BEST & BEST

[2020] FCCA 628

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEST & BEST [2020] FCCA 628

Catchwords:
FAMILY LAW – Parenting – children’s relationships with each of their parents – competing “live with” applications – best interests of children.  

Legislation:

Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 65DAA, 61DA, 60CG, 65DAC

Cases cited:

Best & Best [2017] FCCA 1684

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR BEST

Respondent: MS BEST

File Number: PAC 5790 of 2015

Judgment of: Judge Obradovic

Hearing date: 18, 19 and 20 November 2019

Date of Last Submission: 20 November 2019

Delivered at: Parramatta

Delivered on: 20 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Rosic

Solicitors for the Applicant: Joseph Grassi & Associates

Counsel for the Respondent: Mr Reeves

Solicitors for the Respondent: Mahony Family Lawyers

ORDERS

1. All prior parenting orders with respect to the children X born … 2008 and Y born … 2011 (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The mother is restrained by injunction from changing the children’s residence from the Town C Local Government Area for a period of 12 months from the date of these Orders.  

5. Provided the children and the parents are all living in the Town C Local Government Area, the children shall spend time with the father during school term time as follows:

   (a)In week one, each alternate week from after school on Friday until the commencement of school Monday;

   (b)In week two, from after school Wednesday until the commencement of school on Thursday;

6. If the children and the parents are not all living in the Town C Local Government Area, the children shall spend time with the father during school term as agreed, but failing agreement each alternate weekend from 6pm Friday to 6pm Sunday.

7. The children shall spend time with father during school holidays as follows:

   (a)During the school holidays at the end of Terms 1, 2 and 3 each school year for one week as agreed between the parents and in the absence of agreement the first week of the school holidays from after school on the last day of school until 6pm the following Friday;

   (b)For school holidays commencing at the end of Term 4 each year as agreed between the parents and in the absence of agreement in years ending in an odd number the first half and in years ending in an even number the second half; and

   (c)As otherwise agreed between the parents.

8. The children shall spend time with the father on the Father’s Day weekend from the conclusion of school on Friday until the commencement of school on the day following Father’s Day.  

9. The children shall spend time with the father when the Easter Long Weekend falls outside of the gazetted school holiday period on the first instance from after school on the Thursday before Good Friday until 10am on Easter Sunday and then on the next occasion from 10am Easter Sunday until the commencement of school on Tuesday and alternating thereafter.

10. The children shall spend time with the father on Christmas as follows:

    (a)In each odd numbered year from 12 noon on 25 December until 12 noon on 26 December and each alternate year thereafter; and

    (b)In each even numbered year from 12 noon on 24 December until 12 noon on 25 December and each alternate year thereafter.

11. Should order 10(a) or 10(b) above conflict with any other order herein then orders 10(a) or 10(b) shall apply and the conflicting order/s shall be temporarily suspended so as to permit compliance with orders 10(a) or 10(b).

12. Notwithstanding any other order the children shall spend time with the mother on Christmas as follows:

    (a)In each even numbered year from 12 noon on 25 December until 12 noon on 26 December and each alternate year thereafter; and

    (b)In each odd numbered year from 12 noon on 24 December until 12 noon on 25 December each alternate year thereafter.

13. In the event that changeover does not occur at school the parents shall deliver the children to and collect the children from McDonald’s at Location D or a half-way point between the parent’s respective residences as agreed between the parents.

14. In the event that the Mother’s Day weekend falls on a weekend that the children would otherwise be spending time with the father then that time shall be suspended so that the children can remain with the mother for that weekend.

15. Each parent is permitted to contact the children by telephone at all reasonable times and with reasonable frequency when the children are not in their care.

16. Each parent shall keep the other advised at all times of their residential address and residential telephone number and any emergency contact number.

17. Each parent shall ensure that the other is promptly advised of any medical emergency or significant illness suffered by the children or either of them including sufficient details to enable both parents to be fully advised regarding such illness or condition and any treatment recommended or provide and both parents shall be at liberty to visit the child/ren if hospitalised (Note: This order is subject to Order 2 herein).

18. Each parent shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other parent the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parents shall be entitled to fully participate in all and any activities at the school or connected with the school.

19. Neither parent shall change the children’s place of residence without giving the other parent written notice not less than 42 days before any proposed change.

20. The parents shall forthwith do all acts and things and sign all necessary documents to ensure that the children have a valid passport including but not limited to the execution of any application for a passport/application for renewal of a passport.

