Belmore & Zimin

[2008] FMCAfam 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BELMORE & ZIMIN [2008] FMCAfam 493

FAMILY LAW – Parenting orders – child aged 12, youngest of 4 siblings – mother seeking equal time, father seeking that child live with him and spend alternate weekends and half school holidays with mother - father and 3 elder siblings hostile to mother – mother and present husband hostile to father – child directly involved in parental conflict.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
U & U [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112
Bolitho & Cohen [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224
P & P [2005] FamCA 1032, (2005) FLC 93-239, sub nom., (2005) 34 Fam LR 340

Applicant: MS BELMORE

Respondent: MR ZIMIN

File number: CRC 93 of 2007

Judgment of: Halligan FM

Hearing dates: 28 & 29 February 2008

Date of last submission: 29 February 2008

Delivered at: Parramatta

Delivered on: 22 May 2008

REPRESENTATION

Counsel for the Applicant: Mr Priestly

Solicitors for the Applicant: Jane Adams Solicitors

Solicitors for the Respondent: Self Represented

ORDERS

1. All prior parenting orders in relation to the children [R] born in 1991 and [I] born in 1996 are discharged.

2. The parents shall have equal shared parental responsibility for the child [I], subject to order 3.

3. [I] shall attend [O] School from Year 7, unless or until the parents otherwise agree.

4. [I] shall live with the father.

5. [I] shall spend time with the mother;

   (a)Each alternate week during school term from after school Wednesday until before school the following Monday, commencing 29 May 2008, and the first Wednesday of each school term thereafter;

   (b)For half of all Term 1, 2 and 3 school holidays from the end of school on the last day of term until 5.00 pm on the second Saturday of each holiday period; and

   (c)For the end of Term 4 School holidays from 9.00 am Boxing Day until 9.00 am 13 January thereafter.

6. All changeovers that do not occur at the commencement or end of school shall occur at [D] School.

7. [I] shall communicate by phone with the parent he is not with each Tuesday and Thursday at approximately 6.00 pm.

IT IS NOTED that publication of this judgment under the pseudonym Belmore & Zimin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

CRC 93 of 2007

MS BELMORE

Applicant

And

MR ZIMIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings, under the Family Law Act 1975, concern what parenting arrangements will best promote the interests of 12 year old [I], the youngest of the parties’ 4 children.

2. Until final submissions, the applicant mother sought orders that until 2009 [I] live with the father and spend time with her on alternate weekends from after school Friday until before school Monday and for half school holidays, and from 2009, when he commences high school, [I] live equal time with each parent on a week about basis during school terms from after school Friday until before school the following Friday and for half each school holidays.  In final submissions, the mother abandoned that part of her application that sought that the child live with the father and spend time with her until 2009 and pressed only her equal time proposal, to commence immediately.

3. The respondent father sought that [I] live with him and spend time with the mother on alternate weekends from after school Friday until

   
   5.00 pm

   Sunday and for half school holidays.

4. In final submissions, the Independent Children's Lawyer submitted that the child should live with the father and spend time with the mother during school terms each alternate week from after school Wednesday until before school the following Monday and for half school holidays.

5. Both parents and the Independent Children's Lawyer proposed that there be an order for equal shared parental responsibility.  Despite this common ground, and although no orders were sought in relation to [I]’s schooling, it became clear that central to the parties’ respective proposals, was whether [I] should commence Year 7 at [O] School in 2009, as the mother proposed and the Independent Children's Lawyer supported, or be home schooled via distance education for at least the first 2 years of high school, as the father proposed.  Early in the hearing I sought to ensure both parties and the Independent Children's Lawyer understood I would need to resolve this issue as part of the determination of the competing applications, and that they should conduct their cases accordingly.  This was particularly relevant for the father, who was not legally represented.

6. Both parties sought orders in relation to their third child, 16 year old [R], in their respective application and response, but ultimately agreed it was inappropriate for any orders to be made in relation to her. 

   
   

   I understand they adopted this position because of her age and the fact she was expressing clear views that should be respected.  This course was supported by the Independent Children's Lawyer, and is consistent with the expert opinions of the author of the Family Report and of the forensic psychiatrist who also prepared a report in the matter.

Background

1. The mother is aged 47, the father 46.  They married in 1983.  They ceased to both reside in the former matrimonial home in early January 2005 when the father left the home.  It seems the parties had been separated under the same roof for some time before this, for up to 3 years.  The parties were divorced on 16 August 2005, the divorce order taking effect on 17 September 2005.

2. The parties’ two eldest children are [J] aged 21, and [S] aged 20.  [J] is married and lives in the Sydney metropolitan area.  [S] is a full time university student living in Newcastle.  [R] was born in 1991 and [I] in 1996.

3. When the divorce became final in mid September 2005, the mother left the former matrimonial home and the father assumed the full time care of [R] and [I] in the home.

4. The wife married Mr B in November 2005.  She lives with him on a rural property a similar distance from [D] to the former matrimonial home, but in a different direction.

5. On 5 July 2007, interim parenting orders were made by consent.  They provide that [R] and [I] spend time with the mother during school terms from after school Friday to 5.00 pm Sunday on each alternate weekend commencing 6 July 2007, and from after school on the last Friday of school term until 5.00 pm on the second Saturday of the end of Term 3 school holidays.  The orders provide that the mother collect [R] from her home and collect [I] from school at the commencement of her time and return them to the father's home at the conclusion of her time.

6. The interim orders also provide for the mother to have telephone communication with [R] and [I] each Tuesday and Thursday at 6 pm for up to half an hour, and that the father not allow anyone other than [R] or [I] to answer the phone on Tuesday and Thursday nights at approximately 6 pm, and not allow anyone to be present in the room when the children speak to the mother.  The orders further restrain both parties from discussing the proceedings or the issues raised in them with, or within the hearing of, either of the two youngest children, and from allowing any other person to do so.  Under the orders, the mother was to ensure that she personally supervised the children when spending time with her.

The evidence

1. The father was involved in a motor cycle accident in 1981.  The parties met the following year and married in 1983.

2. The father contended that he married the mother because the mother threatened suicide if he did not do so.  The mother denied making such a threat.  However, the mother told Dr McGuire, the Court expert, that when the father told her he proposed leaving to drive around Australia, she said to him “What’s wrong with me.  Nobody loves me, I have got no boyfriends, what’s the point of living”.  It is not unreasonable that the father may have interpreted this as being a possible suicide threat.  On the other hand, accepting that the father may have had justification for believing the mother made a possible suicide threat, he said that less than a year after they married, the wife tried to get him to divorce her, and he would not.  He thus said he was unable to withstand pressure to marry her but was able to withstand pressure to divorce her.

3. This illustrates that the disharmony and poor communication which is a feature of the parties’ present relationship has likely been present from the start.  This dispute about why the father married the mother seems to have poisoned the parental relationship from many years.  In fact, the father’s view that he was trapped into marriage by a mentally unstable, manipulative and emotionally blackmailing woman is a view which I am satisfied the father readily expresses in derogatory and denigrating terms of the mother to the children, as he has done to others, including Mr B both before and after Mr B pursued a relationship with the mother.

4. The mother said that in about 1984, the father received a third party payment of $120,000 in relation to his injuries from the motor cycle accident.  The funds were used to buy vacant land at [E] and build a home.  It became the matrimonial home on completion.  The parties sold this property in 1988 and moved to a property at [D] that they owned jointly with the father's brother and sister-in-law, to enter into a farming partnership.  This partnership shortly broke down, and the mother and the eldest two children returned to live in [N] for a short time.  The parties then bought another property at [D] and the parties and the two eldest children occupied this property as the matrimonial home.

5. From 1991 or 1992 on, the father constructed a 2 storey home on the [D] property.  The parties and the children occupied this home in 1998, before it was completed.

6. From 1989 the father has not been in employment.  From 1989 to 2003, the father received Newstart allowance, and thereafter he received parenting payments.  He commenced to receive parenting payments at the mother's request, so she could attend a small business course.  She thereafter sought to establish a small business and write a book on the subject.  The mother's business finished after about 12 months.

7. The father asserted and the mother denied that at this time the father cared for the children while she wrote her book.  This controversy has become a point of contention between the mother and [S] and [R], as well as between the parents.  The father asserted that from this time the mother withdrew from an active role in the care of the children, and he assumed the child care role.  While I accept that the father's involvement in the care of the children may have increased at this time, I am not satisfied he fully assumed this role, or that the mother completely withdrew from the role.  Both expert witnesses expressed the view that the mother was emotionally detached from the children.

8. The parents adopted a traditional division of tasks within the home when they cohabited, the mother assuming responsibility for the housework, the father working outside the home.  While the children attended the local primary school, for Years 7 – 10 the parties’ three daughters were home schooled via distance education through the [C] School at [P].  For Years 11 and 12, [J] and [S] attended the “local” high school at [O], living during the school week with the paternal grandmother in [O] and returning home on weekends and for school holidays.  This arrangement has also commenced for [R], who entered Year 11 this year.

9. The parties commenced a “trial separation” in either 2002 or 2003, and the father moved out of the matrimonial home in early 2005.  The father moved back into the matrimonial home in about mid 2005, and the mother vacated the home, leaving [R] and [I] with the father, on 18 September 2005.

10. The mother said the father continually yelled abuse at her and ridiculed and demeaned her.  She said he regularly called her mental health into question.  She said that during some arguments she became upset and verbally retaliated.  She said the father would involve the children by challenging the mother's mental health and telling them she was working against him and the family.  The evidence satisfies me that the children have been exposed to significant high level parental conflict for some years.

