Barrett & Barrett
[2022] FedCFamC1F 616
Federal Circuit and Family Court of Australia
(DIVISION 1)
Barrett & Barrett [2022] FedCFamC1F 616
File number(s): BRC 8392 of 2019 Judgment of: JARRETT J Date of judgment: 28 July 2022 Catchwords: FAMILY LAW – Parenting – assessment of competing proposals for parenting of two children aged 5 1/2 and 6 years Legislation: Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 27 & 28 July 2022 Place: Brisbane Counsel for the Applicant: Mr Walsh Solicitor for the Applicant: Sterling Law (Qld) Counsel for the Respondent: Mr Taylor Solicitor for the Respondent: Life Law Solutions Counsel for the Independent Children’s Lawyer Mr Baston Solicitor for the Independent Children’s lawyer Rhonda Sheehy and Associates ORDERS
BRC 8392 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARRETT
Applicant
AND: MS BARRETT
Respondent
order made by:
JARRETT J
DATE OF ORDER:
28 JULY 2022
THE COURT ORDERS THAT:
1.The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born 2016 and Y born 2018.
2.The children shall live with the respondent except when they are living with the applicant pursuant to these orders.
3.The children live with the applicant at all times as may be mutually agreed and failing agreement as follows:
(a)each alternate weekend during school terms from afterschool Friday to 4:00pm Sunday to include long weekends where those weekends fall at such time and, in particular, to commence 4.00pm Thursday if the Friday is a public holiday and to terminate 4.00pm Monday if the Monday is a public holiday;
(b)for the children’s school holidays AND UNTIL the youngest child attends prep school in January, 2024 from after school on the last Friday of term until 4.00pm on Tuesday in the first week of the autumn, winter and spring school holidays and the first ad each alternate week of the Christmas school holidays PROVIDED FURTHER that once the youngest child attends prep school in 2024, for one half of all of the children’s school holidays on a week about basis;
(c)from 3:00pm Christmas Eve to 3:00pm Christmas Day in even years with no time to occur from 3:00pm Christmas Day to 3:00pm Boxing Day in those years and from 3:00pm Christmas Day to 3:00pm Boxing Day in odd years with no time to occur from 3:00pm Christmas Eve to 3:00pm Christmas Day in those years;
(d)from after school and day care on Friday to 4:00pm Sunday each Father’s Day weekend should Father’s Day weekend not fall on a period of time as set out in paragraph 3(a) hereof PROVIDED THAT no time occur from after school Friday to 4:00pm Sunday on Mother’s Day weekend;
(e)by video each Tuesday and Thursday using WhatsApp and by telephone on Sunday in the off week to that time set out in 3(a) hereof during school terms, with the applicant to instigate the telephone/video call to the respondent’s mobile telephone at 7:00pm and with the respondent to facilitate the call by having the children available to answer the call at that time with the children to be afforded privacy without any intervention or interference whatsoever. The applicant must not ask either of the children to move the device on which the call is taking place.
4.Where time is to commence at the conclusion of school the applicant shall collect the children from the children’s school and otherwise all changeovers not taking place at school shall take place at the Suburb B police station or as otherwise agreed between the parents using the nominated communication App.
5.The respondent and applicant be at liberty to attend all school functions to which parents are invited including, but not limited to, sports days, carnivals, concerts, plays, fetes, parent/teacher meetings, training sessions, games and the like.
6.The respondent and applicant take all steps necessary with the principal or secretary of the school at which each child is enrolled from time to time:
(a)To enable the respondent and the applicant to receive at his/her address and at his/her expense, copies of the children’s School reports, School photographs and newsletters of functions;
(b)To ensure the respondent and applicant’s full names and contact details are placed on the enrolment form for each child as contact parents and emergency contact parents.
7.The respondent forthwith provide to the applicant via her solicitors and in any event, within seven (7) days of the making of these orders, a panel of three Talking Parents Apps, together with the costs thereof, and with the applicant nominate one within three (3) days thereafter, with both parties to forthwith register with the nominated Talking Parents App and remain registered with the nominated Talking Parents App until the youngest child attains the age of eighteen (18) years.