21. In the event that either parent proposes to travel overseas with the children for any period, then at least two months written notice must be given to the other parent, providing the destinations, mode of transport, flight numbers and times of departure and return, relevant contact telephone numbers and addresses of where the children and/or the parent will be residing for the duration of the proposed travel.

22. Unless either parent is travelling with the children outside the Commonwealth of Australia, the children’s passports are to then remain in the custody and control of the mother.

23. The parents shall not use physical force upon the children for the purpose of discipline and shall not permit any other person to do so.

24. Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5790 of 2015

MR BEST

Applicant

And

MS BEST

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are final parenting proceedings with respect to two children, X born … 2008 (“X”) and Y born … 2011 (“Y”).

2. The parties to the proceedings are the applicant father, Mr Best and the respondent mother Ms Best.

3. The primary issues for final determination are:

   a)Parental responsibility; and

   b)Who the children are to live with and what time they spend with the other parent.

Competing Proposals

1. The father seeks orders that the parents have equal shared parental responsibility for the children and that the children live with him and spend time with the mother in a two week rotation including mid-week time and alternate weekends together with time on special occasions and during the school holidays.

2. The mother seeks orders for sole parental responsibility for the children, for the children to live with her and for the children to spend time with the father for five nights out of fourteen together with block time over the school holidays.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a children’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

Relevant Facts

1. The mother was born on … 1973 and is currently aged 46 years.

2. The mother has two children from a previous relationship, J born … 1990 and A born … 2002.

3. The father was born on … 1978 and is currently aged 41 years.

4. The parties commenced a relationship in November 2007 and were married on … 2010.

5. The child X was born on … 2008 and is currently 11 years old.

6. The child Y was born on … 2011 and is currently 8 years old.

7. The parties separated on 5 May 2015. The parties were divorced on 20 June 2017 with such order becoming final on 21 July 2017.

8. On 2 December 2015 the Court made final parenting orders by consent for the parties to have shared parental responsibility for the children, the children to live with the mother and for the children to spend time with the father as agreed between the parents but failing agreement each alternate weekend in week one and one evening per fortnight. The consent orders made on 2 December 2015 also including final property settlement orders.

9. Between the time of the final orders in December 2015 and May 2017, the children had been spending significant and substantial time with the father, while living with the mother. The children spent time with the father on at least each alternate weekend, and generally one to two extra nights per fortnight. [7]

   [7] See Best & Best [2017] FCCA 1684 at [44]

10. In late May 2017, the mother unilaterally relocated to the Town E area with the children. Until this time the children had continuously lived in the former matrimonial home, which had been located at Town F, New South Wales[8]. That home was sold by the mother in or about May 2017. The mother purchased another house in the Town E area with her then partner, Mr G, which is where she moved to with the children.

    [8] Ibid

11. On 4 July 2017 the court heard the interim application of the father seeking orders for the children to be returned to the Sydney metropolitan area.  The father’s application was brought on an urgent basis and heard by the Court on the first return date of the application. Judgment was delivered on 7 July 2017. The Court made interim orders[9] as follows:

    [9] Best & Best [2017] FCCA 1684

    1. By 4pm on 14 July 2017 the Respondent mother shall return the children X born … 2008 and Y born … 2011 to within 5 kilometres of the boundary of the Town C.

    2. Following compliance by the Respondent mother with the above order the Respondent mother is restrained from changing the place of residence of the children X born …2008 and Y born … 2011 to any place outside the area referred to in Order 1.

    3. In the event that the Respondent mother has failed to comply with order 1 within the time period stipulated in that order, or breaches order 2, then order 2 of the Orders made on 2 December 2015 is suspended and the children will forthwith thereafter live with the Applicant father.

    4. In the event that pursuant to order 3 the children live with the Applicant father the children will spend time with the respondent mother as arranged and agreed between the parents, but in any case not less than each alternate weekend from 6pm Friday until 6pm Sunday commencing the Friday after the children commence living with the Applicant father.

