Bane and Bane (No 2)

FAMILY COURT OF AUSTRALIA

BANE & BANE (NO 2)

[2011] FamCA 790

FAMILY LAW – CHILDREN – Various final orders made by consent – Determination of remaining issues relating to final parenting orders
FAMILY LAW – CHILDREN – Parental responsibility – Whether there should be an order for equal shared parental responsibility or for sole parental responsibility as in Carlson & Bowden (2008) 40 Fam LR 327
FAMILY LAW – CHILDREN – Equal time – Determination of the number of nights to be spent by the children with their father – Whether it should be a 5/9 or 7/7 parenting arrangement – Determination of the time to be spent by the children with their father during the 2011/2012 summer school holiday period
FAMILY LAW – CHILDREN – Family violence – Where the mother asserted family violence

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61B, 61C, 61D(2), 61DA(4), 64B(1), 65AA, 65DAA, 65DAC, 65DAE

Carlson & Bowden (2008) 40 Fam LR 327
Cotton & Cotton (1983) FLC 91-330
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Bane

RESPONDENT:

Ms Bane

INDEPENDENT CHILDREN'S LAWYER:

Glezer Lanteri & Associates

FILE NUMBER:

MLC

312

2008

DATE DELIVERED:

13 October 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Murphy J

HEARING DATE:

6 & 7 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whitchurch

SOLICITOR FOR THE APPLICANT:

Starnet Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Elleray

SOLICITOR FOR THE RESPONDENT:

Westminster Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Glezer Lanteri & Associates

ORDERS

IT IS ORDERED BY CONSENT:

That the children of the marriage M BANE born … May 2005 (“M”) and K BANE born … January 2007 (“K”) (collectively referred to as “the children”) live with the Mother at all times other than those set out hereunder and other than any additional time ordered by the this Honourable Court.
All school term dates and school holiday dates referred to in these orders shall be governed by the state school system in Victoria.
That regardless of whether either child is of school age and attending school, the Father spend time with the children during school term holidays as follows:
(a)during the year 2011, and in each odd-numbered year thereafter, from the conclusion of school in respect of M, and from the conclusion of day care, kindergarten or school in respect of K, on the last day of the school term until 4.00pm on the middle Saturday of the school term holidays; and
(b)during the year 2012, and in each even-numbered year thereafter, from 4.00pm on the middle Saturday of the school term holidays until 4pm on the Saturday immediately prior to the resumption of school.
That for the purposes of the long summer school holidays (commencing from the last day of the school term for the calendar year until the Sunday immediately prior to the resumption of school the following year), the Father spend time with the children as follows:
(a)for the long summer school holidays commencing in 2012/2013, and for each even numbered year thereafter, for the second half of the long summer school holidays commencing at 4.00pm at the midway point of the holiday period until 4.00pm on the Sunday immediately prior to the resumption of school; and
(b)for the long summer school holidays commencing in 2013/2014, and for each odd numbered year thereafter, for the first half of the long summer school holidays commencing from the conclusion of school on the last day of the school term for that calendar year until 4.00pm at the midway point of the holiday period.
That for the purpose of birthdays for each child, the Father spend time with the children as follows:
(a)In respect of M, if the birthday falls in a time when the children would be spending time with the Mother, the Father spend time with both children upon M’s birthday from the conclusion of school until 5.30pm if M’s birthday falls upon a weekday and from 11.00am until 4.00pm if M’s birthday falls upon a weekend. In the event that M’s birthday falls upon a weekday, then the Father shall collect the children from school at the commencement of his time and he shall return the children to the Mother’s residence at the conclusion of this time; and
(b)In respect of K, the Father shall spend time with both children upon K’s birthday in 2013, and for each odd numbered year thereafter, commencing at 4.00pm on the day prior to K’s birthday until 4.00pm on K’s birthday.
That for the purpose of Christmas in 2012, and for each even numbered year thereafter, the Father spend time with the children from 4.00pm on 25 December until 4.00pm on 26 December.
If the Easter holiday weekend does not fall during school term holidays, then the Father spend time with the children from the conclusion of school on Easter Thursday (day prior to Good Friday) until 4.00pm on Easter Saturday in odd-numbered years and from 4.00pm on Easter Saturday until 4.00pm on Easter Monday in even-numbered years.
For the purpose of Father’s Day each year, if the children are scheduled to spend time with the Mother, then the Father shall spend time with the children from 4.00pm on the day prior to Father’s Day until the commencement of school the day following Father’s Day.
That any time under these orders between the Father and the children shall be suspended as follows:
(a)For the purpose of Christmas in 2013, and for each odd year thereafter, the Mother spend time with the children from 4.00pm on 25 December until 4.00pm on 26 December;
(b)For the purpose of birthdays for each child, the Mother spend time with the children as follows:
(i)In respect of M’s birthday, if this birthday falls on a day when the children would be spending time with the Father, then the Mother shall spend time with both children from the conclusion of school until 5.30pm if a weekday and from 11.00am until 4.00pm if this birthday falls on a weekend. In the event that M’s birthday falls upon a weekday, then the Mother shall collect the children from school at the commencement of her time and the Father shall collect the children from the Mother’s residence at 5.30pm;
(ii)In respect of K’s birthday, the Mother shall spend time with both children upon K’s birthday in 2014, and for each even numbered year thereafter, commencing at 4.00pm on the day prior to K’s birthday until 4.00pm on K’s birthday.
(c)If the Easter holiday weekend does not fall during school term holidays, then the Mother spend time with the children from the conclusion of school on Easter Thursday (day prior to Good Friday) until 4.00pm on Easter Saturday in even numbered years and from 4.00pm on Easter Saturday until 4.00pm on Easter Monday in odd numbered years.
(d)For the purpose of Mother’s Day each year, if the children are scheduled to spend time with the Father, then the Mother shall spend time with the children from 4.00pm on the day prior to Mother’s Day until the commencement of school the day following Mother’s Day.
That all of the Father’s time pursuant to paragraph 24 hereafter ordered in respect of time during school terms be suspended during all school term holidays and long summer school holidays.
For the purposes of the collection and the delivery of the children:
(a)during school terms, the Father or his nominee shall collect the children from school, kindergarten and/or day care at the commencement of his time with the children, and return them to their respective school, kindergarten and/or day care at the conclusion of his time. In the event that the children are not due to attend school, kindergarten and/or day care on a day the Father is due to collect the children, then the Father or his nominee shall collect the children from the P Contact Centre at 4.00pm if it is a day when the centre is open and return them in accordance with paragraph 9 herein;
(b)For the purpose of school term holidays, the long summer school holidays, Christmas and Easter, each party or their nominee shall collect the children at the commencement of their time from school, kindergarten, day care where applicable and if the changeover is due to take place on a non school day then both parties or their nominees are to utilise the P Contact Centre at the scheduled time;
(c)The P Community Centre is to be used for all other changeovers on non school days, if changeover cannot occur at the P Contact Centre due to it not being available, then the changeover shall take place at the Mother’s residence at the scheduled time;
(d)If the children are medically unfit to attend school, kindergarten and/or day care at the conclusion of the Father’s period, then the Father or his nominee shall return the children to the Mother’s residence before 10am at the conclusion of his period;
(e)For the purpose of Mother’s Day, if the children are spending time with the Father, then the Mother or her nominee shall collect the children from the P Community Centre at the commencement of her time;
(f)For the purpose of Father’s day, if the children are spending time with the Mother, then the Father or his nominee shall collect the children from the P Community Centre at the commencement of his time.
That M remain at, and K be enrolled at, School 1 unless otherwise as may be agreed between the parties in writing or pursuant to Court Order.
That the parties maintain a communication book in respect of the health of the children, their educational requirements and details of their routine and such book shall travel at all time with the children when moving between households.
That each party advise the other through the communication book, or via email, of any extra curricular activities in which they wish the children to participate but neither party shall be responsible to contribute towards the costs of such activities organized by the other or be responsible for taking the children to those activities unless otherwise agreed.
That each party shall at all times keep the other advised, via the communication book or email, of their residential address and telephone number and advise the other party no less than 7 days in advance of any change of those details.
That each parent shall notify the other as soon as possible of any serious medical illness or injury affecting the children in their care as well as advise as soon as practicable the names of all the treating medical practitioners.

