BENSON & BROWNE

[2013] FamCA 710

FAMILY COURT OF AUSTRALIA

BENSON & BROWNE [2013] FamCA 710

FAMILY LAW – PROCEDURE – where the rule in Rice & Asplund does not apply to these proceedings.

FAMILY LAW – CHILDREN – best interests – with whom a child lives – with whom a child spends time – where father seeks orders for a week about shared care arrangement – where mother seeks orders for the children to live in her primary care – where there is a highly acrimonious relationship between the parties – where there are allegations of physical abuse – s 60 CC factors – where parties agree to there being equal shared parental responsibility – finding that it would not be in the children’s best interests to spend equal time with each of the parents – finding that, in light of the parties’ incapacity to communicate with each other and resolve difficulties associated with an equal time arrangement, it would be detrimental to the wellbeing of the children and also reasonably impracticable for there to be an equal time, shared parenting regime – finding that the best interests of the subject children would be served by them living together, primarily in their mother’s household during the school term – finding that it would be in the best interests of the children and reasonably practicable to spend substantial and significant time with the father.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Benson

RESPONDENT: Mr Browne

FILE NUMBER: ROC 675 of 2008

DATE DELIVERED: 12 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Rockhampton

JUDGMENT OF: Forrest J

HEARING DATE: 26 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Mr Polley (at the hearing on 6 and 9 September 2013 only)
Mr Grant (advocate at the trial)
Grant & Simpson

COUNSEL FOR THE RESPONDENT: Mr Galloway (at the trial)
Mr Lynch (at the hearing on 9 September 2013)

SOLICITOR FOR THE RESPONDENT:

David Eaddy & Co (at the trial)

Madden Lawyers (at the hearing on 6 and 9 September 2013)

Orders

1. That all previous parenting orders determined in proceedings between the mother and the father are hereby discharged.

2. That the parents of the children, S Browne born … 2003 and J Browne born … 2005, have equal shared parental responsibility for those two children.

3. That the child, S, shall be returned to the mother’s care after school today by being collected from school by the mother and the father shall stay away.

4. That the said children shall live with the mother during school term and at other times when they are not spending time with the father pursuant to the balance of these orders.

5. That the said children shall spend time with the father from straight after school on Friday until immediately before school on the following Monday (or Tuesday if that Monday is a public holiday or pupil free day) every second weekend during school term, commencing with the first weekend after school recommences after the September – October school holidays this year and then from the first weekend after school commences each new school term thereafter.

6. That the said children shall also spend time with the father from after school on Friday 20 September 2013 until 5:00 pm on Tuesday 1 October 2013 and from after school on the last Friday of school term each June and September until 5:00 pm on the Tuesday of the second week of the June-July and September-October school holidays each year thereafter.

7. That the said children shall spend time with the father for half of the Easter school holidays each year, alternating so that the father’s half includes the days of Good Friday, Easter Saturday, Easter Sunday and Easter Monday in 2014 and in each alternate year thereafter (regardless of whether those days fall in the first or second half of the holidays) and, should the children be with the father for the second half of the Easter school holidays, they shall spend time with him until just before school commences on the first day of the next term, and, should the children be with the father for the first half of the Easter school holidays, they shall begin to spend time with him at the end of school on the last day of school before the Easter school holidays commence.

8. That in determining the halfway point in the Easter school holidays for the transition of the said children between the parents, the holidays shall be considered as commencing at midnight at the end of the last day of school before the holidays and ending at midnight on the beginning of the first day of school after the holidays. The time for the transition of the girls between the parents shall be at 5:00 pm on the day that the exact half-way point falls and, if the exact half-way point falls at midnight, it shall be at 5:00pm before that midnight.

9. That the said children shall also spend time with the father for 25 days during the Summer school holidays each year, with the children’s time with the father to be the last 25 days of the Summer school holidays in the 2013/2014 holidays and each second year thereafter, and to be the first 25 days of the Summer school holidays in the 2014/2015 holidays and each second year thereafter.

10. That should the children be with the father for the last 25 days of the Summer school holidays, they shall spend time with him until just before school commences on the first day of the next term, and, should the children be with the father for the first 25 days of the Summer school holidays, they shall begin to spend time with him at the end of school on the last day of school before the Summer school holidays commence.

11. That in determining the 25 days the children are to spend with the father in the Summer school holidays, the first full day after school finishes at the end of the year shall be the first of the 25 days at the commencement of those holidays and the last full day before school commences at the beginning of the year shall be the last of the 25 days at the end of those holidays.

12. That transition of the children between the parents during the Summer school holidays shall be at 8:00 am on the first morning after the 25^th day when the children are with the father for the first 25 days and at 8:00 am on the first morning of the 25 days when the children are with him for the last 25 days.

13. That notwithstanding other provisions of these orders, the children shall spend Mother’s Day weekend with the mother and Father’s Day weekend with the father. If Mother’s Day falls on a weekend that would otherwise be the father’s weekend then the children shall spend the next weekend with the father in lieu of the weekend he misses and if Father’s Day fall on a weekend that would otherwise be the mother’s weekend then the children shall spend the next weekend with the mother in lieu of the weekend she misses but otherwise the alternate weekend timetable shall remain uninterrupted.

