Cabano and Van Buren

Case •

[2017] FamCA 1027

•

18 December 2017

FAMILY COURT OF AUSTRALIA

CABANO & VAN BUREN [2017] FamCA 1027
FAMILY LAW – CHILDREN – Where a final parenting hearing was listed on an undefended basis – Where there are two children who are 16 and 14 years of age – Where the father sought to reverse the current living arrangements for the younger child or for his time with the child to be increased – Where the mother attended the hearing but declined to take a meaningful part – Where the mother announced during proceedings that both children would live with the father – Consideration of Pt VII of the Family Law Act 1975 (Cth) - Where orders are made that are substantially in terms and in the format proposed on behalf of the father.
Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC

Champness & Hanson (2009) FLC 93-407
McCall & Clark (2009) FLC 93-405
APPLICANT: Mr Cabano
RESPONDENT: Ms Van Buren
INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers
FILE NUMBER: SYC 7006 of 2010
DATE DELIVERED: 18 December 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth
SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers Pty Ltd
RESPONDENT: In person (withdrew)
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ng

Orders

THE COURT NOTES:

  1. The following definitions for the purpose of these orders:

    (a)“Act” means Family Law Act 1975 (Cth);

    (b)“B” means B, born … 2001;

    (c)“C” means C, born … 2003;

    (d)“children” means C and B;

    (e)“father” means Mr Cabano, born … 1967;

    (f)“Suburb D McDonald’s” means McDonalds at E Street, Suburb D;

    (g)“maternal grandmother” means Ms Van Buren Snr born … 1939;

    (h)“maternal grandmother’s residence” means F Street, Suburb G;

    (i)“mother” means Ms Van Buren, born … 1967;

    (j)“parties” or “parents” means mother and/or father;

    (k)“school holidays” means the holidays applicable to such school as C may attend.

THE COURT ORDERS:

  1. All previous parenting orders in relation to B and C shall be discharged.

  2. The parents shall have equal shared parental responsibility for the children.

  3. Both parents shall do all acts and things to facilitate B spending time with the other parent.

  4. C shall live with the father.

  5. C shall spend time with the mother by agreement and failing agreement, as follows:

    (a)each alternate weekend from conclusion of school Friday at the beginning of school term 1 starting 9 February 2018 to 7.30 pm Sunday when daylight saving does not apply and 8.30 pm in the case of daylight saving; and

    (b)each school holidays from the first day of the school holidays to the first half of the holidays in even numbered years and for the second half of the holidays in odd numbered years. School holidays to be numbered from and including the first evening on the last day of school to the last evening of the last day of school holidays.

  6. For the purpose of implementing school holiday arrangements pursuant to these orders unless specifically provided for in these orders:

    (a)school holidays commence at the conclusion of school on the last day of the school term;

    (b)school holidays conclude at 5.00 pm on the last day of the school holidays;

    (c)failing the parties agreeing in writing for the purpose of changeover the Mother shall collect C from such school as C attends or from McDonalds Suburb D; and

    (d)the father shall collect C from the maternal grandmother’s home on the Sunday evening from 7.30 pm (8.30 pm day light savings time) at the end of the mother’s time.

  7. The mother be and is hereby restrained from doing any act or thing to permit the children to depart from the Commonwealth of Australia without the written consent of the father or an order of the Court.

  8. The mother shall within 14 days of the date of these Orders do all acts and things and sign all documents necessary to deliver the passports of both children to the father.

  9. The children shall be permitted to travel internationally as provided by s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and, for this purpose, the father shall be permitted to apply for an Australian passport and to renew any such passport for the children C, born … 2003 and B, born … 2001 under the provisions of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth).

  10. The mother and father shall do all acts and things and sign all documents necessary to inform the other parent of any emergency or urgent medical treatment or significant incident regarding the children within eight hours of same occurring.

  11. Other than in the case of an emergency or in respect of common ailments the mother and father shall do all acts and things and sign all documents necessary to inform the other parent at least 24 hours prior to the children receiving medical or dental treatment.

  12. Leave is granted to the parties to apply to bring the matter back before the Court within 28 days, or such further time on which the parties may agree, in relation to machinery Orders.

  13. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Cabano & Van Buren 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 SYDNEY

FILE NUMBER:  SYC 7006 of 2010

Mr Cabano

Applicant

And

Ms Van Buren

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These proceedings were listed before the Court on 11 December 2017 for a final parenting hearing of the father’s application on an undefended basis against the mother. 

  2. The father sought to reverse the current living arrangements for, so that his son C, aged 14 years (“C”), the younger of the parties’ two children, would mainly live with him and spend time with the mother on weekends. In the alternative, the father sought that his time with C be increased.

  3. The Independent Children’s Lawyer (“ICL”) opposed the order sought by the father for a change of residence for C but supported some changes to the existing orders.

  4. The mother attended at the hearing, declined to take meaningful part in it, but finally announced that she would make arrangements to have C (and his older sister, B (“B”)) live with the father.

