BERKLEY & BERKLEY
[2015] FCCA 3143
•27 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BERKLEY & BERKLEY | [2015] FCCA 3143 |
| Catchwords: FAMILY LAW – Parenting – school term time – holiday time – restraints on the husband. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAC |
| Cases cited: Tait & Dinsmore (2007) FamCA 1383 |
| Applicant: | MR BERKLEY |
| Respondent: | MS BERKLEY |
| File Number: | DGC 1723 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 25 May 2015 |
| Date of Last Submission: | 26 May 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 27 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gates |
| Solicitors for the Applicant: | David Luscombe & Associates |
| Counsel for the Respondent: | Ms Renwick |
| Solicitors for the Respondent: | Vernon Da Gama & Associates |
THE COURT ORDERS BY CONSENT
The parties shall have equal shared parental responsibility for the children X born (omitted) 2006, Y born (omitted) 2007 and Z born (omitted) 2011 (“the children”).
The children shall live with the wife.
The children shall spend time and communicate with the husband as follows:
(a)from 5:00 PM on Christmas Eve 2015 until 5:00 PM Christmas Day 2015 and each alternate year thereafter;
(b)from 5:00 PM Christmas Day 2016 until 5:00 PM Boxing Day 2016 and each alternate year thereafter;
(c)from 3:30 PM on the Saturday prior to Father’s Day until 9:00 AM the following Monday
The husband’s time with the children shall be suspended:
(a)from 5:00 PM Christmas Day 2015 until 5:00 PM Boxing Day in 2015 and in each alternate year thereafter;
(b)from 5:00 PM Christmas Eve 2016 until 5:00 PM Christmas Day in 2016 and in each alternate year thereafter;
(c)from 3:30 PM on the Saturday prior to Mother’s Day until 9:00 AM the following Monday;
(d)on the wife’s birthday for a period of two hours if a school day from 5:30p.m. till 7:30 PM and for a period of four hours if a non-school day from 3:30 PM until 7:30 PM;
(e)during any school holiday periods, with the time spent pursuant to orders 3(a) or 3(c) and order 3(b) hereof to resume in the first week that school recommences.
Each parent shall be permitted reasonable telephone contact with the children whilst in the care of the other parent and, in addition, the resident parent shall facilitate the children calling the other parent upon the request of the children (or any of them).
Each parent be and is hereby restrained by injunction from smoking whilst travelling in a motor vehicle with the children.
For the purposes of changeover, the husband (or a family member/partner) shall be responsible for collecting the children at the commencement of time spent from the children’s school or, if a non-school day, from the wife’s residence and, if such period of time spent with the children ends on a school day, by the husband taking the children to school, or otherwise the wife (or a family member/partner) shall be responsible for collecting the children at the conclusion of the husband’s time with the children from the husband’s residence.
For the purposes of changeover, if either parent is running more than 10 minutes late to changeover, that parent shall notify the other parent by text message as soon as practicable.
Each party shall keep the other informed of their residential address and telephone number at all times, and notify the other party within seven days prior to any change to either their address or telephone number.
Each party shall notify the other as soon as possible of any illness or injury suffered by the children.
Neither party shall do anything that subjects the children, or any of them, to any form of medical, dental or surgical procedure requiring hospitalisation or like treatment unless it is a decision made jointly by the parties, save and except for the case of an emergency or when any child is in urgent need of any such treatment, and the parties who seeks to engage such treatment has taken all reasonable steps to contact the other and has been unable to do so.
Both parties shall be at liberty to approach the school or educational institution attended by any of the children to obtain copies of school reports, photographs, newsletters, notices and the like and further each party shall be at liberty to attend parent teacher nights, school concerts, prize and special nights, sporting events and like school functions.
The wife shall authorise the children’s school to pass on to the husband information and copies of all newsletters and notices that are sent home with the children, to ensure that the husband is fully aware of school activities as above.
Each party shall be at liberty to attend all sporting and extracurricular activities which the children may participate in.
Both parents shall continue to keep the children enrolled in their extra-curricular activities and ensure that the children attend their extra-curricular activities while the children are in their care.
In the event that either parent has a significant or special event such as a family gathering, christening, wedding or other special event, that parent shall give notice to the other parent of their desire for the children to spend time with them and attend the event, and the parents may agree by SMS text message to vary the arrangements provided for in these orders so as to permit the children to attend the event, provided that where any variation of these orders is agreed to then the parent shall make all reasonable attempts to arrange for make-up time for the parent’s time with the children which was reduced by any such agreement.
Each party shall allow the children to make or receive phone calls to or from family members on the birthdays, Christmas, Easter Sunday and any other special days.
Unless otherwise agreed in writing the children shall continue to attend their current school, (omitted) Primary School in (omitted) until the completion of their primary school education.
Each party shall refrain from any discussion of matters pertaining to the children or the financial support of them in the presence of any of the children unless the parties agree that it is in the best interests of the children to do so.
The parties and their servants and agents are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or a member of the other’s family or household in the presence or hearing of the children and from permitting any other person to do so
The husband’s time with the children shall take place pursuant to these orders notwithstanding that any of the children are unwell, unless any of the children are so unwell that they are required to be admitted to hospital, save that if a doctor has diagnosed a child with gastroenteritis, the husband shall undertake the travel.
