Balcon and Brett

FAMILY COURT OF AUSTRALIA

BALCON & BRETT

[2007] FamCA 720

FAMILY LAW – Children – Applicable to review interim parenting orders- With whom children will live – Where mother removed children to distant location – Where mother children’s primary carer – Where father significantly involved in children’s daily lives – Where mother alleges family violence incident at separation– Where father alleges mother abuses alcohol – Allegations denied risk assessment – Mother ordered to return children to their former school – Presumption does not apply – Equal shared parental responsibility ordered - Children to live with mother and have substantial and significant time with father

Goode and Goode (2006) FLC 93-268
B v B: Family law Reform Act 1995 (1997) FLC 92-755

APPLICANT:

MS BALCON

RESPONDENT:

MR BRETT

FILE NUMBER:

NCC

807

2007

DATE DELIVERED:

8 June 2007

PLACE DELIVERED:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

8 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bateman

SOLICITOR FOR THE APPLICANT:

Baldwin Oats & Tidbury

COUNSEL FOR THE RESPONDENT:

Mr Tregilgas

SOLICITOR FOR THE RESPONDENT:

Rice Moore & Gibson

INDEPENDENT CHILDREN’S LAWYER ADVOCATE

Ms O’Rourke

Orders

That the mother's Review Application filed 17 May 2007 is allowed.
That pending further order the parties shall have shared parental responsibility for the children A born in September 1997 and F born in May 2001.
That the children shall live with their father during school term:
(a)commencing Thursday 14 June 2007 from after school until the commencement of school Monday 18 June 2007, continuing in the same pattern each alternate week thereafter;
(b)commencing 21 June 2007 from after school Thursday until the commencement of school Friday and each alternate week thereafter;
(c)for the first half of each and every mid year school holiday commencing midday Sunday and ending midday the following Sunday;
(d)for 2007 and each odd numbered year thereafter for the second half of the Christmas school holiday period commencing at 9.00 am on the middle day of the Christmas school holidays and concluding at 5.00 pm on the Sunday before classes resume;
(e)for 2008 and each even numbered year thereafter for the first half of the Christmas school holiday period commencing at 9.00 am on the first Saturday of the Christmas school holidays and concluding at 5.00 pm on the middle day of the Christmas school holidays.
Unless changeover is taking place at school, the parties shall deliver and collect the children outside P’s Take Away.
That upon the children's return to W:
(a)the parties shall ensure the children immediately resume school at W School;
(b)the father provide to the mother the children's school uniforms, half of their clothes and toys, with arrangements for collection to be organised through the parties' solicitors;
The parties shall each complete a parenting after separation program with an agency nominated by the Independent Children's Lawyer.
The parties are each restrained from speaking about the other party or allowing any other person to do so within the children's hearing in a derogatory or critical fashion.
The mother is restrained from consuming alcohol whilst the children are in her care.
Whilst the children are in the other party's care the mother or father (whichever is relevant) may telephone the children between 6.30 pm and 7.30 pm each Wednesday and Saturday on a telephone number nominated by the parent who then has the children's care.
On weekends whichever parent has the care of the children is responsible for the children’s attendance at any sporting or other activities which the other party is restrained from attending.
During the school week each of the parties is at liberty to attend any school or sporting function/s which a parent would normally attend.
No later than 48 hours prior to any such function a party intending to attend shall give the other parent notice of their intention.
These proceedings are referred to the LAT program in the next available sittings at T or R.
That pursuant to s 68S these orders override the interim Apprehended Violence Order made 1 June 2007 in proceedings number … to the extent that there is an inconsistency between the interim apprehended violence order and the parties' obligations pursuant to these orders.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: (P)NCC807 of 2007

MS BALCON

Applicant

And

MR BRETT

Respondent

REASONS FOR JUDGMENT

These Reasons were delivered orally.
This is an application by the mother to review interim parenting orders made by a Judicial Registrar on 11 May 2007. By these orders the mother was required to re-enrol the parties' two children at W School no later than 28 May 2007. Excluding transitional arrangements, thereafter during school term the children would live with their father, Mr Brett, each week from after school Wednesday until 5.00 pm Saturday and with their mother, Ms Balcon the rest of the time. In a similar vein, during school holidays the children's time is shared equally between their parents.
On 17 May 2007 the mother filed a review application and sought to stay the 11 May 2007 orders.
On 18 May 2007 a stay, pending this hearing, was granted. At the end of this hearing the stay was extended pending my decision.
The effect of this is that the children have remained in Sydney with the mother and spent the nominated weekends with the father at W.

