B and K
[2002] FMCAfam 63
•28 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & K | [2002] FMCAfam 63 |
| FAMILY LAW – Children – best interests – children’s wishes – separation of siblings – s68F(2) Family Law Act 1975. |
| Applicant: | J B |
| Respondent: | M K |
| File No: | ZP3657 of 2001 |
| Delivered on: | 28 March 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 4, 5 & 6 March 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Sansom |
| Solicitors for the Applicant: | Watts McCray DX 8224 Parramatta |
| Counsel for the Respondent: | Mr G. Thistleton |
| Solicitors for the Respondent: | Christopher Dunn & Associates DX 18509 Castle Hill |
ORDERS
That other than is provided in order (2) the children S M K born 3 July 1988 and M M K born 18 June 1993 (“the children”) live with the mother M K (“the mother”).
That the children live with (“the father”) J B as follows:
(a)From 10.00am Saturday until the commencement of school on the following Wednesday each alternate week during school term. The first period of residence pursuant to this order shall commence on 6 April 2002
(b)For one half of all mid-year school holiday periods being the second half in years ending in an odd number and the first half in years ending in an even number.
(c)For one half of the Christmas school holidays which period shall be exercised outside of that period of compulsory leave taken by the mother.
(d)If the mother’s compulsory leave always coincides with Christmas Day and Boxing Day then the father shall have contact to the children from 12.00 noon Christmas Eve until 12.00 noon Christmas Day in 2002 and from 12.00 noon Christmas Day until 12.00 noon Boxing Day 2004 alternating annually thereafter.
(e)In the event the mother is not required to take leave during the Christmas school holidays the father have the children for one half of all school holiday periods being the second half in years ending in an odd number and the first half in years ending in an even number. Order 2(d) shall not apply if Order 2(e) is operative.
(f)For three hours on each child’s birthday in years ending in an odd number and three hours on the day after each child’s birthday in years ending in an even number.
(g)On Father’s Day from 9.00am until 6.00pm Sunday.
(h)Otherwise as agreed between the parties.
If contact falls on Mother’s Day contact is suspended from 9.00am until the start of school Monday.
For the purpose of all residence changeovers in accordance with these orders, where such changeover does not occur at the commencement or conclusion of school, the father shall collect the children from the mother’s place of residence at the start of his residence period and the mother shall collect the children from the father’s place of residence at the commencement of her residence period.
That during collection and return of the children neither parent is to enter the other parents home.
That the Father and the Mother have joint responsibility for making decisions about the long term care, welfare and development of the children.
That the Father have responsibility for making decisions about the day to day care development and welfare of the children when they are in his care.
That the Mother have responsibility for making decisions about the day to day care development and welfare of the children when they are in her care.
SCHOOL HOLIDAY CONTACT:
(a)SHALL commence at 9.00am.
(b)SHALL conclude at 2.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
(e)Christmas 2001/2002 is defined as a year ending in an odd number.
(f)Years ending in a zero are defined as years ending in an even number.
(g)If a residence period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday.
After a period of school holiday residence, residence shall resume on the first weekend after school has resumed to the parent who has had the care of the children during the first half of the holidays AND on the second weekend to the parent who has had the care of the children during the second half of the holidays.
That each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That each party not denigrate the other party or members of the other parties family to or in the children's hearing.
That both parties are restrained from changing the children’s place of residence or school without first giving twenty-one (21) days written notice of their intention to do so to the other party.
That all outstanding applications are otherwise dismissed.
That all exhibits be returned at the expiration of one calendar month unless an appeal is lodged.
THAT pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That pursuant to Section 62F(2) of the Family Law Act 1975, the parties attend confidential counselling at a date and time nominated by the Manager of PDR services of the Registry of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 3657 of 2001
| J B |
Applicant
And
| M K |
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings relate to residence, contact and other parenting orders. They concern the parties’ two children, S M K born 13 July 1987 and M M K born 18 June 1993.
The applications
J B (“the father”) initiated these proceedings when he filed his application for final orders on 25 October 2001. An amended application was filed at the commencement of the hearing. In essence the orders sought by him are as follows:
1.That the parties have the joint responsibility for the long term care, welfare and development of the children S M K born 3 July 1988 and M M K born 18 June 1993 (“the children”).
2.That the children reside with the mother as follows:
(a)Each alternate week from after school Friday until the commencement of school on the following Monday commencing the second weekend after the making of these orders (except during school holiday periods).
(b)Each alternate week from after school Wednesday until the commencement of school the following Thursday commencing the first week after the making of these orders (except during school holiday periods).
(c)For one half of each school holiday period by agreement between the parties and failing agreement then for the second half of each school holiday periods.
(d)On each child’s birthday by agreement between the parties (if such day is not otherwise a day on which the children are in the mother’s care pursuant to these orders).
(e)On Mother’s Day each year from 9.00am until 5.00pm if the children are not otherwise residing with the mother.
(f)At any other time by agreement between the parties.
3. That the children reside with the father at all other times.
4.That if Father’s Day falls on a day when the children would otherwise be residing with the mother, then the mother’s residence period shall conclude at 9.00am on Mother’s Day.
5.That for the purposes of all residence change overs in accordance with these orders where such change over does not occur at the commencement or conclusion of school, the mother shall collect the children from the father’s place of residence at the commencement of her residence prior and the father shall collect the period (sic) from the mother’s place of residence at the commencement of his residence period.
6.That the father have responsibility for the day to day care, welfare and development of the children.
M K (“the mother”) filed her response on 13 December 2001. Similarly, she filed an amended response on the morning of the hearing. The Orders sought by her are as follows:
1.That the respondent mother have the sole responsibility for making decisions concerning the long term care, welfare and development of the children S M K born 3 July 1988 and M M K born 18 June 1993.
2.That during school term:
(i)The children reside with the father from 9am on the first Saturday after the date of these orders until the commencement of school on the following Thursday and;
(ii)The children reside with the mother from the commencement of school from the Thursday of the week after the date of these Orders until the 9am on the second Saturday thereafter.
(iii)That the arrangements in (i) and (ii) repeat on a fortnightly cycle.
