Barry and Gaines
[2014] FCCA 1815
•28 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARRY & GAINES | [2014] FCCA 1815 |
| Catchwords: FAMILY LAW – Parenting – mother’s concerns regarding the father’s mental state and anger management – mother’s ability to encourage the children’s relationship with the father – proposal to change the children’s primary school. |
| Legislation: Family Law Act 1975 |
| Applicant: | MR BARRY |
| Respondent: | MS GAINES |
| File Number: | MLC 11421 of 2011 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 31 July 2014 & 1 August 2014 |
| Date of Last Submission: | 1 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 28 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms G Williams |
| Solicitors for the Applicant: | Coote Family Lawyers |
| Solicitors for the Respondent: | Unrepresented |
ORDERS
All extant orders in respect of the children [X] born [in] 2006 and [Y] born [in] 2007 be discharged.
That the father and the mother have equal shared parental responsibility for [X] and [Y].
That [X] and [Y] live with the father as follows:
(a)fortnightly from the conclusion of school on Thursday until the commencement of school on the following Wednesday;
(b)for one week in each Victorian gazetted term school holiday at times to be agreed between the parties and failing agreement then from the conclusion of school on the first Friday of the school holidays until 4.00 pm on the second Friday and for each alternate week during the summer school holidays in each year with the changeovers to occur on Fridays at 4.00pm or otherwise as agreed between the parties in writing;
(c)for Christian Easter from 4.00 pm on the Thursday prior to Good Friday until 9.00 am on Easter Monday provided that should Christian Easter and Greek Easter coincide then the children are to spend one half of the Easter period with each parent provided that, in any event, when the Greek Easter does not coincide with Christian Easter then the father’s time with the children be suspended during such Greek Easter period from the Thursday after school until 9.00am on the following Monday.
(d)in any event, at Christmas in 2014 and in each alternate year thereafter on Christmas Eve at 9.00 am until 3.00 pm Christmas day and in 2015 and in each alternate year thereafter from 3.00 pm on Christmas Day until 4.00 pm on 27 December provided that the father’s time be suspended and the mother spend time with the children at Christmas 2014 from 3.00 pm on Christmas Day until 4.00 pm on 27 December and in each alternate year thereafter and in 2015 from 9.00 am Christmas Eve until 3.00 pm Christmas Day and in each alternate year thereafter;
(e)that time for the children with the father pursuant to order 3 (a) be suspended during time with pursuant to orders 3 (b);
(f)in any event each Father’s Day from 9.00 am Sunday until the commencement of school on the Monday provided that the children spend each Mother’s Day weekend with the mother from 9.00 a.m. on the Sunday until the commencement of school on the Monday ;
That [X] and [Y] live with the mother at all other times.
Each of the parties be and is hereby restrained by themselves or their agents from discussing any aspect of these orders or their effect with or in the presence of the children or either of them or from providing the children or either of them with any documents or reports filed in these proceedings.
Each of the parties be and is hereby restrained, by themselves or their agents, from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence of the children or either of them.
Each parent shall forthwith authorise the children’s school to provide to the other parent copies of all reports, assessments, newsletters, notices and correspondence normally provided to parents at their respective expense and each party shall be at liberty to attend all school events, functions and performances and sporting events and competitions to which parents are normally invited.
Each of the parents facilitate the children’s attendance at [activities omitted] and that the children attend their Greek school lessons from the mother’s care on a Wednesday evening unless otherwise agreed between the parties in writing.
Each of the parents be otherwise restrained from enrolling the children in any other extra-curricular activity except with the express written consent of the other parent.
All changeovers for the children between their parents on non-school days will occur at the front of Woolworths supermarket [address omitted] or otherwise as agreed between the parties in writing.
IT IS NOTED that publication of this judgment under the pseudonym Barry & Gaines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11421 of 2011
| MR BARRY |
Applicant
And
| MS GAINES |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the parties’ two children, [X], born [in] 2006 (aged seven years) and [Y], born [in] 2007 (aged six years).
The major issues between the parties are narrow and discrete. The father proposes that the children live with him on six days per fortnight in a block period. The mother’s initial position was that [X] and [Y] spend four days/nights with the father each fortnight in two blocks, each of two days. During the course of the trial she moved to agreeing to the four-day proposal being in a block of three days over a weekend and one night in the off-week. In her final submissions the mother offered that the children spend five nights with the father each fortnight but conditional upon the children going to her preferred school.