IT IS FURTHER ORDERED BY CONSENT:

That both parties forthwith advise and keep the other advised as to:
(a)The name and address of any health professionals of the children or either of them attend by email or letter;
(b)Except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any initial medical appointments (as distinct from subsequent appointments) and the purpose of such initial appointments via email, letter or SMS text message; and
(c)Authorise and direct the children’s schools and any and all health professional to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time, and each party is at liberty to attend upon health professionals and parent teacher interviews at their own time and expense other than when the other is present.
That the mother do all things necessary to authorise the father and to keep the father authorised to receive information at the expense of the father copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent and that the father be permitted to attend the children’s sports days, concerts and usual activities affiliated with the school and other extra-curricular activities that the children or either of them participate in.
That the mother and father do all things and sign such documents as may be require to have the child M (and if necessary K) attend upon a school counsellor in order to receive counselling as may be recommended by such counsellor from time to time.
That the mother and father together with their servants and agents be and are hereby restrained from:
(a)Denigrating the other to and in the hearing of the children or either of them or allowing another to engage in such conduct; and
(b)Discussing family law matters with the children, including but not limited to their relationship particulars and the alleged disputes and alleged acts of violence between them.
That either child is permitted to travel interstate or overseas with each respective parent during their specific periods in which the children live or spend time with them. Each parent is to provide to the other parent not less than 28 days prior to any anticipated travel, copies of return airline flight tickets, a travel itinerary and address and contact details for the children for the duration of such travel. Each parent will facilitate the provision of the children’s passports to the other in the event that overseas travel is to be undertaken.

IT IS FURTHER ORDERED THAT:

It is DECLARED that the presumption of equal shared responsibility is rebutted as the court is satisfied that it would not be in the best interest of the children for the Mother and Father to have equal shared parental responsibility for the children.
That the mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act1975 (Cth)) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child or children, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
That the father spend time and communicate with the children as follows during the school term:
(a)Each alternate week from after school Wednesday (or 3.30pm in the event that it is a non-attendance day for the respective child) until the commencement of school (or 9:00am in the event that it is a non-attendance day for the respective child) the following Monday or Tuesday if Monday is a non-school day;
(b)That for the purpose of (24)(a) above that until the child K attends school in 2012, the parent who is to provide the child K for changeover is to deliver her to M’s school wherein changeover is to occur with M and this is to be repeated at the conclusion of time;
With that time to commence in the sequence as has erstwhile been occurring pursuant to the previous orders between the parties.
That the father spend time and communicate with the children during the 2011/2012 long summer school holidays for a continuous period of two weeks with such period to be agreed between the parties in writing, and failing agreement such period is to commence at 10.00am on 7 January 2012 and conclude at 4.00pm on 21 January 2012.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the Bane & Bane (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC312 of 2008

Mr Bane

Applicant

And

Ms Bane

Respondent

REASONS FOR JUDGMENT

Parenting proceedings between the parents of M BANE (born in May 2005) (“M”) and K BANE (born in January 2007) (“K”) (collectively referred to as “the children”) have now stretched over 3½ years. A clinical psychologist, Mr P has been involved in those proceedings for nearly the whole of that time.
Mr P has prepared four reports during the course of that time. He has seen the parents and the children from the time that the children were respectively about 3½ and about 18 months old. He has had the opportunity to observe the children with each of their parents and has also done so during home visits.
Specific aspects of Mr P’s evidence will be referred to subsequently. I found his reports and the opinions which they contained insightful and persuasive. The matters there addressed are central to determination of the Considerations to which I must mandatorily have regard in arriving at orders that are designed to most appropriately meet the best interests of these two young children in the particular circumstances in which their parents have placed them.
As will emerge, Mr P’s opinions about those central issues very much accord with my own impressions of each of the parties and the dynamics of their interrelationship and the resultant issues affecting the children which emerge from the evidence.