3.That subject to these orders, the children reside with the mother at all other times, except for:
(i)The children reside with the father for a period of up to one week during each school vacation period by agreement between the parties and, failing agreement for the week nominated by the father at least 28 days beforehand provided however the father has taken annual leave from his employment during that week;
(ii)Subject to sub-paragraph 3(iii) the times when the children reside with the father shall not include Christmas Day or Boxing Day in any year;
(iii)The children reside with the father from 10.30am until 2.30pm Christmas Day each year;
(iv)The children reside with the father for a period of 3 hours on each child’s birthday if the children are not otherwise residing with the father;
(v)The children reside with the father from 9am until 5pm on Father’s Day if the children are not otherwise residing with the father.
4.That the children reside with the mother from 9am until 5pm on Mother’s Day if the children are not otherwise residing with the mother.
5.That, during school term the father shall collect the children from the mother’s residence at the commencement of the time that they are to reside with him and return the children to the school at the conclusion of that time.
6.That during school vacation the father collect the children from the mother’s residence at the commencement of the time when they are to reside to with him and that the mother collect the children from the father’s residence at the commencement of the time that they are to reside with her.
Short history
The father was born on 22 April 1964 and he is thus 37 years old.
The mother was born on 10 May 1965 and she is 36 years old.
The parties commenced cohabitation in August 1987. Separation first took place in January 1988.
S M was born on 3 April 1988. S is 13 years old.
The parties resumed cohabitation in June 1993.
M M was born on 18 June 1993. M is 8 years old.
Final separation took place in August 1996.
Current orders
On 23 November 2001, interim orders were entered by consent. Those orders are as follows:
1.The interim order number 1 made on 23 November 2001 is suspended from 21 December 2001 until 2 February 2002.
2.The children S M K and M M K shall reside:
2.1
With the father from 5.00pm Saturday until 5.00pm Sunday on 22 December 200, 5 January 2002, 12 January 2002,
19 January 2002 and 26 January 2002.
2.2With the father from 10.00am until 2.30pm on 25 December 2001.
2.3At all other times from 21 December 2001 until 2 February 2002 with the mother.
3.That it be noted that the father does not seek a period of block residence during the 2001/2002 Christmas school vacation because of employment commitments.
The evidence
The applicant father relied on the following:
a)His affidavit sworn and filed 25 October 2001 and his oral testimony.
b)His affidavit sworn and filed 5 March 2002.
The respondent mother relied upon:
a)Her affidavit sworn 12 December 2001 and filed 13 December 2001 and oral testimony.
b)Her affidavit sworn and filed 5 March 2002.
c)The affidavit of C S sworn and filed 5 March 2002 and his oral testimony.
Pursuant to s.62G(2), a Family Report was ordered on 10 December 2001. Norman Goodsell conducted the interviews for preparation of the Report on 15 February 2002. His Report is dated 22 February 2002. It became an exhibit in the proceedings[1]. Mr Goodsell also gave oral evidence.
[1] Exhibit A
Documents were tendered that became exhibits.
The father’s proposal and current circumstances
The father lives at 20 G Street, B. Until February 2002 he worked as a Biomedical Engineer. As a result of a redundancy package he plans to work as a consultant on a contractual basis. His expectation is that he will be available to care for the children when they are not attending school. If successful the children will live with him and have regular contact to their mother. The father proposes that the children have four nights in fourteen with the mother.
The mother’s proposal and current circumstances
The mother lives at 24 C Street, E. Professionally she is an Account Manager working full time at B. Together with the children she moved into her partner’s, C S’s home on 13 January 2002. Mr S owns the home. Because the children share a bedroom they use the third bedroom as their study.
The mother and Mr S have been friends since August 1997. They have maintained a close personal relationship for almost five years. During that time he has had weekly contact with the children. Mr S is a water treatment engineer. He is 34 years old. Like the parties, he is a Christian and believes in Christian ideals.
Subsequent to their move to E the mother enrolled M at E H Primary, which school is a little over 600 metres from the home. This year M is in Year 4. She has made new friends at the school and the mother believes she is settling in well. M had previously attended a St B’s Primary School. It is a Catholic school. She now attends Scripture lessons on Friday to take religious instructions in her Catholic faith. S still attends C M High School at W. When in her mother’s care, S catches a bus to either E or S H railway station and then a train. She changes trains once. Her travel time is about 40 minutes each way.
The mother is keenly interested in the children’s extra-curricular activities and has encouraged their participation in drama, poetry, public speaking, music, athletics, swimming and netball. She was their netball manager in 2001 and coach in 1999. Together with the father she has shared responsibility for taking the children to Tuesday evening netball training sessions. She attends the children’s netball games, takes them to athletics and S to drama practice on Saturday afternoon as well as their eisteddfods.
She proposes that the structure for contact change so that the children exercise regular fortnightly contact to the father, rather than contact every week. Her proposal will reduce the number of nights the children spend with the father. Because it includes day time weekend contact it may not reduce the time the children spend in the father’s care. Like the father she proposes a four nights in fourteen days period for contact.
Credit
Counsel for the father submitted that this is one of those unusual matters in which it is necessary and proper to make credit findings. When making the submission he emphasised aspects of the mother’s evidence that were unsatisfactory. Permeating the mother’s evidence was her apparent dismay that she is a participant in family law litigation. Undoubtedly she is a reluctant participant. Because she so obviously considered propositions put at different times as wrong or ludicrous too often she responded foolishly. When pressed she retreated from her sometimes glib or exaggerated account. Although the process was at times difficult, I was satisfied on the whole that ultimately the evidence she gave was truthful.
There were occasions when I preferred the evidence of one party in preference to the other. These are identified in the reasons. Ultimately I am not persuaded that I should make more substantial and generalised adverse findings as to the mother’s credit. To do so in the circumstances of this case would be an injustice.
Chronology of relevant events
When the parties met, the father was 23 years old and the mother was 22 years old. At about the time they met, in June 1997, the father purchased a house at 20 G Street, B. Not long after they moved into B the mother lost a child she was expecting to the father. Shortly after she fell pregnant with S.
When she was about three months pregnant, in January 1988, the parties separated and the mother left the father’s home. Having lived initially with Mr and Mrs M, about two months prior to S’s birth the mother returned to live with her parents at R H. During the first two years of S’s life the father’s contact was spasmodic. Probably because her parents anticipated that the parties’ relationship had no real future they encouraged the father to remain away. Such contact as was arranged was organised by the mother.
From about six weeks following S’s birth, the father paid child support. The mother asserts that he paid $30 per week while he asserts $100 per week. They agree that the mother took proceedings at B Local Court which were compromised when an agreement was reached between them that he would pay $65 per week. These facts are more consistent with the mother’s evidence that the father’s.