Secondly, there is an issue where [X] and [Y] attend primary school. The mother has a preference for a school at [E] near where she lives. The father proposes that the boys remain at the [A] Primary School in [R] which is where they commenced their schooling and where they attended an associated Greek childcare centre/pre-school.
At the commencement of the trial there were other collateral issues and most of which have now been resolved with appropriate concessions by the parties, including the attendance of the boys at Greek school on one evening per week and the issue of their extracurricular activities.
On 11 October 2013 Judge Riley made the following interim orders by consent:
a)that [X] and [Y] spend time with the father as follows:
i)Each second weekend from the conclusion of school Friday until the commencement of school Monday;
ii)each alternate Wednesday overnight;
iii)for half of each school holidays;
iv)on special occasions.
b)a restraint on either party enrolling the children in any further extracurricular activities without the consent of the other party;
c)for the father facilitate the children’s attendance at Greek school and [activity omitted];
d)for the mother to attend counselling.
Background
The mother is 40 years old and the father is 39 years. The parties commenced a relationship in 2004 and married on [omitted] 2005. They separated on 6 February 2011.
The father is now in a relationship with Ms G. She is a [occupation omitted] and their family unit includes her daughters [name omitted] (aged 15 years) and [name omitted] (aged 13 years). They live in a four-bedroom home in [suburb omitted].
The father is employed as a [omitted] and his affidavit material says that he has some flexibility in his work hours.
The mother lives at [E] in suburban Melbourne. She is employed in an [omitted].
The children attend the [A] Primary School in [R]. The mother says that this school is twenty one kilometres from her home. She currently uses a combination of child carers and her parents to assist in before and after school care for [X] and [Y].
There is no evidence that the mother has re-partnered.
Significantly, in the weeks after separation, the mother obtained an ex parte intervention order, with the assistance of Victoria Police, with the father as respondent. The children were initially named on the application. The mother insisted on a supervisor being present at time between the children and the father. He did not agree and/or the parents could not agree on who should supervise. This resulted in there being no direct contact between the boys and the father for some twelve months.
The mother’s affidavit material and her evidence in court suggests that she maintains concerns for the father’s anger management and his capacity to care for the children. It was brought to her attention, however, that such alleged concerns are incongruous with the orders that she seeks. She acknowledged from the witness box that this was so, whilst not retreating from those alleged concerns and attributing some blame to previous legal advisors.
The mother represents herself in these proceedings. It was clear that she was very well prepared. She had with her the relevant parts of the Family Law Act. The procedure for a trial was explained to the mother with an offer for her to seek any assistance in respect of procedure at any time. She conducted her cross-examination succinctly and to the relevant issues.
The father was represented by counsel at the trial and by solicitors during the course of the proceedings.
Mother’s case
The mother acknowledges that the children are progressing well at their current primary school. She says, however, that the travel and time required at after school care is tiring on the children. She also notes that the children are unable to engage in spontaneous or regular after school play with their peers due to living in a different district. She says that the children are intelligent, resilient and adaptable and does not expect any negative ramifications of a change of school. The mother says that she school is twenty one kilometres from her home, but that at peak hours the trip can take up to an hour.
The mother says that the current regime of time for the children with their father is working well. She interprets the Family Reporter’s recommendations as supporting an arrangement of ten nights per fortnight with her and four nights with the father. She continues to argue that the father has ongoing issues of anger and/or mental health.
The Father’s Case
The father says that there is no cogent reason for the children to move schools. He notes that it was the mother who unilaterally enrolled these boys in the [omitted] Child Care and [A] Primary School and during a period when he was denied time with the children. He says that the children are progressing well, both academically and socially, at their schools. I have before me evidence of their school reports which would appear to corroborate the father’s evidence. He then argues that the children have established peer group relationships at their school. He says that the children’s extra-curricular activities (on the mother’s own case) would occupy both days of their weekends and that they have peer relationships through those activities.
The father says that the mother has historically attempted to thwart or limit his time with the children. He says that she has made unfounded allegations aimed at achieving this end. He says he was denied all time with the children for approximately twelve months. He says that the mother repeats her allegations in her affidavit although they seem at odds with her proposals of, firstly, for the children to spend unconditional time with the father for four nights per fortnight and, in her final submission, that he spend a block of five nights per fortnight with them. His argument is simply that his relationship and time with the children should be maximised as the evidence is that the mother would not otherwise encourage the children’s relationship with him.