Chronicle of a Situation Foretold

As long ago as 16 June 2008, when both children were tiny, Mr P said:
“…[The father] & [the mother] are very likely to become further polarized as the process of litigation continues, and that the escalating nature of allegations, counter allegations, response and defense of their positions intensifies, so inversely will their relationship deteriorate.”
The prescience of this opinion can be seen in a report prepared over three years later on 19 September 2011 where Mr P expressed the following opinion with which I whole-heartedly agree:
“36.The impact of ongoing parental conflict on child development is well known, and extensively documented in the social science literature. I have discussed this at length with [the father] and [the mother]. At some point, there needs to be recognition that, despite the efforts of all concerned, including the Court, that some parents continue to act in a way that may prove harmful to their children and that no amount of intervention will change this.
37.The reality of my assessment is that nothing has changed between [the parents] and over the years, the battleground for their conflict has shifted to accommodate the changing circumstances in their children’s lives. The underlying dynamics are no different to those identified in my first report of 16 June 2008…”
In a report authored two years ago on 25 September 2009, Mr P said:
“…[t]here however can be no denying that the context in which [the children] live is stressful, that communication between [the parents] is non-existent and even the most minor change in any arrangement immediately results in what is effectively an unworkable situation. Whilst I am happy to share my thoughts as to how both contribute to this, insofar as what needs to happen, there is little relevance other than to note that the polarity between them becomes ever widened in relation to any point of conflict and that discussion between them only serving to only further widen what (sic) this point of impasse.
I have no doubt that [the parents] are ripe for litigation. They disagree, they are in conflict, they view the world staunchly from their position and they very quickly adopt a win-lose stance in relation to each other. Even their attempts at compromise result in more conflict. Both feel persecuted by the other and the distress that each feels in relation to what they perceive to be the behaviour (sic) of the other is a continuous feature of their presentation. Again, it is not difficult to foresee how for them, litigation will provide a stage upon which to further fight their battles, cause each other and their relationship as parents harm and further widen an emotional gulf that at some point, if left unchecked, will impact very significantly upon their children.”

Those words, too, are prescient. The first signs of harm, at least in respect of M, have indeed begun to emerge as will shortly be seen.
Furthermore, there is no doubt that the parties’ staunch adherence to their respective views has remained, and as each readily admit in the witness box, neither parent can see a way forward. The mother had described it as “coming up against a wall – there just doesn’t seem to be any way through”.

Central Findings as to the Parents and their Relationship

The ultimate battleground upon which this pitched battle continued before me, saw the exemplification of what Mr P recorded as “observations” in his report annexed to his affidavit sworn 5 October 2009. Such observations accord entirely with my view of the evidence before me and which I record here as findings:
·[The parents] have no capacity to share the care of their children.
·They are not flexible, they are not accommodating, they do not harbour any goodwill between them and their attempts at flexibility are wrought with problems.
·The reality is that the children spend very separate time with their parents and do so comfortably.
·It is obvious that [the parents] split the time with their children, that they parent in extreme parallel, and whilst at a fundamental level both fulfil their parental tasks at a good level, there is no semblance of cooperative parenting whatsoever.
All but the first of those findings can be founded in concessions made by each of the parties themselves. Indeed, each appeared to accept – however much they might each express regret at the situation – that the children effectively live in “separate worlds” when in their respective households. Interestingly, and it seems tragically ironic, the parties each seem prepared to accept that the other provides adequate day to day parenting.
It might be thought that two parents who have read the comments just referred to, together with each of the other matters referred to in the various reports written by Mr P since June 2008, and that have participated in a process designed, at least in part, to have him facilitate a better understanding of their post-separation parenting dynamics and the impact of their horrific conflict upon the children, might well have been able to muster the selflessness which is at the core of any parenting that is genuinely beneficial to children. Such thoughts in this case would be seriously misplaced.
Despite those earlier reports and interventions with Mr P, this is what he says in the Family Report prepared on 19 September 2011, a week or so prior to the hearing before me:
“2.As I believe you are aware, I have had significant involvement with this family since my first report dated 16 June 2008. I subsequently produced a further report on 17 March 2009, as well as having met with [the parents] on a number of occasions in an attempt to facilitate a more cooperative arrangement around their post separation parenting. I have discussed with them all manner of issues, including to do with schooling, health care, and how best to manage their relationship at a parental level. I have completed home visits, I have been copied into their email communication, we have spoken about behaviour management strategies of the girls and had thought that a good arrangement had been in place regarding the children.
3.Over all this time, the issues in relation to [the parents] have remained unchanged. They are separated parents, in conflict about all issues in relation to their children, that reflects their unrelenting struggles with power differentials. Both [parents] believe that the other is endeavouring to be controlling and endeavouring to dictate to them how things should proceed in relation to the children and whose views should prevail. Even attempts at creating an environment of parallel parenting, with clear, fixed and immutable rules, has been unsuccessful and I note more recently, that the conflict has escalated substantially.”
It would be foolish to think that “parenting orders” as defined in the Family Law Act 1975 (“the Act”) would bring about any effective change that could assist these children. As is so often the case in this court, orders considered to most appropriately reflect the best interests of these children in their particular circumstances will, as a result of the parents’ apparent incapacity to co-parent in a selfless and adult way, be a case of assessing the least problematic scenario for these children.
Each of the parties were anxious to maintain, during their evidence and in the subsequent submissions made on behalf of each of them, that, from their respective points of view, the case was not, as Mr P suggests in his 2009 report that “[t]he inevitable tension is about the number of nights that [the children] sleep at the home of their parents respectively”. I was nevertheless left with the strong impression that it was very much about that issue.
The observations made by me of the parties and the positions for which each contend is, again, exemplified and summarised neatly by Mr P’s comment in his most recent report that “[t]hey simply do not agree, and both view the other as being inflexible, unreasonable and as causing the difficulties”.
Counsel for the father argued that, despite the readily apparent sordid history of conflict there were signs that this might abate. Schooling was given as an example.
To the contrary of that which was submitted on behalf of the father, I consider that the evidence surrounding the unilateral decision by the mother of the school which M was to attend (in her first year of school) and the events which followed is yet another example of the conflict to which Mr P refers. I wholeheartedly agree with his comment that “[i]t will be more helpful to start from the position that in all likelihood, the level of conflict between [the parents] will continue, at least for the foreseeable future and probably into the long-term”.
In saying that I do not suggest for a moment that there is any “starting point” in terms of the enquiry required of me, other than that which is mandated by Part VII of the Act. However, it is in my view, an inescapable fact that the conflict to which Mr P refers, and which is baldly manifest in the parties’ evidence and their post-separation parenting history, underlies and shapes the issues and Considerations necessary to be weighed in arriving at a decision about orders which most appropriately meet the best interests of these children.