    5. In the event that the respondent mother complies with order 1 and order 2 or after such time she herself relocates to an area within 5km of the boundary of the Town C then the children:

    a. During school terms, will be collected by the Applicant father from school every Wednesday and returned to school by the Applicant father the next day;

    b. Will spend time with the Applicant father each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday and the Applicant father shall be responsible for returning the children to school on that following Monday;

    c. Will spend each alternate week of each school holidays with the Applicant father from 9am on Monday until the same time in the following week;

    d. Will spend time with the Applicant father or the Respondent mother (as the case may be):

    i. From 9am on the morning of the Applicant father’s birthday and the Respondent mother’s birthday (as the case may be) until 9am the next day; and

    ii. Alternating each year, from 1pm on Christmas Eve to 1pm on Christmas Day, commencing with the Applicant father for Christmas 2017; and

    iii. Alternating each year, from 1pm on Christmas Day to 1pm on Boxing Day commencing with the Respondent mother for Christmas 2017.

    6. Except where these orders specify otherwise, the parties will meet at the required times specified in these orders at Location H, Town C.

    7. List the matter for directions at 9.30am on 20 November 2017.

12. The mother did not return to the Town C area (until April 2019) and the children have been living with the father pursuant to those interim orders from July 2017. The father currently resides in rental accommodation with the children in Town F.

13. With respect to the children living with the father since the making of orders on 7 July 2017 the father states that the children have:

    Become proactive and engaged in family life and willing to take on challenges. X is compliant, willing to help, independent and takes responsibility for his actions. Y is now very affectionate, organised and responsible for her actions.

14. Prior to the children living with him the father says that Y was “messy, disorganised and uninterested in family life” and that X was “disruptive at school and struggled to engage in meaningful discussions” and further that X was “aggressive, disrespectful, unengaged and passive”.

15. The children have spent time with the mother each alternate weekend, each alternate week during school holidays and on the mother’s birthday during the time that they have lived with the father.

16. The mother currently resides in a four bedroom rental property in Town I with her niece B born … 2013 (B). The mother is the legal guardian of B and has been since she was seven weeks old.

17. The mother is no longer in a relationship with Mr G.

18. In approximately mid-2018 X informed the father that the during a visit to Location K, Mr G had accused him of stealing from the gift shop, began driving and then stopped to drag him out of the car and continued to drive away with the mother, Y and other members of the mother’s family. X told the father that it felt like they were gone for half an hour. Y confirmed with the father that she was crying and begging the mother to go back and get X and not to leave him there. The mother described a similar incident but insisted that X was only left for a short time and that he was at all times in her line of sight.

19. The father says that following this incident X had nightmares of being abandoned and that he refused to return to spend time with the mother the following weekend.

20. On 23 November 2018 the Family Report of Ms L was released to the parties.

21. In April 2019 the mother returned to the Town C area and commenced living in rental accommodation. The children have remained living with the father. When the mother returned to Town C she sought to have the children live with her pursuant to the orders of July 2017. The father sought a stay of those orders, which stay was granted with the parties’ consent on 17 June 2019, pending the final hearing.

22. The mother states that she is concerned with the children’s emotional health stating that she has seen in decline in this since the release of the Family Report in November 2018. She explains that the children appear to be “fighting more, are aware of the Court proceedings” and are concerned by the proceedings.

23. On 8 September 2019 the father had a conversation with X as follows:

    Me: What’s wrong? You seem upset.

    X: Mum kicked me in the face.

    Me: What do you mean she kicked you in the face? Tell us what happened?

    X: I was in my bedroom on my bed. B wanted the phone I was using. Mum came into the room and said that I had to give the phone to B. I said that it’s my phone and I haven’t done anything wrong. Mum tried to pull the phone off me. I grabbed hold of her arm as she tried to walk away, she pulled me off the bed and then kicked me to let go and kicked me in the face. I don’t ever want to see her again.

24. The following morning the father and his partner at the time, attended the police station with X to report the above incident. The above incident is believed to have occurred on approximately 31 August 2019.

1. The father says that X did not spend time with the mother until the evening of 18 September 2019 following his disclosure to him on 8 September. X reported to his father that on the evening of 18 September 2019 the mother did not speak to him and that he spent the evening alone in his bedroom.

2. The mother’s evidence in respect of what happened on this occasion is very different to what X said to the father. The mother said that she had taken X’s mobile phone off him in the evening as a disciplinary measure, which he rebelled against and that in turn, he took her phone he hid it. He left the mother a note on the kitchen bench which read “Fuck you. You don’t know how much I hate you.” That night X fell asleep on the lounge where the mother left him for the night, and the following morning they had a conversation about what had happened including the note which X had left for the mother. Consequently, X lost further phone privileges. There was nothing faintly resembling the incident which X described. The mother said that she had provided her explanation to the father.

