Brayson and Dobbs

FAMILY COURT OF AUSTRALIA

BRAYSON & DOBBS

[2008] FamCA 470

FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

AIF v AMS (1999) 199 CLR 160
CDJ & VAJ (1998) 197 CLR 172
Secretary Department of Health & Community Services v JMB & SMB (1992) 175 CLR 218
U v U (2002) 211 CLR 238

APPLICANT:

Mr Brayson

RESPONDENT:

Ms Dobbs

INDEPENDENT CHILDREN’S LAWYER:

Mr Selfridge

FILE NUMBER:

NCF

2699

2000

DATE DELIVERED:

27 June 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

26 and 27 May 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Stephen Tester Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Burridge

SOLICITOR FOR THE RESPONDENT:

Parker Kissane Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hertzberg Heydon

Orders

IT IS ORDERED THAT

Parental Responsibility

The presumption of equal shared parental responsibility having been rebutted, the parties shall, save as otherwise expressly ordered hereafter, each have parental responsibility in respect of major long term issues for the children of the marriage X BRAYSON born … April 1999 and Y BRAYSON (aka WATTS aka DOBBS) born … March 2001.
Each of the parties shall have parental responsibility for the children in respect of issues relating to the care, welfare and development of the children other than major long term issues when the children are in their respective care pursuant to these Orders.
The parties shall do all such things, sign all such documents and pay equally all such fees as might be required to have the Registrar of Births, Deaths and Marriages, or other relevant public official or body,
(a) Register the father in these proceedings as the father of Y WATTS (aka BRAYSON; aka DOBBS); and
(b) Register the surname of the said child as “[BRAYSON]” in lieu of “[WATTS]”;
Each of the parties shall do all such things and sign all such documents as might be required to ensure that each of the said children be known by the surname “[BRAYSON]” and be referred to as such on and in any document requiring the children’s name to be provided or referred to.
Each of the parties is restrained, and an injunction is hereby issued, restraining each of the parties from referring to, or causing or permitting any other person to refer to, either of the children save by the surname “[BRAYSON]”.
Each of the parties shall do all such things and sign all such documents as might be necessary to enrol as soon as reasonably practicable, and not later than 14 days after the date of these Orders, the said children at the B Public School and thereafter to ensure the attendance of the children at the said school for the balance of their primary education.
The mother shall ensure that, save with the prior written consent of the father or as might otherwise be ordered, the children reside at a place no greater distance from L from their current residence.

With Whom the Children are to Live

The children shall live with the mother.

The Time the Children are to Spend with the Father

The children shall spend time with their Father at all such times as might be agreed in writing between the father and mother and, save as is otherwise or additionally agreed, in accordance with the following Orders.
The children shall spend time with the father:
(a)    For one half of all school holidays gazetted in the State of New South Wales with the children spending the first half of all such holidays in 2008 and each alternate year thereafter and the second half of each such holidays in the year 2009 and each alternate year thereafter;
(b)    from 5.30pm Friday until 5.00pm Sunday each third weekend with:
(i)the first such period to occur on the first Friday immediately following the date of these orders:
(ii)Such periods to be suspended during the whole of each school holiday period gazetted in the State of New South Wales;
(iii)The said periods to recommence on the first Friday following the conclusion of each school holiday period gazetted in the State of New South Wales;
(iv)if any such period coincides with a Monday public holiday or pupil-free day time spent shall conclude at 5.00pm Monday in lieu of 5.00pm Sunday.
(c)    Notwithstanding the terms of order 10 (a):
(i)from 5.00pm on 24 December 2008 until 3.00pm on 25 December 2008 and between those times on those days each alternate year thereafter; and
(ii)between 3.00pm on 25 December 2009 and 10.00am on 26 December 2009 and between those times and on those days each alternate year thereafter;
IT IS NOTED in order to avoid doubt that the children shall spend time with the mother from 3.00pm on 25 December 2008 until 10.00am on 26 December 2008 and between those times and on those days in each alternate year thereafter; and between 5.00pm 24 December 2009 and 3.00pm on 25 December 2009 and between those hours on those days each alternate year thereafter.
The mother shall do all such things as might be required so as to facilitate the children telephoning their father at all such reasonable times as they might request and, in any event, regularly, and, should the children be in her care, on each of the following specific occasions:
(a)    The father’s birthday;
(b)    Each of the children’s birthdays
(c)    Father’s Day;
The father shall do all such things as might be necessary so as to facilitate the children telephoning their mother should they be in his care on each of the following occasions:
(a)    The mother’s birthday;
(b)    Each of the children’s birthdays;
(c)    Mother’s Day

Facilitation of Time Spent with the Father

Changeovers for the children into the care of the father or mother as the case may be, pursuant to these orders shall take place:
(a) at the L Contact Centre (and each of the parties shall do all such things, sign all such documents and pay all such monies as might be necessary to facilitate the use of the Contact Centre in that respect); and
(b) on any occasions when the Contact Centre is closed or otherwise not available at McDonald’s at L.