When S was approximately three months of age the mother moved into her own home that she rented at K Road, B. By the time S was about 3 years old, in 1991, the father still only had irregular contact with her. He would collect S and take her out for the day. He did not exercise overnight contact.
In mid-1992 the parties reconciled and the father moved into the mother’s rented premises at C Street, B. After M’s birth in June 1993 they returned to live at 20 G Street, B. At this time, as indeed throughout both periods of cohabitation, the father was in full time work. He played competition football recreationally. His training commitments involved one or two evenings a week. His games were played on Saturdays and involved the whole day for football. The mother was primarily and substantially responsible for the day to day care of the children. She was available to care for the children and did care for them to a much greater extent than the father did.
At 6 years old, S started to learn the violin. She took her lessons at
C H on Saturday mornings. It was the father’s responsibility to take her to and from practice. Because the mother worked on Saturday mornings for four hours, the father took care of M and once S started dancing he also took her to her Saturday morning dance classes. When the father was playing football, the children were cared for by the mother. S stopped dance lessons after about seven months.
Final separation occurred in about August 1996. At separation the mother and children moved into a Housing Commission townhouse at K L. Nine years earlier she had placed her name on its eligibility list. Approximately nine months prior to separation the mother decided that she would separate. From her perspective her relationship with the father was terribly unhappy. She described the 2–3 years prior to separation from her perspective as being emotionally abused by the father. Separating from him allowed her “to be out of prison”. Two weeks prior to separation, the Housing Commission notified the mother that a house was available for her and the children. Her departure was prearranged and without prior notice to the father. Clearly the mother decided so that she would not tell the father where she had moved to. So, for at least 3–4 months there was no contact between the father and the children. Because the father knew her mother and sisters she believed that had he inquired they would have told him where she and the children were living. She believes that he made no inquiry of them.
Ultimately the father made contact with her by telephone. During the three or four months before this she did nothing to promote contact between the children and their father. Those 3–4 months she described as a happy time and although she acknowledges that the father was one of the two most important people in the children’s lives, she does not believe that the gap in contact was other than in the children’s best interests. Whilst she agrees that he had been involved in the care of the children she does not agree that he was closely involved in their care prior to separation. At separation the mother believed that the father was not a good parent to the children. Fundamentally she believes he neglected his obligation to provide for the children financially. This was demonstrated by his refusal to buy S a bed. It still distresses the mother that at 5 years old S was sleeping in a cot because the father refused to spend money on a bed for the child.
Because the G Street property was in a state of disarray with renovations incomplete and apparently neglected gardens, inter alia, the mother did not agree that contact would include overnight contact. She also thought the children were too young to be away from her overnight. Thus contact was structured around an evening meal, usually for a couple of hours. The mother took the children to and collected them from the father’s home.
By early 1997 the arrangements expanded so that the father exercised fortnightly contact from Friday evening until Sunday evening. The times suited the mother’s availability.
S attended St B’s School at L P. Since 1997 the father has participated in school activities and attended school functions. He worked as a housie volunteer at the school on Friday evenings until 2000.
The parties agreed that the children would be raised as Roman Catholics. That they share their religious faith with both parents. Consistent with his desire that the children are reared in the Catholic faith, the father has taken primary responsibility for supervising their confirmation and communion lessons. He takes the children to Mass on Sunday.
In 1999 the mother won a scholarship to study design and technology at the Australian Catholic University at S. She studied full time between January and May 1999. Because she was studying full time, her parents helped her by taking the children when she needed them to. The children have always spent significant periods of time with their maternal grandparents.
After she completed her studies, the mother obtained employment, in July 1999 at B. Contact arrangements were adjusted so that the hours were compatible with the parents’ busy schedules. The children exercised alternate weekend contact with their father which ended on Monday morning. Finishing contact on Monday mornings enabled the mother to attend her 8.00 am sales meetings. By Term 4 1999 this contact was supplemented by contact each Sunday afternoon until Monday morning.
Since early 2000 the parents have shared the children’s care. The arrangement has been the children live with their mother from Wednesday after school until Sunday afternoon. Until she started living with Mr S, on Wednesday evenings the mother and children stayed overnight with her parents or visited for a meal. This has been their habit for five years. Not only did the move to E make this impracticable, the difficulties were compounded when her parents moved to K. On Thursday afternoon the children were cared for by their godparents, L and L M until the mother arrived home at about 6.30 pm. From Sunday afternoon until Wednesday morning the children have been cared for by the father.
Although he complains that holiday contact has been inadequate, the father has been able to take the children in 1998 to Ayers Rock for five days, in 1991 to the Gold Coast for seven days, in 2000 to Jindabyne for two days and in 2001 Tasmania for seven days. The mother agrees that holiday contact has not been extensive, but says this is because the father has not taken leave during school holidays. I accept her evidence. Thus her family have cared for the children during holidays. If the children were ill then her mother cared for them.
During August 2000 the mother purchased a home at 5 D Street L P. It has always been tenanted, producing a rental income of about $170 per week at the time of its purchase. Subject to giving notice to the tenant, this home would be available to the mother and children within about four weeks. Neither party proposes that she and the children live there.
By April 2001 the mother decided the children’s living arrangements were chaotic and not working, either from her or the children’s perspective. Her attempts to negotiate an alternate arrangement with the father failed completely. This dispute has been at the heart of this litigation and is central to the deterioration of their capacity to cooperate as parents.
The 9 September 2001 “putt putt” day highlights the deterioration in the parties’ approach to co-parenting. M was ill and home from school during the week beforehand. The mother was caring for her. She telephoned W, where the father works. Her work brings her into contact with W professionally. She spoke to the receptionist “G”. M was interested in the name and after telling her mother that she thought she knew that lady she said “I can’t tell you, I promised I wouldn’t say anything. I think that’s daddy’s friend”.
When he had first broached the idea of additional contact on Sunday,
9 September 2000 to celebrate S’s recent academic achievements, the mother readily agreed. She understood that the proposal was that there would be a family outing, both parents and the children sharing their pleasure in S’s achievement. Once she heard about G, she tried to speak to the father. The mother wanted to establish whether or not he was in a relationship and its significance for the children.
During the week preceding 9 September 2001 she telephoned him
10–20 times. He would not take her calls, diverting her by excuses. Thus on the Sunday she point blank asked the father whether G was to be included in the “putt putt” outing. When he said she was, the mother was outraged. Without asking the girls their opinion she directed them back to her car and cancelled the outing. Her decision had nothing to do with the children’s best interests.
