BALL & RILEY
[2010] FMCAfam 161
•24 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALL & RILEY | [2010] FMCAfam 161 |
| FAMILY LAW – Parenting – three children, twins aged 7 and girl aged 4 years and 10 months at trial – 9/5 fortnightly parenting regime in favour of mother – father seeks week about time or alternatively reversal in his favour of current regime of time – father seeks order for equal shared parental responsibility – mother seeks 10/4 fortnightly regime in her favour – mother seeks order for sole parental responsibility on basis of lack of parental cooperation – evidence that children have a good relationship with both parents. FAMILY LAW – Parenting orders – order 9/5 fortnightly parenting regime in favour of mother – order for equal shared parental responsibility – whilst parents lack a cooperative relationship no evidence of “exceptional circumstances” to justify the order sought by mother – order that parents attend parenting orders program – order for facilitated dispute resolution in the event of dispute. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Runcorn & Raine [2008] FamCA 837 Pottinger & Bainton [2009] FamCA 124 H v H (2003) FLC 93-168 M & M [2005] FamCA 207 |
| Applicant: | MR BALL |
| Respondent: | MS RILEY |
| File Number: | BRC 694 of 2009 |
| Judgment of: | Purdon-Sully FM |
| Hearing dates: | 23 November 2009 and 4 & 5 February 2010 |
| Date of Last Submission: | 5 February 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 24 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodges |
| Solicitors for the Applicant: | Kerry Barnes Lawyers |
| Counsel for the Respondent: | Mr Slade-Jones |
| Solicitors for the Respondent: | sbA Family Lawyers |
ORDERS
That except as otherwise stated, the father and the mother are to have equal shared parental responsibility for the major long term issues of the children [X] born [in] 2003, [Y] born [in] 2003 and [Z] born [in] 2005 (“the children”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)the mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
(b)the father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
That the children live with the mother and father at all times as may be agreed and failing agreement as follows:
(a)During school terms, with the father from 6:30pm Wednesday to before school Monday in each alternate week, with the mother to be responsible for delivering the children to the father at the commencement of such time and the father to deliver the children to their school at the conclusion of such time;
(b)For one half of each school holiday period gazetted for the state of Queensland with the father to have the first half and the mother the second half in even numbered years and the father to have the second half and the mother the first half in odd numbered years;
(c)At all other times with the mother.
That notwithstanding any other order, the children shall spend time with the mother and father as follows:
(a)With the father on Father’s Day from 9:00am until 5:00pm in each year;
(b)With the mother on Mother’s day from 9:00am until 5:00pm in each year;
(c)With the father from 5:00pm Christmas Eve to 5:00pm Christmas Day in odd numbered years and from 5:00pm Christmas Day to 5:00pm Boxing Day in even numbered years;
(d)With the mother from 5:00pm Christmas Eve to 5:00pm Christmas Day in even numbered years and from 5:00pm Christmas Day to 5:00pm Boxing Day in odd numbered years;
(e)On the father’s birthday from after school to 7:00pm if the day falls on a school day and from 9:00am to 5:00pm if the day falls on a non-school day that the children are not otherwise in the care of the father;
(f)On the mother’s birthday from after school until 7:00pm if the day falls on a school day and from 9:00am until 5:00pm if the day falls on a non-school day that the children are not otherwise in the care of the mother;
(g)On the children’s birthday with the father from after school until 7:00pm or if a non school day then from 9:00am until 1:00pm if the birthday falls on a day that the children are not in the care of the father;
(h)On the children’s birthday with the mother from after school until 7:00pm or if a non school day then from 9:00am until 1:00pm if the birthday falls on a day that the children are not in the care of the mother.
That the parents be permitted to telephone the children when the children are not in their care at such times as are reasonable having regard to the children’s ages and routines.
That both parents provide a mobile telephone number and a landline number, if any, to the other parent and advise the other parent of any change to same within twenty-four (24) hours of any change.
That both parents provide to the other parent their residential address and any other address that the children will be staying at whilst in the care of that parent if they are to stay at that address for more than two (2) consecutive nights, and advise the other parent of any change within twenty-four (24) hours.
That by this order the parents respectively authorise and direct any school or other provider responsible for any extra-curricular activity that the children may from time to time attend to provide to the other parent (at that parent’s cost):
(a)copies of all school reports, newsletters, photograph order forms and any other document associated with the children’s schooling or extra-curricular activities; and
(b)any information that either party may from time to time seek in relation to the children’s schooling or extra-curricular activities.
That each parent be at liberty to attend and be involved in any and all school events and extra-curricular activities.
That this order shall act as an authority from each parent for either parent to speak to any education or extra-curricular activity provider or health care provider associated with the children and obtain any and all information relating to the children and, where necessary, each parent will provide the other parent relevant details of the service provider including names, addresses and contact telephone numbers.
That the parents each inform the other forthwith of any medication that the children have taken whilst in that parent’s care and are required to continue to take after they leave that parent’s care.
That neither parent denigrate the other parent or that parent’s friends and/or family in the presence or hearing of the children and use their best endeavours to ensure that no other person does so.
That the parents use a communication book to communicate to the other parent any relevant matters relating to the children and each parent ensure that the communication book travels between the parents via the children.
That the parents be at liberty to nominate another individual to collect and/or deliver the children to and/or from their school.