Communication and Information

Each of the parties shall do all such things, sign all such documents and pay all such fees as might be necessary so as to:
(a)    Authorise and/or direct the children’s school to provide all such information in respect of the children’s schooling as might be requested by either party;
(b)    Authorise and/or direct any hospital, doctor or other health practitioner to provide such information (whether oral or in writing) to either parent in respect of any treatment administered to the children by any such health practitioner;
(c)    Immediately notify the other should the children suffer any significant injury or other health emergency whilst in the care of that parent.

Non-Denigration

Each of the parties be restrained, and an injunction be granted restraining each of the parties, from denigrating the other or members of the others family to, or in the hearing or presence of, either of the children;

Publication

The parties be granted leave to publish these Orders and, if requested, Reasons for Judgment, to:
(a) The Registrar of Births, Marriages and Deaths, or other such public official so as to give effect to Order (3); and
(b) The Principal or Deputy Principal of the B Public School.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: NCF 2699 OF 2000

MR BRAYSON

Applicant

AND

MS DOBBS

Respondent

REASONS FOR JUDGMENT

In the approximately eight years since the parties to these parenting proceedings separated, the lives of their two children, X born … April 1999 and Y born … March 2001, have been marked by almost continual litigation.
There have been four family reports prepared (in 2001, 2003, 2005 and 2007); a psychiatric report (in 2004), a plethora of orders made, seven contravention applications and five notifications to the Department of Families.
On 23 March 2007 the mother was found to have contravened previous orders of the Court facilitating time between the children and their father. Some eight months previously the mother had also been found to have contravened an order and had been placed on a bond for twelve months.
It was during the currency of that bond that the further contravention referred to was found to have occurred and the mother was ordered to serve four months imprisonment in respect of that contravention.
The mother served two months of that term before the Full Court ordered the mother’s release on 17 May 2007.
Poignantly, X told a Family Consultant, Ms B, in the course of interviews conducted for a family report in these proceedings that he wished:-
…that his family could “have a peaceful life” but thought that “a lot of court stuff” got in the way and that it felt “more like a war against each other kind of life”.
That war found initial expression in these proceedings by the father seeking orders that the children live with him and the mother seeking orders that the children live with her and have limited supervised time with their father.
Fortunately for the children, and as, hopefully, at least some sign that X’s war might finally be coming to an end, the views of the parties have changed somewhat between the filing of their respective Application and Response.
Ultimately, at the hearing, it was common ground that the children would spend the great majority of their time in the care of their mother. The parties also agreed that the children should have one half of all school holidays with each parent and that the children be able to communicate with the father at reasonable times by telephone.
Otherwise, the father contends that the children should spend time with him each alternate weekend. The mother contends that the father should spend time with the children from 9am Sunday to 5pm Monday on the first weekend of each month.
Within those parameters are also contained a number of other disputes about parenting issues.

Issues Between the Parties

The issues for determination are:-
·The frequency of, and times within which, the children spend time with the father on weekends;
·Whether the children should attend school at the B Public School or continue to receive what was described by each of the parties as “home schooling;
·Whether Y should be known by the surname “[Brayson]”. In that respect, the parties are agreed that her surname is registered on her birth certificate as “[Watts]” (the mother’s maiden name) as distinct from her brother who is registered as “[Brayson]”. The parties are agreed that each will do all such things as might be necessary so as to effect the registration of the father on the birth certificate as Y’s father and “[Brayson]” as her surname. The issue is the use of the name “[Watts]” by her or by the mother in respect of her.
·Contact changeovers are agreed to take place at the L Contact Centre (which involves travel for each of the parties and the children). However, they disagree about the changeover point in circumstances where the L Contact Centre is unavailable. The mother contends that contact changeover should take place at McDonald’s at C; the father contends it should take place at McDonald’s at L.
·The father seeks restraint on the mother moving with the children to a distance further away from L than what she currently resides and a further restraint on the mother leaving Australia with the children.
·Each of the parties contends for differing orders with respect to the allocation of parental responsibility.
·A further issue raised in argument was a prohibition directed to the mother in respect of physical discipline of the children.