The operative orders

The interim orders made on 11 May 2007 are set out below.
1.That all parties have leave to inspect all documents produced on subpoena by [Dr N], [Dr P], [Dr L], [S] School, [W] Central School, [W] Hospital, [R] Health Service, New South Wales Police and [ST] School.
2.That orders made on 4 April 2007 be discharged.
3.That the mother ensure that the children of the relationship, [A] born [in] September 1997 and [F] born [in] May 2001 recommence [W] School on Monday, 28 May 2007.
4.That the children live with their father from after school on Friday, 18 May 2007 to before school on Monday 21 May 2007.
5.That from after school on Wednesday, 30 May 2007 the children live:
(a)with their father during the school term from after school on Wednesday to 5.00 pm the following Saturday each and every week, and with their mother at all other times;
(b)with each parent for one half of the mid-term school holidays and one half of the Christmas/January school holidays.
6.That the changeover point be, if a school day, the children’s school and, if not, outside “[P] Takeaway”.
7.That on their return to [W] the father provide to the mother their school uniforms and one half of their clothing and one half of their toys, such selection of clothes/toys and arrangements for collection to be organised through the parties’ solicitors.
8.That the proceedings be referred to the LAT program at [T]/[R].

Background facts

The father was born in Scotland in August 1963. He migrated to Australia with his parents and two brothers in 1970 and has lived here ever since.
The mother was born in Sydney in February 1967.
The parties commenced cohabitation in Sydney in 1992. They have not married. The father says that at the commencement of cohabitation he was working approximately 70 hours per week. There is no suggestion by him that the number of hours he was working changed until he moved to W. I infer that he continued work 70 hours per week until the parties moved to W.
The parties’ eldest child, A, was born in September 1997. A was born at 27 weeks gestation and remained in hospital for nine weeks. He was a fragile baby. Following his birth the mother suspended her university studies and thereafter remained at home caring for A full time. The father continued to work full time as a metal worker.
In early 1999 the mother resumed her studies. The parties hired a babysitter who cared for A two days per week. During these days the mother either worked in the family business or studied. One evening each week the father cared for A while the mother attended lectures. It appears that this was the only time during this period when the father was exclusively responsible for A’s care. Other than when she was at lectures or A was cared for by the babysitter, the mother cared for him.
In about June 1999 the mother graduated from the University in Sydney with combined Bachelor of Laws and Science degrees.
With the idea of eventually moving to the country, in December 1999 the parties purchased a property, D, near W. D comprises 2300 acres and is located 35 kilometres east of W. At about the same time as they purchased D, the parties moved from their rented home unit at O into a rented house at C. This was closer to the mother’s family and the factory premises from which the father ran a metal construction business. Whilst the parties were living at C, the mother’s mother visited her most days and she saw her sister and her children at least weekly. On weekends the parties usually went to D.
The parties’ youngest child, F, was born in May 2001.
In about September 2001 the parties wound up their metal construction business.
In October 2001 the parties moved to D.
Upon their arrival at D, the father says he worked about 40 hours per week renovating the home. In addition he says that he was working between 30 to 35 hours per week caring for the animals and the paddocks. The effect of this is that the father says that for the first two or three years after the parties arrived at D he was working between 70 and 75 hours per week. Averaged across the week this means the father says he was working about 10 hours each day. Curiously, the mother says he was working no more than about 30 hours each week. There is thus a substantial variation between the two propositions which I am presently unable to reconcile. Both parties agree that however many hours the father was working, throughout the day he was back and forth to the house. It follows that the children were accustomed to their father's significant presence in their daily lives.
In August 2002 A started preschool one day a week. The mother drove him to and from preschool.
In 2003 A started school at ST School where the mother performed canteen duty twice a term and assisted with reading each week. A travelled to and from school by bus. By the end of 2003 it was apparent to the mother that A was unhappy at school. Although she persevered and tried to help him settle her attempts failed and at the beginning of the final term in 2004 A was transferred to W School.
In 2004 the mother started playing in a Wednesday Ladies golf competition at the local Golf Club. Whilst she was at golf the father cared for F.
In June 2004 F started preschool half a day a week.
By about 2005 the father reduced his working hours, he says, to about five hours a week on the house and gardens and 50 hours on the farm.