That the parents ensure that the children do no travel interstate without being accompanied either by a parent or another adult known to the children.
That neither party physically discipline the children and use their best endeavours to ensure that no other person does so.
That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution practitioner to be agreed between the parties or Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parents shall pay the costs of the Family Dispute Resolution practitioner equally;
(c)In the event that the parties cannot agree on a Family Dispute Resolution practitioner, then the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)The father shall then choose one (1) of the listed practitioners within seven (7) days of receipt of the list;
(e)If the father fails to choose then the mother may choose.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding order.
That the parents complete a Parenting Orders Programme with Relationships Australia (telephone 1300364277) or Foundations (telephone 1300854733) or such other organisation that offers a similar programme.
That the parties, within seven (7) days of the date of service upon them of these orders, contact the Parenting Orders Programme Co-ordinator (or their nominee) for a programme provider referred to above for intake into the programme.
That the parties shall comply with any reasonable direction of the Programme Co-ordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme;
(b)attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the Programme Co-ordinator (provided that either party may refuse at their election to participate in joint sessions);
(c)if considered appropriate by the Co-ordinator, attend a Triple P parenting programme or equivalent parenting programme as nominated by the Programme Co-ordinator;
That for the purposes of the programme:
(a)a copy of these orders will be provided by the parties to the Programme Co-ordinator;
(b)the parties are at liberty to supply to the Programme Co-ordinator a copy of any Family Reports that have been prepared for these proceedings;
(c)the parties will provide a copy of the Reasons for Judgment in this matter dated 24 February 2010 to the Co-ordinator.
IT IS NOTED that publication of this judgment under the pseudonym Ball & Riley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 694 of 2009
| MR BALL |
Applicant
And
| MS RILEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of [X] and [Y] aged 7 years and [Z] aged 4 years and 10 months are unable to agree on their parenting arrangements.
The children have been in the primary care of their mother since the parents physically separated in October 2008.
From about 24 March 2009 to 16 June 2009 the children spent time with the father from after school Thursday to before school Monday each alternate week. Following the release of a report from Mr Parker, a court appointed expert, the children commenced spending time with the father from 6:30pm Wednesday to before school Monday each alternate week.
The father seeks the orders detailed in his Case Outline document filed on 17 November 2009 as amended at trial. If I made those orders then, inter alia:
a)The children would live in a week about shared-care arrangement with their parents with the changeover to be effected at school on a Monday morning. As an alternative, and if I find that the mother had deliberately undermined the parental communication, he seeks that the children live with him and spend five nights a fortnight with their mother on the basis of a reversal of the current parenting regime.
b)
The parents would equally share parental responsibility for
long-term decision making for the children.
c)The father would spend time with the children for half of each school holiday.
The mother seeks the orders detailed in her Case Outline document filed on 17 November 2009 as amended at trial. If I made those orders then inter alia:
a)The children would continue to live with her and spend time with their father during the school term from after school Thursday to before school Monday in each alternate week.
b)On the giving of notice, the children would spend time with their father for one half of their school holidays, such time to coincide with his annual leave.
c)A sole parental responsibility order in her favour.
In a report prepared by Mr Parker, dated 6 May 2009, he invited both parents to consider that “the children love each of them equally” and that “the parents must try their very best to sink their suspicions of each other in the interests of providing these three lively children with two family atmospheres which the children can continue to enjoy into the future.”[1] He recommended that the parents attend some counselling and parenting programs to assist them to this end.[2]
[1] Paragraph 159 of the family report dated 6 May 2009.
[2] Ibid, at paragraph 158.
Unfortunately, notwithstanding that report having been made available to the parties some months before trial, notwithstanding the parent’s attendance at a Keeping Up Contact program and the mother’s attendance at counselling, notwithstanding their referral to published parenting information to assist them in developing appropriate parenting skills, their relationship continues to be dysfunctional and conflicted.
The principal issues for determination in this case are:
a)Whether the presumption of equal shared parental responsibility has been rebutted and, if so, whether the best interests of the children are likely served by an order for sole parental responsibility or modified sole parental responsibility in favour of the mother; and
b)Whether, in circumstances where the children have a strong relationship with both parents, where the current regime of time has afforded them an opportunity to continue to develop those positive relationships and has otherwise served them well notwithstanding their parent’s poor relationship, either parent has made out a case for change.
Background
The mother
The mother is aged 37 years. She enjoys good health. She is in full time employment [in the Sales Industry] with [F]. Her work has some flexibility to accommodate the care of the children. She does not work weekends.
The mother resides with her mother, Ms R, aged 60 years, in [M].
Ms R lived with the parents for periods of time during their relationship.
The mother has formed a relationship with Mr M, aged 35 years. They will shortly commence to cohabit with Ms R (“the maternal grandmother”) in a home they have all purchased on acreage at [W].
The father
The father is aged 37 years. He enjoys good health. He is in full-time employment [in the Sales Industry] for [S]. He works five days a week which can include a Saturday.
He has not re-partnered. He resides in rented accommodation at [H]. It is his intention to purchase a home at [M].
The children
[X] and [Y] attend grade two at the [M] Primary School. [Z] commenced prep at the same school this year.