11. In relation to the mother's mental health, her evidence is that she consulted her general practitioner in about mid 2004 for depression and took prescribed antidepressants from then until about October 2005.  This began at a time when the parties’ relationship had ended and they were living separated under the same roof, continued when they were physically separated, until just after the mother left the matrimonial home.  There is no evidence the mother presently suffers any mental health problems, or has suffered any mental health problems otherwise.

12. The mother asserted that the father also verbally abused the children, but gave no evidence of any occasion of verbal abuse of them.  I note the parties’ three daughters are strongly allied to the father and their relationship with their mother is strained or broken.  This seems incongruous with allegations that the father was abusive of them.

13. The circumstances under which the mother commenced a relationship with Mr B are illustrative of the values apparently shared by the mother and the father and by Mr B about the roles of men and women in relationships.  After the parties decided to cease living under the one roof, but before they had in fact done so, the father confided in Mr B, a mutual friend of the parties they met through their church, of the parties’ intention to divorce.  Shortly thereafter, Mr B attended the parties’ home, and apparently in the mother's presence, asked the father's permission to begin courting the mother.  The father gave his permission.

14. In cross-examination, the father made a number of statements about his views on the responsibilities of himself and the mother for the children which I cannot reconcile.  They included the following-

    ·

    He affirmed that it was his view, as reported in paragraph 45 of

    
    

    Mr Paris’s report, that he was and is the head of the family, having accepted the authority of this position given to him by God.

    ·

    He asserted that the children are his sole responsibility. 

    
    

    He explained this saying that during the marriage, the children were the parents’ joint responsibility, but he was responsible for his wife, including her actions in relation to the children.

    ·He asserted that after the divorce, the children were his sole responsibility.

    ·He denied that the mother now should have no responsibility for the children, but repeated that the children were his responsibility.

    ·He denied he was saying that after divorce the mother's involvement with the children should only be to the extent he allows it.

    ·He said he and the mother still have equal responsibility for the children as during the marriage, but after the divorce he is not responsible for the mother, inferentially as she is no longer his wife.

    ·He said he saw himself as the more significant parent in the children’s lives, the mother less so but not far less so.  He said he does not see women generally as less significant than men.

15. In late February 2005, at about the time the father moved out of the matrimonial home, the parties completed a joint application for a divorce with a solicitor.  At that time, the parties each signed a written agreement recording that the mother would remain living in the matrimonial home with the children for as long as she wished and would pay rent of $200 per month, that the father was not to reside at the property but would have responsibility for the running of the farm on the property and any work associated with it and would have access to the farm property at all times.  The agreement also stated that-

    “The responsibility for the children of the marriage will be shared equally between the parties to the marriage.  This includes the education and other expenses associated with the upkeep and raising of the children.”

16. After a few months living with a friend in [D], the father occupied an old van at a neighbour’s property until the weather became colder, when he resumed living in the matrimonial home.  When the mother protested to the father that he was not meant to be living in the home, the children would protest to the mother in support of the father remaining.  If the mother did not include the father in the meals she prepared, the children would question the mother as to why she had excluded the father.  The parties resumed arguing regularly.

17. The mother said she did not believe that the father would agree to her taking the children with her if she left the matrimonial home, as he said to her that once she agreed to the divorce she gave up all her rights in relation to the children.  However, by mid August 2005 it seems likely that the mother would have been aware of her rights and remedies, as she then applied for and was granted legal aid for an early intervention conference.  The purpose of doing so, according to the mother, was “to organise for my contact visits with the children to commence after my intended marriage to Mr B”.  It thus seems she had decided on her course, and that was to vacate the matrimonial home and leave the youngest two children in the father's care.  Her husband, Mr B, said that the mother told him she did not believe the children would leave with her “unless things got serious”, tending to suggest the mother was acting on what she believed the children's wishes to be, rather than because she believed the father would prevent her taking the children.

18. The divorce order dissolving the parties’ marriage became final on

    
    17 September 2005

    , and the mother moved out of the matrimonial home the following day.  The mother said she did not think it proper to remain in the home with the father once her divorce became final.

19. The mother said that she believed that on her leaving the matrimonial home, [R] would have to take over the cooking, cleaning and washing, but [R] later told her she did the cleaning and she and the father took turns with the cooking.

20. The mother conceded in cross-examination that her leaving the matrimonial home had been catastrophic for the family, and that she understood that the children, especially her daughters, viewed her as having put Mr B ahead of her children.  She further conceded that it was reasonable to infer that she was not putting her children first in leaving the matrimonial home and quickly remarrying.  This is consistent with the complaint of the children, and the assessment of both the expert witnessed, that the mother was emotionally remote from or unavailable to the children.

21. The parties attended a Legal Aid settlement conference on

    
    

    30 September 2005, signing Heads of Agreement that provided that commencing in mid November 2005, the children [R] and [I] would live with their mother from after school Friday to before school Monday, or Tuesday if a long weekend, and for half of the school holidays, and would otherwise live with their father.

22. The friend with whom the mother lived after vacating the matrimonial home until her marriage had no space for the children to stay with her.  The mother rarely saw [R] and [I] from 19 September to 18 November 2005, the date of her wedding, although she spoke to [R] on the phone almost every day.

23. All the children were involved in the ceremony when the mother married Mr B on 12 November 2005, the girls being bridesmaids and [I] being the ring bearer.  The mother said the three girls all asked to be involved in the ceremony.  However, despite being aware that the children wanted her and Mr B to wait at least until the following year to remarry, they went ahead, giving rise to ongoing contention between the mother and her daughters.  In the opinion of Dr McGuire, the Court expert, the mother’s pursuit of a relationship with Mr B immediately at the time of the divorce indicates possible shallow attachments.

1. The mother had [R] for part of the weekend following her marriage, [R] returning home with [S] early.  [I] remained for the whole weekend.  The second weekend after her marriage both children were with her for the weekend, when she travelled with the children and her husband to Sydney for her brother’s wedding.

2. The mother said that she believed that “the children were having difficulty adjusting to the new family dynamics”, and she thought she should “let things settle down for a while”.  That implies, and I so infer, that the mother acquiesced in the children not spending the time with her that the Heads of Agreement signed by the parties in September 2005 contemplated.  It also implies, and I so infer, that the children were reluctant to spend time with the mother in accordance with that regime.

3. A further issue at this time was that Mr B’s home was unable to accommodate the children staying overnight.  He commenced extensions to accommodate the children, and these extensions were at a very early stage of construction when the children first came to stay overnight.  Among other things, the children literally did not have a completed roof over their heads.  The mother conceded that it would have been reasonable for the father to be concerned at the children’s reports about the state of the premises after their first visit.  In her evidence in chief, the mother had presented the father's reluctance to abide by their agreement after this first visit as unreasonable interference with her time with the children.

4. Thereafter, the mother saw the two youngest children in varying combinations and for various purposes.  She had [R] and [I] overnight on 11 – 12 January 2006, and from 22 – 27 January 2006.

5. [R] spent 5 February 2006 with the mother, both [R] and [I] spent the weekends of 17 – 20 February and 17 – 20 March 2006 with the mother, and both children spent overnight on 7 March 2006 with the mother for [I]’s birthday.  The mother had both children for a total of 7 nights in April 2006, and 4 nights with [R] when she took her to a “Mini School” at [C] School.  The mother said that in April 2006, [I] said to her the he was worried that the father's Centrelink payments will be reduced if [R] and he spent more than one weekend per month with her.

6. The two youngest children spent 12 – 15 May 2006 with the mother, and she saw [I] at school activities on 2 days.  The mother had the children for one weekend in June, for 2 nights and 3 nights respectively in July, for 3 consecutive nights on two occasions in August, and for one weekend in September.  The mother saw either or both of the children on other occasions, for example for a day only at her home, or at [I]’s school, or at one of the children’s extra curricular activities.

7. The two youngest children spent 15 continuous nights with the mother in January 2007.  [R] also rang the mother regularly, sometimes several times in a day about her school work.  However, the mother said she rarely spoke to [I] by phone.

8. This general pattern, of the mother seeing the children for usually one full weekend per month, for some time during school holidays but less that provided for in the Heads of Agreement, and on other occasions on an ad hoc basis, continued until the interim orders were made in early July 2007.

9. From July 2007 until early 2008, the mother saw both children broadly in accordance with the interim orders of July 2007, and subject to agreed variations including that changeovers of both children occur at school.  The mother did not see the children for the weekend of

   
   

   19 – 21 October 2007, where it is unclear whether the mother agreed to forego her time, and the weekend of 14 – 16 December 2007, when the mother was given no forewarning that the children would not be coming.  The mother also spoke to the children on the phone broadly in accordance with the orders.

10. When the mother spoke to [R] by phone on 16 October 2007, [R] complained bitterly about the expert who prepared the Family Report “twisting” her words.  The interviews for the Family Report were conducted on 9 October 2007.  The Family Report was released to the parties and their legal representatives on 23 October 2007.  I therefore proceed on the basis that [R] was referring to her conversations with the expert who prepared the Family Report during interview with him, and not to the contents of the Family Report itself.

11. [R] has continued to tell the mother of her dissatisfaction that the mother has continued these Court proceedings, but nonetheless continued for a time to spend time with the mother and communicate with her by phone.  She rang her mother regularly about various matters, including seeking assistance with her school work, and in relation to obtaining her learner driver’s licence and having driving lessons.  The mother said that when speaking to [I] on the phone in late January 2008, he too complained about the mother continuing the court proceedings and said she should stop them.  The mother believes both [R] and [I] are heavily influenced by the father and the eldest two children, with whom the mother has a difficult relationship, at least since her remarriage.  The evidence shows that both the eldest two children strongly disapprove of the mother's actions, which they construe as being destructive of the family and causing all four children emotional hurt.  Lately, it seems [R] has stopped spending time with her mother, and thus the mother's relationships with all three of her daughters are tenuous to say the least.