In mid 2006 the mother enrolled in a practical legal training course through the University. It appears that for most of the program the course work was undertaken on line from D. At about the same time the mother obtained part-time work as a graduate clerk in a solicitor's office at W. In this position the mother worked two days a week between 9.15 am and 2.45 pm. Her working hours were compatible with the children's school and preschool schedules which enabled the mother to drive the children to and from school and preschool on her working days.
When the mother discovered the father had been viewing pornography on the home computer she increased F's preschool attendance to three days per week. This meant that the father no longer cared for their daughter on the mother’s golf days.
In September 2006 the mother was away for three days and two nights during which time the father cared for the children.
As part of her practical legal training course the mother was in Sydney for 12 days in November 2006. Whilst she was away the father cared for the children.
In February 2007 the father cared for the children when the mother was away overnight. These are a small number of other occasions where, during the preceding 12 months, the father cared for the children for an occasional night or two.
On 4 February 2007 the mother withdrew $100,000 from the parties' joint account and used it to establish her own bank account. The parties disagree about whether this was done with the father’s prior knowledge. The mother has retained these funds.
F started school at W School in 2007.
On 4 March 2007 the parties attended a party at a neighbouring property. Having arrived sometime between 1.30 pm and 2.30 pm, the family left at about 9.00 pm. Both parties consumed alcohol at the party. The father says the mother was badly affected by alcohol, an allegation she denies. Indeed, one of the central issues in this case is the extent to which the mother has abused alcohol whilst the children have been in her care. There is considerable evidence from family and friends of conversations in recent years with the father during which he raised his concerns about the mother’s drinking. The mother denies abusing alcohol in the manner alleged by the father. Twice the mother has been convicted of two counts of drink driving.
Returning to 4 March 2007, the mother admits drinking a modest quantity of alcohol and says she felt slightly affected by it. Various witnesses recall seeing the mother drinking and two describe her as garrulous and on the way to intoxication. Ms S describes the mother as being affected by alcohol but does not agree she was intoxicated. On the drive home with the father driving, the mother argued with A, the details of which the parties do not agree. When they arrived home, the mother fell out of the utility and landed on the driveway. The mother says she caught her foot in a rope and fell. The father says the mother was so inebriated that she was unable to get up from the ground unaided and required his help to stand and walk to the house and up its front stairs. He says she tripped and fell coming up the stairs and then fell a number of times later. There is no dispute that the mother followed A into his bedroom where she stepped on a cardboard model the child had made. He cried when he saw what she had done.
Concerning the entire incident, the mother’s account is found at pars 78 to 87 of her affidavit which I incorporate into these Reasons.
78.As I walked into the hallway [the father] grabbed me from behind the neck and pushed me forward onto the floor. He then grabbed me by the arm and dragged me to the landing outside the back door. He then pushed me off the landing onto a patch of dirt outside the home. The landing is approximately one foot above the ground. [The father] then repeatedly picked me up by the arms and threw me back onto the ground. I repeatedly yelled “Please. Just let me stand up”.
79.The whole time while [the father] was throwing me on the ground he was saying such things to me as:
“You fuckin’ slut”
“You drunken fuckin’ slut”
“That’s where you belong you drunken fuckin’ slut”
80.I yelled out to [A] “[A], please come, please come”. I could hear [A] whimpering. He did not come out.
81.I am unsure how long the assault lasted. It seemed like a number of minutes. Finally, [the father] walked away and left me lying on the ground. I heard [the father] walk into the home and make a phone call. I could tell he was speaking to his parents.
82.The next thing I recall is [the father’s] parents, […] and […], arriving in their car. It is a forty minute drive from their property to ours. I think I may have been unconscious for a time while they were driving over.
83.I do not believe I urinated outside as alleged in paragraph 72 of [the father’s] affidavit.
84.My next recollection is of sitting in the kitchen with [the father’s] parents. I then saw [the father’s parents] escorting [the children] to their car. I recall [the father’s mother] saying “We’re taking the kids to the house for the night”. I replied “You’re not taking the kids anywhere. If you’re taking the kids, you’re taking me too. He’s just beaten me”.
85.I got outside and was trying to get to the kids. [the father’s mother] was holding me back by the arm. I yelled to [the father’s father] “He’s just beaten me and you’re going to take the kids and leave me here with him”. [He] replied “I’ve got nothing to do with it”. I said “You do. You’re taking my children and driving away.” The whole time [the father’s mother] was trying to drag me away and was saying “Just go […]. Just go”. [The father] was assisting with getting the kids into the car.
