Barlow & Barlow
[2021] FedCFamC2F 274
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barlow & Barlow [2021] FedCFamC2F 274
File number(s): DGC 4440 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 3 November 2021 Catchwords: FAMILY LAW – parenting dispute about children aged 13 and 10 – father seeking equal time and mother seeking nine/five in her favour – both children desiring equal time – family report recommending equal time – equal time clearly in children’s best interest Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346
Rice & Asplund [1978] FamCA 84
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 14 October 2021 Date of hearing: 13 & 14 October 2021 Place: Dandenong Counsel for the Applicant: Mr Potter Solicitor for the Applicant: Tyler Tipping and Woods Counsel for the Respondent: Mr Eley Solicitor for the Respondent: Bowlen Dunstan and Associates Pty ORDERS
DGC 4440 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BARLOW
Applicant
AND: MS BARLOW
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
3 NOVEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting Orders in relation to the children X born in 2007 and Y born in 2011(“the children”) be discharged.
2.The mother and the father have equal shared parental responsibility for the children.
3.The children live with the mother and father on a week-about basis from the commencement of school, or 9.00 am Monday if a non-school day, to the commencement of school, or 9.00 am Monday if a non-school day, in the following week, commencing 8 November 2021 with the mother.
4.The children spend time with the father as follows: -
(a)During the school term holidays the alternating week schedule shall continue throughout the term holiday periods;
(b)On each of the children’s and the father’s birthdays from the conclusion of school until 7:00 pm if a school day and from 12.00 pm to 5:00 pm if a non-school day, if the children are not otherwise in his care;
(c)From 3:00 pm Christmas Day to 3:00 pm Boxing Day in 2021 and each alternate year thereafter;
(d)From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in 2022 and each alternate year thereafter;
(e)Alternating weekly from the conclusion of school for the first two weeks of the long summer holiday period and thereafter for a block of two weeks with each of the parties, with the alternating weeks to be in accordance with the alternating weeks during the term (and the last day of the school term shall for this purpose be the start of an alternating week) and for alternating weeks to resume when school resumes as if the holiday period had not taken place;
(f)From 5:00 pm the Saturday before Father’s Day weekend until 9.00 am on the commencement of school Monday;
(g)At such other times as agreed between the parties in writing.
5.The children’s time with the father is suspended and the children shall be in the mother’s care as follows: -
(a)On each of the children’s and the mothers’ birthdays from the conclusion of school until 7:00 pm if a school day and from 12.00 pm to 5:00 pm if a non-school day if the children are not otherwise in her care that day;
(b)From 3:00 pm Christmas Eve to 3:00 pm Christmas Day in 2021 and each alternate year thereafter;
(c)From 3:00 pm Christmas Day until 3:00 pm Boxing Day in 2022 and each alternate year thereafter;
(d)Alternating weekly from the conclusion of school for the first two weeks of the long summer holiday period and thereafter for a block of two weeks with each of the parties, with the alternating weeks to be in accordance with the alternating weeks during the term (and the last day of the school term shall for this purpose be the start of an alternating week) and for alternating weeks to resume when school resumes as if the holiday period had not taken place;
(e)From 5.00 pm on the Saturday before Mother’s Day until 9.00 am or the commencement of school Monday;
(f)At such other times as agreed between the parties in writing.
6.The parties communicate regarding the children using a co-parenting Application such as “Our Family Wizard” save in the case of an emergency when the parties shall communicate via text message.
7.Each of the parties be and are hereby restrained by injunction from:
(a)Compelling the children to engage in ice baths;
(b)Consuming alcohol while driving a vehicle;
(c)Denigrating the other parent to or in the presence or hearing of the children or either of them;
(d)Having the children undertake juice or water fasting unless prescribed by the children’s medical practitioner.
(e)Attending extra-curricular activities when the children are not in their care, save by agreement.
8.For the purposes of changeovers that do not take place at the children’s schools the party who has had the children in their care shall deliver or cause to be delivered the children to the home of the other parent.
9.The children shall be at liberty to communicate with the parent who they are not in the care of at any reasonable time and each parent shall be at liberty to communicate with the children when they are not in their respective care at any reasonable time.
10.Each party shall advise the other as soon as practicable in the event that the children or either of them suffer any serious illness or serious injury whilst in their respective care.
11.The parties shall keep each other advised of any medical practitioners or allied or alternative health practitioners that the children attend upon from time to time and shall authorise and keep authorised the other party to speak to such health practitioners and to receive reports from such health practitioners at their expense, if any.
12.Each party shall be authorised to receive copies of all school newsletters, reports, photo order forms and other communications that parents usually receive together with such communications from any extra-curricular sporting organisation that the children or either of them are engaged with from time to time.
13.Each of the parties shall keep the other advised of their current residential address and contact phone number together with the children’s phone numbers and email addresses, if any, and notify the other of any change within 24 hours of such change.
14.These Orders are to operate pursuant to s.68P of the Family Law Act 1975 (Cth) notwithstanding the Final Intervention Order made by the Magistrates Court Suburb C on 1 June 2021 (“the Suburb C Order”).
15.This Order is inconsistent with the Suburb C Order.
16.For the purposes of s.68P(2)(b), the Court notes that Order 15 above has the effect that the regime for the father to communicate with the mother and communicate and spend time with the children contained in the extant Orders remain in full force and effect.
17.Pursuant to s.68P(3) a copy of this Order is to be provided to the Registrar of the Magistrates Court Melbourne, the Police Commissioner Victoria and the Department of Family, Fairness and Housing.
THE COURT NOTES THAT
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
B.The issue of whether the children or either of them have the COVID-19 vaccinations is an issue still to be determined and in the event that either party wishes to put this issue before the Court, Rice & Asplund [1978] FamCA 84 will not be a bar to such application given that the issue arose from the evidence of the Family Report writer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barlow & Barlow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of two children, X born in 2007 and Y born in 2011. The applicant father seeks that the children live with the parents on a week-about basis from Mondays to Monday, and the respondent mother seeks a five/nine arrangement in her favour. The parties have forwarded minutes of orders which are by consent save as to this matter and one other minor issue to do with extracurricular attendance.
For the reasons that follow, I am going to order an equal time arrangement but will not make the order that the father seeks in relation to extracurricular activities.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1980 and the mother was born in 1975. They commenced cohabitation in 2005 and married in 2010. As earlier indicated, X was born in 2007 and Y in 2011. They appear to have separated in December 2017 but reconciled for a while, following which final separation took place in March 2018 (father’s version) or April 2018 (mother’s version). Time proceeded by agreement thereafter and evolved to a day during one week and an alternate weekend, with equal time in school holidays. This continued until an incident on 5 August 2020 to which it will be necessary to return. An intervention order followed that and this included the children and the mother as affected persons. That intervention order has been continued for one year from July 2021.
