Bancroft and Bancroft
[2018] FCCA 517
•5 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANCROFT & BANCROFT | [2018] FCCA 517 |
| Catchwords: FAMILY LAW – Parenting – 4 children – father lives in suburban Sydney mother lives (location omitted) – where children are to live – wishes of children – parental capacity to meet children’s needs – parental responsibility. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Mental Health (Criminal Procedure) Act 1900, s.32 |
| Cases cited: Boyle & Zahur & Anor (No.2) [2017] FamCAFC 263 Goode & Goode (2006) FLC 93 – 286 MRR & GR [2010] HCA 4 |
| Applicant: | MR BANCROFT |
| Respondent: | MS BANCROFT |
| File Number: | PAC 853 of 2010 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 10, 11, 12 May 2017, 5 June 2017 |
| Date of Last Submission: | 20 June 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 5 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Burke & Mangan |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Fairfax Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Gutteres |
| Solicitors for the Independent Children's Lawyer: | O'Donnell & Associates Family Lawyers |
ORDERS
That the parents shall have equal shared parental responsibility for the children:
(a)[W] born (omitted) 2004;
(b)[X] born (omitted) 2006,
(c)[Y] born (omitted) 2008; and
(d)[Z] born (omitted) 2011.
For the purpose of the order for equal shared parental responsibility, the parents are to consult each other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
That the children shall live with the father.
That the children shall spend time with the mother as follows:
(a)During the school terms:
(i)Commencing on 9 March 2018 and each alternate week thereafter, from after school on Friday to before school on Monday (or Tuesday if Monday is a non-school day);
(ii)Commencing on 13 March 2018 and each alternate week thereafter, from after school on Tuesday to 7pm;
(b)During the school holidays:
(i)For one week in the school holidays at the conclusion of terms 1, 2 and 3 commencing at 10am on the first Saturday of the school holidays and concluding at 5pm on the second Saturday of the school holidays;
(ii)For one half of the school holidays at the conclusion of term 4 at times agreed between the parties and failing agreement:
1. In 2018 and each even numbered year thereafter from 10am on the middle Saturday of the holidays to 5pm on the last Saturday of the holidays;
2. In 2019 and each odd numbered year thereafter from 10am on the first Saturday of the school holidays to 5pm on the middle Saturday of the school holidays;
(c)For Easter:
(i)In 2018 and each even numbered year thereafter from the conclusion of school on Easter Thursday to 12 noon on Easter Saturday;
(ii)In 2019 and each odd numbered year thereafter from 12 noon on Easter Saturday until 12 noon on Easter Monday;
(d)Unless the children are already spending time with the mother, on the Mother’s Day weekend from 5pm on Saturday to 5pm on Sunday; and
(e)Unless the children are already spending time with the mother on each of the children’s birthdays (with all of the children) for a period of two hours as agreed between the parents but failing agreement from after school to 5pm.
Notwithstanding any other order, the children shall spend time with the father:
(a)On Father’s Day weekend from 5pm on Saturday to 5pm on Sunday; and
(b)On each of the children’s birthdays (with all of the children) for a period of two hours as agreed between the parents but failing agreement from 5pm to 7pm.
Changeover shall occur as follows:
(a)On the days that the children’s time with the mother commences at the conclusion of school, the mother shall collect the children from their respective school at the end of the school day;
(b)On the days that the children’s time with the mother commences at a time other than at the conclusion of school, the mother shall collect the children from the father’s residence at the commencement of time;
(c)On the days that the children’s time with the mother concludes at the commencement of school, the mother shall deliver the children to their respective schools at the commencement of the school day;
(d)On the days that the children’s time with the mother concludes at a time other than the commencement of school, the mother shall deliver the children to the father’s residence at the conclusion of the time, except that at the end of the school holidays when it is the father who shall collect the children from the mother’s residence at the conclusion of the children’s time with the mother.
For the purposes of the above order and except as otherwise provided for in these orders, on the days when the mother is collecting the children from their respective schools, the father is not to be in attendance at the conclusion of the school day and he shall ensure that Ms J shall likewise not attend.
That should either parent be accompanied at changeover by a third party, that third party shall remain in the motor vehicle and not participate in the changeover.
The children shall communicate with the parent with whom they are not spending time, by telephone or Skype or other appropriate method, between 5.30pm and 6.30pm each Tuesday and Thursday. The parent facilitating the communication shall ensure that the children have reasonable privacy whilst talking to the other parent.
That each parent shall keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 48 hours of such change.