The Application

  1. The father provided a minute of order dated 8 December 2017 in which he sought the following orders:

    THE COURT NOTES:

    1. The following definitions for the purpose of these orders:

    1.1“Act” means Family Law Act 1975;

    1.2“[B]” means [B], born … 2001;

    1.3“Children” means [C and B];

    1.4“[C]” means [C], born … 2003;

    1.5“Father” means [Mr Cabano], born … 1967;

    1.6“[Suburb D] McDonalds” means McDonalds at [E Street, Suburb D];

    1.7“Maternal Grandmother” means [Ms Van Buren Snr] born … 1939;

    1.8“Maternal Grandmother’s Residence” means [F Street, Suburb G] or such address as the Maternal Grandmother shall from time to reside at;

    1.9“Mother” means [Ms Van Buren], born … 1967;

    1.10“Parties/Parents” means Mother and/or father;

    1.11“School holidays” means the holidays applicable to such school as [C] may attend;

    THE COURT ORDERS:

    2. The Parents shall have equal shared parental responsibility for the Children.

    3. All previous parenting Orders in relation to [B] and [C] are discharged.

    4. Each parent shall do all acts and things and sign all documents necessary to facilitate [B] spending time with the Father.

    5. Orders in relation to C shall be made in accordance with Orders 6 to 10 inclusive.

    C lives with the Father

    6. From 5:00pm 3 January 2018 [C] shall live with the Father.

    7. Commencing 10 February 2018 [C] shall spend time with the Mother by agreement and failing agreement as follows:

    7.1.each alternate weekend from the conclusion of school on Friday until 7:30 pm on Sunday and 8:30 pm during daylight saving hours;

    7.2.from 2018 subject to Order 6 during school holidays commencing in even numbered years from the conclusion of school on the last day of the school term until 5:00pm on a date being the midpoint of the school holiday period in holidays. 

    7.3.from 2019 during school holidays commencing in odd numbered years from 5:00pm on a date being the midpoint of the school holiday commencing in until 5:00 pm on the last day of the holidays.

    8. For the purpose of implementing school holiday arrangements pursuant to Orders 7.1 to 7.3 unless specifically provided for in these Orders:

    8.1.school holidays commence at the conclusion of school on the last day of attendance of the school term;

    8.2.school holidays conclude at 5.00 pm on the last Sunday of the school holidays;

    9. In the absence of agreement at the commencement of time spent in school holidays or school term the Mother shall collect [C] from such school as [C] attends or from [Suburb D] McDonalds. 

    10. At the conclusion of time spent in school holidays or school term the Father shall collect [C] from the Maternal Grandmother’s Residence on the Sunday evening at 7:30 pm (or 8:30 pm during daylight saving hours time).

    11. In the alternative to Orders 6 to 10, and without concession in the event the Court does not make Orders for [C] to live with the Father Orders shall be made in accordance with Orders 12 to 18.

    C Lives with the Mother

    12. Until he reaches the age of 16 years, [C] shall live with the Mother.

    13. The Mother shall do all acts and things and sign all documents necessary to facilitate [C] communicating with the Father at such times as C reasonably wishes. 

    14. [C] shall spend time with the Father by agreement between the Parties and failing agreement in accordance with Orders 14.1 to 14.2

    14.1.Commencing 2 February 2018, each alternate week from the conclusion of school on Friday until 7:30 pm on Sunday or 8:30pm during day light saving hours, where failing agreement, the father is to pick up C from his school or the maternal grandmothers home and the Mother is to pick up [C] from [Suburb D] McDonalds at the conclusion of time; and .

    14.2.each alternate Tuesday commencing 13 February 2018 from the conclusion of school until 7.30 pm, where the Father is to collect [C] from school and return him to the Maternal Grandmother’s Residence.

    15. On no more than one occasion within a 12 month period and upon the Father giving to the Mother 3 weeks’ notice in writing, by email at the expiration of the 3 weeks the Father may change the sequencing of the alternate weeks such that:

    15.1.the time [C] shall spend time with the Father pursuant to Order 14.1 on alternate weekends shall be put forward a week and occur in the week following the existing week; and

    15.2.the time [C] shall spend with the Father pursuant to Order 14.2 shall be put forward a week and occur in the week following the existing week.

    16. For the avoidance of doubt if the Father provides to the Mother 3 weeks notice in accordance with Order 15 C shall not spend 2 consecutive weekends with the Father.

    17. During school holiday periods commencing in 2017, the Children shall spend time with the Father as follows:

    17.1.during the Christmas holidays commencing at the end of Term 4 being the Christmas school holidays on a 10/7 night rotation as follows:

    In years commencing in an odd number:

    17.1.1.with the Father for the first 10 nights from after school on the last day of school attendance of term 4 until 5:00 pm on the 11th day of the School Holidays; and

    17.1.2.with the Mother for the next 7 nights until 5:00 pm on the 19th day of the school holidays; and

    17.1.3.[C’s] time with the parents shall occur with the parents repeating this pattern until 5:00 pm on the last Sunday of the school holidays when [C] shall be returned to the Mother.

    In years commencing in an even number;

    17.1.4.with the Mother for the first 7 nights from after school on the last day of school attendance of term 4 and concluding at 5:00 pm on the 8th day; and

    17.1.5.with the Father for the next 10 nights; and

    17.1.6.[C’s] time with the parents shall occur with the parents repeating this pattern until 5:00 pm on the last Sunday day of the school holidays.