12. In fact, [S] swore an affidavit in support of the father's case, seeking among other things to strongly challenge the competence, professionalism and impartiality of Mr Paris, who authored the Family Report.  She was not required for cross-examination.  She appeared to seek to establish a level of expertise to qualify her to critique

    
    

    Mr Paris’s professional methods, by reference to having completed a year and a half of studies in a Bachelor of Social Science degree majoring in counselling and human services.  Based on that level of qualification, she purported to criticise Mr Paris’s professional competence.  She is patently unqualified to do so.

13. What [S]’s affidavit does establish unequivocally is her hostility to her mother and her extremely partisan position in support of her father. 

    
    

    It betrays an apparent inability to recognise that “the family” is not an homogenous entity, but is made up of individuals, each with unique relationships with each other member of the family.  To this extent, [S] seems to believe that there is only one valid view of the situation, the one she shares with her father.  [S]’s affidavit well illustrates the pressure to conform to the “family view” to which the younger two children have been, and will continue to be, exposed.  That pressure may not be overt, and indeed need not be to have a significant influence on [I]’s relationships with each of his parents.

14. The parties have communicated about parenting issues through the children.  They cannot communicate directly, and there is little if any goodwill between them.  In fact, their direct interactions have been marked in the past by disputation, recrimination and acrimony, and there is no reason to believe this is likely to change.

15. Notwithstanding this, the mother professed not to see that the lack of parental communication was a difficulty under her equal time proposal, despite conceding that an equal time arrangement will necessitate regular parental communication.  She asserted that until now the parents have not had to communicate, but that if [I] asked her to tell the father something she would, conceding that there was not much good will between the parents.

16. The mother’s statement that she would tell the father something if [I] asked her suggests a continuation of the inappropriate placing of parental responsibility on [I], and showed no appreciation of the parents’ responsibility to be the adults in the situation.  Nor did it demonstrate an appreciation of the real significance of the need for the parents to communicate to make an equal time arrangement work for the benefit of the child.

17. The father still does not appreciate the psychological harm to the children from exposure to and direct involvement in the parental conflict, even after the release of the two experts’ reports.  The father said in cross-examination that shortly before the hearing he sought to discuss possible resolution of the matter, and proposed a meeting involving himself, the children, the members of the Belmore household, and his extended family.  He conceded that only he and the mother have parental responsibility for the children.  Yet he seemed to see no incongruity between that fact and his proposal for a meeting directly involving not only the children but several other adults as well.  I saw no evidence that would satisfy me that the mother has any greater appreciation than the father of the harm exposing the children to parental conflict causes them.

[I]’s academic progress

1. The mother said [I] had learning difficulties when he commenced school.  She said these problems continued until he received prescription spectacles in 2004, after which he improved, and by December 2005 was assessed to be making “very strong progress”.  Since then he had progressed appropriately, and the mother agreed with the assessment of his progress in his school reports.

2. The mother complained that since being in the primary care of the father, [I] has not been wearing his prescription glasses when he should, resulting on one occasion, at the end of a weekend visit, in [I] realising he had been learning the incorrect spelling of a word on his spelling list.  That suggests either that the mother did not ensure the boy wore his glasses when he should have, or, if the boy did not bring his glasses with him, that the lack of communication and level of hostility between the parents meant the mother could not, or preferred not to, approach the father to get the boy’s glasses.  If the latter, it illustrates the risks to the boy’s welfare of a shared care arrangement such as the mother seeks.

3. The father suggested that [I]’s poor academic performance was a function of the mother and an unnamed teacher having “hindered” his education.  He did not indicate how the teacher did this.  In relation to the mother, he said she excluded him from assisting [I] with school work.  He said [I]’s poor academic progress while in the mother's care reflected the mother's inability to provide proper assistance with school work.  He said the boy’s academic improvement coincided with his assuming [I]’s care and being able to assist him with his school work.  The father's attitude is encapsulated in the following statement he made about the reason for [I]’s academic improvement-

   “All credit goes to me, his father, sole parent, primary carer, home tutor and friend.”

4. The father made no acknowledgement of the boy commencing to wear spectacles during the relevant period in his evidence in chief.

5. The father put into evidence some of [I]’s school reports, being for Semester 1, 2004, Semesters 1 and 2, 2005, and Semesters 1 and 2, 2006.  Across the 5 reports there are 4 different styles of report, using different goals and methods of reporting achievement for the same curriculum areas, making direct comparisons difficult.  However, in the report for Semester 1, 2004, [I]’s class teacher assessed [I]’s progress in literacy and language areas as slow.  In the report for Semester 1, 2005, the comment in relation to his literacy is “[I] has worked hard and shown great improvement in reading and writing during Semester 1”.  The Semester 2, 2005 report states-

   “At this time last year his Holburn Reading Age was 6.7 and now is 8.5, his reading level was 17 and now is 23, his Waddington Reading Age was 7.4 and now is 8.3 and his Waddington Spelling Age was 6.4 and now is 7.9.  Although still below his Chronological Age of 9.8 it demonstrates his progress in all areas of literacy.”

6. The Semester 1, 2006 report indicates that [I]’s reading and spelling was improving and he was making sound progress in writing.  The December 2006 report indicates [I] had “sound achievement” in the 3 assessed areas of English.

7. In cross-examination, the father acknowledged that [I] repeated Year 3, and in that year received prescription spectacles.  He said that [I]’s academic performance improved only a little after he received his glasses, and asserted that the improvement reported in [I]’s Semester 2, 2005 report all occurred after he assumed [I]’s care.  He conceded that earlier reports contradicted this contention but maintained the position that he was the reason for [I]’s academic improvement.

8. The father's position is inconsistent with the objective evidence of the boy’s school reports when compared with his own evidence as to who it was who was assisting the boy with his education.  As mentioned, the Semester 1, 2005 report, before the mother left the matrimonial home and when on the father's evidence she was the parent who “took responsibility” for [I]’s education and he “was not allowed to help”, says [I] had “shown great improvement in reading and writing during Semester 1”.  The Semester 2, 2005 report, only 3 months after the mother left the matrimonial home and the father assumed primary care of [I], shows considerable literacy improvement over the previous

   
   

   12 months.  On the father's own evidence, it was the mother who “took responsibility” for [I]’s education for 9 of those 12 months, and during that time the father “was not allowed to help”, and hence the evidence supports a conclusion that, to the extent the child’s improvement was contributed to by help at home, it was the mother who provided that help far more than the father.

9. As I understand the mother's evidence, what helped [I] improve his academic standard was overcoming his eyesight deficit on receiving prescription spectacles in 2004.  Nonetheless, the objective evidence contradicts the father's contention that the mother was impeding [I]’s academic progress, and that he was the one who single-handedly overcame almost all of the accrued deficits in [I]’s academic achievements.  Further, the father having failed to make any mention in his evidence in chief of the boy’s receiving spectacles before his school work commenced to improve raises the possibility that the father was not and is not as attuned to the boy’s needs as he professes, particularly in relation to his health and academic needs.  It raises questions whether he can meet those needs as well as the mother, who did identify the problems as being overcome by the spectacles.  Alternatively, and in my view more probably, it demonstrates that the father's antipathy for the mother is such that he is blinded to objective facts inconsistent with his view of the mother.  He was clearly not prepared to give the mother or the provision of spectacles to the boy for that matter, any credit for the clear and significant improvement in the boy’s academic progress from mid 2004 to mid 2005.  In fact, he was not even prepared to acknowledge the significant academic progress his son made over that time.

10. I therefore reject the father's evidence that [I]’s academic improvement coincided with his assuming the boy’s primary care, and find that it primarily resulted from the prescription spectacles he received.  The father's misrepresenting the situation and use of it as a point of criticism of the mother's parenting is typical of the father's negative and destructive attitude towards the mother.

[I]’s high schooling

1. In relation to [I]’s high schooling, the mother said that in 2007 [I]’s teacher and she agreed that the child would benefit greatly from attending high school as a face-to-face student.  The mother expressed concerns that the boy would not cope with distance education, that the father would not give him the necessary support, and that while the boy’s motivation and application to his school work were improving, he was still catching up because of past educational difficulties caused by eyesight problems.  The mother also expressed the view that the boy would benefit from the social interaction with his peers that attendance at school would provide, noting that during the school week in 2009, the boy and the father will be the sole full time residents at the former matrimonial home, with [R] living in town with the paternal grandmother during the school week.

2. The mother said that [I] was different to the girls, and had a need to run around and play sport, whereas the girls were not interested in sport.  She said [I] likes cricket and soccer, but has not asked to play sport.  The mother explained her reference to a difference between [I] and the girls in relation to sport by saying that the girls were interested in other things based on what they reported doing at lunch time while at primary school.  The mother said the girls benefited from home schooling, and did not know whether [I] would similarly benefit or not.  She then said that she did not have a strong objection to [I] being home schooled per se, just an objection to him being home schooled by the father.

3. The mother expressed doubt about the father's ability to assist [I] with learning resources, a task she said she performed with the girls, who would not ask the father for support but would approach her.  She admitted that the father assisted the girls to read, adding that she did so too.  However, she said that since she had left the matrimonial home, [R] had often rung her, sometimes several times a day, for assistance with her school work, saying the father could not help her.