THE PROPOSALS OF THE PARTIES

After discussion between counsel for the Independent Children’s Lawyer (“the ICL”), applicant and respondent, the parties were, commendably enough, able to reach agreement about a range of orders. Predictably, one of the issues which continued to divide them was the number of nights which the children should spend with each parent. Equally, and predictably, the orders which, to their credit, the parties have been able to agree upon, provide for precisely the sort of micro-managed “parallel parenting” that the facts and circumstances earlier described might produce.
The matters upon which the parties agree comprise the minute of proposed consent orders marked as “Exhibit A” in the proceedings, together with paragraphs 8, 9, 10, 11, 13 and 15 of the orders sought by the ICL in her case outline filed shortly prior to the commencement of the proceedings. Those orders will, together, be made as orders by consent in these proceedings.
Remaining for determination are the following issues:
·Should the children spend 5 nights per fortnight with their father or, as he contends, an equal shared regime of 7 nights each;
·In the 2011/2012 summer school holiday period, should the children spend half of that holiday period with him, as he contends, or for two periods of 7 days;
·Should there be an order for equal shared parental responsibility as the father contends or an order for “sole parental responsibility” in a form identical to the order for parental responsibility made in the decision of Carlson & Bowden (2008) 40 Fam LR 327.
The mother and the ICL are at one that the children should spend 5 nights per fortnight with their father; two periods of one week’s holiday in December / January 2011 / 2012 and an order of the type made in Carlson.

Issues and Considerations

The issues identified in the passages from Mr P’s reports earlier quoted, and the issues emanating from those reports in view of the matters remaining for determination before me, plainly have a direct connection with the statutory Considerations (s 60CC).

Meaningful Relationship: s 60CC(2)(a)

Long before the term “meaningful relationship” found its way into the Act, Nygh J in Cotton & Cotton (1983) FLC 91-330 referred to that phrase and the desirability of that type of relationship, but, importantly, went on to say at 78,252, “…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child.”
It is effectively conceded by each of the parties that the children have and will benefit from, a meaningful relationship with each of their parents.
At paragraph 14 of Mr P’s most recent report, he says:
“My observations of [the father] with the children are once again unequivocally positive. They engaged with him effortlessly and embraced him warmly. Both girls sought out their father for physical affection, they sat on his lap, hugged and kissed him, played warmly, easily and effortlessly, they maintained an excellent dialogue and narrative together, played effortlessly, and he managed the girls easily and comfortably, and they responded to him with great affection and enthusiasm.”
In respect of the mother, Mr P’s summation can be seen at paragraph 25 of his most recent report:
“[The mother] was also seen in the company of the children, and as has been the case previously, this was completely unremarkable. She engages and interacts with the children very easily and very comfortably, they approach her confidently and effortlessly, they shower her with affection and she responds accordingly. [The mother] impresses as a very confident, capable parent, who engages her children and engages with her children easily. She manages them well, places reasonable and firm limits around their behaviour and they respond accordingly. Individually she parents at a high level.”
It is impossible to read those two paragraphs, which wholly accord with my view of the evidence in this matter, without concluding that these children need a regular ongoing relationship with each of their parents. There is no doubt that the relationship at this point in time and at this stage of their development is meaningful to each of them and of considerable benefit to each of them.
Indeed, such a view appears to accord, effectively, with concessions made by each of the parties about the day to day parenting of the other and, of course, their respective positions about time that the children should spend with the other parent. (I will shortly have something to say about one particular aspect of that, namely the mother’s assertions that the children express a desire not to go with their father on periods of time and that they return from his care with behavioural upsets and saying things about their time with their father that are essentially negative).
The essential tragedy of this case is exemplified by taking those two passages together and marrying them with the ultimate opinion of Mr P (again, it seems, not at all disputed by either of the parties) that:
“As has been my observation and assessment over time, despite the problems between [the parents] the children appear to be progressing well…
. . .
…from the children’s perspective, separately, they function well and at a high level. Both girls have excellent relationships with their parents, although with the passage of time, the insidious effects of the parental conflict have started to intrude on the psychological functioning of the children, and in particular [M]…”
In respect of M, collateral information was obtained from Mr P from her class teacher. He records the conversation with the teacher as:
“describ[ing] [M] in unequivocally positive terms. She described her as excelling academically and that she has developed excellent peer relationships …[M] presents as a confident, outgoing child, who has settled in to her new school well and who presents with no difficulties.
Importantly [the teacher] also described both parents in equally positive terms, described them separately as enthusiastic, interested and proactive, that both had supported [M] and helped her with her progression. [The teacher] told me that she has no concern about either parent.”

