Asprey and Delamarre
[2014] FamCA 838
•3 October 2014
FAMILY COURT OF AUSTRALIA
| ASPREY & DELAMARRE | [2014] FamCA 838 |
| FAMILY LAW – CHILDREN – Best Interests – Where there are two children aged seven and three – Where the children live primarily with the mother and spend alternate weekends with the father – Where the mother seeks that she have sole parental responsibility, that the children live with her and spend alternate weekends from Friday afternoon until Monday morning with the father – Where the father seeks equal shared parental responsibility and that the children ultimately live with him six nights a fortnight – Where the parties both propose an increase in the time the children spend with the father in the future pursuant to a graduating regime – Where the children have meaningful relationships with both parents – Where there is a high level of hostility and conflict between the parents – Where the parents live one hour’s drive apart – Where the mother expressed concern with the amount of travel the children undertake – Where the mother expressed concern that the father suffered health issues which would impact his driving ability – Where the father was not a credible witness – Where the father was not fulsome in his disclosure – Where the Family Consultant opposed an equal time arrangement – Where it is ordered that the mother have sole parental responsibility – Where it is ordered that the current living arrangements continue and the younger child spend one additional night with the father – Where it is ordered that the father is to spend time with the children after school until 7.30 pm on one night in the intervening week – Where it is ordered that the time the children spend with the father increase over time. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC | ||
| ||
| APPLICANT: | Ms Asprey | |
| RESPONDENT: | Mr Delamarre |
| FILE NUMBER: | SYC | 4348 | of | 2011 |
| DATE DELIVERED: | 3 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 11 – 13 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridger |
SOLICITOR FOR THE APPLICANT: | Jo Anna F S Moy Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
| SOLICITOR FOR THE RESPONDENT: | Aubrey Brown Partners |
Orders
The mother shall have sole parental responsibility for the children, B Asprey-Delamarre, born on … 2007 and C Asprey-Delamarre, born on … 2010.
Prior to making decisions about any major long term issues the mother shall give the father as much written notice as is practicable and shall provide with that notice information about the nature of the decision to be made and the reason why it is required. The mother shall consider any written response provided by the father within a reasonable time and provide the father with written notice of the decision when it is made.
Each party shall have sole parental responsibility for the day to day care and welfare of the children or either of them, while in their exclusive care.
Unless the parties otherwise agree, the children shall live or spend time with the father:
a. during school term as follows:
i.from after school each alternate Wednesday until 7.30 pm, with the father to collect the children from school / pre-school or from the mother’s residence, as the case may be, at the commencement of each occasion and return them to the mother’s residence at the conclusion thereof, with the time to commence on the first Wednesday of each school term;
ii.the child B shall live with the father on alternate weekends from after school Thursday to before school Monday, with the time to commence on the second Thursday of each school term;
iii.Until the child C starts school, he shall live with the father on alternate weekends from 10.30 am each Friday until before school Monday, with the time to commence on the second Friday of each school term;
iv.From the time C starts school, he shall live with the father on alternate weekends from after school Thursday to before school Monday, with the time to commence on the second Thursday of each school term;
b. during school holidays as follows:
i.Until C commences Year 2, the children live with the father for five days of the school holiday periods at the end of terms one, two and three of each school year, unless the parties otherwise agree that is to be the first five days of the holidays in even numbered years, commencing at 3.00 pm on the last school day and concluding at 12.00 pm on the fifth day thereafter and to be the last five days of the holidays in odd numbered years commencing at 12.00 pm on the second Tuesday of the holidays and concluding at 12.00 pm on the last Saturday of the holidays; and
ii.Until C commences Year 2, for two periods of five days in the Christmas school holidays, unless the parties otherwise agree that is to be from 12.00 pm on 2 January to 12.00 pm on 7 January and from 12.00 pm on 12 January to 12.00 pm on 17 January.
iii.From the time C commences Year 2, the children live with the father for one half of each school holiday period at such times as are agreed between the parties and failing agreement, for the first half in each even numbered year and the second half in each odd numbered year, with changeover occurring at 3.00 pm on the last day of school term, 3.00 pm on the day which represents the mid point of the holiday period and 3.00 pm on the day prior to the resumption of school.
c.The children otherwise spend time with the father as may be agreed between the parties and in default of agreement:
i.from 2.00 pm Christmas Eve to 2.00 pm Christmas Day in years ending with an odd number and from 2.00 pm Christmas Day to 2.00 pm Boxing Day in years ending with an even number;
ii.in those years when Easter does not fall within the school holidays, in years ending in an odd number, from 12.00 pm on Easter Saturday until 12.00 pm on Easter Monday. In such years that end in an even number the father’s time will be suspended from 12.00 pm on Easter Saturday until 12.00 pm on Easter Monday;
iii.on occasions when they otherwise would be with the mother, on Father’s Day from 9.00 am to 5.00 pm; and
iv.if the children are otherwise to be with the father pursuant to these orders on Mother’s Day, his time will be suspended from 9.00 am to 5.00 pm.
Except where the orders otherwise provide or unless the parties otherwise agree, the father’s time will commence with collection by the father from school or from the mother’s residence, as the case may be and will conclude with the mother collecting the children from school or from the father’s residence, as the case may be, at the conclusion of each occasion.
The children shall otherwise live with the mother.
Each of the parents shall facilitate the children telephoning the other parent during periods when they are away from the other parent for more than one day, between 6.00 pm and 6.30 pm every second day on the landline of the other parent, with such calls to be of no longer than 10 minutes duration. For the purposes of those telephone calls the children are to be afforded privacy and the telephones are not to be on loudspeaker.
The father is to forthwith notify the mother of any diagnosis or change in the state of his health which could impact on his capacity to drive or to care for the children.
Each parent shall do all such things and sign all such instruments, documents and authorities necessary to ensure that:
i.each parent is at liberty to communicate directly with the children’s school or pre-school teachers and other school or pre-school authorities as to the children’s progress at school and any problems being experienced by the children and to enable their school records to record each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming school events.
ii.to enable each parent to communicate directly with any medical practitioner as to health related treatment being undertaken by the children without necessarily first referring to the other parent.
Each parent shall keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the children are from time to time involved (or which relate to activities of the children although the children themselves might not be involved, for example parent/teacher interviews) and at which parents may attend.
Each parent shall at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the children and the identity of the treating professionals and in any event notify the parent they are not presently living with immediately upon the happening of a serious accident or illness experienced by the child and as to the treatment being rendered.
By consent each party is restrained from causing the children to be known as or enrolled in any institution, other than under the surname Asprey-Delamarre.
Each party is restrained from making derogatory remarks or otherwise denigrating the other party or any member of the family of the other party, to or in the presence or hearing of the children or either of them.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Asprey & Delamarre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA |
FILE NUMBER: SYC 4348 of 2011
| Ms Asprey |
Applicant
And
| Mr Delamarre |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings involving the children B Asprey-Delamarre who is seven years of age and C Asprey-Delamarre who is four years of age.
The main issues are:
·whether the mother will have sole parental responsibility or whether the parties will have equal shared parental responsibility; and
·the time the children will spend with their father and whether that will be the same time for both children.