AND THE COURT FURTHER ORDERS
The children shall spend time and communicate with the husband as follows:
During school terms
(a)from the conclusion of school on Friday to the commencement of school on Monday (or 3:30 PM if Monday is not a school day) on each alternate weekend commencing on the first weekend of the 2016 school year and concluding at the end of the 2017 school year;
(b)from the conclusion of school on Thursday to the commencement of school on Friday on each alternate week beginning the second week of the 2016 school year; and
(c)from the conclusion of school on Thursday to the commencement of school on Monday (or 3:30 PM if Monday is not a school day) on each alternate weekend commencing on the first weekend of the 2018 school year;
During school term holidays
(d)For one week in each of the school term holidays by agreement between the parties, and failing agreement, from noon on the first Saturday to noon on the second Saturday in even-numbered years, and from noon on the second Saturday to noon on the third Saturday in odd-numbered years;
During long summer holidays
(e)For 5 consecutive nights in each alternate week of the 2015-2016 long summer holidays by agreement between the parties, and failing agreement from noon on Wednesday to noon on Monday beginning in the first, third and fifth weeks;
(f)On a week about basis in the 2016-2017 long summer holidays by agreement between the parties, and failing agreement from noon on the second Sunday to noon on the following Sunday and in each alternate week thereafter until the commencement of the 2017 school year;
(g)For half the long summer holidays from 2017-2018 by agreement between the parties, and failing agreement the first half in 2017-2018 and each alternate year thereafter, and the second half in 2018-2019 and in each alternate year thereafter;
For the children’s and the husband’s birthdays
(h)should any of the children’s or the husband’s birthdays fall on a school day, from 4:30 PM to 7:30 PM on the birthday in even-numbered years, and from 4:30 PM to 7:30 PM on the day before the birthday in odd-numbered years;
(i)should any of the children’s or the husband’s birthdays fall on a non-school day, from 3:30 PM until 7:30 PM in even-numbered years, and from 11:30 AM to 3:30 PM in odd-numbered years;
and
At any other time
(j)at such other times as the parties might agree in writing including by text message or other electronic means.
For four (4) hours immediately prior to the commencement of any time spent with the children (including any period during which the children live with him), and during all such time spent, the husband is hereby restrained by injunction from drinking alcohol to excess - that is, having a blood alcohol level of .05% or above.
The husband shall be in substantial attendance during all periods of time he spends with the children pursuant to these orders.
Within 21 days of the date of these orders the parties shall do all such acts and things and sign all such documents as may be necessary to attend upon a counsellor experienced in family therapy (“the counsellor”) for the purpose of child focussed counselling with a view to improving the communication between them, and they shall continue to attend upon the counsellor until the counsellor deems that it is either unnecessary or inappropriate to continue the counselling.
The parties shall bear equally the costs of the child focussed counselling pursuant to order 25 hereof.
The parties are hereby restrained by injunction from initiating any further proceedings between them in relation to parenting matters until they have attended family dispute resolution mediation, save in circumstances of emergency.
IT IS NOTED that publication of this judgment under the pseudonym Berkley & Berkley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1723 of 2013
| MR BERKLEY |
Applicant
And
| MS BERKLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter concerning Mr Berkley (“Mr Berkley” or “the husband”) and MS BERKLEY (“Ms Berkley” or “the wife”) and the living arrangements for their three children: X born (omitted) 2006 (“X”); Y born (omitted) 2007 (“Y”); and Z born (omitted) 2011 (“Z”) (collectively “the children”).
The issues in dispute between the parties concern the amount of time the children are to spend with Mr Berkley and whether certain restraints ought to be placed on his behaviour during those times.
Background
Mr Berkley was born on (omitted) 1975 and is now 40 years old. He works as a (occupation omitted) and lives in a property in (omitted) owned by his parents.
Ms Berkley was born on (omitted) 1982 and is now 33 years old. She works as a (occupation omitted) at (employer omitted) and lives in (omitted) with the children.
The parties met in about 1999 and commenced living together in (omitted) 2002. They were married on (omitted) 2003.
X, Y and Z are the only children of the marriage. X and Y attend (omitted) Primary School. All children are in good physical health, although X and Y have been referred by their primary school to attend counselling.
The parties separated in April 2013.
Since the date of separation there have been several sets of Intervention Order proceedings with both parties being named as respondents at different times.
Final property orders were made by consent between the parties on 27 November 2013.
Both parties have re-partnered.
Ms Berkley commenced a relationship with Mr B (“Mr B”) in (omitted) 2014, although at the time of trial they were not living together.
Mr Berkley has been in a relationship with Ms E (“Ms E”), who lives next door to him, since (omitted) 2014.
Procedural History
The proceedings were first initiated by the Husband’s Initiating Application filed on 25 June 2013, in which he sought equal shared parental responsibility, that the children live with him, and that they spend time with the wife as determined by the Court.
The wife filed her Response on 2 August 2013 seeking orders that the children live with her, and setting out a regime for the children to spend time with the husband.
The matter first came before the Court in the Duty List on 7 August 2013, when orders were made by consent before Judge Curtain, those orders providing for the children to live with the wife and spend time with the husband on an interim basis.
The matter first came before me in the Duty List on 27 November 2013. On that date, final property orders and further interim parenting orders were made by consent. The matter was listed for trial in September 2014.
On 8 April 2014 the husband filed an Application in a Case regarding the parenting Orders of the 7 August, 2013 and 27 November, 2013. He also sought that the wife undergo a psychiatric assessment. That Application was listed for 27 July 2014.
On 29 May 2014 the husband filed a further Application in a Case seeking an urgent abridgement of time and that the children live with him. His application for abridgement was successful and the matter was relisted from 27 July to 16 June 2014.
The wife filed a Response on 11 June 2014 seeking that Mr Berkley's Application in a Case be dismissed. Ms Berkley also sought an order that the previous Orders of 7 August 2013 and 27 November 2013 remain in full force and effect.
On 16 June 2014 the matter came before me in the Duty List and the parties were able to have further interim orders made by consent, with the children remaining in Ms Berkley’s care.
On 28 August 2014 the matter was relisted for trial on 25 May 2015.