    17.2.during the holidays commencing at the end of Term 1 from after school on the last day of school attendance of the term for a period of 10 nights until 7.30 pm on the 11th day;

    17.3.during the holidays commencing at the end of Term 2 from after school on the last day of school attendance of the term for 16 nights until 7.30 pm on the 17th day;

    17.4.during the holidays commencing at the end of Term 3 from after school on the last day of school attendance of the term for 9 nights until 7.30 pm on the 10th day;

    18. Failing the parties agreeing in writing for the purpose of changeover the mid-term holidays and Christmas holidays the Father shall collect [C] from school or the residence of the maternal grandmother and at the conclusion of time the mother shall collect [C] from [Suburb D] McDonalds.

    MISCELLANEOUS

    19. The Mother be and is hereby restrained from doing any act or thing to permit the Children to travel outside of the Commonwealth of Australia without obtaining the consent in writing of the Father or an Order of this Court.

    20. Within 14 days of the date of these Orders the Mother shall do all acts and things and sign all documents necessary to deliver the passports of both Children to the Father.

    21. The Children shall be permitted to travel internationally as provided by Section 11(1)(b)(ii) of the Australian Passports Act 2005 and, for this purpose, the Father shall be permitted to apply for an Australian passport and to renew any such passport for the children [C], born … 2003 and [B], born … 2001 under the provisions of Section 11(1)(b)(i) of the Australian Passports Act 2005.

    22. The Mother and Father shall do all acts and things and sign all documents necessary to inform the other parent of any emergency or urgent medical treatment or significant incident regarding the Children within 6 hours of same occurring.

    23. Other than in the case of an emergency or attendances by the Children on a general practitioner the Mother and Father shall do all acts and things and sign all documents necessary to inform the other parent at least 24 hours prior to the Children receiving significant medical or dental treatment. 

    24. In the event orders are not made for [C] to live with the Father, the Mother shall be restrained by injunction from doing any act or thing without the consent in writing of the Father or an Order of the Court to:

    24.2.relocate [C’s] residence from the Central Coast; and/or

    24.3.enrol [C] in a school other than his current school.

  2. The mother did not have any notice of that Minute but the orders sought were substantially the same as those sought in the father’s Amended Initiating Application filed 20 September 2017.

Written evidence

  1. The father relied on the following documents:

    (a)Amended Initiating Application filed 20 September 2017;

    (b)the father’s affidavit filed 20 September 2017;

    (c)the affidavit of Ms H dated 20 September 2017;

    (d)the affidavit of Ms J filed 20 September 2017;

    (e)the affidavit of Ms H filed 20 September 2017;

    (f)the affidavit of Dr K filed 20 September 2017;

    (g)the affidavit of Ms L dated 26 October 2017.

Expert evidence

  1. The following expert evidence was relied on:

    (a)Family Report prepared by Ms M dated 23 August 2016; and

    (b)Child Inclusive Conference Memorandum by Ms M dated 24 August 2015.

The hearing

  1. Trial directions were made on 27 July 2017, being the date fixed for the commencement of the Less Adversarial Trial process. There was no appearance by or on behalf of the mother on that date. The mother had filed a Notice of Discontinuance of her Response to an Application in a Case on 25 May 2017 and a second Notice of Discontinuance of “FCOA Case Application filed by Ms Van Buren, Ms (A) … Date filed 28/11/2016” filed on 13 July 2017. Neither of those Notices referred to the proceedings for final orders. The father deposed that he too filed a Notice of Discontinuance on 26 May 2015.

  2. In any event on 27 July 2017 after hearing from the father in person and the ICL and in the absence of the mother, the following orders were made:

    1.The proceedings are listed for hearing on an undefended basis at 10.00 am on 11 December 2017.

    2.The father file and serve on the mother and the Independent Children’s Lawyer any Amended Initiating Application and the affidavits of any lay witnesses in the proceedings, that is to be one consolidated affidavit from each deponent, by the close of business on 6 October 2017.

    3.Leave is granted to the Independent Children’s Lawyer to approach the Court on notice to the father in the event that that date is not convenient for the single expert.

    4.The Court requests that the single expert be available at least by telephone on that date.

    5.The Court Notes that if there is no appearance by or on behalf of the mother on 11 December 2017 and the orders for service have been complied with, orders may be made in terms of any Application filed and served in accordance with the directions made today, in her absence.

    6.I adjourn for mention subpoenas issued to [N Group] and to [O School] to the Senior Registrar’s list on 3 August 2017 for allocation of a date for hearing a dispute arising out of objections made in respect of those subpoenas.

    7.Any further subpoenas in these proceedings be issued only at the application of the Independent Children’s Lawyer.

    8.Leave is granted to the parties to restore the proceedings to the list in relation to any dispute in respect of the issue of subpoenas or in relation to any matter that would prevent the hearing commencing and concluding on the adjourned date.

  3. The mother did not answer when the matter was called at 10.00 am on 11 December 2017. The matter was stood down on the application of the father’s counsel and the hearing commenced at 11.30 am. When the hearing commenced the father was present and represented and the ICL appeared but the mother was not at the bar table. However, the father’s counsel pointed out that the mother was sitting in the body of the Court. On that basis I was satisfied that the mother had been served.