The children lead busy lives involving a number of extra-curricular interests as follows:
a)[X] and [Y] are involved in soccer commitments between March and September with training at [suburb omitted] on Monday afternoons and weekend games which commence after Easter.
b)All children attend swimming lessons at [M] on Tuesday afternoons from October to late July.
c)All children ride a horse owned by the maternal grandmother which is agisted at [suburb omitted].
d)[Z] and [Y] are involved in dancing.
The children have a number of pets – [a] poodle, [a] Mareema (the maternal grandmother’s dog) and a guinea pig.
Parenting arrangements
The mother took about 12 months maternity leave from her employment after the birth of the children thereafter returning to employment, initially part-time after the birth of the twins and then full-time after [Z]’s birth.
Prior to separation, the maternal grandmother was involved in the care of the children. When [Z] was 12 months old, the maternal grandmother commenced living with the parties in the former matrimonial home and assisted with child care when the mother returned to full-time employment. She continues to assist in the care of the children.
When not caring for the children himself the father relies on after school care and the support of family and friends.
Relationship details
The parties commenced to cohabit in December 2001 at a home occupied by the mother and maternal grandmother. They did not marry.
They separated under the one roof on 14 July 2008 at a time when they were residing in the former matrimonial home at [M], the home occupied by the mother, children and maternal grandmother at trial.
The father vacated the home on 17 October 2008. He thereafter resided in shared rented accommodation before obtaining independent rented accommodation at [H].
At the time of their separation, the parties were both working for [S], the father [in the Sales Industry] and the mother [in the Administrative Industry].
Court proceedings
The parties effected a financial settlement following the institution of Supreme Court proceedings.
The father commenced parenting proceedings on 28 January 2009.
The trial was heard over three days on 23 November 2009, 4 and 5 February 2010.
The evidence
I have carefully considered all of the evidence.
I have had the benefit of oral submissions which I have considered.
I do not propose to deal with every submission made however in reaching my decision as to what orders I should make in the children’s best interests I have considered all submissions.
The evidence reveals a history of significant conflict that pre-dated and post-dated the parties’ physical separation in 2008. The history does not reflect well on either parent and it contributed to a climate of distrust that continued to trial.
Following separation there was a protracted impasse as to who would or would not move out of the matrimonial home then occupied not only by the parties and children but by the maternal grandmother.
The father vacated the home on 17 October 2008 but not before:
a)the institution of proceedings in the Supreme Court by the mother seeking a financial settlement and sole use of the home;
b)
the institution of proceedings in the District Court by the maternal grandmother against the father and mother in relation to the
de-facto property arrangement;
c)the mother filing and then withdrawing an application for a protection order;
d)the paternal grandmother, who resides in Sydney, also moving into the home;
e)the paternal grandmother making a compliant to the police following an incident in the home;
f)the making of a range of allegations and counter-allegations including the father using a tape recorder, the father’s brother sending abusive and threatening SMS messages to the mother and bringing to the home an uniformed police officer who the mother alleged was a police prosecutor at the Court where her protection application was to be heard, locks to bedrooms being installed and removed, a door to a bathroom being removed, the children assisting in the removal of the father’s belongings from the shared bedroom, the changing of dinner times to exclude the father, the maternal grandmother locking the children downstairs in her part of the house and involving the children in the parental conflict, the mother spitting on the paternal grandmother, unfriendly dogs soiling the home, detergent being put in a kettle, rifling through an underwear drawer, gates and doors being left open, locks being changed on gates and fences, a complaint of dogs being mistreated, an investigation by the RSPCA, a threat to poison a dog and the stealing of a cup, amongst others complaints.
At the time of the making of consent orders in the Supreme Court, the Chief Justice observed, unsurprisingly, that the atmosphere in the home was not benefiting anyone, including the children.
At trial, the parents’ relationship exhibited the following features:
a)On-going conflict and discourteous behaviour.
b)Poor communication.
c)A lack of goodwill and trust and a strong litigation focus. By way of example, the mother’s evidence was that the father was not “child focussed,” that he “never tells the truth” and that he was using the communication book as a litigation tool. During the course of her cross-examination, at one point, she referred to the father as “the client.” The father’s evidence was that the mother put his phone discussions on speaker and that she had sought to use a police incident involving [Z] to her advantage in the parenting proceedings and had engaged in “intentional” behaviour designed to show poor communication and sabotage a shared-care arrangement.
d)Parallel, as opposed to cooperative, parenting in each parent’s household. For example, the parents have been unable to agree on a bed-wetting strategy, each employing different approaches in their household.
e)Problematic interfamilial relationships with family members on both sides engaged in the conflict. The father’s evidence was of a “long drawn out battle” with the maternal grandmother and the mother’s evidence was that it was her belief that the paternal grandmother had been a child abuser.
In light of that background, it has been difficult to make findings in relation to the various allegations and counter-allegations. In my view, the truth is likely to lie somewhere in between the parents’ versions, their recollection of events shaped by a prism coloured by entrenched perceptions of each other and their views of the rights and wrongs of the situation in which they find themselves.