14. That the parent who does not have the children in their care at the time may telephone the children at 7:00 pm every Wednesday night and on each of the children’s birthdays and that parent’s own birthday and at 9:00 am on Easter Sunday and Christmas Day and the other parent in whose care the children are at the time shall ensure that the children are available to take the call and are able to speak on the phone with the other parent in private and without interruption.

15. That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, any partner or friend of the other parent, directly to the children or within the hearing of the children and each of the parents is restrained from allowing any other person to do so.

16. That each of the parents is restrained from discussing these proceedings or any matter associated with these proceedings with the children or within the hearing of the children and each of the parents is restrained from allowing any other person to do so.

17. That each of the parents is restrained from physically disciplining the children or either of them and each of the parents is restrained from permitting any other person to physically discipline the children or either of them.

18. That each of the parents shall keep the other parent informed at all times of his or her residential address and mobile telephone number and shall notify the other in writing of any change to those within forty-eight hours of any such change. 

19. That this order authorises any school that either or both of the children attend from time to time to provide either of the parents with any information that may lawfully be provided by a school to a parent of a child attending that school as may be requested from time to time by either of the parents.

20. That each of the parents shall keep the other parent informed about the health of the children and each shall provide the other parent with the name and contact details of any doctor or other allied health practitioner that either of the children is taken to by the parent at any time, to facilitate communication between the other parent and that doctor or other allied health practitioner about the attendance and any diagnosis and/or treatment of the child.

21. That this order authorises any doctor or other allied health practitioner that either of the children is taken to by a parent to provide the other parent with any information that may lawfully be provided by such a person to a parent of a child that person has seen and/or diagnosed and/or treated as may be requested from time to time by that other parent.

22. That provided the school first permits it, each parent shall be entitled to attend any events at the school attended by the children or either of them that parents of pupils at that school are welcome to attend.

23. That the parents shall continue to utilize a communications book that goes between them with the children to assist them in developing better communication in their co-parenting relationship.

24. That all transitions of the children from the care of the mother to the care of the father that take place on school days shall occur by the children being collected from their school or schools by the father or a person or persons nominated by him and the mother shall stay away.

25. That all transitions of the children from the care of the father to the care of the mother that take place on school days shall occur by the children being delivered to their school or schools by the father or a person or persons nominated by him and the mother shall stay away.

26. That all transitions of the children from the care of the mother to the care of the father or from the care of the father to the care of the mother that do not take place on school days shall take place at A Park.

27. That each of the parents shall complete a Parenting Orders Program conducted by or through the Family Relationship Centre in Town R, whether he or she has completed such a Program before or not, such Program to be completed within one year of the date hereof and each parent shall provide evidence in writing to the other parent of the completion of such a Program forthwith upon its completion.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Browne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 675 of 2012

Ms Benson

Applicant

And

Mr Browne

Respondent

REASONS FOR JUDGMENT

1. The parents of S and her younger sister, J, who are nine and eight years of age respectively, cannot agree on the living arrangements that should be in place for the two girls. They ask this Court to determine and put in place those arrangements by way of parenting orders.

1. The applicant mother, Ms Benson (“the mother”), and the respondent father, Mr Browne (“the father”), have been in fairly constant dispute about the most appropriate parenting arrangements for the girls since they separated in 2008, after a seven year relationship living together in Western Australia and for the last couple of years just near Town N in central Queensland.

1. Proceedings commenced by the mother in the Federal Magistrates Court (as it then was) in late 2008 were settled just before trial in February 2010. Orders were made, with the consent of the parents, that the two girls live with each of the parents in an equal time, shared care arrangement. It was initially on the basis of four nights/three nights in one week and three nights/four nights in the other week before changing to week about, Friday to Friday, at the beginning of 2011. They also agreed to sharing parenting responsibility jointly and, amongst many other things, not to physically or verbally abuse the children or allow any other person to physically discipline the children.

1. By September 2011, the parents were again in dispute about the parenting arrangements, although they had been before the Court throughout that year in respect of property adjustment proceedings that finalised by consent in May 2011. The mother commenced proceedings again in November 2011, apparently concerned that the father, a skilled tradesman, was working away from home and leaving the girls in the care of his parents during the weeks they were living in his care. The mother then, a little later, alleged the father had been physically abusive to the girls.

1. In March 2012, FM Cassidy (as her Honour then was) varied the parenting orders on an interim basis to provide for the girls to live with the mother and spend time with the father each alternate weekend from after school Friday until before school Monday. That was based on her Honour’s apparent acceptance that the father had physically disciplined, or at least sought to physically discipline, the eldest girl in a way that led to her dress tearing and the child experiencing bruising and grazing on her torso just under her right arm. A family report was ordered and one was prepared in late May that year. The proceedings were transferred to this Court and before the trial in late November last year, an updated family report was obtained from the same report writer.