86.I then yelled “I’m not staying here with him. He’s just beaten me”. [The father’s mother] then said “You go […]. I’ll stay here with [the children’s mother]”.
87.[The paternal grandfather] and [father] then drove off with the children.
The father’s account is described at par 64 to 81 of his affidavit which I incorporate into these reasons.
64.I quickly put [F] into bed in her room, [A] and [the mother] walked past to [A’s] room. I went to kiss [A] goodnight. As I walked into [A’s] room [the mother] fell backwards smashing some of [A’s] toys which distressed him greatly. [A] started to cry which brought his sister into his bedroom. [The mother] was floundering on the floor saying; “Its all right, you can make another one” in response to having broken [A’s] project made out of cardboard.
65.I tried to assist [the mother] to her feet by holding onto her arm to steady her, she started twisting and pulling, so I let go of her arm, she then told me to “Get the fuck away” several times in front of the children. The children were both crying uncontrollably. So I helped [F] into bed with [A].
66.I then left the room and telephoned my parents; my father answered the phone, I said; “How are you going, it’s getting a bit scary here, [the mother] is pissed, can I speak to mum.” I informed my mother that; “[The mother] is drunk, she is distressing and upsetting the children, she won’t leave them alone, they are both crying can you please come and get them.” Mum said; “We will be right over.”
67.I then walked back to [A’s] room; [the mother] was bent over [A’s] bed, half standing, half leaning three quarters of the way over the children, saying something which I couldn’t understand. The children were whimpering. [A] was saying; “You’re scaring me, you’re scaring me, stop mum.”
68.I said to [the mother]; “Please leave them be.”
69.[The mother] ignored me, so I firmly put my arm around her shoulder to guide her. I was not angry I just wanted to get her out of the house away from the children. She initially struggled by trying to pull away, she was so drunk that she very quickly stopped resisting, I escorted her from the house into the back yard. I stepped her down the first step leading to the lawn, where she again fell landing on her knees on the grass and then falling sideways laying on the grass, she was continually swearing at me; “You fucking prick” I called her a “Fucking selfish bitch, your children shouldn’t have to suffer a mother that behaves like you, please stay there until my parents arrive and take the kids”.
70.[The mother] again tried to get up off the ground by leaning on one of her arms, I placed my hand lightly on her shoulder as I was concerned that if she got up she would only fall over again and hurt herself; at this point she slumped back on the ground being extremely intoxicated.
71.[The mother] was screaming and cursing, it was very difficult to make sense of what she was saying.
72.No long after I escorted her outside [the mother] unsuccessfully attempted to get up again and she urinated where she was crouching, falling onto her side.
73.[The mother] again unsuccessfully attempted to get up on numerous occasions, most of the time she did not even make it up onto her feet, several times she proceed (sic) to stumble and fall over, she eventually ended up about 15 to 20 metres away from where she fell over after I escorted her from the house.
74.I waited at the rear of the house until my parents arrived about 25 minutes later. By this time [the mother] had quietened down somewhat but occasionally she fired up and abused me call me “A fucking prick and a fuckstick.”
75.I could see the lights of my parent’s vehicle approaching about a kilometre away up the driveway, so I walked to [A’s] bedroom. [F] was asleep in [A’s] bed and [A] was still awake. I said to [A]; “Come on lets go, grandad is here.” I carried [F] in my arms; [A] quickly jumped out of bed and asked; “What’s wrong with mum.” I said; “Mum has had a bit too much to drink.”
76.We walked out of the back door as the vehicle approached the carport. [The mother] staggered behind us. I quickly put the kids in the cars and did their seat belts up. [The mother] managed to make her way up to the carport; she was leaning against her Ford Explorer motor vehicle. Dad had pulled up behind the Ford Explorer she was repeatedly screaming and waiving her arms around, “You have stolen my fucking children.” She was trying to look in the window of dad’s Toyota Hi-lux, she was muddy and dishevelled, and the children were crying uncontrollably, they were extremely distressed.
77.My mother said words to the effect; “Stop behaving like this in front the children.”
78.My mother assisted [the children’s mother] over to the garage where the Ford Explorer was parked in front of dad’s vehicle, [she] fell onto the concrete, she tried to get up and fell over again. My mother tried to prevent her from falling over. She eventually got her to lean backwards onto the door of the Ford Explorer.
79.I walked over to [the mother] and said “The kids are going over to [my parents’]; we’ll get them in the morning.”
80.My mother said; “You go, the kids need their father, I’ll look after [their mother].”
81.I hopped in the vehicle and dad drove the kids and I to [V]

