem in their relationship with the psychologist that either or both had seen at that time, no such evidence was produced. The wife again leaves the court in the situation where it has to guess.
Next in the course of her affidavit, the wife made reference to the husband being “emotionally abusive and very manipulative, always playing the victim” telling her that she was abusive. She said she was able to recall a specific incident in or around 2011 wherein the husband threw his hot coffee on her and when she tried to escape, he pushed her and knocked her head against the doorframe. She then pushed him away which left nail marks in his face. There is no doubt from the husband’s perspective that he remembered an incident involving coffee but he denied that it was 2011. He referred to an incident which took place in 2003 which he attributed to a time when the wife assaulted him in the kitchen. He then gave evidence about how the door became damaged. At least the husband endeavoured to put some temporal connection on this because he indicated that it occurred at a time when he and she had been involved in a christening. No reference was made by the wife to any other children so one might conclude that it was more likely to be 2003. The wife’s reference to something that occurred in 2011 does not make much sense in the context of the husband’s allegations. Again like the previous allegation, only the husband was able to put some temporal connection to the incident to put it in proper context.
The problem for the wife is that the allegations are asserted and then denied by the husband. She did not cross-examine him in any detail about the incident and I am left with the same problem of determining just what allegations she was referring to by reference to those denials of the husband. In my view, the wife has not been able to establish on the balance of probabilities that this incident occurred in the way in which she has described or that it fits the definition of family violence.
Much of the evidence of the husband in response to the wife’s affidavit paints a picture of a volatile woman. He quoted language that he said she used. None of that evidence was challenged by the wife. Both parties agree, and certainly the family report writer accepted, on the basis of what the children told her, this was a conflictual relationship to which both contributed. In my view, not only is it difficult, but in this case unhelpful, to endeavour to attribute specific blame for incidents that as best I can determine, occurred many years ago. The husband seemed to have quite precise recollection of incidents that occurred in and around 2003. To that extent, I accept the submission by counsel for the husband that most of these allegations are stale. In my view however it is more important to observe that the conflictual nature of the relationship strongly suggests that both parties contributed to whatever the problems were right throughout their relationship.
The husband made reference to an incident in 2010 when there had been an altercation between the wife and a carpenter whom she employed where he said she pushed that person. She told the husband that as a woman, it was unlikely the police were going to believe him. The husband said that the carpenter arrived on the site a few days later and told him how he felt about the wife. When he in turn reported what he had been told, the wife responded angrily. That incident was not denied by the wife nor was it the subject of cross-examination. It is difficult therefore to know why the wife asserted that the husband was to blame for the family violence and insisted upon him obtaining anger management help when the unchallenged evidence would tend to suggest that she certainly contributed to problems within the relationship.