Context of the Current Dispute

The parties commenced a relationship in mid 1998 but did not commence cohabitation until May 1999. Shortly prior to that time, X, now aged 9, was born.
The parties separated some thirteen months after they commenced cohabitation, on 17 June 2000. After separation X was spending about four nights each week with the father.
On 29 August 2000 the first of the final parenting orders made in this case provided that X was to live with his mother and spend time with the father from 4pm Wednesday until 12pm on Friday and at other times by agreement.
Less than two months after that, the mother suspended all time between the father and the children alleging that the father was making the children sick.
On 10 January 2001, the mother filed for orders that X spend no time with the father until such time as the father’s mental health was assessed. Y was born approximately three months later in March 2001.
It can fairly be said that, from about the time of the filing of that application in early 2001, the mother’s position is – or at least until very recently was – that the children should spend no time with their father at all. She alleged that the father presented a risk to their children.
The first of the Contravention Applications earlier referred to was filed by the father at the end of 2000 and, as earlier indicated, there have been seven Contravention Applications since, one of which, in 2007, resulted in the mother being jailed.
There is no dispute that the mother has moved with the children approximately ten times in the approximately eight years since separation. They have lived at …, …, …, … again, …, …, …, …, (possibly) …, … again and from there to their current residence at B.
The father contends that he spent during this time, considerable amounts of money, not the least of which on proceedings in this Court, seeking to find the children.
It was put to the mother in cross-examination that the father “couldn’t have contacted her even if he’d wanted to” and that this was true “for at least a few years”. Ultimately, the mother appeared to concede the truth of each statement. She said, I think with intended understatement, “I was not making it easy for him”.
In fact, there seems little doubt that, for most of the period after about the beginning of 2001, the mother was intent on ensuring that the children did not spend time with their father.
Within a fortnight of the first overnight contact provided for in Orders made by Jordan J, the children were not made available by the mother, resulting in an Application for Contravention filed by the father on 7 September 2007.
The mother filed for a stay of Jordan J’s orders pending an appeal against them. As a result of that application being refused the father spent one half of the September/October school holidays in 2007 with the children.
The Full Court of this court upheld, on 9 November, 2007, the mother’s appeal against the orders made by Jordan J and remitted the matter for retrial. That retrial is the hearing before this court.
On 19 December 2007, I made interim orders pending trial which provided that the father spend time with the children during the Christmas holidays and for one weekend each month together with specific issues orders.
It is common ground that contact has preceded in accordance with my interim order. In fact, it seems to be common ground that, relatively speaking, the time has been progressing well.
The mother indicated in the witness box, that it was her witnessing the children’s positive reaction to time with their father that was paramount in bringing about a change in her attitude to the father having time with the children and resulted in her seeking orders for supervised time (in lieu of no time).
Indeed, it is common ground that the mother offered, and the father accepted a proposal that the father spend time with the children at Easter despite their being no order to that effect.

Objects Principles and Considerations

Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings.
The decision as to what parenting orders best accommodate those children’s best interests is, in turn, driven by a decision as to their best interests and the principle that those best interests are paramount.
The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional”.
I consider that the “primary considerations” in arriving at decisions about best interests have particular importance but, as the word “additional” implies, they are to be considered in conjunction with the “additional considerations”.
The proper consideration of each represents not an end point in itself, but a pathway to determining the best interests of children by according appropriate weight to those considerations relevant to the particular children and the particular circumstances in which they find themselves.
Importantly, a consideration of those matters must also be consistent with the overall objectives of the Act. The statutory objectives are given light and shadow by the statutory principles underlying them. Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
Those Objects and Principles, and the consideration of what is or is not in the best interests of the individual children, arrived at by weighing the statutory considerations, are given further statutory specificity by:
(a)directing a court to presume (rebuttably) that shared parental responsibility is in a child’s best interests; and
(b)      requiring, consequentially, a court to consider whether an equal time order is in the best interests of the children; and
(c)      if not, requiring the court to consider whether a child spending “substantial and significant time” (as defined) with each parent is in the children’s best interests; and
(d)      requiring a court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period.
The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable”.
The determination of “reasonable practicability” is, also, not left at large but circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant.
However, all of the statutory requirements also exist within a framework where the court is given a broad discretion to fashion orders consistent with the specific children’s best interests and, as earlier described, with those best interests as the driving force.
The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child.
The individual characteristics or idiosyncrasies of parents will invariably mark – in many cases, adversely - the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and their particular circumstances.
“Best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship.

Courts must bring a consideration of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.