1. I heard the proceedings in Rockhampton in late November last year and reserved my judgment at the end of the trial. The children continued to live with the mother and spend each alternate weekend and half of their school holidays with the father. Regrettably, due to the obligations of having to hear and determine so many other parenting and property adjustment disputes in this Court, final determination of this matter has been delayed until now.

1. Earlier this year, whilst my judgment remained reserved, the parents came back before the Court. The mother put evidence before the Court that the father was still travelling and spending days away from home for work while the girls were in his care during the holidays and that he was leaving them in the care of the paternal grandparents. In response, the father advised the Court that he would not do that anymore and the matter remained reserved.

1. Recently, the dispute has intensified again. The father refused to send the girls back to the mother at the end of a weekend on which they stayed with him early last month.  He did not even send them to school at the start of the week after that weekend. He asserts that the girls have been receiving physical discipline in the mother’s home from the mother and her new partner who moved in earlier this year. He also asserts that the girls did not want to return to their mother’s care or to go to school and risk being collected by their mother and taken home by her.

1. However, sometime soon after the father kept the girls in his care, the younger sister voluntarily went back into the mother’s care and has again started spending time with the father on alternate weekends, going back to her mother at the end of that time. The older sister remains in the father’s care, the father asserting she still refuses to go back to the mother’s care at all.

1. The father’s unilateral action in holding on to the children prompted an Application to be filed by the mother seeking their immediate return to her care. That was listed before me for hearing on Friday 6 September 2013. At the trial in November last year the father sought a return to the equal shared care parenting arrangements that had been in place from February 2010 to March 2012. In the Response he filed to the mother’s recent Application for the return of the children to her principal care, the father sought orders that the children both live principally with him and spend alternate weekends with their mother.

1. At the hearing on Friday 6 September 2013, I determined to reopen the hearing of the case and to take more evidence. I ordered the parents to bring the two girls to Brisbane for a Child Inclusive Conference with a family consultant on Monday morning, 9 September 2013. A family consultant saw the family that morning and gave evidence that same afternoon. He was cross-examined by the barristers who appeared for each of the parties.

1. At the conclusion of the hearing, counsel for the mother submitted that the final orders the Court should make ought to be in accordance with the original orders made by consent in February 2010 as varied by the orders made in March last year. That outcome would see the children continue to live primarily with the mother during school term, spending alternate weekends with the father, with the holidays to be shared equally between them.

1. Notwithstanding the father’s Response in which he sought orders that the two girls live principally with him, at the conclusion of the hearing on 9 September, counsel for the father submitted that there should be a return to week about shared care, conditioned upon the children’s week in their mother’s home being during the week when the mother’s new partner is working away, as he does every second week.

The Family Report Writer’s evidence

1. In evidence at the trial last November were the two family reports from the psychologist, Dr H, who had interviewed the parents and the children at two different points during 2012 – May and October/November.

1. At the end of his first report, Dr H expressed the opinion that there is a complete breakdown in meaningful communication between the two parents. He also reported an opinion that the father “demonstrated cognitive distortions in his perspective regarding the mother.” He had earlier recorded the father saying to him in respect of the mother “I hate her, … she’s despicable.”

1. Dr H also reported both parties having the capacity to display anger but went on to record his opinion that it was the father who “shows a history of resorting to physical punishment of the children.”  The report earlier recorded that the father accepted that he hit the girls with his hat and that there had been an incident in March 2012 when the eldest girl and he had some physical confrontation at the breakfast table. The father had attributed the incident to the child not wanting to eat her breakfast.

1. Dr H recorded that in his interview with the eldest child she had “consistently indicated that her father frequently resorted to smacking”, sometimes smacking them very hard. She is recorded as telling Dr H that the father gets angry with the girls “often” and more than their mother did. Dr H did record though that the youngest child discounted that either of the parents became angry or smacked her.

1. Dr H reported the views of the children as to their preferred parenting arrangements. He reported that both girls indicated a desire to return to a shared-care arrangement.

1. Notwithstanding the girls’ recorded views, Dr H opined that the poor level of communication displayed between the parties at that time as well as the father’s apparent reversion to physical discipline of the girls, contraindicated the viability of an equal shared care arrangement.

1. He recommended in the conclusion of that first report that the girls continue to live primarily with the mother and spend alternate weekend time and half school holidays with the father. He also recommended that the father would benefit from a comprehensive parenting course, with particular attention to be given to appropriate techniques and strategies for child management.

1. In his second report, Dr H reported on a couple of incidents alleged to be examples of the father’s uncontrolled anger. One was an allegation that the father had become angry with the eldest child and pulled her off a horse, throwing her helmet at her and injuring her ankle. The other was an allegation that he had gone to the mother’s adult son’s (the child of a former relationship of the mother) place of employment and angrily confronted him over assertions by the youngest girl that her half-brother had acted inappropriately with her.

1. Dr H recorded that the eldest child, S, told him, when asked which parent got angry the most, that it was the father. He recorded that she then went on to tell him about experiencing the father’s anger when she was on the horse. She is recorded as telling Dr H that after a long stand-off with the father, arguing about her riding of the horse, the father threw her off by her arm such that she landed on a fire place she had previously built of rocks. She is recorded as telling Dr H that then she ran up to the house to call her mother and her father then threw the helmet which hit her ankle.