Applications
The applicant mother sought orders to the following effect:
1.That the mother have sole parental responsibility for the children;
2.That the children live with the mother and spend time with the father as follows:
a.Until the commencement of term 4 in the year [C] starts school, [B] spend time with the father on alternate weekends from after school Friday to 5.00 pm Sunday.*
b.Until the commencement of term 4 in the year [C] starts school, [C] spend time with the father from Friday afternoon until 5.00 pm Sunday.*
c.On alternate Fridays, the father is to collect [B] from school at the end of the school day and collect [C] from the mother’s residence 30 minutes before the end of [B’s] school day.*
d.That the father deliver the two children to the mother at the [H] Contact Centre at 5.00 pm on alternate Sundays.*
e.From the commencement of term 4 in the year [C] starts school, the two children spend time with the father on alternate weekends from Friday afternoon at the end of school to the commencement of school on Monday morning with the father to collect and return the children to and from school.
f.Until [C] turns eight years of age, [B] to spend five consecutive nights with the father during school holidays at the end of term one, two and three and two blocks of five consecutive nights with the father during the December/January school holidays.
g.Upon [C] turning six years of age, the two children spend five consecutive nights with the father during school holidays at the end of terms one, two and three and two blocks of five consecutive nights with the father during the December/January school holidays.
h.Upon [C] turning eight years of age, the two children spend one half of each school holiday period with the father.
i.The children to spend time with the father from 2.00 pm Christmas Eve to 2.00 pm Christmas Day in years ending with an odd number and from 2.00 pm Christmas Day to 2.00 pm Boxing Day in years ending with an even number.
j.The two children spend Father’s Day with the father from 9.00 am to 5.00 pm and Mother’s Day with the mother from 9.00 am to 5.00 pm.
k.The mother is at liberty to enrol the children in such school as she considers appropriate and is to notify the father in writing of any enrolment.
l.The father is to keep the mother informed as to the state of his health and any deterioration.
* During final submissions, the mother changed her position with respect to paragraphs 2 a, b, c and d. She ultimately adopted the order sought in order 2 e with different changeover details accounting for the fact that the child C will not yet be at school. The mother proposed that both children spend time with the father on alternate weekends from Friday afternoon at the end of school for B and after swimming lessons for C until Monday morning with the father dropping B back to school and C to the mother’s residence.
Albeit not part of the order she seeks, during final submissions the mother indicated through her counsel that she would agree to the father having an afternoon with the children in the intervening weeks from after school to 7.00 pm.
The respondent father sought orders to the following effect:
1.That the children live with the father as set out at a. and b. below and otherwise with the mother.
a.As to [B]: in a two week cycle, in the first week collection from after day-care/school on Thursday at the conclusion of school/day care until 8.00 am the following Wednesday in week 2. For one half of each and every gazetted New South Wales school holiday period at such time as agreed between the parties and failing agreement for the first half in each even numbered year and the second half in each odd numbered year, with changeover occurring at 3.00 pm on the last day of school term until 4.00 pm on the day which represents the mid point of the holiday period by way of collection by the mother from the father’s residence at 4.00 pm or at 4.00 pm on the day prior to the resumption of school.
b.As to [C]: From 1 September 2014 in accordance with a. relating to [B] and that from the time that [C] turns four years of age he spend the same school holiday time with the respondent as [B] does.
2.That where not otherwise specifically provided for, the respondent pick up the children from the school/day care/mother or in regards to [C] if not attending day-care at the applicant’s residence at the commencement of the time the children are to spend with him and the applicant pick up the children from the respondent’s residence at the conclusion of such period of time or, if the children are living with the respondent and are to spend time with the applicant then the applicant is to collect and return the children.
3.That each party have sole parental responsibility for the day to day care and welfare of the children whilst in their respective care.
4.That notwithstanding any other order herein contained, the parties ensure that the children:
a.Have liberal daily telephone communication with the parent they are not presently living with.
b.Spend Father’s Day with the respondent if not then with the respondent from 3.00 pm Father’s Day evening to 5.00 pm Father’s Day and vice versa with the applicant on Mother’s Day.
c.Spend time with the respondent at Easter each even numbered year from 4.00 pm Good Friday evening to 4.00 pm Easter Saturday and in each odd numbered year from 4.00 pm Easter Saturday to 4.00 pm Easter Monday and vice versa with the applicant during these periods.
d.Spend time with the parent they are not presently living with on each of the children’s birthdays for not less than four hours, i.e. either 9.00 am to 1.00 pm or 1.00 pm to 5.00 pm to be mutually agreed or if no agreement from 9.00 am to 1.00 pm or if a school day 3.00 pm to 5.00 pm.
e.Spend time with each parent on that parent’s birthday for not less than four hours i.e. from either 10.00 am to 2.00 pm or 2.00 pm to 6.00 pm to be mutually agreed or if no agreement from 10.00 am to 2.00 pm or if a school day for two hours from 3.00 pm to 5.00 pm.
f.Spend time with the respondent from 12.00 pm Christmas Eve to 3.00 pm Christmas Day in each even numbered year and from 3.00 pm Christmas Day to 6.00 pm on 26 December in each odd numbered year and vice versa with the applicant.
5.That each parent do all such things and sign all such instruments, documents and authorities necessary to ensure that:
a.Each parent is at liberty to communicate directly with the children’s school teachers and other school authorities as to the children’s progress at school and any problems being experienced by the children and to enable their school records to record each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming school events.
b.To enable each parent to communicate directly with any General Practitioner as to health related treatment being undertaken by the children without necessarily first referring to the other parent.
6.That each parent keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the children are from time to time involved (or which relate to activities of the children although they themselves might not be involved, for example parent/teacher interviews) and at which parents may attend and each parent be at liberty to attend.
7.That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the children and the identity of the treating professionals and in any event notify the parent they are not presently living with immediately upon the happening of a serious accident or illness experienced by the child and as to the treatment being rendered.
8.That the parties have equal shared parental responsibility in making decisions as to the various important and/or long term decision as to the care, welfare and development of the children:
a.Firstly discuss the matter involved with each other in a thoughtful respectful way;
b.Then, failing agreement reduce their views as to the problem and its resolution to writing and provide a copy thereof to the other;
c.Then, failing agreement, employ the services of a Government authorised mediation service to assist in the resolution of any problem.
9.That each party be and is hereby restrained from causing the children to be known as or enrolled in any institution other than as their full registered surname of Asprey-Delamarre.
As is referred to above, in addition to the above orders, during final submissions the father proposed through his counsel, that if the Court was concerned about the amount of travel the children were required to undertake, that he would see the children for one afternoon from after school until 8.00 pm in the off week, spending time with the children in the Sydney Metropolitan area.
Written Evidence
The applicant relied on:
·Amended Initiating Application filed 18 September 2011;
·Affidavit of the mother filed 6 March 2014;
·Affidavit of the mother filed 18 August 2014; and
·Affidavit of the mother filed 7 March 2014.
The respondent relied on:
·Affidavit of the father filed 26 February 2014; and
·Affidavit of Ms Y filed 25 February 2014.
Expert Evidence
The following expert evidence was relied on:
·Family Report of Ms T dated 11 November 2013;
·Child Responsive Program Memorandum of Ms T dated 17 November 2011.
