BURNETT & CHARMERS
[2019] FamCA 568
•20 August 2019
FAMILY COURT OF AUSTRALIA
| BURNETT & CHARMERS | [2019] FamCA 568 |
| FAMILY LAW – CHILDREN – Where three outstanding matters in dispute requiring judicial determination – Where dispute regarding the children’s living arrangements during school term – Where a 6/8 split in favour of the mother by the year 2024 is more likely to be in the children’s best interests than a 7/7 split – Where dispute regarding the children’s living arrangements during school holidays – Where the court satisfied that is likely to be in the children’s best interests for them to spend the entire Christmas vacation each alternate year in Country B – Where dispute relating to the appropriate duration of drug testing for the father – Where the court satisfied a one year period of testing is sufficient to protect the children |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 65DAC |
| Burnett & Charmers [2018] FamCA 1099 Burnett & Charmers (No.2) [2018] FamCA 1106 Banks & Banks [2015] FamCAFC 36 |
| APPLICANT: | Mr Burnett |
| RESPONDENT: | Ms Charmers |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Falcomer |
| FILE NUMBER: | TVC | 728 | of | 2017 |
| DATE DELIVERED: | 20 August 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 17 and 18 June 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lyons |
| SOLICITORS FOR THE APPLICANT: | Purcell Taylor Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Buckley |
| SOLICITORS FOR THE RESPONDENT: | Lee Turnbull & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Pack |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Spina Kyle Waldon |
Orders
Upon the Mother Undertaking that she will not relocate the residence of the children outside of the Commonwealth of Australia,
It is ordered on a final basis
That all previous Orders are forthwith discharged.
Parental Responsibility
That the mother and the father (“the parents”) have equal shared parental responsibility for the major long-term parenting issues of the children X born …2014, and Y born … 2015 (“the children”) including decisions regarding the children’s:
(a) Education, both current and future;
(b) Religious and cultural upbringing;
(c) Health;
(d) Names; and
(e)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the children to spend time with the other parent.
The parents shall consult with each other about major long-term parenting decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)Each shall inform the other parent about the decision proposed to be made no later than 28 days prior to the decision;
(b)Each shall consult with the other with the view to reaching terms upon which they may agree and provide their input in writing within 14 days of notification of the decision to be made ; and
(c)Each shall make a genuine effort to come to a joint decision with the other parent.
(d)In the event that a joint decision cannot be reached the parties will engage in family dispute resolution within 14 days
(e)If a joint decision cannot be reached at the family dispute resolution then the Mother will make the ultimate decision and inform the Father in writing as to the decision and the reasons for same.
The father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and
The mother shall be responsible for the day-to-day care, welfare and development of the children at all times when the children are living with or spending time with her.
Injunction preventing either parent from changing the children’s names
That both parents are restrained and an injunction hereby issue prohibiting the parents from changing the children’s names unless with the written consent of both parties.
Living Arrangements
That the children live with the mother in the G Town area.
That the Mother is not permitted to relocate the residence of the children outside of the Commonwealth of Australia.
During the school term
That the children spend time with the Father as agreed in writing and failing agreement as follows:
(a) In 2019:
(i)In week 1 of each new school term and each alternate week thereafter form 9.00am Wednesday for Y, and after school for X, to 4.00pm Thursday and from 10.00am until 4.00pm on Saturday, with the Saturday time commencing after 10 August 2019;
(ii)In week 2 of each new school term and each alternate week thereafter from after school / day care Friday to 4.00pm on Sunday.
(b) In 2020:
(i)In week 1 of each new school term and each alternate week thereafter from 9am Wednesday to after school Kindergarten Friday;
(ii)In week 2 of each new school term and each alternate week thereafter from after school / Kindergarten Friday to 4pm on Sunday each alternate week.
(c) In 2022:
(i)From after school on the first Wednesday of each new school term to before school the following Monday each alternate week.
(d) From 2024:
(i)From after school on the first Tuesday of each new school term to before school Monday each alternate week
During the school holidays
That the children live with each parent as agreed but filing agreement for half of all school holidays in each year, and subject to order 11 as follows:-
(a)In odd numbered years, that the children spend the first half of the school holidays with the father, and the second half of the school holidays with the mother;
(b)In even numbered years, that the children spend the first half of the school holidays with the mother and the second half of the school holidays with the father.
That upon the Mother giving the Father two (2) months’ notice in writing of her intention to travel with the children to Country B, the Mother be permitted to take the Children to Country B for a holiday during the whole of the Christmas school holidays in 2019 and each odd numbered year thereafter.
In the event the Mother does not give the father two (2) months’ notice of her intention to travel overseas with the children in accordance with paragraph 11 of these Orders then during the Christmas / New Year school holiday period the children will live with each parent as agreed and failing agreement in accordance with paragraph 10 (a).
Changeovers
Where and when available the paternal grandmother is to conduct changeovers with the mother.