  4. I asked the mother if she wanted to take part in the proceedings and a brief discussion ensued. The mother indicated that she would be content if I read her affidavits. I explained that I could not do that unless she took part in the hearing. She then moved to the bar table and leave was given for a friend to join her at the bar table to assist her. I asked the father’s counsel and the ICL for their submissions about the management or future course of the hearing and explained to the mother that if the father’s application was now defended, the hearing was unlikely to be contained within the day listed. There were also issues about the extent of cross-examination and indeed, preparation for cross-examination of the parents, they being the only lay witnesses who were available for cross-examination. I invited the father’s counsel to obtain instructions about those issues. The mother then said:

    The only reason I would like you to read my affidavits is because I would like to have costs awarded and the father has substantially underpaid his financial obligations….

  1. I gathered that she wanted a child support agreement complied with. I indicated that there were no child support proceedings before the Court, only the parenting proceedings.

  2. The mother said:

    That’s perfectly fine because I’ve already made up my mind as I have said to the children ‘you can do whatever you like and if orders are made that create a three ring circus for me’ I’ve already explained to the children I will make the call – ‘you will have to go and live with your father’. That is how fed up I am….

  3. The mother then left the bar table and withdrew to the body of the Court. 

  4. The hearing then proceeded with cross-examination of the single expert family consultant by the father’s counsel. Thereafter documents were tendered by the father’s counsel and the ICL and submissions were made. The mother interrupted the proceedings with statements from the body of the Court and after warning her, I ultimately caused her to be removed from the Court. Not long thereafter I asked the court officer to invite the mother back into the Court in the event that she could remain quiet. The mother’s friend indicated from the back of the Court that the mother would not return. Despite that indication, sometime later and towards the end of submissions, the mother returned to the Court and announced:

    I’ve spoken to [B], I’m not going to split two children up and I think the fact that a father who says he loves his children can even dream of doing something like that is disgusting. I’ve spoken to [B], I’ve said to [B] I need you to go down with your brother. Okay, this is never going to come to an end otherwise, I am disgusted at this process and the lack of Justice…[C] can go down, [B] has said, for me, she will go down so her brother isn’t split up…”

  5. Submissions were then concluded and judgment was reserved. I ordered that the parties cause the proceedings to be restored on 48 hours’ notice, in the event that there was a change in the living arrangements for the children.

  6. As a result of those matters I was satisfied that the mother had notice of the hearing and of the father’s evidence, there was no evidence or application before the Court on behalf of the mother and there was no challenge to any of the evidence relied on by the father. Alarmingly, although the father only sought a change of residence in relation to C and those orders were not recommended by the single expert family consultant and were opposed by the ICL, the mother announced that both C and his 16 year old sister, B, would henceforth live with the father.

Short History

  1. The father and the mother are both 50 years of age. They commenced living together on 1 April 1999, were married in 2000 and separated on 1 May 2010.

  2. There are two children of the marriage:

    (a)B, born in 2001, who is 16 years of age; and

    (b)C, born in 2003, who is 14 years of age.

Background Facts

  1. On separation in 2010 the children lived with the mother and spent time with the father on alternate weekends.

  2. On 11 November 2010 final consent orders were made whereby the parents were to have equal shared parental responsibility and the children were to live with the mother and spend four nights per fortnight and half the school holidays with the father. In addition to these orders the children spent each alternate Sunday night with the father by agreement.

  3. In October 2012 the mother changed those arrangements and the children ceased staying with the father on Sunday nights. In December 2012 the parties engaged in mediation and the father’s time was increased by one night a month.

  4. In 2014 B commenced school in year 7 at P School and C commenced school in year 5 at Q School.

  5. In October 2014 the mother expressed dissatisfaction with the children’s schools.

  6. In February 2015 the mother rang the father and told him that she wanted to move to Suburb G on the Central Coast.

  7. The mother moved to live with her mother at Suburb G on 4 March 2015 and the children started living with the father at Suburb R. The mother told Ms M that this was a temporary move because she thought that her lease was going to end, she was going to lose her job and she needed a rest. She thought that she was close to having a nervous breakdown. The children spent alternate weekends with the mother. The father made an application to change the Court orders to reflect the new arrangement but later withdrew his application, considering it unnecessary.

  8. In June 2015, without informing the father, the mother enrolled the children in school at Suburb G.

  9. On 23 June 2015 the mother indicated that she wanted the children to live with her on the Central Coast.

  10. In July 2015 B commenced at S School. The mother says that was without her consent. On 15 July 2015 the mother attempted to re‑enrol B at P School but that school would not permit it.

  11. On 19 July 2015 the mother moved to live with a friend at Suburb R and the parties resumed the arrangement set by the 2010 orders.

  12. On 5 August 2015 the mother retained the children with her at Wahroonga and stopped the father’s time with the children. On 6 August 2015 the children commenced at O School on the Central Coast. The father contends that the children were in fact living with their maternal grandmother at Suburb G during that time and spent time with him on alternate weekends.

  13. In late August or early September 2015 the children started living with the mother at the home of the maternal grandmother in Suburb G.

  14. On 20 October 2015 an ICL was appointed for the children and orders were made for the children to spend time with the father each alternate weekend from Friday to Sunday. An order was also made that the orders for four nights per fortnight with the father made on 11 November 2010 be suspended.

  15. In April 2016, the mother arranged for B to have braces but did not tell the father.

  16. In December 2016 C was suspended from school. The father did not learn of that suspension until May 2017.

  17. In June 2017 B received detention for missing school.

  18. In July 2017 the mother permitted B to have a holiday with her friends in Queensland.

  19. On 3 August 2017 the father’s interim application came before Senior Registrar Campbell and there was no appearance for the mother. The matter was adjourned to 31 August 2017 and the father was ordered to file an affidavit of service of his application on the mother.