Protection from Harm – Family Violence: s 60CC(2)(b)

The need to protect a child from harm, which, it might be noted, includes both physical and psychological harm, emanating from, relevantly, family violence, is of course a primary consideration in ascertaining the best interests of a child. The importance of it as an issue is also underlined by the fact that family violence also features as two of the additional considerations that also must be taken into account by the court (see s 60CC(3)(j) and (k)).
The mother indicated that one of, if not the central, impediment to her attempts at communication with the father is that she is “scared of” him. She described him as a person “liable to lose his cool”. She describes him as aggressive and that she tolerated this for a long period of time during the relationship but will not tolerate it now that the parties are separated. It should be observed that the mother’s evidence in this respect is wholly consistent with what she has consistently told Mr P during the process of interviews conducted by him.
Assertions made by the mother include an assertion that a breach of court orders has resulted in her obtaining an Intervention Order in respect of an incident which allegedly occurred in December 2010 during which the mother asserts significant family violence in respect of which the father is currently facing criminal charges that are yet to be dealt with by a regional Magistrates Court. It appears that an Intervention Order was already in existence between the parties as the father is alleged to have breached that Intervention Order. The father denied the allegations against him when speaking to Mr P.
In his most recent report, Mr P records the mother as asserting that the father “remains angry and aggressive”. She told Mr P that the father’s “anger is a problem” and that he brings pressure to bear upon the children and that as a result, M has become very stressed as a result of that pressure.
My impression of the father in the witness box and in court is of a man intolerant to, and impatient with, views or actions that do not accord with his own. He is an imposing man physically. I can readily envisage impatience rising to anger in him; indeed I observed during the proceedings what I considered to be attempts by him to maintain his self control.
There can be no doubt that the issue of family violence is important as is made explicitly clear in the Act. However, its role as both a Primary and Additional Consideration must, like all other Considerations, be seen in the context of the particular dynamics of this family and the context of the issues joined between the parties to these proceedings. Here, the mother concedes, by virtue of the orders she seeks, that it is in M and K’s best interests to spend 5 nights per fortnight with their father and for periods during each school holiday including, as and from 2012/2013, a period of three weeks during the Christmas/New Year holidays.
Moreover, the allegations of family violence need to be seen in respect of the mother reporting to Mr P that although she was “not happy with [his] initial recommendation of the children spending 5 continuous nights with [the father]” she nevertheless “embraced” the recommendation “in the hope that this would provide some structure …” and, importantly, she told Mr P, “…it has worked.”
Mr P goes on to report the mother as saying “there have been no problems with the arrangement”. The mother confirmed that in cross examination by counsel for the father. So, too, the assessment of the mother’s parenting capacity earlier referred to, and the children’s relationship with both her and the father, also earlier referred to, give context to the allegations in this particular case.
As I said during discussions with counsel with respect to the relevance of evidence, the context just described provides the necessary context for the consideration of this issue within the miscellany of other Considerations that must be taken into account by the court in attempting to assess the best interests of these children. As Mr P comments:
“In some ways, this regrettable incident [of December 2010] reflects the inevitable end point of the escalating conflict between [the parents].
…[Each] place blame upon the other and defend their own actions, and that this is just a continuation of what has been a long-standing process…”

Nature of Relationship: s 60CC(3)(b)(i)

I have already referred to the description given by Mr P of the relationship that each of the children have with each of their parents which, in my view accords with the evidence before me.
The father accepts that the mother is the primary attachment figure for each of the children at their current ages and stages of their development. He concedes that she has been the primary nurturer of the children since birth. When asked how he might rationalise that assessment with a desire to share care equally, he responded that the nature of the relationship pertained to the age of the children now and that he didn’t “want to come back to court”.
As I have already remarked, the picture that emerges from the evidence is of children who have wholly different worlds or lives in the respective households of their parents. The term parallel parenting is apposite because worlds in parallel never intersect or meet.
Perhaps the best example of this in the evidence can be seen in the evidence about the sport presentation night. The lead up to that event saw the usual inability of the parents to agree or compromise in respect of which parent would attend at what should have been a happy occasion and a source of pride for the children. Instead, having eventually reached some form of agreement as to both attending (after the usual array of to and fro argument and counter-argument) the parties stood at differing sides of the gathering and didn’t bother to even exchange the most basic of human pleasantries.

Capacity and Willingness to Facilitate Relationship: s 60CC(3)(c)

I consider that neither parent has the ability or willingness to facilitate and encourage a close and continuing relationship between the child and the other parent.
I make that finding despite the parties’ respective protestations to the contrary. It will be clear from the evidence which I have already traversed that the post-separation parenting history points to a conclusion opposite to that for which each party contends. Indeed, the whole essence of “parallel parenting” which, with evident exasperation, Mr P recommended and attempted to facilitate, is to make the best of a bad lot by allowing the children to maximise their individual “worlds” with each parent, but with little expectation that they would encourage a positive view of, or participation in, the other parent’s “world”.

Parental Capacity and the Attitude to the Responsibilities of Parenthood: s 60CC(3)(f) and (i)

It will be apparent from what I have already found that there can be little doubt that each of the parents, left to their own devices, has the capacity to provide for the day to day needs of the children when they are with them.
The statutory requirement is, relevantly, to consider also the capacity of parents to also provide for the emotional and intellectual needs of their children. To the extent that neither parent is seemingly able to see their way clear of the conflicted nature of their relationship so as to co-parent effectively, neither has the capacity to provide adequately for what the children need emotionally and psychologically. That said, it is in my view effectively impossible for children to exhibit the sort of confident, outgoing personalities that each of them exhibit and, in M’s case, to excite all the positive comments from a teacher if neither of them had the capacity – again within their own individual “worlds” – to provide for the children’s intellectual and emotional needs as well.