From the parties’ affidavits it is plain that they have moved around somewhat over the years, living for at least a while in Town D in a caravan and in Town E. The wife has deposed that they spent 18 months going around Australia from 2013 onwards, and this has not been put in issue. I mention this slightly itinerant lifestyle because the flavour of both parties’ affidavits suggest that they are, or at least have been from time to time, interested in what might be described as alternative lifestyles. The evidence was not given great precision (a matter I will return to when I deal with the evidence given in Court) but it would appear that they have adopted, at least in part, a vegan diet, and have formed a resolute opposition to any vaccination whatever. There have been ongoing concerns expressed by the father as to whether the mother will relocate significantly even now.
Presently the mother lives in Suburb F and X attends year 7 at G School and Y attends year 4 at Suburb H. Although time with the father ceased altogether in August 2020, since orders made on 3 February 2021 the children have lived with the mother and spent time with the father each alternate weekend from Friday until Sunday and each alternate Thursday until Friday, together with a meal each Wednesday evening and half school holidays.
THE PARTIES’ AFFIDAVITS
A substantial proportion of what the parties have said in their affidavits is recorded in the agreed section above. The parties’ affidavits contain a number of allegations made by each parent against the other. The mother makes detailed and vivid claims of verbal and on occasion physical abuse by the father, including on one occasion holding her against her will in a car and screaming at her for at least an hour. She deposes to the use of extremely bad language and insults by the father to her, on occasions in the presence of at least X if not both children. The father’s affidavit material likewise accuses the mother of verbal assaults upon him. He denies the allegations made by the mother of excessive use of alcohol, save for one relatively short period.
While of course I have had regard to the parties’ affidavit material and read it carefully, it is not necessary in the circumstances to traverse these matters in any further detail. They are well encapsulated in the section 11F and family reports that the Court has obtained.
THE SECTION 11F REPORT
Consultant Ms J saw the parties in January 2021. She noted the full intervention order in place with the mother and the children as the affected family members (paragraph 2). She noted the mother’s allegations of family violence which were consistent with her affidavit and her assertion that the father was controlling, manipulative and gaslighting her (paragraph 3). She noted the father’s denials and assertions that there was ongoing conflict with instances where both he and the mother behaved in a manner that neither of them could be proud of, being intense and aggressive at times. The father reported the mother as controlling and manipulative also (paragraph 4).
At paragraph 6, the report noted the mother has expressed concerns for the children’s emotional wellbeing and mental wellbeing in the father’s care and her allegations that the father involved them in adult conflict. Paragraph 7 noted what are effectively mirror complaints made by the father. The father denied the allegations of alcohol misuse although conceded he had drunk excessively during a period of high stress prior to Y’s birth (paragraph 8) and the father’s denial of anger management issues (paragraph 9). At paragraph 10 the report continued:
It was apparent the parties had an acrimonious and conflictual relationship. It was noted the parties reported significantly discrepant pictures of their relationship, care of the children and issues leading to the current Court proceedings. There was currently no communication between the parties.
X was interviewed (paragraph 12):
X expressed feeling “in the middle” of his mother and father, stating he felt at times he had to “protect mum from dad and dad from mum.” When asked what he meant by this, X expressed feeling scared that each parent would fight with the other “all the time” and that Ms Barlow would always “talk about what was happening”. X expressed feeling exhausted from “how they are” and stated he was scared of Mr Barlow when he became angry. He described feeling Mr Barlow change and was fearful of “making it worse.” That when Mr Barlow would become angry, he would yell, scream and swear, that this behaviour made him scared. X stated he felt Mr Barlow did not listen to him and would force him to do things he did not want to do, such as the ice bath and jujitsu. X expressed wanting to spend time with Mr Barlow, but didn’t want him to be angry or “say bad things about mum.” X stated that on Monday following Court, Ms Barlow had “made” him tell the paternal grandfather “what had been happening” despite him stating he did not want to. X stated that he thought it would end in a fight, “which it did, I didn’t want to say anything to pa, but mum said I had to.” When asked what he wanted to have change in his life, X stated “I just want mum and dad to be normal and not fight.”
Y was interviewed (paragraph 13):
She stated that the “bad stuff” was Mr Barlow becoming angry, that she was fearful of him yelling, screaming and swearing. Y stated she felt sad that Mr Barlow had stated she and X were lying. When asked what she meant by this, Y explained that Mr Barlow “told the court he didn’t take us spray painting and he did, so he thinks we are liars.” Y stated she missed Mr Barlow, however she was scared Mr Barlow would “question me like he did X, asking him if it was all dads fault.” Y described Ms Barlow feeling worried and scared at times and this in turn made her sad.
The report noted that the children had been significantly exposed to the ongoing paternal conflict and now the current Court proceedings by both parents. Both the children discussed the parents’ conflictual relationship and feeling drawn into their dispute and discussed details of the current Court proceedings and that their parents had engaged in behaviours that put further pressure and further stress on them (paragraph 14).
Paragraph 15 of the report noted:
Whilst it seemed apparent that the children had genuine feelings of fear and worry regarding Mr Barlow’s alleged anger, it appeared these emotions were further compounded by Ms Barlow’s own feelings, behaviours and over exposing and involving the children in the adult conflict. Whilst the particulars of the family violence remained disputed, both the children recalled incidents and expressed concerns regarding each of the parties’ behaviours. It was apparent that the children had been impacted equally by both Mr and Ms Barlow’s behaviours and their ongoing conflict. It is incumbent upon the parties that they cease involving and exposing the children to the parental conflict. The children each expressed having enjoyed a fairly positive relationship with Mr Barlow previously. As such there is nothing at this time to suggest that despite having some trepidations of resuming spend time with Mr Barlow, that there was a need for limited or supervised time.
The report went on to note that the parents would greatly benefit from increasingly understanding as to how their behaviours impact upon their children and noted that this was vital in moving forward that the parties communicate and make decisions effectively (paragraph 16). The report then recommended the regime of time that was adopted in the orders made in February.
THE FAMILY REPORT
Ms J’s family report was formally tendered as exhibit C1. The report set out the current arrangements, noting that the mother lives in a three-bedroom rental property in Suburb K (this error is clearly attributable to the fact that the address given for the mother on Court documents is that of her solicitors in Suburb K). The father resides with his mother in Suburb L but was seeking to obtain a private rental property close to the children’s schools.