Expert Evidence

Ms B, a family consultant, prepared a report dated 18 December 2007 primarily based on data collected as a result of interviews and observations occurring on 27 November 2007.
A report prepared by another family consultant, Ms Z, was read in the father’s case. That report was dated 14 January 2005 in respect of data and observations collected and made on 12 January 2005.
I do not propose to place any weight on the matters contained in Ms Z’s report. It was prepared over three years ago. It was prepared prior to the most recent of the contraventions including, significantly, the jailing of the mother and the consequent two month period that the children lived with their father. Moreover, the issues there discussed are significantly more broadly based than the issues necessary for the determination of the issues joined between the parties before me.
Ms B gave oral evidence and was cross-examined. In particular, Ms B had been made aware by the Independent Children’s Lawyer of the changes in the respective positions of the parties. She indicated that she was “comfortable with” the proposal that the children spend one weekend per month with their father.
Ms B declined to express a view about the issue of the children’s name and their schooling. Her reasons for doing so – which, with respect, I consider appropriate – were that no information she had garnered relating to the best interests of the children, nor any opinion within her expertise, was, in her view, of assistance to the court.
Ms B, was, though, concerned about any order with respect to parental responsibility that would see a necessity for both parties to attempt to reach agreement about issues or, indeed, that would force them into situations where they would need to attempt to reach agreement.
Mr Tester, for the father, put to Ms B that the recent changes in the attitude by the mother, and in particular the unilateral offer of Easter time with the children, was a hopeful sign and that, by reason essentially of the mother’s moves and attitudes, there had previously been no opportunity for the parties to attempt to reach agreement.
Ms B had offered the opinion in her report that:-
50. These parents have been litigating for a number of years, with each laying the blame for the continuing conflict onto the other parent. In the middle of this are [X] and [Y], now aged eight and six years of age respectively, who have been significantly impacted by the parental conflict ever since they can remember.
In oral evidence, Ms B was of the view that “neither parent had respect for the other’s belief system” and that it was unrealistic to expect them to get together and to reach agreement about important matters relating to their children. In particular, given what she had observed and heard from the children, Ms B was worried that any attempt to have the parties reach agreement might “backfire” and cause further conflict, and therefore tension and disruption to the children. She thought that was a particular concern for X.
Ms B’s report records the children’s views. She recounts that X:-
38…said that he liked to see his father and recounted how he and [Y] had been visiting their “real dad” (Mr [Brayson]) at his home in [the New South Wales north coast] “but sometimes we don’t do the right thing there, we play things we are not allowed to like [the M15+ Playstation game] Grand Theft Auto”. [X] said his father was “a good man, but we are fully bored there…there was lots of stuff to do and play with at the contact centre. It was more fun.
Many of X’s comments to Ms B had, to my mind, an adult ring to them. I note that both children are in the primary care of people for whom religion, and, in particular, the Seventh Day Adventist faith, is extremely important. X recounted to Ms B:
40.… how “Mum said something that Judge Jarrett didn’t like so he put her in jail … she said if you hurt my children God will … “and he quoted from the Bible. [X] said that they had lived with [the father] during this time but was “very happy to see mum when she got out
41[X] said that once he wanted to be a wizard when he grew up but “I changed my mind. I read in the Bible that wizards and witchcraft will get burnt up in hell. My Dad’s a wizard. My stepdad and Mum teach the Bible. My Dad says it’s my choice what I want to be. My Dad has crystals; one sucks in demons
42.[X] wished that his father would read the Bible more and “get rid of bad Playstation games” …
Ms B spoke of Y:-
45…tend[ing] to concur with her brother’s comments about her father, whom she referred to as her “[North Coast] dad”. She liked her father buying her movies and chocolate bars but then commented: “when I’m over there I’m a [Brayson] and when I’m here I’m a [Dobbs]. It’s mixed up.
…
46 [Y] said that she liked going to the contact centre to see her father because it was “more fun” and there were “more toys.” [Y] recounted how at the park at the old contact centre “my dad and my real dad had a fight” which she found upsetting.
For a number of reasons, it is not in my view necessary to canvas at length other issues raised by Ms B in her report.
First, the issues joined between these parties, in the context of the agreement otherwise reached by them are narrower than the ambit of Ms B’s report. Secondly, practical considerations (accepted by both parties), which include, primarily the geographic distance between them, the time taken in transporting the children for periods of time with the father, the necessity for the father to borrow a car to do his part of the driving and the meagre cash resources of each of the parties, intervene in limiting the parameters of the dispute with respect to time.
In circumstances where the parties have agreed on the school holidays being shared equally between them and where the parties have agreed that the children will spend the great majority of other time in the care of their mother and where the amount of time contended for by the father is alternate weekends, the factors and considerations germane to resolving the instant disputes are of a much narrower compass than many of the broader factors and considerations considered by Ms B when the nature of the competing claims between the parties was significantly more broadly based.

Issues and Considerations

Parental Responsibility

The father seeks an order for equal shared parental responsibility. The mother seeks an order for “sole parental responsibility for all major long-term decisions …”.
By operation of law, each of the parties has parental responsibility with respect to the children. Parental responsibility is defined in the Act (s 61B) to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Save as the court orders, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly ordered. But, because this court proposes to make parenting orders there is a statutory presumption that the parties shall have “equal shared parental responsibility”.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in the bests interests of the children for that presumption to be rebutted.
Although “parental responsibility” is defined, “equal shared parental responsibility” is not.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
In this particular case, the terms of the section must be considered against the background earlier outlined, including the mother effectively excluding the father from the children’s lives for a significant period of time.
Further, the lives of the parties and their belief systems and parenting outlooks are very different; I accept the evidence of Ms B in that respect. I also agree with Ms B’s pessimism about the future in that respect and I also agree that there is a risk that any such requirement might “backfire” for the children.
Not only are the lives and outlooks of the parties very different, they are, in my view, relatively entrenched in the children’s minds. The parent’s capacity to agree upon the issues required by the Act to be the subject of joint discussion and agreement is, in my view, minimal despite more optimistic recent signs.
In those circumstances, and where the Act requires active co-operation and consultation in respect of major long-term issues, an order for equal shared parental responsibility is highly likely to lead to further conflict which is contrary to the children’s best interests.
Accordingly, in my view, it is not in the best interests of these children for the presumption to apply and I find that it is rebutted.
However, that does not mean, in my view, that an order for “sole parental responsibility” in favour of one parent ought necessarily follow.
An order for “sole parental responsibility” in favour of a party means, it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is judged to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The very differences that militate against an order for equal shared parental responsibility can, equally, militate against an order for sole parental responsibility: the exclusion of one parent becomes more acute.
For those reasons, I do not propose to make an order for sole parental responsibility.
Here, specific aspects of parental responsibility, as defined in the Act, are the subject of disagreement and will be the subject of specific orders. Save as those orders will provide, it seems to me appropriate that I should make no order as to parental responsibility, as a result of which, save as I otherwise order, each party will retain parental responsibility for the children.