As I have said earlier, findings such as those just made only serve to exacerbate the tragedy of the current situation for these two children. Individually, each of their parents plainly has much to offer them.
Again, insofar as the parties’ “noxious” relationship (to use Mr P’s word) is likely to impact adversely on the children (which, in my view, it has, and will continue to do) they have each failed in a significant responsibility of parenthood. Children need to grow in a world untroubled by adult issues from which, with a proper exercise of parental responsibility they can be shielded.
Again, though, considerations similar to those just discussed apply; within their own respective “worlds” each of the parents, I am confident, properly demonstrates the responsibilities of parenthood and has an appropriate attitude towards each of the children. So much is plain, again, from the presentation of the children to Mr P and others, and from the comments made by a person independent of these proceedings, namely M’s teacher.

Future Proceedings: s 60CC(3)(l)

Sadly, I do not consider that the proposal of either party is less likely to lead to future proceedings.
The most likely preventative factor in that respect is a significant change in attitude by each of the parents toward the other. I am very pessimistic about the prospects of any such change.

Further considerations: ss 60CC(4) and (4A)

It will be clear from what I have earlier said, that I consider that (again within their own “worlds”) each of the parties has appropriately fulfilled their responsibilities as a parent, including taking the opportunity to participate in making decisions and the like.
The parties’ respective capacities to do so have been, and are, impaired not by any inherent incapacity or unwillingness on the part of either of them as individuals left to their own devices, but, rather, by the conflict which exists between them and their incapacity to get beyond it.

Nature of Parents’ Relationship: s 60CC(3)(m)

It will be abundantly clear that I consider that the conflictual nature of the relationship between the parents is such that it impairs their capacity to each optimally parent the children.
Each is at pains to say that they consider the conflict damaging to each of them and damaging to the children. Each is at pains to say that they wish the conflict would end. Each is at pains to say that, if they knew what to do to stop the conflict, they would. Yet, neither party can identify how they themselves might change or why change has erstwhile proved impossible. I suspect that focus on the conflict and the other parent’s rights and wrongs has significantly marred, and continues to mar the parties’ respective capacity for insight into their own rights and wrongs.
Mr P reports the mother saying that in the approximately two years since his previous report, the relationship with the father had only deteriorated. Each party accuses the other of being unable to reflect upon their own behaviour and the impact it has on the conflict between them. There can be little doubt, as Mr P concludes that “the issues between [the parents] make any kind of creative solution difficult. Every aspect of their arrangement is complicated by their conflict.”
I would sincerely like to derive hope from the fact that the parties have, in these proceedings, been able to agree about certain parenting issues. For example, whilst Mr P cites the issue of time on K’s birthday as being a previous issue of dispute and a “challenge” for the parties, they had been able to reach agreement before me in respect of that issue. I fear, however, that I would be allowing hope to triumph over expectation. I accept the submission of counsel for the ICL that given the history of this matter and the number and nature of the interventions both by courts and by Mr P, that the court must act on the basis of the reality of the situation as it presents and not that which hope would like it to be.
During the cross examination of each of the parties, each cross examining counsel pointed out that the parties had, in their own way, turned what was a question inviting self reflection into a comment about the other party. Neither could see what was obvious. I am not entirely convinced, as Mr P asserts, that the issue is, at heart, about control (although I suspect that this is a component of it). My suspicion is that each of these parties have a significantly impaired capacity – indeed a capacity much more akin to an adolescent than an adult – to deal with conflict that, in turn, derives from an impaired capacity for self reflection. As Mr P says, “a theme throughout my assessment of [the parents] has been that neither reflects upon their own behaviour, but rather tends to place blame upon the other.”

The Voices of the Children: ss 60CC(3)(a)

