Barone and Bianco
[2010] FMCAfam 763
•23 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARONE & BIANCO | [2010] FMCAfam 763 |
| FAMILY LAW – Parenting – parental responsibility – with whom a child lives – dispute as to equal time and substantial and significant time – both parents love the children but are unable to work together or to communicate – elucidation of the principles to be applied in parenting matters – where equal shared parental responsibility is rebutted – where the best interests and wishes of the children still calls for significant and substantial time with each parent – where the evidence indicates the children do not wish and would not benefit from equal time – consideration of what time would be appropriate to meet the best interests of the children. |
| Family Law Act 1975, ss.60CA, 60CC(2)(a), (b) and (3), 61B, 61C(2), 61D(1) and (2), 61DA(1)-(4), 61DAE(1) and (2), 65DAA(3), 65DAC |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell and Chappell (2008) FLC 93-382 |
| Applicant: | MR BARONE |
| Respondent: | MS BIANCO |
| File Number: | CSC 837 of 2007 |
| Judgment of: | Coker FM |
| Hearing dates: | 30 June & 1 July 2010 |
| Date of Last Submission: | 1 July 2010 |
| Delivered at: | Townsville |
| Delivered on: | 23 July 2010 |
REPRESENTATION
| Applicant: | Self-Represented |
| Respondent: | Self-Represented |
| Counsel for the Independent Children’s Lawyer: | Mr Trevino |
| Solicitors for the Independent Children’s Lawyer: | Cope Family Law |
ORDERS
That the Mother have sole parental responsibility for decisions relating to the long-term care, welfare and development of the children, [X] born [in] 2001 and [Y] born [in] 2003, subject to the communication and notification of such decisions to the Father, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
Notwithstanding the provisions of order (1) herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
That the children live with the Mother.
That the children spend time with the Father at all reasonable times and in particular:
(a)During the gazetted school term in each alternate week from after school Thursday until before school Tuesday, with such time to be spent by the Father with the children to re-commence on the first weekend after the resumption of each school term, notwithstanding with whom the children may be spending the second half of any school holiday period.
(b)The time to be spent by the Father pursuant to order (4)(a) herein be suspended during the gazetted school holidays and the children spend the gazetted school holidays with each parent as follows:
(i)The first half with the Father in each even numbered year and the second half with the Father in each odd numbered year
(ii)The second half with the Mother in each even numbered year and the first half with the Mother in each odd numbered year.
That the parent not having the children in their care on the children’s birthdays spend time with the children from 5.00pm on the evening preceding their birthday until the beginning of school if a school day or 10.00am should the birthday fall on a day that is not a school day.
That should the children not be with one parent or other on that parent’s birthday, then the children spend time with that parent from the conclusion of school until the commencement of school the next day, provided however that should such birthday fall on a non-school day then from 3.00pm on the parent’s birthday until 9.00am on the next day.
That should Mother’s Day or Father’s Day fall during a weekend when the children are not with the relevant parent, then the children spend time with that parent from 9.00am on Mother’s Day or Father’s Day respectively until 6.00pm on that day.
That on the Paternal Grandmother’s and Paternal Grandfather’s birthdays, from the conclusion of school that day until the commencement of school the next morning, provided however that should such birthday fall on a non-school day then from 3.00pm on the Grandparent’s birthday until 9.00am on the next day.
That should the parent having the children in their care in the first half of the Christmas school holidays be in the same locality as the other parent, then and in that event, the other parent spend time with the children from noon on Christmas Eve until noon on Christmas Day.
That the parent not having the children in their care communicate with the children by telephone at all reasonable times and in particular:
(a)Each Wednesday and Saturday between the hours of 7.30pm and 8.00pm unless otherwise agreed in writing, with the parent not having the children in their care to be responsible for initiating the call and the parent having the children in their care to ensure the children are available to take the call in a quiet and private environment.
That each parent shall be responsible for ensuring that the children participate in all extra-curricular activities for the children when the children are in their care. Additionally, each parent shall notify the other in a timely manner of any extra-curricular activities which may be arranged for the children during times that they are in the other parent’s care, including but not limited to school activities, extra-curricular sporting and cultural activities, birthday parties and the like.
That each parent shall be restrained and an injunction issue restraining either parent from denigrating the other in the presence of the said children or from allowing the said children to remain in the presence of any other person acting in such a manner.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Tuesday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school until 9.00am on the Wednesday five days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 9.00am on the Wednesday until 6.00pm on the Sunday preceding the recommencement of school;
(e)The first half of a gazetted end of Term 2 or end of Term 3 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of a gazetted end of Term 2 or end of Term 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Barone & Bianco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
CSC 837 of 2007
| MR BARONE |
Applicant
And
| MS BIANCO |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to final orders sought in respect of the parenting of two children: [X], born [in] 2001, and [Y], born [in] 2003. The children are the children of the relationship between Mr Barone, whom I shall refer to during these reasons as the father, and
Ms Bianco, whom I shall refer to during these reasons as the mother.
The children, and of course the parents, have been the subject of continuous proceedings before this court for nearly three years. The father's initiating application seeking orders in relation to the parenting of the children was filed on 25 September 2007. Subsequently, there have been numerous amendments to the application, as well as other applications relating to applications in a case and contravention proceedings, leading up to the final hearing of these matters before me.
In fact, the father's initiating application filed on 25 September 2007 has been the subject of applications for amendment on a considerable number of occasions. The father first sought to amend the orders sought by way of the filing of an application in a case on 12 December 2007, and then further amended that application in a case on
23 January 2008. One day later, on 24 January 2008, a further amended interim application was filed.
Nothing could be a clearer example of the continued and unfortunate disputation between the parties than the fact that there seemed to be no settled arrangements, even in respect of what one party, the father in this instance, continued to seek.
There were contravention proceedings dealt with on numerous occasions, and then, after a little period of stability following orders being made in September of 2008, further amendments were sought in relation to proceedings, as well as there being further contravention proceedings. The father amended his applications in relation to final orders sought with regard to the children on no less than, as best I can assess the material, four occasions, as well as the repeated applications in a case and contravention proceedings.
The mother did not amend or vary her position in relation to this matter, but in light of what she sought, it was perhaps understandable. At the commencement of the hearing, however, it was at least, as best I can understand it, finally clear what each party proposed. The father filed a case outline on 22 June 2010, in which he sought orders with regard to the children living with him on what is commonly referred to as, a shared-parenting arrangement.
His proposal was that the children should live with him from Friday afternoon at about 3pm, in other words when school concluded, until the following Friday morning when the children would be delivered up to school. Additionally, the father proposed that the children should then live with the mother on the similar week-about arrangement and the father proposed that there should then be continuity in relation to school holiday arrangements.
In that regard the father proposed that there should be orders similar to those which were agreed by consent in September of 2008, with regard to sharing of holidays. One half of the gazetted school holidays to alternate between the first and second half with each parent was proposed, as well as significant other arrangements in relation to special days, including; the children's birthdays; parents' birthdays; Mother's Day; Father's Day; Christmas Day; Easter Sunday; and it is noteworthy, an inclusion for the paternal grandfather's birthday,
[date omitted] in each year. That particular aspect of the matter does not, however, appear to have been pursued in the final orders proposed by the father, but if anything it is simply again clarification of the fact that the parties quite clearly need specific arrangements to be in place with regard to all proposals, with respect to the parenting of the children.
The case outline filed by the father does not propose that there should be equal shared parental responsibility, but what it does say is that the current orders should remain in place for the holidays and birthdays, and one can presume, that remaining silent in relation to the issue of parental responsibility means that the father proposes, as was the subject of the consent orders of 4 September 2008, that there should be equal shared parental responsibility for decisions to be made in respect of the children.
The mother's first response to the initiating proceedings by the father was filed on 25 October 2007. In that response she detailed her proposals in respect of the children. They can be summarised as follows:
·That the children live with the mother.
·That the mother have sole parental responsibility for decisions in relation to the children's long-term care, welfare and development.