8.All communications pertaining to the health, welfare and progress in life for the children be undertaken through the nominated Talking Parents App.
9.Each party keep the other informed via the nominated Talking Parents App, of his/her current residential address/email address and contact telephone number and of any change thereto within forty-eight (48) hours of any such change.
10.The respondent and the applicant by these orders hereby consent to and authorise all health care providers, educational experts and extra-curricular activity providers involved with each child from time to time to liaise directly with them at their request and expense and the respondent and applicant shall immediately provide the full names/addresses and contact telephone numbers of such health care providers, educational experts and extra-curricular activity providers to each other via the nominated Talking Parents App.
11.The parties forthwith contact each other via the nominated Talking Parents App and telephone of any serious medical or other emergency involving either child and in the event either of the children is hospitalised for any reason whatsoever, the respondent and applicant are at liberty to visit tat child during normal visiting hours and as otherwise permitted by hospital staff.
12.In the event either child is prescribed medication for any medical issue, each parent ensure that the medication so prescribed is administered according to medical direction.
13.Pursuant to s.11(1)(b) of the Australian Passports Act 2005 (Cth), the children, Y born 2016 and Z born 2018 be permitted to travel internationally for holidays.
14.Pursuant to ss 7, 11(1)(b) and 11(5)(b) of the Australian Passports Act 2005 (Cth), the children be issued with an Australian passport, notwithstanding the fact that the consent of the applicant for the issue of the passport of the children has not been obtained.
15.The respondent otherwise retain the children’s passports.
16.The applicant and the respondent do all acts and things necessary, including sign all documents and applications as may be required for the children to be issued with Country D passports.
17.The respondent will be responsible for completing the Country D passport application and meeting the cost of same and the applicant will sign and return any applications presented to him by the respondent within seven (7) days of her request to do so.
18.Notwithstanding the above, commencing in 2023 the respondent be permitted to travel to Country D with the children for a holiday of up to four (4) weeks in odd numbered years and in relation to which the following applies:
(a)the travel period is not to exceed a period of four (4) weeks;
(b)whilst the children attend primary school, such travel will include the mid-year (June/July) school holidays and the children be permitted to travel during the school term to encompass this period; and
(c)the children spend makeup time with the applicant in years when the children are travelling overseas with the respondent in accordance with order 20 herein and will take into account the time that the children should have been in the care of the applicant but for the overseas travel and such time shall occur during the Christmas school holidays provided that prior to Term 1, 2025 such make up time not result in the children spending a twelve (12) day block of time away from the respondent and thereafter such make up time not result in the children spending a block of make-up time greater than fourteen (14) days away from the respondent.
19.Each parent be at liberty to travel with the child overseas conditionally upon:
(a)each parent cooperating with the other and on request to deliver or execute any other document necessary to facilitate the children’s travel including but not limited to the children’s passport, production of immunization records, birth certificate and the like;
(b)the travelling parent providing to the other parent not less than three (3) month’s written notice via the nominated Talking Parents App of his/her intention to travel overseas with the children;
(c)the travelling parent provide the other parent with proof of prepaid return flights, a copy of his/her itinerary, including but not limited to departure and return times and dates, flight details, contact telephone numbers for the travelling parent and the children and the address at which he/she will predominantly be based, a copy of the travel medical insurance for the child and travelling parent, Australian time zone variations against the destination times, a doctor’s letter confirming all recommended vaccinations have been given appropriate to the country or countries he/she intends to visit and age of the child, not less than one (1) month prior to the scheduled departure date;
(d)whilst the children travel overseas, the travelling parent facilitate telephone communication at all reasonable times but not less than one (1) occasion per week, on a day and time as agreed between the parties, with the travelling parent to instigate the telephone call to the other parent;
(e)the travel for the children occur during the period within the school holidays and within the travelling parent’s time with the children, unless agreed otherwise via the nominated Talking Parents App.