The parties were divorced on 9 December 2014.
On 11 May 2015 Mr Berkley filed an Amended Initiating Application seeking that the children live with Ms Berkley and spend time with him during the week, on alternate weekends and during school holidays, as well as telephone contact.
The matter came before me for Final Hearing on 26 May, 2015. The trial lasted for two days, with evidence being heard from the husband, the wife, the husband’s partner, the husband’s mother, and Ms J (“Ms J”), who had prepared family reports in this matter. All witnesses were subject to cross-examination at trial.
At the conclusion of the trial I reserved my judgement.
Family Violence Proceedings
On 30 April 2013 an incident occurred which resulted in Ms Berkley calling the police, who then issued an Application for an Intervention Order against Mr Berkley.
It is Ms Berkley’s evidence that Mr Berkley had attended at the family home shortly after separation to visit the children and had proposed that the parties reconcile. When she refused to do so he became aggressive, yelling and screaming such that she was concerned for the safety of the children, and she took the children to her mother’s home.
On 13 May 2013 the matter was listed at the Magistrates’ Court of Victoria at Dandenong and a final Intervention Order was made by consent without admissions naming the wife and three children as protected persons. That Intervention Order expired on 13 May 2014.
On the same date, 13 May 2013, the parties’ legal representatives were able to negotiate a Parenting Plan between the parties in relation to the care and living arrangements for the children.
Following some incidents whose details are in dispute, Ms Berkley applied for an Intervention Order against the paternal grandfather in late 2013 or early 2014. That application was refused by a magistrate on 17 February 2014.
As a result of an incident that occurred at a restaurant when Ms Berkley was collecting the children from the husband after a family function for the husband’s birthday on (omitted) 2014, Ms Berkley applied for a further order against the paternal grandfather on 28 November 2014. An interim order was granted, and that application was listed for a contested hearing in the Magistrates Court of Victoria at Ringwood on 29 May 2015.
Following an incident whose details are also in dispute, on 21 December 2014 the Police issued a Family Violence Safety Notice against Ms Berkley on behalf of Mr Berkley and on the following day made an Application for an Interim Intervention Order, which was granted. The matter was then adjourned to 27 May 2015 for a contested hearing, that date being the day after the trial of these proceedings concluded.
Further incidents during changeover on 4 March 2015 led Ms Berkley to apply for a further Intervention Order against Mr Berkley, an Interim Intervention Order being made ex parte in the Dandenong Magistrates Court on 6 March 2015.
That order suspended the parenting orders made 2 August 2013, although that suspension order expired 21 days later.
That Application too was listed for a contested hearing on 27 May 2015.
The court is unaware of the outcome of those three Applications.
The Law
The law in relation to parenting orders is found in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles underlying them as follows:
Section 60B(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 and 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.
Section 60B(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).
I note that in this case the parents have agreed that they ought to share equally parental responsibility for the children. The effect of such an order on the parties’ decision-making about the children’s care and welfare arrangements is set out in s.65DAC of the Act in the following terms:
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
In this case it is particularly appropriate that the parties are aware of the provisions of s.65DAC and I include it here for their benefit.
Section 60CA of the Act states that when a court is deciding whether to make a parenting order the best interests of the children must be its paramount consideration.
Section 60CC then sets out the considerations the court must take into account when deciding what orders would be in the children’s best interests. I will deal with each of those considerations in turn.
Section 60CC(2) sets out the primary considerations as follows:
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).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 60CC(3) then sets out 14 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 extent to which each of the child’s parents 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;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgement of Brown J in Mazorski v Albright (2008) 37 FLR 518, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and each of their parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and their parents are able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing that relationship must be a primary consideration of the court in considering what is in their best interests.
Clearly, at least on the basis of some of those factors, X, Y and Z benefit from a meaningful relationship with both of their parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are allegations from both parents in this matter that the children have been exposed to family violence perpetrated by the other parent.
What is clear from the evidence provided by both parents, is that the children have witnessed considerable verbal and physical conflict between their parents, and between their parents and other members of their parents’ families, and that their parents have spoken to them about the dispute before the court, thus involving them in that dispute.
I note that X and Y have been seeing a counsellor in order to deal with their distress about issues relating to their parents’ separation.
As long as there is conflict between the parents, and they are unable to separate their hurt, anger, apprehension and disappointment at the breakdown of the relationship between them from their ongoing role as these children’s parents, the children are more than likely to suffer from their exposure to that conflict.
Section 60CC(2A) states that in applying the considerations set out in sub-s.(2), the court is to give greater weight to the consideration set out in paragraph (2)(b). That is, when deciding what orders to make in the children’s best interests, the court must consider the need to protect children from harm as being more important than the benefit to the children of maintaining and developing a meaningful relationship with both parents.
Mr Berkley and Ms Berkley will be X, Y and Z’s parents for the rest of their lives, and if they wish to protect their children from harm, they will need to learn to communicate respectfully as parents.
There is little or no evidence before the court that they have been able to do so thus far.
Therefore, I will need to craft orders which protect the children, as far as is possible, from exposure to that conflict.
I turn now to the additional considerations set out in 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
X, who is 9½ years old, expressed to the family reporter that she would be “sad and angry” if the current arrangements were to continue without there being any increase in the time she spends with her father. She said she would feel “happy” if the regular time she spent with her father during school terms were to be extended to Monday mornings and each Wednesday overnight because “at the moment we hardly get to see daddy”.
Y was not quite eight years old at the time she met with the family reporter, and she told Ms J that she would feel “happy” if either the current arrangements were to continue or her time with her father were to be extended by one night each alternate weekend and an overnight during the week. She did say however that “normally we don’t really get to see daddy much”.
Z, at 3½ years old, was not interviewed by Ms J.