The Hearing
The hearing commenced on 18 August 2014 and on 20 August 2014 judgment was reserved.
Short History
In 1961 the father was born. As at the date of the hearing he was 53 years of age. In 1968 the mother was born. As at the date of the hearing she was 46 years of age. The parents met in 2002 and were in a de facto relationship until January 2011. The parties did not cohabit full-time. There are two children of the relationship namely B, born in 2007 and C, born in 2010 who are seven and four years of age respectively.
In connection with the mother’s claim for property settlement, Justice Cleary made a declaration pursuant to s 90 RD of the Family Law Act 1975 (Cth) (“the Act”) on 5 April 2013 that a de facto relationship existed between the parties from May 2002 until January 2011. The father’s appeal in respect of that declaration has been heard and is awaiting the delivery of judgment by the Full Court.
Background Facts
The mother and father met in May 2002 at a work related conference. The parties did not live together on a full time basis.
The father has adult children from an earlier marriage.
The child B was born in 2007.
The child C was born in 2010.
Following the birth of the children, the mother and children lived with the father at his home on the weekend and at some other times. The children otherwise lived with the mother at her home at Suburb D.
The mother deposed that while the parties were together, on two occasions, in March 2009 and July 2010, the father attended the mother’s residence and removed B from her care without the mother’s consent or agreement.
The parties ended their relationship in January 2011. From that time until Easter 2011, the children lived with the mother at her home at Suburb D and the child B spent most weekends with the father at his home on the Central Coast.
The child C spent time alone with the father for the first time in April 2011.
In mid-2011 the mother and children moved from Suburb D to Suburb V.
The mother deposed that from February 2011 to mid-2011 the father made arrangements with B for her to spend weekends with the father at the Central Coast, without consulting the mother.
On Friday, 1 July 2011 the father spent time with the children. At that time the child C was still breastfed. The father agreed to return C to the mother at 3.00 pm that same day and to return B at the end of the weekend. Without communication/consultation with the mother, the father took the children to Town S. The mother called the Police Station, who made a welfare check on the children. On 4 July 2011 the mother attended the father’s holiday unit at the Central Coast with two officers from H Police Station and collected the children.
The mother deposed that on 2 January 2012 the father sent the mother a text message which said “I will make it a personal endeavour to take those children away, far away from you”.
Until 6 February 2012 the children spent time with the father on Friday mornings at swimming lessons for about two hours.
On 6 February 2012 interim orders were made for the children to live with the mother, have telephone contact with the father and spend time with him under a two week cycle as follows:
a)B was to spend time with the father in week one from 10.00 am Monday morning to Tuesday morning and on Friday from 10.30 am on the days B attends swimming and otherwise from 9.00 am to Sunday 5.30 pm. In week two she was to spend time with the father on Wednesday from after day care/pre-school to Thursday morning and on Friday from 10.30 am on the days B attends swimming and otherwise from 10.00 am to 4.30 pm.
b)C was to spend time with the father in week one on Monday from 10.00 am to 4.30 pm; on Friday from 10.30 am on the days C attends swimming and otherwise from 10.00 am to 4.30 pm and on Sunday from 10.00 am to 5.30 pm. In week two he was to spend time with the father on Wednesday from 10.00 am to 4.30 pm and on Friday form 10.30 am on the days C attends swimming and otherwise from 10.00 am to 4.30 pm.
An incident occurred between the parties on 24 November 2012. The mother deposed that the father told her to “Get off my property”, that he thrust both his hands to her chest, pushed her backwards and slammed a gate shut in her face. The mother also deposed that the father said “Go home bitch. Go home bitch. You are not wanted here.” The mother attended the Police Station where her statement was taken. The father denied pushing the mother and calling her a bitch. He gave evidence that the mother would not leave his property and had her foot in the way of the gate so he could not close it and that he moved her leg.
On 19 November 2012 at a changeover and in the presence of the child B, the mother said “fuck off [father’s name]” to the father.
The mother deposed that on 29 December 2012 the father said to B, in the mother’s presence “No I don’t like Mummy”.
The father deposed that the mother failed to facilitate telephone contact on multiple occasions at the end of 2012 and beginning of 2013.
On 31 January 2013 B commenced school at V Public School.
In February 2013 the father commenced a relationship with Ms Y.
The mother deposed that in February 2013 the father threw a plastic bag at her feet and said “Suffer, suffer. You are going to have to walk past my place and the kids are going to live with me. Suffer, suffer.” The father did not concede that evidence. I prefer the evidence of the mother.
On 20 February 2013, interim orders were made by Justice Aldridge including that orders 2 – 6 of the orders made on 6 February 2012 be discharged and that:
a)B live with the mother and spend time with the father each alternate weekend from after school on Thursday to before school on Monday, for the first week of the school term holidays and from 10.00 am on Good Friday until 10.00 am on Easter Sunday.
b)C live with the mother and spend time with the father each alternate weekend from 10.30 am Friday until 3.00 pm on Sunday, from 10.00 am on Good Friday until 10.00 am on Easter Sunday.
On 5 April 2013 Justice Cleary delivered a judgment declaring that a de facto relationship existed between the parties from May 2002 until January 2011.
On 9 June 2013 an incident occurred where the mother, after collecting the child C from the father’s home, ran after C who was walking towards the road. The mother had B in her arms and in a successful attempt to grab C, fell over, still with B in her arms. The mother suffered grazes and cuts to her elbows and arms and the father yelled at the mother “You’ve just fallen on her [[B]], why did you do that?”. The maternal grandmother who had been waiting in the car came to assist the mother. The mother deposed that the father yelled at her “you ugly old bat”. The father denied ever saying this.
The mother deposed that B after spending a week with the father in July 2013, was very clingy and claimed to have a sore stomach. The mother took B to see a doctor at the Medical Centre who recommended she see a child psychologist.
From 2 August 2013 to 21 September 2013 B attended five sessions with Registered Psychologist Dr W at Z Child Psychology Centre in relation to her separation anxiety from the mother at the commencement of school. Dr W reported that B made great progress and by the last session was able to separate from her mother at school drop off time, without anxiety.
In August 2013 the father attended the Interrelate Family Centre’s program, Parents not Partners – a post separation parenting program.
On 8 November 2013 the father made a complaint to the police stating that the mother was refusing to let him pick up the children. The complaint was later withdrawn. The father deposed that on this occasion the mother would not remove herself from his car when handing over the children.
The mother deposed that on 9 November 2013 she attended the father’s house to collect C. She deposed that during a discussion about B’s sports clothes, the father pushed her and said “I knew I should have got rid of you”.
The mother deposed that after spending three weeks with the father during the school holidays in December 2013/January 2014, B, on return to the mother, exhibited signs of anxiety and was clingy to the mother. The mother also said that B was rude, disobedient and demanding towards her.
The mother saw a counsellor at I Family Health Care Centre on 26 February 2014 in relation to concerns she held about putting in place strategies for B with respect to attention seeking behaviour, boundaries and rules.
The child B currently attends V Public School where she is in Year 1. The child C currently attends pre-school three days a week.
The mother currently lives in Suburb V and the father lives in Town N on the Central Coast.