20.The travelling parent not be permitted to travel with the children to a country which is listed as high risk or on the recommended avoidance list as published by the Department of Foreign Affairs and Trade.
21.The names of the children be forthwith removed from the Airport Watch List.
22.The respondent and applicant forthwith enrol, attend at and complete family therapeutic counselling with the children as required at E Service or F Service and comply with every respect of the directions made by the nominated Counsellor.
23.The Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Barrett & Barrett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
Mr Barrett and Ms Barrett have two children together, X, who is about five and a half at the moment, and Y, who will turn four years of age. Presently, they live with their mother and they spend time with their father each alternate weekend from early on a Saturday morning until Sunday afternoon. Those arrangements are in accordance with some interim orders that I made on 28 March this year when the matter was listed for trial before me but did not proceed.
In these proceedings, Mr Barrett, the applicant, seeks an order that he and Ms Barrett have equal shared parental responsibility for decisions concerning the major long-term issues for the children. He seeks an order that the children live with him and spend alternate weekends with Ms Barrett in a way that essentially mirrors the present operative orders. There are some other orders that he seeks about school holidays and other special occasion time. The particulars of his orders are set out in his amended initiating application that was filed on 22 July this year.
Ms Barrett seeks orders that she have sole parental responsibility concerning the major long-term issues for the children. She seeks orders that continue the current arrangements that were established by the 28 March interim orders in her case outline, but at the conclusion of the proceedings today, she indicated her assent to the orders that the independent children's lawyer has handed up in the course of submissions.
The independent children's lawyer in this case recommends orders that provide for the children to remain living with Ms Barrett, for them to have alternate weekend with their father and school holiday time. The orders that are now proposed by the independent children's lawyer –which are not too dissimilar to those set out in the amended case outline filed by her on 23 March, 2022 – are in the document which I will mark as exhibit A for identification so that it does not get lost.
Apart from those proposals and depending upon the attitude that I take to the making of an order for equal shared parental responsibility or some other order for parental responsibility, it might be that I also have to consider the arrangements set out in ss 65DAA(1) and 65DAA(2) of the Family Law Act 1975 (Cth).
The making of parenting orders is an exercise in deriving from the evidence before the Court considered against the framework established by s 60CC of the Family Law Act, an order that is in the best interests of the children or child the subject of the litigation. Section 60CC of the Family Law Act sets out a range of matters to be taken into account when determining what might be or what might meet a child’s best interests.
The question of what is in a child’s best interests then provides the solution to the two main areas of decision-making for children under the Family Law Act, namely, parental responsibility and where children should live and with whom they should spend time and communicate.
As to the first matter of parental responsibility, the Act provides in s 61DA(1) that the Court should presume that it is in the best interests of children for their parents to have equal shared parental responsibility for them. The phrase “equal shared parental responsibility” is not defined in the Family Law Act in terms. It does not appear in any definitional section but rather is defined by its consequences. Those consequences are set out in ss 65DAA and 65DAC. Section 65DAA deals with the consequences for the Court if there is an order for equal shared parental responsibility. I will come to them later.
Section 65DAC sets out the consequences for parents if the Court makes an order for equal shared parental responsibility. The consequences for parents are simple. If such an order is made, then in respect of decisions concerning major long-term issues for their children as that phrase is defined in the Act, parents must make a genuine attempt to reach agreement about those matters and to decide those matters jointly: ss 65DAC(2) and (3) of the Act.
The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence between the parties to the proceedings or towards the child or children who are the subject of the proceedings. That is my paraphrase. That is not intended to be a verbatim recitation of the Act. But that is the effect of it. Here, I am satisfied that there has been family violence between these parties. Whatever occurred on 8 July when these parties separated, that is, 8 July, 2018 there was violence between them. The mother says that the father was physically violent towards her. He denies that. But on either view of it, there was violence as that term is defined in s 4AB of the Family Law Act.