The Evidence
The father relied on his trial affidavit of 23 July 2014. He adduced evidence from his partner, Ms G, whose affidavit was also filed 23 July 2014. Ms G was cross-examined. The following documents were tendered in evidence on his behalf:
i)Home access reports;
ii)Ms B family report from previous proceedings;
iii)Children’s [A] Primary School school reports;
iv)Statement from the children’s child carers.
The mother relied on two trial affidavits filed 21 July and 29 July 2014. She was also cross-examined as to her other earlier affidavit material.
The Court had the benefit of a family report of Ms O, family consultant, dated 1 July 2014. Ms O had earlier prepared two memoranda following interviews with the parties pursuant to section 11F of the Family Law Act 1975 (“the Act”). Those reports are dated 1 October and 11 October 2013. Ms O was cross-examined.
Relevant Law
In determining parenting orders for [X] and [Y], the court’s paramount consideration is the best interests of the children. [1] Those best interests are arrived at by referencing the parties’ proposals and the probative evidence to the mandatory considerations set out in section 60CC(2) and (3) of the Act.
[1] Section 60CA of the Act
The framework for this consideration is provided by section 60B of the Act which provides the objects and principles of the legislation. Section 60B states:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychologist harm from being subjected to, or exposed to, abuse, neglect of family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act provides a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. That presumption does not apply when the court is satisfied that there has been family violence within the broad definition in the Act. Alternatively, the presumption may be rebutted if contrary to the children’s best interests. Despite the allegations set out in the mother’s affidavit material and her evidence in court, she made no submissions either for rebuttal of the presumption or that it be contrary to the children’s best interests. Nevertheless, this remains for my determination after consideration of the evidence.
The father seeks an order for equal shared parental responsibility.
If the presumption applies and is not rebutted then the court must enter into a mandatory course of consideration. Firstly, the court must consider whether the children spending equal time between their parents is both in their best interests and reasonably practicable. If the answer to either of those questions is in the negative then the court moves to consider whether the children spending “substantial and significant time” with each parent is both in their best interests and reasonably practicable.
The orders that each parent seeks are consistent with the definition of “substantial and significant time” which involves the children spending both weekend and weekdays with each parent and enjoying activities together normally enjoyed by children and parents.
The Family Report
Ms O in her report made a recommendation for shared parental responsibility and that the children “spend time with Mr Barry for a minimum of four nights per fortnight”.
Ms O, of course, was unaware of the mother’s latest proposal being that the children spend five nights per fortnight with the father given that this was not announced until her final address. Ms O did, however, agree that generally parents need the same skills, facilities and commitment to caring for children on four nights per fortnight as they would for five, six or even seven nights. I understood Ms O not to be actively opposed to the father’s proposal that the children live in a regime of eight nights per fortnight with the mother and six nights with him but she was emphasising the need for the children to have a routine and to be able to pursue their extra-curricular interests.
Ms O observed a positive and warm relationship for the children with both parents echoing the observations of Ms B in her report from April 2012. Neither reporter observed any reluctance or fear in the children and did not suggest that the father posed a risk to [X] and [Y] as suggested by the mother in her evidence. At paragraph 32 of her report, Ms O observes:
The observation sessions between the children and their parents were unremarkable as might be expected for children who spend significant time with both parents. Within the reception area, [X] and [Y] were observed moving freely between their parents while Mr Barry and Ms Gaines appeared to maintain a distance between each other and were not observed interacting in any way. The children enjoyed their time [sic] the play room and moved easily through the multiple transitions between their parents throughout the day. Likewise, the behaviour and emotional state of the children did not alter within the presence of each of their parents.
And at paragraph 40, Ms O concludes:
While historical issues of verbal family violence and mental health have been raised [sic] explored further in the previous Family Report dated 4 April 2012, this assessment did not raise any concerns for the parents or the children in relation to risk or safety.
Ms O’s previous reports from October 2013 similarly do not raise concerns in respect of a risk for the children or any reluctance to spend time with their father. To the contrary, [X] is noted as: (Ms O memo to the Court 1 October 2013):
[X] did not express any concerns regarding his time within his father’s care. He identified his greatest worry was for his mother, and how she would cope with him spending time with his father. Overall, it appears as if [X] is emotionally burdened by his mother’s emotional issues.