The report went on to describe relevant family background and the history of the dispute (paragraphs 6-16) in uncontroversial terms. The report noted the parties’ proposals (paragraphs 17 and 18). The report noted the competing accounts of family violence between the parties (paragraphs 19-22) and recorded at paragraphs 23-24:
23.Ms Barlow held concerns Mr Barlow did not have the capacity to meet the children’s emotional needs and that the children did not feel safe to express their emotions to their father. She maintained concerns Mr Barlow engaged in inappropriate lifestyle and self-help ‘workshops’ and exposed the children to these events, ideologies and activities. Ms Barlow was concerned Mr Barlow had moved away from strong views she alleged they shared regarding the children’s vaccinations and remained concerned he was influencing the children to become vaccinated.
24.Both parties expressed concerns the other exposed and involved the children into the adult conflict. Both expressed concern as to how this impacted the children and their relationship with each parent. Each raised ongoing concerns for the lack of effective communication and its impact on the ability to co-parent the children successfully.
The report traversed the father’s alcohol use at paragraphs 25-27 and noted that there were no formally diagnosed mental health issues or concerns (paragraph 28). It noted that the father was currently engaged in one-on-one support and counselling in addition to his attendance at a Men’s Behaviour Change Program (paragraph 29).
The report then moved to the interviews with the adults. Relevantly at paragraphs 35-36:
35.Ms Barlow complained that she was unable to communicate and discuss issues with Mr Barlow effectively regarding the children’s care/emotional needs. She stated the parties used the My Family Wizard App to communicate. However, Mr Barlow would regularly not respond, as such she would then email him, write letters and still not obtain a response. She reported this became an issue particularly if the children had returned upset and she did not know why. That in these circumstances, she would have to result in asking the children directly what had occurred.
36.Ms Barlow held concerns that she and Mr Barlow were unable to discuss important issues regarding the children’s health and lifestyle needs and choices. She raised the issue of the children getting vaccinated, stating that she and Mr Barlow had what she believed to be joint strong beliefs against vaccines. She stated neither of the children had been vaccinated, which was a decision they as parents had jointly made and felt strongly about. She held concerns that when raising the issue of the Covid vaccine, Mr Barlow responded stating they had “never agreed on the children’s health needs and wellbeing.” Ms Barlow reported she felt Mr Barlow used such situations to “gaslight” her, by creating a scenario where he made it out to seem they had never agreed on an issue, when they had. Ms Barlow went on to state that it was Mr Barlow that had initially educated her and advocated for no vaccines, veganism and a raw food lifestyle.
The report noted the mother’s assertions as to violence by the father at paragraph 37 and continued,
Ms Barlow stated she remained fearful of Mr Barlow and believed he was still abusive in other ways. She gave the example of Mr Barlow ignoring her texts and no response as “he knows I can’t deal with that.” She reported another incident whereby Mr Barlow had signed on to be the coach of X’s basketball team, knowing she had enrolled him and would be present at games.
38.Ms Barlow stated that despite these issues, she acknowledged there had been improvements in the past few months. She indicated the children were happy, enjoyed spending time with Mr Barlow and understood this would only continue to develop their relationship as they spent more time with their father. However she maintained concerns that Mr Barlow was unable to meet the children’s emotional needs. She stated the children were fearful of expressing themselves and emotions to their father, that they had told her so. She held concerns that due to their lack in communication, any increases in spend time that were “too long at a time” would be harmful for the children as they would have to carry their emotions until they returned to her care.
The paragraph went on to note the issue of the ice bath and the father’s alleged engagement in self-help workshops. At paragraph 40, the report observed:
It was noted, that when any inconsistencies in her information was pointed out, Ms Barlow became defensive and closed off.
The report then moved to the interview with the father. He disclosed his desire for fifty-fifty care and that he had been able to improve and strengthen his relationships with the children. At paragraph 44 the report noted:
He reported the current issues were all regarding the adult conflict. Mr Barlow expressed feeling “exhausted” by the ongoing conflict, describing communication with Ms Barlow as “terrible.” He reported feeling he had to “constantly defend myself” against Ms Barlow, that she would persist with issues and that if “she doesn’t get her way, forget about it.” Mr Barlow reported that because of this, he did not reply to Ms Barlow on many occasions, as it would “blow up” and cause more issues.
At paragraph 46 the report continued:
Mr Barlow was of the opinion that Ms Barlow was doing nothing to work towards improving the communication and co-parenting relationship. Mr Barlow conceded that historically, there had been heated arguments and fights, however he maintained that both he and Ms Barlow had been verbally and emotionally abusive. Mr Barlow denied having perpetrated any physical abuse throughout the relationship. He maintained that Ms Barlow was as verbally and emotionally abusive toward him as she had alleged he was to her. Mr Barlow denied current engagement in self-help programs which Ms Barlow had previously raised as a concern. He maintained he had not exposed the children to inappropriate ideologies or events.
At paragraph 47 the report continued:
Mr Barlow confirmed he had commenced engagement in a Men’s Behaviour Change Program and had completed six session thus far. He expressed having already learnt much from the program and was working hard to continue changing his communication style. He indicated he had sought individual support from the program facilitators and was meeting once a week for one on one sessions to support him in this. Mr Barlow reflected on how his communication and behaviours in the past had caused conflict and were not acceptable and was working to be more open, less defensive and accepting. He reported the program and one on one sessions had significantly helped him with this and held the view Ms Barlow should also engage in a similar program.
At paragraphs 48-51, Ms J noted the difficulties in communication with the parties and the mutual blame that the adults propound. The report then turned to the interviews with the children. X presented as calm, articulate and intelligent and to be candid in his responses (paragraph 53). X hated lockdown and missing face-to-face school (paragraph 54). At paragraphs 55-57 the report continued:
55.X stated “it’s all back to normal” when asked about spend time with Mr Barlow. X expressed enjoying this time and that it was going “good and we have of heaps of fun.” X reported he enjoyed attending Mr Barlow’s home and got along well with the paternal grandmother, whom his father lived with. X stated Y did not get along as well with their paternal grandmother, so they (he and Y) were excited for Mr Barlow to obtain his own home. X reported he felt comfortable with Mr Barlow and could talk to him about issues that worried him.
56.With regards to his parents relationship X stated “oh they are not friends but its way better, I don’t hear them argue anymore.” X stated he had spoken to both his parents individually about how he had felt caught between the arguments in the past, adding “but it’s all good now.”
57.X expressed only thing he struggled with and “stressed” over, was the current spend time arrangement days, describing it as “off/on”. He stated he felt he was never settled in one place and had to carry all his belongings and sports equipment to and fro. X expressed wanting more time with Mr Barlow and wanting to have a week with one parent and a week with the other. He was of the opinion the parties would be happy with such an arrangement and stated “I know they want us to be happy.” X stated this would make him happy. When asked what he would change in his life and family for the better, X stated “nothing really, my family is pretty good at the moment.”