Time

Clearly enough, orders that would see the children spending time with their father for two nights each fortnight (as the father contends) or for one night per month (as the mother contends) might, at first blush, call in to question whether either such proposal provided for the children to have a “meaningful relationship” with their father.
However the courts’ task is to make orders in accordance with the determinations of best interests of these particular children with their particular parents and in the particular circumstances in which they find themselves.
There is little doubt that, by reason of the significant (but not insurmountable) geographic distance between the parents, time spent with the father involves significant time in motor cars not only for each of the parents (noting that the mother shoulders the greater share of that burden) but also, most importantly, for the children.
The parties’ respective proposals allow for this fact of the children’s lives. In effect, each parent contends that, given the agreement for the children to live with their mother for the majority of the time, their time proposal allows for a relationship as meaningful as what their particular circumstances allow.
I am left in little doubt, on the evidence before me, that the children want to see their father regularly and that they enjoy their time with him. As a result of the mother’s actions, they have spent significant periods where they saw very little of him.
An additional issue in respect of time involves an overlapping with other issues for the court’s determination.
The mother proposes time on Sunday and Monday. This is reflective of her proposal that the children continue to be home schooled by her. (Monday thereby becomes a viable day to see their father as he does not work).
The mother’s proposal also quarantines Saturday. The reason for this is the importance in the Mother’s, her husband’s and the children’s religion of Saturday as “the Sabbath”.
The mother gave evidence that this is an occasion when the family gathers “to pray and also to socialise with other members of our congregation”. In oral evidence, the mother explained that the children attend Sabbath school from 9.30 until 10.30, have a break for approximately half an hour, then worship between 11 am and 12 noon with their parents.
Mr Burridge on the mother’s behalf contends that, if I was minded to order more time than that which the mother proposes in her Response, then time with the father could start shortly after 10.30am when the children finish Sabbath school.
Whilst it is true that could be done, in my view I need to balance the fact that, in circumstances where a father is seeing his children at weekends and where a journey of some significance is involved, time with their father is, for the children, very precious and a 10.30am start cuts into that time
Mr Burridge also contends that the mother’s adherence to her particular religion is an integral part of her parenting and the children’s makeup. Expressed in s 60CC(3)(g) terms, he submits it is an important part of their “lifestyle and background (including lifestyle, culture and traditions)”.
Whilst that is also, I think, true, it is also true to observe that the children are free to observe and otherwise participate in all aspects of their religion during the whole of the weekday time they are with their mother and for any weekend, including any Sabbath, that they are not with their father.
It is a balance. Religion – and this particular religion with its particular beliefs about Saturday - is clearly important to the mother and her husband. For so long as the children spend the majority of their time in that household it will also be very important to the children and integral to their day to day lives. This, too, is an important consideration because the likely effect of changes to the children’s circumstances is something I must take into account.
However, so, too, is an important – indeed, a primary – consideration the facilitation of as meaningful a relationship with their father as the particular circumstances dictate.
I have come to the conclusion that balancing the considerations mandated by the Act specific to the circumstances of these children should require the children seeing their father each third weekend.
Counsel for the Independent Children’s Lawyer submitted that such a regime had the potential to cause difficulty unless the weekends were precisely spelt out in the orders. There may be some such difficulties, but none, I think, that can’t be overcome.
Because weekend time will occur in school terms and school holiday time is divided equally between the parties, there will be anomalies in the sequencing of the weekend time. For example, there will be times when a weekend falls immediately before a holiday period and such like. The orders are made cognisant of such factors and none of those factors are intended to affect the orders I will make. In my view, all of those factors, will, in effect, even out over time.
It seems to me that this addresses in part the concern raised by the Independent Children’s Lawyer. In addition, the orders will provide for the suspension of weekend time during school holidays and will specify the commencement of the resumption of weekend time following those holidays and will, in addition, make specific provision for Christmas.
Further, the concern of the Independent Children’s Lawyer should be answered by reference to two matters. First, these parents must, in their childrens’ best interests, commence the apparently difficult task of reaching arrangements that facilitate a relationship between the children and each of the parents without court intervention. Secondly, these children will, as they reach sufficient age and maturity, ultimately make – for all practical purposes – their own decisions about the nature and extent of their relationship with each of their parents. The obligation of these parents, enshrined in the Act’s Objects and Principles, is to provide the proper opportunity for them to ultimately be able to do so.