That unless otherwise agreed between the parties in writing, changeovers for the children will occur as follows:
(a)If a day that the children attend day-care or school, at day-care or school;
(b)If a day that the children do not attend day-care or school, at each parent’s residence with the father to collect the children from the mother’s residence at the commencement of the visit, and the mother to collect the children from the father’s residence at the conclusion of the visit.
Child Supervision
In the event that a parent who would otherwise have care of the children pursuant to these Orders is unable to care for the children for a period exceeding two (2) consecutive overnights, that parent will first contact the other parent and offer that the other parent the opportunity to care for the children for the relevant period, before making alternative arrangements for the children to be cared for by a third party (including partners or family members).
Christmas
Providing the parents are in the same location, and unless otherwise agreed between the parents in writing, during the Christmas period the children will spend time with each parent as follows:
(a)In odd numbered years the children spend time with the father from 3:00pm on Christmas Eve until 3:00pm on Christmas Day, and with the mother from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(b)In even numbered years the children spend time with the mother from 3:00pm on Christmas Eve until 3:00pm on Christmas Day, and with the father from 3:00pm on Christmas Day until 3:00pm on Boxing Day.
Special Days
Providing the parents are in the same location, the children will always spend time with the mother, as follows:
(a)On mother’s day from 9:00am until 5:00pm;
(b)On the mother's birthday from 3:00pm until 7:00pm on a school day, and on a non-school day from 9:00am to 5:00pm;
(c)On 1 July from 9.00am – 5.00pm
(d)When the children are otherwise in the care of the father they will spend time with the mother on each child’s birthday from 3:00pm until 7:00pm, with both children to attend.
Providing the parents are in the same location, the children will always spend time with the father, as follows:
(a)On father's day from 9:00am until 5:00pm;
(b)On the father's birthday, from 3:00pm until 7:00pm on a school day, and on a non-school day from 9:00am to 5:00pm;
(c)When the children are otherwise in the care of the mother they will spend time with the father on each child’s birthday from 3:00pm until 7:00pm, with both children to attend.
Communication between the parents
For the purposes of communication about the children the parents will:
(a)Utilise the Talking Parents website to communicate about the children and will share the costs of the site (if any) equally.
(b)
Use text message and/or telephone call in the event of an emergency.
Communication between the children and the other parent
The parents be at liberty to contact the children when the children are not in their care at all reasonable times.
The children be at liberty to contact the parent with whom they are not residing or spending time with at all reasonable times.
In the event that the children are on holiday with the mother in Country B, the mother will facilitate and make the children available to communicate with the father via telephone or video call twice per week during the day time in Australia.
For the telephone and/or video call communication:
(a)The purpose of the call is for communication between the children and the other parent, and is not an opportunity for the parents to discuss adult issues;
(b)The parent receiving the call will ensure that the children are able to speak to the other parent in a quiet environment; and
(c)If the parent receiving the call misses the call, he/she will ensure that the children telephone the other parent by return as quickly as possible.
Exchange of Information
The parents shall:
(a)Not require the children to pass on messages or information to the other parent;
(b)Keep each other informed at all times as to their residential addresses and telephone numbers;
(c)Keep each other informed as to the names and addresses of any treating medical practitioners, healthcare practitioners who come into any contact with the children. This Order shall be an authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the children;
(d)Inform the other parent as soon as reasonably practicable of the welfare of the children and any injury or illness affecting the children that requires any medical or hospital attention;
(e)Keep the other parent informed of and supply the other parent with the dates and times of the children’s sporting and extracurricular activities;
Health
Within 14 days the parents will make an appointment with the children’s general practitioner for the purposes of reviewing the need for the children to have psychological counselling.
The parents continue to engage with their treating mental health practitioners and for the purposes of this Order pursuant to s121 Family Law Act 195 they be at liberty to and will provide a copy of the following reports to their treating mental health practitioner:
(a)Family Reports of Ms C dated 17 May 2019 and 8 March 2018;
(b)Report of Dr H dated 19 March 2019 and 15 April 2019
Education
That the child X continues to be enrolled in and attend at Suburb J School for primary school.
That the child Y be enrolled in and attend at the Suburb J School for primary school.
Any educational institutions attended by the children are hereby authorised and empowered to provide to both parents any information about the children’s educational progress and school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children.
Liberty to attend the children’s events & activities
Both parents are at liberty to attend the children’s sporting and extracurricular activities, regardless of which parent may be caring for the children at the time of the event.
Both parents are at liberty to attend the children’s counselling sessions, therapeutic treatments, and medical appointments, regardless of which parent may be caring for the children at the time of the event.
Privacy, Non-Denigration
During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent or the other parent’s partner or family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other parent or the other parent’s partner or family in the hearing or presence of the children.
Passports
That the children’s passports (Australia and Country B) be held at the G Town Registry of the Family Court of Australia.
If the children obtain Country B passports in the future the Mother will notify the Father within 48hours of her application for the passports and notify the Father of her receipt of the passports within 48 hours.
Providing that the parties have complied with paragraphs 43 and 44 of these Orders, that the children’s passports be released to a parent on the written consent of both parents, with neither parent to unreasonably withhold their consent.