·That the children spend time with the father at times as may be agreed between the parties, and in particular, alternate weekends from the conclusion of school or day care on a Friday to the commencement of school or day care on the following Monday in each alternate week, but when either the Friday or the Monday are a public holiday or pupil-free day, then that they should be taken into consideration in respect of any calculation.
The mother additionally proposed in that original response that the father should have the opportunity to spend time with the children for one week in each school term, commencing at the conclusion of school or day care on a Friday, to the commencement of school or day care the following Friday, as well as during the father's annual leave entitlements for a period of four weeks each year, and she then went on to particularise how that should occur during the end of term 1, end of term 2 and end of term 3 school holidays, as well as for there to be specific arrangements in relation to the December school holidays.
The mother went further in the orders proposed to also particularly include issues in relation to ensuring that the children continue to participate in extra-curricular activities when the children are with the father, and that the mother was to ensure that the father was notified in a timely fashion of such extra‑curricular activities.
I specifically mention that particular aspect of the matter because it was somewhat prescient of the mother that that should be included in the orders.
One of the unfortunate aspects of this case was the very significant disputation between the mother and the father relating to any of the extra-curricular activities that one or other might have proposed, in relation to the children. The mother, as I say, did not file any amended response to the various amendments that occurred in respect of the father's applications before the court, but in her summary of case, filed on 24 June 2010, she did clarify more specifically what she might propose in relation to the children, there having been a period of nearly two years where the orders which were made by consent on an interim basis on 4 September 2008 had operated.
The mother proposed, again generally:
·that she should have primary parental responsibility for the children;
·that the children should spend time with the father from the conclusion of school Friday to the commencement of school Monday, each alternate week, and that the children otherwise live with the mother;
·that during school holidays in the first, second and third school holiday period, at the conclusion of the first, second and third terms each year, that there should be shared arrangements;
·Insofar as the Christmas school holidays periods were concerned, however, she proposed there should not be an equal division of the school holidays but rather that there should be periods of up to two weeks spent by the father with the children to coincide either with arrangements in relation to his birthday or Christmas Day, and that there be an alternating arrangement to ensure that Christmas Day is spent in each parent's household.
The mother also then went on within her case outline to make proposals in relation to special days, including the children's birthdays and the parents' birthdays. Mother's Day and Father's Day were also the subject of specific orders proposed by the mother and she finalised her outline with indications that changeovers, that did not fall on a school day, should occur in a public place and she proposed that that should be the [M] Shopping Centre customer car park.
As I say, both parties set out at some length what they proposed in relation to arrangements with regard to the parenting of these children. The fundamental issue, of course, was whether there should be equal shared parental responsibility or sole parental responsibility vesting in the mother, as well as whether there should be what is now commonly referred to as shared care, being equal time spent within each household as proposed by the father, or some limitations in that regard such that as the mother proposed, it should simply be alternate weekends.
In that respect, I note that the mother's proposals in relation to the time to be spent by the father with the children was in fact reduced from that which was the subject of agreement in September of 2008, the father having the children in his care from after school Thursday to the commencement of school Monday in each alternate week, as well as there being an inclusion of a public holiday or pupil-free day extension, in the event of the Monday with the father falling on one of those types of occasions.
It was obvious from the conduct of these proceedings, that there was a significant element of dispute between the parties, in relation to suggesting who might or might not be responsible for the ongoing difficulties that were catalogued in the material filed by both. Both of the parties were self represented in relation to these proceedings, but I must say that in my assessment that would not in any way detract from the evidence required to be relied upon in relation to the proceedings.
It was certainly the case where each parent, to varying degrees, was eloquent and articulate and able to express the concerns that they had, in respect of what the other parent proposed with regard to the children. I was, however, considerably assisted by the involvement of a most experienced independent children's lawyer, who had taken steps to ensure that various assessments were available in relation to the parties. Those assessments included two family reports prepared by Ms E, as well as a further family report prepared by Mr P.
Additionally, a joint report following a meeting of Ms E and Mr P was made available to the court and I was also assisted by the psychiatric assessments that were obtained from Dr K. The only witnesses, other than those experts called in relation to the proceedings, were the mother and the father. It was unfortunate in some respects that that was the case, because at least insofar as the father's case was concerned, there was clearly a significance placed upon the assistance provided to him, not so much with regard to the day-to-day care of the children when with him, but with regard to some of the collection and return arrangements involving his sister, Ms M.
What appears clear is, that although Ms M was not required in relation to these proceedings, it was obvious that she would, at least to some extent, continue to have involvement in relation to the proceedings, and it was noteworthy that when earlier interviewed in relation to the proceedings, she held some significance to the children, insofar as their attachments were concerned.
I intend to consider the evidence of the parties in relation to this matter first, before then seeking to address the evidence of the experts, in light of those assessments that I make with regard to the mother and the father.
The father was the applicant in the proceedings and was called first in relation to the matter. The father's position in relation to this matter was easily summarised. He was without fault, he had done all that he could possibly do to ensure that there was a workable arrangement and relationship between he and the mother and that any difficulties, and there were many that continued with regard to communication, as well as to generally make arrangements, even with regard to extracurricular activities, were wholly and solely the fault of the mother.
In fact, any comments that were adverse to the position of the father, including comments made by the children to the reporter, Ms E, were easily able to be explained by the father as a result of coaching or manipulation by the mother. The father no doubt, and I accept it unconditionally, loves his children with all his heart. The children also have an enormously close attachment and affiliation with him though, it is certainly reported by the mother, and it would seem supported by evidence from Ms E, are in a situation where they are, somewhat frightened by the father and his responses to certain situations.
The father, again, accepts no responsibility for such matters and it does him no credit that he being, I would assess, a reasonably intelligent man, simply fails to appreciate that his actions have such serious effects upon both the mother and unfortunately, also upon the children. That is evidenced, if you like, by the distinctions drawn by Ms E in the two reports prepared by her, the first of those dated 15 May 2008, and the second, 13 November 2009, in other words 18 months apart, where the second report clearly eludes to the changed circumstances of the children and the fact that they do have certain concerns, in respect of their father.
I would assess the father as an angry man though he denies that. It could not, however, be ignored, that during the course of the proceedings, the father on a number of occasions simply lost any ability to control himself, particularly when challenged in relation to the matter. The father was not without a grasp of the importance of dealing appropriately with the mother and with the court, because when particularly challenged by me, there was an aggressive outburst by him in which he suggested that the court was, if you like, part and parcel of the conspiracy (my words), which was being perpetrated, to ensure that he, as a "good father", was not able to have a relationship with the children.
In fact, the father only subsequently grasped, that the concern expressed by me in relation to an answer given by him had nothing to do with issues in relation to the matters before the court, other than a general concern in relation to the honesty or legitimacy of the answer that was given. The father had very quickly latched onto an indication given by me, providing as much guidance and assistance as I could in relation to the conduct of proceedings, that he should not try and guess answers, if he was not able to clearly recall incidents that were being raised.
What that led to however, was that when the father was challenged at length by counsel for the independent children's lawyer, about circumstances that had arisen in relation to domestic violence, he simply gave a rote and continuously repeated answer, that “he could not recall the incident.”
When pressed a little further in relation to whether he may or may not have laid a hand upon the wife, and thus perpetrated physical domestic violence upon her, he indicated still that he could not recall the incident, but had never laid a hand upon the wife.
I am inclined to accept that as true in this case, but by the very same token, it is clear that the father is a man determined to get his own way, and therefore, to act in a most aggressive, harassing and intimidating way. And whilst he could certainly see the possible consequences of acting in such a manner in the court, he was still unable to control such emotions on his part.
One can easily accept, and I do find, that the father would have been enormously aggressive, overbearing, intimidating and domineering in the presence of and toward the mother, and I would think without doubt, also on occasion in the presence of the children. The father was challenged by me, not in relation to whether he could or could not recall the answers to the various questions relating to incidents of alleged domestic violence in the past, but was challenged by me when a question was directed to him by counsel for the independent children's lawyer as to, “whether he had difficulties with his memory.”