After five years of compatible shared parenting the mother was dismayed by the deterioration in their relationship. Rightly or wrongly the mother believes this change in the father’s attitude towards her coincides with his relationship with G. G is not the first partner the father has had since separation. The difficulties that have arisen subsequent to his relationship with G did not arise with previous girlfriends. Prior to his relationship with G, the mother perceives that she and the father were able to speak to each other freely. It had been their habit to speak to each other weekly. On Monday and Tuesday afternoons, although the children were in their father’s care, S always came to her home in the afternoon. The father collected S at about 5.30 pm on his way home. When she collected the children from the father or was otherwise at his home, the mother was allowed to enter the home. At the father’s direction this freedom came to an end. From August 2001 the mother was desperate to talk to the father about their relationship as parents. His resistance was implacable. It was the source of great anxiety and frustration to the mother. G is not herself significant to the dispute between the parties. To the extent that the father’s Counsel submitted that the mother’s behaviour is motivated by jealousy of G, I reject the submission. Her concerns have focused on the manner in which the father involves his girlfriends in the children’s lives.
On 7 October 2001 the father came to the mother’s home to collect the children. The mother had telephoned the father in the weeks beforehand and asked him not to come into her house. Nonetheless he persisted. As he was leaving the mother grabbed his shirt. The fabric was weak and the shirt came apart at the sleeve. The father bent down to pick up the children’s bag and the mother kicked him to the left side of the face. She agrees she was out of control. Later that evening the children were due to visit the M’s. The children needed to collect some of their belongings from the father’s place. The M’s and the father live within reasonable geographical proximity to each other. The mother drove the children to the father’s home and S went in to collect her belongings. Once she had returned to the car the mother went to the front door. She was angry and upset, still desperate to talk to the father. Understandably, he did not want to talk to her. When he did not answer the door she decided to try and force him out.
Foolishly she removed fuses hoping that darkness would drive him outside. The father alleges she also let his car tyres down. The mother denies this particular accusation. Given her ready acknowledgment of more serious matters, I accept her denial of this allegation. When he did not come out she left. The children were sitting in the car and saw what the mother had done. After the mother delivered the children to the M’s she returned to the father’s house. He had departed and gone to G’s home. When she discovered that he was not at home she too drove to G’s house. She called out his name and when he didn’t answer she banged on the door, once. The father alleges that whilst the mother was at his home she broke into it and removed a photograph of an ex-girlfriend, his personal papers and two medallions. His accusation is based on suspicion and supposition. I accept the mother’s denials.
During an earlier visit to his home in August 2001 the mother had removed some of Ma’s photographs and merit awards that were sitting on the father’s mantlepiece. Quite often she found her belongings at the father’s home. It was this photograph that she placed against the window of the father’s car discovered by him on 8 October 2001. She attached the photograph to a side window and wrote “What’s wrong with you. Surely screwing G is not as good as M, S and myself. Think about Christ and not your dick”.[2]
[2] Exhibit B
The father reported the October incidents to the Police. As a result and no doubt as he intended the mother has been charged with malicious damage and common assault.
On 22 December 2001 Mr S told the father that all future discussions concerning the children would be conducted through him. The father refused and is outraged by what he sees as Mr S’s intrusion in his life. Such was the poor state of the parents’ communication, that this was a sensible temporary strategy.
On 13 January 2002 the mother moved the children’s beds and belongings into Mr S’s home. The children believe they were going to stay for a short time. One week later, on 20 January 2002 the mother told the children that they would be staying with Mr S and trial living together permanently. It was intended that the trial period would be
3–6 months and its purpose was to see that everybody could live together happily. The mother asked the children to leave it to her to discuss this issue with their father.
On 16 January 2002 the mother telephoned the father intending to discuss the move with him. He refused to take her call and her subsequent attempts to talk to him about the changes she was making were rebuffed. Because he had decided not to discuss matters concerning the children with the mother he could not know that the matters that she wanted to discuss were significant. Together with Mr S the mother and children looked for schools for M. M selected E H Primary School.
On 27 January 2002 when the father returned the two children to the mother they were returned to K L. Clearly, this step was taken to deceive the father about the change in the children’s residence. By then, the mother believed that the father would have taken the children from her had he known about the change in their residence. Objectively her fears of his reaction were well founded.
On 17 January 2002 the mother attended the Chamber Magistrate at B Local Court, later she spoke to the police officer dealing with the assault charge against her. She sought advice about obtaining an apprehended violence order to prevent all contact between the parties. Sensibly she delayed taking action. Her current intention is that if orders are made as sought by the father she will make an application for an apprehended violence order. Should she be successful the mother does not propose to take out an apprehended violence order. Her rationale appears to be that if he is successful the father’s perceived harassment of her will continue. An example of the harassment, she believes, is this litigation and the manner in which it has been conducted.
After she was charged with assault, the mother took up the father’s suggestion that she receive anger management counselling. Thus she consulted a psychiatrist, Dr Paul Cameron, at Chatswood. During November 2001 she attended Dr Cameron three times. The consultations addressed a broader issue than anger management. Wisely, the mother sought advice about the conflict that involves the father and children.
Relevant law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act [3]
[3] (1997) FLC 92-755
A substantial issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. Recently the Full Court of the Family Court considered this issue in R and R: Children's Wishes [4]. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W [5]. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children's best wishes."
R and R: Childrens wishes[6].[4] (2000) FLC 93-3000
[5] (1995) FLC 92-598
[6] supra
The manner in which the Court must examine family violence in proceedings for a parenting order is identified in JG and BG[7] and also Patsalou and Patsalou[8]. Evidence of family violence is relevant insofar as it assists the Court in determining what orders will best promote the interests of the children. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. So far as the evidence allows, the Court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the Court has a responsibility to consider the effect on a child of a violent parental role model.
Section 68F(2) – determining the children’s bests interests
[7] (1994) FLC 92-515
[8] (1995) FLC 92-580
The children’s wishes, maturity, sex and background
S and M love both of their parents. In turn they are dearly loved by their parents. Both children are aware of the current dispute and know that both parents want the children to live with them. When the family reporter interviewed the parties, the proceedings as they then stood concerned the nature and extent of the father’s contact to the daughters. During his interviews Mr Goodsell was told that the father was considering applying for residence. Appropriately he expanded the parameters of his interviews and addressed not only the contact issues but also the potential residence issue.