That in the event of childhood illness or medical emergency, the parent with whom the child or children may be at any time, shall contact the other parent forthwith by telephone or SMS to inform them of the emergency and the name and contact details of the hospital or clinic where the child or children have been admitted.
That the father/mother shall advise the mother/father in writing, with no less than 7 days’ notice, of any specialist medical appointment for the children, including the name of the health practitioner and the time and place of the appointment and the mother/father shall be permitted to attend the appointment and shall advise the father/mother in writing of her/his intention to do so.
That the parents shall inform each other and keep each other informed of the name, telephone number and address of the children’s current and future treating medical specialists and therapists, including but not limited to speech therapists and paediatricians.
That both parents be and are hereby restrained from taking the children or any of them to any psychologist, psychiatrist, therapist or counsellor (“therapists”) whatsoever, unless upon the express referral or recommendation of the school counsellor at the children’s respective school or the children’s general practitioner or any treating medical specialist.
Both parents are permitted to contact the children’s treating medical specialists and therapists for the purpose of receiving information and reports about the children’s diagnosis and treatment.
Both parents are permitted to liaise directly with the children’s respective schools and sporting bodies to receive relevant notices, information, newsletters, reports photographs and other information as to the children’s progress.
Both parties are at liberty to attend the children’s respective schools for the purposes of any school function or activity normally attended by parents.
The parents shall communicate with each other about issues that are limited to the children’s care, including the children’s educational and medial issues using SMS or email only except in the case of a medical emergency regarding themselves or the children.
The mother shall continue to engage with her psychiatrist Dr S or other treating specialist for such time as the treater considers necessary and shall comply with all recommendations as to treatment.
The father shall continue to engage with his psychiatrist Dr J or other treating specialist for such time as the treater considers necessary and shall comply with all recommendations as to treatment.
That each of the parents, their servants and agents are restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent by any way whatsoever; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing for the children, or any of them and permitting or allowing any third party to do so.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Bancroft & Bancroft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 853 of 2010
| MR BANCROFT |
Applicant
And
| MS BANCROFT |
Respondent
REASONS FOR JUDGMENT
Introduction
[W], [X], [Y] and [Z] are the four subject children of a parenting dispute between the applicant father and respondent mother which has raged between them since before the date of the filing of the Initiating Application, which took place in February 2015.
The children have been living with the father pursuant to interim orders made on 15 July 2015, at the time of publication of this judgement, a period of close to two and a half years. In the context of the young ages of these children, that is a significant portion of their lives.
Both parents are moving the Court for orders that the four children live with them and spend time with the other parent. The Independent Children’s Lawyer submits to the Court that an order for the children to live with the father and spend time with the mother is an order in their best interest.
The father lives with the children in (location omitted), and the mother lives on the (location omitted). Therefore, an order for the children to live with the mother would see a significant upheaval to these children’s lives in terms of their established routines. An order for the children to live with the father would ensure that there would be a continuity for the children in the home and school environment which is familiar to them. Of course, the status quo is not per se a relevant reason to make any particular order. The Court must consider, in accordance with its statutory obligations, the relevant matters under the Family Law Act1975 when coming to a determination of what parenting orders it should make.
There are many factual disputes between the parties. Not all of those factual disputes are the subject of findings. There were a number of critical incidents in respect of which findings are important, these are referred to in some detail in the reasons for judgment.
Ultimately, there were a limited number of issues the resolution of which was determinative of the orders which the Court hereby makes. Those were:
a)Children’s views;
b)Capacity of the parents to meet the needs of the children; and
c)Capacity of the parents to co-parent;
The last incident of ‘violence’ between the parties was on 9 February 2015, and since then, the parties have been able to have a reasonable co-parenting relationship.
Relevant Legal Principles
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of the proceedings.
The children’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.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[3] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[4] Consideration does not mean discussion.[5]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] [2009] FamCAFC 92
[4] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[5] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
High Court held in MRR v GR[6] that s 65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[6] (2010) 240 CLR 461 at 467 [15].
The application of the statutory provisions in the context of relocation cases has been discussed by many authorities. For example, the Full Court in Malcolm & Munro[7] approved what was said by Justice Boland in Morgan & Miles[8].
