Bradshaw and Bradshaw

[2018] FCCA 1948

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRADSHAW & BRADSHAW [2018] FCCA 1948

Catchwords:
FAMILY LAW – Parenting – 2 children – one child estranged from the father.

Legislation:

Family Law Act 1975, ss.60CA, CC (2), (3), 61DA(1), 65DAA

Applicant: MR BRADSHAW

Respondent: MS BRADSHAW

File Number: LNC 500 of 2017

Judgment of: Judge McGuire

Hearing dates: 11, 12 & 13 July 2018

Date of Last Submission: 13 July 2018

Delivered at: Hobart

Delivered on: 18 July 2018

REPRESENTATION

Counsel for the Applicant: Mr M Verney

Solicitors for the Applicant: Matthew Verney Lawyer

Counsel for the Respondent: Mr M Turnbull

Solicitors for the Respondent: McVeity & Associates

ORDERS

1. That the parents have equal shared parental responsibility for the children [X] born 2007 (“[X]”) and [Y] born 2010 (“[Y]”) (“the children”).

2. That the children live with the mother.

3. That [X] spend time with the father as follows:

   (a)For 4 consecutive Wednesday afternoons from the date of these orders from the conclusion of school (or 3.00p.m) until 5.00p.m.;

   (b)Then on 4 consecutive Sundays from 10 a.m. until 5.00 p.m.;

   (c)Then on each alternative weekend for 4 occasions from the Friday at the end of school (or 3.00 p.m.) until the Saturday at 5.00 p.m.;

   (d)Then on alternate weekends for 4 separate occasions from the Friday at the end of school (or 3.00p.m.) until Sunday at 5.00p.m;

   (e)Thereafter on each alternate weekend from the Friday at the conclusion of school (or 3.00 p.m.) until the Monday morning at the commencement of school (or 9.00 a.m.) together with time on the other Monday in the fortnight from the conclusion of school (or 3.00 p.m.) until the commencement of school on the Tuesday (or 9.00 a.m.);

   (f)For one half of each Tasmanian gazetted school term holiday commencing the second term holidays 2019 and as agreed between the parties but failing agreement, then from the first Friday at the conclusion of school (or 3.00 p.m.) until the second Saturday at 12 noon;

   (g)During the Tasmanian gazetted summer school holidays commencing 2019/20 on a week about basis with the day and time of changeover to be agreed between the parties but failing agreement then on the Friday at 5.00 p.m.; and

   (h)That weekend and weekday time be suspended during school holidays as from all school holidays commencing from end of second term 2019.

4. That [Y] spend time with the father as follows:

   (a)Each alternate weekend between Friday at the end of school (or 3.00 p.m. if not a school day) and Monday at the commencement of school (or 9.00 a.m. if not a school day);

   (b)Each alternate Monday from the end of school (or 3.00 p.m. if not a school day) and Tuesday at the commencement of school (or 9.00 a.m. if not a school day);

   (c)For one half of each Tasmanian gazetted term school holiday as agreed between the parties and failing agreement then from the first Friday at the conclusion of school (or 3.00 p.m.) and the second Saturday at 12.00 noon;

   (d)During the Tasmanian gazetted summer school holidays on a week about basis with changeovers to occur as agreed between the parties but failing agreement then on the Friday at 5.00 p.m.;

   (e)That weekend and weekday time be suspended during school holidays; and

   (f)Such other times and variations of the above as agreed between the parties from time to time.

5. That in any event both [X] and [Y] spend time with the father between 3.00 p.m. Christmas Day and 5.00 p.m. Boxing Day and with the mother between 5.00 p.m. Christmas Eve and 3.00 p.m. Christmas Day in 2018 and in each alternate year thereafter and spend time with the father from 5.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day and with the mother from 3.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2019 and in each alternate year thereafter.

6. That should the children not be with the father pursuant to these orders on Father’s Day in any year then they spend time with him from 5.00 p.m. on the Saturday until the commencement of school on the Monday (but not in 2018 for [X] when such time be pursuant to order 4(b) hereof) but should the children be with the father pursuant to these orders on the Mother’s Day weekend then such time conclude at 5.00p.m. on the Saturday.

7. That a copy of these reasons and orders be provided to Mr J by the Court.

8. That the father comply with any medications prescribed by his general practitioner and consult not less frequently than each two months whilst that prescription remains and until the general practitioner stipulates otherwise.