3. Both parents are now[10] of the view that X has not been completely honest with the father and the police in respect of this incident.

   [10] The father conceded as much in cross-examination

4. On 28 October 2019 X had the following conversation with his father:

   Me: How was your weekend? Did you have a good time?

   X: You would not believe what mum did me (sic) over the weekend.

   Me: Go on.

   X: Mum tried to strangle me.

   Me: What do you mean she tried to strangle you? Explain what you mean.

   X: We were in the car with mum. I was in the front passenger seat. B was behind me and Y was behind Mum. B was fighting with Y over a toy. B started kicking my seat when she didn’t get the toy from Y. I turned around and said “B, stop kicking my seat”. B continued to kick my seat and she kicked me in the face. Mum pulled the car over and I turned in my seat to hit back at B. I know I should not have retaliated. As I tried to hit B, Mum grabbed me and held me down in the car. She had one hand on my throat and one hand on the top of my head and I couldn’t move. Y then tried to get Mum off.

   Y: Yeah, I undid my seatbelt and started to hit mum to let go of X.

   X: Mum did let go. She started crying. I was crying. Y was crying. Mum ended up saying sorry straight away.

5. Following X’s disclosure, the father sent a text message to the mother on 30 October 2019. He did not call the mother nor did he ask her what had happened. In that text message the father asserted:

   Now both kids have told me about how you tried to strange X in the car on Sunday and that Y got out of her seat to hit you so you would stop hurting him…

   This is assault, that is child abuse! What the hell are you doing? Have you completely lost it. (sic)

   X is scared and worried to go back there again but is only prepared to do that because you apologised to him on the day…

6. The mother’s response was as follows:

   No [Mr Best] B and Y were having a disagreement in the back seat and I pulled over.

   X stuck his head over to tell B off for kicking the back of his seat and B’s foot hit his cheek. He got very angry and started punching B so I had to pull him back into the front and restrained him till he calmed down.

   We discussed it and shared a lot of emotions about how we are all feeling.

   Please refrain from making judgement of abuse and assault without talking to me first…

7. Even after this text message from the mother, the father chose not to speak to the mother or to find out anything further from her about the incident. He remained steadfast in his view that the mother had tried to “strangle” X, a view which could not have been supported by any objective facts.

8. X was reluctant to report the above incident to the police, and according to the father said he did not want to speak to the police about it. However on 12 November 2019 the father, on advice from his lawyer, attended the police station with X who spoke with a police officer about the event. No further action was taken by the police. This was done after the father had been told by the mother that X had said to the mother that he wanted to harm himself as noted directly below. 

9. On 10 November 2019 X disclosed to the mother the following:

   Mum, I need to talk to you. There is lots in my head. I want to kill myself. Last weekend I was here I tried to kill myself… I don’t want to tell you what is in my head as you will want to kill yourself too. I’ve been in trouble lots at school. I get lots of orange cards. I think I am just looking for attention.

10. When the mother asked X if he had spoken to anyone else about this he replied “I spoke to Dad but he was trying to trick me into telling him and I won’t be tricked”.

11. The mother spoke with X’s principal about this disclosure and also attempted to speak to his Counsellor at M Counselors. The mother contacted her Caseworker at N Counselors and was advised that she should raise this with the father in writing.

12. On 11 November 2019 the mother sent a text message to the father advising that X had made this disclosure to her. She said:

    X told me on Sunday night he has thoughts of self-harm and wanting to die and that he has told you this prior to telling me. I have spoken to the school Principal and Mr O and sought advice on how to deal with this.

13. The father replied that same day as follows:

    After you kicked him in the face and held him down by his neck, he had returned very troubled and hurt on both occasions because he had felt very unloved by you and had this in his mind…

14. The father clearly put the blame on the mother for X feeling the way that he did.

15. The paternal grandmother, who assists the father in caring for the children, gave evidence of X self-harming recently; something which neither the father nor the paternal grandmother had shared with the mother.

Courts Determination

1. Prior to May 2017, the children had been, after the parties’ separation in 2015, primarily living with the mother. Due to, what the mother says was a misunderstanding of the orders which were made in 2015, she was of the view (notwithstanding the father’s expressed objection) that she had the “right” to move with the children to Area P and that that this was a move which had been contemplated by the parties and agreed upon after separation.