To the extent that it is necessary to make any findings about what occurred on the date of separation, I prefer the evidence of the mother. I prefer her evidence because essentially there was little disagreement with what she said from the father. There was disagreement about whether he attempted to kick her on the first occasion and whether he, in fact, kicked her on the second, but everything else around that interaction between the parents on that day was by and large accepted by him. But more than that, the mother’s affidavit material – see her trial affidavit filed for the purposes of the March trial – sets out with far more particularity the context in which that event occurred. And that is not just the moments around that event, but rather the days that led up to it. Her evidence canvasses in detail and with considerable particularity what occurred from the Friday afternoon immediately preceding the Monday of separation.
When those matters were put to the father he, by and large, accepted what was put to him, although there were disputes around the edges – for example, he did not accept that he swore at the mother or used profanities, preferring to couch what he says he said in less profane terms – that difference in detail does not particularly matter. The broad picture is as the mother painted it. I am comfortably satisfied that on 8 July there was family violence between these parties.
Section 61DA(2) does not speak in degrees. It does not talk about the nature of extent of the family violence required to satisfy a court that the presumption of equal shared parental responsibility is not engaged. It requires nothing more than for the Court to be satisfied that there has been family violence. I am so satisfied. The presumption does not apply.
That does not mean, of course, that the Court cannot make an order for equal shared parental responsibility if it otherwise thinks it is in the best interests of the child or children concerned to do so. But to come to a conclusion that it is in a child’s best interests to make an order for equal shared parental responsibility when the presumption does not apply requires a consideration of the s 60CC matters. It is to those matters that I now turn.
There can be no dispute that these children will benefit from a meaningful relationship with each of their parents. As I have been given cause to remark earlier today, these parents are both intelligent, articulate and accomplished people. The father is a health professional by profession. The mother is a health professional. These are not professions that come easily but only with significant training and dedication. They require intelligence. These parents have those qualities. Their children will benefit from being exposed to them, each of them, and they will benefit from having a meaningful relationship with them. There can be no dispute otherwise, in my view.
For a long time in these proceedings it seemed to be the father’s case that the children needed protection from physical harm or psychological harm by reason of being exposed to neglect in the mother’s care. He told Ms G, a consultant social worker as much when she interviewed him in September last year for the purposes of a report pursuant to s 62G(2) of the Act. He told her that his main concerns were around the neglect of the children and X in particular. For example, he pointed to X being constipated by reason of being fed food that was low in fibre. However, at the same time that he saw Ms G he was also compiling or had compiled a dossier of bruising to the children from which he concluded the children were being subjected to “non-accidental injury” either at the hands of or in the care of the mother.
He told Ms G about that as well and, as so eloquently put by counsel for the mother in the course of his cross-examination, attempted to have Ms G fire the bullets that he thought were represented by the dossier that he had put together. The gun refused to fire – the evidence was just as consistent with accidental injury as it was with anything else. His evidence about that and his conduct smacks of construction and disingenuity. Although he claimed to have support from others about his conclusions about these injuries – in particular from a Dr H, a faciomaxillary surgeon – there was no evidence from them at all. I conclude that he did not call Dr H or any others who had given opinions to give evidence because what they might have said might not have provided any assistance to the father’s case.
Be all of that as it may, by the time the father was cross-examined, he had disavowed any assertion that the children were at an unacceptable risk of harm, physical or psychological, in the mother’s care by reason of them being exposed to abuse, neglect or family violence at her hands. I therefore pass from s 60CC(2)(b).
Given the children’s ages in this case, even if there was evidence that they had expressed wishes, I would not place any weight on them.
Ms G’s evidence is clear. These children have their primary attachment with their mother and they are securely attached to her. That is hardly surprising because even on the father’s evidence, when the parties were together she was primarily responsible for their care. That is not to say he did not participate in their care. He gives evidence that he did. See paragraphs 30, 31 and 32 of the affidavit referred to by Mr Walsh in the course of his submissions. And there is nothing that carries any probative weight from the mother’s side that suggests that what the father says is not right. She does complain about what she says was his level of interest in the children, but I suspect that her complaints are the result of hindsight and recasting in light of this dispute, rather than anything else.