Sabbath, Schooling and Days

If time with the father is to occur each third weekend, should it take place on Sunday and Monday (thereby freeing each Saturday for religious activities) or should it take place on Saturday after church (until either Sunday or Monday) or should it take place without reference to Sabbath finishing time or, should time commence on Friday nights.
I have already referred to competing considerations with respect to whether attendance at Sabbath activities should impinge on the father’s time. In my view, the proposed time each three weekends gives more than sufficient weight to the observance of religious practice during non-contact time with the father.
If I was of the view that the issue of where and how the children are schooled favoured a continuation of home schooling, I would allow that to determine the days upon which contact should occur as it would mean striking a balance without impinging on the Sabbath observance. I am, however, of the view that it is in the best interests of these children to be schooled at the local school, B Public School.
The mother indicated in the course of the hearing that, if she was ordered to have the children attend at B School she would do so.
The children are currently receiving what was described by each of the parties at various stages during the hearing as “home schooling”. In truth it seems to me, (and appears to have been accepted by the parties) that it is better described as distance education with the H Christian School.
The ten or so moves of residence in the approximately eight years since separation have, in the last approximately three years to which schooling applied for either X or Y, also involved more than seven changes of school.
The father contends that there have been two periods, most recently between approximately May 2007 and December 2007, when the children were not attending school at all. That contention appears borne out by the evidence. His assertion is based upon the mother’s release date from jail, Exhibit A to her affidavit which indicates that Y has been enrolled as a student of the H Christian School since 13 December 2007, and the absence of any further or other evidence from the mother as to what schooling applied to the children during that period of time.
Mr Selfridge, counsel for the Independent Children’s Lawyer, submits that there is little or no direct evidence of the impact on the children of the circumstances just described or, indeed, their being educated, effectively, at home with the mother as a facilitator through the H Christian School.
Mr Selfridge submits that, as a result of the children’s current educational arrangements there is very little contact with other children. The mother gave evidence of there being some contact through activities of the Seventh Day Adventist Church and its congregation but Mr Selfridge submits, this is not the same thing as children mixing on a day to day basis with their peer groups at a school. Further, Mr Selfridge points out that the children are not participating in any sport or extra curricular activities (save for Church activities).

Part of the documents from the H Christian School, which became Exhibit ICL2 in the proceedings, indicated that X needed “more one on one” attention. Mr Burridge, counsel for the mother, submits that this is precisely what he can receive with the mother acting in the capacity of educator/facilitator through the distance education program of that School.
Mr Tester, solicitor for the father, submits that the sort of one on one attention that is required is from professionally trained teachers within a structured curriculum environment. Furthermore, Mr Tester submits that any behavioural problems, or other difficulties experienced by the children, can be more readily picked up within the school environment and, again, addressed by professionals.
It was said in CDJ & VAJ (1998) 197 CLR 172 at 219 that “It is a mistake to think that there is always only one right answer to the question of what the best interest of the child require … [b]est interests are values, not facts”. The Act’s mandatory consideration (s 60CC) are, like their predecessor (s 68F2), not objective standards (see eg Secretary Department of Health & Community Services v JMB & SMB (1992) 175 CLR 218 at 270-2).
The decision about what form of education is in the best interests of children is precisely the sort of issue that involves at least some value judgments. The decision is though, not a value judgment about which type of schooling is better, but rather a judgment, including value judgments, about what is best for these particular children and whether a particular form of education is more likely to facilitate what is judged best for these children.
It seems to me important for these children that they establish stability of time and place and person. I consider an important part of that is for them to have the opportunity to establish peer relationships and to experience the routine of school, including being exposed to its disciplines and routines.
The mother says that she has no intentions of moving form the area in which she, her husband and the children currently live. The orders which I will make will provide for regular time to be spent by the children with their father. It seems to me that an important part of the children “putting down roots” that can be the foundations of future stability, is the establishment of relationships with other children and engaging in activities with other children and other adults that a school environment can provide.
I consider it in their best interests that they attend the B Public School.
That being the case the children will be the subject to the usual school routine and hours. I consider, then, that time with the father should be spent on the usual weekend days rather than Sunday and Monday.

From when to when?