Y was noted to engage well through the interview and her responses showed maturity for her age (paragraph 59). Paragraphs 60-62, the report continued:
60.Y reported she and X spent much more time with Mr Barlow, describing this as “fun” and “so good.” Y stated that she too disliked lockdown and restrictions that did not allow them to go out far. She stated at the moment during spend time, they would go on walks, skateboard, fly a kite and “chillax at home and watch movies” all of which she thoroughly enjoyed. Y was observed to speaking loving of Mr Barlow, stating she spoke to him regularly when not at his home via text. At one point Y spoke at length of the challenges she had with the paternal grandmother who lives with Mr Barlow. She stated Mr Barlow was very supportive having spoken to him about how she felt and he “always makes me feel better and talks to Nan.” Y expressed feeling happy and open to talk with both her parents about her feelings.
61.Y reported she was excited for Mr Barlow to move house and spending time with him in the new home. She expressed wanting to spend more time with Mr Barlow described wanting to stay three consecutive days with each, as at the moment “it feels all over the place.”
62.Y expressed feeling safe with both her parents and described wanting lockdown to end and “sometimes Nan” as the only issues that worried her at the moment.
In the evaluation section, the report noted that there had been allegations of family violence and exposure of the children to adult conflict and concern by each of the parents regarding the capacity of the other to care for the children’s needs and wellbeing (paragraph 65). The report said at paragraphs 66-69:
66.There is no information at this time to suggest that either X or Y are at any risk of harm in either of the parties care. Rather, it seems the children have loving, respectful, open and trusting relationships with each of their parents.
67.However, it remained apparent that the parties remain engrossed in the adult conflict and struggled at times to separate themselves from what may be in the interests of the children.
68.It appeared that both parents have fundamentally different variations of their relationship, reasons for its end and post separation behaviours. It was observed that they continued to have significant issues with communication and despite the current parenting arrangements being in place for several months, they continued to struggle in remaining child focused, building trust and respect.
69.Albeit, to their credit, it appears that despite the parenting relationship continuing to be acrimonious and conflictual, the children have not been impacted by this in recent months. This is a significant shift, as previously, the children had expressed complex heavy emotions and feelings of being caught in between the parties’ dispute.
At paragraphs 70-71, the report relevantly continued:
70.The parties reported there to be no formal breaches of this order. It seems the risks of exposure to further incidents of family violence to the children has been mitigated through the current IVO and each of the parties shift in perspective and behaviour in this space. Each of the parties denied perpetrating family violence and accused the other of being verbally and emotionally abusive. However this does not preclude that each of the parties behaviours may have instilled or caused a form of fear or distress in the other. It seemed that Ms Barlow had difficulty in regulating her emotions, continued to be significantly impacted by Mr Barlow’s behaviours (or lack of) and interpreting them all as acts of intentional hostility and/or abuse. Similarly, it seemed Mr Barlow was observed to become defensive and expressed feelings of having to “defend myself” against Ms Barlow’s claims.
71.However, it was observed by the writer, that Mr Barlow demonstrated an improved reflective capacity to that observed at the 11F assessment in January 2021. Mr Barlow demonstrate insight into his behaviours, presentation and was able to reflect upon the impact of his actions on the children, the father-child relationship and the co-parenting relationship with Ms Barlow. Though it was noted Mr Barlow continued project blame on Ms Barlow for the current issues with communication, he appeared genuine in his desire to improve himself and the relationship both with the children and Ms Barlow.
At paragraph 72, the report continued:
It was of concern, that when the writer presented Ms Barlow with information that challenged or contradicted her views and narrative, she became defensive, annoyed and closed off from the writer. It was curious that’s whilst Ms Barlow acknowledged there to be improvements in the children’s relationships with their father, she attempted to discredit him and the father-child relationships. It seemed Ms Barlow continues to significantly struggle with separating herself and the adult conflict (both past and current), with that of the children’s relationships with their father. There is a concern that should Ms Barlow be unable to contain such emotions and unable to accept any improvements made by Mr Barlow, that the children may be again exposed to the adult conflict.
The report went on to recommend the parents engage in a Parenting Orders Program (paragraph 73) and that the parties engage in their own therapeutic supports (paragraph 74). At paragraph 75 the report noted in respect of the mother:
She held concerns for the children’s ability to openly discuss their emotions with their father and the impact should the court order a week about arrangement. These concerns seemed to be unfounded as the children expressed the opposite, giving examples to the writer of how Mr Barlow has listened to them and spoken about issues that concerned them. Additionally, Mr Barlow demonstrated insight into the children’s emotional states and needs.
At paragraphs 76-78, the report continued:
76.X is a 13 year old young person and Y a 10 year old child, who both spoke lovingly of their parents and describe having a close connection and relationship with each of them. The children’s ages and developmental stages allow for a level of agency and a capacity to express their wishes. Both expressed wanting an increase in spend time with Mr Barlow that allows for consecutive days and stability. It is the writer’s opinion that the children would manage such an arrangement well and it would only serve to further strengthen and develop the parent child relationships.
77.Given the current struggles in communication between the parties, ensuring that changeovers occur at the children’s school wherever possible would be of benefit.
78.There is no doubt that X and Y are deeply loved by each of their parents. Despite the current conflict, it is the writer’s opinion that should the parties meaningfully engage with support services and look at improving their communication, they have the capacity to manage shared parental responsibility. The onus remains on each of them to make genuine attempts in developing a positive parenting relationship with what is in X and Y’s best interests as the focus. It is vital that this not only includes each parent supporting the children to have a positive relationship with the other parent, but that they are not exposed to adult conflict.
The report went on to recommend there should be equal shared parental responsibility and a fifty-fifty regime together with some ancillary orders designed to improve the parties’ capacity to communicate.
It should be noted that the mother filed an affidavit responding to the family report which was deeply critical of the reporter, including noting the matter of the address in Suburb K.
THE EVIDENCE GIVEN AND SUBMISSIONS MADE AT COURT
What follows is taken from my notes. It is, of course, not a transcript but records matters I found significant.
Counsel indicated that his client adopted the week-about recommendation in the family report.
The father was called and adopted his three affidavits as true and correct. He is presently employed as a transport worker.