[7] (2011) FLC 93-460
[8] (2007) FLC 93-343 particularly at paragraphs 79 to 81
In Sayer & Radcliffe and Anor[9] the Full Court discussed the approach to be taken when a parent is seeking to relocate as follows:
It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)
[9] [2012] Fam CAFC 209 at [47]
In Heaton v Heaton[10] the Court held that what is required in relocation cases is for the Court to determine the children’s best interests by reference to the well-known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents.[11]
[10] (2012) 48 Fam LR 349 (“Heaton”) at [32].
[11] cited with approval in Boyle & Zahur& Anor (No.2) [2017] FamCAFC 263 at [34]
As this Court has recently stated[12], parenting cases are always difficult. Determining where children are to live in circumstances where the parents live significant distances apart is even more difficult.
[12] Blythe & Blythe [2018] FCCA 66 at [20]
This is not a relocation case of the usual type which comes before the Court. Even it if were, the authorities have made it abundantly clear that relocation is not to be treated as a discrete issue and that the legislative pathway is to be followed.
Decisions in respect of children’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework. It is apposite to be reminded of what the High Court has said in respect of the Court’s discretion in this regard. CDJ v VAJ at 219 [151]; [152] per McHugh, Gummow and Callinan JJ :
parenting cases which “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”:[13]
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[14]
[13]CDJ v VAJ at 219 [151]; [152] per McHugh, Gummow and Callinan JJ.
[14] Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [11]
Furthermore, the High Court[15] has relatively recently stated, being a reminder of the discretionary nature of parenting decisions, that[16]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[15] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]
[16] These were obiter comments in the context of an appeal with considerations different to the present case
It is with these principles in mind that the Court has made its findings in respect of where the children are to live. While the hearing of this matter took a significant amount of Court time, ultimately there were only a limited number of discrete issues which were central to the Court’s determination of the parenting proceedings as noted earlier.
Brief Chronology
The mother was born (omitted) 1978 in the (country omitted).
The father was born (omitted) 1980 in (country omitted).
The parties met in Sydney in 2001. By that time, the father had moved to Australia.
On (omitted) 2003, the parties married in (country omitted). They returned to Australia to live in December 2003.
[W] was born on (omitted) 2004.
[X] was born on (omitted) 2010.
[Y] was born on (omitted) 2008.
[Z] was born on (omitted) 2011.
The parties separated under the one roof in early 2013 and in May of that year the father vacated the former matrimonial home.
In about March 2014, the father returned to live in the former matrimonial home albeit he moved into the garage/granny flat.
The father met his current partner in August 2014.
In October 2014, the mother moved out of the former matrimonial home with the children. In December of the same year, the mother together with the children moves to the (location omitted). The mother advised the father of the move by way of text message on 29 December 2014.
In January 2015, the mother met her current partner.
On or about 22 January 2015, the mother delivered the children to the father for the purposes of spending time with him. On 27 January 2015, the children individually spoke to the mother in the paternal grandmother’s home to express their “wishes” about where they preferred to live and go to school. [Y] and [Z] left with the mother after this meeting, but returned to their father’s home the next day.
The father commenced proceedings in the Federal Circuit Court of Australia on 3 February 2015.
Pursuant to an agreement between the parties, the children were collected from the father to spend time with the mother on 6 February, due to be returned to the father on 8 February 2015. The mother subsequently emailed the father telling him that the children would not be returning.
On 9 February 2015 the father and his now wife drove to the (location omitted) to locate the children. There was an ugly incident between the parties at (omitted) involving a tug of war with the children. The mother was charged and convicted as a result of this incident.
After the (omitted) incident, two of the children remained with the mother while two went with the father. The children remained separated and did not spend any time together until orders were made on 12 March 2015.
On 23 March 2015, the father married Ms J.
On 15 July 2015, the parties agreed for the children to live with the father and spend time with the mother, and consequently orders to this effect were made by the Court
The Family Report by Ms G was released in July 2016, subsequent to which the matter was heard on a final basis in May 2017, with the last submissions being received on 30 June 2017.
Other Relevant Matters
Family Violence
Both parties make allegations of family violence. Those allegations were detailed in each of the parties’ evidence in chief, but there was little cross-examination in respect of the specific allegations. Neither party asked the Court to make specific findings of fact in respect of the majority of the allegations. Furthermore, neither party submitted to the Court that the children were at an unacceptable risk of harm due to the incidents of family violence which they each raise respectively. While the Court has taken into consideration the allegations in a general way, that is as forming part of the patchwork of these parties’ and children’s lives, it is only those matters which have been specifically mentioned in the reasons that are of particular relevance.