2. The parties’ circumstances changed after the 2015 orders, as is clear from the Court’s interim judgment of July 2017. The situation they were in at the time of the December 2015 orders was no longer the situation they were in as at May 2017. The orders which the Court made in July 2017 were made, in part, in consideration of the possibility of the mother moving back to the Sydney metropolitan area and the children remaining in her primary care. The mother, for reasons which have never been fully explained at final hearing, did not avail herself of the opportunity of having the children live with her pursuant to those interim orders.

3. Things for the children were made worse by the “blame game” which followed between the parents, and the father’s involvement of the children in the parental conflict. The children came to believe that the mother had made the choice not to return to Sydney and thereby that she had made the choice to, in essence, abandon the children. The father did not at any point in time dissuade Y of this belief, indeed, his words and actions only strengthened that belief.

4. When the mother returned to the Sydney metropolitan area in April 2019, the father did not facilitate the children living with her pursuant to the July 2017 orders. Ultimately, those interim orders were stayed by consent. This was a sensible outcome for the children given the change in the father’s application for the children to live with him on a final basis and the significant period of time which had passed since the orders were made in July 2017.

Views expressed by the children: s.60CC(a)

1. The children have both expressed their views to Ms L, the family report author.

2. At paragraph 97 of the Family Report Ms L wrote:

   X said that he would definitely prefer to spend a week with Ms Best and a week with Mr Best, but that Ms Best won’t or can’t find a house in the Town C area. He stated that he misses Ms Best, because he hardly ever gets to see her. He said that when he asks to speak to Ms Best, Mr Best says “later”, but then never calls Ms Best. X said he really wants Ms Best to move back, so he gets to see her.

3. During informal observations, Ms L observed X several times during the day attempting to get the mother’s attention when she was distracted with other things.

4. In respect of Y, Ms L reported[11]:

   a)That Y said she would like the father to move to Town R[12];

   b)When it was time to separate from the mother after the formal observation session, Y clung to the mother and said “it was a nice surprise you were here”;

   c)Throughout the day, each time Y saw the mother, she approached her and hugged her. Whenever Y was required to separate from the mother, she appeared distressed, and held onto her tightly;

   d)At one point, Y walked into the waiting area with the Family Consultant and saw both the mother and the father. She appeared briefly confused about where to go, looking back and forth between them, before going to hug the mother. 

   [11] Paragraphs 116 - 119 Family Report

   [12] Which is where the mother was living at the time of the interviews

5. According to Ms L, both children provided age appropriate views regarding their parenting situation in essence that they would like the parents to live closer together so that they could spend more regular time with each parent. Whilst the family report writer notes that these views should be considered she also states that they should be regarded with caution noting the ages of the children.

6. At the time of final hearing, the Family Report was almost 12 months old, and the children had matured more during that period of time[13].

   [13] This is inferred from the evidence of the parents, the age of the children at the time of the interview and children’s usual growth and maturity

Nature of relationships: 60CC(b)

1. At the time of the Family Report interviews the mother was living on Area P and was in a relationship with Mr G. These arrangements have ceased and the mother now lives in Town I without Mr G. The father is no longer in a relationship with Ms Q.

2. At paragraph 118 of the Family Report Ms L wrote:

   X, Y and B all showed physical affection to Mr Best and Ms Best throughout the assessment, and they appeared comfortable to approach each parent and show affection to each parent, regardless of the other watching on.

3. Ms L’ evaluation was that “each of Y and X appeared confident and capable in expressing their feelings regarding their parenting arrangements… both appeared to express independent opinions regarding their situation”.

4. Ms L opined that both children had a positive “but insecure” relationship with Ms Best stating that they would “compete for her attention”. She stated that both children appeared to miss the mother and expressed that they would like to see her more often.

5. The report writer spoke of the close relationship that both Y and X have with B, stating that the relationship between the children and B was akin to a sibling relationship. Y told Ms L that she misses B a lot.[14]

   [14] Paragraph 100 Family Report

6. According to Ms L, the father seemed to minimise the relationship between the children and B to the report writer stating that “the children are too busy to miss B on a daily basis”. The father confirmed that he has not sought permission for B to stay with him overnight as he is prioritising the needs of Y and X. The report writer was of the view that the father did not appear to consider the impact on X and Y of being separated from B. There was limited evidence about the children’s relationships with A.

7. During cross-examination, Ms L expressed the opinion that if a child is given the impression that a parent is not spending time with the child because the parent has no motivation to do so, this is likely to have a devastating impact on the child. The child would possibly feel unloved or that it is their fault that the parent is not spending time with them.