Ms G’s evidence is also that the father has a good relationship with the children and the children with him. Her report talks about the delight that each of them takes in their relationships with each other.
I am comfortably satisfied that both of these children have good, secure and positive relationships with both of their parents. Their mother is their primary attachment figure, but that is not to diminish the nature or the importance of the relationship that they have with their father. It was not suggested to Ms G that the children do not have a meaningful relationship with their father and having regard to the terms of her report, one can quickly conclude that her view is that they do: see paragraph 116 of her report in particular. The purport of paragraph 116 when read together with paragraphs 115 and 117 is that the children have a worthwhile and meaningful relationship with their father as the arrangements presently stand, and although Ms G might ordinarily recommend an increase in the children’s time, there were reasons in this particular case as to why she did not. I will come to those shortly.
It is also, I think, uncontroversial that these children have good relationships with their paternal grandparents and with others on the paternal side of their family. I am also satisfied, having regard to the mother’s evidence, that they good relationships with her parents. They live in Country D, and so necessarily, I think, the children’s relationships with those grandparents are different to the relationships they have with their paternal grandparent. But again, that is not to diminish the significance of those relationships.
I do not think there can be any complaint in this case that either parent has not taken up every opportunity available to them to spend time with their children. Whilst the mother made some veiled criticism of the father because he absented himself for a period of time and was not available to spend time with the children, I do not think anything at all turns on that. There are moments from time to time when parents need a break.
The question of decision-making and the opportunities the parties have taken to participate in that is not something that is seriously in dispute in this case. The mother has since separation made all of the decisions for the children by default, it seems, and there is nothing wrong with that. Ideally, having regard to the best interests of these children, she might have made some of those decisions in consultation with the father, but having regard to the conflict that existed between them from time to time and continues to exist, it is not surprising to hear that those decisions were not made jointly. I will return to the question of decision-making soon.
Counsel for the mother submitted that the father had not financially supported the children and the mother to the extent that he could have done. I do not accept those submissions to the extent that they argue a failure on his part to support the children. I accept that he has been recalcitrate in paying some of the costs orders that he has accrued in these proceedings and elsewhere, but that probably speaks to a different issue and questions of financial control rather than anything else. Here, I am satisfied that he has met his child support obligations, although for reasons that not even the mother understands, from time to time, the Child Support Registrar considers that he has fallen into arrears. I must confess that the complexity of the child support arrangements and the application of the administrative formula is something akin to voodoo. It is perhaps unsurprising that there is lack of understanding on everyone’s part as to how arrears have accrued when the father has properly met his obligations.
One aspect of the evidence that is completely absent is evidence that bears upon the effect of the father’s proposals on the children and their relationships with each of the parents. That is something that ordinarily one might have thought that an expert such as Ms G would talk about. It is apparent from the terms of her report that Ms G was aware that the father was proposing that the children should live with him and yet nowhere in her report is there any consideration of the effect such order might have on the children’s relationships with him and with the mother. Nonetheless, I accept the submissions made by counsel for the mother that really that is because it is implicit in Ms G’s report that the father’s proposal has no merit at all. It is difficult to see what benefit there would be for these children if they were to live in his care rather than the parent with whom they have their primary attachment.
Without any evidence about what the nature or effect of a change in the present arrangements would be on the quality and extent of the children’s’ relationships as required by s 60CC(3)(d), I am left to draw inferences. The inference I draw from Ms G’s report is just as I put, that is, that such a proposal lacks merit.