Amidst the shouting and the accusations and counter-accusations and the blame and counter-blame, the voices of two young children are yearning to be heard. The children are each of an age and stage of development where their wishes – in the sense of expressing preferences – are not significantly determinative of the matters about which they express those preferences. Nevertheless, the expression “views” in s 60CC(3)(a) is wider than “wishes” (c.f. the repealed s 68F(2)) and, in my view, it is fundamental that the voices of children should be heard in proceedings about them.
Those voices can be heard by the manner in which children conduct themselves and how they express, both verbally and non-verbally, their feelings and emotions. I consider Mr P’s evidence, contained in his most recent report, is the appropriate means by which the voices of these two young children can be heard in these proceedings.
What emerges strongly from the evidence in that report is the plaintive pleas of the children for their parents to do precisely what the court and Mr P have been beseeching these parents to do for a very long time. It is important to listen to the children have to say, in particular, most recently:
“[M] was happy to talk about her friends, her school and her interests, but any discussion with her parents was difficult. The description given of her by [the mother] is that she has “really shut down” [and that] is how I would have described her. She was very despondent as she spoke about her parents and their conflict. She told me that her parents are not friends, that they can’t sit in the same room and that their problems make life difficult for her. When talking about her parents she was noticeably agitated and restless, avoidant and non-communicative. She told me likes the current arrangement and she likes spending five continuous days with her father, and that there is nothing about this arrangement she didn’t like.…
[M]… understands that her parents are in conflict and cannot be friends. She wants to see them happy, she told me that their conflict makes her sad, and even though she thinks both parents know how sad it makes her feel, she does not understand why armed with this knowledge, her parents continue to act in a way that hurts her…”
The poignancy of that last comment should be starkly noted by each of the parents.
M went on to tell Mr P that:
“…I’m not really that happy. I worry lots and lots about my mum and dad. I don’t really know why.”
It is not surprising to hear from M that:
“…my mum and dad talk lots bad about each other. They both say yucky things about each other and they do it about the same amount. It’s not fun. It makes me sad.”
It will be recalled that I earlier referred to the mother’s assertions about (negative) things the children have said to her about their time with the father. I accept that the children have said those things to her. I also accept, as she asserts, that there are behavioural issues with the children upon their return from that time. As is so common in cases of this type in this court, each of the parents assert here that they do not say “bad things” about the other to the children. However, (as seems almost inevitable in cases of this type in this court), neither parent, apparently, is willing to accept, nor apply proper and deep reflection to the possible causes of the children’s words and actions other than the perceived failings of the other parent.
I asked the mother, for example, whether she had given any consideration to the possibility of other causes of the children’s words and actions and, specifically for example, what Mr P says about the statements of her six-year-old child:
“Whether in fact [either of the parents] actually speak negatively about the other, and regardless of whether that is said in the presence of the children or to the children about the other parent, or, as is more likely that [M] is acutely aware of the negative sentiments that each harbours in relation to the other, makes little difference…Whilst it is true that she has an excellent relationship with her parents separately, the psychological space between her parents in which she functions is toxic, it has a significant and negative effect, and it will have a significant effect both in the short and in the long term.” (my emphasis)
The mother did not appear either able or willing to comprehend that negative words and behaviours might emerge from children of this age except as a direct result of words or actions on the part of the father. The same is true, I consider of the father.
In another, and particularly poignant, part of his most recent report, Mr P says this:
“30.Possibly the best depiction of my concerns comes from a drawing completed for me by [M] of her parents. When asked the story of what was occurring in this drawing, [M] told me “… my mum and dad are arguing lots. I’m just not happy and it makes me feel really sad. I don’t know what will happen. It makes me feel grumpy too. I think they both know, but I don’t know what they keep doing it. They should stop arguing because that way we could be happy again” …”
As to K, Mr P opines that “even at the tender age of four years and eight months, [she] understands that she has parents who are in conflict and who do not like each other”. She plainly evidenced a desire to Mr P to spend time with both of her parents. He comments specifically that moving between two houses was “obviously in and of itself difficult for K, whose preference is “I would like them to sleep in one house with me”.
Again, this young child described each of her parents in “unequivocally positive terms”. Mr P opines and I agree, that K is “probably more emotionally dependent upon her mother, but her dependency needs are shared between her parents”.
In a comment that, in my view, should also give these parents pause for though, Mr P says, “to an extent [K] has been insulated from her parents’ conflict by virtue of her age, but then, it is also true that her whole life has been consumed by her parents’ conflict and she knows no different” (my emphasis). Mr P goes on to opine that K “…is more used to residing with her mother and finds it easier to live there”.

The Competing Proposals As To Parental Responsibility

I am to make a parenting order (as defined in s 64B(1) of the Act) with respect to these two young children. Accordingly I must presume that it is in the best interests of the children for their parents to have equal shared parental responsibility for them (s 61DA(1)).
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)). The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests for the child’s parents to have equal shared parental responsibility (s 61DA(4)).
Section 65DAC of the Act places positive requirements upon those the subject of orders where parental responsibility is shared (even if not equally in respect to time spent with the children). When that sharing of responsibility involves the making of a decision about a “major long-term issue” in respect of the child (as defined), the order is to be taken as requiring the parties to make that decision jointly. Of some significance, the section goes on:
“65DAC(3) [Requirement to consult and make a genuine effort]
The order is taken to require each of those persons:
(a)To consult the other person in relation to the decision to be made about that issue; and
(b)To make a genuine effort to come to a joint decision about that issue.”
The presumption of equal shared parental responsibility and the provisions of s 65DAC including the requirements in subsection (3), can in my view be seen to evidence a legislative intention that parents of children should, in the ordinary course of events, exercise parental responsibility jointly and equally. That, in turn, might be seen to be consistent with the Objects and Principles of Part VII of the Act, which again, includes ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives and the like.
In Carlson (above) I made orders for parental responsibility of the type that each of the mother and the ICL would have me make in this case. In that decision, in discussing the issue of parental responsibility, I referred to the fact that, while the best interests of the child is the paramount determinant of the order, a court should also consider the effect on the rights of a parent to exercise “all the duties, powers, responsibilities and authority” (s 61B) which a parent has by virtue of being a parent (s 61C) even if, as is clear, best interests must predominate (s. 60CA; s 65AA).
Yet, a firm finding that parents who are to share parental responsibility have no realistic capacity to reach a decision jointly and, more specifically, have no real capacity to engage in a process of consultation or to engage in a “genuine effort” to come to a joint decision, has the potential to significantly impact upon the children whose best interests are determinative of the question.
Here, despite submissions made to the contrary by counsel for the father, I find that the evidence discloses clearly the incapacities to which I have just referred. I share Mr P’s pessimism about that changing in the future; according to him, what is “plain and evident to all people involved with this family” is that “they cannot, do not and will not agree”.
Disagreement is one thing, but where a statutory provision requires a process of consultation between parties whose interrelationship is as “toxic” or “noxious” as that which the evidence reveals here, the potential for a direct impact upon the children is evident. Mr P is plainly of the view that this is the case here:
“The inevitable reality is that from [the children’s] perspective, their parents’ relationship together is noxious and damaging and consequently Orders should reflect the efforts at quarantining the children from what will cause them harm.”
I consider that the potential for the parties to be mandatorily required to consult and attempt to make a genuine effort to reach a joint decision about major long-term issues for these children is likely to be yet another potential battle ground for yet more conflict with yet more impact upon the children.
Yet, this father will be involved, even on the mother’s case, very significantly on a week-to-week basis. Plainly, then, each of these highly polarised parties will each make a miscellany of day-to-day decisions effecting the children during the time that they spend with each of them respectively. Their capacity to do so is unimpeded by the orders I will make (s 61D(2); s 65DAE).
However, the Act’s requirements, in particular s 65DAC, require, in my view at least, further thought to be given to the question of decision making in respect of “major long-term issues”. Vesting “sole parental responsibility” (whatever that overused expression might mean precisely) in the mother has the potential to deny to the father a role in decision making for the children which accords with the reality of his erstwhile and continuing substantial involvement in the children’s lives.
Yet, at the same time, I am anxious to avoid the necessity for these parties to mandatorily undertake a process embraced by the notion of “mak[ing] a genuine effort to come to a joint decision”. I reject that submission by counsel for the husband that recent events should give me optimism about the parties’ capacity to undertake a process that any such effort embodies; the parties post-separation parenting history speaks of the very high likelihood of future conflict with its consequent effects on the children.
The form of order urged upon the court by counsel for the ICL and agreed to by the mother (which is essentially an order mirroring the order for parental responsibility I made in Carlson, above) is designed to:
·provide an end point to potential conflict (sole decision by the mother);
·but to do so only after a prescribed process of involvement by the father (consultation occurring in writing which maintains the physical separation of these parties thereby reducing the potential for face-to-face conflict);
·require the mother to seek the informed views of her co-parent;
·make it abundantly plain to the mother that she does not have a unilateral right to make decisions in respect of “major long-term issues” (as defined) in respect of the children.
I consider such an order to be in the children’s best interests. As a corollary, I consider that the presumption of equal shared parental responsibility is rebutted by reference to the best interests of these children and I will declare accordingly (s 61DA(4)).
As a result of the declaration and order just referred to, the pre-conditions for the operation of s 65DAA of the Act are rendered inapplicable. The power of the court to make parenting orders is not then conditioned upon that section (see MRR v GR (2010) 240 CLR 461). Of course, that feature does not preclude orders which effect either equal time or “substantial and significant time” as defined.