That the parent who has the children’s passports will return the passports to the G Town Registry of the Family Court of Australia within seven (7) days of returning to Australia following the children’s overseas travel.
That the parents do all acts and sign all documents necessary to obtain and renew the children’s passports as and when may be necessary, with the parties to pay for the costs of same in equal shares.
Domestic Travel
Unless otherwise agreed between the parents in writing, domestic travel with the children will occur only during the children’s time with that parent pursuant to these Orders.
That if either parent intends to travel with the children away from G Town or their usual place of residence and stay away for longer than two nights, the travelling parent will provide the other parent, at least two (2) days prior to the date of travel, with following:
(a)An itinerary including the children’s date of departure and return;
(b)Copies of the children’s flight, rail, bus or ship itinerary and paid return tickets (if applicable);
(c)A list of the places or addresses of where the children will visit and/or stay; and
(d)Contact telephone numbers for the children whilst away.
International Travel
That each parent is permitted to travel with the children outside the Commonwealth of Australia for the purposes of an overseas holiday.
Unless otherwise agreed between the parents in writing, any such international travel with the children will occur only during the children’s time with that parent pursuant to these Orders.
Unless otherwise agreed between the parents in writing, and if the parents have agreed for the duration of the children’s overseas holiday to exceed their usual time with that parent, the children will, upon their return, spend such additional time with the non-travelling parent as may be necessary to make up for the extra time the children were away.
That if either parent intends to travel outside the Commonwealth of Australia with the children, the travelling parent will provide the other parent with written notice regarding the proposed travel at least two (2) months prior to the proposed date of travel.
At least two (2) weeks prior to the date of the overseas travel, the travelling parent will provide the other parent with the following:
(a)An itinerary including the children’s date of departure and return;
(b)Copies of the children’s flight, rail, bus or ship itinerary and tickets (if applicable);
(c)A list of the countries intended to be travelled to;
(d)A list of the places or addresses of where the children will visit and/or stay; and
(e)Contact telephone numbers for the children whilst away.
That if either parent travels outside the Commonwealth of Australia with the children, the travelling parent will arrange and facilitate telephone or video-call between the children and the non-travelling parent, at a time to be agreed between the parents, no less frequently than on two occasions each week the children are outside Australia, with the travelling parent to initiate the call.
Unless otherwise agreed between the parents in writing, neither parent will travel with the children to a country that is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction, except for the purposes of an international flight stop-over not exceeding eight (8) hours.
Costs of travel
In the event the Mother elects to travel to Country B in any year, if in the preceding financial year his taxable income exceeded $40,000.00 then, the Father shall pay a fixed fee of $3,000 to the Mother towards the Children’s reasonable travel expenses as follows:
(a)By 31 May if the Mother travels during the June/July holiday period; or
(b) By 31 October if the Mother travels during the Christmas period;
or alternatively, if he so chooses, to pay the costs of the children’s return leg of their flight from Country B to Australia.
In the event the Mother cancels or does not travel to Country B with the Children for any reason after the Father pays $3,000 towards the travel costs, the Mother shall forthwith reimburse the Father.
Injunction preventing the mother from commencing family law proceedings in an overseas jurisdiction
Pursuant to s 68B of the Family Law Act 1975, the mother is restrained and an injunction hereby issue prohibiting the mother from initiating court proceedings regarding family law children’s matters in a Court other than an Australian Court exercising jurisdiction pursuant to the Family Law Act 1975 (as amended).
Physical discipline of the children
That neither parent will physically discipline the children and will ensure that no third party physically disciplines the children.
Alcohol
That neither parent consume alcohol in excess of the legal limit for the purposes of driving, while the children are in that parent’s care.
Illicit substances
That neither parent consume or be under the influence of any illicit substances, while the children are in that parent’s care.
Drug testing
The mother be at liberty to request the father undertake a supervised drugs test on three occasions within twelve months of the date of these orders, and for the purposes of this order the following shall apply:
(a)The mother will notify the father of the request in writing;
(b)The father will perform the test within forty-eight hours and provide the mother with the test result;
(c)The testing will stop when the father performs three consecutive clean drug tests;
(d)The mother will pay the costs of the drug testing;
(e)In the event that the father fails to undertake a drug test or undertakes the drug test and produces a positive result the children’s time with the father is suspended until the father produces a negative hair follicle drugs test at his cost.
Family Dispute Resolution
That in the event of a dispute the parties will utilise Relationships Australia and will share any costs associated with this process equally.
Other orders
The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burnett & Charmers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC728/2017
| Mr Burnett |
Applicant
And
| Ms Charmers |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The trial of these parenting proceedings first commenced before me on Monday 10 December 2018, however for ex tempore reasons delivered on that day,[1] I acceded to an application by Ms Charmers (“the mother”) to adjourn the hearing of the trial, so as psychiatric assessments could be undertaken of both parties. The further hearing was adjourned to Monday 17 June 2019, with an estimated hearing time of four days. Also on 10 December, in light of the adjournment, I heard an application by Mr Burnett (“the father”) for an increase in the time which he was spending with X, born in 2014 and Y, born in 2015 (“the children”). On 20 December 2018 I published my reasons for orders then pronounced, which effected an increase in the amount of time which the father would spend with the children between then and the trial resuming.[2]
[1]Burnett & Charmers [2018] FamCA 1099.