4. The mother said that travelling time was a major reason for choosing to home school the parties’ daughters.  However, she said the situation now with [I] was different, as he was “an only child”, by which she apparently meant the only school age child at home during the school week.  She said that with children in both high school and primary school, there would have been trips to take some children to the bus stop for the high school bus and a trip to take [I] to primary school.

5. The father said that [I] was distressed after the mother told him of her proposal that he attend high school in [O] from Year 7.  He said when he asked the boy what he wanted to do, [I] said he wanted to do distance education as his sisters had done for a couple of years.

6. The father did not agree that [I] would be lonely being home schooled.  The father said the boy would see people on a day to day basis other than himself, and he would take the boy with him to his, the father's, friends’ homes when he visits them.  There was no indication in the father's evidence that [I] would be mixing with children of a similar age.  What impact the father gaining employment may have on the practicality of home schooling was not explored with the father in cross-examination, despite the father saying he is seeking employment as required for his continued receipt of Newstart allowance.

7. The father maintained that [I] should be home schooled for the first

   
   

   2 years of high school.  Given that [I]’s three sisters were home schooled for the first 4 years of high school and the father said they all benefited from this, it was unfortunate that the reasons why the father proposed only the first two years for [I] were not explored with him in cross-examination.  The father said that he had not spoken to the principal at [O] School about [I]’s secondary education, but had done so with the principal of the primary school the boy attends in 2007.

8. He said going to high school in 2009 would expose the boy to the marital discord.  He said the boy needed to spend time with the father supporting him for him to settle down and feel comfortable with who he is and with his personal development.  He said attending [O] School in Years 7 and 8 was problematic as children get bashed there, based on what he had heard from other children.  He said that [I] had personal development problems in the past that the father could not address until the mother left the matrimonial home.  What the father meant by “personal development problems” was not explained.  The only matter to which he referred in his evidence in chief that was a problem he could not address until the mother left was the boy’s academic progress at school.

1. The father conceded that [I] copes with the school environment in primary school, but he said it was a small school with a low teacher/pupil ratio.  He believed [I] could cope in high school, but believed he would not do as well as with the father supporting him.  He said it was more unsettling for [I] to go from primary school to high school rather than to home schooling, and said [I] was looking forward to home schooling next year.  The father conceded the advantages of attending high school would be that [I] would be closer to his paternal grandmother and would be socialising more, but said the benefits of home schooling were greater.  He said there was a computer at home, but no internet.  He said the internet was available at the mother's home.  He said the home schooling material was available on CD-ROM and in hardcopy by mail.  He said there were no resource books, but there was copied material in a binder.

2. In answer to the Independent Children's Lawyer the father said that it would be better for [I] to stay with the paternal grandmother in [O] during the school week if he were to go to the high school there.  He said [O] is about 36 kilometres from the former matrimonial home, and he goes there every couple of days.  Whether that might change if the father obtained employment was not explored.  The father said he was proposing that [I] live with the paternal grandmother during the school week if he attended [O] School because that is where [I] would want to go to school from.  Then the father said [I] would choose to stay with him and catch the school bus but he, the father, thought it better [I] live with the paternal grandmother.  The father said his finances created a problem for him driving [I] to and from school every day, and that the paternal grandmother and his three daughters had all said [I] would be better staying at the paternal grandmother's.

3. The father conceded it would not be the best arrangement to have a

   
   

   12 or 13 year old boy sharing a bedroom with his 17 or 18 year old sister, as would be the case if both [I] and [R] stayed with the paternal grandmother during the school week during 2009.  When asked why, after repeatedly saying he does what the children want, he is proposing [I] live in [O] if at school there over what he believes [I] would want, the father at first said that if the court chose to put [I] into [O] School, it would not be in his best interests to be in a shared care arrangement or to live primarily with the mother, and it would be better to live with the father staying with the paternal grandmother in [O] during the school week.  However, the father then said it would be appropriate for [I] to live with him during the school week, and suggested the apparent reversal of his evidence was because of a misunderstanding of the question.

Father's marijuana use

1. The father used marijuana to the children’s knowledge for much of the marriage.  The mother said her objections to his marijuana use lead to many arguments, and during one such argument the father punched her in the eye.

2. [I], according to Mr Paris’s Family Report, is aware his father smokes marijuana, and has always done so.  Mr Paris expressed the view that after 25 years of cannabis use, the father has a substantial addiction, and any potential withdrawal from cannabis use would have a psychological impact on his mental health for at lest the short to medium term, and that the father has no insight into this.  He did not elaborate on what he meant by “a psychological impact upon his mental health”.

3. The father said that after reading the Family Report he stopped using marijuana.  I note that the father and [S] were highly critical of

   
   

   Mr Paris and his reporting of things the children said, in effect suggesting he was biased in the mother's favour.  It is therefore interesting that the father should have so promptly acted on this aspect of the Family Report while suggesting the Report was fundamentally flawed.  I infer that Mr Paris’s recommendations that [I] should pass into the mother's care while the father underwent detox and drug rehabilitation had a significant influence on the father asserting he had stopped his marijuana use without outside assistance or detox.

4. When told of the father's evidence of having stopped his marijuana use without assistance, Mr Paris said he doubted that the father could have simply ceased his marijuana use as he said.

5. What the father did was not what Mr Paris recommended.  He has not sought any professional help to cease his marijuana use, which had been ongoing since 1981, a period of 27 years.  Mr Paris doubted that with the father's history of drug abuse he would be able to stop using without professional help.  Absent any testing of the father for drug use, and considering his propensity to twist evidence to his advantage and to the mother's detriment, such as with [I]’s academic improvement, I am sceptical about the father's evidence of ceasing his marijuana use, and am not satisfied that if he has ceased using that it will be permanent without professional assistance, which the father has shown no inclination to access.

Mother's disclosure of sexual abuse suspicions

1. Towards the end of the Court expert Dr McGuire’s interview with the mother and Mr B, the mother hinted at sexually inappropriate behaviour by the father.  Dr McGuire reported that when she asked the mother about this specifically, the mother related something she said occurred when she and the father were share farming with another couple that had a 5 year old daughter.  [J] was a little girl, and she and the 5 year old girl wanted to sleep out in a tent.  The father accompanied the two young girls.  Later the 5 year old came rushing back in crying and would not say what happened, and the father stayed on the couch sleeping for 3 days.  She said the father then said to her “I touched her on the outside of her pants”, but then changed things. 

   
   

   Dr McGuire reported that the mother said thereafter she kept an eye on the father around the girls, and said she once saw the father slide his hand onto [J]’s bottom down her pyjama pants, and saw him kissing [J] when she was 10 putting his tongue into her mouth, but when she confronted him he denied it.  The mother is reported by Dr McGuire to have said that because of her fears she could not leave the father, and had to be an observer keeping an eye on what was going on rather than interacting with the children and she was always busy.

2. In relation to these disclosures, Dr McGuire said that the mother was reluctant to talk about her suspicions of sexual abuse, and her demeanour was congruent with the material she was presenting.

3. In cross-examination about the mother's disclosure, Dr McGuire said that even though the mother was not worried about the risk of abuse of [I], this was still relevant as it may suggest a lack of proper boundaries.  Dr McGuire reiterated that the mother's demeanour suggested that she believed what she said.  Dr McGuire considered it odd that the mother raised it at the last minute at the end of a long day on interviews. 

   
   

   If true, Dr McGuire queried the mother's ability to protect the children.  She said the mother should have reported it immediately.

4. The mother did not mention any of these concerns in her affidavit evidence.  In oral evidence, the mother said that she never had any concerns about any inappropriate behaviour towards [I].  However, nor did she contradict Dr McGuire’s record of what she said, other than in relation to matters of relatively insignificant detail.

5. I note [R] was not quite 14 when the mother left the former matrimonial home, leaving [R] and [I] in the father's primary care, with [R] being home schooled and at home alone with the father during the school day, [J] having left home, [S] living with the paternal grandmother in [O] during the school week doing Year 12, and [I] attending primary school.

6. This behaviour by the mother is difficult to reconcile with any serious concern by her for the safety of the female children alone with the father.  It is certainly not consistent with the mother's reported assertion to Dr McGuire of watching the father around the girls after the incident giving rise to her suspicions.

7. Consistent with the mother's evidence, it was unequivocally stated by the mother's legal representative at the hearing that the mother’s case involved no contention that [I] was at any risk of sexual abuse by the father.  Dr McGuire expressed protective concerns for [I] if the mother's sexual abuse allegations were substantiated.  However, there was no direct evidence from the mother about any of these incidents, and the father was not cross-examined about them.  In those circumstances, the court cannot find there was any abuse or that there is an unacceptable risk of abuse.

Parental denigration

1. [R] reported to both the expert who prepared the Family Report and the Court expert that Mr B has spoken in a derogatory manner about her father.  When questioned about this, the mother said she did not think Mr B’s comments were derogatory.  She said there was an exchange between [R] and Mr B, and [R] had not spent time with the mother for some time, inferentially since this exchange.

2. When questioned about [R]’s reported complaints, the mother said she was not suggesting [R] was not telling the truth, but that [R] construes comments that her father is a drug addict, which is true, as derogatory.  She said she could not recall telling Mr B not to call the father a drug addict to the children.  In re-examination, the mother said that in the future, she would react differently to inappropriate comments by Mr B to the children.

3. It is troubling to me that it took the mother so long to give this apparent acknowledgement of the inappropriateness of such behaviour around the children, a point emphasised by both experts.  While it was a significant part of the mother's case that the father actively projects his strongly negative views of the mother onto the children, thus harming her relationship with them, the mother seemed totally blind to the fact that she and Mr B are doing exactly the same thing.  This concern was not ameliorated by the very belated and limited evidence of the mother about changing in the future.