He gave a nonsensical, almost flippant, response, which was that he could not recall, and it was at that time that the exchange occurred between the bench and the father, as to whether in fact he was taking the proceedings seriously or not. The matter was stood down and the father's demeanour changed entirely when the proceedings were recommenced, and in fact at that time he did indicate that he was able to answer the question quite properly, but because of frustration had not done so.
It was clear that the father was not a skilled advocate, but it was also clear that he was most attuned to what would be beneficial to him in relation to consideration of this matter. What was troubling, of course, was the fact that the father simply had no insight or failed to appreciate in any way, the effect of his actions upon the mother, whom I would assess is genuinely fearful of the father and of his anger, as well as, more particularly, the effect of his actions, upon the children.
There have clearly been instances where the father has become frustrated with the children. One clear example of that was where, as he properly admitted, he became so frustrated in a reading exercise with the child [Y], that he had flung a school reading book to one side and a page had torn from it. The child was obviously influenced by that because it was described by her in discussions with her teacher, who then recounted the story to the reporter, Ms E.
The father could not, particularly in light of his own direct admissions, suggest that the mother had coached the child in that instance, but there seems to be the overriding impression given on the part of the father, that even where his actions were wholly inappropriate, and of course in this instance they were, it was still not something that should be given any real credence because, if anything, the mother's actions were worse.
I will, of course, need, and intend, to comment upon certain of the steps taken by the mother in relation to this matter, but it is clear that the father has a very long way to go to fully appreciate the effects of his behaviours upon the children and the mother.
It was clear that the father had acted on many occasions in a manner which was inappropriate. The father failed to appreciate the consequences of his actions upon the children and challenged repeatedly anyone and any expert who might have taken a different stance in relation to him or his actions/reactions.
This was obvious, for example, in the position taken by the father when commenting upon, and then questioning Ms E, in relation to her report. Ms E spoke of an opportunity arising for the father to apologise to the child [X] about certain behaviours. The father was adamant that the exchange between he and Ms E was in fact very different to that which was recounted by Ms E, in her report. The father was determined to suggest that he was being manipulated or controlled, or sought to be controlled, or it was sought for there to be control of him by Ms E.
He said that he felt intimidated by the proceedings. The fact is that I do not accept in any way that the father's recollection, or even version of events in relation to this matter, is accurate. Unfortunately the far more overriding impression that I gained in relation to such issues was that the father knew exactly what had happened in relation to this matter, but was determined in his own mind, to re-write history, so as to paint himself in a better light.
It was a recurring theme throughout these proceedings. The father was refusing, on almost every occasion, to consider that he may have acted inappropriately. The fact is that he does act inappropriately and he continues to do so, such that the mother's concerns in relation to the father are legitimate, though, as was stressed by counsel for the independent children's lawyer, perhaps emphasised and exaggerated to a significant degree.
Domestic violence was a theme in relation to this matter, because of course, domestic violence is so much more than simply the physical laying of a hand upon another person. There are so many other obvious forms of domestic violence that need to be considered. There is psychological abuse, sexual abuse, physical abuse, emotional abuse, harassment, intimidation and bullying, all of which are in their own way as serious, if not more serious, than the actual physical incident of domestic violence.
The father disengaged, it was suggested by counsel for the independent children's lawyer, in relation to any issues with regard to domestic violence. His answers were unhelpful, but in my assessment were more particularly, untruthful. He knew exactly what he was being questioned about and he was determined to emphasise that he was not guilty of domestic violence. Of course the way he justified the matter was to repeatedly insist that the matters had been determined and that he had been in every respect exonerated in the state courts, in relation to domestic violence.
Repeatedly he sought, and was finally given, the opportunity to rely upon correspondence from the independent children's lawyer. When that opportunity arose he produced to the court a copy of correspondence of 2 October 2008 from Cope Family Law, under the hand of Ms Cope, the independent children's lawyer. In that correspondence of 2 October 2008, the independent children's lawyer noted at paragraph 3 on the first page that:
The federal magistrate was advised that the mother had filed the contravention application in error and wished to have it dismissed. The federal magistrate confirmed this with the mother and dismissed it at her request.
A little later on, on the second page of the letter, the independent children's lawyer then comment:
At this stage no findings have been made in relation to the allegations of domestic violence or abuse in the presence and hearing of the children or otherwise. We urge the parties to reread the family report from Ms E and the concerns that she expresses for the well being of the children as outlined in that report.
We emphasise to the parties the impact upon young children if they are exposed to anything other than polite and courteous behaviour between their parents.
There was, of course, no finding whatsoever that the domestic violence had not occurred. The complaints that were made by the mother and were contained within contravention proceedings were not proceeded with. It would appear, as best I can understand the evidence given in that respect, that the mother's contravention application was filed either in a circumstance where it was not able, because of some technical reason, to be proceeded with, or that there was some procedural step that had not been complied with.
Certainly a technical dismissal, particularly upon the request of the mother, is in no way tantamount to a finding that the allegations were untrue. More particularly, of course, this is simply not the case when it is clear that the father, for reasons quite appropriate, consented to domestic violence orders being made in proceedings in 2007. It may have been that he was given advice as to the need to move forward. It may have been that that advice would ensure, as he seemed to suggest, that there were better opportunities for time to be spent by him with the children, and without making admissions that there was nothing influential in relation to the domestic violence order.
Of course the fact is that the allegations were made, and whilst there were no admissions made by the father in relation to such proceedings, it is clear that there was no finding of a negative nature in relation to the various allegations. The father simply in his own mind, and for his own purposes, had determined that because of either an admission, or a concession without admission, or a dismissal of contravention proceedings, that the mother had contrived to lie or mislead.
I do not consider that that is at all the case and if there is any misrepresentation of circumstances in relation to domestic violence, it arises from the father's determination that because he was not placed in a situation where the evidence was tested, it was not proven. It is simply a fallacy to suggest so.
In any event, I was far more troubled by the father's determination to ignore such issues. He did not recall the issues of domestic violence. He simply was determined not to make any concession which might be to the effect that his behaviour was inappropriate on so many occasions.
The father refused to answer questions knowing that he had every capacity to do so. The cross-examination by the independent children's lawyer's counsel was not harsh or stern, as submitted by counsel for the independent children's lawyer. It was rather designed to give the father the opportunity to put his own version of events, to explain circumstances of frustration, harassment or provocation by the mother. He simply refused to do so. It was submitted, and unfortunately I can find no other proper conclusion than that the father was not a witness of credit or reliability, particularly when it came to such matters.
The father, it was submitted and I must agree, tailored his evidence in every respect and at every opportunity to place himself in a favourable light, and more particularly, to denigrate the mother. It was clear that there was nothing about the mother other than, quite properly acknowledged by him, her capacity to provide on a day-to-day basis for the children, which was seen as favourable by the father.
The fact is, as was again submitted by counsel for the independent children's lawyer, that the father's tactic in denying everything insofar as his actions and seeking to disparage the mother in every respect, was a most unfortunate action on his part. It was submitted that the only conclusion which the court could be compelled to make in relation to this matter is that, insofar as the father is concerned, he has no insight whatsoever as to his behaviour and its effects upon the children, and of course upon the mother. The fact is, that that is exactly the situation that arose in relation to this matter.
As I said at the commencement of comments with regard to the father, he loves these children and these children love him. But by the same token there can be no doubt whatsoever that the father's determination to get his own way, by whatever means, fair or foul, does him no credit and unfortunately does no benefit to these children. They are already commencing to have real difficulties in their relationship with their father and it is clear that those are issues which must be addressed. I will comment a little later in relation to such matters when addressing the evidence of the experts called, in relation to these proceedings.
I turn now to the evidence of the mother, and again, as was emphasised by counsel for the independent children's lawyer, the mother came out in no way covered in glory. The mother sought to tailor her evidence. It was emphasised on many occasions that the mother had exaggerated the issues of domestic violence and whilst, as I have found, the father has certainly been intimidating and overbearing in much of his dealings with the mother, I am inclined also to the view that the mother has sought to exaggerate and to capitalise upon such instances.