There were also allegations about the period of time prior to separation but most of those appear to concern denigration and verbal abuse. Again, the wife made broad generalisations so it was difficult to know the context in which some of these things occurred. For example at [14] she said the father frequently called her names when in a rage and screamed at her including that she was a “fucking cunt”, “a fat cow”, a “slut” and so forth. She claimed the husband told her that she had aggravated him and that it was her fault. The wife acknowledged that prior to the marriage (so prior to 2000) they went to the psychologist earlier mentioned but also that he accused her of being the abuser. All of these matters confirm that the relationship was a difficult one from the very start and, with the concession by both parties that it was conflictual, the wife’s vague assertions were unhelpful. Again for the reasons I have earlier articulated, I am not satisfied on the balance of probabilities that the incidents occurred as described by the wife.
In respect of balancing the parties’ claims against each other, s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”)provides that in a civil proceeding, the court must find the case of a party proved, if it is satisfied that the case has been proved on the balance of probabilities. Section 140(2) goes on to provide that without limiting the matters that the court may take into account, it is to take into account:
(a)      the nature of the cause of action or defence; and
(b)      the nature of the subject-matter of the proceedings; and
(c)      the gravity of the matters alleged.
In addition to seeking to set aside the presumption in s 61DA, the wife also indicated that she considered that the husband needed to undertake anger management. This anger management was not particularised. That is, it remains unclear whether it was to be a pre-condition to the children spending time with him or that communication between the parties was never going to occur even with the proposal set out in their agreed notation to the orders, until some anger-management took place. When I turned to the orders the wife proposed, there was no application for an order that the court direct the husband to attend such a program. She sought injunctive orders under the heading of “Restraints” but those must be seen to have been limited to abusing, insulting, belittling, rebuking or otherwise denigrating the other party.
In relation to the approach to determining matters on the balance of probabilities, in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dixon J (as his Honour then was) on an issue of determining the question of adultery under the matrimonial causes legislation said:
…the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible to some other not improbable explanation.
The allegations made by the wife are serious and therefore the court should approach them cautiously because of the purpose for which she seeks the findings. Despite careful consideration of both versions, the best I can find is that they are not precise allegations nor, from the wife’s perspective, are they comprehensive. Indeed, they are inexact.
Nothing that was put to the husband in cross-examination by the wife suggested to me that he was not forthright and honest in relation to this particular evidence. As the wife has the onus of proving these allegations on the balance of probabilities, she has failed to do so here. I find his denials are precise save where he made admissions of conjoint bad behaviour (if it is not otherwise seen to be offensive behaviour) and on that basis, I could not be satisfied that the allegations are proved when they are balanced against each other.
Accordingly, in my view there is no justification for a finding that the husband perpetrated family violence against the wife. As I have described, the husband too made allegations against the wife that would fit the definition of family violence but I was urged by his counsel to ignore those matters as being irrelevant to the determination. I accept that submission.
Counsel for the husband acknowledged that, by his submission, there was no basis to rebut the presumption in s 61DA of the Act and that accordingly, the provisions of s 65DAA applied. He acknowledged however that his client was not seeking equal time orders but, by reference to the definition of substantial and significant time, his proposals were not only in the best interests of the children but also practicable. I agree with that submission.