It was also submitted that if there was a change in the current arrangements, it would provide for these children to have a better opportunity of having a meaningful relationship with their father. I reject that submission. I reject that submission because, first, as I have already found, they have a meaningful relationship with him. Would they have a better relationship with him if they lived in his care? Well, the evidence just does not answer that question. If one was to equate length of time in the care of a parent with quality of relationship, then maybe the answer might be yes, but that is overly simplistic because the length of time that a child is in the care of a particular parent does not necessarily translate into an improvement in the nature or quality of the relationship that that child has with the parent. That is why experts like social workers are often asked to comment about these things.
So there is a complete absence of evidence that supports the proposition that the nature of the relationship between the children and the father would change and change for the better if the orders he proposed were made. If the orders that he proposed were made, there would be a change arguably in the relationship between the children and their mother. Whether that would be a negative or a positive is not answered by the evidence, but I would venture to say that, in all likelihood, it would be a negative, given that she is the children’s primary attachment figure, and given their ages, that is something of importance. So the question of the effect of a change in the children’s arrangements from what they are now and whether that would bring to the children any benefit does not assist the father’s case because I have concluded that it would bring them no benefit that I can identify in the evidence.
There is also a question about the capacity of each of these parents. I have no doubt that they each have the capacity to meet the physical needs of these children. They are no doubt able to provide a roof over their heads, food in their stomachs and clothes on their back. They would be able to provide, both of them, for the children’s educational needs. The mother has been attending to those matters until now.
While I expect that ultimately the father would meet those needs of the children, just how that might be achieved in the father’s household is not answered by the evidence. As the discussion I had with counsel for the father reveals, I am concerned about the complete lack of evidence from him about how he would manage his occupation and the training that he gave evidence about with his obligations to care for two young children. It is simply not enough to say that he would have the support of his parents because I do not have any evidence from them. I can assume that they are willing. Their ability, however, is another thing and their own capacities to meet the care of two very small children, who on all of the evidence are very active, remains unanswered. So the father’s ability to meet the needs of the children and manage his own career is untested.
The ability of each of these parents to meet the children’s emotional needs is comprised. I need to explain that by reference to two things. First, it is not compromised in the sense that each of these parents truly believes, in my view, that the children’s relationship with the other parent is important to the children. Were it otherwise, the children would not enjoy the relationships that they now have with their father. For whatever might be said about the actions of the parties and for whatever might be said about the way in which the mother has managed the children’s time with the father, the fact is, as Mr Taylor for the mother raised with Ms G, she has given these children psychological permission to have a relationship with their father and they have it.
The area of impairment comes when one considers the parties’ capacity to behave like reasonable people, to behave like reasonable parents and to put to one side their interpersonal conflict. Their conflict impacts their day-to-day dealings with each other and even if it has not manifested itself yet, the conflict will impact upon their children’s well-being. The warnings given by Ms G in her family report are clear: the conflict between these parents will manifest themselves in the children if things do not change. Sadly, there is no sign in any of the evidence that I have seen that things will change. The parties have not availed themselves of any professional assistance to help them overcome the interpersonal difficulties so as to allow them to communicate or, as Mr Walsh said in his submissions, to co-parent.
But all is not lost. These children are still young. And it may be that this process is a cathartic experience which brings these parents to the realisation that there are things that they can do which will allow their children to enjoy their childhood rather than to be anxious and worried about what it is that each of their parents are conniving at next. In that regard, the attitude of each of the parents demonstrated towards each other and to their responsibilities as psychological parents of these children is revealed in the evidence to be a poor one. Both spoke about their time. Both spoke about what he got or what she got or what he did not get or what she did not get in terms of time with the children. This case is not about any of those things.
There are no doubt plenty of matters about which these parents feel aggrieved, but this is not about them and as Mr Baston pointed out in his submissions, the way in which the trial was conducted, one might have thought that this case was all about the parents and their petty squabbles with each other. But it is not. These children are entitled, having regard to s 60B of the Family Law Act, to a relationship with both of their parents. They are entitled to a relationship with everybody who is important to them. They are entitled to be parented by both of their parents. And they are entitled to be protected from unacceptable risks of harm, not all risks, but just unacceptable risks. They are entitled to have their parents discharge their responsibilities and obligations towards them. So in this particular case, the focus of the parties on themselves will deliver these children no benefit. But whether I choose the father’s proposal or the proposal put up by the independent children's lawyer and the mother or something else, it will not be informed by the parties’ attitudes one towards the other.