9. That the father consult with Mr J on a level of frequency as suggested by Mr J until such time as Mr J feels that the father no longer needs assistance and for these purposes the father make a first appointment with Mr J within seven (7) days of these orders and then as directed by Mr J.

10. That the father’s application for an injunctive order preventing the children from flying in light aircraft piloted by the maternal grandfather, Mr W, be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BURNIE

LNC 500 of 2017

MR BRADSHAW

Applicant

And

MS BRADSHAW

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings involving the parties’ two children [X] (“[X]”) born 2007 (aged 10 years) and [Y] (“[Y]”) born 2010 (aged eight years).

2. Broadly speaking, the father seeks an order whereby eventually both [X] and [Y] live in an equal time arrangement between the parents preferably on a week-about basis.  He proposes different graduating arrangements for each of the two girls given that he and [X] are currently estranged but, in any event, reaching the ultimate of week-about for the girls from the end of May 2019.

3. The mother also proposes a graduating regime but reaching its ultimate with the [X] and [Y] living with her and spending time with the father each alternate weekend from after school Friday until the commencement of school Monday together with block periods of time in school holidays. This was the mother’s position at the start of the trial. However, by the end of the evidence and her Counsel’s final submissions the mother was urging the Court to make only interim orders and hence to review [X]’s reintroduction to the father.

4. Both parents agree that there should be orders for shared parental responsibility of [X] and [Y].

5. The father also seeks a discrete injunctive order preventing the children from flying in light aircraft piloted by the maternal grandfather.

The Issues

1. There are two major questions for this Court’s response being:

   (i)the form of a sympathetic reintroduction of the older child, [X], to the father where there has been no direct contact since September 2017; and

   (ii)whether or not it is in the children's best interests and reasonably practicable for them to ultimately live in a week about arrangement between the parents as proposed by the father or whether it is in their best interests to live primarily with the mother and spend time with the father?

Background

1. The father is 45 years old and the mother is 41 years.  The father is a (occupation omitted) and the mother a (occupation omitted).  They both live in the greater Region 1 area.

2. The parents were married in 1999 and separated on 24 December 2016.

3. On the date of separation the father was admitted to the Psychiatric Unit after a suicide attempt.  He was discharged on 17 January 2017.

4. Between March and September 2017 the children began to spend time with the father, initially supervised, but extending to 6 nights per fortnight and half school holidays from June 2017.

5. The mother stopped the children's time with the father on 25 September 2017 when the child [X] threatened self-harm/suicide.

6. [Y]’s time with the father recommenced in late October 2017.  However, [X] and the father remain estranged and have had no contact except for occasional meetings at [X]’s school.

7. The mother obtained a Police Family Violence Order against the father at around the time of separation. That order has now expired.

8. [Y] currently spends three nights per fortnight with father.

The Evidence

1. Both parents were represented in this matter. They both filed affidavits, gave evidence and were cross-examined. Both the mother and the father impressed as articulate and intelligent and subjectively honest in their evidence. Mr Bradshaw was, however, and perhaps understandably, at times confused in his subjective desires to maximise his time with his children together with a focus on ‘fairness' as against the objective question for the Court being the best interests of the children.  I noted a certain sense of empowerment and entitlement in his evidence and perhaps consistent with the observations of his personality traits observed by the professional witnesses engaged in this matter.

2. Like the father, the mother at times seemed unable to differentiate her own 'wants' from objectivity in respect of the children's best interests. I accept, however, that she has had to deal with circumstances of suicidal ideation in her older daughter, a difficult separation, and a difficult post-separation relationship with the children's father.

3. Dr E, psychiatrist, gave evidence as the Court expert. He was cross-examined by Counsel for each party. Dr E’s report is dated 29 June 2018. He interviewed both parties and the children. Dr E recommends time for the children with the father but advocates a cautious response. He suggests a gradual and reviewable approach to the reintroduction of [X] to the father.  Dr E’s view is that the father’s suicide attempt(s) was isolated and situational consistent with a negative emotional reaction to separation. Dr E does, nevertheless, suggest a diagnosis or condition of 'cyclothymia’ in the father. On page 18 of his report Dr E describes the father thus:

   The past admission to the The Clinic was in crisis following a suicidal attempt; its duration was consistent with that or with the initial treatment of a Major Depressive Episode but the follow-up arrangements do not suggest the latter very strongly. The father is clearly subject to major fluctuations in energy, mood and motivation but these appear to be generally subclinical and a diagnosis of Bipolar Mood Disorder appears to be inappropriate. The father has a history of mild dyslexia combined with high intelligence and an excellent academic record. The history he provided, combined with the observations of others is consistent with hyperthymic episodes (cheerful, articulate, over-optimistic, over-confident, extraverted (sic), future orientated, full of plans, versatile, with broad interests, a tendency to over-involvement, inventiveness and stimulus seeking) alternating with dysthymic periods (despondent, verbally abusive, excessively pessimistic, unconfident, anxious, subject to suicidal thoughts, underactive and withdrawn, and care-seeking). The presentation at interview was mildly hypothymic, the overall history in the absence of any clear history of major affective shifts (i.e. clinically significant depression or hypomania) suggests cyclothymia.

4. Dr E generally agreed with the observations of Mr Bradshaw’s own psychologist, Mr J, that Mr Bradshaw showed characteristics of both a controlling nature and emotional dependency. Consistent with these observations, the mother reported to Dr E in respect of the father:

   … 'he’s never in the wrong’ … no physical violence … manipulation, emotional blackmail, not a lot of verbal abuse, he was conscious of that, sulking, comments about pulling him last' … 'felt freedom only when he was away … he preferred to be with me without the girls.'

5. Dr E observed no psychiatric or psychological issues for the mother but noted at page 22 'The mother will need to overcome her avoidance of causing distress to [X] by agreeing to contact with the father.' 

6. The father’s psychologist Mr J gave evidence and was cross-examined. Mr J provided an affidavit sworn 2 May 2018 which annexes reports on Mr Bradshaw in the form of letters dated 1 May 2017 and 23 November 2017. It seems that there has been little recent contact by Mr Bradshaw with Mr J.

7. At [6] of his first letter Mr J opines:

   Considering the circumstances of this matter, I can see that Ms Bradshaw's complaints about past control may have some substance. Mr Bradshaw has some measure of emotional dependency, making him sensitive to rejection and at such times prone to defensive anger as a means of dealing with vulnerable emotions.  He is not invested in power and control or gendered roles. He does not have antisocial attitudes or disregard the rights of others. The profile is not consistent with coercive controlling family violence.

8. Mr J notes some vulnerability to depression and anxiety in Mr Bradshaw but also notes the risk of self-harm being 'low'. At [6] of his second letter Mr J states:

   While you primarily held Ms Bradshaw responsible for creating that uncertainty and inconsistency, it seemed to me that you were probably not fully aware of the impact of your own behaviour on the children. Your strong desire to spend time with the children and reconcile with Ms Bradshaw was very apparent. I said to you several times that the force of your desire and efforts to 'fix things' could be overwhelming for others, no matter how good your intentions are. For that reason I urged a patient approach from the outset that created safety and reduced tension for everyone. While that may not be fair for you, but it is probably the most workable way forward. 

9. Mr J, like Dr E, also urges a cautious move forward in respect of the father's relationship with the children. Specifically, in his evidence in Court, Mr J does not support a regime of equal time for these children between their parents.  Although Mr J gave evidence in this matter as a witness for the father and as his therapist, Mr J is an experienced and regular contributor to this jurisdiction are a Court expert family reporter.

10. The father adduced evidence from Ms H. She is an acquaintance of both parties from about 2010 and has been a neighbour. Ms H is generally complimentary as to Mr Bradshaw’s abilities and commitment as parent although notes some of the characteristics of his personality as observed by the experts. Her evidence was otherwise unremarkable. 

11. The mother adduced evidence from her father, Mr W. His affidavit is sworn 5 April 2018. Specifically, Mr W gave evidence in his affidavit and in Court only as to the specific issue of an injunctive order sought by the father preventing the children being passengers in any light aircraft piloted by Mr W across Bass Strait. Mr W was an impressive witness. He is properly qualified, experienced, and apparently familiar with all of the necessary safety requirements. He impressed as a conservative and safety-conscious pilot.

Relevant Law

1. Parenting proceedings are provided for in Part VII of the Family Law Act 1975 (“the Act”). Section 60CA offers a general rule that the children's best interests are the paramount consideration in determining parenting and living orders.