Under cross-examination, Counsel traversed paragraph 21 of the father’s trial affidavit. He confirmed that the mother has refused to get vaccinated and that he was also opposed. He said he was now sitting on the fence but that the children should not take it. There should be no inoculations whatsoever. He was critical of the mother attending protests because there was a chance she might become infected. He wanted a week-about arrangement with changeover on Mondays after school and back the following Monday morning. X’s school finishes at 3.15 pm and Y’s at 3.30 pm. They are presently home-schooled but Y will be back to school for five days per week for the last month. He lives in a property owned by his mother and just the two of them live there. It is 15 kilometres from the mother in Suburb F and the travel takes 20 to 25 minutes. The older child’s school is closer to the mother, about 10 minutes from the mother’s residence and 20 to 25 minutes from him.
He is working as a transport worker. He works for both Mr N and Mr O (the description of the arrangements appears to suggest that he is in some form of commercial arrangement with Mr N but nonetheless does most of his work for Mr O – the evidence was difficult to follow and I may not have noted it correctly). He works big days on Monday and Tuesday of about 12 to 13 hours with a 4.00 am start. He works a six-hour day on Wednesday and Thursday so he can get the children from school. Friday varies but is more of an eight-hour day. He has a 5.00 to 6.00 am start. When asked about Wednesdays and Thursdays he said he has 100 per cent flexibility. He can start at 5.00 am or 9.00 am but he is an early morning person and is out of the door by 4.30 to 5.00 am.
The father said he has started applying for rentals. It is not as positive as he had expected. He started about three months ago and has made eight applications so far. He cannot say when he will be able to rent, but he has developed connections with agents in two businesses and is high on the list to get one.
Currently it is Friday from school and generally he collects. The children are returned on Sunday evenings. Notwithstanding the IVO he sometimes drops the children to her house with her agreement. He gets them every Wednesday night for dinner and then Thursday after school he collects them. His mother generally drops the children back to school on Friday as he goes to work. If he moves to Suburb G he will live on his own. He was then asked how it would work if he goes off to work at 5.00 am. He said he had already spoken with his employer. He will rotate his work. He will do a heavy week when there are no children. He also has his sister who lives a block away from Y’s school. Y will walk to Ms P’s house after school and has done so. On some days he has been there later than 3.30 pm. He cannot text Y as she does not have an iPad. He texts his family, and either his father, mother or sister pick up.
The father confirmed that X plays football and basketball. There is training on Wednesday nights and he plays on Saturdays between 10.00 am and 4.00 pm. He was not aware that X plays basketball on Tuesday evenings and had never heard this from X (this was not further explored and I suspect the father was correct). X trains at about 4.30 pm on Wednesdays. He picks him up from school and takes him to training. Y has gym on Tuesdays and he will make sure this happens. Every Wednesday he takes X to basketball. He has never been part of gym on Tuesdays but is just happy to hear about it. He had not contacted the gym directly himself.
Counsel moved to the family report at paragraph 60 and asked what challenges there were. The father said Y felt she was not being given a choice about her clothes in the mornings. His mother would recommend warmer clothing. There had never been an argument but there were disagreements. A couple of weeks ago they had a three-way conversation to put these matters to bed. He had not learnt about these matters from the mother. He had however received a text from her but this did not cause the three-way conversation.
At the moment he lives in a three-bedroom house. X sleeps in his own bed but Y often sleeps with him. He had spoken to Y about this. She will often be in the bunk. But X likes his own space. It is not perfect that Y sleeps with him. It would be better if she had her own bed. He did not agree that time should not start until Y has her own bed. His room is big enough to put Y’s bunk bed in it.
When asked about communication with the mother, the father said he is unable to do so because of the IVO. They could communicate through texts but he is not allowed to telephone. It is a very closed conversation. He said they would do well with a co-parenting course. They need better communications whatever the result is of this case.
The father said separation was in 2018 and for the first 18 months things were happy. Then it was challenged. Up until August he had to live with the reality of the situation. It has been hard. It should be noted that the father became labile at this point. He said he had looked at his behaviours in the Men’s Change Program. He said that the way they argued might have affected the mother’s view of him. He agreed that the children lived primarily with the mother since separation. He said every time he asked for fifty-fifty there had been a direct threat, “No, you can’t have them fifty-fifty.” He viewed this as a threat. He had been told she would move and there was nothing he could do about it.
The father said the children had great relations with both parents. When asked how much credit he gave to the mother, he said he had read the report. The mother had consistently tried to break it. He was just going on the report and he agreed with the report. He would like to think the mother was promoting his relationship with the children. When asked if the mother always makes sure they go in accordance with the Court Orders, he conceded this was the case.
I interpose and comment that the father was manifestly reluctant to give the mother any credit at all.
In re-examination, the father confirmed that the rentals he is seeking are all three to four bedrooms. Pickup, if not by him, is by his father, mother or sister. When asked if he would do the course recommended by the Family Report, he said this was hard to get as it was an American program but he would undertake a Parenting Orders Program.
The Opening and Evidence of the Mother
In opening, Counsel indicated that the mother seeks a five/nine arrangement. He called his client.
The mother gave her occupation as full-time professional and adopted her affidavits as true and correct. In further evidence-in-chief she referred to the father’s affidavit at paragraph 21. She confirmed that she will not take the vaccine and neither will the children. She had said she would be doing free independent work. She has an authorisation. She did not say that she had lost her job. She had said she may lose her job because she will not vaccinate.
Under cross-examination, the mother confirmed that she had agreed half school holidays. This had not presented any difficulties for the children. Her hours of work are very flexible and she can start any time or leave any time. She is in sales. She usually shows by appointment. It was put that she would need to attend for appointments but she said that she had never done one like that before. She is employed by Company Q, Suburb R. Their policy is “no jab, no work” and there is a deadline by the end of the week. She will lose her job and will thereafter take legal action. When asked how she would support herself without a job, she said she had done it before on the single mother’s pension. Her rent is presently $440 per week.
She agrees the children love the father. He can be a loving and caring father. Some decisions need to be made as co-parents. X has severe psoriasis now, together with eczema and asthma. They had agreed a vegan diet. When they separated, the father reintroduced dairy. If I understood her correctly, she suggested some of X’s health difficulties emerged from this. She had sought the assistance of a Chinese traditional medicine practitioner, but the father was still giving dairy.
The mother said that she had authority to attend protests. She works for a body called the S Network.
It was put that the mother had said to the father that she was going to Town E and there was nothing he could do to stop her. The mother said they had had discussions about Town E and she may have said once, “You can’t stop me” during an argument. She has never said she was moving to Suburb T. She said she was thinking about moving to Suburb U and had said that, “He can’t stop me.” She said the father is controlling. It was put that moving without consulting him was controlling behaviour by her and she said it probably is. She would not deny it. The children wanted to go.