After the father left D with the children, the mother telephoned the police. This appears to have been at about 10.45 pm. In response to her call Senior Constable U and Constable G came to the property. Whilst police were there the mother realised she had hurt her shoulder. Constable G called an ambulance and the police set off with the mother to W. On the way to town they met the ambulance to which the mother was transferred and taken to W Hospital.
The mother told police she was not concerned about the children’s safety with their father.
Upon her arrival at W Hospital the mother told the attending doctor that the father assaulted her. She said she had been drinking, as had he. The hospital notes say the mother was oriented and there is no suggestion that she complained of loss of consciousness. The mother had a fractured clavicle and was admitted to W Hospital overnight. There is no evidence of bruising which I would have expected if the mother had been kicked and/or repeatedly thrown to the ground in the manner she alleges. For that matter, I am somewhat surprised that she had no grazes or bruises which I would have expected if the mother had repeatedly fallen in the manner the father alleges. Dr K, who is treating the mother in relation to her shoulder injury, says her fractured clavicle is consistent with the history given in the mother’s affidavit. It does not appear Dr K was given the father’s affidavit and his description of the incident. Merely because Dr K says the injury is consistent with the mother’s account does not mean it is inconsistent with the father’s account. In the circumstances where Dr K has only one account, his opinion does not assist me in determining how the mother fractured her shoulder. By that I mean whether the injury results from the father’s assaulting her or from her repeatedly falling whilst inebriated. Resolution of this issue must await a final hearing.
On 4 March 2007 police charged the father with assault and obtained an interim apprehended violence order for the mother’s protection. Both matters were before R Local Court on 20 March 2007 and are continuing. The interim apprehended violence order is in the following terms.
1.a)     The defendant must not assault, molest, harass, threaten or otherwise        interfere with the protected person(s) or a person with whom the       protected person(s) has/have a domestic relationship.
b)     The defendant must not engage in any other conduct that intimidates         the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
c)     The defendant must not stalk the protected person(s) or a person with       whom the protected person(s) has/have a domestic relationship.
2.The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises:
[S]
3.The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation, or mediation.
On 5 March 2007, accompanied by police, the mother returned to D. Using police as an intermediary, the father offered to leave D so that the mother could remain with the children. If the father believed that the children were at risk in their mother's care as a consequence of her excessive alcohol consumption it is surprising that he offered that she has the children’s substantial care. This ameliorates somewhat the force of his evidence concerning the extent of the risk to the children from her alleged excessive alcohol use. The mother declined his offer and a short time later left with the children. The mother did not say where she and the children were going. The father believed she would remain in W. The mother took the children to her parents' home in S which is where they remain.
On 12 and 13 March 2007 the mother was hospitalised for an operation on her clavicle.
On 14 March 2007 the mother enrolled the children at S School. She did not have the father’s consent to do so and did not include his details on the school’s enrolment form.
On 19 March 2007 the father commenced these proceedings. I accept that he has moved quickly. To the extent that the mother argues the father delayed to such a degree that the Court would infer his acquiescence to the children's removal from W and their continued stay at S, I reject the submission. The submission that the children are thus living in a well settled environment also fails.
On 29 March 2007 the father attended the children's school. I do not accept the mother’s submission that he should be criticised for doing so. I would have been more concerned had he failed to show interest in how the children were faring at school.
On 3 April 2007 the Court made the following orders:
1.That [A] born [in] September 1997 and [F] born [in] May 2001 (the children) live with the father during the following periods:
(a)         12.00 noon on 6 April 2007 to 12.00 noon on 10 April 2007;
(b)         12.00 noon on 15 April 2007 to 12.00 noon on 21 April 2007;
(c)         9.00 am on 28 April to 5.00 pm on 29 April 2007.
(d)The children’s living with period with the father be implemented by the father collecting the children from the mother or her nominee at McDonalds Restaurant [S] at the commencement of the period and the father returning the children to the mother or her nominee at the same residence as the children during the night. (Without admissions).
(e)During the children’s living with period with the father the father’s parents or either of them be present in the same residence as the children during the night. (Without admissions).
2.The children otherwise live with the mother.
3.Proceedings be adjourned to 11 May 2007 at 10.00 am for interim hearing.
4.That pending further order:
(a)The mother and father is to submit himself/herself to urine analysis on one occasion each week.
(b)That such urine analysis is conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantisation of drugs of abuse in urine.
(c)That the mother do all things necessary to authorise the treating doctor to immediately provide to the father or his nominated legal representative, a copy of any positive or abnormal drug screening report.
(d)That the father do all things necessary to authorise the treating doctor to immediately provide to the father or his nominated legal representative, a copy of any positive or abnormal drug screen report.
Between 6 April and 10 April 2007 the children spent time with their father at W as they did between 18 and 21 April 2007. On the 28 and 29 April 2007 they spent the weekend with him in Y.
On 26 April 2007 the father wrote to the mother inviting their reconciliation. He says that if the mother does not wish it he will not pursue this issue with her further. I see no reason to criticise the father for his letter.
On 2 May 2007 doctors observed that a screw which had been placed into the mother’s shoulder had pierced her skin and infection had set in. This has set her recovery back. The pin was removed on 11 May 2007.
On 11 May 2007 the Court made the orders set out earlier.