Evidence as to the care of the children

The husband set out his “factual evidence” that he saw to be relevant to the visions of s 60CC of the Act making the following points:
·    He accepted that the wife should be “meaningfully involved” in the children’s lives and have a “meaningful relationship” with them;
·    He said he knew that she loved the children and the children loved her;
·    He had a close “bond” with all of the children;
·    He always allowed the children to speak freely and openly and had not in any way sought to influence their views;
·    E and D would cry when their time was coming to an end;
·    The activities of the children included bike riding, snorkelling, rock climbing, cooking, archery, swimming, roller skating and the like;
·    B was a relatively shy child in a new environment but he was otherwise an extrovert who was also gentle and considerate. He is artistic including in his school work and the use of the piano. He is also a sporting child;
·    B confided that he did not feel appreciate when with his mother;
·    B was able to talk about issues that affected him and that the conversation was open;
·    C confides in the husband;
·    The husband facilitates and encourages the relationship between the children and the wife and has never actively or deliberately sought to undermine that relationship;
·    The wife has denigrated the husband telling him that he is “an optional extra” in the lives of the children and that she was a better parent. That latter point she made to the children.
Many of the statements were conclusions, assertions or opinions rather than facts and accordingly, an examination is needed of the wife’s material to see what, if any, of those matters was controversial. Those set out above are obviously views that the husband generally holds about his parenting role, capacity and responsibility. Save for the issue in relation to influencing the children, the wife did not cross-examine him about most of those issues so the court is entitled to conclude that his capacity to care for the children is not challenged. There were arguments about clothing and books being left behind but those problems now seem to have been resolved by keeping items in each household and the children being reminded before the changeover occurring at school. Importantly, it is worth reiterating that the wife was offering initially five and then six nights per fortnight to the husband (albeit in a different construction to that sought by the husband) so on any view, the court is entitled to conclude that she accepted that the husband had not only something to offer the children but that he was a good parent.
The remaining contentious issue is the question of how the children should be shared. On 7 March 2016, the wife filed a Notice of Child Abuse, Family Violence or Risk of Family Violence document for the hearing that took place in the Judicial Duty List on 15 March 2016. In that document she alleged the same matters to which I have just referred about family violence. More specifically she repeated the husband’s suicide threat at the beginning of the relationship, the “frequent” calling of abusive names, the withholding of financial supports, the stalking, the fight between the father and his brother and the “hostility” of the husband in refusing to acknowledge her. The filing of such a notice triggers the notification to the Department of Health and Human Services. The wife relied upon this document in the list of documents that she wanted admitted into evidence. There is no evidence of concern expressed by the Department of Health and Human Services in response to the notice.
As the notice simply repeats the matters which I have already addressed, I propose not to deal with it any further save for two matters. The first relates to the financial issue. That has been resolved. I remain unsure what relevance it has in the context of family violence under the Act.
The second issue concerns a fight between the husband and his brother in August 2015. The children were in the husband’s care when he had a violent confrontation with his brother. C saw it start and whilst the husband sent her away, the children saw its aftermath. No evidence of the impact on the children was led except the descriptions of what they saw. The husband’s evidence is that there is now no animosity with his brother. The relevance of such an issue is not about family violence but rather parental responsibility in exposing children to violence. There is no evidence of present difficulties for the children nor fears exhibited in things like night terrors. There is evidence of the husband about the incident now having been resolved. There is no evidence from the wife of the children reporting any similar incident.
Another matter relates to the wife’s cross-examination of the husband. Much of that concerned the difficulties that the parties had in reaching an agreement about B’s schooling. She suggested to the husband that all of the schools that he suggested had taken into account the difficulty that she would face if B attended one that the husband had chosen. The husband emphatically denied that was his consideration. To the extent that it is relevant at all, I do not find that the husband was malevolent in the proposals that he put in relation to schooling. No objective evidence was produced by the wife to show that.
Further in her cross-examination, the wife broached the subject of the children being manipulated or influenced. The family consultant expressed concerns about how the children were cognisant of the parental dispute and indeed, C was aware of her father’s feelings. The husband had admitted inappropriate involvement in the early days after separation but maintained that nothing had occurred over the last twelve months. Nothing I heard either by way of the answers to questions of the husband nor anything arising out of the wife’s cross-examination of the family consultant, would indicate that there is a basis to currently say that the husband is deliberately manipulating the children or involving them in activities for the purposes of influencing the outcome of these proceedings.
The wife was critical of the husband because of what he does when he has the children. She asked him whether homework was being done and he said it was. She asked him whether his time with the children was structured and he said it was. She asked him whether he was still doing karate with the children and he said he was. The children confirmed the arrangement was working well.
The wife argued that by the time she got the children on a Sunday, they had incomplete homework and had to prepare for school on the following day. The wife asked whether at the conclusion of the husband’s time, the children were tired and he replied that sometimes they were. She suggested that perhaps it might be better sometimes if they had a full weekend with her and interestingly, the husband agreed.
It is hardly surprising that these children are tired and have unresolved obligations but that might also have something to do with the extra-curricular activities in which they are involved. Those activities are, as the family consultant said, reflecting the interests of the parents rather than those of the children. When all of these matters are assessed, the husband’s evidence indicated that things were working well for the children and although the wife disagreed, she was unable to point to anything to indicate that her proposal would necessarily provide a better lifestyle for the children or more importantly, that the status quo was working adversely to their interests. Accordingly, much of the evidence provided by both parties had limited value.

Parental capacity

As each of the parents was prepared to provide a significant sharing arrangement with the other and all of the evidence points to the fact that these children enjoy the relationship that they have with both parents, the only important question is the construction of the time they spend with each parent.