[2]Burnett & Charmers (No.2) [2018] FamCA 1106.
When the trial resumed on 17 June 2019, the parties used the first day to explore the potential settlement of the matter, and were able to substantially resolve the matters requiring judicial resolution. However a number of matters still remained outstanding, and on 18 June, I received the parties’ evidence (no party required cross-examination) and heard the parties’ submissions. I then reserved my decision.
This is that decision and the reasons for it.
THE FACTS
As at 10 December 2018
In my 10 December 2018 reasons I traversed the relevant facts as follows:
5.The father was born in South Australia in 1970, and hence is presently 48 years of age. He had a troubled childhood. He was conceived and born outside of wedlock, and was only born in South Australia so as his mother, who was then living in Western Australia, could conceal her pregnancy, because of the social stigma which would have attached to it in those days. The father’s biological father had nothing to do with him as a child, and indeed the father did not meet him until he was 17 years of age.
6.The maternal grandmother re-partnered, however the father says that man was violent towards him, to the point of injuring him. Further, when the father was about 10 years of age, he was groomed, and ultimately sexually abused, by a teacher and an accomplice. The grooming involved the father being plied with illicit drugs (presumably marijuana) and alcohol. Since then the father has had ongoing problems with illicit drugs, and, at least according to the mother, alcohol.
7.The mother was born in E State, Country B in 1983, and hence is presently 35 years of age. When 27, she travelled to Australia with a friend, and met the father on 11 June 2011 at F Town, where the father was working. It seems as though the father was then involved with illicit drugs. The mother says that she first became aware of that early in their relationship, which led to her leaving the father in July 2011, when she returned to Country B. However she again travelled to Australia and recommended her relationship with the father, in February 2012. The parties later moved to G Town in October 2012, where the father’s mother was then living.
8.It seems as though the father may not have ceased his involvement with illicit drugs when he left F Town, and the mother says that he continued to use hard drugs in G Town.
9.The parties’ first child, X, was born in 2014 in G Town. She is now four years of age. In 2015, the parties’ second child, Y, was born. He is therefore now presently three years of age.
10.The parties finally separated on 3 July 2017, on which day a domestic violence application and protection order in relation to the mother was made. The father commenced these proceedings on 7 July 2017, principally because of his fear that the mother would otherwise take the children with her to Country B and not return.
11.Interim parenting orders were made by Judge Coker in the Federal Circuit Court in G Town on 31 July 2017. They provided for the mother to have sole parental responsibility for the children, and conditional upon the father submitting to and not testing positive to drugs in a urinalysis test, for him to spend unsupervised day time with the children each Tuesday, Thursday and Saturday for a period of six hours. In the event that the father tested positive for drugs, that time was to be supervised.
12.It appears as though the father has enthusiastically availed himself of that time, and both parties have complied with the orders of Judge Coker. Further, in July 2018, the parties agreed that both children would spend additional time with the father each alternate weekend, from 10:00am Saturday until 4:00pm on Sunday. However, in fact, on occasions the father has spent additional periods of time with the children beyond that which the orders or the parties’ general agreement would otherwise have afforded him. For instance, recently in the week of 15 November 2018, the father spent a block of four consecutive overnights (ie five consecutive days) with the children, and in addition to his usual night with the children in the week commencing 22 November, also spent a night with the children on the week of 29 November. The four night period was agreed because the mother had friends from Country B who were visiting, and the overnight in the week of 29 November was because the mother was grieving for the death of an uncle.
Matters since 10 December 2018
The interim orders which I pronounced on 20 December 2018 appear to have worked well, indeed even to the point where the parties have further extended the time the children have spent with the father. Particularly, during the G Town floods, the mother’s unit was inundated, in consequence of which she asked the father to take the children until she could find alternative accommodation for them. As it transpired, they were then in the father’s care for a block of 11 days.
Later, in the first term school holidays, the children spent five nights with the father.
The parties have also had some success in using a particular App for communication in relation to the children, and have even managed quite remarkably, given their history of conflict, to jointly attend a medical appointment in relation to the youngest child.
THE ISSUES
Although at the Trial Management Hearing in this matter on 13 June 2018 I identified some ten issues which would inform the ultimate outcome of the proceedings, in view of the parties’ substantial settlement, most, if not all, of those are now redundant.
As at 13 June 2018, the principal issue in dispute between the parties was whether or not the mother should be permitted to relocate with the children to her native Country B. The mother has now resolved not to do so, but rather to remain living in the G Town district. Further, the parties have been able to agree significant matters in relation to international travel, which had always been a sticking point, even in the event that the mother remained living in G Town.
Ultimately, only three matters were left in dispute requiring my resolution. The first related to the children’s living arrangements during school terms (and particularly whether it should culminate in them spending equal time with each parent, or spending 6 nights per fortnight with the father) and the speed, and means by which, which ever of those ultimate culminating points was reached.