The Competing Proposals As to Time

Week to Week Time

Reference to the statutory Considerations earlier discussed, might be thought to point to a conclusion that little separates the two proposals if the best interests of these children is to be the ultimate determinant.
However, notably missing from that discussion is the consideration contained in s 60CC(3)(d) “[t]he likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from… either of his or her parents”. I consider this to be an extremely important factor in this case.
Amidst the horrific conflict to which continual reference has been made in these reasons, the mother has been brought to a position where the children spend five nights per fortnight with the father. She says that (relatively speaking) they are managing well.
Into that mix ought to be added the circumstance that the mother now has a new relationship which she hopes will be permanent with a man who himself has two children. That relationship has seen the two children the subject of these proceedings spend time on a regular basis with the mother’s partners two children (who are about the same age) when her partner (who has an equal time arrangement with his former partner) spends time with his children. That occurred as a matter of coincidence during the early part of their relationship, but ceased for about 18 months as an unintended consequence of orders made by Cronin J in November 2009. The commencement of those orders saw the children’s time fall “out of sequence” with her partner’s children’s time, but by agreement between the partner and his former wife altering the sequence of their time, that time has been again synchronised for a period of about 12 months.
The father concedes that the mother is the primary attachment figure for the two children who are as yet very young. K has not yet started kinder (although she will next year) and M has reached that crucial stage of her development where she has just started school. A central plank of the father’s case for equal time is that changeovers could occur on a Monday before school so as to not interrupt the school week for M. There is much to be said for that; keeping disruption to a minimum, is in my view, a pointer to orders which meet the best interests of the children.

However, I consider a far greater disruption to the children’s routine and stability would be caused by (a) altering a regime that has been in place now for some time; (b) removing K in particular from her primary attachment figure when she is not yet five and hasn’t yet started kinder; and (c) interrupting the routine which involves the interrelationship between the children and the mother’s partner’s children which, if the mother and her partner have their way, will be a continuing relationship into the future.
In a finely balanced case in which the existence of parallel parental “worlds” and horrific parental conflict are two stark features, I consider that those factors tip the balance in favour of orders which see the children spending five nights per fortnight with their father.

Christmas Holiday Time – 2011 / 2012

Many of the matters just discussed are, of course, relevant to this issue.
The issues of “parallel parenting”, the conflict between the parties, the entrenchment of the intractability of the conflict between the parents and, importantly, the tender ages (and stages of development) of the children and K in particular, saw Mr P recommend in his September 2009 report that, “…[o]ver the 2010 and 2011summer break it could increase to half the holidays be that either a two week period or two seven day periods [and] [t]hereafter it should be one half of all holidays”.
Whist many, if not all, of the issues earlier discussed might be seen to pertain to the determination of which of the two alternative proposals best meets the children’s best interests (with such a determination proceeding via the mandated statutory process), the findings earlier referred to are not necessarily productive of a result in respect of this narrow issue.
Mr P postulates a sharing of the Christmas period itself and, thereafter, a halving of the remaining school holidays (paragraph 46(iii)). The parties have reached agreement as to how Christmas time should be shared different to that postulated by Mr P.
Of the matters earlier discussed with reference to the statutory considerations, I consider the most important are the ages of the children, in particular K; the fact that both, and particularly K have not, as I understand the evidence, been away from their mother for more than a week; the fact that the toxic nature of the parents relationship means that, for example, the children will not have the, as it were, emotional freedom to freely contact the absent parent and that the parties lack the flexibility and trust that would be required to make alternative arrangements in the event that, for example, K might want to cut short a full three-week period.
However, I am also acutely conscious of the clear evidence from Mr P, which I accept, as to the happy, relaxed and spontaneous nature of the relationship that the children enjoy with each of their parents.
Holiday time and, in particular, the long summer holiday, is in my view quite different (for children and, probably, parents) to school / work routine time. Some routines disappear and in respect of other day to day routines for children, the reins can be seen to be held a little looser. Slightly different considerations in relation to predictability and the maximising of time between separated parents can be seen to apply. So, too, in my view, the impact of change can be ameliorated by the generally more relaxed atmosphere surrounding holiday time.
On balance, I consider it in the best interests of the children that they spend two continuous weeks with their father during the 2011/2012 summer school holiday period.

CONCLUSION

I order accordingly.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 13 October 2011.

Associate:

Date: 13 October 2011

[2011] FamCA 790

13 October 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Appeal