8. The insecurities which Ms L observed in the children would be alleviated by the mother spending more time with them and by a consistent message from both parents that the mother loves the children.

9. It is the Court’s finding that the father has a more limited capacity than the mother to meet the children’s needs in this regard. If the children remain living with the father it is likely that the children would continue to feel insecure about their mother and would not be sufficiently encouraged by the father in their relationship with the mother.

Extent of parental involvement in decision making and spending time: s60CC(c)

1. After the making of the interim orders in July 2017, the father exhibited an inflexible attitude towards the children’s time with the mother and generally towards the mother’s involvement in the children’s lives. This continued even after the mother moved back to Sydney in April 2019, when the distance between the parties’ homes ought to have seen the children in a much more flexible arrangement and able to spend more than the minimal time the orders provided for with the mother.

Obligation to maintain children: s60CC(ca)

1. This is not a consideration that was relevant to any determination.

Likely effect of changes and Practical difficulty and expense: s60CC(d), (e)

1. At the commencement of the hearing, the mother sought orders for the children to live with her on Area P. Her position changed on day two of the hearing, when she told the Court that she was prepared to stay in Town C if this is where the children were going to live.

2. Counsel for the father submitted that the mother has been less than honest regarding her true intentions of where she intends to live.

3. The mother still retains part-ownership with Mr G of the house in Town R. There is a suggestion that she may return to live in that home, after all, her evidence is that the house is “half hers”. The mother’s evidence is that B’s medical and allied care is located in the Town E area, but that there was no reason why she could not connect with similar supports in the Town C area.

4. If the children were to live with the either the mother or the father in the Town C area, there would be very little change to their routine in terms of their schooling, friendship groups and social ties. The children have, except for a short period of time in 2017, lived their lives in the Town C area. They appear to be well settled at school and in their activities.

5. Living with the mother would see the children’s relationships with A and B more able to flourish.

6. If the children were to live with the mother on Area P, this would provide some challenges for them. It would mean different schools and different social ties. It would mean some difficulty in spending time with the father, similar to what they experienced with respect to time with the mother when the mother was living on Area P and they were living in Sydney.

7. However, the mother is more likely to be flexible with the children’s time with the father and to promote that relationship, than the father has been to date with the children’s time with the mother and that relationship. Therefore, even if the children and mother ultimately moved from the Town C area, the Court finds that the mother would facilitate and encourage the children’s relationship with the father, notwithstanding any practical difficulties that might be encountered.

Capacity of parents to provide for needs of children, Attitude to child and responsibilities of parenthood: s60CC(f)&(i)

1. At paragraph 127 of the Family Report the report writer states the following:

   It appears that Mr Best has continued to facilitate the children having contact with Ms Best, as minimally required by Court Orders. It appears that Mr Best is willing to follow any Court Orders in relation to the children’s contact with Ms Best, but that he is not willing to support their relationship any further than this… Mr Bests apparently punitive attitude towards Ms Best, and his denigration of her, is likely to be confusing for the children and may undermine the children’s relationship with one or both of their parents, if it continues.

2. The evidence of the parties is that the father, after the interim orders were made, insisted on a strict reading of those orders and was very inflexible about making practical arrangements as were needed for the benefit of the children from time to time. For example, the father, notwithstanding the fact that he was aware of the children’s desire and emotional need to spend more time with the mother than the minimum time the orders[15] provided for, did not consider making arrangements for the children that they spend additional time with the mother during school holidays.  In cross-examination, in answer to a question whether he told the children that it was the mother’s fault the children were not spending time with the mother, the father said that he told the children it was her decision. The father understood that as at November 2017[16] Y was starting to feel that her mother did not want to spend time with her. The father did not at try to dissuade Y of the notion that the mother had abandoned them.

   [15] Order (4) made on 7 July 2017: In the event that pursuant to order 3 the children live with the Applicant father the children will spend time with the respondent mother as arranged and agreed between the parents, but in any case not less than each alternate weekend from 6pm Friday until 6pm Sunday commencing the Friday after the children commence living with the Applicant father.

   [16] The time of the family report interviews

3. During the interviews with Ms L, the father said that he will “put [the mother]… back in her place” when needed, telling her to “cut the crap” and “get over it”. In cross-examination the father conceded that he had said these things but admitted that it was wrong of him to say them to the mother. He explained that at the time he was very angry with some of the choices the mother had made. He conceded that his attitude towards the mother at the time was dismissive.