While X and Y are still young, it is clear that they wish to spend extended time with their father, and while those wishes are not determinative because of their youth, I will certainly give them some weight.
(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)
In the family report, Ms J says the following at paragraph 60:
From my observations X, Y and Z appeared to have warm and close relationships with Mr Berkley and Ms Berkley. These relationships all seemed to be secure and trusting including Z’s relationships with Mr Berkley and Ms Berkley. X, Y and Z also seem to have warm and close sibling relationships. For Z, she would more than likely still be moving through the “attachment” process. This means that basically up to about three years a child moves through a process of developing an attachment to their primary carer. If the primary carer is available to meet the emotional and practical needs of the child then the child is able to feel secure and trusting with their primary carer. Attachment is basically about how a young child develops and how they develop their relationship with their primary carer as well as the other significant people in their life. In this case, Z was able to move between Mr Berkley and Ms Berkley without exhibiting anxiety or distress which can be one indicator that she feels secure and trusting of Ms Berkley enough to tolerate some time away from her and that she feels secure and trusting of Mr Berkley enough to be with him from short periods of time. At the current time for Z a week away from Ms Berkley may be too long but the spend time arrangements to date have been very appropriate time for Z to manage. For Z having two older sisters for support also assists her to manage the current spend time arrangement.
In oral evidence at trial Ms J expanded on the benefit to Z of having the support of her older sisters when she spends time away from her mother, saying that with that support, Z would probably manage extra time with her father.
(c) the extent to which each of the child’s parents 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;
Mr Berkley complains in his affidavit evidence that Ms Berkley has not afforded him the opportunity to make decisions about major issues, such as whether the children have medical treatment, as much as he would have liked.
Ms Berkley’s evidence is that Mr Berkley does not always inform her when such decisions are to be made while the children are in his care.
As already noted, the parties agreed at trial to an order that they have equal shared parental responsibility for the children.
For the children to feel that their parents have equal responsibility for them, the parents must consult with each other, in good faith, about what is best for the children.
Clear and open communication between the parents is necessary for that consultation to take place.
In this case, because of their lack of communication skills and the conflict between them, Ms J recommends in her report that the parties attend “child focussed counselling” with a qualified child psychologist.
As already stated, that family report is dated 27 August 2014, and it was released on 28 August 2014.
By the time of trial in May 2015 the parties had not acted on that recommendation. Ms J said in evidence that it was very sad that they had not done so as by the time of trial there may have been some progress in relation to their communication.
In those circumstances it is appropriate that I make an order that the parties attend such child focussed counselling so that they are better able to make joint decisions about the children’s long-term care, welfare and development.
In her affidavit material Ms Berkley deposes that there have been times when Mr Berkley has not attended the changeover venue in order to spend time with the children.
She also deposes that there have been times when Mr Berkley has refused to return at least one of the children.
Mr Berkley complains that there have been times when Ms Berkley has prevented him from spending time with the children.
When court orders are in place, as they have been in this case since August 2013[1], it is important for the children to have regular and certain time with both parents.
[1] I note that all substantive interim parenting orders in this matter have been made by consent save for those made on the last day of trial.
If Mr Berkley chooses not to spend that time or over-holds the children, or Ms Berkley refuses to make the children available, the children will experience uncertainty in their relationship with their father, which has the potential to damage not only that relationship but their relationship with their mother as well.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The question of Mr Berkley’s ability and willingness to pay child support for the children has been a feature of these proceedings.
There is evidence in Mr Berkley’s affidavit material that the children have complained to him that he does not pay their mother enough, a view they can only have obtained from their mother.
It is almost trite to say that child support is every child’s right and every parent’s responsibility.
A parent who either refuses to pay an assessed amount of child support, or seeks to minimise that payment, cannot be said to be acting in the best interests of his/her children.
When Z was admitted to hospital suffering from bronchial pneumonia in 2014, Mr Berkley deposes that Ms Berkley demanded that he pay half the hospital bills. He conceded under cross-examination that he had not done so, and also that he had not paid for the children’s flu shots.
He said in evidence that at the time of trial he was paying arrears of child support to the Department of Human Services (Child Support) in the sum of $100 per month, but that he currently had a nil Child Support Assessment because for the past two financial years his income had been nil because of his business’s failure.
It was his evidence in re-examination at trial that in addition to his child support arrears, he has a tax debt from his former business of about $78,000.
In answer to a question about whether he would be responsible for all of the children’s needs when they are with him he answered in the positive, saying that that was the situation at present. He also answered positively to a question about whether he would pay for the children’s school uniforms in the future.
It was the wife’s evidence at trial that she had sought a variation of the husband’s obligation to pay child support only a few days before trial as she had discovered proof that he was now employed.
The court is unaware of the outcome of that application.
It would appear from the evidence before the court that Mr Berkley has been less than diligent in ensuring that he maintains his children.
That has meant that the vast majority of the burden of the children’s financial support has fallen on Ms Berkley.
(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
The children’s circumstances will not fundamentally change as a result of these proceedings as it is agreed between the parties that they will continue to live with their mother and spend regular time with their father.
The likely effect of any extension of that time on the children was canvassed by Ms J in her family report, and also in her oral evidence at trial, and that evidence is discussed later in these Reasons.
(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
The husband lives in (omitted) and the wife in (omitted), the distance between their homes being approximately 21 kilometres.
It was the husband’s evidence at trial that it takes approximately an hour to drive from the children’s school to his home. The wife’s evidence was that it takes less time.
I do not consider that the distance between the parties’ homes creates any particular practical difficulty or expense for either parent in ensuring that the children’s relationship with both parents is maintained.
(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;
Both parents complain in their affidavit material that the children arrive at their respective homes in less than optimal condition.