The mother was not concerned about her safety at rallies. She wears a mask. It is the same as being at a shopping centre. She conceded, however, she had been shot at with rubber bullets. When asked what her position would be if the children wanted vaccination, she said her position was the same as Mr Barlow’s. The father was just trying to improve his case. He had always been adamant that vaccines are poison and no good for body or mind. He has said once that he would get vaccinated to keep his job but then backtracked. He had then told the children to leave school if they were going to be vaccinated. It was put that she had sent a message, “It’s not all about money” when he had said he might vaccinate and the mother said possibly she had.
When asked if there were concerns about alternate methods of parenting, she said she did not agree with forcing the kids into ice baths when they did not want to. She did not believe the child would make up the story. She agreed she had once slapped the father’s face. She fell back onto a couch and got up and retaliated and slapped him. X came in crying and asked them to stop. Mr Barlow told X to “fuck off”. He had come into X’s room and screamed at him. Both of them had been shouting in the sitting room. She might have sent a text about a matter being her final decision and could have sent a message in March 2019 but a lot has changed. She does not question the children when they return. She asks how their weekend was and they will tell her everything. She did not mind alternative medicines but did not approve of ice baths without the children’s agreement. She had not put anything in her affidavit that did not take place.
It was put that she had told the father he had no right to see the children but she said this was not correct. She does not speak to the children about separation. She said she had been screamed at many times. It was put that her account at paragraph 34 of her first affidavit was grossly exaggerated. She said this was not the case. There were two different instances. She was asked about paragraph 45 of her first affidavit and said this was correct. When asked if the school had spoken to her about the concerns she said “no”. She had meetings with the school. They had thought the father was passing on information to her but he was not.
Counsel asked if the mother thought the family reporter was biased against her and she said “yes”. When asked why this might be the case, she said she did not know why. There was a lot missing in the report. The report writer contradicts herself and got a lot of things wrong in the report. The father could not meet the children’s emotional needs. They come crying to her about things happening in his care. She got really upset during the report interview. “It’s not about our history. It’s about the children. When he doesn’t respond I view it as abuse. He uses silent treatment both during and after the relationship. It’s a form of abuse.” She denied questioning the children to get an answer she liked. The father should not sign up as the coach of the basketball team when she takes X there. There have been improvements in the last few months. The father is doing the courses. She has been undertaking weekly counselling at the V Counselling Domestic Violence Service and this is now three weekly. She is presently undertaking a parenting course with W Families. She did become defensive and closed off with the reporter but not for the reasons the report writer said. She confirmed that X really misses his social life. It was put that X wanted week-about but she did not support this. She does worry about the children. Things still have happened in the last two years and she is still getting the silent treatment. There is no communication between the parents. There is a split lifestyle. X is clever. Y wants more time with the father. She does not agree that Y is able to talk with both parents. She agreed with the Parenting Orders Program and was already enrolled. She confirmed that she would prefer communications by an app except there could be texts in an emergency.
In re-examination, the mother confirmed that the father taught her about vaccines when they met. The children are wholly unvaccinated.
The Evidence of Ms J
Ms J adopted her report as exhibit C1.
Under cross-examination by Counsel for the father, Ms J confirmed that the mother had proposed holidays continue on the same pattern as during term times. She said the father meets the children’s needs when in his care. They could speak about their concerns. She had concerns about the extent to which the mother supported the relationship. The mother had an inability to separate her anxiety and stress about the relationship between the parents from her own stress. The mother believed that the father did not have capacity, nor were the children able to express their concerns. She was concerned how the children were unable to express their concerns to the father. She expected the father to communicate every event that occurred. The children were able to report their concerns to the father. The relationship had improved in the last few months and this should continue. The parents should continue their own supports. The father is now more reflective. The issue that the mother raised, the father already knew about from the children. X wanted week-about. He was clear, concise and mature. Y wanted more time, maybe three days with each one. When asked if she could recommend another parenting program than Circle of Security, she recommended Tuning in to Teens. She had interviewed the mother first and then the father and then following the children had returned to the mother. She had put the father’s insight to the mother but the mother very quickly closed off and became defensive. She was unable to shift from her point of view.
When cross-examined by Counsel for the mother, Ms J said both parents were jointly saying “no vaccinations”. This was a concern for X who wanted the vaccine if it was necessary to go to school. X was concerned about his mother’s reaction. The father had said he might get a vaccine for work if it was necessary. Counsel cross-examined about paragraph 36 of the report. Vaccines were just an example. There were issues to do with lifestyle and veganism. The mother raised this as examples of the father gaslighting her. The mother had not been defensive and closed off until she came back to her and reported on a good relationship between the children and the father.
Counsel put it that Ms J might have misunderstood the mother’s position about holidays. Ms J consulted her notes which suggested a solid three to four days and the same to go through holidays but conceded she might have misunderstood. She confirmed that at the time of the section 11F report there was high-level conflict. By the Family Report X said things were back to normal. The children had loving relationships with both parents. The mother is unable to shift about the father’s capacity to provide for the children’s needs. If she cannot shift, the children will be exposed to her feelings. That will lead to possible problems in their relationship with their father and possibly even the mother. The children are no longer aware of the fights. She had not been aware of Y’s sleeping arrangements but said she had no concern about any aspect of Y’s relationship with her father. It was a very close relationship. Nonetheless Y should have privacy.
It was put that the mother now proposes five/nine. Ms J said this was okay and would support the relationship but given the high conflict and the suspension of time, the father needs opportunity to repair his relationship with the children. It would be a much easier routine where the parents do not need to meet. They will not need to take things during the week. For the children, more time with the father would be better. There was no need to increase this incrementally. A very short incremental period may be of benefit.
Final Submissions by Counsel for the Mother
Counsel noted that special occasions were agreed and the dispute was five/nine against seven/seven. The mother was proposing Wednesday after school till Monday before school. Parental responsibility was agreed and the Court needed to consider equal time and substantial time and significant time pursuant to section 65DAA of the Act. Currently it is three nights out of fourteen and it would be a big jump to equal shared care. The father did not complain about the relationship not working. There had been no contravention applications. The parents were likely to be compliant with orders to be made. The mother had always been the primary carer and the children’s home base. The children were doing well and had a close relationship with both parents. X said his family was good at the moment. The section 11F memo recorded high conflict to which the children were exposed. Matters are now different. There has been no exposure to further dispute. The mother facilitates a good relationship. Family violence concerns are not really relevant given the nature of the dispute. The father had not thought about questions of practicality. He is a full-time transport worker and had not addressed issues of practicality in his affidavit. He says he works long and hard hours in his affidavit. There are big days on Monday and Tuesday from 4.00 am to 5.00 am, six hours Wednesday and Thursday and eight hours on Friday. At the moment the father takes the children to work on one morning out of fourteen, on Thursday mornings. Often his mother does even that. Under cross-examination the father had not turned his mind to extracurricular activities. He had not telephoned Y’s gym. There was no evidence from the father’s employer about his hours of work. The father was sharing a bed with Y. There should be orders for a separate bed. The father says he will move closer to the schools. It is about a 20-minute drive now. He has made eight applications for rentals without success. Counsel noted that the issue of vaccination had not been an issue until one hour ago.