The indisputable evidence is however that there is no goodwill and no trust between the parents. Each blames the other for that unhappy state of affairs. Each advance parenting proposals which they submit is based on the children’s best interests. Neither, however, evidences any understanding that their inability to develop a functional
post-separation parenting relationship is the very antithesis of the outcome they seek. As their young children grow to adulthood, they may be less interested in whether they were afforded equality of time in the household of each parent, which school they attended and what suburb they lived in. They may be more interested in whether their parents who were able to engage respectfully with each other, model cooperative behaviour and exhibit some goodwill.
Mr Hodges was critical of the mother’s conduct in a number of areas, however I am unable to conclude that she engaged in conduct consciously designed to secure an advantage in the litigation for the following reasons:
a)In the context a complaint to the police by a third party independent of the parents about [Z] in the father’s household, a contemporaneous complaint by [Z] to the maternal grandmother of alleged serious physical abuse perpetuated by the paternal grandmother, the maternal grandmother’s belief, albeit an inaccurate belief on the evidence, as to the paternal grandmother’s parenting history and a conflicted parental relationship that left no scope or opportunity for explanation and clarification between the parents and/or between the mother and paternal grandmother, no criticism can be levelled at the maternal grandmother and/or the mother in bringing that history to the attention of the doctor. They may well have been criticised for not doing so. I am further satisfied as to their explanation as to the timing of their visit to the doctor.
b)Whilst the manner in which the mother handled her intended sale of her home and relocation and the circumstances in which the father found that out – via an internet alert – and whilst the mother’s conduct in not including the father in arrangements for [Z]’s commencement of school was rude and disrespectful and exacerbated already high levels of distrust, I am not persuaded that the mother’s purpose was manipulation for litigation purposes. In my view it was symptomatic of the nature of the parent’s relationship, a continuation of a dysfunctional relationship that existed prior to trial, notwithstanding the occasional bright spot.
Mr Hodges pointed to some positive signs in the parent’s relationship, including the mother’s overtures and conduct with the father at a sporting event. However “a single note does not a symphony make,” and the mother’s conduct on this occasion and the other evidence to which he referred were but glimmers of light in an otherwise bleak landscape of parental non-cooperation.
The mother, unfortunately, has a particular communication style that leaves little room for dialogue, interchange of ideas or connection.
In the giving of her oral evidence she exhibited poor listening skills, impatience and she was want to make assumptions about what was being asked before it was asked.
It is difficult to exchange thoughts – the very purpose of communication – if you are not prepared to listen before attempting to speak. When combined with the father’s own communication style and heightened levels of distrust of the mother, it is unsurprising that the parent’s communication has been ineffective.
Having seen the parents in the witness box, and having considered all of the evidence, I am persuaded that, consciously or unconsciously, neither has any real investment in turning things around for the better. They appear content to focus on each other’s conduct and blame the other. There is no real scrutiny of their conduct and what positive changes they can each make.
There is no better example of this than the failed attempted implementation of a communication book – a simple process, one would have thought, for intelligent people who hold down responsible jobs – a process where one parent writes in a book, then puts the book in a child’s bag for delivery to the other parent, the other parent takes it out, reads it, writes in it and ensures that it is returned in like fashion.
That process failed after two visits, the father’s evidence being that the book was never returned and the mother’s evidence that the book never arrived. Neither took the initiative to purchase another book, the father’s evidence being that after two attempts, it “hasn’t worked” and the mother’s evidence being that it was not a good idea, anyway, because she did not like reading what the father wrote in the book.
At the conclusion of the trial, they both asked the Court to make an order that that process be again implemented even though neither showed any inclination to make it work in the first place or any initiative to reinstate it themselves, both apparently taking some comfort in a Court order that required two adults to implement the process.
The law
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of children as my paramount consideration.
In determining what is in the best interests of children I must consider the matters set out in s.60CC of the Act.
I should also consider and be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying those objects.
I am required to make findings of fact where I am able.
I am then required to evaluate all relevant issues and the facts in order to reach a conclusion which is in the best interests of the children.[3]
[3] See dicta of Rose J in Pottinger & Bainton [2009] FamCA 124 at para.38.
Applying the law to the circumstances of the case
In my consideration of the competing parenting options before me I also propose to consider a continuation of the current parenting regime of time.
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents
The children enjoy a very good relationship with both their parents. Both parents acknowledge the importance of the other parent to the children.
I accordingly find that it is in the children’s interests to develop a meaningful relationship with their parents and to spend as much time as possible with both parents to enable them to achieve that end.
The parenting proposals of both parents would afford the children sufficient time to do so.
The oral evidence of Mr Parker, which I accept, is that the present regime would also answer the children’s need to maintain a quality relationship with both parents.
The need to protect the children from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence
I find that the children are not at risk in the care of the paternal grandmother. The basis upon which I have reached this conclusion is as follows:
a)I find that the paternal grandmother did not kick [Z] in the head or otherwise physically abuse her as claimed by [Z].
b)On the evidence [Z], who is tantrum prone, was tired, had a tantrum, was smacked by her father and was sent to her room at which time a neighbour, concerned about the amount of screaming coming from the father’s house, then called the police. The matter was investigated by police and no further action taken.
c)I am unable to find on the evidence that the paternal grandmother had a history of family dysfunction, had engaged in child abuse, had lost custody of her four children because of that history and by reason of that history poses an unacceptable risk to the children.
Had the parents enjoyed better communication and a more trusting relationship then the police incident involving [Z] would likely have been clarified much earlier and the amount of time spent at trial on that one issue averted.
