Cassar and Cassar

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASSAR & CASSAR

[2018] FCCA 795

Catchwords:
FAMILY LAW – Parenting – three children aged 13, 11 & 9 – where interim orders for time have not been complied with – where the children have been exposed to conflict at changeovers – where the mother has denigrated the father in the presence of the children – where one child has not spent time with the father since separation – where both parties have lacked insight into the needs of the children – final orders –best interests of child.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Applicant:

MR CASSAR

Respondent:

MS CASSAR

File Number:

NCC 707 of 2016

Judgment of:

Judge Middleton

Hearing dates:

22 & 23 February 2018

Date of Last Submission:

23 February 2018

Delivered at:

Newcastle

Delivered on:

4 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr Duane

Solicitors for the Applicant:

Curtis Gant Betts Solicitors

Counsel for the Respondent:

Mr Rugendyke

Solicitors for the Respondent:

Gianacas Argiris Mcdonald

ORDERS

The parties have equal shared parental responsibility for the children [X] born 2006 and [Y] born 2008 (“the children”).
The children live with the Respondent Mother.
The children spend time with the Applicant Father:
(a)Each alternate weekend during school term from after school Friday until return to school Monday, commencing the first Friday after the making of these orders;
(b)For one half of each of the school holidays at the end of the year holiday period (December and January, commencing in December 2018) being the first half of such school holiday period in even numbered years and the second half in odd numbered years.
(c)The year in which December falls shall determine whether the year is an odd year or an even year.

Telephone communication

During weekdays prior to a weekend on which the Applicant Father is scheduled to spend time with the children, the Respondent Mother shall ensure that the children are available to speak to the Applicant Father between 7:30pm and 8:30pm on Wednesday.
During weekdays prior to a weekend on which the Applicant Father is not scheduled to spend time with the children, the Respondent Mother shall ensure that the children are available to speak to the Applicant Father between 7:30pm and 8:30pm on Friday.
Telephone communication is to be implemented by the Applicant Father telephoning the Respondent Mother’s landline or mobile telephone number and the Respondent Mother ensuring that the children are available to talk with the Applicant Father during these times.

Christmas Time

The children shall spend time with their parents during the Christmas periods as follows:
(a)During even numbered years, from 9.00am Christmas Eve (24 December) through until 3:30pm on Christmas Day (25 December) with the Applicant Father;
(b)During even numbered years, from 3:30pm Christmas Day (25 December) until 5:00pm Boxing Day (26 December) with the Respondent Mother.
(c)During off numbered years, from 9.00am Christmas Eve (24 December) through until 3:30pm on Christmas Day (25 December) with the Respondent Mother; and
(d)During odd numbered years, from 3:30pm on Christmas Day (25 December) until 5:00pm on Boxing Day (26 December) with the Applicant Father.

Easter Time

The children shall spend time with their parents during the Easter time as follows:
(a)During even numbered years from 9:00am Good Friday (the Friday immediately prior to Easter) until 5:00pm Easter Monday (the Monday immediately following Easter) the children shall spend time with the Applicant Father);
(b)During even numbered years from 5:00pm Easter Monday (the Monday immediately following Easter) until 5:00pm the following Friday (the Friday immediately following Easter) the children shall spend time with the Respondent Mother;
(c)During odd numbered years from 9:00am Good Friday (the Friday immediately prior to Easter) until 5:00pm Easter Monday (the Monday immediately following Easter) the children shall spend time with the Respondent Mother);
(d)During odd numbered years from 5:00pm Easter Monday (the Monday immediately following Easter) until 5:00pm the following Friday (the Friday immediately following Easter) the children shall spend time with the Applicant Father.

Mother’s Day/Father’s Day

The children shall spend time with the Mother on the Mother's Day weekend from after school Friday on the weekend of Mother's Day.
The children shall spend time with the Father on Father's Day weekend from after school Friday until return to school Monday.

Changeovers

In the event that changeover is to occur when the school is not open the changeover shall occur by the Respondent Mother or her nominee delivering the children to the park situated on the western side of the highway near (location omitted) and the Applicant Father or his nominee returning the children to the Respondent Mother or her nominee at that same location at the conclusion of time.