It is interesting, for example, that the children both reported to Ms E that the mother was scared of the father. I gained the distinct impression that there may have been elements of frustration with the father's actions and concerns as to his harassment of her, but I did not gain any real impression that there was fear, except that it was communicated by the mother to the children. It was noteworthy as well, that the mother continued to emphasise that she had not denigrated the father, and yet when challenged in respect of very many of the exchanges that were clearly occurring between she and particularly the older child, [X], it was obvious that the mother, I think unfortunately with some degree of knowledge, set out to denigrate the father and the relationship between the children and the father was therefore directly affected.
That was obvious from many of the indications that were given by the mother, as to the exchanges between she and the children, when talking about instances of various types, or instances of communication, between she and the children. The children were clearly influenced by her in certain ways and obviously sought to ensure that the mother was protected. One could not imagine otherwise than that, when the children spoke of the mother being scared of the father, but them “not being scared of the father.”
It is clear that they have, if not directly been influenced by the mother's actions, they have certainly been aware of her concerns as expressed to them, and have been adversely affected by those concerns.
The independent children's lawyer's counsel sought to stress the different approach taken by the mother in relation to domestic violence and her fear of the father. The independent children's lawyer's assessment, as was mine, was that the mother had exaggerated the aspects and issues of domestic violence, particularly of a physical nature, and had emphasised in the presence of the children, her fear of the father, though there appear clearly to have been instances, where the mother has acted contrary to what would obviously be that fear.
The father, for example in cross-examination of the mother, referred specifically to the fact that within the last few weeks leading up trial, the mother attended alone one evening at his home, to serve him with documents. One could not imagine that there would be a greater opportunity for an altercation between mother and father than at the time of delivery of documents relating specifically to family law proceedings, and yet the mother was able to do so.
She explained her lack of concern at that time, being because the father would not act in an inappropriate way leading up to trial. The fact is, that if there was genuine fear held, then the mother would not "take the risk" and I am, as I say, not at all convinced that there is a real fear held on the part of the mother, in relation to the issues of domestic violence of a physical nature.
It was contended on the part of the independent children's lawyer that the only finding open was that the mother was aware of the exaggeration by her and of the benefits, at least that she perceived, would flow, if she were able to emphasise and re-emphasise issues of domestic violence and fear.
Whilst there were clear elements of frustration that the father would feel, there were also clearly, elements of frustration in the mother's behaviours in this matter, but those elements of frustration did not lead to fear, in my assessment, but rather led to determination on her part, to exaggerate the circumstances before the court. It was unconvincing to suggest that there was fear on the part of the mother and I accept the submission made on the part of the independent children's lawyer that that exaggeration was in fact knowingly given by the mother.
There was also an element of concern, again emphasised by the independent children's lawyer, in relation to matters of communication. The mother repeatedly indicated that there was limited, if any, communication between she and the father because of the fact that verbal exchanges led only to argument, physical presence led only to argument, and that the father's communication with her, even by way of email or text, was of an harassing or intimidating nature.
Counsel for the independent children's lawyer referred specifically to those concerns expressed on the part of the mother, and yet referred specifically to the most recent examples of communication between the parties by email, which were made available to the court. There were exchanges by email on 7 and 8 April 2010.
The father's query to the mother was very simple. He inquired whether there was any possibility of these proceedings being settled, albeit on his terms, so that there was not the need to proceed to court and to the battle that ensued.
The mother's response could easily have been to simply advise that it was not her intention to do so and that she wished the court to make a decision. Instead a lengthy email was forwarded by the mother to the father, detailing what the mother says were her legitimate concerns, held with regard to the best interests of the children. That no doubt would have been somewhat inflammatory to the father and the mother would not necessarily have been surprised, though one would think she would express such surprise, if the father had shot back a terse or harsh response.
What was more troubling, however, was that both parents, but in this instance particularly the mother, sought to involve the independent children's lawyer and during the response that the mother was sending to the father in relation to his inquiry, sought to directly involve the independent children's lawyer. In her email of 7 April 2010, in the middle of the response as to the concerns held about the children not feeling loved, feeling intimidated, etcetera, the mother includes the following:
Trish – I think it is imperative that [X] express his feelings about this arrangement to an independent reporter. This is all hearsay and the court needs to hear it from [X]. [X] turns nine on [date omitted]. He is a very intelligent boy and he needs to be heard.
Quite clearly such an inclusion would be provocative to the father. The mother failed, at least it would seem until she was in the witness box, to accept that that would be the case. There would, it would seem, particularly from an intelligent woman, as I would assess the mother to be, a wish not to inflame the situation or to provoke the situation, particularly as is the case where she suggests that she is in fear of the father. I would unfortunately, agree with the independent children's lawyer that there is a most cynical view that could be taken in relation to that type of communication and that the mother has used the father's volatile responses to her own advantage.
It was submitted on the part of the independent children's lawyer that the mother has "latched on to the reports" with regard to communication and to difficulties in relation to communication, and that she seeks now to rely on that difficulty to reinforce her position in relation to the matter of sole parental responsibility, rather than equal shared parental responsibility.
I was obviously troubled therefore, by the evidence of both the mother and the father. As I have indicated, there was much in two days of evidence that gave rise to very real concerns as to the real capacity of either parent to properly provide for the best interests of the children. On a number of occasions the parents seemed to have determined, knowingly or unknowingly I cannot specifically assess, to continue their war with each other, without any consideration of the collateral damage caused specifically to the two most important people in their lives, their children [X] and [Y].
I gained the distinct impression that the mother knew how to "push the father's buttons" in many respects so as to get an unpleasant response from him, and the father was very quick to jump to every conclusion negative to himself, such that he would then have, it would appear to him, justification to then attack the mother. Unfortunately from the perspective of both the mother and the father, the children were more often than not present during these exchanges, or certainly became aware of the difficulties that existed.
It was clear that these children had, particularly in their interviews with Ms E and Mr P, an acute knowledge of what was occurring in relation to the court proceedings. The mother and, I think, to a lesser extent, the father had discussed the proceedings with the children. It may be that there was not a specific discussion as to legal issues or matters of evidence, but what is clear is that in particular in the mother's house, the children were made acutely aware of the fact that when they visited Ms E, or Mr P, or that Ms E visited at their house, it was for the purposes of determining, "with whom they would live".
The children are no doubt intelligent and are able to assess the mood and effects, upon each of their parents. It is clear that these children have been far too closely involved in the dispute between the parents, and that as a result of that, it is simply one further example of the children being the collateral damage to the exchanges between the mother and the father, and the determination on their part to "win this battle".
It was emphasised to me most clearly, that the parents were not, for whatever reason known best to themselves, able to put this battle to one side when decisions had to be made with regard to the children. Obviously the issue of extra-curricular activities loomed large in that regard. The mother wanted the child [Y] to do ballet. The father says that the child did not express any real interest in that, although I must say his evidence in that regard was most unconvincing.
However, what he wished to do was to involve the children in karate, and determined that he would do so. The mother would not co-operate and of course the losers in the battle between the parents were the children. The father emphasised that the children attended their extra‑curricular activities as approved by him whenever they were with him. The mother said that there were many other issues to be dealt with, and that accordingly ballet was not occurring, this particular term or semester.
The fact is that the battle between the parents had taken priority over in any way ensuring that there was a proper approach taken by the parents, to ensure that the children's rights to experience many of those activities that do occur in a young child's life, were able to be facilitated. The fact is that the parents had lost sight of the most important considerations in relation to this matter, and I gained the distinct impression that neither of the parents were willing, to take a step back.
Both still were determined to war. The sign or seal of victory, would be orders in terms of what the mother sought or orders in terms of what the father sought. There was a total lack of appreciation of the fact that parenting involves compromise, parenting involves cool, calm and collected decision-making, and both parents had determined unfortunately a significant time ago, that that was not something that either of them were prepared to do.