The second matter in dispute related to the children’s living arrangements during school holidays, and particularly the length of time which the mother should be able, during the Christmas holidays, to take the children to Country B, and whether she should have an option of taking them to Country B in periods other than the Christmas school holidays. There was also an issue in relation to the father’s contribution to any costs of travel of the children to Country B.
The third matter in dispute related to the appropriate duration of a drug testing regime for the father; the father and Independent Children's Lawyer contended for a period of one year only, whereas the mother sought a period of five years.
Once I have identified the relevant statutory provisions and legal principles, and addressed the relevant s 60CC considerations, I will address those matters in that order.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Section 65DAA provides that, where orders are to provide for equal shared parental responsibility, the court is to consider whether an equal time arrangement with each parent is in the child’s best interests and reasonably practical, and if not, then whether an arrangement for substantial and significant time (as defined in the subsection) is.
Finally, s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[3]
[3] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
SECTION 60CC CONSIDERATIONS
By virtue of the orders which the parties were able to agree, it is plain that each concedes that the children would benefit from having a meaningful relationship with both parents, and that it is likely to be best facilitated by the parents spending face-to-face time, and communicating, with the children as regularly as possible, and being involved in all areas of their lives.
The only issue of risk which the matter raises is the prospect that the father may relapse in to the use of illicit drugs, and the excessive use of alcohol.
As to that, as I noted in the first reasons, there were some occasions when the father had presented for drug testing in 2018, without sufficient length of hair to enable a follicle sample to be taken. However ultimately, when assessed by Dr H, the psychiatrist who examined both parties, he did submit to a drug test, the outcome of which was to show that he had not ingested drugs for at least some significant period of time.
Dr H’s diagnosis of the father was that he suffered from a major depressive disorder, which was in full remission, and suffered from poly drug use disorder, which was also in full remission.
Dr H noted that the test which he had the father undertake “would strongly argue against excessive use of alcohol over the last 4-5 years.” He was, however, troubled about the father having then recently given up the use of an anti-depressant medication. He said:
This disorder by its very nature (is) a chronic, recurring and relapsing one, the symptoms of which tend to become more severe and treatment refractory with time. Whilst it is undoubtedly pleasing that [the father] reports subjective improvement in symptoms of depression, he has experienced significant depression since 2015 which has been treated with a combination of farmer co-therapy and psychotherapy as described above in the body of this report.
Accordingly the currently accepted Best Practiced Guidelines for the management of Major Depressive Disorder, any patient over 40 years of age, who has suffered two episodes of this condition, should remain on indefinite anti-depressant pharmo co-therapy.
…
My major concerns relate to his previous history of poor impulse control, apparents indifference to the care of the children (particularly Y) and the fact that (through no fault of his own) [the father] uses less sophisticated psychological defence strategies (as a result of his prejudicial development history).
I have little doubt that one of the major stressors in the father’s life has been the prospect of the children relocating with the mother to Country B. Looking ahead, with that matter now resolved, and with, on any view, the father in the future spending significant time with the children, a major source of stress and anxiety for him will have abated. True it is that he is presently looking for employment, and employment may, as it appears in the past to have done, be a source of some stress for him, but I assess the risk of the father’s relapse into drug use as fairly low. I will address that further when considering the length of time for which he should be subjected to compulsory drug testing in due course.
For the sake of completeness I should say that the mother was also diagnosed by Dr H as suffering from generalised anxiety disorder, which was almost fully remitted, and a major depressive disorder, which was also virtually completely remitted. However neither of those matters concerned Dr H from the point of view of her being a carer of the children.
The children are too young to express any views.
The children have good relationships with both parents, and the paternal grandmother and step grandfather. They also seem to have good relations with their Country B family, although it mostly that relationship has been experienced via Skype.
In recent times, no criticism could be made of the father in relation to involvement in the children’s lives. Perhaps historically, during the course of the relationship, and its immediate aftermath, some criticism could be made of him, but plainly that was a difficult time for the father, who is vulnerable, given his background.
The father is assessed to pay only a small amount of child support, given that he is presently in receipt of social security benefits.
The effect of the proposed changes of the children’s circumstances lies at the core of the parties’ remaining dispute in relation to the time which the father should spend with the children during school terms, where it should culminate, and how quickly it should reach that culminating point. Whilst I will address that issue more specifically shortly, I should advert to the fact that, with the agreement of the parties, counsel for the Independent Children's Lawyer related a conversation which he had with the Family Report writer, in consequence of which he told me, without disagreement, that her recommendations were reflected in the Independent Children's Lawyer’s proposal in relation to that issue, and particularly that Ms C had been concerned about the children spending, in the near future, extended block periods of time with the father. Rather she preferred that the father’s time with the children each fortnight be in two blocks.
Whilst I did not, other than in the form of counsel’s statement, have the benefit of any evidence on that point from Ms C, other evidence suggests that the child Y particularly seems to have some difficulty adjusting back into the mother’s care, and I note that despite the mother’s best efforts, he is, at three years of age, still breast feeding, plainly as a comfort mechanism.