I find that the parents have been neglectful of the needs of their children in their failure to develop a workable co-parenting relationship following their separation and by exposing the children to their conflict.
The father accepted that the children were involved in the parental conflict; that the children do not want to see their parents upset but that there was “always” upset. The mother’s evidence was that she had informed the children’s school that the father and she “had a hostile and estranged relationship and (she) would not be attending” [Z]’s parent interview with him. Mr Parker’s evidence was that the children were aware of their parent’s difficulties with each other.
There is however no evidence to suggest that the parental relationship has negatively impacted upon the children to date or that the children have been experiencing difficulties moving between their parent’s households under the current regime of time. Whether this is because of their “resilience”, to use the words of Mr Parker, or good fortune as opposed to good management is unclear. Mr Parker’s evidence was that whilst it was not having a debilitating effect on the children at present that may not be the case in the future if the parent’s “war of attrition” continued.
Of all of the competing proposals, the current regime of parenting time is a tested regime of long standing. Neither party raised a concern that it was not presently working in the children’s interests.
I place significant weight on my findings with respect to the primary considerations and find that they support maintenance of the status quo.
Additional considerations
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views
The children are aged 7 and nearly 5 years.
At the time of their interviews with Mr Parker the children expressed the view that they wanted to spend more time with their father. However, Mr Parker acknowledged that he did not ask them if they wanted to spend more time with their mother and he further acknowledged that at the time of his interviews the children were spending less time with their father than they were at trial. It was following the release of his report that the children’s time with the father increased.
Further, in the context of [X]’s response to Mr Parker when he posed the question on which days he would spend that time, Mr Parker acknowledged that he did not consider or explore the children’s
extra-curricular pursuits and he conceded that he should have done so.
Taking into account all of these matters, including the ages of the children, I place little weight on the children’s wishes expressed to
Mr Parker in my consideration of the competing proposals.
The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)
The children enjoy a very good relationship with both parents.
Whilst there was some suggestion that the children had a problematic relationship with the paternal grandmother on any fair view of the evidence there is nothing to suggest that they do not enjoy spending time with her.
The children also enjoy a good relationship with their maternal grandmother. I find that this is likely to be a closer relationship than that shared with the paternal grandmother reflecting the historical nature of their care arrangements and the fact that the paternal grandmother resides in Sydney.
The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
I find that both parents have failed to facilitate and encourage a close and continuing relationship between the children and the other parent.
The basis upon which I have reached that conclusion is as follows:
a)To “facilitate” means “to make easier or less difficult; help forward.”[4] It is more than making a child available to the other parent. It involves courteous behaviour such as keeping the other parent informed and ensuring for example, that the other parent knows if the children have been fed before they arrive.
[4] Macquarie Dictionary (2006), The Macquarie Library Pty Ltd at page 419.
b)
To “encourage” means “to stimulate by assistance; approval etc.”[5] It means giving the other parent the benefit of the doubt.
[5] Ibid, at page 390.
It is not evidenced by an inability to effectively engage with a parent or to take some meaningful steps to improve that engagement. It includes respectful acknowledgment of the other parent, including at changeovers. It involves respecting the other parent’s personal boundaries and recognising the fact of separation.
c)Both parents have acted in a high handed parenting manner largely focussing on minutiae yet choosing to ignore the potential damage to the children of the nature of their parenting relationship.
d)Both engaged in unilateral action without consultation, complaining when the other did so, yet each believing in the correctness of their own actions. The father enrolled [Z] in prep without the mother’s consent when he knew that she had a view on whether [Z] was ready to attend school. It matters not that the mother may have later changed her view. The mother’s failure to include the father in the arrangements for [Z]’s attendance at school was discourteous to the father and evidenced a modest understanding of the importance to [Z] of being able to experience this significant day with both her parents present and both presenting a united front. I do not accept that she could not have organised herself to be there on time – she has the full-time assistance of her mother – or that she would not have been aware that the father would not have been keen, indeed anxious, to be involved.
e)Both parents complain about the exchange of information. It is difficult not to have sympathy for the father who found out about the address of the mother’s new home only on the morning of the adjourned trial and had to use a Google map to find out how far it was from his home or the fact that he had no knowledge of whether the mother’s boyfriend was living with her.
f)
In my view the mother has largely “given up” on the father.
She goes through the motions but finds it easier to bypass him, her evidence being that the father “always says no to everything I suggest” and “he doesn’t talk back to me about the children”. Whilst the mother does not have a particularly embracing communication style, the father would do well to reflect on this piece of evidence and his contribution to that dynamic.
In my view of the two parents the mother has been able to move on and re-establish her life. She was the more assured of the parents in the witness box. The father has found the separation more difficult. He is still endeavouring to establish himself including financially. The focus on litigation has depleted his financial resources. He remains highly distrustful of the mother and her motives. In my view, his lack of trust is a significant barrier to the parents being able to move forward.
The likely impact of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living
The impact of the father’s proposal on the children is unknown. I am unable to accept given the totality of his evidence that his work arrangements are unlikely to have some impact on the continuity of the children’s care arrangements. He is a largely untested parent in this regard.