2. Section 61DA(1) of the Act gives a presumption that it be in children's best interests for their parents to exercise equal shared parental responsibility. This concept references the important long term decisions for children usually made by parents. That presumption does not apply if the Court is satisfied as to family violence or child abuse or can be rebutted if there is evidence to satisfy a Court that such an order is contrary to the best interests of the children. In the matter now before me, both parties advocate an order for equal shared parental responsibility. Significantly, if such an order is made then the Court is mandated to follow a statutory and intellectual course of consideration as to the children’s parenting and living arrangements set out in s65DAA of the Act. Firstly, the Court is to consider whether it is both in the children's best interests and reasonably practicable for them to live in an equal time shared care arrangement between their parents. This, of course, is the position argued by the father. If, however, a Court is to find that it is not both in the children's best interests and reasonably practicable for such an arrangement, then the Court is to consider whether the children living in a regime of 'substantial and significant time' is both in the best interests and reasonably practicable. 'Substantial and significant time' is defined in the Act as time for the children with a parent on both weekend and weekdays and which allows children and parents mutual participation and enjoyment of their activities.

3. The mother, in the matter now before me, proposes an even more conservative regime of essentially time for the children with the father every second weekend and periods in school holidays with the father (although noting that she offers that the weekends conclude on the Monday morning).

4. Children's best interests are determined on a weighing and balancing process of referencing the probative evidence and the parties’ proposals to each of the factors set out in s.60CC(2) and (3) of the Act.

Section 60CC Factors

S60CC(2)(a) - The benefit to the children of having a meaningful relationship with both of the children's parents

1. The younger child, [Y], has an ongoing relationship with both parents.  She sees her father on a regular and frequent basis.  She lives primarily with the mother. There is no evidence to suggest that this relationship is other than mutually enjoyable and meaningful.

2. The older child, [X], currently has no relationship with the father. She has not seen her father, except for opportunistic meetings, since September 2017. [X] is reluctant and denying of any relationship with Mr Bradshaw. The expert, Dr E, offers two potential explanations for [X]’s reluctance, firstly, her perceived fear of the father's anger and, secondly, her difficulty in dealing with the separation of her parents.  Dr E suggests that the second of those factors may be more relevant to the child's mind set.

3. Both parties claim that they are supportive and desirous of [X] resurrecting a meaningful relationship with her father.

S60CC(2)(b) - The need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

1. This is not a matter in which physical family violence features. Psychologically and emotionally, however, the mother asserts coercive and emotional behaviour at the hands of the father.  Mr Bradshaw himself has attempted suicide and there followed an admission for him to a psychiatric institution.

S60CC(3)(a) - Any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children's views.

1. The younger child, [Y], currently spends three days a fortnight with the father. She is just eight years of age. Like her sister, she is observed by Dr E as being intelligent and articulate. Dr E at page 8 of his report observes:

   She understood the purposes of the interview as being 'about the divorce to my family'. She then stated ‘I want equal time with my Mum and Dad, my Mum doesn’t want that. [X] wants to be with Mum all the time.' 'I don't want to go to two houses, my school is next to Dad, I just want to live in one house again' [unlike her sister], she is not allergic to cats, no asthma'. ‘Dad gives me lots of Macca’s and pizza’s, I like that. I get to watch TV at Dad’s.' She wants 'one big family again' but ‘Mum says she won't go to Dad again.' 'about two months into the divorce we had a dinner at Dad’s, we didn't get to go again because she liked it. …'I love the cats, I love my Dad, we have special apple trees at my old house.  There was no arguing until Dad didn't take his pills.  I've no idea why [X] doesn't want to go to Dad’s.'

1. Although just eight years of age and a perhaps not able to maturely rationalise her own best interests, I am generally satisfied that [Y] is comfortable in a relationship with each of her parents.

2. [X] is currently refusing any time with the father. To Dr E she said (at page 7):

   She says that the best thing is ‘living with Mum’, ‘Dad gets really, really, really, angry I get really nervous, I feel sick', 'He says he takes pills'.  She describes him as 'a little bit controlling', 'he manipulates people', meaning '[Y], myself.’ … She sums up, 'I'm just nervous about seeing Dad', but she appeared to be indicating that if the Court orders it she will comply and she showed no distress in discussing this.

3. Also on page 7 Dr E notes:

   The child is highly articulate, she has clearly picked up terminology notions from her elders e.g. “controlling”, “manipulates”, “acting out”.