The husband complains that the children have had headlice and that their clothes are too small for them, while the wife says that the husband does not provide clothes for the children and keeps at his home the clothes that she has bought for them.
Overall however, there is little or no evidence to say that either parent lacks the capacity to meet the children’s material needs.
There is however evidence that causes the court concern in relation to their capacity to meet the children’s emotional needs.
There is evidence that inappropriate things have been said to the children at changeover, and at other times, involving them in the dispute between their parents.
Some of that involvement has been perpetrated by the parents themselves and, it would appear, some by other family members.
There is also evidence that significant and serious verbal abuse, a form of family violence, has been a feature of changeover on multiple occasions.
As already mentioned, the parties did not take up Ms J’s recommendation that they attend child focussed counselling together.
All of that evidence leads the court to be concerned that the parents find it difficult to place the children’s emotional needs ahead of their own, and if that is so, it reflects badly on both parents’ capacity to provide for the children’s emotional 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
This consideration is usually discussed when parents come from different cultural backgrounds, which is not the case here.
Nevertheless, the court is concerned about the level of the parents’ maturity for the reasons already stated.
The children appear to be developing appropriately for their ages.
(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
This is not a relevant factor in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It was the husband’s evidence at trial that he had attended and completed a post-separation parenting course, which he said, he had found a positive experience, as he had learned “helpful tools” to assist him in communicating with the wife.
It is a credit to him that he attended that course which was one of the recommendations of the family report.
It does not appear that the wife had attended such a course at the time of trial.
However, when under cross-examination, the husband conceded that he did not know the names of the children’s teachers and that he only knows the name of “some” of their friends. That does not reflect particularly well on his attitude to his parental responsibilities.
Ms Berkley complains at length in her affidavit material that members of the husband’s family, and in particular his father and sister, “abuse me and belittle me at every opportunity that they get”[2] when they come into contact, and that this has happened frequently in front of the children. She deposes that Mr Berkley has refused to intervene to prevent that abuse, even when specifically asked to do so.
[2] Trial affidavit of the wife sworn and filed 11 May 2015 paragraph 66
Mr Berkley deposes to incidents where Ms Berkley has behaved in a volatile and aggressive manner in the presence of the children, and says that there have been times when she has physically and aggressively tried to remove a child when he was holding her.
It appears clear from the evidence that both parents have sought to use the children to further their own agendas.
That does not reflect well on their attitudes to the children or to their responsibilities as those children’s parents.
(j) any family violence involving the child or a member of the child’s family
I have already set out the intervention order proceedings between these two parties, and the evidence of the wife in relation to abuse she says she has suffered from the husband’s family members on multiple occasions.
The wife sets out in her affidavit material multiple instances of persistent volatile and violent behaviour by the husband over the course of the marriage and after separation. She says that his behaviour was particularly aggressive after he had been drinking.
The husband says that it is the wife who has been volatile and aggressive and he too particularises instances where her behaviour can only be described as unacceptable.
What is clear to the court is that there have been several incidents of family violence between the parties around the time of separation, and after that date, to which the children have been witness.
It is my view that one cannot be an abusive partner and a good parent at the same time.
The damage suffered by children who are exposed to family violence can be enormous. It not only frightens them at the time, but it can damage their views of themselves, of their parents, and of how relationships are conducted in general.
I find that multiple instances of significant family violence have occurred between the parties in this matter, and that both parents have subjected their children not only to the conflict between them in general but to multiple instances of that violence.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
It is unfortunate that the court is unaware of the outcome of contested family violence proceedings between the parties and between the wife and the paternal grandfather which were due to be heard in the days following this trial.
I note that the final intervention order made against the husband on 13 May 2013 was made by consent without the husband making any admissions as to the allegations contained in the application.
My reading of the Family Violence Protection Act 2008 (Vic) is that a magistrate is prevented from making an intervention order unless there is sworn evidence before the court that family violence has taken place.
In those circumstances I am satisfied that that intervention order reflects that family violence had occurred between the parties.
I further note that the interim intervention order made against the husband on 6 March 2015 was made in circumstances where he was not served with a copy of the Application and Summons and he was not present at that hearing. As I am unaware of the final outcome of that application I can make no further comment about it.
The interim intervention order made against the husband’s father, Mr G, on 10 December 2014, was also made without the application having been served upon him and in his absence. Again, I am unaware of the final outcome of that application.
(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
The parties, to their credit, have been able to come to agreement about the major issues in relation to their children’s care arrangements.
The orders I am asked to make are not, in my view, of a kind which are likely to lead to further proceedings.
However in her submissions at the end of the trial, counsel for the wife submitted that these orders would need to be revisited in three years’ time when Z turns seven. That is the age at which Ms J says Z is likely to be able to manage a regular four night period with her father.
I will therefore make orders which account for a change in the amount of time the children spend with the husband from the beginning of 2018 when Z turns seven.
It is to be hoped that the parents will be able to put their animosity towards each other side and concentrate on the welfare of the children, thus obviating the necessity for any further proceedings in this court.
If there are further disagreements between them they should attempt to resolve those disagreements by mediation rather than litigation.
(m) any other fact or circumstance that the court thinks is relevant.
There are two further matters which, in my view, are relevant to the children’s best interests.
First, the parties’ demeanour in court is worthy of comment.
The husband appeared somewhat cavalier in his attitude to the proceedings, especially when under cross-examination.
He tended to play down any distress the children might be feeling about the situation in which they find themselves, saying that they might have some issues in the beginning but that he believed that they would adapt quickly to a new regime.
At one point during his cross-examination, he was asked about communication difficulties between him and the wife. His response was to say that he accepted that the communication between the parties needs to improve but then said that if he obtained the orders that he wanted they would not need to communicate.