Prior to separation, the father was working long hours in full-time employment. He continues with the same employer in the same capacity. Whilst his evidence is that his employer is prepared to be flexible to accommodate his parenting role he is a sales person, he still has to meet targets, the specifics of how he was to “work smarter rather than harder” to achieve that remains unclear, he is operating in a challenging work environment and he was unable to satisfactorily explain the circumstances of a reduced income which led to a successful reduction in the payment of his assessed child support and how his varied work arrangements would then have minimal, if any, impact on his income.
I accept the submission of counsel for the mother that the father’s evidence on his work and financial arrangements was confusing and unsatisfactory.
In relation to his work arrangements there was no evidence to assist me in assessing the level of flexibility his employers were prepared to extend to him given the nature of his work. For that reason I am not prepared to accord a great deal of weight to the letter from his employer.[6] He did not adduce any sworn evidence from his employer that could be tested in court. He had ample opportunity to do so.
[6] Exhibit 1.
The mother is however the tested parent in this regard. She also has the support of her mother, the children’s familiar carer.
The impact, if any, of the mother’s care arrangements on the children given that she now intends to live with Mr M is unknown. He did not give evidence in the mother’s case.
I do not accept that the mother’s proposal, which her Counsel conceded involved less than one day of parental contact given that the children attend school, would effect a significant qualitative difference in the lives of the children or that it would favourably impact upon the children’s understanding of where they are living.
Nor is there evidence to suggest that the father’s use of holiday care during school holidays would have a negative impact on them and that it would be preferable that they spend time with the maternal grandmother. The father has the support of his mother and a range of friends. His evidence is that the children enjoy school care. Mr Parker did not have a difficulty with the use of school care and indeed referred to some benefits in such a care regime. I accept that the nature of the father’s relationship with the maternal grandmother is such that he would not feel comfortable using her as a back up. His evidence is that she hangs up on him whenever he telephones the mother’s home.
I find that there is unlikely to be any negative impact on the children of a continuation of the current regime of time. It is a tested regime.
I accept the evidence of Mr Parker that unless there was evidence that the mother was “wilfully, seriously, emotionally hurting the children,” and I find there is none, then the father’s alternative parenting proposal was “drastic.”
I place significant weight on this consideration and find that it supports the status quo.
The practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no practical expense or difficulty in the various parenting options.
Whilst the mother’s move to [W] will involve the children in more driving time to school, it is not a significant impediment. The parents both live on the north-side. If the father purchases a home then his evidence is that it will be in the [M] area.
The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
Save for the issue of the parent’s relationship, there is no evidence to suggest that either parent is unable to provide for the needs of the children.
Whilst the father was critical of the mother, he acknowledged that the she provided excellent care of the children. Whilst he was critical of the maternal grandmother and acknowledged that they had a poor relationship, there is no evidence to suggest that she is unable to provide for the day to day care for the children. She did so before the parties separated. She gave evidence and appeared to be a caring grandparent, as did the paternal grandmother.
The mother held a number of concerns about the father’s ability to care for the children following the parent’s separation. Mr Parker acknowledged that he did not directly address all of these concerns with her and with the father and that he should have done so. However, there is no evidence to suggest that the father does not have the capacity to meet the children’s day to day needs and no evidence to suggest that his current housing is not otherwise appropriate for the children’s needs. He is no longer sharing accommodation which had been an earlier concern of the mother.
Nor am I able to find on the evidence that when he was living in shared accommodation that the children were exposed to situations and/or people likely to harm them. The father denies this. The parents were not communicating. The mother was relying on what the children had told her and they may or may not have been accurate conveyors of information. Mr Parker was not concerned about the information conveyed to him by the children about the people residing in the home.
I have otherwise previously addressed and made findings in respect of the parent’s work and financial arrangements and the parent’s relationship.
Maturity, sex, lifestyle and background of the child and either of the children’s parents (including lifestyle, culture and traditions) and any other characteristics of the child that the court thinks are relevant
The children and parents appear to enjoy good health.
The children are developing within normal parameters, they are doing well at school, appear to be achieving their milestones and they are engaged in a range of extra-curricular activities.
There are no other relevant issues under this heading that I have not otherwise addressed.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the child’s parents
Save for their failure to address their relationship issues, which I have discussed, there is no evidence to suggest that either parent does not have an appropriate attitude to their parental responsibilities.
I accept the father’s explanation as to why he requested his employer to reflect a more accurate assessment of his income.
The evidence does not allow me to make a finding in relation to whether at the adjourned trial he continued to be in arrears of child support and to what extent.
Any family violence involving the children or a member of the children’s family and any family violence order that applies to the children or a member of the children’s family, if the order is a final order or the making of the order was contested by a person
Following an incident at the home the mother made application for a protection order on 24 July 2008. The mother did not proceed with the application as it was her evidence that the behaviour complained of ceased on her making the application. The father denied that there was any basis for her bringing the application.
Mr Parker conceded in evidence that he should have followed up with the mother and the father in the course of his interviews the domestic violence concerns and that it was unusual for him not to have done so.
Save for some questions about the attendance at her home of a police officer, the mother’s complaints of family violence before separation were not pursued with the father at trial.
I am accordingly unable on the evidence to make findings in relation to family violence.
I have otherwise addressed the history of conflict between the parents and family members.