The mother exhibits to her affidavit travel maps and estimated travelling time from where she resides to L (where change over occurs) and travel times between L and the North Coast of New South Wales (where the father resides). Those documents indicate a one hour eleven minute travel time for the former and a 49 minute travel time for the latter. Allowing, in each case for some delay, that means 1.5 hours and one hour respectively. That sees the mother doing a three hour round trip for delivery of the children to L and the father doing a two hour round trip for the collection of the children from L. The children would undertake a 2.5 hour trip but with a break somewhere near the middle in L.
Geographical separation is always difficult for parents to manage in post separation parenting arrangements. That is no less so here. Added to the difficulties here is the fact that the mother shoulders a greater burden of the driving distance and time (and therefore costs) and the father needs to borrow a car in order to carry out his part of the driving.
There was no detailed evidence of the parties financial resources but it seems to be accepted by each of the parties that neither of them have significant income at their disposal. Difficulties are therefore experienced on both sides with respect to any travelling arrangement in order to affect changeovers for the children to spend time with the father.
The father contends that changeover should take place on Friday evenings and again on Sunday evenings. As indicated earlier, the mother contends that they should take place on Sunday and Monday.
It seems to me, to be in the children’s best interests to maximise the amount of time they spend with their father given the fact that weekend time every three weeks provides relatively limited opportunities for them to have a meaningful relationship with him.
Accordingly, I propose to order that time commence with the father Friday evenings and conclude on Sunday evenings.

The children’s names

The father is not named on Y’s birth certificate despite the fact that there are no doubts about his parentage of her.
The father asserts that the mother has used surnames other than Brayson for the children. He asserts specifically that X has said things to him that lead him to believe that he has been called “[X Dobbs]” from time to time. He asserts that X has said to him that he does not like to be called Dobbs.
Documents in evidence from the … School (Exhibit ICL2) where, apparently, the children attended for a short time at the beginning of 2007 show each of the children being enrolled as “[Dobbs]”. The mother completed those enrolments.
In her affidavit of evidence in chief, the mother deposes:-
“On the children’s birth certificates they are known as [X Brayson] and [E Watts]. The children are familiar and comfortable with their names and I see no need for them to be changed. With the children being home schooled there has never been an issue in relation to any embarrassment at school. The Father’s wish to change both surnames to [Brayson] is indicative of the Father taking issue on each and every point and part of the reason which I seek sole parental responsibility.
The attitude there displayed is one of the things that persuades me that an order for sole parental responsibility ought not to be made in favour of the mother.
That matter aside, I do not at all accept that the father’s wish to change both surnames to Brayson is indicative of him “taking issue on each and every point”. It seems to me to be a sign - and an important sign – to the children that the father is meaningful to each of them and an important part of their lives and heritage.
The mother gave evidence under cross examination from the father’s solicitor that the children were enrolled as “[Dobbs]” at the … School to “save the children being questioned about their father”. The mother denied that doing so was an attempt by her to exclude the father from their lives. I do not believe that the former was her sole motivation nor do I believe that the latter was not part of the motivation..
The mother gave evidence in the witness box which, frankly, I find baffling. She indicated that X was known by the name “[Brayson]” but was then known by the name “[Dobbs]” from when Mr Dobbs’ son lived with them not long after X started school, but was then again called “[Brayson]” subsequently because he had, according to the mother, become comfortable with the name Brayson again (having, according to her, previously been comfortable with the name “[Dobbs]”).
.X is currently known by the surname “[Brayson]” but his sister is currently known by the name “[Watts]”. Watts is the mother’s maiden name.
Counsel for the mother argued that there was no evidence that Y was adversely impacted by the name Watts or confused about her name. He argued that whilst there might be some evidence of confusion about “[Dobbs]” and “[Brayson]” there was no evidence of any confusion about Watts.
Despite counsel’s arguments, it seems to me that the only finding reasonably open to me on the evidence is that the children’s names, and in particular Y’s name, have in the past been changed at the whim of the mother. Moreover, I think it highly likely that doing so was indicative of her attitude toward the children’s relationship with their father.
Ultimately, a decision about what name a child should be known by is, like all other issues resulting in parenting orders, to be resolved by what is in the best interests of the children.
It is, in my view, not to the point that there is no evidence about confusion about the name Watts. Children’s names are an important part of their identity. That is all the more so, in my view, in circumstances where, as here, there is little doubt that one parent has through their actions, attempted to exclude the other from active involvement in the children’s lives.
The mother’s explanations with respect to changes in the names of the children seems to me both odd and unsatisfactory.
In circumstances where, as a result of orders made by this court, the father is to continue to have a meaningful and regular involvement in the children’s lives, and the children are to attend a public school, it is in my judgment in their best interests that they each be known by the surname “[Brayson]”.
I will also make orders that the parents do all such things as are necessary to bring about changes in Y’s birth certificate so as to record the father as her father and for the child to be registered under the surname “[Brayson]”. I propose to give each of the parties liberty to provide to the Registrar of Births, deaths and marriages (or other appropriate public officer) a copy of my orders and, if requested by that public officer, these reasons.
I will also order each of the parties to do all such things as are necessary to ensure that each of the children are known by the surname “[Brayson]” and be enrolled and referred to as such in any document requiring details of the children’s names.