The question of violence is raised in this case. There are some particular examples focussed on the episode of separation and the days leading to it. There are many other more general expressions of violence, abuse and the like. I pay that evidence no attention. Generalisations are of no particular use and what one person might describe as abuse or violence might be different to what others describe it as. Whether or not the particular acts complained of fit the description or definition of violence in one or other particular statute, Commonwealth or state, depends upon the evidence. The use of labels by parties is particularly unhelpful.
There are cross-undertakings in this case by each party given to the other to be of good behaviour. Those cross-undertakings were given for the purposes of settling or resolving some state-based domestic violence proceedings between them. I take that into account. There are binding undertakings by which each of these parties undertake to be of good behaviour toward each other.
The evidence shows that these parties can agree when they want to do so. They have done it in the past. They have agreed about the arrangements for the children. Where one of them has had a difficulty with the orders that were made back in 2019, those difficulties have been raised and ultimately there have been accommodations reached between the parties to deal with those difficulties. The mother’s evidence speaks to that. There have been other agreements between them from time to time when it suits them.
There is a balance to be struck. The balance is between, on the one hand the entitlement of these children to have the input from both of their parents into long-term decision-making for them and on the other protecting them from ongoing conflict between their parents that might be facilitated by imposing upon them a regime of joint decision-making. It is a balance which is not easily struck.
Despite the thoughtful and persuasive submissions made for the independent children’s lawyer and for the mother, I have concluded that there ought to be an order for equal shared parental responsibility. I have concluded that because, first, so far, even in the absence of an order for sole parental responsibility, decisions have been able to be made for these children. The mother and the independent children’s lawyer argue for an order for sole parental responsibility, but the evidence shows that it is not necessary. In the absence of any order for parental responsibility, the provisions of s 61C of the Act apply.
The mother has the capacity to make decisions for these children, as does the father. She has made the decisions. There is no real suggestion that he has sought to interfere with those decisions in any meaningful way. And so an order for sole parental responsibility, the vesting of that responsibility to make those decisions in one parent rather than the other, does not appear to be supported by the evidence. Given that there has been no requirement for these parties to make those decisions jointly until now and yet the conflict between them has continued, tends to suggest that the imposition of an obligation to make those decisions jointly will not increase the conflict.
And that brings me to the second point. Will it really increase the conflict between these parties if they are required to make decisions for their children jointly? I doubt it. If these parties are intent on dispute, they will get themselves into dispute. That is my impression of each of them. They are both strong personalities. It might be that being required to make decisions jointly will focus their attention upon what is truly important, that is, the welfare of their children rather than the squabbles between them.
I have concluded that it is in the best interests of these children for there to be an order for equal shared parental responsibility. I will make that order.
In making such an order, I am obliged to consider the matters set out in ss 65DAA(1) and 65DAA(2) of the Family Law Act. Section 65DAA(1) provides for the Court to consider making an order for equal time, that is, the children spend equal time between each parent’s household, and the Court should consider making that order unless it is satisfied that such an order is not practicable or not otherwise in the best interests of these children. There is no question of impracticability concerned here. There is, I think, a basis for concluding that these parties live within the greater confines of the Brisbane region and could probably accommodate an equal time order.
The real question is whether an equal time order is in the best interests of these children. I do not think it is. Questions of communication aside, questions of joint decision-making aside, orders for equal time require a level of cooperation between parents that is simply absent here. There is no basis in the evidence before me to conclude that these parents have the type of co-parenting relationship that would allow them to cooperatively parent their children on an equal time basis and an equal time order would, indeed, lead to further conflict between these parties, something which would not be in the best interests of these children. Asking them to participate in joint decision making about major long-term issues for the children is one thing, but asking them to co-operate to make an equal time arrangement work is quite another.