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 children
Whilst Mr Parker suggested as an option the making of an interim order or an updated report with a home visit I do not see any benefit in either course. The children have already been exposed to a great deal of conflict and one set of interviews.
These proceedings have been on foot for over 12 months. Neither parent has the resources to expend on ongoing litigation. They are both privately funding their legal costs. They need to consider other more cost effective ways of resolving legitimate differences of view.
I find that it is in the children’s interests that there is finality, that any parenting orders are clear and that they provide the parents with a process, other than litigation, to assist them to resolve any future parenting disputes.
I am satisfied that both parents will comply with an order made by this Court.
Any other fact or circumstance that the court thinks is relevant.
There are no other relevant matters.
Section 60CC (4) and (4) (A) of the Act
I have addressed relevant events since separation and otherwise made findings where I am able to do so.
Parental Responsibility
The mother seeks an order for sole parental responsibility in her favour as a result of the parent’s poor communication and lack of
co-operation. However, I am not persuaded that the presumption in favour of equal shared parental responsibility is rebutted under s.61DA of the Act or that the best interests of the children are likely to be served by my making such an order.
The basis upon which I have reached this conclusion is as follows:
a)Whilst there is parental conflict and poor communication and whilst the light at the end of the tunnel may be dim, to use the words of Mr Slade-Jones for the mother, I am not satisfied that the light has yet extinguished.
b)
Nor am I persuaded that my findings rebut the presumption and the clear legislative intent reflected in the objects of the Act and principles underlying those objects that, inter alia, provide that children’s best interests are met by both parents sharing in the responsibilities of parenthood, including long term
decision-making.
c)In my view, the bar for removing a parent from long term decision-making is a high one, his Honour Murphy J observing in Runcorn & Raine [2008] FamCA 837 at paragraph 36 the seriousness of such a step.
d)Nor am I persuaded that there are “exceptional circumstances” or “cogent evidence” in this case, (see paragraph 310 supra) that would lead me to make an order that would leave the father with none of the rights, authorities and responsibilities in respect of the children.
e)Indeed, having seen the parents in the witness box, in my view removing a loving father from that role is likely to not only marginalise the role he has to play in the lives of the children, the importance of which the mother has implicitly recognised in the form of the parenting orders that she seeks the Court make, it is likely to be productive of further conflict.
f)Nor am I satisfied that a modified order for sole parental responsibility in favour of the mother is appropriate. It risks, in the circumstances of this case, the mother going through the motions of compliance.
g)The facts in Pottinger & Bainton [2009] FamCA 124, where such an order was made, are distinguishable from this case, in that whilst there was historical poor communication and high conflict there were findings of family violence against the father, the father admitted to serious denigration of the mother and there was a finding that he had a deep-seated antipathy towards her. It also involved orders for transitional supervised time between the father and the child and a finding that the father had an extremely limited capacity to provide for the child’s emotional needs.
h)Whilst I accept that to refuse the mother’s order given the personalities of the parents risks further conflict or ineffective decision-making or decision-making by fatigue and that there is no “magic wand” unless the parents want to effect change, on balance I am satisfied that inserting a facilitated dispute resolution process or circuit breaker in parenting orders may be of some assistance to the parties, as will a requirement that they attend a parenting program. This was the view of Mr Parker who whilst not favouring an order for sole parental responsibility in favour of the mother was concerned to ensure that the parties not be left “entirely to their own resources” in discussing these issues. Whilst a communication book and text messaging has its place it is no substitute for direct dialogue on parenting issues of importance.
Time
Having made an order for equal parental responsibility, I am required under s.65DAA of the Act to consider equal time and if not equal time then substantial and significant time between a parent and a child.
I find that an order for equal time as proposed by the father is not in the children’s best interests nor is it reasonably practicable. The basis upon which I have reached this conclusion is as follows:
a)The parents have not exhibited a present capacity to implement an arrangement for the child spending equal time given the nature of their current relationship. Nor is there evidence to suggest that they are likely to acquire that in the near future (see s.65DAA(5)(b) of the Act).
b)The parents have not exhibited a current and/or future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind (see s.65DAA(5)(c) of the Act). Parental communication to-date has centred on the failed implementation of a communication book, occasional telephone calls (problematic on both parent’s evidence) and brief texting by telephone. Whilst Mr Hodges for the father submitted that the parent’s communication was improving the orders he sought and the submissions he made in support of changeovers being effected at school to avoid the parents coming into contact are at odds with this submission.
c)I otherwise rely upon my findings under s.60CC of the Act.
I am however satisfied that a continuation of the current regime of time, which would enable the children to spend substantial and significant time in the care of the father is practicable notwithstanding that the parents are no longer living at [M] and notwithstanding some uncertainty about the father’s work arrangements.
The distance between [W] and the father’s residence would not impact on the children’s care arrangements and the amount of time they have otherwise been spending in the household of the father under the current regime.
The current regime will enable the father the opportunity to spend time with the children on weekends and holidays and on days that do not fall on weekends and holidays. It will enable him to be involved on a weekly basis with the children’s schooling. There is nothing to stop him, of course, being involved in their schooling on other occasions when they are not residing in his household.
It will enable him to be involved in the children’s daily routine. It will enable him to be involved in occasions of significance to the children and the children to be involved in occasions and events of special significance to the father and members of his family.