The Expert Evidence
The single expert was Ms T. Ms T has a Bachelor of Arts from the University of New South Wales, a Bachelor of Social Work from the University of Sydney, a Graduate Diploma in Couple and Family Therapy from the University of New South Wales and a Post-Graduate Certificate in Emotional and Behavioural Problems of Childhood.
Ms T worked as a Child Therapist for a sexual assault unit in H Town in 1991, as a Psychiatric Social Worker at a Hospital in 1991, as a Senior Practitioner in the United Kingdom from 2005 – 2006, as a Family Consultant at the Family Court of Australia from 2006 – 2008, as a Family Consultant at the Federal Magistrates Court of Australia from 2008 – 2010 and as a Family Consultant in this Court since 2010.
Ms T prepared a Child and Parents Issues Assessment in these proceedings on 17 November 2011 and a Memorandum to Court on 6 February 2012.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Act.
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Parties’ Proposals
It is agreed that the children will spend overnight time with both parents. It is agreed that for more than half the time, the children will live with the mother.
The range of dispute on the key areas seems to be:
a)The mother seeks sole parental responsibility and the father seeks that parental responsibility be equally shared;
b)The father seeks that his time with the children progress to six nights a fortnight and half the school holidays. The mother seeks that the father’s time with the child B be reduced and that during school term both children be with him from Friday after school until Monday morning of each alternate weekend. She seeks that block holiday time be reduced as follows:
i.Until the child C turns eight years of age, B to spend five consecutive nights with the father during school holidays at the end of term one, two and three and two blocks of five consecutive nights with the father during the December/January school holidays.
ii.Upon C turning six years of age, the two children spend five consecutive nights with the father during school holidays at the end of terms one, two and three and two blocks of five consecutive nights with the father during the December/January school holidays.
iii.Upon C turning eight years of age, the two children spend one half of each school holiday period with the father.
Section 60CC Considerations
As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings.[1] As the legislation related to these proceedings the section specified the following considerations:
[1] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]
[3] Champness & Hanson (2009) FLC 93-407.
Each of the parents proposes that the children have overnight time with the other parent, including block periods and that the time be unsupervised. The background facts support a finding that the children have meaningful relationships with both parents. It would be appropriate to make orders that will promote those relationships.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
There are no allegations about sexual abuse.
The mother alleges that C told her that the father had hit him. She also said that the father uses an old fashioned method of discipline with the children. The mother conceded however, that if a safety issue arose then it would be appropriate to strike a child. She said if C pulled out a live power cord, that it would be okay to give him a smack on the hand. When asked about the mother’s allegation, the father denied that he had hit C. He conceded that he will give C a ‘pat on the backside’, although nothing ‘heavy-handed’ sometimes and that C needs a little bit of discipline at times. Importantly, the mother was not critical of the father for striking the children by way of discipline. No orders are sought by her to restrain such conduct. Although minds differ about the appropriateness of physical punishment, this is apparently not a significant issue for these parents. If this was an issue between the parties then the Court would likely take the conservative course of restraining the children being struck, particularly in circumstances where there is significant hostility and there have been some physical confrontations and angry arguments and communication between the parties. In that environment it can be difficult to measure out a ‘pat on the backside’, and to avoid something ‘heavy-handed’. However, if the parents have a different view then such an order would be of no practical utility.
The mother alleged and the father conceded that they have come into physical contact on occasions since separation. For example, the mother would have it that the father pushed her on one occasion and the father says that he moved her leg out of a gateway. I am inclined to the evidence of the mother about that incident but neither version reflects well on the father.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The child B is currently seven years of age and C is four years of age.
The mother conceded that when she speaks to the children by phone when they are at their father’s place, they do not ask to come home early. However, B has expressed the wish to come home with C when he returns to the mother on a Sunday night.
It is not suggested that the children have expressed a wish that is relevant to the issues before the Court, or that had such a wish been expressed, that it would be significantly relevant to the determination of those issues.
(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Albeit somewhat muted on the mother’s part, the evidence suggests that each of the parents believes that there is a loving relationship between the children and each parent.
The child B, after discussing an incident at changeover in June 2013 where the mother fell on the road and squashed her (discussed below), told Ms T that the father “used to be nice” to her mother but that, “now he is horrible and a bully and sometimes he is like this to me… I want to spend more time with Mummy as Daddy is mean and yells at me.” B immediately added “I love my Mummy a teensey weenie bit more than Daddy”. The mother also gave evidence that C has said the father is mean to him. The father denied that he is mean to the children.
The maternal grandmother, Ms A, gave evidence at trial. It appears that the children have a close and loving relationship with their grandmother and that she is a significant presence in the children’s lives. The maternal grandmother gave evidence that she is present at most of the changeovers between the mother and the father. She is clearly very proud and fond of her grandchildren.
Remarkably, the father’s four older children and his two grandchildren have never met B or C. It is the father’s evidence that he is waiting for the right opportunity (to get them together). One of the father’s sons also lives on the Central Coast with his children, who are six and eight years of age. The father reported that he is estranged from that son because of something of an illegal nature that caused him to dismiss his son from his employment. The father has not seen his grandchildren for about 12 months and B and C have never met those children.
There is no significant evidence about the relationship between the children and their paternal grandparents. In his affidavit the father refers to the fact that he takes C to see them, with the paternal grandparents now separated because the father’s mother is in a nursing home.
Ms Y briefly but relevantly deposed in her affidavit:
8.I have been a part of many family days such as taking the children on a ferry ride to the circus, and the Easter show and family gatherings.
9.I am not present the entire time the children are spending time with [the father]…
11.I have developed a lovely relationship over the last 12 months with both [B] and [C] and they will often ask me to stay for dinner, stay the night or not go home.
12.I have observed the children to be happy and enjoy the time we spend together.
Ms Y was not challenged on her evidence. Ms T did not interview the father’s partner and so could not make any comments based on observations of Ms Y and the children.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Due to the level of conflict and hostility between the parents, I have real doubts about their capacity to promote each other to the children.
The mother conceded that on one occasion she told the father to ‘fuck off’. She said that she regretted saying this. She also admitted to calling the father a ‘prick’ via text message. The father has included several other examples of unpleasant communications from the mother in his affidavit, including communications to which the children were exposed and was not challenged on the substance of his evidence about those incidents. There has been and still is a high level of hostility from the mother to the father. The mother claimed to be less hostile to the father than he is to her and that her hostility is reactionary.
The mother conceded that the children love the father. She said their relationship with the father is changing as they get older and that they have a ‘lot of fun’ with the father. She acknowledged that the hostile behaviour between the parents is causing the children problems.
The mother claimed that the father had denigrated her and the maternal grandmother. In particular she referred to an event in 2013 where the father called the maternal grandmother an ‘old bat’. The father denied denigrating the mother and the maternal grandmother. The father asserted that the reference to bats came to the children’s ears via a story book at preschool. It is not possible to make a finding about that particular issue.
The father denies that he is hostile to the mother. In the circumstances that each of the parties describe over the last few years, it is not believable that the father has neither felt nor expressed any hostility towards the mother since January 2011. The father’s evidence on some specific matters proved unreliable. The mother did not resile from the substance of her evidence about the father’s communication and conduct towards her. It is likely that by word and deed he has expressed his hostility towards the mother and on occasions, has done so to or in the presence of the children.