4. In his recommendations at page 21 Dr E notes:

   [X] is emphatically clear that she does not want to visit her Father but according to the Mother she no longer hides when he is likely to be encountered when collecting and delivering her sister. Her explicit understanding of the purpose of the interview was 'so I don't have to see Dad', and this was followed by the direct statement that she did 'not want to go to him again', explaining that he makes her ‘really nervous' and that she is allergic to his cats. By the end of the interview she had mitigated her view to 'I’m just nervous about seeing Dad' and she recognised that the Court may make an Order requiring some contact.  She showed no distress at this.

S60CC(3)(b) - The nature of the relationship of the children will each of the child's parents

1. [Y] has an easy and comfortable relationship with each of her parents and seems to move easily between them. The mother's affidavit references some difficulties for [Y] and historically in returning from her father, such as tiredness and being unsettled.

2. [X], however, is currently estranged from her father. Both the mother and Dr E expect that this situation can be rectified by a sympathetic reintroduction of [X] to time with the father.

S60CC(3)(c) - The extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children; and to spend time with the children and to communicate with the children.

1. The father in his evidence is impliedly (and at times, explicitly) critical of the mother’s attitude in not encouraging his relationship with the two girls.  His Counsel cross-examined the mother as to an alleged propensity to act unilaterally in respect of the children. I place little or no weight on these factors and find generally that this mother is supportive of a relationship for both children with the father but takes a far more conservative and cautious approach than does the father himself. He mistakenly interprets her caution as being a lack of support or even 'alienation'.

S60CC(3)(d) - The likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either parent

1. Not relevant.

S60CC(3)(e) - The practical difficulty and expense of the children spending time with in and communicating with a parent

1. Not relevant.

S60CC(3)(f) - The capacity of each of the children's parents to provide for the needs of the children including emotional and intellectual needs.

1. It is clear on the evidence that each of these parties can provide for the physical needs of the children. The orders sought by the father, being for equal time, suggest that he has no concerns with the mother's ability to attend to the children's emotional needs but perhaps with a caveat that he suspects she may not always positively encourage the children’s relationship with him. After hearing and seeing the mother give her evidence, I am satisfied that she does have the capacity to attend the children's emotional needs. She has reacted in an understandable fashion to her older child’s suicidal ideation in September 2017. She has sought professional help. Nevertheless, she is now advocating time for [X] with the father albeit on a far more cautious regime than that proposed by Mr Bradshaw. In respect of this reference, I note again Dr E's opinion that Ms Bradshaw will need to overcome her avoidance of causing distress to [X] by agreeing to contact with the father.

2. I maintain some concerns as to Mr Bradshaw’s capacity to attend to the children's emotional needs - within the context of the orders that he seeks. There is evidence of him being both a dependent and controlling personality.  I accept generally these personality traits as exposed in the reports of Dr E and Mr J and after having the advantage of seeing and hearing Mr Bradshaw give his evidence in Court.  Again, I am able to find that he has some difficulty in differentiating between his own 'wants' and his children's best interests. I am not satisfied that he has a full or proper understanding of the objective requirements for an order for equal shared parental responsibility of children such that would generally ground the consideration for Judges in this jurisdiction but confuses the notion with ‘fairness’. Whilst having some sympathy for him, I generally agree with the comments of his own psychologist, Mr J, that Mr Bradshaw seems impatient to gain a result for equal time with his children for the sake of the result rather than ultimately being consistent with his children's best interests, and particularly those of [X].  Nevertheless, I accept that Mr Bradshaw has shown some degree of patience as recommended to him in 2017 by Mr J.

3. Specifically, it is commonly accepted that a successful regime of equal shared parenting requires the parents to demonstrate high levels of communication and child-focused co-operation.  Each of these parents currently confess as to poor levels of communication and each maintains some suspicion of the other being in respect of the mother and her suspicions as to the father’s psychological and emotional capacity and in respect of the father being his continued suspicion as to the mother’s bona fides in her saying that she supports his time with the children. This does not prima face seem to be a solid base from which to make orders for an equal time parenting arrangement. Similarly, the different personality traits in these parents identified by the experts does not necessarily give confidence that a requisite level of communication, co-operation and trust will be achieved in the short term.

S60CC(3)(g) – The maturity, sex and lifestyle and background of the children and the parents

1. Not relevant.

S60CC(3)(h) – If the child is Aboriginal or Torres Strait Islander

1. Not relevant.

S60CC(3)(i) – The attitude to the children and the responsibilities of parenthood demonstrated by each of the children's parents

1. Each of these parents has a positive and supportive attitude in respect of their children and generally seek orders which they believe attend to the children's best interests. As mentioned above, however, I am generally satisfied that the father continues to confuse his own pursuit of perceived ‘fairness' with an objective assessment of his children's best interests.