  20. On 31 August 2017 the father’s interim application again came before Senior Registrar Campbell and again there was no appearance for the mother. The father’s interim application was heard in the mother’s absence and orders were made.

  21. The father is employed in a highly skilled profession and he does volunteer work. I understand that the mother is employed as there have been difficulties for her being available to collect or deliver the children. I do not know the nature or extent of that employment.

The Expert Evidence

  1. The single expert was Ms M who is a psychologist employed by the Court as a family consultant. Her qualifications relevantly include the following degrees:

    (a)Bachelor of Psychology (Hons) 1999;

    (b)Master of Psychology (Forensic) 2003;

    (c)Master of Couple and Family Therapy 2012.

  2. Ms M has worked as a psychologist in child protection, juvenile justice and as a drug and alcohol counsellor. Since 2011 she has been employed as a family consultant.

  3. Ms M prepared a report in this matter dated 23 August 2016.

The Legislation

  1. The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

  2. For the purposes of the determination of these proceedings, I will adopt the following approach:

    (a)set out the current arrangements;

    (b)set out the proposals that the parties addressed or could have addressed;

    (c)where possible and relevant, consider and make findings about matters set out in s 60CC of the Act;

    (d)consider and make findings about parental responsibility, including considering the presumption in s 61DA of the Act;

    (e)apply s 65DAA of the Act if relevant and assess the proposals in light of that provision;

    (f)if s 65DAA is not relevant, assess the proposals against the best interests criterion;

    (g)consider and make findings about living arrangements; and

    (h)make orders.

The Current Arrangements

  1. C and his sister, B live with their mother on the Central Coast and spend time with their father in Sydney on alternate weekends and for one half of the school holidays, alternating for Christmas. There were proposals to change the current arrangements but the parties could not agree about them.  

The Parties’ Proposals

  1. The father seeks a change to the current orders and proposes two alternate options. The first option is that C lives with the father and spends time with the mother each alternate weekend and half of the school holidays. The second option is that C continues to live with the mother and spends time with the father on alternate weekends, one afternoon during the alternate week after school and half the school holidays.

  2. The father’s orders are not formally opposed.

  3. Ultimately, as I have recorded earlier, the mother said that she would put in place a change of residence for both children.

Section 60CC Considerations

  1. The section specifies the following considerations:

Primary considerations:

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

  1. A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[1] That enquiry is prospective which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

    [1]McCall & Clark (2009) FLC 93-405.

  2. The Court’s obligation is to make the orders most likely to promote the best interests of the child. In seeking to achieve that objective, s 60CC(2)(a) of the Act directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[2]

    [2]Champness & Hanson (2009) FLC 93-407.

  3. It is common ground that both parents have a loving relationship with C and that he loves both of them. That was conceded by the mother when she spoke to Ms M in 2016. The existing orders include provision for overnight and unsupervised time between C and his father and in as much as the mother does not seek any change to those orders, I am entitled to assume that she considers that there is meaning in the relationship between father and son.

  4. Under either of his proposals, the father seeks to retain an arrangement whereby C spends time with his mother, overnight and unsupervised. The relationships between each parent and the child are meaningful and subject to other considerations going to C’s best interests, any orders made should promote those relationships.

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

  1. ‘Abuse’ and ‘family violence’ are defined terms under the Act. Section 4(1) defines “abuse” as follows:

    abuse, in relation to a child, means:

    (a) an assault, including a sexual assault, of the child; or

    (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d) serious neglect of the child.

  2. Section 4AB of the Act provides:

    (1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

    (2)Examples of behaviour that may constitute family violence include (but are not limited to):

    (a)an assault; or

    (b)a sexual assault or other sexually abusive behaviour; or

    (c)stalking; or

    (d)repeated derogatory taunts; or

    (e)intentionally damaging or destroying property; or

    (f)intentionally causing death or injury to an animal; or

    (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

    (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

    (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

    (3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

    (4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

    (a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

    (b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

    (c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

    (d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

    (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

  3. The mother told Ms M that the father was angry at times and that he had inflicted controlling behaviour on her in the nature of family violence. The father referred to an incident when the police came to his home and manhandled him but he categorically rejected that he had been violent to the mother or to either of the children.

  4. There is no probative evidence of abuse or family violence by either of the parties.

  5. Any orders made should promote the relationships between each of the parents and C, while keeping him safe.

Additional considerations

(3)(a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

  1. It is common ground that C has expressed the wish to continue to live mainly with his mother. He expressed that wish to Ms M in 2016 and neither the ICL nor the father asserts that there had been any change in that position.

  2. In her 2016 report Ms M recorded that both children had expressed the view that they would like to remain living with their mother and to continue to attend O School. She also recorded that: “The overwhelming message that both [B] and [C] gave during this assessment is that they want to maintain relationships with both parents.”