Ms O offers that previous assessments by Mr P and Ms B likewise do not conclude either risk to the children or reluctance in them spending time with the father.
Section 60CC factors
Section 60CC(2)(1) – the benefit to the children in having a meaningful relation with each of their parents.
Despite the hiatus for the children in spending time with their father from early 2011 until well into 2012, the evidence satisfies me that they have a successful, beneficial and meaningful relationship with their father as well as with their mother.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC (2A) – in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The mother makes consistent and serious allegations in respect of the father’s conduct. She informs the family reporters that she herself was subject to family violence and cites an example from 2009 when
Mr Barry allegedly punched a hole in a door. Her affidavits allude to other aggressive behaviour and comments alleged and attributed to
Mr Barry. Some of these are serious and threatening in their tone and content. For example, in the mother’s affidavit of 29 July 2014, at paragraph 21, she deposes:
...I agree that the relationship between the Husband and I eroded, but this was due to his violent tendencies and aggressive nature towards the children and I.
(a) On 26 December 2010, the husband was sitting with the children around the coffee table. I was in the same room, on the phone to a friend. [Y] said to his father, “Daddy, I want some yoghurt”. To my total astonishment, the husband replied, “[Y], I want you to die”. I could not believe what I had heard. I asked the husband why he said that. He tried to cover it up by saying he had said, “I want to die”. When I insisted that he had said something else, he became aggressive and dismissive.
In the earlier family report with Ms B, Ms Gaines complains of family violence in the form of verbal aggression, unwanted telephone calls, harassment, controlling behaviour and threats of self-harm. She obtained an interim ex parte intervention order soon after separation. However, she was apparently unsuccessful in obtaining a final order.
It seems clear that the lack of time between the children and their father following separation was due to the mother’s subjective views as to the father’s alleged propensity of violence compounded by her alleged concerns as to his mental health. Whilst these are serious concerns and considerations for the court, they appear incongruent with the mother’s current application where she proposes a block of five nights for the children with their father; such time to be unconditional. When challenged in cross-examination, the mother was unable to rationalise these two positions. She did, however, maintain that her concerns were legitimate.
On reflection, however, I cannot be satisfied that the mother’s assertions and allegations are made out. She is a confident and articulate woman, but unable to give an explanation as to why she should maintain such concerns yet propose a block period of time. The allegations are inconsistent with the observations of the children with their father and they have shown no hesitation or reluctance with him despite the lengthy period of there being no time together and despite the serious and personal nature of the mother’s allegations. These children appear to be socially and academically adjusted and the school reports disclose no personal difficulties. As such, there being no corroboration for the mother’s allegations, I can place little or no weight on them.
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
These children are just seven and six years of age. A court would not normally accord great weight to their views and preferences. It is significant, however, that they move between their parents easily and seem keen to pursue relationships with each parent. It is noteworthy that the older child expressed his keenness to have a relationship with his father in the interview with Ms O in October 2013 but was at the same time, able to articulate his concern as to how his mother would cope with him spending time with his father. This would seem to indicate a high degree of the maturity and insight in such a young child.
Section 60CC (3)(b) – the nature of the relationship of the children with each of their parents and any other person (including any grandparents or other relatives of the children).
The evidence is that these children have a comfortable and easy relationship with both their parents. Nevertheless, it is clear from that evidence and my observations of the mother in court, that she assumes a dominant parenting role and that this is perhaps consistent with her personality and demeanour generally. She is forthright in her views as to her children’s needs and certainly considers herself to be the “primary” parent for these two young boys.
My observations of the father was of a more passive personality but still of one who prioritises his children’s best interests. I am satisfied that both parents recognise their children’s needs and have been keen to contribute and be involved in their schooling and extracurricular activities. Again, in respect of the latter, the mother is more dominant, assertive and uncompromising. She shows a tendency to act unilaterally and to provide the father with a fait accompli. Nevertheless, Mr Barry generally appears accommodating of the mother’s requests, decisions and occasional demands in respect of the children’s activities.
Ms G’s unchallenged evidence is that she has a very good relationship with the boys and my observations of her evidence in the witness box gives some corroboration. The mother says that the maternal grandparents have had an ongoing involvement an excellent relationship with the children. Whilst this evidence was generally not challenged, it was unfortunate that I did not have the opportunity to hear or see the grandparents given the roles anticipated for them by the mother in caring for the children.
Section 60CC (3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in respect of the children and to spend time with the children and communicate with the children.