1. The mother had apparently taken the child to their GP to attend to her sore ankle upon her next return to her mother’s care. The child told Dr H that she had told the story of how it happened to the GP. Dr H records that the father got very angry when he found out that the child had been taken to the GP and told that story and took the child to the GP again, apparently to recant the story she had told him before. Dr H records the child telling him that she then told the GP that she had actually hurt her ankle by falling down the stairs because she did not want her father to get into trouble. Dr H records that when he asked the child about the incident again on the second day of interviews for the second report she confirmed the truth of all she had told him the day before but acknowledged to him that her father and her younger sister, J, both said that the incident had never happened that way.

1. Dr H did also record that J did offer a different account of that incident, but one which still included the central assertions that the father had become very angry and had pulled S off the horse by the hand and had thrown her helmet in anger, though not near S. Dr H also recorded that J reported to him that she and her sister were required by their father to tell him all that they did on their holidays or he would get mad at them. She is recorded as reporting that her half-brother had given her a “wedgie”, put her toes in her knickers and tied her hands up. She apparently quickly added that he was just playing and did not know he was being rough and that she felt safe with him and loves him a lot.

1. Dr H again recorded that both of the girls told him that they wanted to return to the previous shared care arrangement. He reported that they truly loved their time with their father at his property which is about 40 minutes driving time from N.

2. Dr H further reported that the father had since the first report undertaken at some significant expense a private parenting course with another psychologist. Dr H described it as an excellent course. Dr H reported that the father readily explained to him concepts he had learned about disciplining the children, including by use of a modified time-out technique. Dr H went on to report though that the father discussed the action of insistently taking S to the GP and angrily confronting the doctor about what she had reported to him previously and the action of angrily confronting the girls’ half-brother over the matters reported by J without any apparent insight into the inappropriateness of that behaviour. 

1. Dr H expressed the concluding opinion that the best interests of the girls would be met by parenting orders such as those sought by the mother, again relying on the lack of communication between the parents and what he considered was the father’s anger management problems.

1. In Court at the trial, Dr H gave further oral evidence of his opinion that the girls do not have as “easy a relationship” with the father as they do with the mother. He again reported that the girls say they are interrogated by the father and placed under pressure to divulge what happens at the mother’s place. He also opined that there was rigidity in the father’s expectations as to his position and rights as a parent.

The Father’s evidence at the trial

1. At the trial, the father was questioned about some of the alleged anger management incidents.  I have to say, with respect, that I also got a sense that he was minimising the seriousness of the events and providing excuses for his conduct rather than any insight into the inappropriateness of such conduct, particularly in respect of the incident that arose out of S’s refusal to eat her breakfast whilst in his care. He conceded that he had gone to physically pick her up and put her over his knee to smack her on the bottom and that is when she had suffered the bruise and graze on her torso, through some catching of her dress. 

1. I was also satisfied that he had become inappropriately angry with S when she was on the horse and not doing what he directed her to do and that his response was a physical one, inappropriate in the circumstances. I was also satisfied that his insistence in taking S back to the GP and placing her in that unfortunate position where she, on her own account, was obliged to recant her story to protect her father was an inappropriate response.

1. By the time of the trial, the father was asserting that he had eschewed smacking the girls, but I was still satisfied that he had demonstrated impulsive angry responses to things that he was unhappy with and placed inappropriate pressure on the girls in respect of matters arising out of the conflict and his animosity towards the mother.  He had done so even after having undertaken a private parenting course specifically dealing with child management.

The Recent Developments

1. The mother formed a new relationship with Mr G earlier this year and he moved into the mother’s home in N with her and the girls around March.

1. The father asserts that the children have both been “constantly reporting” to him that they have been physically disciplined in the mother’s home since early in the year, including, in particular, by Mr G who is alleged to have been pulling S’s ear and twisting it as well as grabbing her on the arm, causing bruising. Considering the father’s evidence, it is also clear that the father has been discussing these proceedings directly with the children. He clearly encouraged S to call Kids Help Line and to speak with Police early in August 2012. His evidence is that S has also spoken to a person from Centrecare (the Catholic social welfare organisation) about it. He clearly facilitated that. It was around this time that the father determined simply to hold on to the children and not return them to the mother, informing her solicitor of that intention.

1. Yet again, there was drama at the GP’s rooms when there was a confrontation between the mother and the father when the father took the child to the GP for physical examination when she was kept away from school. The police were called but there was apparently no intervention by them in respect of the child. The police seemingly left it to this Court’s processes to determine the dispute. 

1. The GP wrote a letter dated 23 August 2012 that the father put into evidence. It confirms that he has seen S repeatedly, with her mother and with her father, and that she is suffering ongoing stress due to the conflict between her parents. He says he has referred her for counselling with a psychologist. He also reports her as saying that she did not want to return to live with her mother and her new partner, reporting that the new partner has been “overly physical in his correction”. The GP wrote that S reported that she was dragged by the ear and physically hurt when grabbed by the arm. The GP said there “was no permanent damage done from these occasions” although he did observe some very slight bruising when he did examine the child.