Whether the mother had latched on to some appreciation of the fact that poor communication might lead to orders only being made with regard to sole parental responsibility vesting in one parent or the other is unclear.
Whether the father really had any expectation that if he got equal time there would be co-operation, is difficult to imagine.
The personalities of both of the parents would lead me unfortunately to the view, that there was little expectation that could be held of proper, courteous, civil, respectful discussion or exchange between the two.
Unfortunately my assessment in that regard is supported by the opinions clearly indicated by both Mr P and Ms E, in that regard. Mr P in particular gave the distinct impression that until there was a voluntary recognition by one parent, or hopefully both parents, of the fact that there was a better way to deal with each other, and a more appropriate manner of exchange, there was little prospect of improvement. The unfortunate but unassailable conclusion in relation to this matter is that there is little prospect of improvement in the future and in fact if anything, as was observed by Ms E, the deterioration she noted in respect of the communication between the parties, and unfortunately the effect upon the children between May of 2008 and November of 2009, would show that there was little that could be hoped to be gained by further opportunities, counselling or mediation.
As I say, both parents love these children dearly. Unfortunately the children have become secondary to the parents' determination to win the war with each other and to get their own way. I hold little hope, if any, that there could ever be a proper and respectful relationship between the parents such that there can be a situation of communication and consultation necessary to be effected, in relation to the decisions that are so important to be made, with regard to the parenting of young children.
I turn now to the evidence of Ms E and Mr P, as well as of course the evidence which came from the consultant psychiatrist, Dr K. Dr K, in his affidavit filed 29 August 2008, annexed his reports in relation to the assessments of both Mr Barone and Ms Bianco. In the report relating to Mr Barone, and Dr K was not required for cross-examination, he indicates as follows:
I see nothing in this man that would indicate that he has any psychiatric, psychological or emotional disturbance, personality dysfunction or substance abuse.
He then goes on, however, to make comments which can only be indicative of what has been seen, both by Mr P and by Ms E, and by the court:
He describes a relationship in which he sees the mother as being anorexic – using laxatives to excess, being careful about how much she eats, losing weight – and also describes her as being highly obsessional with excessive cleaning, scrubbing, exercising in the middle of the night, et cetera.
He is really quite critical of her parenting skills and yet clearly would be happy for her to have the children at least half the time on what he regards as a shared basis.
Dr K then goes on to say that he can see nothing in this man that would stand against him in terms of him being able to appropriately parent the children, but then rather significantly says:
The reservation that one must have here is the unresolved negative attitude that he has toward his ex-partner (justified or not I can't say at this stage).
I have real concerns as to whether the father would be able to override or even appropriately deal with the negative attitude that he has toward the mother, particularly in light of the fact that the father seems determined to suggest that all of the ills and difficulties contained within the relationship between he and Ms Bianco is clearly as a result of the behaviours of the mother, and of her doing. There is nothing that would suggest that the father or is in fact wishing to deal with that negative attitude.
In the assessment of Ms Bianco, Dr K makes the following comments under the heading Opinion and Discussion:
Having seen this lady now I am quite reassured about the concerns expressed by Mr Barone.
This is obviously a highly intelligent young woman, certainly she has some obsessional traits in her personality in that she is neat, tidy, precise, likes things ordered and organised and she's an [occupation omitted].
But I emphasise that these are traits, not a disadvantage and certainly not to a pathological extent.
He then goes on:
So I see her as a perfectly competent person, perfectly capable of being an adequate parent and without any significant handicaps or barriers so far as parenting is concerned.
It is a problem that he and she cannot relate comfortably about the children; perhaps that will settle down with the passage of more time.
Under the heading General Comments, Dr K concludes the two reports as follows:
I don't have any significant concerns about either of these two people in terms of their psychiatric health, well-being, parenting et cetera. It seems that the decision about custody access matters has to depend on matters other than psychiatric.
And then he continues:
It does seem to me that the situation at present is stable and seems to work well. Whether changing that would be appropriate is something for the Court to decide on matters other than psychiatric.
What is clear is that Dr K properly, I think, assessed that these parents were able themselves to provide for the needs of the children, but unfortunately the joint obligations that might arise with regard to shared parenting was something that was not, certainly at the time of his assessment, working appropriately. He expressed some hope that it would improve. The unfortunate indications, of course, are that nothing has improved, and if anything the relationship between the parents has deteriorated, as evidenced by the inability to even act appropriately in relation to issues such as the extracurricular activities of the children.
I have already commented upon the reports by Ms E. It was noteworthy that the father on a number of occasions attacked the credibility of the reports by Ms E. I should say at the outset that I was enormously assisted by those two reports by Ms E. They were child focused. They were showing a very clear degree of expertise in relation to this matter, and most importantly of all, they were simply, I thought, a reflection of exactly what I saw in relation to each of these parents in this court and in particular, in the witness box.
The father was evasive. The father was, as Ms E suggested, determined to have his own way, and was, as Ms E said, a reflection of his negative opinions of Ms Bianco. In the first report dated 15 May 2008, Ms E comments:
Mr Barone's opinion was so negative about Ms Bianco, and his concern about the children's wellbeing so serious, I then asked him why he left them alone with such an incompetent mother for so many years. This question surprised Mr Barone who said it had never occurred to him to pursue full time care of the children. He went on to say he felt he could not manage the children on his own, and he has never wanted to cut their mother completely out of their lives. For their sake, he has only ever wanted shared parenting or "week about" arrangement with the children.
It is clear that the father's negative views in relation to the mother were not really genuinely held, to the extent that there was a concern about the mother's own capacity to provide for the children. What was obvious from the first report, and what flowed through in relation to the second report, was that these children were articulate, able to clearly express their wishes, and able both orally and by their attitude and demeanour, to show their attachments to both parents.
It was clear that the children were aware of the conflict about them. Ms E commented about that in the first report and indicated that whilst the children -
appeared open and candid in their mother's house, [X] in particular was troubled and less decisive in his comments at his father's house.
If you like, it was one of the first indicators of the fact that the child was commencing to be affected by the actions of the father and of the continued dispute between the mother and the father. Ms E was critical also of Ms Bianco in relation to her negative attitude, and under the heading Conclusion in paragraph 54 of her first report, Ms E says the following:
However, it was also observed Mr Barone and Ms Bianco exposed the children to their negative views and opinions about the other parent, and this caused the children to feel stressed and confused. Whilst Ms Bianco shares inappropriate information about the Court case, as well as upsetting them by telling them how unhappy she is when they are visiting their father, the children do perceive Mr Barone to be unacceptably aggressive towards their mother.
Unfortunately, the observations by Ms E were also the observations that I made in relation to this matter, and I gather from the strong submissions placed on the part of the independent children's lawyer, that they were also their observations and perceptions, in relation to the matter. It is clear that there were needs unfulfilled on the part of both parents, particularly with regard to what their hopes and expectations were for the future.
In relation to the issue of shared parenting and equal shared parental responsibility, Ms E's comments in paragraph 74 of the first report are most salient. She says:
At the present time, both parents do not present equipped to handle to [sic] the rigors and challenges posed by a shared parenting regime. To expose the children to such an arrangement would be to place them into a situation where they would experience even more conflict as Mr Barone and Ms Bianco struggled on a weekly basis to meet the needs of operating cooperatively around school and social commitments of the children.
Accordingly, Ms E recommended, at the conclusion of that first report that:
The children continue to live with Ms Bianco.
In acknowledgment of both children's wish to spend more time with Mr Barone, I recommend,
The children visit their father from Thursday night to Monday morning every second weekend.
The children be collected from school each Thursday and delivered back to school each Monday morning. It is in [X] and [Y]'s best interests their parents have as little contact as possible during this time.
Ms E was called upon to do a follow-up report, and that report was dated 13 November 2009. The recommendations made by Ms E included that the children's living arrangements remain unchanged and that there be no changes to the present visiting arrangements. Ms E then went on to make further recommendations with regard to both parents seeking individual psychotherapy and that both of the children also have counselling, with both family reports being released to the children's therapist.