The family consultant’s evidence

Ms I is a family consultant attached to the court who interviewed the parties and the children in January 2017 after reading various materials on the court file.
Having regard to the issues in dispute, it is unnecessary for me to set out much detail of the family consultant’s evidence. She interviewed the parties at a time when their proposals for orders were consistent with the way in which the case was conducted. The husband’s position was that there should be no change to the status quo whereas the wife wanted a structure under which each party had a weekend in full during a fortnight period.
A number of observations were made by the family consultant about the narrative of the parties. Of the husband, she said that his description raised concerns that he may be in competition with the wife for the children’s affection. She considered that he was behaving in an emotionally manipulative way. He maintained the children wished to spend more time with him than at present. However, the family consultant observed that the children’s account of interview did not necessarily corroborate this view. Whilst there was no other obvious evidence of present manipulation, the more important issue to which the family consultant returned was how the children have adopted the current regime and do not want it changed. Thus, the husband’s view that the children want more time matters little because ultimately, he was not seeking more time.
The family consultant noted that the wife had not altered her position as set out in her proposed orders but was expressing the hope that she and the husband would be able to reach an agreement to avoid a final hearing. The wife described her proposal as reducing the conflict between the parents as well as providing weekend time to relax with the children and travel away. That was certainly consistent with the wife’s position in final address to the court.
The family consultant concentrated on the co-parenting communication issue which the wife had described as “probably strained”. That comment came out of the wife’s position that she would prefer to communicate at greater length with the husband but was restricted because of his preference that they communicate in writing only. The husband acknowledged that there were periods of time where he had spoken to the wife but acknowledged that the conversations were cursory. He said that his final position about preferring written communication arose because after a discussion in which they had both met face to face about two years ago, and where he considered that the wife subsequently altered what he saw as the agreed position. Conflict followed with a letter from the husband’s lawyers to the wife indicating that all future communication was to be through them. In more recent weeks, perhaps because of court proceedings, there have been polite greetings when the children are handed over which had earlier been described as “grunts”. Whilst the wife complained the husband refused to acknowledge her, he complained that her behaviour was demonstrated by a “short temper and a tendency for controlling behaviour” (Family Report [47]).
Whilst the wife maintained to the family consultant that the poor communication prejudiced the children, the issue about B’s change of schooling would suggest otherwise. I accept the husband’s position that when a decision needed to be made about moving B, cooperation followed.
The family consultant canvassed with the wife the issues of family violence. She recorded that the wife said there had been no family violence over the past 12 months and it had never been reported to police in any event. She held no concerns about violence towards the children save for one issue that she said B had reported that his father had threatened to “kill him” if he left any more clothing at her house. That issue was raised in cross-examination with the husband and I am satisfied that the statement was made in jest.
The family consultant canvassed with the wife the issue in which B was taken by his father to a school orientation without her being told. Again, the family consultant was concerned about the events thereafter in which the wife wanted B to write a letter of apology for not having told her that he was going. The family consultant described the wife’s actions as “highly insensitive and punitive”. I agree. The husband’s position had been that had he told the wife that he was taking B, she would have stopped it. He was unable to explain how that could be possible.
What can be seen in the orientation day is the husband’s discourtesy towards the wife arising from a lack of trust and the wife’s insensitive (and explosive) reaction towards B which, in reality, should have been taken up with the husband. The wife’s level of communication with the husband contributed to the problem.
The family consultant observed that her impression was that the wife may enjoy the conflict with the husband because it provided the opportunity to have some form of ongoing contact with him. The wife is an extrovert whilst the husband is an introvert. Having regard to the view I have accepted about family violence in this case and the wife’s contribution towards the various arguments that occurred, it is now understandable why the husband wishes to communicate only in writing to avoid confrontation.
The family consultant turned to the needs of the children. Both parents acknowledged that at separation, C had been distressed at being separated from the husband but those problems have now been resolved. Reports that D was having difficulty separating from the husband have similarly been recently resolved.
The family consultant concluded that the emotional and developmental needs of the children were being met. Ultimately, it was her concern that the most significant risk for these children is the exposure to the chronic conflict between the parents and “their limited insight into the children’s needs to be protected from this conflict”: Both parents were cross-examined about how to solve the problem and neither really had a solution. But even so, common sense has occasionally prevailed. For example, the husband agreed to alter the arrangements on a number of occasions in 2016 so that B could visit his dying cousin. Somewhat hesitantly, the wife gave him credit for that. I have concluded his focus was on the needs of his child.
In terms of the time with each parent, the family consultant probed the children. B considered that an ideal arrangement would be for them to live on a “50-50” arrangement three days one week with his father and four days the next. But he was unable to explain how this arrangement might be an improvement for him. To an extent supporting the wife’s proposal, he said he would love to spend a full weekend with each of his parents. Indeed, when the wife asked the husband that same question he said it was something which was an ideal situation but there is a problem about its implementation. B certainly knew what his father wanted but seemed unclear about his mother’s arrangements.