  3. At the time of Ms M’s 2016 interviews, the move to the Central Coast was relatively recent and although the father did not agree and the Court was yet to rule on the living arrangements, the mother had assured the children that the move was permanent. Ms M noted that the children’s views had no doubt been influenced by their mother’s actions and that as a result, some caution should apply to the weight that should be placed on those views. Ms M went on:

    55.It is particularly worrying that [Ms Van Buren’s] portrayal of [O School] as being specifically able to meet [C’s] learning needs appears to have been misleading. Both children have taken this information into account when forming their views. Even with accurate information, the children do not have the maturity to consider the long term impact on their lives of their school placement and geographical location of their residence. The children also appear to have formed their views based on a belief that they would spend alternate Friday to Sunday with their father. They seem to continue to believe this is possible but, if it is not, their preference to live on the Central Coast with their mother may waiver.

    56.The children have formed their views in the context of influence from their father also. Prior to their move, [Mr Cabano] transferred [B] to [S School] and introduced [C] to the possibilities of attending [T] School or [U School]. [Mr Cabano] has been forthright in telling the children his views so they know that he does not agree to their attending [O School] or to their living with their mother. The children have been told by their father, repeatedly, that there is a possibility that they will not be able spend time with him if they continue to live on the Central Coast. The children were hesitant to describe any problems they have had with their father. This might be because they do not perceive having had any problems worthy of mention. But the police having attended their father’s home, [B] having not spent time with her father on a couple of occasions, and [Ms Van Buren’s] allegations about [Mr Cabano’s] anger toward the children (even if the full extent of such allegations are not accurate) suggests that the children have experienced difficulties in their relationship with their father. The pervasiveness of [Mr Cabano’s] anger during interviews suggests that it is likely that it would be negatively impacting upon his parenting. Indeed, when [Mr Cabano] was observed with the children, it seemed that his anger leaked into his interactions with them. It is possible that the children are not able to talk openly about problems they experience with their father due to concern that it will upset and anger him. It does not seem that they are frightened of their father’s anger but more that they are worried about him rejecting them. This apparent lack of emotional security with their father has also likely influenced their views.

    57.[B] and [C] are presented with the situation created by their parents. They have experienced living with their mother on the Central Coast and with their father in Sydney. [B] has experienced attending [S School] (only briefly) and [O School] but [C] has not experienced attending high school in Sydney. They are of an age at which they can think about their relationships with their parents and how their parents can best meet their needs. They are aware of the limited options regarding time arrangements given the distance between their parents’ homes. Their views reflect what they think is best for them and what will work in a practical sense for them. They are in an incredibly difficult situation and cannot appease both parents. The Court could appropriately place some weight on their views.

  4. More than a year has passed since Ms M’s report. It is likely that C is more mature than he was in August 2016. Significant weight must be placed on C’s views.

    (3)(b) the nature of the relationship of the child with:
    (i)  each of the child’s parents; and

(ii)  other persons (including any grandparent or other relative of the child);

  1. There is a loving relationship between C and each of his parents.

  2. In 2016 Ms M observed the interaction between C (together with his sister B) and each of his parents. She noted that the father teased C about his ears and questioned him about his personal hygiene habits and whether he had stayed overnight at a friend’s house. She said that the father seemed to be abrupt but that the children seemed to be relaxed and confident and they engaged in interaction with him. Ms M recorded that both children engaged with their father and appeared to be calm, relaxed and content while interacting with him.

  1. At those interviews Ms M observed the children playing a board game with their mother. She said that the children seemed to be engaged in the game, smiling, laughing and making comments about it. She said that the children appeared to be calm, relaxed and content while interacting with their mother.

    (3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
    (i)  to participate in making decisions about major long‑term issues in relation to the child; and
    (ii)  to spend time with the child; and

(iii)  to communicate with the child;

  1. The background facts suggest that each of the parents has taken those opportunities.

(3)(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

  1. I gather from the mother’s brief submissions that there is a dispute between the parents about the level of financial support provided to the mother’s household by the father. I am not aware, however, of any proceedings in this Court or elsewhere in respect of child support or child support enforcement.

    (3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)    either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

  1. As his primary application, the father proposes a very significant change in C’s life. His primary application is that C reside with him in Sydney rather than on the Central Coast with his mother. On that basis he proposes that there be contact between C and his mother including on alternate weekends. That proposal would mean a level of separation of C from his mother and from B. As far as I know that possibility was not put to Ms M for the purposes of her 2016 report. The children currently attend the same school. Although arrangements could be made to maximise the time the siblings can spend together, the father’s primary proposal would mean that for the first time, the children would live apart.

  2. As an alternate position the father sought that his time with C increase in duration. This change would have less significant consequences.

  3. As I have referred to, the mother’s announcement suggests that the siblings will not be separated.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

  1. C’s parents live a distance apart. There is the difficulty of motor vehicle traffic between Sydney and the Central Coast and/or the need to catch trains between Sydney and the Central Coast.

    (3)(f)  the capacity of:
    (i)  each of the child’s parents; and
    (ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

  1. This is an important issue.

  2. Each of the parents has been very critical of the other. The mother told Ms M that she did not want to co-parent with the father. Ms M reported:

    58.…

    Both parents used phrases such as not wanting to “put myself out” or “bend over backwards” to accommodate the other parent. Their language and their attitudes reflect their dysfunctional and damaged co-parenting relationship. The detrimental impact of this on [B] and [C] cannot be overstated. Exposure to such a toxic relationship between their parents will have long term negative impact on their emotional, social and cognitive development. [C] already has significant learning difficulties and his parents’ conflict will only add to those difficulties.