Section 60CC (3)(ca) – the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
I am satisfied that both parents have contributed financially to the needs of the children. I am satisfied on the evidence that the mother has at times made unilateral decisions in respect of [X] and [Y]. She enrolled them at childcare/school without reference to the father. I am satisfied that at times she has “confused” the children’s surnames by allowing them to be referred to by her surname as for instance on their [activity omitted] certificates. The mother’s denial of anything deliberate in this respect on her part does not sit easily with the discussion in the family report of Ms B from 2012 in relation to the mother’s desire to change the children’s surname to her own.
Whilst there is some substance to the mother’s allegations of family violence as for instance the admission to the first family reporter by
Mr Barry that he punched a hole in a wall during an argument, the mother’s absolute denial of time for the children with their father for some twelve months seems unjustified after testing of the evidence and her concerns might then have been better addressed by other protective methods such as injunctive orders.
Section 60CC (3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person (including grandparents) with whom they have been living.
The position of these parents in respect of the children’s time with the father is discrete in its differences. It is important, however, that the children be able to continue with their extracurricular interests whilst maintaining time with both parents. It seems from the course of the evidence that both of these objectives can easily be achieved with the children consistently attending their Greek school commitments on one night per week whilst in the care of the mother. Both parents can attend to the two other main activities being [omitted] which occur on weekends.
Section 60CC (3)(e) – the practical difficulty and expense of the children spending time with and communicating with the parents and whether that difficulty or expense will substantially affect the children’s right to maintain personal relationships and direct contact with both parents on a regular basis.
The mother’s argument in respect of a change of school for the children is firmly based on travel logistics together with a preference for her parents to care for the children before and after school rather than professional child carers or after-school care. Hence, she now puts a proposal whereby the children spend five nights per fortnight with their father but conditional upon them attending the [omitted] Primary School at [E]. The distance from the mother’s home to the children’s current school is twenty one kilometres. She says that travel can take up to one hour each way at peak times. She says that the children are tired by the experience.
The father, however, says that the school reports do not corroborate the mother’s evidence in this respect. They say that the children are academically and socially succeeding and that there is no evidence of any untoward effect from travel of twenty one kilometres each way. In any event, he says that his proposal will alleviate the mother of travel responsibilities on a number of days each fortnight. He says that he has flexibility in his employment to allow him to collect and deliver the children. He also has the assistance of Ms G.
Section 60CC(3)(f) – The capacity of each of the child’s parents and any other person (including any grandparent) or other relative of the children, to provide for the needs of the children, including emotional and intellectual needs.
I am satisfied that both parties can attend to the physical and financial needs of these children. I have some concerns as to the lack of the insight by the mother into some of the emotional needs of [X] and [Y]. I am satisfied that she has “interviewed” the children on occasions and she admits recording conversations with them. Her own evidence of those conversations suggests a number of inappropriate leading questions in respect of their time with their father. I am mindful that this mother is by nature very protective of her two children and I have little doubt that her intentions are admirable albeit somewhat naïve as to the potential effect on these young boys in their relationship with their father.
The mother’s behaviour following separation in frustrating and limiting the children’s time and involvement with their father similarly brings into question her insight as to the children’s needs. She has shown a propensity to send the father offensive and unnecessary text messages which demonstrate her assertive and empowered beliefs as to her dominant role in parenting the children.
This mother would be wise to develop a capacity for self-reflection and objectivity in recognising that the benefits for [X] and [Y] in enjoying a relationship with their father. In volunteering during her final address that she would like to have regular and set times for Skype contact for the children when they are with their father in order to attend to their ordinary and Greek homework similarly shows a tendency to underestimate, undervalue and undermine the children’s relationship with their father.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
These two young boys are indeed fortunate in that they can have the benefit of the culture of their mother’s Greek heritage. The father has generally supported and encouraged the children’s attendance at Greek school, with one notable exception when he did not organise their attendance at Greek school on a Friday evening when the parties themselves were mediating their difficulties. I am satisfied, however, that this was simply an aberration and that he is generally supportive of the children’s involvement in their Greek culture.
Section 60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander.
Not relevant.
Section 60CC(3)(i) – the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
I am satisfied on the evidence that the father presents as an insightful, objective and child focused parent. Ms Gaines is a proud and devoted parent to [X] and [Y]. She is, however, empowered and entitled in what she perceives to be her role as “primary parent”. Unfortunately, at the same time she shows a tendency to undermine the role of
Mr Barry with his children. She maintains her various concerns at to the children’s safety despite the weight of evidence to the contrary. She was unable to give any positive qualities of Mr Barry as a parent when asked in cross-examination.