On 29 September 2014, an incident occurred involving the parties and the father’s partner, at the former matrimonial home. It was the mother who called the Police on this occasion, and after statements were made by the parties and the father’s partner, the mother was arrested and charged with common assault and an apprehended domestic violence order was applied for by the Police and ultimately made.
On 9 February 2015, the incident at (omitted) occurred. As a result of that incident, the mother was charged with common assault of [Y] and breach of apprehended domestic violence order. She was ultimately found guilty of the breach, but was sentenced under s32 Mental Health (Criminal Procedure) Act 1900.
Mental Health of the Parties
Both of the parents have been diagnosed with mental health conditions. They have each received treatment, including medications. Notwithstanding their diagnosis, there is no expert evidence that either party’s parenting capacity has been compromised as a result of their mental health.
The parties have at times made poor choices, which with hindsight they might not have made. But it has not been established by either party or by the Independent Children’s Lawyer that there is a causal nexus between those poor choices and the parent’s respective mental health.
Ms G opined as follows:
The parties’ mental health, though somewhat inconsistent in the past, appeared stable at the current time and not a significant factor affecting their parenting. They remained in touch with their treating doctors and reported being medication compliant.
Relevant Considerations
Children’s Views and their Relationships
[W] was interviewed separately by Ms G, while [X] and [Y] were interviewed together. [Z] was not taken to the interview.
[W] spoke of “good things” at both homes, and his comments about school were positive. He said that he was looking forward to attending high school in 2018 at (location omitted). It was evident from the interview that [W] had strong relationships with both of his parents and loved them both.
When he was asked about residence preference, [W] indicated to Ms G that he wanted his mother to return to Sydney so he could live week about with each of his parents. If she did not return, he indicated that he would prefer to remain living with the father.
Both [X] and [Y] indicated to Ms G that they did not wish to say anything about the current matter.
Ms G observed as follows:
Like their brother, [X] and [Y] appeared very careful to not give the appearance of criticising either parent, responses to many questions being monosyllabic with the word ‘good’ figuring prominently.
On one occasion [X] lowered his guard and mentioned he preferred his old school on the (location omitted) because (location omitted) is too strict. As well he indicated he has fewer friends there.
[[X] and [Y]]… presented as overawed by the occasion and unable to state a preference about where they wished to live from now on.
While the children have expressed conflicting views as between [W] and [X] about where they would prefer to go to school, it was the opinion of Ms G that stability for the children is a strong factor that needed to be taken into account, and that it was important for the Court to craft a solution which minimised unpredictability and maximises ongoing stability.
One of the issues which concerned the mother and for which she was critical of the father was that the children had been calling their step-mother “mum”. While this did occur, it was reasonably quickly corrected by the father and his wife. Furthermore, in Ms G’s view it was not a “big problem”. The children know who their parents are, they’re not silly, and if the parents are okay with the children referring to step-parents as ‘mum and dad’ the children will be okay with it too. The Court does not find that the father and his wife have attempted to exclude the mother from the children’s lives, or alienate them from her.
Parents’ Capacity to meet the children’s needs
One of the main issues in these proceedings is the capacity of each of the parents to meet the children’s needs.
The parents have both at times acted in a manner which is not child focused:
a)The father has for example, blocked the mother from the children’s iPads and phones. It is a finding of this Court that this was not a child focused decision and indeed was a poor decision made by the father. It impeded the children’s ability to have communications with the mother and must have signalled to the children that the father did not approve of them speaking or texting their mother.
b)Likewise, the father’s partner travelling to the (location omitted) to retrieve [W]’s telephone, because the “security settings” had been changed on it, was not a child focused decision and a decision which added conflict to the parties’ already conflicted relationship.
c)Another example of the father acting in a manner which indicates that he lacks some insight into the impact of his own actions on the children, are his actions in taking the children home after school for a quick drink and change before they go to spend time with the mother after school, rather than facilitating the mother picking the children up directly from school at the commencement of such time.
d)The mother for example, in keeping the children after she had agreed to return them to the father so that they could commence school in 2015, was not a child focused decision, but rather a decision which was based on the mother putting her own needs above those of the children.
It is apparent from the evidence that since living with the father, that things for the children had improved. Specifically, [Y] had received appropriate assistance at school, [X]’s behaviour issues had become more stable and [W] had received medical assistance with his issues. This is not to say that the mother would not have attended to these things had the children been living with her, it is simply to observe that the father has been meeting the children’s needs.
Ms G was of the view having read the school reports, that things were generally improving for the children and that they were receiving appropriate support.