1. The mother and her partner deny that there has been physical discipline in the mother’s household.

The Family Consultant’s evidence

1. The experienced family consultant, Mr L, saw the family at my direction on Monday morning 9 September 2013. He interviewed the parents separately, then the two girls separately, then the parents again with their current partners.

1. Mr L gave evidence at length about his interview with the eldest child, S. He began by observing that she had spoken in generally positive terms about both of her parents’ households, describing much that she is fond of in each. He reported her as having very vivid memories of her parents fighting and being upset by this. He opined that she is a child who has great difficulty dealing with the conflict between her parents and who is becoming a very reactionary and angry child who does not respond well to discipline from either of her parents. He reported that S complained to him that her father still makes her and her sister go outside in the dark at night for timeout if they are naughty and she does not like that as she gets scared.

1. Mr L observed that the child’s relationship with her mother has apparently deteriorated since the mother formed a new relationship with Mr G. Mr L reports S telling him that she is frightened of Mr G and that he had threatened her and grabbed her ear.  But Mr L went on to state his opinion that S is probably changing the story around a bit, even exaggerating it, suggesting that the child’s reporting cannot necessarily be relied upon as accurately reflecting events. He immediately referred to the story about the incident in which the father and S had argued whilst she was on the horse last year and the helmet had been thrown. He observed that the child had seemed keen to tell him that she had hurt her ankle on the stairs and not by being hit with the helmet. This is a different version than the one she told Dr H was correct last year. It is the version she told Dr H she had changed to when taken to the GP by her father so as to prevent her father from getting into trouble. Mr L mentioned this to highlight the apparent unreliability of S’s accounts of behaviour towards her by her parents.

1. Mr L reported that S told him that she should spend equal time with each parent, staying with her mother from Wednesday to Wednesday when Mr G is not in the mother’s home. This is the exact position now proposed by the father. Mr L, like Dr H before him, also expressed the opinion that S is not yet mature enough for her expressed views to be given determinative weight by the Court.

1. Mr L then reported on his interview with J.  He said that J, too, is very angry with both of her parents because of the conflict between them. Like her sister, J complained about how both her parents discipline her. She also complained about how angry her father gets and that he makes her and her sister go outside for timeout when it is cold and dark.

1. Mr L told the Court that J reported being comfortable with Mr G and spoke positively about him. At that point, he also added that he was not convinced that S has always regarded Mr G as badly as she was now reporting.

1. Mr L reported that J, like her sister, expressed the view that a 50/50 care arrangement with her mother and her father was what should be in place. Again, Mr L observed that J’s level of maturity and real lack of understanding of the ramifications of such an arrangement should prevent the expression of her views being singularly determinative of her living arrangements.

1. Mr L told the Court that he was not as concerned about J as he is about S’s presentation, as J appears more resilient. He expressed concern that unless the parents begin to more effectively co-parent, there is a risk that S might just keep transitioning of her own accord from household to household whenever she gets angry with the parent she is with, knowing she will get support from the other parent. He effectively expressed the opinion that would not be good for S’s healthy emotional development.

1. Mr L reported, having interviewed the mother and Mr G, that he considered there was nothing he observed to suggest Mr G was a significant risk to the children.

1. In cross-examination by the mother’s counsel, Mr L agreed that it was possible that S is, in part, influenced by her father’s views about Mr G. Mr L observed that the father had a negative view of Mr G although he does not even know him. Mr L also agreed that it is normal for a child of S’s age to have some anxiety in respect of a new step-parent, particularly if that step-parent takes on a disciplinary role in the household.

1. In cross-examination by the father’s counsel, Mr L opined that S was rather emotional, anxious and easily distressed and holds strong views. He did not consider that S had been coached by her father to say the things that she had about Mr G and did not consider that her mother and Mr G thought that she had been. Mr L reported that they acknowledged that S would be anxious returning to her mother’s care and that she would be worried about it. He considered that they seemed sensitive to her needs in such circumstances.

1. Mr L consistently expressed his opinion throughout his oral evidence that an equal shared care arrangement as the parents had in place between February 2010 and March 2012 would not be an outcome that he considered would be in the best interests of the girls. He expressed the opinion that the conflict still existing between the parents, evidenced by their failure to be able to communicate with each other at all, and the incidents that continue to emerge between them in respect of the care of the children, is not conducive to a shared care regime during the time that the children are going to school. He did not oppose a sharing of their recreation time of weekends and school holidays.

The Evidence of conflict and the parents’ inability to communicate reasonably

1. There is no dispute that the relationship between the parents is extremely poor. Although they consented to orders that provided for a shared care parenting regime in 2010, I am satisfied they have, since an acrimonious separation, never been able to put their differences aside to focus on a co-operative parenting regime.

1. Prior to and after the consent orders of March 2010, most communication between the parents was done in writing through communications books that went back and forth between them with the girls. Two of those were put into evidence at the trial. They reveal many communications bristling with distrust, animosity, anger and defensiveness. They reveal limited, if any, flexibility between them in respect of arrangements.