4. Mr B was not cross-examination about [R]’s reported complaints of him denigrating the father to her.  Thus, it is not known whether he now acknowledges the inappropriateness of these actions and would act differently in future.  This is a not insignificant issue, because the mother's proposal of an equal time arrangement would have [I] spending considerable time with Mr B.

5. There is ample evidence in the reports of the two experts of the father denigrating the mother in the children's presence.  There is also ample evidence of the father directly involving the children in the parental conflict.  I note the father proposed an extended family conference including the children shortly before the hearing to discuss a possible settlement of the proceedings.  Thus the father was proposing to breach the orders of July 2007 restraining both parents from discussing the proceedings or issues in them with or in the hearing of [R] or [I].

Experts

1. There were two expert’s reports in evidence, a Family Report authored by Mr Paris, and a forensic psychiatrist’s report by Dr McGuire.

Mr Paris

1. Mr Paris prepared a Family Report after interviews held in early October 2007 with [S], [R] and [I], as well as both parents, Mr B and the paternal grandmother.

2. Mr Paris reported that it is the mother’s “clear position that all the children have adopted the father's reality as being the truth”, and that her “daughters would all reflect that she was not an interactive mother, and that their relationships with the parents were primarily linked to their father”.  The mother’s position was that this was incorrect.  However, Mr Paris also records that she told him that all her children are not generally affectionate, given that they grew up in a distant manner from her.

3. Mr Paris reported that Mr B told him that [R] and [I] “walk all over” their mother, and present her with fait accompli situations.  He told

   
   

   Mr Paris that the mother told him this has always been the case.

4. All three children are reported to have said there were frequent loud arguments between their parents.  [S] is reported to have said she observed one episode of family violence, but no details are recorded.  [R] is reported to have said she did not see any physical violence between the parents.  [I] is reported to have had a strong recollection that his father has been historically angry with his mother.

5. [R] is reported to have said that both parents have spoken to the children about the separation and associated Court matters, and to have denigrated the other to the children.  She is reported to have said all the children were angry with the mother initially for becoming romantically involved with Mr B so quickly.  She indicated she remained angry with her mother for “dragging out” the Court proceedings, and felt rejected by her mother initially.

6. Mr Paris reported that [I] told him he is likely to do home schooling like his sisters between Years 7 and 10.

7. While [S] is reported to have said the children spent more time with the father as children, [I] is reported to recall that his mother was the primary carer of the children, while his father “did stuff around the farm”.  [S] and [R] are both reported to have described a patriarchal family structure, with the father the “head of the family”, and the mother attending to the household chores.  [I] is reported as identifying his mother as primarily helping him and his siblings with their school work until she left the matrimonial home.

8. [I] is reported by Mr Paris to have said it was good to be with his mother, describing her as being “honest and caring”, and he became distressed when telling Mr Paris that he missed his mother.  When questioned about this, the father said that [I] told him he did not want to go to his mother's, but he was aware that [I] was missing his mother.  In relation to page 7 of Dr McGuire’s report, where she said that when asked in the father's presence whether he missed his mother, [I] responded “Not really”, the father said he believed Mr Paris misrepresented the children’s statements.  He said he believed any child would miss a parent who was not there, and this would be normal.

9. [I] is reported to have said he sometimes gets bored at his mother's home.  Although he indicated he wanted the then living arrangements to continue, he became distressed when discussing this.  He indicated he was angry with his mother for remarrying so quickly, but indicated he felt safe living with both his parents.

10. The mother was questioned about [I]’s reported comment of being bored at his mother's.  She said he sometimes said he was bored.  She said he did not bring his dog with him and sometimes complained about not having his dog with him.  However, the mother said she did not know why [I] was not bringing his dog, and she had not asked him.  The clear inference is that she had not invited him to bring it either.  The mother conveyed the impression of being a detached and uninterested parent, unprepared to follow up on such a simple thing as the boy bringing his dog when he comes to spend time with his mother so that his time with his mother may be more enjoyable.  This raises the question, which remains unanswered on the evidence, whether the boy would be welcome to bring his dog to his mother's house when spending each alternate week with her under her proposals.

11. [I] said the father tells him and [R] what he is angry with his mother about, and is aware that his father does not speak to his mother because it makes him angry.

12. Mr Paris observed [I] and [R] with the mother, and then with Mr B as well.  He said the mother appeared warm in her engagement with both children, but [R] was resistant to the mother's attempts to engage with her and was somewhat distant from the mother.  Neither child related to Mr B during the observation, contradicting the evidence of the mother and Mr B that the initial reticence of the children towards him had gone and that they now related well to him and interacted freely with him.

13. When observed with the father, [I] and [R] were still distressed from their interviews with Mr Paris.  Mr Paris reported that the father too became distressed, and told the children that his authority with them had been removed by the Court process.  The father then simply sat with the children without attempting to engage with then in any way.  When considered together with the mother's evidence of the children pressuring her to drop the Court proceedings, the evidence of the father telling the children that the Court process had removed his authority with the children is particularly troubling, as it suggests the father is pressuring and influencing these children against their mother.

14. It was Mr Paris’s opinion that all the children have suffered some psychological damage as a result of their parents’ relationship, for which both parents must take some responsibility.  He was of the opinion that the parents’ relationship since separation has continued to harm the children, and that the children have been exposed to the father's ongoing anger towards their mother, a conclusion amply supported by the evidence of the father's interaction with the children during Mr Paris’s observation of them.

15. Mr Paris was of the opinion that as a consequence of the father's dominance in the parental relationship the mother had to some extent withdrawn emotionally from her relationship with the children while undertaking the care functions for them.  He suggested that the attitude of the two eldest children to the mother was contributed to by the father's influence over them, the mother apparently not appreciating the deleterious consequences of this for the children, instead accepting her subservient role in the family.

16. Mr Paris could see no valid reason why [I] should not live equally with each parent from the beginning of 2009, the mother's then position, but expressed concern at the parents’ ongoing lack of communication and the father's “expressed and ongoing vitriol … for the mother”.  His concerns were for the negative impact of this on [I]’s psychological wellbeing, especially given the boy indicated he missed aspects of his relationship with his mother.  In cross-examination by the mother's counsel, Mr Paris reiterated that the problem with shared care is the lack of communication between the parents and the father's ongoing vitriol for the mother.  If there were not to be a shared care arrangement, he said it was difficult to determine if the child would be better living primarily with the mother.  He expressed the view that the boy was equally attached to his parents.

17. Mr Paris, in answer to the mother's counsel, said that part of the conflict situation the child is in is the way the father conducts himself.  He said less time with the father may be better for the boy.  He referred to the father's cannabis addiction, from which the father needed to withdraw, but he was of the opinion that withdrawal would be difficult for the father and during that period the boy should live with his mother.

18. When asked to comment on the Independent Children's Lawyer’s option of the boy spending each alternate week during school term from Wednesday afternoon to the following Monday with the mother, Mr Paris expressed the view that this would be better as it would be more equitable for the child.  However, in the immediate future, while his other recommendations were put into effect, he was of the opinion it was better that [I] live primarily with his mother.  Asked to say whether he thought an equal time arrangement or the Independent Children's Lawyer’s proposal would be better, he expressed the opinion that the Independent Children's Lawyer’s option may be better able to be implemented.

19. Mr Paris expressed the view that the parents must participate in post separation mediation in an effort to establish reasonable communication and a more effective and cooperative parenting arrangement.  He was of the view that the father clearly needs to cease his marijuana use and that he would not be able to do this unassisted and should participate in a drug rehabilitation program.

1. Mr Paris expressed the view that despite the father’s long held and entrenched view of his God-given right to rule his family, he needs to seriously examine what is in [I]’s best interests, and to cease discussing any aspects of the ongoing Court proceedings and his interactions with the mother with either [I] or [R], or their elder siblings.  A Court order not to do so, and an opportunity to read both experts’ reports highlighting the harm to the children of doing so, have had no effect on the father, as evidenced by his attempt to involve the children in a family conference about these proceedings just before the hearing.  There thus seems no reason to believe the father will heed this warning and change in the future.

2. Mr Paris recommended that there be a psychological/psychiatric assessment of the parents with a report to the court, that the father undertake drug rehabilitation with initial detox, during which [I] live with the mother, with a report to the court at the end of the rehabilitation program, that at the end of that program both parents participate in six sessions of family counselling with [I] being appropriately involved, and that after 9 months, an updated report be obtained.

3. While a psychiatrist was appointed by the court to prepare a report, and the father said he had stopped his marijuana use, albeit without any detox or participation in a rehabilitation program, the parents have not participated in family counselling and no updated family report was ordered before this matter was listed for hearing before me.

4. Despite the trenchant criticism of Mr Paris’s method and representation of the children’s views in the father's evidence, the father did not cross-examine Mr Paris.  I reject the father's criticisms of Mr Paris and his representation of the children’s views, there being no evidence to found any of the father's criticisms.

Dr McGuire

1. Dr McGuire prepared her report after interviews conducted in late January 2008.  She reported that the father told her that after leaving the former matrimonial home, the mother did not see or contact the children for 3 months.  This is not consistent with the evidence of either the father or the mother.  He is reported as telling Dr McGuire that he used to use marijuana daily, but ceased after the family report.  He is also reported as telling Dr McGuire that he only married the mother because of her threats to commit suicide if he did not, and said she had never made any attempt at suicide.