There remains conflict between her proposals for time which have extended from four to five nights per fortnight by the end of her closing address, with her evidence adamant in maintaining that she fears for the safety of these children when with their father. The Court is left in a position where it cannot be confident that the mother has or will gain the requisite insight to respect and allow the father to parent in his own right.
Section 60CC(3)(j) and Section 60CC(3)(k) – any family violence involving the children or a member of the children’s family and any family violence or orders which apply
These matters have been dealt with above. In summary I cannot be satisfied that there are issues of family violence which impact on these children’s parenting and living arrangements. The mother has previously obtained an ex parte intervention order but the application was not successful in obtaining final orders.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Children’s orders can only be final in that any significant, substantial or material changes in the circumstances of the parents or the children can lead to further litigation. It is for these parents, however, to understand and respect that it is the function of these courts to receive the evidence, consider and attribute weight to it, and arrive at decisions which the court believes are, on balance, in the children’s best interests. That being done it is then for the parents to move forward, armed with those orders, to parent their children cooperatively and thereby hopefully avoid any further litigation.
Findings and Conclusions
I am able to find that [X] and [Y] have successful and meaningful relationships with both their parents. Equally, I am satisfied that, and given their ages, that they desire continuing and developing those relationships.
I am satisfied that the mother has historically not encouraged these boys’ interactions with their father. Her actions have undermined those relationships. She has acted to the children’s detriment in avoiding or minimalising the children’s contact with their father for a lengthy period of time. It is a sign of the strength of the children’s relationship with Mr Barry that it has been able to survive that hiatus in 2011 and 2012. I cannot be confident, given the contradictions mentioned above in the mother’s argument and her evidence, that she has achieved the requisite insight into becoming an objective and respectful co-parent.
Each of the parties advocate a relationship of “substantial and significant time” for the children with each parent. The mother’s final position, albeit conditional, is that the children spend five nights per fortnight with their father. He seeks six nights. There can be no objective difference in the skills or facilities required for each proposal. I have difficulty in understanding the mother’s “condition” that the children spend five nights per week with the father if her preferred school in [E] is ordered. No empirical basis for this position is immediately obvious to me.
Frankly, the mother was unable otherwise to assist in why I should make an order for the children to spend four of five nights a fortnight with him rather than six nights. To the contrary, there is a good reason why the children’s time with their father should be maximised. Firstly, I cannot be confident that their relationship with Mr Barry will be positively encouraged or supported in the mother’s home. Consequently, the benefits for the children in their relationship with their father will be maximised by their direct time with him. Secondly, both parents work. Both parents have family support. Both wish to be involved in the children’s schooling and other interests.
It follows that I prefer the proposal of the father in respect of the living arrangements for the children and will order that they spend six nights per fortnight with the father in a block period as preferred by each of the parents. Given that the children can attend a Greek school on Wednesdays, it would be preferable for the father’s time to commence after school on Thursday until the commencement of school on the following Wednesday and continue on a fortnightly basis.
I am satisfied that there should be an order for equal shared parental responsibility for these two children. I am not satisfied that there are issues of family violence that make the presumption inapplicable. These children were enrolled by their mother at the [A] Primary School. They had previously attended the associated [omitted] preschool. There is a connection with their Greek heritage at the school and from the [omitted] preschool. The mother enrolled them at the [A] School unilaterally without reference to the father. The school reports show that the children are proceeding very well.
Those reports do not in any way corroborate the mother’s concerns about the children’s travel making them overly tired. I accepted that the distance is twenty one kilometres and that the travel might be exacerbated by some peak hour delays. Nevertheless, my orders now oblige the father substantially in sharing the travel obligations. I am satisfied that these children have ample extra-curricular interests and place no weight on the mother’s argument that they are precluded from socialising out of school. When balanced against the unknown effect of a change of school on these achieving young children, I do not find such travel to be determinative of which school they attend.
The mother says that the children are adaptable and resilient. This may be the case. However, there appear to be no other cogent reasons why these children should be moved from a school where they are currently succeeding. I will order that they remain at the [A] School.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 28 August 2014
Key Legal Topics
Areas of Law
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Family Law
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0
2