Final Submissions by Counsel for the Father
Counsel submitted Ms J’s evidence supported equal time. The children want more time and equal time. COVID makes rental matters harder but the father intends to move closer. It is clear the children have a close relationship with both parents. The father will support X, and X feels supported by the father. Y’s bed arrangements are a work in progress. So far as sporting events were concerned, the father was clear about X. He has not had any opportunity to take Y to gymnastics. The intervention order is an issue in this regard. The fact that the grandmother has taken the children to school is irrelevant. The father has discussed longer hours with his employer. The current arrangements are not working and considerable weight should be given to X’s views at the age of 13. Substantial and significant time was not warranted. Ms J was clear. Equal time is in the best interests of the children. The Parenting Orders Program should be ordered with proof of enrolment and completion. There was significant improvement in the last few months. They should also undertake the Tuning in to Teens Program.
SOME VERY BRIEF OBSERVATIONS ABOUT THE CREDIT OF THE WITNESSES
The father commenced, so to speak, well in cross-examination. He answered questions put to him directly and straightforwardly. As matters continued, and following his becoming labile as earlier indicated, this pattern perhaps changed somewhat. He became more defensive and, as earlier recorded, was most reluctant to give the mother any credit at all for her role as a mother and the successful role she has obviously played in bringing up the children.
The mother was somewhat different. Much of the time again she gave direct and responsive answers, but as time went on and, so to speak, the pressure increased, she was in the habit of answering questions with questions and making what could only be described to an extent as self-serving speeches.
Putting the matter bluntly, both of these adults struck me as being relatively self-absorbed. They were both keen to paint themselves as the victim (as indeed they had to Ms J) and neither were particularly ready, it seemed to me, to take any credit for the disastrous state of their interpersonal communication.
Although it is not normally necessary to do so in respect of professional witnesses, I would record that Ms J was a quite excellent witness. She made concessions if they were there to be made but was not swayed one iota in the evidence that she gave under cross-examination. She presented as genuinely compassionate and concerned for all of those involved, including most particularly the children. Her evidence was very much child-focused.
At this point it is appropriate to turn to the statutory pathway as described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
There had been agreement throughout the trial to equal shared parental responsibility. This showed some signs of going off the rails when Ms J reported that X had said he would wish to have an injection if it meant he could go to school. The mother retained an adamantine refusal and from what was put by Counsel on behalf of the father it appears his position may be more nuanced. Since, however, the question of parental responsibility had not been put in issue prior to this in any way, I observed at the time that it was simply not possible to try and open this issue at that stage. To do so would have been manifestly unfair to the parties who have had no opportunity to put on any material about this aspect of the matter. Accordingly, there will be an order for equal shared parental responsibility on the footing that both sides seek it, but as requested there will be a notation that Rice & Asplund [1978] FamCA 84 should not stand against the parties in the event that this matter becomes an issue in what I suspect would be a fairly short period of time.
Furthermore, should vaccination become an issue, it is a discrete and single one arising from a very unusual set of circumstances. The evidence is that both these parties were entirely opposed to vaccination during the course of the relationship. If there has been any change it is only a very recent moment and would be a discrete and single controversy in any event. Leaving that aside as I have done that, there is nothing in either party’s position that suggests anything other than that there ought to be an order for equal shared parental responsibility, and there will be.
The Spend Time and Communication Arrangements – The Primary Considerations
All parties agree that it is in the best interests of these children to have a meaningful relationship with each of their parents
It is implicit in the primary positions of each of the parents that there is to an extent a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, which matter of course requires greater weight pursuant to section 60CC(2A). Nonetheless, given that the real dispute is between an arrangement where the children spend five nights with their father in a fortnight or seven, these aspects of the case must surely be approached with considerable caution. I will deal with the various aspects of matters that would otherwise be considered under subsection 60CC(2) when I come to the additional considerations under section 60CC(3).
The Additional Considerations Of Section 60CC(3)(a)
X is 13. He was described both in the report and in Ms J’s evidence as clear, concise and mature. X unequivocally wants a week-about arrangement. Given his age, these views must be accorded considerable weight. Y was also clear, as was X, that the current spend time arrangements were not satisfactory. She described wanting to stay three consecutive days with each as at the moment “it feels all over the place”. Y felt safe with both her parents. Her position appears to accord with a desire to spend equal time with each parent although given her slightly younger age, the weight to be given to her views must be somewhat less.
Section 60CC(3)(b)
Each of these children clearly have a good and close and loving relationship with each of their parents. Contrary to the deeply and sincerely held beliefs of the mother, both of these children are able to express any concerns they have to their father, who, as Ms J found, is well able to care for them. Ms J laid particular emphasis on the mother’s failure to be able to accept this, evidence which I should note in passing I entirely accept. X appears to have a good relationship with the paternal grandmother, whereas Y has some reservations. These are not, however, that important as first, the father has addressed Y’s concerns, and second, the children are likely to be in his sole care in the not too distant future.
Section 60CC(3)
In early 2018 the father decamped following the first period of separation and was away for several months. With this exception he has at all times sought to participate in making decisions about the children and to spend time and communicate with them. The mother plainly has done so at all times and has been the children’s primary carer since birth.
Section 60CC(3)(ca)
I do not understand there to be any suggestion that either parent has failed to fulfil their obligations to maintain the children.
Section 60CC(3)(d)
Plainly the positions put by both parties involve a relatively significant change in the children’s circumstances. From an arrangement where they spend three nights a fortnight with their father, they would be moving to either five or seven as the case may be. It is implicit in the mother’s position that the children would be well able to cope with an increase of two nights per fortnight. Much of what she had to say about the proposed seven-day increase appeared to me to relate to her concern that the children would be upset when with the father and unable to tell anyone about it until they return to her. Indeed she gave evidence, which I may not have traversed earlier, that the children come back to her and burst into tears. She was unable to see that this might reflect a number of matters rather than the children being unable to communicate with their father. While necessarily an increase to seven nights is to an extent a jump into the unknown, as indeed would be an increase to five nights, Ms J’s report suggests in the strongest terms that the children will be able to and will indeed happily embrace an increase to equal time. The mother will of course find this concerning, but if it is the case that the conflict between the parents continues to dissipate, which the orders I am going to make should facilitate, it is to be hoped that these concerns will subside over time.