The Governing Law

The parties agree that the governing law is contained in the Full Court’s decision in Goode and Goode (2006) FLC 93-286. There the Full Court held:
“Section 60CA deals with the best interests of the child and provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This provision of the legislation was formerly s 65E and the wording of the section has not changed.
In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.

Concerning the amendments to Pt VII the Full Court explained that they have the following effect:
“Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)       the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
The child’s best interests remain the overriding consideration.”
And also:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

Determining the children’s best interests

The first issue I must consider is whether the equal shared parental responsibility presumption applies.
The mother alleges a severe family violence incident on 4 March 2007 which the father denies. The Independent Children's Lawyer says that when the father took the mother out of A’s bedroom and tried to stop her from further upsetting A, his behaviour is tantamount to family violence. I do not accept that this is a correct characterisation of the father’s evidence. I am unable to determine precisely what occurred on 4 March 2007. If the mother’s version, or something like it, is accurate there is a reasonable basis for concluding that there has been family violence between the parties and the presumption therefore does not apply. However if the mother’s evidence is accepted there is no proper basis for concluding there has been family violence. Because I am unable to determine this central issue, having regard to s 61DA(3) the shared parenting responsibility presumption does not apply. However, this is not the end of the issue. As Goode v Goode (supra) makes clear, even where the presumption is rebutted or does not apply the Court may still order that the parties share parental responsibility. As will become apparent, I am satisfied that it is in these children's best interests that their parents continue to share parental responsibility.
I turn now to look at the primary considerations. The parties agree that it is important the children have a meaningful relationship with both of them. Each acknowledges that the other presently enjoys a close and meaningful relationship with their children. It is apparent from Ms V’s report that the children feel the same way. It is the father’s case that unless the amount of time he spends with the children is increased along the lines he proposes, in the period of time before the case comes on for final hearing his relationship with the children may lessen to such an extent that it could no longer be described as meaningful. This submission has force.