He was not at all concerned at the possibility that he and the wife might conduct what is known as “parallel parenting”, where parents have very little to do with each other and the children live in houses with different rules and no consultation between the parents.
The wife’s demeanour in the witness box can only be described as belligerent and argumentative. She was reluctant to concede any point and took every opportunity available to criticise the husband’s behaviour, referring to him sarcastically as “a great weekend Dad”.
She appeared unable to reflect on her own behaviour or to have any understanding of its impact on the children, and she showed little insight into the children’s emotional needs if those needs did not reflect her wishes.
Her evidence was given in a self-serving manner, referring to herself as having taken “the high moral ground”, and she impressed as someone who reacts badly if she does not get her own way.
The evidence before the court, both in affidavit material and in the parties’ oral evidence and their demeanour while giving it, gives the impression of two immature parents whose major focus is their animosity towards each other rather than the best interests of their children.
The second matter I feel the need to comment on is the husband’s alcohol consumption.
It was the wife’s evidence, both in affidavit and oral form, that the husband was a habitual and excessive drinker.
Her affidavit material expresses her concern that “the husband has an alcohol problem”[3]. She says that he consumed alcohol to excess “on a daily basis” and that he had had only about 10 alcohol-free days during their entire marriage.
[3] The wife's affidavit sworn 1 August 2013 paragraph 13
It was her evidence that it was when the husband had been drinking that he would become abusive and aggressive towards her in the presence of the children.
She deposes that the husband is “addicted to alcohol and has taken the children to a pub when he wished to have a drink”[4].
[4] The wife’s affidavit sworn 11 June 2014 paragraph 37(b)
At trial she said in evidence-in-chief that that he would drink 3 to 4 pints of beer after work, and that there were times when she would have to call in sick for her nightshift because she didn’t believe it was safe to leave the children with him in that condition. I note that that particular piece of evidence was not put to the husband when he was in the witness box.
She said further that post separation the children have told her that the husband drinks one to two drinks but not that he becomes drunk.
The husband denies that he has a problem with alcohol and stated in oral evidence that he drinks only one or two beers perhaps three times per week. He said he never drinks more than three beers when the children are in his care and that the last time he had more than three drinks was in (omitted) 2014 at a party to celebrate his birthday.
It was his evidence that he always drank after rather than before or during working hours during the marriage because it was necessary for him to have blood alcohol level of zero as part of his work conditions. He said he would drink two schooners of beer and then drive home.
The husband’s partner Ms E (“Ms E”), swore an affidavit in these proceedings and gave evidence at trial.
In her affidavit sworn 8 May 2015 Ms E states the following:
I do not consider that Mr Berkley has any issue with alcohol. He will drink socially or with a meal, and occasionally drink a bit more if we are attending a party, which we rarely do, but I spend a lot of time with him and I can categorically state that I have not seen him badly affected by alcohol. I have no intention of being in a relationship of any person who drinks alcohol to a level where their behaviour is affected. I rarely drink alcohol other than an occasional glass of wine with a meal. Even then, I try not to drink at all in front of his children. I respect his desire for us not to drink in front of the children.
Under cross-examination at trial, Ms E confirmed her affidavit evidence that Mr Berkley drank rarely except for a glass of wine with meals.
It was her evidence that she sees him every day, usually at his home, and that she usually stays overnight. She said that he has one beer with dinner about twice a week, and that apart from a party on his birthday weekend last year at his home where he and most of the people there had been drunk, she had never seen him consume more than three drinks at any one time. She said he usually drinks beer but sometimes he drinks whiskey.
It appears from her evidence that Mr Berkley drinks beer, wine and occasionally whiskey but that he does not drink to excess, at least while the children are with him.
Mr Berkley’s mother, Ms K, also gave evidence at trial and said that when she had been out with the husband and the children he had drunk perhaps one beer. She said the last time that she saw him affected by alcohol was on his 30th birthday at his home.
Issues
The issues in dispute in this matter are fairly minor in the context of the general run of parenting disputes that come before this court.
There is agreement that the children will continue to live with the wife and there was agreement between the parties about what should happen at Christmas, on Mothers’ and Fathers’ Days and other ancillary matters.
The remaining disputes concern the detail of the time the children will spend with the husband, whether he should be restrained from consuming alcohol during the time the children spend with him, and whether he should be ordered to be in substantial attendance during those times.
The wife’s evidence contains allegations that the husband is a habitual abuser of alcohol and that when affected by alcohol he has behaved in an aggressive manner towards her in the presence of the children. It is her evidence that this behaviour pertained throughout the marriage and has continued since separation.
The husband denies the allegations in relation to his alcohol consumption but makes counter allegations against the wife in terms of her inappropriately aggressive behaviour at changeover.
What is clear from the evidence of both parties, and from the multiple intervention order applications between them, is that there is considerable animus between these parents and that the children are very well aware of that conflict.
Issue 1: the amount of time to be spent between the husband and the children during school terms.
The wife originally sought an order that the children spend time with the husband from after school on Friday to the commencement of school on Monday, or 9 a.m. if Monday is not a school day each alternate weekend, and overnight each alternate Wednesday.
However, on the second day of trial, the mother conceded that the children should be returned to her care at 3:30 p.m. on a non-school Monday.
I will therefore make an order that the regular weekend time the children spend with the husband will conclude at 3:30 p.m. on each alternate Monday should that day not be a school day.
The husband seeks orders providing for him to spend time with the children on each alternate weekend from after school on Thursday to before school on Monday (or 3:30 p.m. if Monday is not a school day) and from after school until 8:00p.m. on each alternate Thursday, with that time extending to overnight on alternate Thursdays from the beginning of the 2018 school year when Z turns seven.