A critical reason for not altering the current arrangement according to the family consultant was the fact that these children have various extra-curricular activities. She said she was “incredibly concerned” that the wife’s arrangements are in conflict with the expressed opinions of the children. She thought that the children might be concerned that the parents did not care about them if those arrangements were not fulfilled. That said, the extra-curricular activities of the children are being carried out because the children know of their respective parents’ interests. In other words, those activities are parental concerns rather than those of the children.
Whilst B referred to a “50-50” concept, he did not mean seven days on and seven days off. The family consultant observed, these children have cousins who are in that rotation and they explained that it was not liked or wanted. She did not support such an outcome.
The family consultant described C telling her that she had been present when B expressed to the wife his desire to live in this “50-50” parenting arrangements and according to C, the wife told B that he did not love her as much as the other children. C said that as result of that statement, she did not tell her mother how she felt. This is a remarkably clear statement by a child aged 11 years that she did not want to be embroiled in something that created more conflict. The wife denied any such conversation occurred which creates a further dilemma because it was not suggested to the family consultant that C was lying or had cause to lie. The exact context in which the conversation was said to have occurred was not probed nor should it have been but it is indicative of a sensitive child. C made clear to the family consultant that she was aligned with the husband but that said, the family consultant did not think it meant there was a poor relationship between mother and child. C was able to indicate her preferences about things such as the husband washing her clothes because he was more reliable. She identified with the husband as having less wealth than the wife by virtue of material possessions. These are all symptoms of a child watching a conflict which is undoubtedly destructive. C is comfortable with the existing arrangement.
The family consultant interviewed E and D together and neither wanted to make a decision about time but I consider the observation of the family consultant extremely important. She said:
[72] Although [E] eventually settled on a view that the best solution was for the judge to decide, she oscillated between not wanting any change to piano tuition on Wednesdays and karate classes on Thursdays and not minding if the arrangements changed.
That statement supports the conclusion of the family consultant about the emphasis by the parents on their needs and interests and the children following them. It creates a dilemma in moving from the status quo.
As she began her final address, the wife thought she could alter her arrangements by dropping off one of her proposed days and giving it to the husband but that would cause a clash with the piano lessons day. That proposal would mean that the husband would have to make new arrangements about the piano lessons and whilst he had indicated he was prepared to do so, it would involve the wife endeavouring to have the piano teacher go to the husband’s house or make some other arrangement which she had not otherwise discussed. This missed the point made by the family consultant that these children are fulfilling their parents’ interests even if the husband were to pick up the children and take them to the piano lesson. They would be potentially altering a routine to which they have become accustomed and which they want.
D listened carefully to the views of E. The family consultant noted that she said she would like to spend more time with her father but only on condition that did not reduce the time she spent with her mother. That is self-evidently not possible.
The very strong view of the family consultant was that the children did not want a week-about arrangement and that the stressors were already present which could be quite harmful. In her view, the best arrangement for these children was to continue the present one. She saw no reason to change and I accept her evidence.