    59.It is particularly disturbing that [Ms Van Buren] appeared to indicate that her unilateral decision making has resulted in a situation that is the opposite of the situation [Mr Cabano] allegedly tried to create, almost with a sense of retaliation and revenge. [Ms Van Buren] appears to have made decisions to remove [Mr Cabano] from her life as much as possible, with the obvious effect of him being substantially removed from the children’s lives. [Ms Van Buren] justifies her actions as having been in the best interests of the children but there is some doubt that her transferring the children’s schools was based on anything other than her desire to move them to the Central Coast. [Ms Van Buren] also justifies her actions as having been an attempt to remove herself and the children from [Mr Cabano’s] alleged perpetration of coercive and controlling violence and an attempt to stabilise her own emotional wellbeing. From [Ms Van Buren’s] perspective, [Mr Cabano] used his power over financial aspects of the children’s care to create a sense of instability and control over her. She perceived that he was hostile, demanding and aggressive in communication with her. [Ms Van Buren’s] perceptions of [Mr  Cabano’s] behaviour and the impact of that behaviour on her emotional wellbeing are important considerations when assessing what might be in the children’s best interests. However, [Ms Van Buren’s] perceptions of [Mr Cabano’s] behaviour, over the five years of co-parenting in accordance with Court orders made in 2010, does not necessarily justify her unilaterally transferring the children’s school and moving them to the Central Coast. Given her description of [Mr Cabano’s] behaviour toward her and the children, it is concerning that she would send [B] to spend time with her father, with braces on her teeth, without first informing [Mr Cabano] that [B] had undergone orthodontic treatment.

    60.[Mr Cabano] is angry. It is understandable why he is angry. But his anger seems to be so pervasive that it is preventing him from listening to the children, trying to understand the children’s perspectives, or protecting the children from his anger and the conflict between him and their mother. It is preventing him from co-operating with [Ms Van Buren], being flexible, or accepting responsibility to make things work for the children under less than ideal circumstances. [Mr Cabano] does not seem to appreciate the effect of him telling the children that he will not collect them from the Central Coast and that he will not be able to spend time with them in the future because their mother will not bring them to Sydney. At the Child Inclusive Conference, [B] was concerned that her father had said he would not see her until she was 18 years old. During the current assessment, the children expressed concern that their father said he will not see them because their mother cannot transport them to the previous changeover point. [Mr Cabano] himself is saying that he tells the children that he may not see them again. He is so focussed on attributing the blame for this possible outcome to [Ms Van Buren] and repudiating any responsibility himself that he seems to be unaware of the actual effect on the children. The reality is that, when he talks like that, the children perceive that he is rejecting them. [Mr Cabano’s] attitude appears to be that, if the children do not live in Sydney, as he desires, he will not take any responsibility or make any effort to ensure that they spend time with him. It is noted that, up to this point, [Mr Cabano] has taken responsibility for transporting the children to and from the changeover point. If the children cease spending time with their father on alternate weekends it will be detrimental to them and to [Mr Cabano].

  3. In those passages of her report Ms M was critical of the father for suggesting to the children that he would cease to see them. By that conduct the father firmly placed the children in the middle of the conflict between him and the mother. He allowed the children to fear that he would abandon them. In my view that was manipulative and highly inappropriate. That said, the threat did not come to pass. Although there have been interruptions and cancelled and shortened visits and although the father has had the responsibility for collection and delivery of the children, the father has spent time with the children. The father has continued to see the children.

  4. The mother must have had some confidence in the father’s parenting in 2015 when she left the children to live with him.

  5. As to the mother, under her care there have been problems with school attendance and homework. From 1 May 2017 to 7 December 2017 C had 22 absences from school of which 11 were full day absences and 11 part-day absences. In that same period Ariel had 43 absences from school of which were 11 full day absences and 32 part-day absences.

  6. The father is concerned that the mother withdrew C from the MacqLit program offered by O School for C’s dyslexia. He is also concerned that rather than having special services available to C over those at other schools, it transpires that O School advised the mother that they were unlikely to have the type of services that would be available in a public school.

  7. The father is not the only angry parent. The mother has been very angry in relation to the father. That was demonstrated in her parting words to him as she left the courtroom for the last time on 11 December 2017. There is also evidence of the mother expressing her anger to the staff of the children’s schools. That occurred as the mother unsuccessfully tried to recover B from S School and return her to P School. It has also happened at O School. On 13 September 2017 an administrative secretary sent an email[3] to the deputy principal and to the head of the secondary school which included the following:

    [Ms Van Buren] called at 3.00pm on 13 September demanding to speak to [Mr V] [the head of the secondary school]. She stated that she was angry that [Mr V] was refusing to speak to her after he had sent an email requesting her response. She yelled “you do not want me as an enemy” and “[Mr V] is either a mouse or very bad at his job”. Again she demanded that [Mr V] contact her within two hours or she would attend the College in the morning to meet with [Ms W] [the principal]. If she had no response she said she would make a formal complaint to the Board of Directors and she had enough evidence to launch a formal complaint with the Association of Independent Schools. She said she was a paying parent and again demanded [Mr V] call her within two hours. [Ms Van Buren] continued to yell over the phone about prior complaints she had made about teachers and support staff, however she was yelling so loudly I had difficulty understanding her. [Ms Van Buren] eventually hung up.