4. Between November 2017 and April 2018, the mother had been unable to drive due to a medical restriction. The father insisted on the changeover remaining at Town C, and he did not negotiate with the mother because this is what the orders provided for as the place of changeover and that driving to Town C was the mother’s “penalty” for moving away.

5. In 2019, shortly before the mother moved back to the Town C area, the father enrolled the children in sports. The children’s matches are on the weekend, and practically this meant that the children would have either missed out on a game every second weekend or that there would have been additional and significant travel involved for them or that they would have missed out on spending important time with the mother. The father did not tell the mother what teams the children played in, instead the children told the mother this important information.

6. In any event, after the mother moved back to the Town C area, the father insisted on attending every sports game, even on the weekends when the children were spending time with the mother. He insisted on bringing the children’s uniforms to them at the commencement of the game rather than letting the children take their sports uniforms with them when they transitioned to the mother’s house on a Friday evening.

7. These matters lead the Court to find that the father is inflexible in his attitude towards the mother and that the father does not have significant capacity to foster a meaningful relationship between the children and the mother.

8. Ms L states that a major source of conflict between the parents appears to be their “strikingly different parenting styles”. She states that:

   Ms Best’s apparently warm and flexible parenting is likely to validate the children and provide them with emotional support. Mr Best’s apparently more structured, consistent parenting is likely to provide the children with predictability and boundaries.

1. In the report writers opinion the children can benefit greatly from both of the parents parenting styles by spending substantial and significant time with each parent. This however can only occur if the parents live within close proximity to one another. As the mother has moved to the Town C area this is more capable of occurring than when she relocated to Area P.

2. The Court does not accept Ms L’ opinion as to the major source of conflict between the parties’ being their “strikingly different parenting styles”. The major source of conflict between the parties arose as a result of the mother’s unilateral move with the children in May 2017 to the Town E area and the flow-on effect from that.

3. The Court however accepts that the differing parenting styles are likely to have the effect on the children which Ms L points to.

Maturity, sex, lifestyle, background and characteristics: s60CC(g)

1. These matters have been discussed elsewhere.

Aboriginal/Torres Strait Islander: 60CC(h)

1. This is not a consideration that was relevant to any determination.

Family Violence and any Family Violence Orders: s60CC(j),(k)

1. The concerns which are raised in these proceedings relate to allegations by X against his mother, in particular that she has been physically violent towards him on a number of occasions. Furthermore, it is alleged that the mother and her former partner may have been physiologically abusive towards X. The details of the allegations are set out earlier in these reasons.

2. The facts do not establish on the balance of probabilities and having regard to s.140(2) Evidence Act 1995 (Cth) that the mother has engaged in acts of family violence against X as alleged by the father.

3. The father seeks an injunction preventing the parties from using physical discipline on the children. It is not an order which is opposed by the mother.

Is it preferable to make order least likely to lead to further proceedings and any Other matters: s60CC (l) and (m)

1. These proceeding have been on foot for a lengthy period of time, and the children’s living arrangements have previously been the subject of parenting orders.

2. It is the Court’s view that the orders which are made herein are least likely to lead to further proceedings. They will provide stability and safety, particularly emotional stability and safety, for the children.

Parental Responsibility

1. This is a case of high parental conflict, so much so, that the parents are not able to effectively communicate about important issues regarding the children. While there is the capacity for electronic communication, in light of the evidence, the Court does not accept that such communication would allow effective joint decision making as required by s65DAC. In the circumstances of these children, joint decision making by their parents is contra-indicated.

Conclusion

1. In considering the evidence as a whole and the totality of the relevant factors, the Court finds that the children’s needs are best met by an order that they shall live with the mother and spend time with the father.

2. Given that the children will be living with the mother, it is in the children’s best interest that the mother have sole parental responsibility for reasons explained earlier.

3. There will be a restraint on the parties for a limited period from changing the general geographical area of the children’s residence. This will provide the children with much needed support from both parents and ensure that they feel that they are loved and cared for by both their mother and their father. It will also provide the children with the ability to spend time with the parent with whom they are not living, provided the parties can agree to some flexible arrangements for the children. It is more likely, that of the two parents, the mother would facilitate such flexible arrangements to meet the children’s needs.

4. For all of these reasons orders are made as set out at the forefront of these Reasons.

I certify that the preceding one-hundred and three (104) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 20 March 2020