Demonstrating age-appropriate maturity and understanding, S was forthcoming with the family reporter in her discussion about her parents. He reports:
“On the matter of her residence, S did not mention the desire to change, apart from wanting to limit the amount of mid-week disruption necessitated by the current arrangement. She said it was becoming more difficult to transport books and school materials mid-week, as she got older. S said she did not wish to live entirely with her father, although she would like to spend some weekends with him.”[9]
[9] Family Report
It was apparent to the family reporter that S was aware that she was to be interviewed by him and the purpose of those interviews. The mother had discussed with the children, as has been her practice, her proposals for the structure of contact between them and their father. Precisely which proposal S commented favourably on is not entirely clear. In her amended response the mother proposed that the children live with their father from 9.00am Saturday morning until the commencement of school Thursday morning. This arrangement is consistent with the handwritten proposals given by the mother to the father during August 2001. Certainly the handwritten proposal had been discussed with S. During the course of the proceedings, however, the mother was given leave to amend her amended response so that the proposal for the father’s contact was reduced by one evening. Thus it would start on Saturday morning and it would conclude on Tuesday morning. Because of her complaint about mid-week disruption resulting from the current arrangements as well as her desire that she have some weekends with her father, S’s wishes probably affirm the essential structure of contact proposed by the mother. Not necessarily five nights in each fourteen. Nothing in the family report suggests that this articulate and mature child contemplates living with her father to the extent that he proposes. Had she wanted to she would have said so.
S’s discussion with Mr Goodsell about her parents and Mr S demonstrate that her wishes are considered and soundly based. Whilst clearly preferring to live with her mother she was able to discuss concerns she has about her mother’s parenting. Candidly she discussed her mother’s temper, a factor she noted but ultimately was a matter that did not concern her as “her mother did not carry grudges and she always made up”[10]. Similarly she was critical of aspects of Mr S’s role. Wrongly, she believed he had interfered with her relationship with her maternal grandmother. This is an immensely valuable relationship from S’s perspective. Demonstrating every teenage girl’s outrage, she complained that the ten minutes limit for phone calls was “ridiculous”. Given that she had incurred a $600 phone bill in one quarter, with experience, she will realise that the constraints placed upon her were reasonable. Spontaneously S told the reporter how she loved the area that she was now living in.
[10] Family Report page 6
I am satisfied that S is a mature nearly 14 year old girl whose wishes she has made known and should be listened to. They must be given material weight. They are soundly based and reasonable.
By comparison to her elder sister the family reporter reports that M “appeared a little uncomfortable about being interviewed”[11]. Like her sister she is aware of the dispute and reported that it made her “sad”. Ambitiously, but knowing it could not happen, her preference is that her parents reconcile and that the family “be a nice happy family”. While happy in her new environment, she also missed her former one. Throughout her interview M was careful not to favour one parent against the other. Nonetheless, when pressed about her residence preference told the family reporter “the present arrangements were okay, but she would like to see her father on some weekends”. Quite apparently M feels torn between her parents and is demonstrably loyal to both of them. She is acutely aware that both want her to live with them. Knowing, as she does, by asserting her desire to live with one parent she will hurt the other she has chosen to remain neutral. Her remarks that favour a continuation of the current arrangements, subject to some weekends with the father, must be understood in the context of her cautious approach. Given her age, cautious language and desire to remain neutral, I am satisfied that M has not asserted any wish in relation to residence.
[11] Family report page 11
The nature of the children’s relationship
For the entirety of their lives the children have lived with their mother. She is their primary care giver and they are strongly attached to her. Theirs is a strong relationship that has provided a secure basis for the children’s development. The quality of the children’s attachment was explored by the father’s counsel during cross-examination of the family reporter. Mr Goodsell’s unequivocal evidence is that both children, particularly S, are primarily attached to their mother. I agree.
By comparison, the father has never had the exclusive care of the children. During periods of cohabitation, his care complemented the primary role taken by the mother. During the first separation and since their final separation, his relationship has been maintained and developed during contact periods. The mother readily describes the children’s relationship with their father as a close and loving one. This descriptor was accepted by the family reporter. Although the mother opined that the children are afraid of their father in the sense that he may withhold his love from them should they displease him, the evidence does not support her opinion.
Too much negative emphasis was placed upon apparently critical comments made by the children about Mr S. The family reporter explored the nature of the children’s relationship with Mr S. This was done through interview and observations of them together. S accurately reported that she had known Mr S for about five years. Whilst she had not liked him initially she “got on better” (with him). During the observation session both children related to Mr S without tension “appearing natural and comfortable”[12]. This is consistent with the mother’s observation of the relationship. Mr S was an impressive witness. He discussed matters concerning the children sensitively and intelligently. He believes the mother is too soft with the children and has assumed a prime role in their discipline. His strategies are sensible and age-appropriate. Left to themselves, the children and Mr S are able to enjoy a pleasant and comfortable step-parent relationship. The family reporter observed that “they seemed secure in his company”.
[12] Family Report page 7
During the two weeks prior to the hearing, the children made a series of negative comments about Mr S to the father. The children’s conversations with the father about Mr S during the family report interviews are instructive. They had the flavour of whingeing and ought to have been dismissed. The apparent ease with which they were made and the father’s critical response strongly suggest that the father engages in this type of discussion with the children with reasonable frequency. It is likely that he does not promote the children’s relationship with their step-father. Indeed to the contrary, they indicate that there is a real likelihood that he undermines it. Perhaps unintentionally, however, given his obvious intelligence, it is more likely to be deliberate.
I am satisfied that the children and Mr S have a pleasant and friendly relationship. Unimpeded by their father it has the capacity to develop into a significant and valuable one. Whilst in their mother’s care the children can and do enjoy his company. Unless the father improves his attitude towards Mr S, the relationship will suffer some small setback after time spent with him. As the relationship becomes more solidly based it is likely that the father’s negative influence will lessen.
Neither party suggests that the children should be separated. It is implicit that they agree that the children have a strong sibling relationship that is essential to their emotional and psychological well being. Separating them would be traumatic and destabilising. Living together is fundamental to the children’s happy adjustment. I agree that there is no reason for them to be separated. As a consequence of the findings I have made about S’s wishes, this then becomes a weighty matter in the adjudication of the competing applications. To give effect to the father’s application the court must either make a decision contrary to her wishes, or separate the children. As will become apparent neither outcome is consistent with the children’s best interests.