From the time of the children's birth the mother has been primarily responsible for their care. The parties work history alone demonstrates that this must be so. It follows that the children are likely to be primary attached to her. This is a significant finding. The distinction between the children's relationships with their parents lies in the extent of their reliance upon each parent for their day to day emotional and psychological well being. The children are used to their father being substantially involved in their lives. However, his involvement has not had the same centrality in terms of their actual care and thus their relationships as the mother has provided.
In terms of risk issues, there is evidence of family violence which, if I accept the mother’s evidence, centres on a serious episode at the point of separation. There is no suggestion that the father has ever been violent towards the children or that this has been a relationship marred by episodic family violence. At separation the mother informed the police officer that she had no concerns for the children in their father's care. I infer from this that she had no concerns for the children that, if with their father, they may be exposed to family violence. Indeed, it is inconsistent with there being a continuing risk of family violence that during 2006 the mother left the children so often in their father's care. To the extent that there is any risk of family violence, it appears that with separation the risk has ameliorated. The risk is moderated even further if the parties do not have face to face interaction. The risk of family violence is not a factor which should drive the outcome of these parenting proceedings.
The children's views are discussed in Ms V’s report. From this one sees that the children wish to see both of their parents often and are torn in their desire to be with each of their parents. Both children find leaving their parents difficult. This reinforces the notion that the children are attached to both parents and enjoy good relationships with each of them. Also that the children would be distressed if those relationships were allowed to, in effect, wither through lack of regular contact. These matters carry significant weight. Ms V says that the children's views concerning their relationships with their father in particular are consistent with him spending time with the children each alternate weekend and for half of each school holidays. With respect to Ms V's conclusion, I do not consider her conclusion is consistent with her discussions with the children. Nor is the manner by which she reaches her conclusion apparent. Her opinion concerning the ultimate issue carries little weight.
Section 60CC(3)(b) is an important provision and deals with the children's relationships with their parents. I have already made findings concerning the children's relationship and do not repeat them. Suffice to say that I consider it is important that as the children's mother has been their primary carer it is necessary that during a period of considerable instability they have significant periods in her care. This is a factor to which I attach considerable weight. Similar considerations arise concerning the children’s relationships with their father. Prior to separation there have never been two week gaps during which the children did not seen their father. He has been a significant part of their daily lives, albeit to a lesser degree than the mother. The children are distressed when leaving their father following weekends with him which suggests that they perceive that alternate weekends are an inadequate response to the amount of time they are used to spending with him. Even although the children’s relationship with their father is solidly based a dramatic diminution in the time he spends with them may see it lessen.
Since separation the children have spent more time with their maternal relatives than they have previously. Although they have enjoyed additional contact with their maternal grandparents, these relationships are secondary to the children's relationships with their mother and their father. Whilst the mother’s proposals will maximise the children’s relationships with the maternal grandparents, this comes at the expense of the children being able to have regular and appropriate time with their father. There has been a lessening in the amount of time the children have spent with their paternal relatives. For the same reason that the maternal relatives are secondary to the children’s relationships with their parents, this applies equally to the paternal relatives. The relationships with extended family are not pivotal to the proceedings. Irrespective of the outcome of the various applications each of the parents is able to ensure that the children continue to have satisfactory relationships with their extended families.
Subsection (c) concerns the willingness and ability of the parties to encourage a close and continuing relationship between the children and their other parent. The father says the Court will be concerned about the mother’s willingness to promote his relationship with the children. I am not as critical of her post-separation conduct as the father. As the mother’s counsel submitted, however it came about, on 4 March 2007 the mother’s shoulder was fractured. She required surgery and has been unable to drive. It is understandable that for at least a short period she needed to return to her family and have the practical and emotional support which this offered. I have no reason to suspect that the Court's orders for the children to spend time with their father will be ignored. The evidence suggests that the mother will facilitate the children spending time with their father on whatever terms that the Court orders. On this basis I am satisfied that she will willingly continue the children's relationship with their father.
I make the same findings concerning the father. He has cooperated with the Court's orders to date and he is likely to continue to do so.
There is evidence in both parties' cases of each of them involving the children somewhat inappropriately in adult separation issues. The mother has told the children on a number of occasions that she will not go back to D because she is scared of the father. If it is true that she is scared of the father, this is an issue she should not repeatedly discuss with the children. The father has made telephone calls to the mother whilst the children have been with him. During the calls he has been weeping and obviously distressed about their separation. On their return from periods with their father the children recount to their mother discussions their father has had with them concerning his desire for reconciliation. Both parents, for the sake of their children, must desist. If they do not, the risk is that they will undermine not only their relationship with the children but also the children's relationship with the other parent. I discern from both parents a desire that this is not the outcome of this separation. To the extent possible both parties must protect the children from their distress following the breakdown of the relationship.
Section 60CC(3)(d) concerns the likely effect of any changes in the children's circumstances. It is a pivotal issue in the case. On the mother’s case the children will continue to reside with her at her parents' home at S and attend the local primary school. They will spend alternate weekends and half school holidays with the father. The mother is not working and is available to care for the children on a full time basis. If at some stage she resumes paid employment, she has her family's assistance with the children's care. On the mother’s case the children will travel approximately 11 hours each weekend in order to spend it with their father. This is a heavy burden to impose on the children. This amount of travel can only undermine the pleasure the children can have with their father. One would expect that they will be tired during the weekend and exhausted when they return for school on Monday.
On the mother’s proposal the children would not spend significant time at the home which they have enjoyed for years, they are unable to attend W School, which is a particular issue for A, they are deprived their friends and relationships in the community they have lived in for most of their lives. The most significant change, however, is the dramatic reduction in the amount of time the children can spend with their father. The mother says the children have emotionally adjusted to the separation and are coping with the changes that she imposed in March 2007. The evidence is not so clear that I could be satisfied the children can continue to cope with such a dramatic reduction in the amount of time they spend with their father or that they can continue to cope with the effect of such wholesale changes in their day to day lives.
As an alternate, the mother says she would return to live at X, a place where she and the children have never previously lived. X is reasonably close to W, in effect about half an hour from W. At X the children could return to W School and distance does not impede the children regularly spending time with their father or resuming, as far as A is concerned, the extra-curricular activities he has enjoyed in the W community. As between the mother’s primary and alternate proposals, the X proposal is superior.
The father proposes that the children live with their parents in accordance with the orders made on 11 May 2007. Thus, from Wednesday through to Saturday afternoons during school term the children will live with him at D. He says he is able to adjust his working hours so that whilst the children are with him he can spend more time with them and attend to their day to day needs without requiring assistance from others. If he does require assistance, his father is reasonably available, his sister is at P some two hours away and his mother regularly comes up from Sydney. All are available to assist the father should the need arise.
From Wednesday until Saturday each week I have no real concerns about the father’s ability to care for the children's physical and educational needs. However this arrangement involves a dramatic change to the children's circumstances, in particular a great reduction in the amount of time that they spend with their primary carer, i.e. their mother. I am not satisfied that the children could easily adapt to such a significant reduction in the amount of time that they have with her or that it can be said there will be no adverse emotional or psychological consequences for the children.
The clear advantage of returning the children to the W environment is that this is the outcome which ensures the children can have regular time with both of their parents, can have significant time at D, can return to their schools and their community. When the competing proposals are analysed, it is difficult to see of an outcome other than returning the children to W/X is anything other than in their best interests.
There are no further s 60CC(3) issues which require consideration.
There is considerable overlap between s 60CC(3)(c), (f), (i) and s 60CC(4) and (4)(a). So that it is clear, prior to separation both these parties have fulfilled his or her parental responsibilities. The parties appear to have taken a fairly traditional approach to the children's care with the mother primarily responsible for the children's day to day care and the father contributing to the children's day to day care but also being primarily responsible for running D and, before that, the business in Sydney. The mother contributed to both the business in Sydney and to the running of the farm but not to the same extent that the father appears to have undertaken. Both parents have availed themselves of every opportunity to spend as much time with their children before and since separation as their circumstances permit.