Both parents complain about the facilitation of telephone contact with the child B. The mother and father both state that the telephone is often not answered in the other household, that there is a lot of background noise and that the other parent is often listening into their telephone conversation. The father complained in particular that B talks to him with the phone on loudspeaker and the mother said that often B did not want to speak to the father and said to him “I don’t want to talk to you today”.
The Family Consultant agreed that young children do not always have a lot to say on the telephone and that a daily phone call with the other parent could be too much. However she suggested that the parents should not allow B to express a dismissive attitude towards the other parent when she does not want to speak to that parent on the telephone. She suggested that allowing this behaviour could permeate other relationships the child has and that it would be more appropriate for the mother to encourage a short conversation with the father when the child does not feel like speaking.
Both parents admit that this telephone issue could be resolved, with each parent giving B privacy when on the phone to the other parent and encouraging B to take the phone calls. The mother also seeks that the time of the telephone communication be moved from 6.45 pm to 6.00 pm.
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother gave evidence that B suffers from anxiety, particularly when having to separate from the mother at school or handovers to the father. In order to address this issue, B attended five sessions with Registered Psychologist Dr W at Z Child Psychology Centre in 2013. Dr W reported that B made great progress and by the last session was able to separate from her mother at school drop off time without anxiety.
The father said that B does not appear to suffer from anxiety but noticed that she also had issues separating from him when dropped at school. He said that the issue is easily overcome when a teacher takes B’s hand and leads her to the other children.
B is currently attending a ‘Cool Kids’ course once a fortnight to assist with her anxiety. The mother said that B’s counsellor has said she is not sure how effective the course will be for B due to the hostility in her home environment.
Both parents gave evidence that B often complains of a sore stomach. The mother says her complaints generally arise before or after spending time with the father. The father gave evidence that her complaints of a sore stomach are generally random. He said that B’s complaints are not always genuine and that she is learning what she can and cannot get away with.
The mother proposes that the time B currently spends with the father be reduced. The Family Consultant said that a reduction in the time B spends with the father would not be recommended. She suggested that it would be preferable for both children to spend time with the father together, and given that C was about to turn four years of age, it would be preferable that he spend an additional night with the father, rather than B spending one less night with him.
The father gave evidence about C acting out at changeover but that problem was not extensively addressed during the trial. I take it that things have settled down.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
As to practical matters, the mother lives at Suburb V and the father lives at Town N on the Central Coast. The parties gave evidence that it is approximately a one hour drive between these suburbs. The children attend school/day care in Suburb V and when staying with the father, the father drives them to and from school/day care.
The mother expressed concern with the amount of travel the children currently undertake. It is her case that she is concerned with both the frequency and distance of travel that the children undertake and raised this as one of the reasons she would like the time the children spend with the father to be reduced.
The mother was concerned that C had to travel both to and from the mother’s residence when the father dropped B at school. She stated that C is a very wakeful child who suffers from snoring and is often awake for two to three hour blocks during the night. She suggested that if he had to travel early each morning his sleep pattern and routine would be compromised and that it was not fair for the boy to have to sleep part in his bed and part in the car. The father agreed that C often slept in the car, stating that he tends to get ‘very relaxed’ during the trips to and from Suburb V.
The father gave evidence that the travel between residences was not a problem for the children. He said that despite driving on a Friday afternoon, he did not experience heavy traffic or slow driving conditions. The father suggested that to get B to school on time, they did not need to leave his house on the Central Coast until 8.00 to 8.10 am and that the trip never takes longer than one hour.
The mother also expressed concern that the father suffered health issues which would impact his driving ability. She referred to a number of medical reports and a potential Multiple Sclerosis diagnosis. The reports tendered from Dr O, Dr U and Dr R[4] do not provide a conclusive diagnosis of the father’s condition. The reports note that the father observed tingling in his left index, middle and ring fingers and more recently, problems with his left leg and suggest that he suffers compressive cervical myelopathy or progressive cervical myelopathy. Dr U is a Neurosurgeon and he is not convinced that the father suffers from Multiple Sclerosis. Dr O is a Neurologist who has no doubt that the father suffers a very slowly progressive cervical myelopathy but is unsure about the cause or the best management of the condition.
[4] Exhibit 2.
The father denied that he had been diagnosed with Multiple Sclerosis and on the face of the medical reports there is no such conclusive diagnosis. The father denies that he suffers any illness that would impact his driving or parenting abilities. However, the father told Dr O that he is losing “significant function”.
The father gave evidence that he had been involved in several motor vehicle accidents, one of which occurred earlier this year on the M1. He deposed that none of these accidents involved the children or were serious in nature. He sought to minimise his most recent accident, initially failing to disclose that the accident had taken place at all and after having disclosed the accident, he was not entirely candid about the issue.
The father is not a credible witness. His evidence about comments allegedly made by C in respect of a car accident in 2014 was not credible. The sequence was as follows. The father was cross-examined about the mother’s allegation that C told her that he had been involved in a car accident when “Dad made a car go into a wall”. The father responded to the effect that C has a vivid imagination. It transpired from the evidence of Ms Y that there was such a car accident, albeit that C was not in the car at the time. Ms Y reported that the father’s car lost traction, that it aquaplaned and hit a rock wall on the freeway. When challenged about that, it was the effect of the father’s evidence that C must have made up the fact of an accident because the report from C came well before the accident. Thus, it was the father’s contention to the Court that C imagined a car accident similar to the accident the father was later to have. Unlikely, one might think. It transpires that C’s report was made after the accident. The issue was raised in letters between solicitors dated late June and July 2014[5] when the father says the accident took place on the June long weekend. If C was not in the car when the accident happened, then he has heard about it from someone. The father would not agree that it was possible that C had been told or had overheard something about the father’s accident.
[5] Exhibit 4.
When the problems identified by his evidence were drawn to the father’s attention he did not attempt to address those problems but repeated that C was not in the car at the time of the accident. The father could have given a more accurate and fulsome response to the questions about this issue. I take it that the father intended to mislead the Court about this issue and that gives rise to concern about his credit in relation to other issues.
The mother sought that an order that the father notify her of any deterioration in his health. In my view such an order is appropriate.
(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
Although the parents are very critical of each other, and the mother in particular is critical of the father’s parenting style, the range of dispute does not include proposals for supervision. On his primary proposal, the father wants the children to be in the mother’s care for at least half the time. The mother wants the father’s time reduced but still seeks that it be overnight and for multiple nights each fortnight. The necessary inference is that, despite their extensive concerns, each of the parents is seen by the other as being capable of providing for the children’s needs.
The mother was critical of the father’s parenting style, stating that the father puts himself before the children, whereas, she contends that she puts the children before herself. She also said the father often has guests over on weekends and keeps the children up late and is not as good as her at sticking to the children’s routines. She also objects to the children watching video hits on Foxtel while at the father’s house.
Both parents have attended post separation parenting courses. There may have been benefits from those courses but they do not appear to have achieved any improvement in cooperative parenting. The mother said she has found it frustrating that the parents cannot co-parent peacefully and would like to work towards this.