Pursuant to current interim orders made 7 August 2013, the children now spend time with the husband from Friday afternoon to Sunday evening on each alternate weekend, and each Wednesday from 5:00 p.m. until 7:30 p.m. during school terms.
It is the husband’s evidence that the children have asked for more time with him and that he believes that they would cope well spending four consecutive nights with him each fortnight.
The mother says that four consecutive nights each alternate weekend would be too much for the children to cope with at this stage.
It is her evidence that Z suffers from separation anxiety and that she simply would not cope with four consecutive nights away from her mother every alternate weekend.
The family report prepared by Ms J dated 27 August 2014 recommends that upon Z turning four, the weekend time between the husband and the children could increase to Monday morning. She further suggests that when Z turns seven, the alternate weekend time might increase so that it runs from Thursday afternoon to Monday morning.
Ms J gave evidence at trial and was cross-examined by both parties.
Under cross-examination by the wife’s counsel, Ms J suggested that while there should be an increase in the regular alternate weekend time, it should proceed more slowly than the husband suggests because of Z’s age.
Under cross-examination by the husband’s counsel, Ms J said that the wife had not raised any issues about separation anxiety for Z with her, and that if it had been an issue she would have expected it to have been raised.
However, she was clear in her view that it was not appropriate for the children to spend time with their father from Thursday to Monday on a regular basis at this stage, and that that was an arrangement for “down the track”. She said Z might need time to adjust, and that delaying the Thursday to Monday regime until she is older would not mean any loss of quality in the relationship between her and her father over the long term.
She suggested that strategies could be put in place to allay any anxiety Z might feel, such as keeping a chart on the fridge at the wife’s home which sets out the times that the children will spend with their father.
On the basis of Ms J’s evidence, I find that it is in the children’s best interests to spend time and communicate with their father from Friday after school (or 3:30 p.m. if Friday is not a school day) to Monday before school on each alternate weekend, with the time extending to 3:30 p.m. on Monday if it is not a school day, that regime to commence at the beginning of the 2016 school year.
From the beginning of the 2018 school year, when Z turns seven, that time will increase so that it commences after school on each alternate Thursday, or 3:30 p.m. if a Thursday is not a school day.
In relation to mid-week time, the wife deposes that the current time the children spend on a Wednesday evening from after school to 8:30 p.m. is “very short and does not allow the children to spend substantial quality time with their father”. However she then says that she believes it would be in the best interests of the children “if this Wednesday evening time could be added to the children’s time with Mr Berkley over the weekends”[5]. I am unsure as to what she means by that statement.
[5] The affidavit of the wife sworn 11 May 2015 para 59
At trial Ms Berkley said that she thought 8:30 p.m. was too late for the children to be returning to her care on a weeknight.
Mr Berkley’s evidence at trial was that if the children were eventually to spend overnight time with him on alternate Thursdays he would be able to help them with their school work, there would be more time for them to play together, and he would feel “more like a family”.
Under cross-examination by the husband’s counsel at trial, Ms J said that she thought that alternate Thursdays overnight would be appropriate to begin now as that would be a good opportunity for Mr Berkley to have more involvement in the children’s school life.
On the basis of all that evidence, I find that it is in the children’s best interests to spend time with their father during school terms each alternate Thursday from after school until before school on Friday.
That is, for the 2016 and 2017 school years, the children will spend time with the father during school terms from the conclusion of school on Friday to the commencement of school on Monday (or 3:30 p.m. if Monday is not a school day) on each alternate weekend, and from after school on Thursday to the commencement of school on Friday in the other alternate week. From the commencement of the 2018 school year, the weekend time will commence after school on Thursday.
Issue 2: the amount of time to be spent between the husband and the children during school terms holidays.
The wife seeks a gradually increasing regime of term holiday time such that the children would spend three blocks of four nights with the husband in each of the four term holidays until 2018, when they would change to a regime of five nights at the beginning of the holidays and 2 nights at the end.
The husband seeks to spend time with the children for one week in each of the school term holidays beginning immediately.
The husband’s evidence at trial was that he believed that the children would cope well with a full week with him, saying that when they spend overnight time with him now they are “happy”. He was dismissive of the wife’s claim that the children would miss her too much to spend a full week with him at this time.
Mr Berkley said that he would like to take the children camping in a caravan with his partner and the paternal grandparents, and that four nights would be more difficult and more rushed for the family in that regard.
The wife gave evidence at trial that the longest period the children have spent away from her was four nights in the long summer holidays of 2013 – 2014.
She said that Z was very clingy on her return and that X and Y had been quite moody.
Ms J’s family report dated 27 August 2014 recommends as follows:
On Z turning four the school holidays could also change to half all school term holidays while the December/January holiday should be week about until Z turns seven or eight[6].
[6] Family Report of Ms J dated 27 August 2014 paragraph 70
And later:
It is my view that X, Y and Z should be able to emotionally manage the suggested spends (sic) time arrangements as above which would be age-appropriate and also allow for the three children to move together between their two homes. The relationships that X, Y and Z have thus far developed with Mr Berkley will be able to be maintained and keep growing in strength regardless of an increase in times.[7]
[7] Ibid paragraph 71
When that view was put to Ms Berkley at trial, her response was to the effect that such a regime may be appropriate for the majority of children, but not for Z.
At trial, Ms J confirmed her view that at age four Z is likely to manage one week in school holidays, saying that the advantage for Z is that she has her two older sisters with her so that she would not be alone when experiencing the increase in time.
It was her further view that at four years of age, Z ought to be able to separate easily from her mother. Ms J said that if there were no other signs of regression (apart from Z’s clinginess) such as bedwetting or nightmares, Z should be able to manage a week away from her mother.