Section 60CC(3)(e)
On the mother’s case, the father has simply not thought through his proposal at all. This does not sit altogether easily with her own proposal that time increase to five nights per fortnight anyway. The father’s evidence about his work and future changes to the work arrangements was, in my view, compelling. He has plainly turned his mind in a serious and practical way to how he will try to earn a living should the seven/seven arrangement be put into place. It should be noted he has already done so to accommodate the spend time regime that he presently has. The fact that his mother or some other family member may need to either take the children to work on occasions and/or collect them from school is not in my view a matter of any particular significance. The children appear to have good relations with the father’s extended family and I note that there was no challenge to the assertion that Y will on occasions simply walk to the father’s sister’s school, which is close to it.
Although there was some emphasis given in the mother’s case to the fact that the father lives some 20 to 25 minutes from the children’s school as things presently stand, that in my view is a matter of no moment. In the scheme of metropolitan Melbourne, it is really not very far at all. The father deserves credit for his endeavours to move even closer, and to obtain superior and more suitable accommodation. I note that the children are looking forward eagerly to moving to the Suburb G area with him, which will resolve the sleeping arrangements difficulty for Y.
I note that the father appears to suggest that if required to do so he will become vaccinated in order to keep his employment. This will enable him to pay for the rentals that I have no doubt he will be able in due course to obtain. It should be noted in passing that while the mother has said blithely that she will be able to support the children on statutory benefits as she has done so before, with rental of $440 a week and statutory benefits at the level they are, this will be no mean feat. It is a measure of her personality that she should regard this as preferable to vaccination.
Section 60CC(3)(f)
Both these parents can provide for the children’s needs. They both have their deficits. The father’s past conduct in forcing the children to have ice baths when they did not want to speaks volumes for a lack of insight. I entirely accept that the incident took place, not least because X reported it. Ice baths may be all very well for professional athletes, as the father says, but forcing a little boy to jump into an ice bath when he does not want to is fecklessly insensitive conduct. One trusts he will reconsider any such initiative in the future, and I note that he says, in effect, that he already has. The mother’s capacity to provide for the needs of the children suffers from the deficit that she has this entrenched view that the father is unable himself to do so. It is to be hoped that this judgment, may assist her to cope with her concerns.
Section 60CC(3)(g)
Both of these parents struck me in a sense as being slightly immature for their years. They have lived in part, it would seem, what might be described as an alternative lifestyle. 18 months travel around Australia would be wonderful fun but it hints at a somewhat itinerant lifestyle, exemplified further by the periods of living in caravans in New South Wales and the like. They have embraced, as I understand it, a vegan diet, and there appeared to be even a suggestion that the mother was in favour of uncooked foods. To rail against young children having milk with its attendant calcium and benefits is a surprising position to adopt. Nonetheless, while some aspects of their point of view would strike most people as being slightly odd (95 per cent of Australian children are fully vaccinated according to the government’s health website), there is nothing unlawful in these views and, as I would repeat again, both of these parents unquestionably love their children very dearly. It should be noted that the children appear to be developing very well and X is a sensible and, it would appear, highly intelligent young child and Y’s personality was described by Ms J as a confident, bubbly child whose matter-of-fact in her responses and showed maturity for her age.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Both of these parents love their children and wish to do the best they possibly can for them within the limitations of their own world view.
Section 60CC(3)(j)
Despite the father’s denials, it is quite obvious that he has a temper. He has screamed and yelled at the mother in the presence of the children, and the children have reported not liking this, scarcely surprisingly. While he would have it that arguments were both ways and it is clear that the mother has both slapped him and sworn at him in the past, he is far bigger and stronger than she is, and I agree with Ms J that aspects of what each of them had done to the other is perceived by the other as being threatening and concerning.
It is interesting to note that both in their evidence before the Court and indeed in Ms J’s report, each of these parties have very much mirror images of the other and each blame the other for the difficulties. The mother says that the father gives her the silent treatment and this is a form of abuse. The father says that there is no point talking to the mother because if she does not get what she wants, that is the end of it. Both of them have these perceptions and within their own construct they are correct. I detected in the mother a certain steeliness of mind and her stated desire for dialogue has to be qualified, in my view, by the fact that if she does not get what she wants, the dialogue is likely to become somewhat difficult. It is to be hoped, however, that with the ameliorative initiatives underway, these difficulties between the adults will decline and that their recent apparently successful capacity to shield the children from their own problems will continue and improve.
Section 60CC(3)(k)
There is an intervention order in place which appears to have been extended this July for a year. Given the way the parties have been proceeding, the continuation of this order seems somewhat surprising but in any event it adds nothing to the overall picture now.
Section 60CC(3)(l)
Everyone agrees there should be final orders now.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION
In the end, the five/nine/seven/seven dispute can be dealt with shortly. It is what the children and most particularly X want. It is recommended by the Family Report writer, whose expertise I acknowledge again. Having seen and heard the parties give their evidence and bearing in mind all the matters to which I have referred above, it is overwhelmingly apparent that an order for equal time should be made. I see no reason to phase this in. Ms J was at best equivocal on the issue and in my view the benefits of equal time should start straight away.
THE ISSUE ABOUT EXTRACURRICULAR ACTIVITIES
The father seeks an order that both parties be at liberty to attend all school and extracurricular events that parents normally attend, including sports events and the like. Little was said about this aspect of the matter during the trial, save that the mother did complain that the father had enrolled as the coach of X’s basketball team when he knew that she would be taking him to training herself. While Counsel put it to the mother that this did not mean he would be within close distance to her, as the intervention order prohibits this, I think that the father’s conduct was insensitive and overentitled. He may not have known that his turning up to basketball would upset the mother but he ought to have. While I have had somewhat to say about the extent to which each of these parties’ perceptions of the other is correct, the fact is that they do hold those perceptions.
While it is regrettable, I think the best interests of the children will be met by making an order that neither parent attend extracurricular events when the children are in the care of the other, save by agreement. One would hope that this would mean, for example, that they might both agree that they could both attend concerts when there would be large numbers of people present and one would assume a decent-sized auditorium. So far as sports is concerned, the father has said he will take the children to any extracurricular events and I see no reason to doubt that he will. The mother already does. This order may cease hopefully to be of concern to the parties if the Parenting Orders Program and the Tuning in to Teens Program are as successful as I hope they will be.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 3 November 2021
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