There was an incident in July 2011 where the father took the children to Town S without the mother’s consent. The father’s evidence was that his time with the children had been significantly reduced since separation, with B seeing him only once per month and C for only a few hours every month as he was breastfed. The father became frustrated that he could not spend time with his children on a regular basis and decided that he needed some time with the children. The father took the children on a Friday and was meant to return C later that day and B on Sunday. Instead he took the children to Town S and refused to tell the mother where he was. The mother called the police and ultimately collected both children with the police in attendance on Monday. At trial, the father made the necessary concession that his behaviour was inappropriate but that is not the tenor of his affidavit evidence on the point. He deposed:
65.… The incident the Applicant is referring to took place in June 2011 when there were no orders in place and the children had been withheld from me by the Applicant over a 4 month period. At all times the Applicant was informed as to the children’s whereabouts by myself and the [S] Police, who had been contacted by … Police Station. The children had been returned to the Applicant on the day on which I advised the Applicant they would be.”
The message seems to be that the father was justified in taking matters into his own hands. In any event, his conduct reflects poorly on his capacity to provide for the physical and emotional needs of the children. In June 2011 the children were not used to spending extended periods of time with the father and the child C was eight months old and still breastfeeding at the time this incident occurred.
There was a more recent incident when the mother fell over on the father’s driveway, squashing the child B as she grabbed at C who was running towards the road. The father acknowledged that B expressed anger against him for not going to the aid of the mother at that time. The father’s remarkable observation in cross-examination was to the effect that he learnt from that experience. He said that rather than taking B inside the house, he is now aware that she should have been given a proper opportunity to satisfy herself that her mother was not hurt.
On one occasion the father forgot to pack B’s sport shoes. The mother rang and asked the father to bring the shoes to school. The father said he was at work and it was not possible and refused. The mother later rang and asked him to allow her to collect the shoes. It would have taken him 15 minutes to go home and get the shoes and so he again refused. The mother later faxed him a receipt for a new pair of shoes and asked him to reimburse her and he refused. In my view the father could have assisted in one of the suggested ways if he had been focussed on B’s best interests.
The mother’s case is that the trip to the Central Coast is dangerous and arduous for the children. The father contends that is unremarkable, that C sleeps and that B is happy during the journey. In my view the parties have each exaggerated their cases about this issue. For example it is agreed that on the mother’s birthday, she asked the father to bring B to Sydney on a Friday when he came to collect C, so that B could say happy birthday to her. The father left B at his home so she would not have to undertake an unnecessary journey. Thus, on the face of it, the mother wanted B put to a trip that she contends is dangerous and arduous, for no sensible reason and the father sought to avoid B being put to a journey that he says is almost pleasurable, entirely safe and unremarkable.
I should say that the journey from Suburb V to the Central Coast is objectively arduous and can be dangerous. Where it is otherwise consistent with the best interests of the children, their travel on the M1 Pacific Motorway from Sydney to the Central Coast should be minimised.
On 8 November 2013, B was in the father’s care and had not attended school as she was unwell. The father came to the mother’s residence to collect C, with B waiting in the car. The mother, aware that B had been sick went over to the car and spoke to B. The father, after putting C in the car asked the mother to remove herself from his vehicle. The father deposed that the mother failed to remove herself from the car, so he called the police.
Among other things, these incidents highlight the level of hostility between the parties. One of the main issues in dispute relates to whether the main instigator of the hostility between the parties is the mother or the father. It is an agreed fact that there is hostility. Although that fact was conceded in his case, the father did not concede that he has been hostile to the mother. The mother agrees that she has been hostile to the father but says, that is mainly, if not exclusively, by way of reaction to the father. The father would have it that he is typically pleasant and that all the hostility comes from the mother. He said that he did not attend at some events such as C’s swimming, in order to avoid the hostility but asserted that the level of hostility between him and the mother is not such as to prevent them sharing parental responsibility. The father’s evidence about hostility is internally inconsistent.
Ms Y revealed that the father showed her SMS messages from the mother that were critical or disparaging of her. No explanation was given for the father doing that. It is highly unlikely that he thereby intended to promote cordial relations between the two women.
I am satisfied that the father set out to mislead the Court about C’s comments about a car accident. It is likely that he seeks to mislead the Court about his role the paucity of the relationship between the parents. An available interpretation of the interaction of the parties over the last three years is that they have each initiated and reciprocated hostility between them. Perhaps the parties have different styles of expression with the mother tending to be more active and the father, more passive. The question of who is more hostile or who initiates the hostility is an unlovely competition and I am not able to declare a “winner”. Suffice it to say that each parent can only be responsible for their own behaviour and for the sake of the children, each will need to modify that behaviour or put arrangements in place whereby the children are better insulated from it.
The father was not fulsome in his disclosure and therefore he should be required to provide important information to the mother. The mother’s solicitors requested details of a car accident from the father and nothing was provided. The father said that he did not respond, on legal advice. Perhaps understandably, that assertion was not tested but in the circumstances I cannot be confident that the father will keep the mother informed of relevant information in the future. Therefore I will require him to provide the mother with relevant information about his health.
Whether or not there is an estrangement, the father is apparently isolated from his adult children and their families. The father has not seen his grandchildren for about 12 months and he has either thought it not possible or not advisable for B and C to meet them. Perhaps the estrangement between the father and the father of his grandchildren may explain that circumstance but the apparent isolation of the father from the rest of his first family invites speculation about his capacity to form and maintain relationships.
Ms A is the maternal grandmother. She loves and supports her daughter and grandchildren. Mr A is the maternal grandfather. The only issue on which his capacity was challenged related to the extent to which he is hostile to the father. He conceded that he made remarks to his wife that reflected his hostility to the father although he contended that when he made such remarks in the precincts of the Court, he was trying to bolster and support his wife who was nervously waiting to give evidence, rather than seeking to demean the father. Given the conduct of the father that is referred to above and given as I have found, that the hostility between the parties is likely to be mutual, it is understandable that the maternal grandparents are not well disposed to the father. Understandable or not, the grandparents should be encouraged to help the children develop and maintain their relationship with their father. The children must be supported in their love and respect for both parents and should not be exposed to derogatory remarks about either parent.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The child B is bright and communicates well. Ms T expressed a concern that she has been encouraged to take on an adult role, aligning herself with her mother and criticising her father and her brother. Ms T described her as “pseudo-mature”. Ms T also expressed concern that the parties have permitted B to take responsibility for the telephone calls with the father during her time with the mother. While encouraging the parents to limit phone communication between the children and the absent parent – perhaps to once every second day, Ms T expressed concern that the parents have allowed B the option of not engaging with the father when he rang to speak to her at the mother’s home. Ms T was also concerned that the mother apparently supported B’s comment to her that C was “being a nightmare”.
Presumably the hostility and lack of cooperation between the parents, provides an environment in which B can seek to assume aspects of an adult role in the family. Ideally the parents would resume that role and encourage their daughter to return to pursuits more suited to her age.
The father was the product of a parochial school education. His older children attended the school he attended. It was the evidence of the mother, unchallenged on behalf of the father, that when they were together the parents had openly discussed sending B to the Central Coast Grammar School. In those circumstances, the father’s opposition to private education for the children is puzzling.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This provision does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It is common ground that the children have been exposed to the conflict and hostility between the parents. Whatever their respective intentions, the parties have not protected them from the consequences of their conflictive relationship.