1. The communications books also reveal disagreement about their permitted attendance at the girls’ school and the evidence further reveals that problems began to emerge at the school over the father’s visits to the school. In evidence was an e-mail sent from the Principal of the school to various persons with Queensland Education Department e-mail addresses. I am satisfied that they were most probably teachers and staff at the school. The Principal’s email was dated 13 September 2012 and informs that the father had agreed with her to report to the office and sign in when he first enters the school. It observes that if he wishes to work in a daughter’s class room the administration office would contact the teacher to ascertain if it is convenient and that any other contact between the father and the girls at the school would take place in front of the office.

1. The evidence also reveals that these issues of the father’s attendance at the girls’ school also emerged against the factual premise of the mother actually being employed in an administrative assistance role at the girls’ school. That now has changed with the mother having left the employ of the girls’ school and taken up a position at a different school.

1. The recent evidence supports a finding that things have become worse at the girls’ school. Both parents have, as I understand the evidence, now been banned by the school’s administration from coming onto the school grounds at all. I am satisfied that this outcome could only have come about because of the school determining that the presence of either the mother or the father, or both of them, on the school grounds was proving disruptive and not in the best interests of the girls.

1. The mother herself confirmed in oral evidence at the trial that the parents do not speak. That fact, and the fact that the two sisters, nine and eight, have now been forced to live apart over the last few weeks without any apparent ability on the part of the parents to be able to flexibly and reasonably discuss and resolve the issues that have acutely emerged again between them, suggests that the capacity of the parents, collectively, to be able to do so is non-existent.

1. However, the mother, although not free of responsibility for the enduring conflict and the distrustful relationship with the father, demonstrated, to my satisfaction at least, by a willingness and capacity to send the child, J, to the father’s home in recent weeks (even at a time when the existing orders did not require it). She did that so that the two girls could be together and so that J’s relationship with her father could continue. That satisfies me that she is able to focus on the children’s needs at critical times.

Determining the appropriate Parenting Orders

1. The Court is required by the parents in this case to make parenting orders. In undertaking the task of deciding what particular parenting orders to make this Court must regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests the Court must consider the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), including the primary considerations of the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Each of the parents has parental responsibility for these two girls. That means they each have all the duties, powers, responsibilities and authority which, by law, parents have in relation to children, regardless of the fact that they have been separated for several years. Pursuant to the existing orders, that parental responsibility is to be exercised jointly by them.

1. I understand the imposition of joint parental responsibility by the existing orders to require the parents to “share” that parental responsibility equally. Pursuant to s 65DAC of the Act where that has been provided for by court order and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the children (issues about the care, welfare and development of the children of a long-term nature including their education, their religious and cultural upbringing, their health, their name and changes to their living arrangements that make it significantly more difficult for the children to spend time with a parent) that decision is required to be made jointly by the parents. It cannot be made singularly by one parent or the other.

1. Section 65DAC(3) requires the parents to consult each other about the decision to be made and to make a genuine effort to come to a joint decision about the issue. The existing orders provide for the parents of these two girls to refer any such decision upon which agreement cannot be reached, despite consultation and genuine effort to reach an agreement, to mediation (family dispute resolution processes) before further resort to Court.

1. As already observed, the Court is being required to make fresh parenting orders between these parties. At the conclusion of the trial late last year, counsel for the father submitted that the mother’s application for fresh parenting orders should be dismissed with the orders of February 2010 being reinstated as there had been no demonstrated change in circumstances from those that prevailed at the time those 2010 orders were made by consent. Counsel submitted that the principles espoused by the Full Court in the decision of Rice & Asplund (1979) FLC 90-725 applied even though the trial had concluded. He submitted that the matters the mother relied upon to seek a change to the equal shared care arrangements provided for in those consent orders were proven to be without foundation thus requiring reversion to the previous equal shared parenting orders regime.

1. Whilst I do not disagree with the submission that the Rice & Asplund  principles can be considered and applied, if appropriate, having regard to the best interests of the subject children, even after a trial has concluded and that they are not restricted to application in threshold hearings alone, I respectfully reject the submission that their application in this case will result in reversion to the parenting orders regime provided for in the February 2010 consent orders.

1. As I have discussed already, sufficient factual circumstances have emerged in these proceedings to the point of delivery of this judgment to satisfy me that review of the parenting arrangements to determine what is now in the best interests of the two girls is appropriate, irrespective of what the parents agreed to in February 2010.

1. Moving to a determination of the actual parenting orders to be made now in this case, I begin by acknowledging that neither parent seeks any change to the sharing, equally, of parental responsibility. Although I am concerned about the parents’ collective capacity to be able to consult and make genuine effort to reach agreement about decisions that are to be made in the exercise of parental responsibility, as neither parent proposes any other outcome, I shall make an equal shared parental responsibility order, accepting, as the parents obviously do, that it is in the best interests of these two girls for them to continue to equally share that parental responsibility.

1. If a parenting order is to provide that parents are to have equal shared parental responsibility for children then, pursuant to section s 65DAA of the Act, the Court must consider:

(i)Whether the children spending equal time with each of the parents would be in the best interests of the children; and

(ii)Whether the children spending equal time with each of the parents is reasonably practicable; and

(iii)Making an order to provide for the children to spend equal time with each parent if each of those questions is answered affirmatively.