Additionally, Ms E commented upon her discussions with the children's teachers, and indicated that because of the teachers' concerns about the children's physical well being, that the children be assessed by a medical specialist in paediatrics and that Ms Bianco should also consult with a dietician about appropriate nutritional and exercise requirements.
Ms E suggested that the holidays, and in particular the Christmas school holidays, should be shared between the parents, alternating between the first and second half, with each parent able to make independent arrangements for the children without the difficulties of exchanging the children on Christmas Day. Unfortunately it was a situation of continuing stress for the children for there to be exchanges directly effected by the parents and this is noted as being one of the reasons that Ms E suggests that Christmas Day should not be a shared day, as it would minimise stress on the children.
I was, as I say, most assisted by Ms E's reports in relation to this matter. Her report of 13 November 2009 was comprehensive. It addressed the unfortunate continuation of many of the matters that she had referred to a year and a half before. She refers to the children still being aware of the comments made by the mother, not necessarily directly to the children but in a situation where the children were not protected from overhearing comments made by the mother to others about the children or her situation.
It is clear that Ms E’s comments in relation to the father and to her exchanges in the early stages of interview were quite correct. She noted that the father appeared calm and polite when the interview commenced, but it soon became obvious that he was upset when asked questions he did not like. He was defensive and appeared to perceive the writer as challenging him personally by asking questions without any doubt.
That is, in my view, a most appropriate and proper assessment of the father. He was defensive, but he was also extremely aggressive and in my assessment it was clear that Ms E's comments to him were seen by him as a challenge. His response, of course, in court was to suggest that she was aligned with the mother or a feminist. The bottom line is that the father simply could not hear the truth about his own real failings in relation to his capacity to deal with other people, particularly those in authority, but most unfortunately, of course, was his failure again to have any insight into the fact that he might in some way be attributing to a significant degree to the difficulties that he says he is experiencing, but which the children are clearly experiencing.
It is clear that the father lacked any insight as to his behaviours and those behaviour’s effects upon the children. Ms E reported that in the interviews that she had with the father, he acknowledged that he did say negative things to the children about their mother, as well as making rude gestures in front of the children. The father, of course, denied that that was the case in court, although he suggested that perhaps some years ago, at or about the time of separation, he had made a rude sign toward the mother, or directed toward the mother, in the presence of the child, [Y].
The father simply was untruthful in that regard. He continues, perhaps through his own lack of ability to control his own emotions, to involve the children in his anger toward the mother. I am satisfied beyond any doubt that the father has those continuing difficulties in relation to dealing with the mother, and that he unfortunately is unable or unwilling to exclude the children from those exchanges.
The father lacks any insight as to his behaviours being damaging and lacks any insight or appreciation of the fact that he has, along with the mother, caused significant hurt and harm to these children.
The interview that was conducted by Ms E included her discussions with the children. I found her comments in relation to the children most insightful. It was clear that these children were hurting and that they had found, at least in Ms E, someone that they could talk to in a reasonably open manner and to express their concerns.
It was clear that these children were wishing to have the best of their parents, and unfortunately neither parent was willing or able, at least at the time of those interviews, to show the best to the children and to put their best interests ahead of their own determined approach in relation to such matters.
I was also most assisted by the inquiries that were made by Ms E of the children's teachers. In paragraphs 34 through 46 of her second report, Ms E spoke of the comments made by the teachers in discussions with her. It appears clear there were concerns being expressed by the teachers in relation to each of the children, and in particular their observations relating to both the children's physical and emotional, or personality, well-being.
There were concerns about their health, and that led to the recommendations made by Ms E in relation to the involvement of a paediatrician, and also consideration of the children's diet. It was also clear there were concerns held about the children's ability to interact with their peers, and in that regard there was a particular notification given to Ms E about the behaviours of [Y] and her sometimes aggressive approach to other children.
It was of concern in particular that the teachers noted and observed to Ms E that there was a lack of communication between the parents and that there was therefore a detriment being caused to the children. Ms E in her conclusion to the second report makes comments which again are clearly a recitation of exactly what I observed in relation to this matter. She says at paragraph 47:
In this hard-fought battle for the children's possession between the parents, it would appear that the influence exerted by their mother is more subtle, less intrusive and therefore less stressful on the children. The children do not perceive her influencing their opinions, despite accessing negative information about their father (as observed during the report). Undoubtedly, this will have some effect and by so doing, in my opinion, Ms Bianco manipulates the children with her opinions about their father.
She then goes on at paragraph 49:
On the other hand, the children perceive Mr Barone trying to actively influence them against their mother. At interview, they described his open, blunt denigration of her. His rude remarks are sometimes accompanied with offensive gestures, which both children find unsettling and distasteful.
It is clear that both parents have fallen short, by a considerable margin, of the expectations that should properly fall upon them in relation to the parenting of their children. The father is more direct in his behaviours and his influences upon the children. As I have indicated, however, I have no doubt that the mother also influences the children, and perhaps having been noted by Dr K, and I think also by Mr P and Ms E, to be an intelligent and articulate woman, she is able to more readily shroud her negative actions about the father, than is the father.
The fact is that both parents were noted by Ms E to have continued their behaviours toward each other, which were directly harmful to the children.
It was interesting that the father placed some considerable weight on the findings of Mr P in the more recent report, being the report attached to his affidavit filed 20 May 2010. Of course Mr P in fact did not make any findings which were in any way, I thought, contrary to the findings that were made by Ms E.
His report was prepared in a different manner and was couched in different terms, but there were still the very real concerns that arose in the report from Ms E. They are best exemplified, for example, by the comments in paragraphs 62 and 63 relating to [Y], where Mr P reports:
When given Three Wishes by a magic genie, [Y] stated, "first for my Mum and Dad to get along. And definitely for the second one; not so many sunny days all the time; because we wouldn't have water and trees and then that people would get along with each other; and everyone would do things nicely and play carefully".
When made the Princess of her own island and asked to nominate those individuals she would like to live with her, [Y] responded, "[names omitted], who are my three best friends from school; and Mum and my brother. And yes; my Dad; but we would mainly have to separate them (parents) so they can't fight".
The fact is that these children still are reporting only a matter of weeks before trial the continued difficulties in relation to the exchanges between the parents. [Y] reiterated that, and it is included in further comments by Mr P, where, for example in paragraph 67, [Y] continued:
I know my Mum and Dad fight; or used to fight a lot. But I think they don't fight that much now. But they truly don't get along and sometimes they're not very nice together”. Notably, [Y] proactively added "But I think Dad used to make threats; but he doesn't do it anymore."
It was clear to Mr P that [Y] was aware of the history of the parental hostilities, and more particularly, it was clear that one of [Y]’s real wishes and hopes was for the parents to be more friendly, or at least civil toward each other.
[X] had similar comments to make. It was clear that [X] was concerned about the behaviour of his parents. He is reported as saying in paragraph 81:
Notably also, [X] added "I know that they are angry at each other; and I think it's mainly over us. And that makes me feel real sad. But I think Dad is the angriest".
And then goes on:
However, like his sister before him, [X] then emphasised, "But I'm not scared of him; but I know Mum sometimes does get scared of him".
At paragraph 85, in the opportunity given at the end of the interview when speaking with Mr P to make any further comment, there was a significant pause and it is reported that [X] then stated:
"just that my parents would stop fighting."
It is clear that these children have been harmed by the actions of their parents. It is clear that these children continue to express stress and distress as a result of the actions of their parents and it is unfortunately still clear that their parents have failed to in any way fully appreciate the effects of their actions, and they are both at fault, upon the children.
Mr P in his recommendations does not make any suggestion that there should be a change from the arrangements currently in place. He speaks of the possibilities of change in the parents, and if that were to occur, then the possibility of different arrangements being put in place. He says, however, and I assess it to be the closest approximation to what will continue the following in paragraph 148:
However, if hostilities and lack of cooperation between the parents continues during pre-pubescent and early adolescent phases of the children's development, it is likely that each child will evidence increased behavioural and developmental difficulties over time.