2. After consideration of the evidence and having the advantage of seeing and hearing the mother cross-examined, I reject any suggestion by the father that the mother is anything other than altruistic in her claims that she proposes a full meaningful relationship between the children and their father.

S60CC(3)(j) & (k) - Any family violence involving the children and any family violence orders

1. The mother obtained a Police Family Violence Order at the instigation of Tasmania Police at the time of separation and when the father had attempted suicide. That order has lapsed.  Mr Bradshaw attempted suicide at around the time of separation. I generally accept the views of the experts that this unfortunate event was circumstantial and situational only although, relevantly, Dr E identifies personality traits and mood swings in the father which have undoubtedly been perceived by [X] as anger management issues. Mr Bradshaw says that he acknowledges and deals with these issues. I generally accept his evidence.

S60CC(3)(l) - Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. After hearing the evidence, and in his final submissions, Counsel for the mother urged the Court to make an interim order.  Certainly, that option was suggested by Dr E or, at least, that [X]’s reintroduction to the father be monitored and reviewed. There are some obvious advantages in taking the relatively uncommon course of making only interim orders.  Specifically, [X] has had no direct contact or indeed any practical relationship with her father since 2017.  Her reactions in September 2017 were drastic including suicidal ideation.  She has continued to express some fear of her father as indicated in Dr E’s report. On the face of it, she remains reluctant and refusing of actual time was the father. As such, and where the parents themselves both seem relatively optimistic in respect of [X]’s reintroduction to the father (as does Dr E), the opportunity for review and re-modelling, if necessary, is superficially attractive.  Nevertheless, there are equally obvious negatives to the making of interim orders at this stage when the expectation of the parties and, most likely, the children has been that this litigation would be brought to an end.  To leave the matter alive by way of interim orders can introduce unnecessary vigilance in one parent and hesitancy in the other in their parenting and where the relevant relationships operate under a 'Sword of Damocles' hanging over the heads of all participants. Further, and where minor issues will inevitably arise, the tendency might be to bring the matter back to Court or to independent third parties rather than for the parents themselves to resolve such issues.

2. This is a matter which has been in the Court system for some time.  It has had Court intervention by way of interim hearing. It is a matter where the parties have had the assistance of a Court expert in the form of a psychiatrist. They are both represented by Counsel and solicitors and they, as is the Court, are fully informed as to the background issues and the relevant evidence. Significantly, in my view, this is not a matter where one party, namely the mother, advocates a continuation of the no-time situation which currently exists between [X] and her father. To the contrary, each of the parents propose a regime of direct time to commence immediately. They differ only as to the timeframe of that regime. The mother, in her evidence in Court, agreed with the optimism of Dr E that [X] would not refuse to spend time with her father.

3. There is, of course, no reason why the parents and [X] (and [Y] if necessary) cannot continue to receive assistance from relevant professionals and including the children's school counsellor and/or Mr J to assist them through a process which is evidenced by final orders rather than interim orders.

4. In all of the circumstances and on balance, I am of the view that I should proceed to make final orders in this matter. That should, as is the case with all family law parenting matters which operate into the future with a degree of speculation and anticipation, provide a certain base for these parents and these children to move forward.

Conclusions and Findings

1. There are two fundamental questions left for the Court:

   (a)Should there ultimately be an order for equal shared time for these children between their parents?; and

   (b)What is the preferred regime, if any, for the reintroduction of [X] back to the father?

2. I am able to find that the child [Y] has an established, continuing and successful relationship with both her parents.

3. I find that [X]’s relationship with her father has broken down since September 2017. She is currently resisting of and denying of any relationship with Mr Bradshaw. I accept, however, the evidence of Dr E and the mother that [X] would comply with any orders of this Court re-establishing that relationship but also accept that the course of such re-establishment should be cautious and conservative.

4. I am unable to find that these two parents have any mutually trusting, co-operative or communicative relationship other than at the most basic levels. Generally, they are suspicious of each other both personally and in respect of their parenting of these two girls.

5. I am satisfied that the personality traits of the father as observed by Dr E and Mr J are not conducive to an equal time parenting arrangement where conditions precedent of open communication and high levels of co-operation are desirable.