Ms J did say however that if Z became distressed after several days with her father, she would expect Mr Berkley to return Z to her mother.
I found Ms J’s evidence, both in her report and under cross-examination at trial, to be cogent and convincing. She had clearly thought about several different possible regimes of time the children might spend with their father during school holidays, and had particularly considered Z’s alleged specific vulnerabilities in relation to her separation from her mother. I am satisfied with her evidence that Z should be able to cope with one week away from her mother, especially in the company of her two sisters.
I will therefore make an order that from the beginning of the 2016 school year, the children will spend one week in each of the school term holidays with the husband.
Issue 3: the amount of time to be spent between the husband and the children during long summer holidays.
The wife’s proposal in relation to long summer holidays was that the children should spend three blocks of four nights with Mr Berkley until the 2017 – 2018 holidays, when they should spend five nights at the beginning and two nights at the end. It is the wife’s proposal that from the 2018 – 2019 summer holidays the children should spend week about between her and the husband.
Ms Berkley’s reasons for proposing that gradual regime were the same as the reasons for her proposed gradual term holidays regime.
The husband seeks an order that the children spend time with him and the wife on a week about basis until the end of the 2017 – 2018 holidays, after which they should spend half holidays with each parent in one block.
It was Ms J’s evidence at trial that she thought Z would cope with week about long summer holidays until she turns seven or eight, after which there should be equal block time between the parents. I note that Z turns seven in February 2018.
In all of those circumstances and for similar reasons to those stated in paragraph 201 above, I will make orders that provide for the children to spend five days with the husband in each alternate week of the 2015 – 2016 summer holidays, week about with each parent in the 2016 – 2017 summer holidays, and a half of each summer holiday with each parent in one block of time thereafter.
Issue 4: when the children should spend time with the husband on their birthdays and the husband’s birthdays if those birthdays fall on a school day.
The wife’s proposal is that the children spend time with the husband on those occasions from 3:30 p.m. to 5:30 p.m.
The husband seeks an order that the children be with him on those occasions from 5:30 p.m. to 7:30 p.m.
In evidence at trial the husband said that he would like to have a meal and birthday cake with the children and that a 3:30p.m. to 5:30pm timeframe was a bit early for that to occur.
In her evidence at trial, when it was put to her that such an occasion might occur only once or twice a year, the wife stated somewhat petulantly that it would not be fair on her if the husband were to have the children until 7:30, and asked why she should miss out on their birthdays.
After school and evening birthday time can be very enjoyable for children. I will make orders that allow them to spend time with both parents after school and into the evening each year, either on the day of their and the husband’s birthday, or on the day before should they fall on a school day.
Issue 5: whether I should make an order that allows for reconsideration of any issues in 2018
I have already discussed the provisions of s.60 CC (3)(l) of the Act in paragraphs 130 to 135 above.
The orders I propose to make will allow for changes to occur as the children mature, so that there will not be need for there to be revision in the medium term.
I consider that it is preferable to make final orders at this time in the hope that there will be no need for further litigation. I will include in those orders an order that the parties attend family dispute resolution before initiating proceedings in the future.
Issue 6: whether I should place a restraint on the amount of alcohol the husband is able to consume while the children are in his care.
The wife proposes an order that would restrain the husband by injunction from consuming alcohol while the children are in his care. That proposal is based on her belief that Mr Berkley has a problem with alcohol and she is concerned for the children’s safety should he be intoxicated while they are in his care.
Mr Berkley stated his belief at trial that if there is another responsible adult present who could take care of the children should an emergency arise, he should be able to drink alcohol with no restrictions. He would agree to the restraint in circumstances where there is no other responsible adult present.
Mr Berkley’s alcohol consumption, and its impact on his behaviour toward Ms Berkley and his capacity to parent the children, is a major feature of the mother’s case in these proceedings, and I have already set out some evidence in relation to that issue.
It is my view that Mr Berkley himself ought to be the “responsible adult” when the children are in his care and that he should not transfer that responsibility to any other person.
In those circumstances I will make an order that restrains Mr Berkley by injunction from having a blood alcohol reading of .05% or greater while the children are in his care. If he has drunk too much alcohol to drive a car legally then it is my view that he has drunk too much to properly care for his daughters in an emergency.
Issue 6: whether I should make an order that Mr Berkley should be in substantial attendance whenever the children are in his care
Mr Berkley is the applicant in these proceedings. Initially he sought orders that the children live with him, and during the proceedings modified that proposal to one where he seeks to spend regular and significant time with them.
When parents are separated, it is important that their children know that both parents care for them, that they are a priority for both parents, and that they are safe in the care of both parents.
It is not appropriate for a non-resident parent to come to this court and seek orders that he spend time with his children and then during that time leave the children with third parties for significant amounts of time.
That is not to say that in circumstances where another responsible adult known to the children is available to care for them, the non-resident parent might not go shopping or for a recreational walk or swim without the children. That is particularly so when that responsible adult is a member of the non-resident parent’s family and/or household, but in general, when the children are in his care they should be his priority and he should not make social arrangements for those times which would interfere with his ability to care for the children.
I will therefore make an order that Mr Berkley be in substantial attendance whenever the children are in his care.
Conclusion
This has been in so many ways a very sad case.
It is clear to the court that both parents love X, Y and Z very much.
Nevertheless, the ongoing traumatic conflict between them is having a detrimental effect on the children which neither of them wants.
It is incumbent upon them, as adults and as the children’s parents, to do everything they can to lessen the conflict between them to its lowest possible level so that their dearly loved children can grow up with parents who can prioritise their needs and ensure that they live their young lives free of drama and conflict.
I certify that the preceding two hundred and twenty nine (229) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 27 November 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Duty of Care
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Negligence
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Causation
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Damages
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Costs
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