Changeovers for time with the father

The parties are agreed that changeover for periods of time spent with the father are to take place at the L Contact Centre. As earlier indicated, that proposal involves each of the parties (and the children) travelling, with the mother’s return journey being approximately one hour longer than the fathers.
However, perhaps as some measure of the nature and degree of the conflict and mistrust between these parties, the mother contends that, in the event that the L Contact Centre is closed or otherwise unavailable, changeovers should take place in McDonald’s at C; the father contends it should take place in McDonald’s at L.
In her affidavit of evidence in chief the mother deposes that she is “required to travel a far greater distance than the Father is required to travel” but that “this is acceptable … in order to provide the security and stability of the Contact Centre for changeovers”. In respect of the C proposal she says that “on those rare occasions it would be required” this would require the father to travel approximately 30 kilometres further than herself. Again, annexed to her affidavit are maps and estimated travel times in support in substantiation of same.
Earlier in these reasons I allowed for some delay in travelling times but, for the purposes of a comparison here I will use Exhibits “I” and “J” to the mother’s affidavit.
Exhibit I reveals that the travel time for the children in the usual changeover situation is one hour and 49 minutes (38 mins + one hour 11 minutes). The C proposal involves travel time for the children of two hours and four minutes.
It seems to me somewhat artificial to apply the s 60CC considerations to a question such as this. Nevertheless, that is what I must do as that section is (as the heading to the section makes clear) the mandatory statutory means by which the court determines best interests.
The mother’s case seems to be: “I do more of the driving more often, therefore he should do more of the driving when the contact centre is closed.” That position is understandable enough; geographic separation of parents always provides difficulties and inconvenience for everybody, most importantly, of course, the children.
However, the court must do its best to attempt to make a decision based on best interests even though the ambit of this particular dispute is narrow. In my judgment, the proposal which involves the least amount of travel time for the children and which involves familiarity of place is the position which ought be preferred.
In the latter respect, it seems to me that the use of the L Contact Centre as a facilitation place for most changeover situations allows the children to identify with L as the place where they will meet their father in order to spend time with him.
Whilst I am bound to take into account the practical difficulties and expense associated with the father spending time with the children, it seems to me that the children’s perspective with respect to that consideration is the most important. In an event, there are practical difficulties and expense associated with each of the parties positions; the mother is required to do more driving (with, presumably, additional expenses) and the father needs to borrow the car to avail himself of the changeover.
For those reasons I propose to order that McDonald’s at L will be the changeover point in circumstances where the L Contact Centre is either closed or unavailable.

Place of mother’s residence

The father seeks an order that the mother be restrained from taking the children out of Australia.
No evidentiary foundation is offered for any such order save for a suggestion that the mother may engage in missionary work overseas. That is, in my view, an insufficient evidentiary foundation for the orders sought.
Further, and in any event, s 65Y applies to the mother so as to prevent her from taking or sending the children outside of Australia except as permitted by the section.
The father seeks an order that “the mother not relocate the residence of the children any further from [L] than the distance that they currently reside”.
The background to this matter described earlier in these reasons and in particular the mother’s numerous changes of the children’s place of residence (spread over a significant geographic distance) provide a sufficient foundation for the father and this court to be concerned about the sustainability of the orders for the children spending time with the father. The moves by the mother (and her previous attitude) have meant that it has been extremely difficult for the father to spend time with the children.
I have made clear findings that it is in the best interests of these children to see their father and that they enjoy doing so. Indeed, the mother admits as much, it being the basis given by her for the change in her position with respect to the children spending time with their father.
Moreover, I consider it important that stability with respect to schooling, friends and place of residence be maintained in the best interests of these children. In my view they are important considerations coupled with the very important consideration that these children should develop the meaningful relationship with their father that the parenting orders of this court are designed to facilitate in the particular circumstances of this case.
The mother’s evidence was to the effect that she and her husband are in the process of establishing a community organisation in and around the area where they currently reside. The mother says that she is currently relying on the generosity of her family to provide the accommodation in which she currently lives. However, the mother advances no desire or plan to move from the general area.
I propose to order that, save as agreed in writing between the parties, the mother do all such things as are necessary to ensure that the children reside no further from L than their current residence.
I will also make orders essentially consistent with the application and response by each of the parties facilitating the providing of information about the children including their addresses, school reports, medical reports and the like.

Discipline & Denigration

Findings about whether either party, or the mother’s husband Mr Dobbs, use physical discipline on the children which might be considered excessive could not be made on the basis of the evidence before this court. Indeed, orders in respect of same were canvassed effectively only in argument. It did not form part of the father’s Amended Application.
It would not be appropriate to make such an order in those circumstances and I decline to do so.
I did not understand either party to oppose an order that they each would not denigrate the other to, or in the presence of, the children.
I order accordingly.

I certify that the preceding one hundred and sixty two (162) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy

Associate:

Date: 27 June 2008

[2008] FamCA 470

27 June 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Jurisdiction