    [3] Tab F9A of the documents subpoenaed from O School – exhibit 3

  8. The mother’s statements in Court were of great concern. Firstly she said something to the effect that if she did not like the orders made she would cause the children to live with the father. Later in the day she announced that she had spoken to B and asked her to live with her brother, in Sydney, with the father. I will assume that the mother told the truth about those matters. I cannot think of a reason for her to make those statements if they were not true. Surely changes to the living arrangements of the children could have been communicated to the children in a child focussed way. Unfortunately I have no confidence that this news will be broken to C in a way that insulates him from the parental conflict and from the feeling of responsibility for the mother’s change of mind. As well as her announced decision, the mother’s behaviour supports the first of the father’s options.

(3)(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

  1. I have referred to some evidence in relation to those matters. The father is of European extraction and he gives evidence about travel undertaken with the children and the enjoyment they had from that connection.

    (3)(h)  if the child is an Aboriginal child or a Torres Strait Islander child:
    (i)  the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right

  1. This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

  1. I have dealt with this issue under other criterion.  

(3)(j) any family violence involving the child or a member of the child’s family;

  1. There is no probative evidence of family violence by either of the parties.

    (3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
    (i)  the nature of the order;
    (ii)  the circumstances in which the order was made;
    (iii)  any evidence admitted in proceedings for the order;
    (iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

  1. No family violence order was sought or granted.

(3)(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

  1. This is not a relevant consideration. In my view, the decision of the mother announced at the conclusion of the hearing excludes any order other than one that substantially grants the father’s primary application. Of course it does not exclude further proceedings. The mother might change her mind; there could be an appeal; and or something might happen in the next year or so that prompts one of the parents to seek a variation or discharge of one or more of the orders made.

(3)(m) any other fact or circumstance that the court thinks is relevant.

  1. Nothing comes to attention here.

Parental Responsibility

  1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

  2. If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows as per s 61C of the Act:

    (1) Each of the parents of a child who is not 18 has parental responsibility for the child.

    Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

    Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.

    Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

    (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

    (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

    Note: Section 111CS may affect the attribution of parental responsibility for a child.

  3. Here the parents have equal shared parental responsibility pursuant to the earlier orders. An order for shared parental responsibility has the following effect as per s 65DAC of the Act:

    (1) This section applies if, under a parenting order:

    (a) 2 or more persons are to share parental responsibility for a child; and

    (b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    (2) The order is taken to require the decision to be made jointly by those persons.

    Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3) The order is taken to require each of those persons:

    (a) to consult the other person in relation to the decision to be made about that issue; and

    (b) to make a genuine effort to come to a joint decision about that issue.

    (4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

  4. Presumably that must also apply to equal shared parental responsibility.

  5. There is no application for a change in relation to parental responsibility. That is odd because the parties have not always been able to meet the requirements of s 65DAC which are to make decisions jointly, to consult with each other and to make a genuine effort to come to a joint decision. Rather there have been a series of unilateral decisions.

Conclusion

  1. There is no proposal to change the existing order for equal shared parental responsibility.

Living Arrangements

  1. The orders primarily sought by the father were not supported by the ICL, nor were they recommended by Ms M. The response of the ICL and the family consultant are understandable. As a general proposition, C (with his sister) was settled in the Central Coast arrangement with his mother. He is 14 years of age, he wanted to remain living with his mother and attending his current school and significant weight must be placed on his views. Despite the hurdles put in the way of C’s relationship with his father, they have a loving and sophisticated relationship. As was observed by Ms M, like his sister, C is apparently not fazed by his father’s interrogations and anger, for example.

  2. However, as it transpires, there is no alternative to the orders primarily proposed by the father.

  3. It is not possible to know what prompted the mother to make the statements she did during the hearing but they changed the nature of the proceedings. Not only does the mother not oppose the order sought by the father, she announced that she would give effect to such an arrangement. In my view I have no choice but to make the orders primarily sought by the father. I have no idea whether the mother intends to spend time with C in accordance with the father’s proposal or not.

  4. The father sought no detailed orders in respect of B but through his counsel and in his affidavit, he explained his reasons for that approach. Given her age, the Court would normally be very reluctant to make orders about B. However, if B does choose to live with the father, I am confident that she will be welcome there. Any unnecessary change of school can be stressful but at least the change prompted by the mother for B comes at the end of Year 10 and will allow her the opportunity to complete all of Years 11 and 12 at one school.

  5. For C too, the challenge of changing schools comes at the end of the school year and in time for arrangements about enrolment, uniforms etcetera.

Conclusion

  1. This was a disturbing case. In the overwhelming proportion of parenting proceedings, a resolution is found in terms of arrangements agreed by the parties. That sometimes happens early in the piece but in some cases it can happen at a time shortly prior to a final hearing.

  2. Here, the mother withdrew from the proceedings at the point when they were to be listed for final trial. On the day fixed, many months later for the hearing of the father’s application on an undefended basis, she attended and sat in the back of the Court. The mother was invited to belatedly take part in the hearing but she again withdrew. Ultimately, the mother announced, apparently after a discussion with B, in respect of whom no orders were sought by the father, that she would put in place an arrangement whereby both C and B would live with the father.

  1. In those circumstances there is no real choice but to make orders that are substantially in terms and in the format proposed on behalf of the father. The appropriate orders are those sought by the father.

  2. Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to machinery orders.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 December 2017.

Associate: 

Date:  18 December 2017


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