2. Dr McGuire reported that [R] indicated she felt the primary parent is the father, and that the father spent time with the children while the mother only spent time with them if she had to and then wanted them to participate in her activities rather than be involved in theirs.  She said that her parents always fought, yelling and saying bad things, both parents thinking they were right.  She said the mother still “bad mouths” the father and that Mr B had been critical of the father.  She told Dr McGuire that if it was up to her, she would like to see her mother about once a month.  She was adamant that [I] would not want shared care.  She said that during her parents’ marriage her father had been the boss in the household but nonetheless the mother did what she wanted.

3. Dr McGuire reported that [R] did not give the impression that she had been coached, and felt she was expressing the views that she believed.

4. [I] had spent time with the mother during the Christmas school holidays shortly before the interviews with Dr McGuire, and reported that while he had a good holiday, there was not much to do at his mother's.  He said he is not interested in the mother's interests.  This is consistent with what [I] is reported as having told Mr Paris, of being bored at his mother's.

5. [I] told Dr McGuire that he wanted the present parenting regime to continue, and did not want to have shared care, because his dog is at his father's home.  He, like [R], reported that Mr B says “bad stuff” about his father.  He, like his sister, indicated he was sick of the court process, and did not want to have any more interviews.  His demeanour was reported as consistent with this view.  He, like his sister, reported hearing his parents having “fights”, that is verbal disputes, during the marriage.  He in fact said he felt some relief at his parents’ separation, as he was sick of the fights.  He said his mother helped him with his school work when he was young, but his father helps him now.  He said he did not want to go to his mother's wedding, and felt she remarried too soon.

6. At one point of the interview with the father together with [R] and [I], Dr McGuire reported that she commented that it seemed the children were involved in the court proceedings, and the father responded “Don’t write things to incriminate me.  I run things by them.”  When cross-examined about this by the mother's counsel, he confirmed that he runs things past the children and that this is appropriate because he does not want to make arrangements with which the children are not comfortable.

7. The father was reported as having made numerous negative comments about the mother to Dr McGuire in front of the children.  Dr McGuire said the father was also critical of the Independent Children's Lawyer, suggesting she was doing her best for the mother and not the children, becoming obviously angry towards the end of the session.  [I] was observed to sit detached and say nothing.

8. In cross-examination the father admitted having made negative comments to Dr McGuire in front of the children.  When he was cross-examined about his reported obvious anger towards the end of his interview with Dr McGuire, he at first admitted he was getting angry, denied it was because the Independent Children's Lawyer, who he saw as working for the mother and not the children, was a woman and he could not accept criticism from a woman, denied he was angry with the children or Dr McGuire, then, when pressed further to explain what he was getting angry about, professed not to know what anger

   
   

   Dr McGuire was talking about.  In re-examination, the father said he was not angry with either the children or Dr McGuire, but with the previous Independent Children's Lawyer, and that he was not angry with her because she was a woman but because she lied when she alleged that the father swore at her on the phone, and because she tried to twist [I] and [R]’s recollection of the past to be consistent with the mother's version of events.  I note this is the same criticism the father and [R] made of Mr Paris, of twisting the children's words to be consistent with the mother's version of events.

9. When Dr McGuire observed the children with the mother, being just after [R] had spent 2 weeks and [I] 3 weeks with the mother, they initially were cool.  [I] appeared angry as he told the mother that she could ring him more often.  Dr McGuire expressed the opinion that the children displayed more spontaneity than they had with the father, but appeared to be relaying the father's anger to the mother.

10. Dr McGuire assessed the mother to have an adjustment disorder with depressed mood, and expressed the opinion that in asking Mr B for a relationship with him immediately at the time of the divorce indicates possible shallow attachments.

11. The children denied to Dr McGuire having seen family violence.

12. Dr McGuire, like Mr Paris, was of the opinion that the children are all damaged by the parental conflict and that each parent, but particularly the father, inappropriately involved the children in that conflict.  If the court accepted the mother's allegation of sexual abuse of [J] and another girl by the father, she was of the opinion there were grounds for concern about children in the father's care.  As mentioned, the mother gave no evidence of the matters recorded in Dr McGuire’s report about sexual abuse.

13. Dr McGuire was of the opinion that [R] and [I] are strongly allied with their father.  She felt [R] was of an age when she is able to make her own determination, and that [I] had been influenced by his father’s emotional dominance over the mother.  She otherwise expressed no opinion about matters that might affect the weight to be given to [I]’s views.  She was of the opinion that the children were more closely allied to the father than the mother and that [R] and [I] are appropriately bonded to each other, and that [R] appears genuinely concerned for [I]’s wellbeing.

14. Dr McGuire was of the view that both parents have allowed their hostility towards each other to make a continuing relationship between the children and their parents quite difficult.

15. Dr McGuire was of the opinion that if [I] were to go into a shared care arrangement in 2009, the parental conflict and the difficulties the parents have in communicating with each other would make such an arrangement unlikely to succeed.  She was of the opinion that at this stage he would be better off with one parent undertaking primary care and the other spending time on alternate weekends.  She was of the opinion that because the father appears to have the support of all the children, it is probable that he should undertake the major parenting role so long as the court determines that he has not been sexually abusive.  In the absence of any evidence from the mother about any possible sexual abuse by the father, the court could not find there has been sexual abuse in the past or that there is an unacceptable risk of sexual abuse in the future.

16. Dr McGuire was of the opinion that the father appeared more emotionally in touch with the children, all of whom expressed the view that the mother is emotionally detached from them.  The mother herself seemed to acknowledge this to Dr McGuire in her evidence about being watchful but detached in relation to her suggestion of possible sexual abuse.

17. Dr McGuire said that the father rationalises his cannabis usage and, despite having said he has ceased using, she believed it would be appropriate for him to undergo random court ordered testing.  She said if the father continues to use cannabis, it is likely to impair his parenting ability.  She did not say that this would affect her opinion that, subject to the sexual abuse issue, a shared care arrangement would not work, and [I] should live with the father and spend time with the mother.

18. Dr McGuire said the father demonstrated a lack of respect for the mother which in her view would have compounded the mother's low self esteem.  In her opinion it is probable that the children have been influenced by this.  She was of the view that the mother’s remarrying so quickly and peremptorily on the dissolution of the parents’ marriage would have had a significant effect on the children enhancing a sense of rejection by her.

19. In cross-examination by the Independent Children's Lawyer,

    
    

    Dr McGuire expressed the opinion that it would be better for [I] if he attended high school to mix with his peers, expressing concern at the social isolation that home schooling would entail.  While Dr McGuire felt it probably preferable for [I] to be living with a parent, she observed that living with the paternal grandmother in [O] during the school week may remove him from some of the parental conflict.

20. When asked to comment on the proposal of the Independent Children's Lawyer, of living with the mother from after school Wednesday each fortnight until before school the following Monday and otherwise with the father during school terms, Dr McGuire considered this the ideal arrangement provided [I] was protected from parental conflict and denigration of one parent by the other.  Avoiding the need for the parents to meet at changeovers would reduce the boy’s exposure to parental conflict in the doctor’s opinion.

21. Dr McGuire expressed concern about the potential for misuse of a communication book, and was of the opinion there was potential for that in this case.  She said the communications conveyed in the book needed to be limited to information about [I] only.  She commented that [I] is not of an age where, as a general principal, one could rely on [I] to give each parent necessary information.

22. In relation to Dr McGuire’s recommendation that, based on the emotional support from the father, [I] should live primarily with the father, Dr McGuire said that [I]’s primary attachments are to the father and his sisters.  If the court found that the father would be unlikely or unable to support [I]’s relationship with the mother, a major issue to address before she could support [I] living with the mother is the question of [I]’s contact with the father and his sisters.  She said she was hesitant to support [I] living with the mother due to his attachments and views.  She expressed the opinion that it was important for [I] that the father can tolerate any order that is made, as she believed it is probable that the father and [I]’s sisters will undermine any order the father cannot tolerate.

23. In cross-examination by the mother's counsel, in relation to [I]’s views as reported by Dr McGuire, she said the father talks quite disrespectfully of the mother and the children are aware of this, and on seeing the mother [I] immediately raised the same issues the father had just raised.  She said this is unsatisfactory and undesirable.  She said [I] needs protection from conflict.  Hence she said it is better he live primarily with one parent rather than in a shared care arrangement.  She said the boy is in a difficult situation and it is difficult to sort out the optimum arrangement.

24. Dr McGuire said she assessed the father as the more dominant parent, with the mother somewhat intimidated by him, and things were as the father wanted and said.  Living with the father will continue [I]’s exposure to the father's negativity about the mother, but living primarily with the mother will not alter the fact that the father would be likely to continue to dominate.  Despite the lesser frequency under such an arrangement of [I]’s exposure to the father's hostility towards the mother, it would nonetheless continue.

25. Dr McGuire said the mother had been accused by the children of emotional detachment, and the mother gave some acknowledgment of this.  She said it would be better for [I] to live in a drug free home. 

    
    

    In relation to her preference for [I] to attend high school rather than be home schooled, she believed the fact [I]’s sisters would not be living at home, at least during the school week for [R], was not significant.  Their emotional support for [I] was important and was still available to him.

26. The father did not cross-examine Dr McGuire.

The mother's proposals

1. The mother lives with her husband in his home, which now apparently has been extended to accommodate [R] and [I] staying overnight.  She is not in paid employment.

2. The mother’s ultimate proposal, articulated only in final submissions, was that [I] should spend equal time with each parent on a week about basis during school term, from after school Friday to before school the following Friday, and for half of all school holidays.

3. If the Court was not satisfied equal time was best for [I], the mother's position was that [I] should live with the mother for the majority of the time, suggesting 9 nights a fortnight with the mother and 5 with the father.