Legal issues

Section 60CA of the Act requires the court when making a parenting order to ensure that the best interests of the child are the paramount consideration. Contemplating a paramount consideration must mean that it is not the only consideration but to the extent that parental needs, desires and requests clash with what is best for children, the parents must give way.
In determining what is in the best interests for the child, the court is mandated to examine the matters set out in s 60CC of the Act. I have already dealt with the issue of parental responsibility. But to reiterate that position, I observe that s 61DA of the Act requires that when making a parenting order, the court apply a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility. There is not a sufficient basis for the court to say that there has been family violence in this case. Family violence findings mandatorily rebut the presumption. Even if I was wrong about that finding, it does not solve the problem of the court making an order for equal shared parental responsibility because when making a parenting order, the court may still make an order allocating parental responsibility. A second consideration for not applying the presumption is where it is not in the best interests of children that their parents have equal shared parental responsibility. A good indicator of such a situation is where communication is impossible resulting in a complete breakdown of any decision-making processes and a consequential prejudice to children. All of the examples to which the wife referred may have been difficult as a result of the poor communication and relationship between the parties at the time but I find that decisions were ultimately made in the best interests of the children. That can be seen in the decision about B moving schools, C attending hospital and the twins ultimately obtaining speech therapy.
To remove parental responsibility from one parent flies in the face of the principles and objects of the Act set out in s 60B. The whole tenor of the parenting legislation is that parents should accept their responsibilities and participate in children’s lives to the extent that that is in their children’s best interests. The only reason why a departure should occur from that pathway is where it is not in a child’s best interests because of something that the parent is not doing or not doing properly. In this case, the evidence does not support any such conclusion. Cumbersome as the communication problem may be, the reality is the husband wants to fulfil his responsibilities as a parent and is doing so.
On that basis, there is no reason to rebut the presumption of equal shared parental responsibility.
If an order for equal shared parental responsibility is made, the court is obliged to consider the provisions of s 65DAA of the Act which relate to the division of time. Neither parent wants the court to go outside of the parameters of their proposals and indeed despite discussion about the possibility of doing so, the family consultant by her evidence, indicated that the children would not be comfortable about such an arrangement. With the children unhappy about it and the parents not wanting it, it is not appropriate to go outside of the proposals of the parties. It may be practicable but it is not in the children’s best interests based on the evidence of the family consultant.
Returning then to the question of what orders should be made, s 60CC of the Act requires the court to consider primary considerations and additional considerations to determine best interests.
The primary considerations in this case focus on the benefit that the children receive from enjoying a meaningful relationship with both of their parents. All of the objective evidence from the family consultant and the dot points to which I have earlier referred about the husband’s assessment of the situation would indicate that the children do have a meaningful relationship with both parents and they benefit from it. Whist the wife may not agree that the current time provides a relaxed environment because of the obligations that she sees that must be carried out on the Sunday of the handover, the reality is that the children still express a love for her and a desire to be with her. The husband too concedes that the children should be with the wife because they have a good relationship with her.
In respect of additional considerations, the views of the children as a block, have indicated through the family consultant that they are well aware of what the possibilities of change might be but they want the current arrangements continued. The children are comfortable with the arrangement as they have expressed it and although they have said things that I have earlier described that would indicate something different, the reality is that they want the status quo to continue. That can be seen when a child says that she wants more time with one parent but on the basis that it does not reduce the other parent’s time. It can be seen in the twins giggling that the sensible solution would be to have “eight day week”; it can be seen in B’s assessment that he would like 50-50 but at the same time, moving closer to his father in terms of discussing things that he thought important. All of those indicia suggest that there should not be a change to the current regime. The proposals of the wife would tend to suggest that they would suit her better rather than the children.
All of the matters otherwise in s 60CC of the Act concerning parental capacity, parental responsibility and fulfilment of opportunities to care for the children have all been dealt with in the narrative above and do not affect the question of time sharing.
There was certainly considerations about child support but the evidence does not support a finding that either party has been recalcitrant of late about fulfilling not only their obligations under any formal assessment but indeed, providing for the needs of the children. The wife certainly complained about the fact that payments had not been made as she had expected them to be made but on the other hand, there is no suggestion that these children have been missing out on things since the orders were made on an interim basis in March 2016.
One of the considerations in s 60CC(3) is for the court to consider making final orders that bring to an end the possibility of further litigation between the parties so that the children can get on with their lives. This is such a case. There might be a temptation to make interim orders here to see whether some structure other than those proposed by the parties might work in the interests of the children but the family consultant was very strong in saying that it was not in their interests. It is in the interests of the children as well as the parties that final orders are made to end all of these disputes.