The likely effect of any changes in the children’s circumstances
Both parties agree that there should be changes made to the children’s arrangements. Analysis of the orders sought by them reveals two core consistencies. Firstly, that the children should spend four nights in each fortnight with the parent they do not otherwise live with. Secondly, that as far as possible, contact between the parents should be minimised in that collection and return of the children should be structured around school attendance.
Recent changes made by the mother to the children’s residence and M’s place of school have thrown into stark relief the difficulties for the children and the mother of the contact arrangements the parties have implemented since January 2000. Since at least April 2001, the mother has been trying to obtain the father’s agreement to change the Sunday evening/Wednesday morning contact routine. Essentially, her rationale for the need for change is that the current arrangements are disruptive. Transporting the children and their possessions back and forth between the two homes on a weekly basis is onerous and chaotic. S supports her mother’s views. The family reporter — “apart from wanting to limit the amount of mid-week disruption necessitated by the current arrangement. She said it was becoming more difficult to transport books and school materials mid-week, as she got older.” [13]
[13] Family Report page 6
It is apparent from [14]Exhibit C that the children must move a large quantity of books and clothes, as well as their musical instruments between their two homes.
[14] a photograph
When her many attempts to obtain the father’s agreement to alter arrangements for contact failed, the mother unilaterally imposed alternate weekend contact. This change was instituted by her effective from the beginning of August 2001. Prior to the commencement of this application, the parties had reverted to the Sunday evening/Wednesday morning contact arrangement each week. This resumed on 14 October 2001. It has continued until the hearing.
In the mother’s care, both children will continue to attend their current schools. S enjoys C M and neither parent proposes that she should change schools. M has already changed schools. During her interview with the family reporter she told him that she liked her new school, reflecting the observations made by her mother. Although he is critical that the school is not a Roman Catholic school, the father did not seek an order nor nominate a Roman Catholic school within reasonable proximity to the mother’s home that M ought attend. He agreed during cross-examination that M is “getting along” at her new school. S makes no complaint to the family reporter about the effort involved travelling to and from C M and both children described to him their obvious pleasure at living in Mr S’s home. Their pleasure reflects the mother’s evidence about the improved amenity of their physical surroundings. I accept her evidence.
By comparison, should the children live with their father, he will withdraw M from her current school and enrol her at a school reasonably equidistant between B and P. He had superficially considered Our Lady of Lourdes at C H. Whichever school it was, it would be a feeder school to C M.
The father’s proposals would fundamentally change the structure of the children’s lives. Critically, their mother has been their prime care giver. She is the parent to whom they are primarily attached and unless there are good reasons associated with their welfare, making the changes the father proposes will inevitably disrupt the relationship. Certainly it is the children’s strongest relationship. The children are used to enjoying her company and care with much greater frequency than the father proposes. His proposals will deny the children the opportunity for the regular intimate interaction a child enjoys with the parent they live with. Separation from their mother to the degree proposed by the father in all likelihood would be distressing for the children in the short term and is potentially damaging in the long term.
In his care, the father asserts that the children would have greater contact with their maternal grandparents and their godparents. As the children see their grandmother at least weekly, continuing a pattern established by the mother of contact no less than once a week including a regular evening meal, this assertion has little influence. This is because I am satisfied that the arrangements the mother and Mr S have put in place will ensure that the children have regular and meaningful contact with their maternal grandparents. So too the mother is clearly committed to the children maintaining their relationship with their godparents, the M’s. Although the frequency may be slightly less, the evidence does not suggest that the children’s relationship will be damaged in any way.
Now that he has been retrenched, the father indicated that he was available to care for the children on a full time basis. It would, he said, be his priority. Ultimately, it became apparent that establishing his consultancy business involved significant hours by him. Whilst he initially indicated no more than 30 hours per week were involved, it became apparent that the hours could easily reach 50 per week. Whilst I am satisfied that in the short term he may have greater flexibility in the manner in which he structures his hours of work, I am not satisfied that in the long term he will work fewer hours than the mother, nor that this flexibility will necessarily remain available to him.
On balance the mother’s proposals promote greater stability and continuity than do the father’s. Because the children have lived with the mother all of their lives, importantly in the context of a lengthy separation, this factor has real significance.
Practical difficulty and expense of contact
There is an obvious overlap between subparagraphs (c) and (d). I have chosen to deal with the structure of contact proposed by the mother in subparagraph (d). I do not repeat the findings made in subparagraph (c). When children move regularly between two homes, ideally their parents share compatibly the logistics associated with it. If the parents are unable to communicate, as is now the case for these parties, the logistics become more complicated. Some children can make arrangements for themselves and deal with equanimity moving between the houses. These children, particularly S, are sick of the disruption that moving every week requires. They take possessions with them from one home to the other which are often left behind, for example M’s photographs and medallions. As occurred on 7 October 2001, for example, forgotten items require extra journeys between the homes.
For reasons that remained unclear to me, the father complains that after years of sending the children’s uniforms pressed and arranged for him, recently the mother stopped doing so. This means that he must get the children’s uniforms ready for school. Rather than complain, he ought to have been grateful that she prepared the uniforms for as long as she did. There is no reason why he should not have shared this responsibility with her.
Because of the disruption moving every week between the two houses has involved, I am satisfied that block periods of residence are more appropriate. This will address S’s concerns and minimise the need for the parents to come into contact with each other. The children can immerse themselves in their respective environments without continually moving. Although the prior arrangements worked reasonably well, the children were younger and perhaps better able to cope with the disruption than they do now. They are at an age where they need order and consistency. The mother’s proposals offer this to a greater degree than the father’s do. Although this will mean the children have longer periods of absence from the father than they are used to, their relationship with him is strong enough to adapt without it being damaged.