1. The parents previously agreed to orders being made that provided for the children to spend equal time with each parent. Those orders determined the arrangements for nearly two years. The parents live about 40 minutes apart; the mother in N, the father on a rural property 40 minutes driving time from N. Clearly, the girls can still go to the same school that they attend in N if living at their father’s home. There is no impracticability created by that fact, even though that would require car travel of 40 minutes each way.

1. The father currently is not working in paid employment and is, I accept, available to care for the children full-time, be that during school time or holiday time.  The mother works at a local school. Presumably, her hours of work fit within school hours and do not impact much on her ability to be available to care for the children full-time outside school hours.

1. However, one of the matters that I must consider, in determining, whether it is reasonably practicable for the children to spend equal time with each of their parents is the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an equal time arrangement.

1. It is demonstrably clear that the parties do not have the current capacity to communicate with each other and to resolve difficulties that might arise between them in implementing an equal time arrangement. They did not have that capacity during the time when the equal time arrangements were previously in place. Disagreements and conflict continued to arise. Entries in the communications books reveal that. Many such disagreements arose over ordinary day to day activities.

1. The conflict the parents have continued to experience in the five years since their separation, notwithstanding the mother’s previous completion of a Parenting Orders Program and the father’s completion of a private parenting program which emphasised child management, does not make me optimistic about their future capacity to communicate with each other and to resolve difficulties.

1. I am satisfied that incapacity would result in detriment to the well-being of the children if they were again to be made subject to an equal time shared parenting regimen. The existence of high conflict and incapacity to communicate between parents where the children are required to move between them and their households’ week about, in my view, significantly increases the risk of exposure of the children to the conflict and poor outcomes caused by that incapacity to communicate. That was certainly the opinion of Dr H and also the opinion of Mr L. I accept their opinions as being correct.

1. Accordingly, I am satisfied that it is not “reasonably practicable” for the children in this case to spend equal time with each parent. The same factors persuade me that the children going back to an arrangement of spending equal time with each of the parents is not in their best interests, even though both of them say that is what they want. As to those views expressed by the girls, I accept the evidence of Mr L that neither girl is yet mature enough for her wishes to be determinative of the outcome.

2. I respectfully reject the submission made by counsel for the father on Monday 9 September 2012 that one reason for putting equal shared care arrangements back in place is the fact that the conflict between the parents is unlikely to be resolved if the Court does not do so. Simply because one parent might be so unhappy with an outcome that his or her unhappiness will lead to more conflict is no reason for the Court to make orders in the terms sought by that parent.

1. I accept the opinion evidence of Mr L that the best interests of the girls would be served by orders being made that facilitate the two girls living together primarily in one household during school term. Dr H expressed the opinion at the end of his first report and at the end of his second report that accorded with Mr L’s. He went further than Mr L did and expressed the opinion that the household in which the girls should primarily live during school term should be the mother’s household, supporting this by reference to his concerns about the father’s impulsive behaviour and anger management. The evidence that I had before me at the trial in November last year and the evidence that I had before me recently, cause me to accept Dr H’s opinion about this and to find that the father’s impulsiveness and anger management as well as his clear disdain for the mother and, now, her new partner, are all not conducive to the best interests of the girls being served by requiring, by order, the children to live primarily with their father and to just spend time with their mother. I am satisfied that the girls’ relationships with each of their parents will be more likely to be maintained and encouraged by arrangements where they live primarily with their mother and spend time with their father.

1. I am satisfied, having heard Mr L’s opinion evidence, that J and S will be appropriately cared for in their mother’s home and that Mr G presents no unacceptable risk to either of them should he be living in the household at the same time. Whilst I cannot find, in the circumstances, that S’s concerns about the mother’s household are completely unfounded, I am satisfied by Mr L’s evidence that the mother and Mr G displayed understanding and insight into S’s issues and the need to deal with her in a very sensitive and careful fashion upon her return to living primarily in their household. I intend to so order.

1. In these circumstances, I am required to go on to now consider whether the children spending substantial and significant time with each of the parents would be in their best interests and whether that is reasonably practicable. If so, I must then consider making an order that provides for that.

1. Substantial and significant time with a parent must include days that fall on weekends and holidays and days that do not fall on weekends or holidays (school days). It must also allow the parent to be involved in the children’s daily routine and occasions and events that are of particular significance to the children and of special significance to the parent.

1. As I understand the evidence of both Dr H and Mr L, they each expressed the opinion that it would be in the best interests of these two children to primarily live with the mother during school term but spend time with their father from after school on Friday until before school on Monday each alternate weekend and to share the school holidays.

1. By spending some time with the father on Fridays and Mondays during school term, the children are spending time with him on days that do not fall on weekends or holidays. By spending time with him on those days during school term, the father is also able to be involved, albeit to a lesser degree than if they spent more school days with him, in their daily routine. Rather pointedly though, it is the incapacity of the parents to communicate with each other and to be able to resolve difficulties that might arise in the implementation of an arrangement that would have the father more involved in their daily school term life that persuades me against finding that it is in the girls’ best interests to spend more of those school days with him.