Other orders than just time

Issues were raised by the wife about summer holidays. I have a set those out earlier in these reasons. The family consultant was unequivocal in indicating that the children wanted the shorter periods of time and there is no reason why in the fullness of time, those arrangements cannot be altered between the parties. On that basis, for the same reasons why I have accepted the expert’s view that the children’s views should be adopted, apply.
There was a significant dispute about how Easter should be divided. The wife wanted Easter Sunday in each year from 10.00am because on that day, she has a specific extended family function. That function occurred throughout the parties’ relationship although the husband was quick to say that he was compliant and would rather now, have the children spend time with him and his extended family. The wife pointed to the fact that subsequent to 2016 when the husband had the children at Easter, three of her relatives had died and B had expressed concern that he had not attended the dinner on Easter Sunday and had thereby missed those relatives. That was a curious statement to make because the evidence is that B only raised it a few weeks ago. Whether he had been cogitating about it since last Easter, I am unable to say. There is no suggestion that the other children were similarly upset. In part, it may be that B was distressed because his young cousin died but all of the evidence points to the fact that B’s time with his father was altered with the encouragement of the husband at that time so that he could visit his cousin.
In my view, notwithstanding there has been a long history of the family being together on that day, the husband has made clear that he wishes to have his own arrangement and I see no reason why these children should not alternate that period of time. It is hard to imagine how one year would make much difference.
Another issue that caused concern related to who was to hold the children’s passports in the future. The wife relied upon the fact that she could not trust the husband to hand over the passports if she wanted to take the children on a holiday. The husband said there was no basis for such an assertion. Subsequent to final property orders being made, the wife gave the husband a variety of boxes of photographs taken during the parties’ relationship. They are her property but she provided him with those boxes to scan the photographs and now, some two years or so later, they have not still been returned. Ironically, during the very life of the hearing, two of those boxes had been returned and the husband had got much of the scanning done. I indicated that this was not so much a jurisdictional issue but rather, whether or not the wife’s application should be treated as an enforcement application. Having regard to the husband’s assertion that he would give all of the photographs back to the wife within three weeks from the day that he gave evidence, I see no reason in the circumstances not to accept his word and therefore, should not be concerned about the property issue. If he fails to return them, a simple enforcement application can be brought. As I said, the photographs issue led into the passport mistrust. To ensure that the court is no longer involved with the parties and as no other sensible proposal was put forward, each of the parties should hold the passports on an annual alternating basis.
A final issue that was puzzling was the question of whether or not Father’s Day should conclude on the Sunday night or the Monday morning. Under the orders that will now be made, the children would return normally every Sunday to the wife. Father’s Day obviously being a Sunday, they will spend that with the husband. He suggested that the time should extend to the Monday morning to avoid a handover and potential conflict. The husband is capable of delivering the children to school because he does it each week on a number of days. There is no suggestion that the husband cannot care for the children. As the wife also sought a similar consideration, in respect of Mother’s Day, it seems to me to be sensible that the children do not have to necessarily go back on the Sunday night of Father’s Day but rather, go to school direct with the husband on the Monday morning. In respect of Mother’s Day, there is no logical reason why the father’s time cannot end on the Saturday night prior to Mother’s Day so that the children are with their mother on the Sunday morning. They would naturally go with her to school on the Monday morning that follows. The inference I have drawn as to why this was an issue really goes back to the question of why the parties cannot reach agreement. Their communication and trust of each other is poor. In my view, it would be best for the children to spend that special day without it being interrupted at either end. In those circumstances, I propose to make orders in relation to Father’s Day (and to the extent necessary, Mother’s Day) in terms of the way the husband saw the matters.
Save as to issues of cost, the proceedings should otherwise be dismissed.
Accordingly, I make orders as set out at the start of these reasons.

I certify that the preceding One Hundred and Thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 February 2017.

Associate:

Date: 22 February 2017

[2017] FamCA 84

22 February 2017

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