Now that the mother is remaining in G Town, there is no practical difficulty and expense in the children spending time and communicating with both parents.
By virtue of the orders which the parties ask me to make by consent, there is a clear concession that each of the parents have the capacity to provide for the needs of the children.
Both of these parents dearly love both children, and are committed to parenting them to the best of their ability.
There has been family violence between these parties during the course of their relationship, and there have been family violence orders. The inference I draw is that when the parties are under stress, situational violence is a risk between them.
It would plainly be preferable to make an order which would be least likely to lead to further proceedings between these parties in relation to the children.
CHILDREN’S LIVING ARRANGEMENTS DURING SCHOOL TERM
Overview
As I have adverted to earlier, there are two components to the dispute between the parties (and indeed the Independent Children's Lawyer) in this respect. The first is whether or not the culminating point should see the children spending equal time with each parent, or whether it should culminate at a 6/8 split in the mother’s favour. The second matter is the speed, and the means, by which that culmination is reached. The mother seeks that a 6/8 arrangement be reached in 2024, as indeed does the Independent Children's Lawyer, however the father says that an equal time arrangement should be reached in 2023. There is also a dispute as to the structure of the arrangements in any fortnight, for at least the first year or two.
Equal time or substantial and significant time
One of the orders which the parties ask me to make by consent is for equal shared parental responsibility. However a little unusually, whilst the agreed consultation process conforms with the obligations imposed upon the parties under an equal shared parental responsibility order by s 65DAC, it is agreed that:
If a joint decision cannot be reached at the Family dispute Resolution then the mother will make the ultimate decision and inform the father in writing as to the decision and the reasons for the same.
It is a moot point as to whether or not such an order engages s 65DAA, but in any event, given that the father wishes to ultimately achieve an equal time regime, plainly I need to consider whether an equal time regime is in the best interests of the children or not (it being conceded by the mother that it is reasonably practicable for there to be an equal time regime and a substantial and significant time regime).
The evidence on this point lay principally in the Family Reports and the psychiatric assessment. When articulating a final recommendation, at [116] of the second Family Report, Ms C did seem to favour an arrangement which saw the children live with the mother, but spend time with the father. She also thought that there may be “some merit” in increasing the time with the father, but certainly was not supportive of an equal time regime, at least as I read her report.
Dr H’s recommendation, after having only seen the father was “that the children spend 40% of their time in the care of [the father] and 60% of the time in the care of [the mother] with an eventual goal 50/50 custody and access.” After he interviewed the mother, his opinion remained the same, such that he said:
I am of the opinion that the optimal interests of the children would be achieved by initially changing the custody arrangement such that [the father] would have the children ... for 40% of the time and [the mother] have them for the remaining 60% of the time.
I believe it is in the interests of the children and indeed the interests of the mental health of both parents to ultimately aim for shared custody and access.
At paragraph 396 of her trial affidavit filed 16 November 2018, the mother said that “I consider the children should have a primary place to live. To date, [the father] and I have not been able to co-parent well enough where I think we could replicate the same routine and rules in two separate households… As it stands I consider it is in the children’s best interests that they have a primary home where they live and that they spend time with [the father].
Ultimately it seems to me that the following points favour a culmination in equal time:
·It may appease the father, to a degree, to have achieved equal care, (although that is of dubious benefit if the orders are not otherwise in the best interests of the children);
·There is not particularly much difference between six and seven nights per fortnight, and it is difficult to strongly contend that six would work, but seven would not.
On the other hand the following points tell in favour of a 6/8 split in the mother’s favour:
·It would, to some degree, give the children a primary home, and a secondary home;
·There is no history to date of the parties having managed to achieve a level of similarity between their households such that the children are moving between two halves of one world (although a 6/8 split is not markedly different to a 7/7 split).
Ultimately, as I said to the parties during the course of submissions, I am troubled that the equal time split is more about the father than the children. It does not seem to me that there is likely to be any great difference of experience between a 7/7 split or a 6/8 split. But because I am troubled about the potential for the father’s capacity to overreach, and because there is only a limited scope for prediction for the future, ultimately I am inclined to the position that the culmination of a 6/8 split under these orders is more likely to be in the children’s best interests than the 7/7 split.
As a fall-back position, the father wanted a notation on the orders to the effect that the parties should attend mediation once the 6/8 split had been inforce for some period of time. That was opposed by counsel for the mother on the basis that such a notation would not be binding, would keep open the prospect of further litigation, and would not achieve true finality. I am not persuaded that a notation in the form sought by the father is appropriate to make in this case.