The father has not facilitated a meeting between the mother and Ms Y. The mother has sought such a meeting. In my view the father should have supported contact between the two women who have close contact and relationships with the children. Lest it be thought that the children do not have close contact with Ms Y, it is the fact that when they are with their father, the children often come into the bed occupied by the father and Ms Y.
(3)(j) any family violence involving the child or a member of the child's family;
There are no orders sought in respect of violence and it follows that, neither of the parties has active concerns that the children will be exposed to violence by the other parent, in the future. The parents have come into physical contact with each other and that could and should have been avoided. The father conceded that he moved the mother’s leg on one recent occasion.
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no relevant order.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
As at the conclusion of the trial, the primary position of the parents would leave the children living mainly with the mother and ultimately having either six or three nights a fortnight with the father. I take it that an order in that range will satisfy the parents for the time being. That suggests that the need for further proceedings will thereby be minimised.
The father’s ultimate aim of near equal time is a source of dispute and whatever is done, there is the potential for that to give rise to further litigation, if only on appeal.
The mother wants the children to attend fee paying schools and the father wants them to attend government schools. The mother offered to pay the fees but the father gave evidence that the fees are not the issue in respect of his preference. He went on to say that he thought that there is no significant educational advantage from a private school and so the cost of the fees could be better spent elsewhere. That makes me think that the fees are partly the issue. If this matter was left to the parties to agree, I am not confident that they could resolve the issue. The most sensible course was not followed in relation to securing medical advice about C’s ears. An order for sole parental responsibility is likely to remove one possible basis for more litigation.
(3)(m) any other fact or circumstance that the court thinks is relevant.
On the face of the documents, there was a potential issue about the surname used by the children but that proved to be not in issue.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
Discussion
In the context of this case, s 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused them or engaged in family violence. It is alleged that the father pushed the mother and it is conceded that he moved her leg on that occasion. However, no orders are sought about this issue. The father has used physical punishment on the children. The mother allows that there may be situations of safety where physical punishment would be appropriate. The mother does not assert that the father has inappropriately chastised either child. In my view the presumption applies.
It was submitted on behalf of the father that the parties should have equal shared parental responsibility. The submission went - just because the parties disagree on various issues such as schooling, the mother should not be empowered to make the final decision about such issues.
Supporting the father’s proposal, a potential issue about the name of the children was resolved by the parties. During cross-examination the mother agreed that a mutual injunction could be put in place to restrain either party from causing or allowing the children to be known by any name other than their current hyphenated surname.
However, the parties have inconsistent views about the children’s education. As is recorded above, the mother gave evidence that she alone would meet the cost of private school fees for the children. Notwithstanding that the father’s older sons were educated at a parochial school (the school also attended by the father) and that he and the mother had discussed B attending the Central Coast Grammar School when they were together, the father continues to oppose the subject children attending fee paying schools. The mother’s solution to the impasse is that she be given sole parental responsibility. She is not sanguine about the parties being able to reach an agreement on the issue. Notwithstanding the father said that the fees are not the issue, he opposes the children attending private schools because he feels that there is no significant educational advantage from a private education and therefore the cost of the fees could be better applied elsewhere.
The mother invited the father to attend with her on a specialist in relation to C’s ears. He did not attend and did not make time to hear from the specialist at the time of the appointment. The father is worried about C undergoing a medical procedure and wants a second opinion. The mother does not oppose a second opinion and will attend on that doctor. It is completely understandable and reasonable that a parent would seek a second opinion. It is less understandable that the father did not take up the offers of involvement in the appointments with the first doctor. As with unnecessary medical procedures, there are disadvantages with unnecessary medical examinations.
The evidence supports a finding that there is significant hostility between the parents. I have no confidence that they will be able to cooperate in making decisions about important issues for the children. There is every possibility of the children being embarrassed or worse, by that fact.
Ms T considers that the mother should have sole parental responsibility.
It is logical that if one parent is to have parental responsibility, it be the parent with whom the children mostly live.
I will order that the mother have sole parental responsibility. I accept that the father is a loving and interested parent and that he is entitled to be consulted about major long term issues. After that process however, the court must have confidence that a proper decision can be made and in a timely and efficient manner.
Conclusion
The presumption that the parents have equal shared parental responsibility would be in the children’s best interests, does apply. However, the proper order is one that places parental responsibility with the mother. I will make an order in the terms proposed on behalf of the mother but will require her to advise and consult with the father.
Living Arrangements
In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular living arrangements. That said, it is necessary to address the parties’ proposals and they raise many of the issues attracted by an equal time and substantial and significant time, arrangements.
The following submissions were made on behalf of the father.
The main issue in this case is the period of time the father should spend with the children. Previous orders have brought about a situation of there being regular and frequent contact between the father and the children and this should continue, with time increasing as the children get older.
It was submitted that the Court should consider a graduating regime for the time the children spend with the father. It would not be in the best interests of B to reduce her time with the father and tie it to the time that C spends with the father. It was submitted that it was not enough for the father to see the children for only two nights a fortnight and that the mother’s proposal that C’s time with the father not be increased until 2016 was not favourable to the children. The more appropriate course would be to grant a slight extension of time in relation to C, allowing both children to come to the father on the Thursday and go back to the mother on the Monday.
The father proposed that if the Court is concerned about the amount of travelling the children undertake, the father could see the children one evening in the off week, spending time with them in the Sydney metropolitan area.
The father seeks that equal time be spent with each parent over school holiday periods.
It was submitted on behalf of the father that the level of hostility between the parties is not a one way street. There is the evidence of the maternal grandfather saying offensive things about the father outside the courtroom during the trial and within the hearing of the father’s partner and the maternal grandmother’s concession that she called the father a “prick”. It was argued that this behaviour reinforces the need to keep the parents apart by facilitating changeovers at the children’s schools, so as to avoid the children being subjected to the hostility of the parties.
The following submissions were made on behalf of the mother.
In terms of the issue of travel, the mother is not so concerned about the distance between Suburb V and Town N, rather the frequency of travel. The mother seeks to reduce the amount of travel the children undertake and submitted that contrary to the evidence of the father, the traffic on the M1 is heavy, at times dangerous and takes its toll on young children.
The communication and hostility between the parties is unlikely to improve based on the quantum of litigation the parties are involved in. There is no evidence of how the father proposes the parties’ communication would improve and both the mother and father have significant difficulties communicating.
In terms of time spent with the father, the mother submitted that B should not spend Thursday night with the father as it subjects B to two additional trips to and from Suburb V for only a short amount of time with the father, rather she proposed that both children spend time with the father from Friday after school for B and after swimming lessons for C to Monday morning before B’s school commences.
During school holidays, the mother proposes an arrangement in line with Ms T’s recommendations. She proposes that the children spend no more than four to five consecutive nights away from either parent. The mother submits that until C turns eight, B should spend five consecutive nights with the father during school holidays at the end of terms one, two and three and two blocks of five consecutive nights with the father during the December/January school holidays.