Conclusion as to issues
The conclusions and findings that I have made in relation to the primary and additional considerations form the basis for my considerations about the parenting orders that I intend to make.
I have identified those considerations in respect of which I place significant weight.
Whilst the parent’s proposals do not propose significant changes in time, current social theory is that the crucial components underpinning a successful shared-care parenting arrangement lie in the attitudes, values and behaviours of parents and in their ability to promote a cooperative relationship and exhibit some goodwill. This social theory is also encapsulated in case law (see for example, H v H (2003)
FLC 93-168 and M & M [2005] FamCA 207).
In circumstances where there is no evidence to suggest that under the current regime of time the children have not been able to develop a meaningful relationship with both parents or that it has not worked in their interests and where the parents are unable to advance a compelling case for change, a change unlikely to be supported by insight, good-will and a workable co-parenting relationship I must pose the question, why introduce any change? Whilst the parents have problems the current regime is tested and it appears to be working. They children appear settled.
On the mother’s proposal the children’s time with the father would be reduced with no demonstrable qualitative benefit flowing to the children.
Similarly, on the father’s proposal there is no demonstrable qualitative benefit to the children’s time being increased. It is no answer to submit that the changeover will be at school thus avoiding the parent’s coming into contact with each other. That deals with the consequences of, not the fact of their dysfunction and it fails to deal with the impact of that dysfunction on the parent’s ability to effectively co-parent. Nor does it respond to the practicalities of spending equal periods of time in two households where the parents engage in parallel as opposed to cooperative parenting and to-date have not evidenced the skills to implement a simple communication book or clothing exchange.
Nor is it a rationale for the increased time proposed by the father that the children will know which household deals with them in one week and which in another week. There is no evidence that they are having difficulty transitioning between households under the current regime.
Nor is it a rationale for change that the father has spent a great deal of money to achieve equal time and that it will enable him to be more involved in homework and school projects. He can be involved now, but for the impediments imposed by the parents’ own failure to address their communication difficulties. Therein lays the fundamental problem, one that neither parent has been able to fully grasp.
They have both spent a great deal of money on litigation rather than directing their efforts to fixing their parenting relationship and improving their trust.
Nor has father made out a case as to why the Court should reverse the parenting regime in his favour. The current regime provides structure, it reinforces and supports the children’s “need”, to use the words of the father, for a father and what he can offer them and it provides them with the opportunity to see family other than the mother’s family – that being a rationale provided by the father for his proposed regime of time. He does not present as having any greater insight into the dynamics of the parental conflict than does the mother. Nor does he present as have any greater ability or insight than she does in being able to navigate and effectively respond to change.
In the end, I have reached the conclusion that the best interests of the children are served by a continuation of the current regime.
That regime was supported by Mr Parker in his oral evidence at trial.I am not persuaded that the mother’s proposal for holiday time is likely to benefit the children. Unless there is evidence of unacceptable risk to their well-being as a consequence of the father’s holiday proposals – and there is none – or the children are struggling with after school care or holiday care – and there is no evidence that they are – they should have the opportunity to be parented under a range of circumstances including when they are ill, at school, on holidays, when engaged in extra-curricular activities and the like. There is no evidence to suggest that the father would not make appropriate provision for the children’s care during school holidays if he was unable to secure holiday leave and unable to care for them himself.
I prefer the father’s proposal for Mother and Father’s Day which will enable the children to spend a whole day with a parent and sufficient opportunity to celebrate that special occasion.
In relation to the parenting orders that require my determination,
I propose to make orders in terms of Order 11 of the mother’s proposed orders in its entirety. Parents are entitled to know where their children are if they are to spend more than two consecutive nights from their usual home. This is a matter of courtesy and respect. I do not view it as an onerous order.I do not propose to make the order about both parents be present at the same time during medical appointments. It is productive of conflict in the circumstances of this case and there is no reason why either parent cannot make their own appointments to see a child’s doctor or clarify issues with the doctor on the phone or in person if necessary.
I do not propose to make the order in relation to the use of excessive alcohol or drugs as it was not an issue pressed before me.
I propose to make an order that neither parent physically discipline the children and use their best endeavours to ensure that no third party do the same.
I propose to make an order that each parent ensure that the children not travel interstate without either of them or a suitable adult known to the children accompanying the children given the ages of the children.
I see no reason why the children, however, should not be able to travel with an adult other than a parent, for example a grandparent.
The paternal grandmother and her husband live in Sydney.In relation to the issue of the children’s schooling this was not pursued by the mother at trial other than in the context of her seeking a sole parental responsibility order in her favour, an order I am not prepared to make. It is her view however that consideration should be given to the children attending a school equidistant from the parent’s homes.
In my view, there may be some merit in the parents considering a change of school for the children at some stage given the parent’s changed residential arrangements. Even if the father were to purchase a home in [M] – and there is no reason why he could not move closer to the mother’s home (other than a personal preference for [M]) to facilitate a reduction in travelling time for the children if they were to change schools – there is no evidence to suggest that there would be any negative impact on the educational progress of these primary school children if they were to change to another state school or a negative impact on their emotional development because that may disrupt current childhood friendships. At this stage of their development their primary attachments are with their parents.
Orders
I make the orders detailed at the commencement of these reasons.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM
Associate: M. Kakoulidis
Date: 24 February 2010
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