Trajectory of time increase
The mother’s proposal was as follows:
8.That the children spend time with the father as agreed in writing and failing agreement as follows:
a.In 2019:
i.in week 1 of each new school term and each alternate week thereafter from 9:00am Wednesday for Y, and after school for X, to 4:00pm Thursday and from 10:00am until 4:00pm on Saturday, with the Saturday time commencing after 10 August 2019;
ii.in week 2 of each new school term and each alternate week thereafter from after school/day care Friday to 4:00pm on Sunday.
b.In 2020:
i.from after school/kindergarten on the second Thursday of each new school term to before school/kindergarten the following Monday each alternate week.
c.In 2021:
i.from after school/kindergarten on the first Thursday of each new school term to before school/kindergarten the following Monday each alternate week.
d.In 2022:
i.from after school on the second Wednesday of each new school term to before school the following Monday each alternate week.
e.In 2023:
i.from after school on the first Wednesday of each new school term to before school the following Monday each alternate week.
f.From 2024 onwards:
i.in even numbered years from after school on the first Tuesday of each new school term until before school Monday each alternate week; and
ii.in odd numbered years from after school on the second Tuesday of each new school term until before school Monday each alternate week.
On the other hand the father’s proposal was as follows:
9.That the children spend time with the father as agreed in writing and failing agreement as follows:
a.In 2019:
i.in week 1 from 9:00am for Y and afterschool for X on Wednesday to 5:00pm on Thursday, and from 10:00am until 5:00pm on Saturday;
ii.in week 2 from after school/day care Friday to 5:00pm on Sunday.
b.In 2020:
i.in week 1 from 9:00am for Y and after school for X on Tuesday to 5:00pm on Thursday;
ii.in week 2 from after school/day care on Friday to 5:00pm on Sunday.
c.In 2021:
i.on a fortnightly basis from after school/day care on Tuesday to 5:00pm Sunday.
d.In 2022:
i.On a fortnightly basis from after school/day care on Monday to 5:00pm on Sunday.
e.In 2023:
i.On a week about basis with changeovers occurring at 5:00pm on Sundays.
The Independent Children's Lawyer supported neither parties’ proposal in fine detail, although her proposal was more aligned with the mother’s. She proposed as follows:
9.That the children spend time with the father as agreed in writing and failing agreement as follows:
a.In 2019:
i.In week 1 of each new school term and each alternate week thereafter from 9:00am Wednesday for Y, and after school for X, to 4:00pm Thursday and from 10:00am until 4:00pm on Saturday, with the Saturday day time commencing after 10 August 2019;
ii.In week 2 of each new school term and each alternate week thereafter from after school/day care Friday to 4:00pm Sunday.
b.In 2020:
i.In week 1 of each new school term and each alternate week thereafter from 9:00am Wednesday to after school/kindergarten Friday;
ii.In week 2 of each new school term and each alternate week thereafter from after school/kindergarten Friday to 4:00pm on Sunday each alternate week.
c.In 2022:
i.From after school on the first Wednesday of each new school term to before school the following Monday each alternate week.
d.From 2024:
i.From after school on the first Tuesday of each new school term to before school Monday each alternate week.
The principal difference in the first instance is whether there should be annual increments in the father’s time with the children, or whether they should be undertaken in two year gaps.
Ms C supported the latter, and although she did not give specific evidence, but rather her recommendations were in the form of the Independent Children's Lawyer’s proposal, it does seem sensible to try and consolidate the change over time, rather than having the children’s arrangements change each and every year. I am therefore satisfied that the two year rests as proposed by the Independent Children's Lawyer are in the children’s best interests, and more, are the best means of ensuring that the gains of time by the father are consolidated, and the process does not prove too quick.
That then brings into play the difference between the mother’s proposal and the Independent Children's Lawyer’s proposal, which essentially dealt with 2020, where the Independent Children's Lawyer’s proposal would see two blocks of time in each fortnight, whereas the mother’s would see one block. Inferentially in this respect the father’s position supported both, in that in 2020 he proposed two blocks within a fortnight, but in 2021 he proposed one block.
The Independent Children's Lawyer again said that Ms C had, in conversation, expressed concerns about an early introduction of a long block of time, especially for Y, and she did not support the four day block as contemplated by the mother, or five day block as contemplated by the father in 2022. Particularly she was troubled that, in her observations, she had seen the father not correct a poor sitting habit in Y, whereas the mother did. The longer that the block was with the father, the less likely there would be opportunity for the mother to correct the habit.
I also identify that in 2021, it will be Y’s first year at school, and accordingly it would likely be unfortunate if that change were also to be accompanied by a further change in his living arrangements as well.
Again, the difference between the parties is a relatively slender one, and its resolution necessarily difficult. It involves future predictions, not knowing how the parties and the children will be travelling at that time. Nonetheless I am satisfied that the arrangement supported by the Family Report writer is the preferable one, and more in the children’s best interests than the others. Particularly I am attracted to the idea that in Y’s first year of school, there should be as little other change in his life as possible. Plainly he is a child who will likely to have some challenges in his early educational years.
Therefore there will be orders in this respect as contended for by the Independent Children's Lawyer.
CHILDREN’S LIVING ARRANGEMENTS DURING SCHOOL HOLIDAYS
Overview
The parties were, to use a colloquialism, all over the show in relation to their positions for holiday time. The mother wanted to be able to spend all of the Christmas holidays each alternate year in Country B with the children. The Independent Children's Lawyer was, in principle, happy with that, save that she wanted the mother to be required to bring the children home seven days before the start of school to accommodate any concerns about jet lag. The father said that the mother should be able to travel to Country B every year, but that her time there be limited to four weeks.