The recommendations in the Family Consultant’s report were as follows:
a.That the children live with the mother and spend time with the father fortnightly, [B] from the end of school on Thursday and [C] from just prior to the end of [B’s] school day on Friday. Both children ought to return to their mother’s care on Sunday afternoon with the changeover taking place at [H] Contact Centre.
b.From the beginning of term four of [C’s] first year at school then consideration could be given to both children spending time with their father fortnightly from the end of school on Thursday until the commencement of school the following Monday.
c.School holidays be shared and that the arrangements in place during school terms be suspended from the end of school on the last day of each term until the end of the first week of the new term. That during school holidays until [C] has turned five or six years of age; the children not spend more than four to five consecutive nights away from either parent; with this extending up to six to seven nights until such time as [C] turns eight years of age. Thereafter school holidays should be shared equally.
Ms T did not recommend a reduction in B’s time with the father.
The dispute over the living arrangements to be put into place immediately is a narrow one. The children are apparently doing reasonably well under the current arrangement. The mother proposes that the time for both children run through to Monday morning.
Subject to the extension of the father’s time with C to Monday mornings, I will leave the current arrangements in place. Just because something works does not mean that something else will work as well. There are serious impediments to cooperative parenting and the children have shown the effects of the paucity of the parties’ relationship.
In the course of final submissions, the father’s counsel noted that there are many permutations of living arrangements available to the Court and in particular, if the father’s time with the children was to be reduced during school term then it would be an option to order that he have time in the intervening weeks and if not overnight, that could be from the conclusion of school until 8.00 pm. The mother’s counsel obtained instructions to agree to the father having time in the intervening weeks, from after school until 7.00 pm. In my view the idea of time one afternoon in the intervening week is a sensible compromise. It was perhaps unfortunate that the proposal was made late in the proceedings and there was virtually no time for the idea to be canvassed between the lawyers or with the expert. Indeed I was not told whether the father could take up that time in each alternate week and which afternoon would best suit him. I appreciate that despite being raised by his counsel, this is not the order primarily sought by the father but it reflects well on him that he would give instructions to invite consideration of such a fall-back arrangement. That the mother readily agreed to a variation on that proposal also reflects well on her.
I will provide for the afternoon to be on Wednesday, unless the parties otherwise agree. Ms T did not favour the father having time with the children in the intervening weeks but each of the parties indicated support for the idea. This proposal achieves a number of benefits. It breaks the long period between the father’s alternate weekends with the children but not at the price of a further return journey up the highway for the children to the Central Coast. It provides the father with another opportunity to have a closer connection with the school week for B and from 2016, for C. Until C is at school, although B will be collected at school, there will be two handovers between the parties for each such occasion. Once C starts school that will be reduced to one. The parties disagree about the time the occasions in the intervening week should end. I will take the mid point of their proposals – 7.30 pm.
As to the future, the parties both propose an increase in time, with the father’s proposals leading to equal time. Ms T did not resile from her strong and well founded opposition to equal time. That said, it will be simpler and safer for the same arrangements to apply for both children. There are arguments available as to when that should be introduced. In my view that should be when C commences school. At that time the day-time Friday arrangement with C will no longer be available and C should be ready for an extra night.
Ms T favoured progress towards shared time in the school holidays and I will provide for equal time once C has settled into primary school.
Turning to other issues. There is a degree of agreement about telephone communication. The parties agree that it should occur between the children and the absent parent and that during telephone contact the children should be afforded a private environment and the phone should not be on loudspeaker. There are issues about the time and frequency of calls. The father seeks an order for daily communication, the mother proposes twice a week and Ms T recommended every second day. Ms T’s proposal seems sensible. The existing orders provide for calls of no more than 10 minutes duration between 6.45 pm and 7.00 pm. No submissions were made in respect of the duration of calls. The mother seeks that the time commence at 6.00 pm rather than 6.45 pm. The parties are free to agree to something else but I will provide for calls, initiated by the mother, between 6.00 pm and 6.30 pm and will retain the existing provision as to duration.
Ms T expressed concern, for example, that the parties have permitted B to take responsibility for the telephone calls with the father during her time with the mother. While encouraging the parents to limit phone communication between the children and the absent parent – perhaps to once every second day, Ms T recommended that telephone communication between B and the father does not need to occur daily. Telephone contact should occur no more than a couple of nights per week starting at 6.00 pm and B should be afforded privacy and avoiding using the phone on loudspeaker.
The father seeks that changeovers occur at the school or pre-school the children attend to avoid communication between the parties. Where practicable that is a sensible idea.
The father seeks and the mother will consent to, an order that the parties use the surname Asprey-Delamarre for the children, at all times.
The father seeks orders to facilitate each parent being aware of important appointments and issues about the children. Those orders seem sensible and I will make them.
It was submitted on behalf of the mother that the evidence of the father in relation to a motor vehicle accident was surprising. It was submitted that the father ought to have confronted the issue and responded to the mother’s solicitor’s letters in a more forthcoming manner. The Court should not accept the father’s evidence and this issue is said to go to the father’s credit. The mother has concerns about the father’s health in terms of the father’s ability to drive a car and his future care of the children. The mother cannot be confident that if the father’s health deteriorated he would inform the mother. The mother requested an order to the effect that if the father’s health deteriorated, he would notify the mother in writing as soon as possible.
In terms of the father notifying the mother about any deterioration in his health, it was conceded by his counsel that the father should not have prevaricated about a particular motor vehicle incident. Nevertheless it was submitted that the Court cannot find that either of the children was in the car at the time of the motor vehicle accident. It was submitted that the father does not suffer any health issues that would impact his driving ability and that the medical reports tendered do not support such a conclusion.
As I have indicated, the father did not make an appropriate disclosure to the mother and prevaricated before the Court in relation to a particular car accident. I am not confident that he will appropriately notify the mother about changes to his health. There is no conclusive diagnosis of the cause of the father’s health problems but there is the suggestion that the symptoms are progressive and are similar to those that attend Multiple Sclerosis. There is reference in the medical reports obtained by the father to his motor vehicle accidents. By inference, whether associated with a potential cause or symptom, those accidents were apparently seen by his treating doctors as relevant. Particularly given that the children are regularly driven between Sydney and the Central Coast, I will require the father to keep the mother advised of any deterioration in his health.
The mother concedes that she has said things about the father that she should not have said. I do not accept the father’s evidence to the effect that he has never denigrated the mother and has not been antagonistic or provocative. I do not accept the father’s evidence on this issue. I will make a non-denigration order.
Conclusion
The parties love their children but they have a highly conflictive relationship and are therefore, not viable candidates for shared parental responsibility or equal time for B or C. The parents have not been able to protect the children from their hostility towards each other. There have been a number of incidents where the father’s conduct did not promote the best interests of the children. The father did not provide adequate disclosure of relevant matters to the mother and his evidence to the Court proved unreliable in some instances. The mother should have sole parental responsibility for long term issues. Although there have been problems, the current living arrangements are broadly meeting the needs of the children. Their time with the father will not be reduced. Nor, subject to matters that are agreed, will the time be increased. Once C starts school then the arrangements will be the same for both children. Equal time in the school holidays will commence when C is settled into primary school.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the mechanics of the orders.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 3 September 2014
Associate:
Date: 3 October 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Procedural Fairness
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Remedies
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