4. The mother explained the proposal she maintained until final submissions of [I] living with the father and spending alternate weekends and half school holidays with her until 2009, and then moving to an equal time arrangement, by reference to the travelling she would need to undertake to convey [I] to and from primary school during 2008, a 70 kilometre one hour round trip twice a day.  She said there was a primary school closer to her home but did not want [I] to change primary schools.  Both the time and cost of travel were issues for the mother.  She said that there is a school bus for high school, with a bus stop only about a 15 minute drive from her home, thus halving travel time for her each school day [I] would be with her from 2009.  The travel time for [I], however, would increase from 1 hour per day to about 2 hours 10 minutes a day, the school bus trip taking about

   
   

   50 minutes each way.  However, despite her reluctance, the mother said that if the court were to order an equal time arrangement commencing immediately, she could attend to the necessary travel for [I]’s school attendance in 2008.

The father's proposals

1. The father remains living in the former matrimonial home with [I], and [R] other than during the school week and when she may spend time with the mother.

2. The father proposes that [I] continue to live with him, and spend time with the mother each alternate weekend during school term from after school Friday until 5.00 pm Sunday and for half of school holidays.

3. The father proposed that [I] be home schooled via distance education for the first two years of high school, commencing in 2009.  If the Court decided [I] should attend [O] School from Year 7, the father's ultimate position, despite some equivocation and inconsistency in his evidence, seemed to be that [I] should remain living with the father at the former matrimonial home during the school week, and travel to and from school from there.

4. The father has recently ceased to be entitled to parenting payment and is now receiving Newstart Allowance, and has the attendant obligation to actively seek employment.  He suggested that in the years up to moving from Newstart Allowance to parenting payment in 2003, he had sought employment, but had been unsuccessful in obtaining any.  He said he had applied for four jobs in the week before the hearing.  There was no evidence as to the type of work the father is seeking or the hours of work such employment might entail.  There was no evidence as to the father's proposed care arrangements for [I] if he were to obtain employment.  This would be relevant not only to [I]’s appropriate supervision but to appropriate support for his home schooling under the father's proposals.  Hoased on the father's lack of success finding employment from 1989 to 2003, these matters are probably of only theoretical relevance.

Additional options to be considered

1. The Independent Children's Lawyer proposed that [I] should live with the father and spend time with the mother during school term each alternate weekend from after school Wednesday until before school the following Monday and for half of all school holidays.

The applicable law

1. The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.

2. The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.

3. S.60B sets out the objects and principles of Part VII in the following terms:

   “60B  Objects of Part and principles underlying it

   (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 psychological harm from being subjected to, or exposed to, abuse, neglect or 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).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.”

1. In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the children's best interests. It is as follows:

   “60CC  How a court determines what is in a child’s best interests

   Determining child’s best interests

   (1)     Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)     The primary considerations are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)     Additional considerations are:

   (a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)     the nature of the relationship of the child with:

   (i) each of the child’s parents; and

   (ii)     other persons (including any grandparent or other relative of the child);

   (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)     the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f) the capacity of:

   (i) each of the child’s parents; and

   (ii)     any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)     the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)     if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)     the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i) the order is a final order; or

   (ii)     the making of the order was contested by a person;

   (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 child;

   (m)    any other fact or circumstance that the court thinks is relevant.

   (4)     Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)     has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long term issues in relation to the child; and

   (ii)     to spend time with the child; and

   (iii)    to communicate with the child; and

   (b)     has facilitated, or failed to facilitate, the other parent:

   (i) participating in making decisions about major long term issues in relation to the child; and

   (ii)     spending time with the child; and

   (iii)    communicating with the child; and

   (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   (4A)  If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

   Consent orders

   (5)     If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

   Right to enjoy Aboriginal or Torres Strait Islander culture

   (6)     For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.”

2. The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, decided after the amendments effected by the Family Law Amendment (Shared Parental Responsibility) Act 2006, as follows:

   “10.  Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A).  The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”

3. If the court is to make an equal shared parental responsibility order made, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA).  In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)).  If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).  As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, P & P, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. (2005) 34 Fam LR 340.

4. It being agreed there should be an equal shared parental responsibility order except in relation to [I]’s high schooling, the Court must consider an equal time arrangement and a substantial and significant time arrangement, in addition to the parties’ proposals.  The mother's proposal is for equal time.  The father's proposal does not amount to substantial and significant time.  However, the Independent Children's Lawyer’s proposal does.

Assessment of primary considerations (s.60CC(2))

(a)   The benefit to the child of having a meaningful relationship with both of the child’s parents

1. [I] has the potential to benefit greatly from a meaningful relationship with each of his parents, if only they would let him.  I will deal with the impediments to [I]’s benefiting from a meaningful relationship with both of his parents when dealing with the additional considerations.

(b)   The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. I am satisfied there has been at least one or two incidents of physical violence by the father towards the mother during the parties’ cohabitation.  The mother's evidence in this regard was not seriously challenged, and [S] reported being aware of an incident of violence.  Both [R] and [I] reported they were not aware of any violence.

2. Of far more significance and concern, however, is the long term and ongoing emotional abuse of the children by both parents.  Their exposure of the children to the parental conflict, their denigration of the other parent to the children, and, especially in the father's case, the direct enlistment of the children in the parental conflict, is highly abusive of the children.  Both experts decry both parties’ behaviour in this regard, yet there seems little prospect of either parent changing.

Assessment of additional considerations (s.60CC(3))

(a)   Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. [I]’s expressed views to the experts were different.  To Mr Paris, [I] became distressed when he said it was good being with his mother and that he missed her.  To Dr McGuire, when asked if he missed his mother, he replied “not really”.  However, and in my view most significantly, the father was present when [I] made his comments to

   
   

   Dr McGuire, but was absent when [I] made his comments to Mr Paris.

2. Dr McGuire expressed the opinion, which I accept, that [I] has been influenced by the father's emotional dominance over the mother.  In fact, I am satisfied that the father does not brook any dissension from his views, including by the children.  When Mr Paris and the Independent Children's Lawyer seemed to the father to be taking positions inconsistent with the result he sought to achieve, he directly challenged them and attacked their competence and impartiality, in virtually identical terms.  He adduced no evidence to support his criticisms of Mr Paris.  [S]’s highly blinkered view of the family, and her apparent inability to recognise that there could possible be a valid inconsistent view, is, I am satisfied, a direct reflection of the father's attitude and approach.

3. However, this family dynamic is not new.  It existed from the start of the parents’ relationship.  That is not to say it is in the children’s best interests, but the influences that have shaped the views of all the children, including [I], have existed from the birth of each of them, and will not be removed by any order the Court might make.

4. Ultimately, I find that [I] wishes to have a closer relationship with his mother and wishes to increase the time he spends with her.  However, achieving a closer relationship with his mother is not necessarily a direct function of the time he spends with her, bearing in mind the opinions of both experts, which I accept, of the mother's emotional detachment from the children.

(b)   The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. [I] has close relationships with both his parents and his siblings. 

   
   

   Dr McGuire assessed [I] to be strongly allied to his father, but that he had been influenced by his father's emotional dominance over his mother.  The opinion of Dr McGuire, which I accept, was that [I]’s primary attachments are to the father and his sisters, and that the father provides the boy with emotional support.  This may be contrasted with the views of both experts about the mother’s emotional distance from her children.

(c)   The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The willingness and ability of both parents to facilitate and encourage [I]’s relationship with the other parent are in serious doubt.  Both have denigrated the other, and in the mother's case permitted her husband to do so, directly to the children.  Both parents have used the children for inter-parental communication.  Both parents, but especially the father, have sought to involve the children directly in the parental conflict.  Both parents thus have abused their children.  I deeply regret that I see no sign either party will change.

(d)   The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Leaving the child under the current arrangement, as the father proposes, and being home schooled from 2009, will leave [I] exposed for significant periods to the father's toxic influence against his mother.  It will frustrate one way [I] apparently believes the closer relationship with his mother that he seeks may be achieved, namely through additional time with her.  It will leave [I] isolated from his peers from 2009.  It will however leave [I] with considerable time with the parent with whom he is currently allied and from whom he draws emotional support, and will give him the opportunity to spend time with [R] on weekends he is with his father and for half school holidays.

2. If [I] lived with the mother half the time and attended high school, he would have extra time with his mother, as he seems to want, and he would have regular interaction with his peers.  He would be exposed less to the father's negativity about the mother, but the level of that negativity might increase.  As Dr McGuire suggested, an arrangement that the father cannot accept is one that is likely to be subverted by him.  It is also likely to expose [I] to the risk of tension with his elder siblings, who are all strongly allied with the father and to a greater or less extent hostile to the mother.  There is a risk that an equal time arrangement may present [I] with a conflict of loyalties, where he feels pressured to remain loyal to “the family”, which has become the father and the children in the eyes of the father and the parties’ daughters.  There is thus a risk in such an arrangement to [I]’s sibling relationships.

3. It is also possible that the more time [I] spends with his mother, the greater his boredom will become.  There is no assurance he will be able to take his dog with him to his mother's.  The mother's emotional aloofness may become more problematic if the extra time [I] spends with the mother under the mother's proposal does not result in the closer relationship with her the boy seems to want.  There are thus factors that suggest an equal time arrangement may harm the boy’s relationship with his mother rather than improve it.

4. The Independent Children's Lawyer’s proposal of 4 continuous nights per fortnight with the mother during school term and half school holidays, if accompanied by attendance at high school in 2008, would give [I] the extra time with his mother he seems to want, will significantly reduce the boy’s exposure to the father’s negativity towards the mother, will enable him to mix regularly with his peers, and will reduce, but certainly will not remove, the risk of the father and his siblings reacting strongly against the mother's extra time in a way that [I] perceives as requiring him to choose between “the family” and his mother.