Structure of the orders

I return to the issue of the application of the presumption of equal shared parental responsibility. I have earlier found that the presumption should not be applied. However, the issue which requires consideration is whether, now that the parties are separated, the circumstances make it appropriate for them to share parental responsibility for their children. Presently the parental relationship is ruptured but there is no reason to assume that without modest effort by both parties they could not cooperate in co-parenting their children. The evidence suggests both parties are intelligent and capable people. They should, and it appears do, have the necessary intellect and life experiences to be able to communicate on matters concerning their children.
Prior to separation it appears that the parties were largely in agreement on all decisions that were needed for their children. There is no evidence of any strong stances taken by one parent which were hotly contested by the other.
I will make an order requiring the parties to complete a post-separation parenting program which should go some way to address the current communication impasse. In my view these children are entitled to have both of their parents involved in making the critical decisions that will need to be made now that their parents have separated and I will order that the parties have shared parental responsibility for the children.
This requires me to consider whether the children's time should be divided equally between their parents. Ordering an equal time outcome is consistent with the orders that were made on 11 May 2007. Equal time, does not acknowledge that prior to separation the mother was primarily responsible for the children's physical, intellectual, emotional and psychological well being. Equal time, at this point in the children's lives, is potentially too great a change when already there are many to which they must adapt.
This then requires the Court to consider substantial and significant time for the father. In my view substantial and significant time strikes the correct balance between the arrangements for the children's care prior to separation and the importance of promoting and preserving their relationship with their father now that that the parties are separated. The approach that I will take is that from after school on Thursday to the beginning of school on Monday each alternate week the children will be in their father's care. So that the gaps for the children between seeing their father are not too great, in the alternate week they will be with their father from after school Thursday to the commencement of school Friday. Thus each of the parties will have a clear weekend with the children. If, for example, the mother feels that she would like to return to Sydney with the children on those weekends, she will be able to do so.
Concerning school holidays, I agree with the parties' approach that these should be shared equally.
In the circumstances of this case I am satisfied that the orders identified at the start of these reasons are in the children's best interests.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 23 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BALCON & BRETT

[2007] FamCA 720

8 June 2007

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Procedural Fairness