It is clear that these issues are already starting to appear and it is clear that there are issues that must be addressed.
Mr P makes no recommendations in relation to more time with the father, less time with the father, or in respect of parental responsibility. But what he did do, when cross-examined as to his evidence, was to comment much more freely than was the case in the report. When questioned by counsel for the independent children's lawyer about his assessment of the parents, he was much more frank about his opinion. When asked, for example, whether he'd assessed the relationship between the parties as one being intractable and of entrenched conflict, without hesitation he said that it was the case.
He was asked whether there was a total lack of communication and he indicated that that was not the case, but rather that there was simply, a negative communication style. He indicated when questioned about the attitudes of the parties that he thought that neither party would voluntarily move towards a change in attitude, and whilst he indicated that people can change, it is unrealistic to expect that it would occur in these parties, with their current approaches.
He was asked whether there was any current capacity for the parties to co-parent, and he indicated that shared cared and of course shared parental responsibility would be incredibly difficult. Most telling, of course, was when speaking about that particular aspect of the matter, he was asked by counsel for the independent children's lawyer whether that would prove a burden on the children. He immediately answered, "Yes" and I gained the distinct impression that it was a matter of considerable concern to Mr P.
Mr P also commented that without parental change and of course neither parent here indicated any real wish or need to change because they were not at fault, that there would be no benefit in shared care. He indicated that it was not realistic to consider that there would be a positive prognosis in the current circumstances and whilst there might be over time some incremental change, it was not something that could properly be considered as occurring.
Interestingly, the position taken during the joint report prepared by
Mr P and Ms E was not the subject of comment. It was noteworthy that it was the opinion of both of the experts that these children were "vulnerable in the separated family system". They went on to say in paragraph 9 of the joint report the following:
In the absence of the parents' willingness to submit to a credible regime of therapy as recommended, the experts agree that a Final/Judicial decision in this matter is warranted; however, without any change to contact arrangements as presently Ordered.
It would appear that the unfortunate and only conclusion that can be drawn from all of the evidence, both expert and lay, is that these parents will not change, that these children are being hurt, and that there are very real issues that must be addressed in relation to the law and the arrangements to be made in accordance with the law.
I turn then to the decision to be made in respect of this matter. I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility. In that respect counsel for the independent children's lawyer referred me specifically to the decision of Lansa & Clovelly, a decision of Murphy J being [2010] FAMCA of 80, a decision handed down on 11 February 2010.
His Honour there, under the heading, “PARENTAL RESPONSIBILITY” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the children.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
The position of the independent children's lawyer was here to say that it is a situation where the presumption must be rebutted. Quite clearly these parents have had years to attempt to work together and yet every expert indicator is that if anything the circumstances that have existed have deteriorated and have continued to deteriorate. The independent children's lawyer, I think the experts, and I think unfortunately I also, cannot come to any other conclusion that it is in the best interests of these children for the presumption of equal shared parental responsibility to be rebutted.
It cannot work. It will not work whilst the parents maintain the mindset that they currently have, and there is absolutely no indicator that either would change their view. The father does not seek sole parental responsibility in relation to the children. The mother does seek sole parental responsibility. The mother seeks more significant time with the children and that is supported by the independent children's lawyer and by each of the experts called upon, in relation to this matter, and in that regard I note particularly the most recent indication of the expert's view being that contained within the joint report following the conference of experts contained within the affidavit of Mr P and Ms E, filed only a matter of a day or so before the hearing of this matter.
Their recommendation, as I indicated, was that there should be no change to the contact arrangements, and if that were to be the case then clearly it is a situation where parental responsibility must, in the long term decision-making process, vest in one parent. In this instance it must vest in the mother. That is emphasised and stressed by the independent children's lawyer, but in my view it is the only possible outcome.
With such responsibility of course comes real obligation, and the mother will have to communicate with the father, and the mother will have to accommodate, as best she can, the father's wishes. But I see no alternative but that there should be sole parental responsibility in relation to final determination where there cannot be agreement, because otherwise there will be the tragic continuation of situations such as those relating to extra-curricular activities, where neither parent will give an inch and the children are the ones who suffer. It is a tragic situation.
The father's contention that equal time would lead to a more amicable arrangement and greater respect held for him is, in my view, a most unlikely occurrence. If anything, the mother's position and the father's position, would become more entrenched. The mother would think that she has less control in relation to the situation, and in my assessment the father would think that he has greater control. The fact is that that particular position taken by each parent would lead to nothing more than more entrenched disputation and harm to these children.
It must stop, and in this circumstance the only possible outcome is, in my assessment, that there should be sole parental responsibility vesting in the mother. I intend to make such an order. I am mindful, of course, then of what matters must be looked at in relation to determining arrangements with regard time to be spent by the children with the father. Of course having determined that equal shared parental responsibility is rebutted in this matter, there is not, if you like, a statutory requirement to consider those matters set out in section 65DAA.
But of course simply because they are not statutorily required does not mean that there should not be consideration of the time to be spent by the children with the father. I am mindful in that regard of the need for there to be consideration of significant and substantial time spent by the children with the father, and of course in particular the indication of what significant time might be as defined by section 65DAA(3) of the Family Law Act. It is in these terms:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or 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 or particular significant 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 significant to the parent.
These children wish to have a proper relationship with their father. These children are entitled to have a relationship with their father which includes an opportunity to be involved in every aspect of the father's life as the father should have the opportunity to be involved in every aspect of the children's life. The mother's proposals for weekends and school holidays fails to appreciate such matters as being of real significance to the children.
The independent children's lawyer suggested that there should be perhaps an opportunity given for the children to spend more time with the father by way of an extra night in the, what might be called, the "off week". The mother opposed that, and to his credit I think the father recognised that it would cause more or greater upheaval in the children's lives than would be beneficial. Of course the father couched his suggestion not in terms of what would be the benefits of such an arrangement, but simply in terms of wishing to have the equal or shared time with the children.
He did, however, concede that it might be appropriate for say six months for there to be an arrangement where it would be a 3/3-4/4 day arrangement in each fortnight so that there was no more than four nights with one parent or the other. I understand why the father would propose such an arrangement, but do not consider that it is appropriate in all the circumstances. I am more inclined to think, as was recommended by the reporters, that significant time is appropriate but that it should be in one block with the father, rather than broken down as suggested.
I will, however, comment a little further in respect of that particular aspect of the matter after consideration is given by me to those matters relevant, arising pursuant to the provisions of section 60CC(2) and (3). In this matter a meaningful relationship as required to be considered pursuant to the provisions of section 60CC(2)(a) is important. It is in the children's best interests to have a meaningful relationship with both of their parents. The children do have a meaningful relationship with both of their parents and it is also important that the attachments that the children have to both of their parents be fostered and developed.
What also needs to be taken into consideration, however, is the balance that must be looked at between the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm that might occur. That consideration of a primary nature arises pursuant to the provisions of section 60CC(2)(b).
In this matter issues of domestic violence have loomed large, but I have already commented upon the fact that I think there is a significant element of exaggeration, at least in respect of physical dispute. However, I am absolutely satisfied that with both parents, but unfortunately more particularly with the father, there are elements of psychological harm that occur. In that regard I think the mother is more attuned, though she has not acted as a appropriately as one would have hoped to date, to the harm that is caused to the children by manipulation and control.
The father, however, is unable to control his emotions and his actions. The comments made by Ms E in relation to the rude finger gesture and the statement of the child, [Y], that the father called the mother "shithead" are fresh in time and indicators of the father's inability to protect the children from psychological harm, perpetrated by him. The father might suggest that the children have been coached, but the father needs clearly to consider also that his actions brought about by his own anger and frustration are as harmful, if not more harmful, than any actions that might occur as a result of the behaviours of the mother.
Both parents can, and should, act more appropriately in relation to the children. But it is clear that the long-term effects that can occur to the children are matters which must be addressed and must be addressed immediately. Ms E comments in her first report about the concerns that emotional or psychological harm can have upon the children in that the exposure to adult conflict can -
create feelings of powerlessness and helplessness; low self‑esteem; instability; insecurity and distrust and is profoundly detrimental to children's further development and well being.