Capacity of the parties to meet the children’s needs
With apparently proper foundation, the mother asserts that the father’s home environment provides a less than ideal living situation for the children. Five years ago, when the children first started overnight contact, they were worried about sleeping in separate bedrooms when with their father. Thus, he moved out of his bedroom during periods of contact and the children shared his queen-sized bed. In spite of the fact that S is nearly 14 years old, he has done nothing to provide proper beds for the children, nor to establish bedrooms that they could each have in his home since. When pressed, he resisted the obvious criticism on two bases. Firstly, he said he was awaiting redundancy and with it sufficient monies to enable him to renovate his home completely. Given the evidence that he has been earning from the high $60,000 through to the high $70,000 over at least the last 3–4 financial years, I do not accept that he could not afford to provide proper bedding and privacy, namely bedrooms for his daughters. Secondly, he said that in any event the home, as it now presents, is as it was when the mother lived there. That is no answer. Quite clearly she regarded it as unsatisfactory then. In her affidavit evidence she complained that the house was in a state of disarray “with renovations incomplete, it was unclean, it had little security …”[15] Whilst the photographs that became Exhibit E were taken 7–8 years ago, the father’s evidence is that his property presents in much the same fashion now. These photographs reveal a backyard that is largely unusable because the grass is probably waist-high. It has unsafe electrics, viz. washing machine cords lying across the bathroom floor. Such was her dismay about the state of cleanliness in the father’s home, that in April 2001 the mother cleaned the bath, the tiles and the toilet in his bathroom because she believed that the children using it was unhygienic.
[15] Paragraph 20, Respondent’s affidavit 13 December 2001
With little effort the father could during the last five years have addressed the children’s growing needs for privacy by providing them with their own bed and bedroom. Similarly, he could have provided more appropriate surroundings by mowing the lawn, cleaning the bathroom and basic repairs to the property. The fact that he recognised during his evidence that the children need their own beds and an appropriate environment should they live with him is moderated by the fact that he has had many years to do it, but hasn’t. Ultimately the adequacy of the environment proposed by the father is not a significant factor in the decision I have come to. However, I take into account that the living arrangements proposed by the father are less appropriate than those proposed by the mother. In her care it is abundantly clear that the children will live in a clean and appropriate home that is well maintained by the mother and Mr S.
Both parents have the capacity to meet the children’s intellectual and educational needs. The parents share an obvious desire that their children have every educational opportunity that is reasonably available and that they enjoy a rich diversity of extra-curricular activity. Thus they have involved the children in music, drama, sports and the like. With her change in school, M is not currently playing netball nor clarinet. Given the mother's commitment to these activities in the past, should the child decide that she wishes to pursue her music or netball, both parents are likely to support her in doing so.
Sharing to a considerable degree a disquieting lack of insight, both parties have embroiled the children in their dispute. That she has done so to an unacceptable degree, it is asserted, is a major element in the father’s application for residence. He criticised the mother for showing her notes to the children that outlined their future contact with their father. I do not share his criticism, implied if not explicitly underscored during submissions, of the fact that the mother discussed the proposed alterations to contact with the children. Given their ages and the prior history of contact, it was reasonable that she discuss with the children their wishes about any proposals to change the arrangements. That she did so suggests that she respects the children’s thoughts and opinions and has given them the opportunity to express these to her. Showing the letter[16] to the children is different. Its tone is demanding and unfriendly. There was no need for the children to be that intimately exposed to the detail of the negotiation.
[16] Exhibit D
Similarly, criticism is made that the mother forbade the children from telling their father that they had moved to E. Initially the move involved a degree of subterfuge that hid from the children the reality of their move. They thought they were going for a short time, rather than for a more extensive trial period of residence. One week later, on
20 January 2002, the mother told the children that they would be staying at E. When S broached telling her father, the mother told the children to leave the discussion to her. The children were true to their mother’s request not to tell their father, a situation that must have been very difficult for them. Correctly, the mother anticipated that the father would have resisted her changing the children’s home and the family move to E. Given the complete breakdown in their communication, her capacity to communicate the possible benefits and rationale for the move to the father was extremely limited, if it existed at all. He had brought the shutters down on their communication many months beforehand. I accept her evidence that her repeated attempts to discuss matters concerning the children with him had been rebuffed for many months. Whilst his complaint that she failed to communicate with him has about it an element of hypocrisy, nonetheless she had a clear obligation to tell the father what was happening with the children. Failing to do so placed them in an invidious position with both of their parents. She had communicated with him in writing in the past and ought to have done so on this occasion. More relevantly, these proceedings were extant and both parties had lawyers between whom more civilised communication could occur.
On her way home from court after the first day of the hearing, the mother telephoned S. S was at her father’s home. Distressed by the father’s evidence throughout the day, the mother wanted to ask S what outcome she wanted from the proceedings. The mother was upset and quite clearly intimated, if not explicitly recounted, details of the evidence given by the father. Point blank, she asked the child if she wanted to live with the father. She discussed with S the father’s evidence in which he had detailed conversations attributed to S, criticising Mr S. This conversation was intemperate and had nothing to do with S’s best interests. It directly embroiled S in the litigation and exposed her to the mother’s deep distress. Although given the opportunity to reflect on the appropriateness of the call, the mother did not agree that she should not have made it. This was in spite of the fact that she conceded that S was upset by the end of the call.
By comparison, the father’s involvement of the children in the parental dispute was more subtle. His focus has been more on Mr S than the mother. During the observation session, the family reporter reports thus:
“At one stage S sat next to him (the father) and complained about ‘C’ (Mr S). The girl told her father that Mr S wouldn’t allow the maternal grandmother to pick her up from school on Thursdays. Mr B reacted to this statement by saying: ‘That’s ridiculous’. [17] Later on, she complained that Mr S didn’t like the children to ‘make too much noise’. Again, the father reacted negatively. [18]
[17] Page 7, Family Report
[18] Page 8, Family Report
There was no necessity for the father to affirm the child’s criticisms of Mr S. Without knowing more, there was no objective reason to criticise Mr S. Joining in S’s criticism, as he did, duly reinforces the possibly unfair criticism made by the child. If unchecked, a climate of criticism can be established that may ultimately have the effect of undermining S’s chance to maintain and develop a happy and appropriate relationship with Mr S. The father’s dislike of Mr S was apparent in the way he spoke about him. It was apparent from his tone, demeanour and the language used. Understandably, he does not want Mr S involved in communicating matters relevant to the children between the two homes. However, in circumstances where the father has contributed in a meaningful way to the collapse of reasonable communication with the mother, Mr S’s participation could have been accepted generously, albeit briefly. Now it is obviously untenable.
Over-emphasising these events, relevant to both the father and the mother, would result in a skewed analysis of their capacity as parents. The last six months have been gruelling for the adults and the children. Standing back, however, and looking at the children, it is apparent that they are emotionally well-adjusted, intelligent and happy children. They have friends and strong relationships within and without their family. Thus it is apparent that between them, both parents have been able to contribute in a meaningful way to the children’s intellectual, psychological and emotional development in a way that has ensured that these needs have been met. Both must strive to regain that focus. They both have the capacity to do so. This capacity will be enhanced by participation in a post-separation parenting program. During submissions, both affirmed their agreement to do so. This will form part of the orders that I make.