The mother has in the past struggled with meeting the children’s needs, for example by ensuring that [X] was attending school in a timely and regular basis during the period he and [Z] were living with her in the first half of 2015, and by failing to facilitate time between the children after they were living two by two in each of their parents’ homes in 2015.
While finely balanced, the scale is tipped slightly in the father’s favour as the parent more capable of meeting all of the children’s needs post separation.
Children’s Exposure to Family Violence
The independent children’s lawyer submits that the incident at (omitted) reflects equally poorly on both parents, but that it is just one of a series of incidents where the children’s best interests were said not to have been at the forefront of the parents’ minds.
These incidents were said to be:
a)the father returning to the former matrimonial home and moving into the garage, said to have been a move that the father must have been aware was going to incite conflict between the parents and consequently that the children would have been exposed to such conflict;
b)the mother’s decision to move to (location omitted) out any attempt to discuss the proposed move with the father and the lack of consideration of the children in the move;
c)the meeting between the children and the mother at the maternal grandmother’s home with the children had to tell the mother of their preferences as to which school they wanted to attend;
d)the fracas at (omitted) said to involve kids being snatched, has been driven off and ultimately leading to the siblings being separated for a number of weeks.
It was said on behalf of the independent children’s lawyer the fact that the mother herself removed the children to the (location omitted) did not justify the father doing the same thing in terms of then retrieving them. The court does not accept the submission that the incident at (omitted) reflects equally poorly on both parents.
At the time of the (omitted) incident, the mother was suffering from a health condition that the severe enough to warrant treatment in a mental health facility. She was the subject of apprehended domestic violence order and had to abide by the terms of that order. She was subsequent to the incident charged with common assault and breach of the apprehended domestic violence order. She was convicted of the breach. To say that the parents’ actions were equal is to completely gloss over those important facts which existed at the time of the incident.
Ms G opined that the children having observed fighting and physical altercations involving their parents, have become more cautious of expressing their feelings to a third party about any views they might have. Ms G was also of the view that the children are likely to be apprehensive about seeing the parents together.
Parental Responsibility
While there have been plenty of disagreements between the parties in the past, and an inability to decide certain matters by agreement, the Court does not find that the presumption of equal shared parental responsibility has been rebutted.
At times, both parties have made unilateral decisions which have only fuelled the conflict between them, such as the father’s decision to baptise the children without telling the mother or the mother’s decision to relocate to the (location omitted) with the children without the father’s agreement.
Ultimately, both parents have the children’s best interests at heart and the children should know that both of their parents are involved in any long term decision making process. The children may well benefit from the parents’ different perspectives and from having different choices presented to them as a result of those perspectives. As such, an order for the parents to have equal shared parental responsibility will be made.
Where the children will live and what time they will spend with the other parent
The making of an order for equal shared parental responsibility triggers the operation of s65DAA. Given the physical distance between the parties’ respective residences, an order for the children to spend equal time between the two households is simply not practical. As such, an order for the children to spend significant and substantial time, albeit there might be some practical difficulties, will in all of the circumstances be in their best interest.
There was quite a lot of discussion during the hearing about the mother’s ability to get the children to school on time of a Monday morning, if they were to live with the father and spend time with the mother on alternate weekends. The fathers submits to the Court that given the mother’s history of not being able to get [X] to school on time for the period that [Z] and [X] were living with her and [Y] and [W] with the father in 2015, and she only had one school aged child in her care, is contraindicative of an order for the children to be with the mother until Monday morning.
The mother’s evidence is that it takes her just over an hour to drive to the children’s school in the morning from where she lives. There was lengthy evidence on this matter. Ultimately, the Court accepts that the mother will be able to ensure that the children arrive at school on one morning a fortnight during school term. The drive for the children is not too onerous and it might involve a bit of planning for the mother, particularly now that the children attend different schools. But it is simply a matter of logistics and not an impossibility or improbability for the mother to be able to do so.
In respect of where the children should live, the balancing exercise for the Court was difficult. Both parents love the children very much and wish the best for them. They each have loving and supportive partners. They each have stable lives and much to offer the children.
Ultimately, what tipped the balance in favour of the father’s application is not only his slightly superior[17] ability to meet the children’s needs but also the stability that the father offers to the children in terms of a continuation of their current routine at school and daily lives, a matter which the family consultant opined to be of significant weight.
[17] To that of the mother
In Conclusion
For all of those reasons orders as set out at the forefront are in the children’s best interests and shall be made.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 5 March 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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