6. I am satisfied generally as to the capacity of the mother to attend to the children's physical and emotional needs.

7. I am not satisfied that the father is able to compartmentalise his own preferences as against the objective best interests of his daughters and in this respect I am satisfied that his own particular personality traits impact on his ability accordingly.

8. I am satisfied generally of the suicide attempt by the father and the suicidal ideation in [X] are circumstantial and situational but am of the view that [X]’s reintroduction to the father should be taken slowly and cautiously.

9. I note that both parents ask me to make an order for them to exercise equal shared parental responsibility in respect of these two children. Whilst I have made findings above which, in part, reflect the father's personality, those findings are more relevant, in my view, in relation to day to day care of the children where the stressors are likely to be more frequent and demanding. Consequently, I intend to make an order for the parents to share parental responsibility of the children.

10. Pursuant to s.65DAA(1) of the Act, I have therefore considered whether the children living in an equal time arrangement between their parents is both in their best interests and reasonably practicable. Significantly, by the time of final addresses, the father's Counsel was perhaps understandably struggling to assertively support that position given the evidence elicited during the trial. Notably, the father’s cross-examination of the mother was, in the main, critical of her and with little explanation of the potential for an equal time arrangement and hence not of itself indicative of the likely success of such a regime. In any event, I am not satisfied, for the reasons set out above, that such an arrangement would be in the children's best interests. I prefer that those interests are served by them having a single and major home base but continuing a regular and frequent time-with relationship with their father. As pointed out to Counsel and hence to the parties during the course of the trial, there is a long line of authority from superior Courts in this jurisdiction confirming that a 'meaningful relationship' is not synonymous with the simple allocation of a quality of time for children with a parent but, rather, arises from the quality of such relationships, regardless of quantity of time. Consequently, I place little weight on [Y]’s stated preferences.

11. Whilst I am satisfied that [Y] told Dr E that her preference was to spend equal time with her father, she is just 8 years of age and the remainder of her statements to Dr E cast doubt on this young child's ability to properly and maturely rationalise those preferences with her objective best interests.  I prefer that [Y] perhaps is desirous of her parents being reunited as may also indicated from some of her comments to Dr E.

12. The mother proposes that [X] and [Y] ultimately spend time with their father each second weekend between Friday after school and Monday morning. This is the current situation for [Y]. The mother was equivocal in the witness box as to the amount of time the children should spend in school holidays with their father. Her hesitancy in this respect mirrors her concerns as a mother rather than, in my view, any lack of willingness to facilitate a relationship. Clearly, however, she is torn between promoting the girl’s relationship with their father and her residual concerns following the revelation of suicidal ideation in September last. Her tendency therefore is to be circumspect in her proposals.

13. The parties live in close proximity to each other and the children's school.  Both Dr E and the mother share a confidence that once the ‘ice is broken' in respect of [X], then she will fairly rapidly assimilate back into a relationship with the father similar to that currently enjoyed by [Y]. The task for the Court is to accommodate the children's relationship with their father whilst maintaining a primary residence with the mother. In this respect, I intend to adopt the mother's proposal for time each second weekend but to add an overnight time for the children with the father on the other Monday from after school until the commencement of school on the Tuesday morning (or if a public holiday or a student free day then from 4.00 p.m. on the Monday). This had the advantage of punctuating an otherwise lengthy gap in fortnightly time as well as giving Mr Bradshaw the ability to be more involved in the children’s schooling.

14. Whilst allowing for some time for [X] to assimilate a return to the father’s home, I see no reason why school holidays should not eventually be shared. The father says that he deals with his personality issues by prescribed medicine. He says that he acknowledges his past failings in this respect. He can have (and I can order) the continued assistance of Mr J which would be appropriate both to assist the father and to give some confidence to the mother. Again, I have the benefit of the faith of both Dr E and the mother herself in respect of [X]’s successful return to the father. As such, I intend to order a week about arrangement for the children in summer holidays but not until the 2019/20 school holidays for [X], and for half of the term school holidays commencing in the second term holidays of 2019 for [X]. I can find no reason why [Y] and the father should not enjoy school holiday time together immediately.  I note Dr E’s view that there may be some negatives should these two girls have substantially different regimes of time with their father during the delicate period of [X]’s reintroduction to Mr Bradshaw. Nevertheless, I must also consider the best interests of [Y] separate from those of her sister and, in any event, it may be that successful and enjoyable holiday time for [Y] and the father may be encouragement for [X] during this period. 