Family violence
I will deal with subparagraphs (g), (i) and (j) together. There are no current family violence orders. On 24 November 2001, the mother was served with two summonses by the Police. These allege that on
7 October 2001 she assaulted the applicant and that she maliciously damaged his motor vehicle. Pursuant to s.128 of the Commonwealth Evidence Act a certificate issued that dealt with the evidence concerning 7 and 8 October 2001.
At N Reserve the mother threw a glass of wine over the father. She’d been attempting, as she did again on 7 October 2001 to try and engage the father in discussion concerning the children. He refused. On both occasions, as he did on many others, he said the circumstances were not right for such a discussion. Whilst this may have been so, he did not give her the opportunity for discussion at other times. I am satisfied that he had by September stopped all meaningful discussion concerning the children with the mother. Her frustration with this boiled over and I am satisfied that without physical provocation, she ripped his shirt off him and kicked him in the face on 7 October 2001. She kicked him when he bent down to pick up the children’s bags.
When she threw the wine over him, nobody else was present. Both children were present when she kicked him. These incidents, particularly the October incident, are utterly unacceptable behaviour. Were it the case that this type of behaviour was engaged in with some frequency, then the role model submission made by the father’s counsel would have some force. Context in this regard is important. The relevant context is that this was aberrant behaviour that does not reflect the mother’s usual conduct. Whilst, from her perspective, she was frustrated and sorely provoked by the father’s refusal to discuss matters concerning the children with her, resorting to violence cannot be tolerated.
If it were the case that the parties or children considered these incidents to be particularly significant, one would have expected them to have been raised during the interviews with the family reporter. They were not. This suggests that the parties and children have put these incidents into their proper place. Regretful incidents that do not define the parental relationship nor the mother’s usual mode of behaviour. I accept that she regrets the October incidents and that she will not behave in this fashion again. I am satisfied that the mother does not pose a risk of family violence to the children nor father.
Parental responsibilities demonstrated by the parents
I have already made findings concerning the parties’ attitudes to each other and the nature of their relationship. I do not repeat them. Both parents are committed to their children’s success and want the best for them.
In different respects, both have made decisions that with the benefit of hindsight would be made differently. In spite of this, I was left with the overwhelming impression that both parents want to do the best by their children. The mother’s complaint that the father is reckless with the children does not withstand scrutiny. The father’s complaint that the mother puts her own needs ahead of the children’s needs similarly are incompatible with the objective facts. Most likely these complaints are made as a consequence of the litigation. But for the litigation these negative observations would probably have never been made. As I said during the proceedings, I am satisfied that the litigation has taken a serious toll on the mother and children; probably also the father. It is most regrettable.
Further proceedings
Parenting orders are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospects for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. Years after their separation, at present, these parties are extraordinarily hostile to each other. Further litigation will keep that hostility at the forefront and undermine such capacity as they have to let the past go. To the extent possible I am satisfied the court should make orders that will be least likely to involve these parties and children in future litigation.
The mother’s evidence is that if she is unsuccessful she proposes to take proceedings for an apprehended violence order. As is apparent the orders made are consistent with those she sought. The risk of future proceedings in the state courts between the parties is thus limited. The prospect that the mother may take the action alleged did not influence my deliberations in favour of or against either proposal. There is a possibility that the father may apply for residence again in the future. He should reflect carefully on the conduct of these proceedings and the toll they have taken before he does so. His claim for residence of the children objectively had very little prospect of success. There was an obvious need to address a rearrangement of the structure for his contact, a proceeding that could have been conducted with much less acrimony than his residence application provoked.
I will order that the parties have joint responsibility for the children’s long term care, welfare and development. The parties agree that the children will be reared as Catholics and have substantially agreed about their recreational pursuits. Issues concerning their day to day care can be addressed pursuant to the order that gives each party responsibility for making such decisions on a day by day basis. Because the children will be living more substantially with their mother, when the father comes to make decisions with her concerning their long term care, welfare and development, he must take that reality into account.
Conclusion
These children have lived with their mother all of their lives. They have never lived in their father’s exclusive care. S is a mature 14 year old who has clearly articulated her desire to change the existing arrangements as they are disorganised and unsatisfactory from her perspective. Her sense of chaos is objectively reasonable. M and S have a close attachment to each other and both parents propose that the children live together. To give effect to the father’s proposal the court must order an outcome that is contrary to S’s wishes. I am not satisfied that I should do so. The combined effect of the children’s primary attachment to their mother, her lifelong competent care of them, S’s wish to live with her mother and the manifestly appropriate arrangements in place for the children’s care are factors that weigh heavily in favour of the children continuing to live with her. This outcome is consistent with the best interests of the children. It is not diminished by the children’s critical comments made about Mr S. These comments are made to the father and are inconsistent with the observations made by the family reporter and mother of the children’s interaction with Mr S. They are a truer indication of the quality of the relationship than comments made to the father. That is because the latter are made in an environment that is hostile to Mr S.
Both parents propose an outcome that the children spend four days in each fourteen with the parent that they do not live with. Given the children’s ages, this is a sensible structure for sharing the children’s time. It enables the children to immerse themselves during the periods they are with each parent without being disrupted by having to change houses. Starting the father’s period of residence on Saturday morning will give the father virtually a full weekend with the children each alternate weekend. This will disrupt his capacity to play football or to devote the whole of Saturday to football. I accept his evidence that he will make this change. Thus, although structured differently, the amount of time that the father spends with the children will not alter substantially. This will be particularly so, in fact it may result in him having more time than he currently does with the children, if he takes the holiday contact to which he is entitled. This outcome will promote rather than lessen his relationship with the children. I considered carefully whether the father’s periods of residence should start on Friday evening. Ultimately I have decided they have not. This is because the children would then not see their mother from Friday morning until Wednesday evening. That is too long.
The parties are ordered to attend a post-separation parenting program. They must work to regain the capacity to communicate with each other. Both have significant changes to make if that is to be achieved. It is important, from their children’s perspective that they make the effort to do so.
I am entirely satisfied that the orders I will make are orders that are in the best interests of the children. For these reasons I make the orders identified at the commencement of the judgment.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 28 March 2002
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