1. However, that said, despite their lack of maturity to be able to truly determine what is in their own best interests, the girls have made one thing clear: they want to spend more time with their father than they have been. They have also made it clear to two different report writers that they very much enjoy their time at the father’s home, particularly with the animals they have there and that there are positives for them in his home. I am also quite satisfied that their father is entirely devoted to his daughters and loves them dearly and is completely committed to trying to make their lives better for them, including by undertaking courses that might improve his capacity to parent. I am equally satisfied that the girls have good, loving relationships with their paternal grandparents who also live locally and who like to see their granddaughters. I expect that the girls only get to see their paternal grandparents and spend time with them during the time that they spend with their father. I am also conscious of the fact that the father is not working at the moment and now seems committed to organising any employment and other activities he does away from the property around his parenting obligations, particularly when the girls are in his care.

1. In all of these circumstances, I am satisfied that the girls should spend some more time with the father during the course of the totality of the school holidays each year than they do with their mother. I consider that would allow them to enjoy longer periods in the father’s care at his rural property and with their animals, particularly in the relaxed atmosphere of school holiday time. That also gives them a bit more time within which they can continue to further their relationships with their paternal grandparents. I consider that in their best interests, providing them with real opportunity to continue to develop the meaningful relationships they have with their father as well as the ones they have with their mother. The mother will have less than half of all the school holidays with the girls, but given that they will be spending most of each school term with her and the fact that she works at a school and must have all of the school holidays as leave herself, she will still be able to have a lot of enjoyable time with the girls, including substantial blocks of time during school holidays.

2. The orders I intend to make will provide for the children to spend a little more than half of the June/July, September/October and Summer school holidays with the father. The Easter school holidays will still be shared equally. The orders will still provide for the children to spend the Easter festive days and the Christmas festive days with each parent in alternate years. These are generally days of special significance for Australian families and it is in the children’s best interests to experience them with each of their parents in alternate years.

3. I have seen evidence in the communications books of the parents having some difficulty surrounding determination of when the time the children spend with each parent in school holidays commences and finishes. The existing orders provided expressly for the determination of those matters. In cases of extremely poor communication and co-operation such detail is usually required in parenting orders. The orders I will make will expressly provide for how the holiday time the orders provide for is to be calculated. I consider that necessary in this case in the children’s best interests.

1. I also intend to make orders that allow the father to attend occasions and events of particular significance to the children to the extent that the school permits him to. Accordingly, the children will be spending substantial and significant time with the father pursuant to my orders. I am satisfied that is in their best interests. The orders will also allow the mother to attend such occasions and events to the same extent. It is for the parents to persuade the school administration, perhaps by demonstrated behavioural change, that they should again be permitted to attend on the school grounds.

1. The child, S, has not spent time with her mother now for several weeks. The Court’s orders will require her to return to her mother’s care immediately. She is to be returned to her mother’s care at the end of school today and I will order the father to stay away from the school so that takes place without incident.

2. The Court’s orders will provide for the children to have telephone contact with the father every Wednesday evening during school term and school holidays when they are in the mother’s care and to have telephone contact with the mother every Wednesday evening during school holidays when they in the father’s care. Telephone contact should also occur with the parent who the children are not with on festive days and birthdays. The Court’s orders will provide for that.

3. The orders will also provide for the girls to spend time with the father on Father’s Day and with the mother on Mother’s Day. They will spend the whole of those respective weekends with the parent whose particular special day it is and if they lose the weekend that they would have been spending with the other parent as a result of that they will spend the next weekend with that other parent in lieu, without any other change to the alternate weekend timetable otherwise provided for.

4. The Court’s orders will provide for restraints against behaviour that I consider is not in the children’s best interests. Denigration of the other parent, other members of the other parent’s family, the other parent’s partner or friends to or in the hearing of the children will be prevented. Discussion of these proceedings to or in the hearing of the children will be prevented. Physical discipline of the children will be prevented.

5. The orders will also provide for the parents to keep each other informed of their addresses and phone numbers and details of any doctors or other allied health professionals who either of the girls sees. The orders will authorise communication between each of the parents and the girls’ school and any doctors or other allied health professionals the girls see.

6. The orders will also provide for transitions of care of the children to principally take place at the school the girls go to with the other parent to stay away from such transitions. Holiday transitions will continue to take place at a park in N. The parents must avoid conflict in the presence of the children at such transitions.  

7. It is very much in the best interests of the two girls, I am satisfied, for the parents to seriously continue to try to improve the conflictual relationship they currently have as well as their capacity to communicate effectively about their co-parenting. Accordingly, even though both have done courses before, including the mother having done a Parenting Orders Program, I intend to order that they attend another Parenting Orders Program through the Family Relationship Centre in Town R. Given the sometimes lengthy delays in getting into such courses, I will give them a year within which to complete such a Program and to provide written evidence of completion of the Program to the other parent.  

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 September 2013.

Associate: 

Date:  12 September 2013