5. The mother's alternative proposal of 9 nights a fortnight with her and 5 with the father was not put to the experts by her counsel in cross-examination.  Such an arrangement in my view would expose [I]’s relationship with his mother to two significant risks.  The first is the actual or perceived pressure [I] may come under in relation to his loyalty to “the family”.  The second is the risk of frustration and anger at the mother if her emotional detachment and aloofness from [I] prevents the boy achieving the closer relationship with his mother that he apparently yearns for.  It would also remove [I] from the parent who provides him with his main emotional support.  The reduction in the duration of [I]’s exposure to the father's negativity about the mother that the mother's 9/5 option entails would be an advantage, but would not shield [I] from that negativity, and could in fact exacerbate the level of it.

(e)   The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This is not a significant issue.  While travel times have been raised as relevant, that has been in relation to [I]’s schooling, not the time he spends with each parent.

(f)       The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of both parents to meet [I]’s psychological needs is seriously questioned by their long term and ongoing psychological abuse of him through their mutual denigration and involvement of the boy in the parental conflict.  The father's conduct in this regard seems the more egregious.  Being the dominant parent throughout their cohabitation and since, the father's ability to influence the children is probably greater than the mother's, especially when taken with her emotional detachment from the children.  The mother's detachment and apparent aloofness itself is an impediment to the mother meeting [I]’s needs.

2. The capacity of both parents to meet [I]’s educational needs has been called into question.  I am not satisfied the mother cannot adequately help [I] with his school work.  I have doubts about the father's ability to adequately assist [I] with his school work and resources.  After the mother vacated the former matrimonial home and the father was the primary carer of [R] and [I], [R] rang the mother frequently, sometimes several times a day, for assistance with her school work, saying the father could not assist her.

(g)   The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. [I] is 12.  His views, to the extent they can be clearly discerned, deserve significant weight.  However, those views are not easy to discern.

(h)   If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

1. This matter is not relevant.

1. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The parents’ mutual denigration in front of the children and involvement of the children directly in the parental conflict speak of a poor attitude by both parents to the children and their responsibilities as parents.  As mentioned, the father's behaviour in this regard is apparently the more egregious.  Both parents through this behaviour have hindered the other parent having a meaningful relationship with [I] and being involved in his upbringing.

2. An additional impediment to the mother's fuller participation in [I]’s upbringing appears to stem from the father's attitudes to the roles of husbands and wives, and hence fathers and mothers.  The father's patriarchal views of the family seem to stem from his religious beliefs.  While the Court respects the religious beliefs of parties coming before it, and the right of each citizen to hold their religious beliefs, where the manifestations of those beliefs in the conduct of a parent impinge adversely on the welfare of a child in relation to whom the court is to make parenting orders, the child’s welfare prevails over any notions of religious freedom.

1. Whether or not the father believes in a God-given right or responsibility to be solely or primarily responsible for his [I], the fact is that [I] has two parents, and, other things being equal, he will benefit from being free to pursue a full and meaningful relationship with both of those parents.  That means being free from exposure to one parent denigrating the other, being free from being a messenger between his parents, being free from involvement in his parents’ conflicts and arguments, being free to enjoy his time with each parent, and being free to relate to one parent enjoyable experiences with the other parent without fear of offending or upsetting that parent.  These are far more important freedoms for [I]’s welfare than any notion of religious freedom for the father, and at present [I] is being denied these freedoms by both his parents.

(j)       Any family violence involving the child or a member of the child’s family

1. I have already made findings as to family violence.  It seems to have occurred years ago, beyond [I]’s recollection, and does not seem to be a current issue.

(k)   Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person

1. There is no evidence of any family violence orders in existence affecting any relevant adult or any of the children.

(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 child

1. It does not appear that any of the proposed orders is less likely than any other to lead to further litigation.

Assessment of competing proposals and other options

1. I have already canvassed many of the advantages and disadvantages of the various proposals when dealing with the effect of change under s.60CC(3)(d).

2. Mr Paris suggested he could see no valid reason why [I] should not live equally with each parent from the beginning of 2009, but proceeded to express concern at the parents’ ongoing lack of communication and high levels of parental conflict.  He expressed concerns at the negative impact of this on [I]’s psychological wellbeing.  Dr McGuire too was very concerned about this, and expressed the view that if [I] went into a shared care arrangement in 2009 the parental conflict and lack of effective communication would make such an arrangement unlikely to succeed.  She was of the opinion, and I accept, that [I] is not of an age yet where he can be reasonably expected to take responsibility for all the myriad arrangements necessary to make an equal time arrangement work at a practical level.

3. Both experts expressed the view that the Independent Children's Lawyer’s proposal was the best option.  Mr Paris said the Independent Children's Lawyer’s proposal may be better able to be implemented than an equal time arrangement.  Dr McGuire said she regarded the Independent Children's Lawyer’s proposal as the ideal arrangement provided [I] was protected from parental conflict and denigration of one parent by the other.

4. In my view, an equal time arrangement is clearly not in [I]’s best interests.  It simply is impractical because of the parental conflict and lack of communication.  For an equal time arrangement to work, the parents must be able to effectively communicate in relation to the myriad issues that arise in managing a school age child’s life, including attention to homework and assignments, ensuring the child has the appropriate gear and equipment on the right day at school, communicating changes to the normal school timetable that arise from time to time, and arranging social activities with [I]’s friends, to name but a few.  There is also the issue of [I]’s boredom even under the current regime with the mother, something the mother is aware of but unwilling or unable to address even by having the boy’s dog come when the boy does.  I doubt that the mother has or could have the connection with the boy to sustain the relationship under an equal time arrangement.  I am concerned that an equal time arrangement may lead to a deterioration in [I]’s relationship with his mother, quite independently of the father's adverse influence, if [I] felt frustrated at his inability to form the closer attachment he seems to crave with his mother, an attachment which on the evidence seems unlikely to develop.

5. The mother's alternative proposal of [I] spending 9 nights a fortnight with her and 5 with the father would not be in [I]’s best interests, because in my view it would involve significant risks to his relationship with his mother.  The submission on the mother's behalf that the arrangement for [I]’s time with each parent should not in effect be dictated by the father's denigration of the mother and involvement of the children in the parental conflict ignores the fact that the order to be made is determined by what is in [I]’s best interests, not by any notions of punishing one parent or rewarding the other.

6. As I have said, both parents have emotionally abused their children.  Neither satisfied me they are likely to change in the future.  [I] will, I am satisfied, continue to be exposed to both parents’ harmful behaviour in the future.  I cannot ignore the effect of the alternative parenting arrangements under consideration on [I]’s exposure to that harmful behaviour, the effect that exposure may have on [I], and the implications of it for his relationships with both parents.

7. I accept Dr McGuire’s pragmatic and realistic acknowledgement of the relevance of whether a particular parenting arrangement might be one the father can stomach to the likelihood it will work for [I]’s benefit.  I am satisfied that an arrangement such as the mother's alternate proposal will risk a significant escalation in the level of hostility and negativity towards the mother from both the father and [I]’s sisters, that there is no viable proposal or option to effectively shield [I] from this, and that it may well result in the total loss of [I]’s relationship with his mother.  It is a proposal that is not in [I]’s best interests.

8. The Independent Children's Lawyer’s proposal, with [I] attending [O] School from Year 7, will remove the necessity for the parents to meet for all but the school vacation changeovers and reduce significantly [I]’s exposure to the toxic atmosphere between his parents.  It will enable him to mix with his peers at school.  In having him educated at school it will provide better educational opportunities than the father can provide through home schooling, and will remove [I] from the father's presence, and thus his negative influence about the mother, during school days.  It will give [I] the extra time with his mother he seems to want and thus give him an opportunity to pursue a closer relationship with the mother that seems to be the motivation behind his wanting more time.  It will give [I] each alternate weekend with [R] at the father's home.

9. Such an arrangement will still leave [I] in the father's primary care, and hence reduce the risk that he is perceived by his siblings, or perceives himself to be disloyal to the family unit as the children now identify it.  It will leave [I] spending the majority of the time with the parent from whom he draws the greater emotional support.

10. The father's proposal would frustrate [I]’s wish to have more time with his mother, and with home schooling would in my view compromise the boy’s educational prospects.  It would leave [I] exposed to the father's negative attitudes to the mother all day, every day except when he was sith his mother.  This arrangement is clearly not in his best interests.

11. The Independent Children's Lawyer proposed an order that the parents use a communication book to communicate information about [I].  However, Dr McGuire expressed concern that such a book may be misused and simply open another front in the parental war.  She suggested the parties be restrained from using the communication book other than to exchange information about [I].  However, the father has shown himself not to be amenable to the influence of a court order to modify his harmful behaviour, and I am satisfied that a communication book would be misused and not foster the exchange of worthwhile information about [I] between the parents.  I therefore do not intend to make that order.

12. If the parents are genuinely motivated to try to reduce the level of conflict and to improve their communication, Mr Paris has indicated some of the assistance that might help them to do so.  Unless the parties are motivated to change, they will not change.  If they both wish to work to improve [I]’s situation by reducing their conflict and improving their communication, they are free to access any of the services that can help them achieve positive change.  But I see no point in making an order that the parents do so when they have both shown themselves so far to be so obdurate.

Decision

1. I am therefore satisfied that the Independent Children's Lawyer’s proposal, with [I] to attend [O] School from Year 7, is the one that is in [I]’s best interests.

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate:  Deanne Bush

Date:  22 May 2008