The mother also wanted to be able to take the children to Country B in other term holidays, for a period of no more than four weeks, accepting that would therefore see them out of school for some period of time. The Independent Children's Lawyer’s proposal did not accommodate that. The father opposed it.
Finally, there was an argument as to whether the father should be required to contribute to the children’s cost of travel, either in the sum of $3,000.00 each alternate year, as proposed by the mother, or alternatively, to pay the return to Australia leg of the children’s flights each alternate year. Upon some prompting from the bench, the mother seemed to accommodate my concerns by suggesting that such an arrangement should only come into play when the father is earning more than $30,000.00 per annum (accepting that it would need to be by reference to the previous financial year) whereas the father contended for a figure of $65,000.00. He opposed $30,000.00 being the income figure, noting that at the moment he is only just making ends meet on an income just slightly less than that.
Christmas holidays
The father conceded that the children will obtain benefit from being able to experience both their Country B family, and Country B generally, which is a significant part of their heritage. However, as I understand his argument, he thought that all of the Christmas holidays was too long a period for the children to be away from him, and that four weeks would be an adequate time for the mother to have a holiday there, and for the children to get to know their family and that country.
I accept that the mother wants to get the best value for her airfares as she can, by maximising the amount of time that she spends in Country B every time she flies. That is only common sense. Moreover I acknowledge that she is only proposing to do so every alternate year (and could not reasonably afford to do it every year) and that otherwise she proposes that the holidays be split. Indeed when one accepts that the father’s position is that the mother should be able to spend eight weeks in Country B every two years over the Christmas break, and spend four weeks with him, whereas the mother proposes that he should spend (assuming that she travels to Country B each alternate year) three weeks at Christmas each alternate year with the father, the narrowness of the dispute is clear.
There will be many things which the mother will try and pack into a winter holiday in Country B. Moreover, the longer the period, the more the children will experience an organic integration of Country B into their lives. I am therefore satisfied that it is likely to be in the children’s best interests for them to be able to spend the whole of the Christmas vacation (subject to the mother acknowledging that the children should not be returning to Australia one day before they go back to school) each alternate year. There will therefore be an order to that effect.
I am further satisfied that the children’s experience of Country B and their Country B heritage will likely only be enhanced by having an opportunity to experience other seasons there as well. However I am troubled about the potentiality for them to be missing up to two weeks of school on any such trip. Nonetheless upon balance I am satisfied that the mother’s proposal is more in the children’s best interests, and will so order.
Father’s contribution to costs of travel
It is unlikely, unless the father contributes to the cost of travel, that the mother will be able to travel to Country B with the children at all. The father conceded that. Therefore the real issue is at what level of income should the father be required to contribute to those costs. The father says $65,000.00, the mother says $30,000.00. The father opposes $30,000.00 on the basis that he is presently only just getting by on an income slightly less than that. There was no magic however to the figure of $65,000.00, but presumably it may have something to do with the somewhat distant prospect that the father would earn that money in the near future. However, as counsel for the Independent Children's Lawyer pointed out, given that the travel would only be each alternate year, the father would have two years to save up the $3,000.00, which would only be slightly less than $30.00 per week. So expressed, the task in front of the father is not extreme. That said, I accept that on his present income, it would be not possible for him to do so, and there is no point making an order if it is likely to compel the father to breach it involuntarily.
I accept that the father does likely have a significant financial resource in his mother (who has loaned him $185,000.00 to cover his legal costs for this trial) but ultimately the orders should not require third parties to assist to achieve compliance.
Ultimately, although there is no clearly correct answer, I am satisfied that, if in the previous financial year, the father has earned more than $40,000.00, then he should be required to contribute $3,000.00 towards the costs of the children’s airfares, or pay for the return airfare of the children, as he may elect.
FATHER’S DRUG TESTING
The father concedes that his history of drug use and alcohol abuse justifies a one year testing period. The mother seeks five years. She does so on the basis that the father has a long history of marijuana use, and there is always the risk of relapse. The older the children are, the more likely they are not to be adversely affected by the father being under the influence of drugs or alcohol, while they are in his care.
The Independent Children's Lawyer supports the father’s position.
Again there is no clear answer. There is, of course, always the option of choosing a figure somewhere in between, but it is probably just as unsatisfactory as selecting between the parties’ proposals.
Whilst there are present risk factors for the father, ultimately he says, and was not contradicted, that he last used marijuana in February 2017 (he says that Dr H’s report in this regard misquotes him) and there is the fact that he returned a negative result to the test required of him by Dr H. As Dr H says, that test confirmed the father’s evidence.
Ultimately, I am satisfied that a one year period of testing is a sufficient imposition upon the father to protect the children. If he remains abstinent of all illicit drugs for that period, then it is likely to predict that he can continue to do so. He will have then been, approximately, three years abstinent. There will therefore be an order to that effect.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 August 2019.
Associate:
Date: 20 August 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Costs
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Appeal
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Natural Justice
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