15. I will accommodate the parties by way of further orders for time for the children between them on special days.

16. There will be an order that the father comply with his prescribed medication together with orders that he consult his general practitioner in respect of this medication not less frequent than each two months whilst that prescription remains and that he continue to consult with Mr J on a level of frequency as suggested by Mr J and until such time as Mr J feels that the father no longer needs his assistance. For these purposes, I intend to order that a copy of these reasons be provided to Mr J.

17. The second major issue is the time frame of the reintroduction of [X] to the father.  Dr E suggested that the first step might be some time supervised at a contact centre. I am not prepared to make that order given the negative connotations that might accrue to this child on account of her time with her father being supervised. Notably, the mother does not seek such an initial step. Whilst both the father and the mother propose a staged regime of reintroduction for [X], not surprisingly, the father’s proposal is more adventurous than that of the mother.  It perhaps escapes the father’s understanding and expectations that [X] may suffer some continuing hesitancy in their relationship and it seems crucial therefore that the mother remains supportive during this time and a more conservative approach is therefore to be recommended. Given my observations of the father above and the delicate situation currently where [X] spends no time with the father, I prefer a regime more in line with that of the mother for the reintroduction of [X] as follows:

    (a)For 4 consecutive Wednesday afternoons from the date of these orders from the conclusion of school (or 3.00p.m.) until 5.00p.m.;

    (b)Then on 4 consecutive Sundays from 10 a.m. until 5.00 p.m.;

    (c)Then on each alternative weekend for 4 occasions from the Friday at the end of school (or 3.00 p.m.) until the Saturday at 5.00 p.m.;

    (d)Then on alternate weekends for 4 separate occasions from the Friday at the end of school (or 3.00p.m.) until Sunday at 5.00p.m;

    (e)Thereafter on each alternate weekend from the Friday at the conclusion of school (or 3.00 p.m.) until the Monday morning at the commencement of school (or 9.00 a.m.) together with time on the other Monday in the fortnight from the conclusion of school (or 3.00 p.m.) until the commencement of school on the Tuesday (or 9.00 a.m.);

    (f)For one half of each Tasmanian gazetted school term holiday commencing the second term holidays 2019 and as agreed between the parties but failing agreement, then from the first Friday at the conclusion of school (or 3.00 p.m.) until the second Saturday at 12 noon;

    (g)During the Tasmanian gazetted summer school holidays commencing 2019/20 on a week about basis with the day and time of changeover to be agreed between the parties but failing agreement then on the Friday at 5.00 p.m.;

    (h)That weekend and weekday time be suspended during school holidays; and

    (i)Such other times or variations of the above, as agreed between the parties from time to time.

1. Given [Y]’s current comfortable relationship with Mr Bradshaw and what I expect will be the confidence that [X] will derive from that relationship between [Y] and the father, I see no reason why the last stage set out above should not become immediately operative for [Y] and I intend to order accordingly. That is, broadly speaking, [Y] will spend time with the father each second weekend from after school until Monday morning, together with Monday overnight on the off-week and for half of school holidays.

Specific Issues – Injunction

1. Finally, the father seeks an order in the form of an injunction preventing the children or either of them travelling in the maternal grandfather's Cessna aeroplane (I expect more generally in respect of the children travelling in light aircraft). After hearing the father’s evidence, it seems that his concerns rest mainly with the children travelling between Tasmania and Victoria and over Bass Strait. Whilst I respect the father’s general concerns, the evidence of Mr W is clear that he is a licensed, experienced and responsible pilot. These children must live and become robust in the real world with all its attendant dangers. I respectfully suggest that for Courts to begin imposing injunctive orders in such circumstances gives potential for the 'floodgates' to open or for parents to be bringing 'tit-for-tat’ applications for injunctive orders. These Courts do not presume to make orders in respect of all aspects of children's lives. This is the domain of parents. Consequently, where there is no evidence of manifest dangers to these children by flying with their grandfather, I am not inclined to make any such injunctive order and it remains for the parents to be responsible in their decision making in respect of these two children taking into account all of the relevant circumstances on each occasion. I again note significantly that each of the mother and the father have asked the Court to make an order for equal shared parental responsibility for their children.  The father's application for an injunctive order will be dismissed. 

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 18 July 2018