The next question that arises is whether an order under s 65DAA(2) ought to be made. That is an order for substantial or significant time. That phrase is defined in s 65DAA(3) of the Act. No questions of impracticability arise again. The orders proposed by the independent children's lawyer are, I think, by the barest of margins orders that meet the description of substantial and significant time because they include time which is during the week, a Friday afternoon, and they permit the father to collect the children from school and to be involved in schooling activities and the like. Nonetheless, I have not confined my consideration to orders simply in the terms of those suggested by the independent children's lawyer but which might otherwise meet the description of substantial and significant time.
The real issue is whether there ought to be more time than that set out in the orders promulgated by the independent children's lawyer. I have already indicated, in my view, it is not an appropriate case for there to be a change of residence. Having regard and paying deference to Ms G’s opinion, an opinion which was not challenged in cross-examination, I have concluded that the orders that the independent children's lawyer proposes, save for the order for equal shared parental responsibility and some other minor amendments, are appropriate and are in the best interests of these children, and I will make those orders.
So to be clear, I will not make order (2), but rather an order for equal shared parental responsibility in the usual terms. Dealing with order (3)(d), that provides for time between the children and the father by telephone/video each Tuesday and Thursday and Sunday in the off week to that time set out in (3)(a). Some greater specificity is required for this order. The evidence demonstrates that the order for video time has caused grief in the past. It should not cause grief in the future. The time that happens on Tuesdays and Thursdays will be video time. The video time will occur using the application WhatsApp. The time that will occur on Sunday will be by telephone. So order (3)(e) should read “by video each Tuesday and Thursday using the application WhatsApp and by telephone on Sundays in the off week to that time set out in paragraph (3)(a) hereof”. The balance of the order seems appropriate, although it is necessary to add a final sentence to paragraph (3)(e) in these terms, “The father must not ask either child during any video call to move the device upon which the call is taking place from the place where it is at the instigation of the call”. The purpose of that addendum is to address the mother’s evidence that the father would ask the child, X, to walk around the house with the computer.
There is dispute between the parties about the changeover place, irrespective of the live with arrangements. The changeovers should continue to take place at the Suburb B Police Station. I accept immediately that in the ordinary scheme of things this is an undesirable approach. Children should not be passed between their parents at a police station. But I think in this case it is appropriate because it has worked and despite the submissions made by counsel for the father, there is really no evidence that suggests that it does not. It is appropriate, and it will remain. The parents are free to agree to an alternative location. I expect they will do so in the fullness of time.
The question of overseas travel has vexed the parties and I think the submissions made by counsel for the independent children's lawyer really identify the issue here. The father’s desire to restrain the children’s travel overseas has no basis in the evidence whatsoever. His reluctance to agree to an order permitting travel is really just demonstrative of the lack of trust that there is between these parties. The mother is from Country D. Her parents and her family live there. These children have Country D heritage. They are entitled to visit there.
The suggestion that the mother might stay in Country D and not return to Australia cannot be discounted. One can never say never. But the evidence before me suggests that that is so unlikely as to mean that a restraint on her travelling there with the children is entirely unnecessary. She lives here. She is an Australian citizen and has been here for a number of years now. She was an Australian citizen, according to her evidence, before she took up with the father. The children are Australian citizens. She has work here. She is qualified here and is employed. She is not qualified to work in her profession in Country D without further examination or registration. Even more remote is the possibility that she might whisk the children away to a non-Hague Convention country. The suggestion that she might do that is, in my view, fanciful.
There is no reason to not allow these children the opportunity to experience their cultural heritage in Country D. The orders that I made for the provision of Country D passports in March of this year, orders (5) and (6) of those orders, should continue and will be incorporated into these orders. There is no good reason why these children should not have passports that represent their citizenship or nationality.
For those reasons, the orders will be as I have pronounced.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 28 July 2022
0
0
0