It is clear that this behaviour has occurred, it has occurred in more subtle ways in the mother's household than the more direct actions within the father's household, but that it must stop in both households. And whilst there is a hope that both parents would act appropriately, the fact is that whilst one would hope that proceedings would be at an end, unless there is an appropriate stance taken, there will be further proceedings, or perhaps even more tragically, a determined stance taken by one child or the other in relation to their continued relationship with one or other of their parents.
I am satisfied that a meaningful relationship exists, that it is beneficial to these children for it to be fostered and developed, and that subject to proper and appropriate behaviours by both parents, that the effects, as currently exist of a harmful psychological or emotional nature upon the children, can be balanced and corrected.
I turn now to the various relevant additional considerations in respect of this matter as are required to be considered pursuant to the provisions of section 60CC(3) of the Family Law Act. I am mindful in particular of the views expressed by the children, and whilst the father says that those views have been coached, the expert evidence and my assessment in relation to this matter, is that the wishes expressed by these children are a clear reflection of what they observe in each of their parents, and in particular with regard to what they observe in their father's behaviours and demeanour.
These children see him as an angry man. His behaviours are of an angry and frustrated individual, angry not only with them but also with their mother and it is them who bears the brunt of his behaviours. It is clear that the children's wishes are to maintain their relationship with their father and with their mother, but it is also abundantly clear and I accept, that it is their obvious wish to maintain their primary attachment, and more significant time, in the household of their mother.
It would be ludicrous to consider that there was any other proper conclusion that could be drawn in relation to this matter. In any event the most recent indications of the children can be seen as being drawn from Mr P's report attached to his affidavit of 20 May 2010, "[Y] says that she would like things to 'stay the way they were.'"
I am satisfied that that is an accurate and proper reflection of the wishes of these children.
I am mindful obviously of the need to consider the nature of the relationship that the children have with their parents and with other persons. In this instance there are very positive relationships with both of the parents by the children and there is also a clearly positive relationship between the children and their paternal aunt, Ms M, as well as cousins. The father seems to suggest that without equal time those important relationships with extended members of his family cannot be fostered and developed, but I must say that my assessment in that regard is that the father simply uses that as one more basis upon which he seeks to get his own way in relation to this matter, rather than to in any way really appreciate what is in the best interests of the children.
These children have appropriate relationships with all persons significant in their lives, including, of course, and most importantly, their parents. There are orders in place which provide for significant and substantial time and the continuing orders to be made in relation to this matter will continue to foster and develop those relationships; more so one would think if each parent were able to finally and properly appreciate the effects of their own actions upon the children and the need to act more appropriately in all respects.
There must be consideration of the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the child or children and the other parent, and I have already commented at length about the concerns that I have with regard to both parents' capacity to do so and to move forward. It is a fact that the independent children's lawyer noted that she had grave concerns about either parent's ability to foster a relationship between the children and the other parent, but there is also, if you like, light at the end of the tunnel.
No matter what has occurred, and there is much that has been harmful, there is still a real indication that there is a close and loving relationship between these children and both of their parents, and that has come about, notwithstanding the difficulties that each parent has thrown up toward the children's fostering of a relationship with the other parent. It is to be hoped that both would move forward, but it is also to be recognised that whilst those difficulties have continued, the children have had sufficient opportunities for time in each parent's household and with other members of each parent's family, that those relationships have been able to be fostered and developed.
One would hope that there could only be improvement if each parent were to take onboard the very strong recommendations and suggestions of the reporters, involved in these proceedings.
It is not really necessary in my view to suggest that there will be practical effects of any change in the children's circumstances, because it is clear that there will not be significant changes as proposed by the father and more particularly, it is clear that they are not what is sought by the children or in the children's best interests.
There will be no real difficulties or expenses in relation to the children spending more time and communicating with the other parent, because that obviously already occurs.
There are issues about each parent's capacity to provide for the needs of the children, including their emotional and intellectual needs, because the teachers have commented upon the effect upon the children, both emotionally and intellectually, as well as physically, of the dispute between the parents, and there are obviously concerns, in particular with regard to the child, [Y], and to her progress.
The mother will, as I have indicated, however, now have the responsibility and role for deciding issues in relation to future tutoring or additional support for the children, and in particular [Y], and the father will have obviously, the opportunity to involve himself should he choose properly to do so, in ensuring that the children's best interests are met.
There are issues about each parent's effect upon the emotional and mental health and well-being of these children, and it is to be hoped that there will be progress in that regard. The father's frustrations, however, with the children's progress and with their schooling are evidenced by the "book throwing incident", to which I referred previously in these reasons. The father needs to be mindful of the fact that his actions and frustrations are affecting these children emotionally and intellectually. It is already evident and I accept that the mother's evidence was genuinely given, that the children, and in particular [X], are striving to have homework done before he spends time with the father, because of the father's reactions and behaviours.
Both parents can do better. Both parents should do better, and both parents need to be mindful of the fact that if they do not improve their position in relation to this matter, it is the children who will suffer the tragic consequences of such behaviours.
I am not concerned about issues in relation to maturity, sex, lifestyle and background of the parents or the children. It is an unfortunate consequence of broken relationships that the parents each have the children in single parent households, but there is nothing to suggest that either parent cannot properly provide for the needs of the children.
There are certainly elements of distrust by each parent about what the other parent provides for the children, but again, I am not satisfied that there is any proper basis for concern by the parents or by the court in relation to what each parent on a day-to-day basis is able to provide.
Issues of attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents is a significant matter. Each parent has little appreciation of the effects of their actions upon the children and the effects of their approach to the other parent upon the children. Both can and should again do better, and their responsible approach to parenting should be couched first and foremost in a recognition, that these children deserve their best interests being met by both of their parents working together. A failure to do so is a failure fundamentally to put the best interests of the children to the fore, and whilst it has not unfortunately been something that has been able to be relied upon by these children to date, again it is hoped there might be able to be future improvement.
Family violence is also an issue, although I have commented at length upon the extent of such family violence. I am inclined very much, as I indicated earlier, to the view that physical violence has not been as prevalent as the mother would like to suggest, but has been certainly prevalent in relation to emotional and psychological abuse, particularly perpetrated by way of harassment, intimidation and overbearing behaviours espoused by the father.
Both parents are mindful now, one would hope, of the effects of their actions upon the children, and both parents will hopefully be mindful of how such issues can and properly will be dealt with by them in the future.
Whilst it would be hoped that there would not be further proceedings, if in fact it were the case that there were to be further orders made in relation to matters of domestic violence, or further proceedings in this court, issues of the behaviours of one or both of the parents will no doubt come to the fore.
I am satisfied in the end that the orders sought, in relation to this matter by the father, are inappropriate, insofar as either time to be spent by the children in each of the parent's households, or with regard to equal shared parental responsibility are concerned. Every indicator so far is to the effect that equal shared parental responsibility cannot and will not work and there is little hope, unfortunately at this time, of change in relation to each parent's approach.
I intend to make orders in relation to sole parental responsibility vesting in the mother and generally for there to be a continuation of orders with regard to significant time being spent by the father with the children. It will not be equal time and it will not be, in my assessment, appropriate for there to be an increase by way of an extra day in the alternate week. Extra time, however, with the father would be beneficial, subject to there being greater appreciation by each parent of the effects upon the children of the continued dispute between the parents. Having additional school and after-school time in the father’s home can only further the father’s relationship with the children and, if conducted respectfully, ease the current difficulties.
I am mindful of the children's wish to spend time with their father, and of the very real benefits that can flow if the parents can put the children to the fore, rather than their battle with each other. For those reasons the orders that I intend to make in relation to this matter are generally a continuation of those which are in existence at this time, but with some increase in the alternate week to provide for the father to have a greater opportunity to be involved in the children's academic life as well as involvement in sporting and cultural, as well as extracurricular activities.
The orders of the court will be as outlined at the beginning of these reasons.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 23 July 2010
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