Other Orders

In the event that either of the parties intend to change their residential address or phone number then that person must notify the other person orally and in writing within 14 days of the date that the person intends to change such details.
Each party is at liberty to obtain all relevant medical records and consult the children’s medical practitioners, medical specialists including psychologists and psychiatrists to obtain any information they require and these orders are sufficient authority for that purpose.
Each party is at liberty to attend each of the children’s schools and school functions and sporting functions and obtain all details from the children’s schools including reports and school photos.
Neither party shall denigrate the other in the presence of the children or permit any other person to do so within the hearing of the children.
Pursuant to Section 65DA(2) of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are as set out in Annexure “A” and are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 707 of 2016

MR CASSAR

Applicant

And

MS CASSAR

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting arrangements for three children [Z] born 2005, aged 13, [X] born 2006, aged 11, and [Y] born 2008, aged 9.
The proceedings were commenced by the applicant father Mr Cassar who is 38 at the time of trial.
The respondent mother Ms Cassar is 39.
The parents commenced cohabitation in 1998, were married on 2000 and separated on a final basis on 6 January 2015.
Since separation [Z], who suffers from anxiety, has spent no time with her father.
On 8 November 2016, I made orders on an interim basis for the children to spend daytime only with their father each alternate Sunday from 9.00am to 4.00pm until 7 January 2017 and thereafter each alternate Saturday and Sunday from 9.00am to 4.00pm.
The children attended their father’s home on Saturday, 7 January 2017 in accordance with my orders however, thereafter did not return to their father on the Sunday. The children have not spent two days with their father since the making of my orders on 8 November 2016.
It is the mother's case that the children initially told their father they did not wish to attend and he told them that that was okay. Subsequently, upon the mother realising that the father wants to spend time with the children on a Sunday, the mother has taken the children to changeover each alternate Sunday. It is the mother's case that the children refuse to go with the father.
It is the father's case that at no time did he tell the children he did not wish to see them on the Sunday. It is the father's case that although the mother drives the children to the changeover point each alternate Sunday she is doing nothing to encourage the children to spend time with him.
The child [Z] has spent no time with her father post-separation. [Z] suffers from anxiety and is being treated for this. [Z] has never stayed overnight at any home other than the parents’ home. [Z] even refuses to stay overnight at her maternal grandparent’s home which is 400 metres away from her home on the same property.
It is in that context that the matter comes before me.

Issues

The issues for determination are:
(1)Whether the mother can promote and encourage a meaningful relationship between the children and the father;
(2)Whether the children should spend overnight time with their father.

The material relied upon

The father relied upon following documents:
(1)Affidavit of the father filed 25 January 2018;
(2)Affidavit of George Cloudesley Betts filed 25 January 2018;
(3)Affidavit of Ms J filed 1 February 2018;
(4)Case outline.
The mother relied upon the following documents:
(1)Response to Initiating Application filed 21 September 2016;
(2)Affidavit of the mother sworn 23 January 2018;
(3)Case outline filed by the mother.
Also before the court was a Child Inclusive Memorandum dated 4 October 2016 and another Child Inclusive Conference dated 27 January 2017. A Family Report authored by Family Consultant Mr P dated 25 May 2017 was also before the court.

The evidence

The father

The father gave evidence that initially he was spending time with the children at the former matrimonial home, being a cottage on the maternal grandparent’s home with the mother present.
This arrangement continued until late April or early May when the mother refused to allow the father into the cottage to spend time with the children and also, due to the cooler weather, refused to allow the children to go outside to spend time with their father.
It is the father’s evidence that when he asked the mother if he could spend alternate weekends with the children at his parent’s home, near (omitted), the mother told him that would not occur.
The father gave evidence that the mother continued to reduce the time that he could spend with the children and he was left with no alternative other than to commence proceedings.
It is the father’s evidence that from about May 2015 until Christmas 2015 both of his daughters, [Z] and [X] would be present at changeovers. His evidence is that they would usually give him a kiss and a cuddle and tell him that they loved him but would then say that they “could not” come to his house. The children at that time were aged 11 and 10 respectively.
It is the father’s evidence that his son [Y] would spend time with him at least one day each alternate fortnight.
The father gave evidence that due to the fact that the two girls appeared to be distressed at changeovers he would tell them that it was alright if they did not go with him because he did not want to upset them any further.
The father's evidence is that since the orders were made on 8 November 2016 both [X] and [Y] have spent each alternate Saturday with him.
It is the father's evidence that he attends changeover on a Sunday, as does the mother and the children and that each Sunday it is apparent that the children are very reluctant to spend time with him.
Exhibit 4 in the proceedings is a video taken at the changeover. After perusing the video it is quite obvious that the children are placed in a very difficult situation at changeover and that they cannot wait until they are told by their father to give him a kiss and cuddle and then they will be able to go with the mother.
The video depicts the children not being able to look their father in the eye, shuffling around, looking at the ground often and once being asked to give the father a kiss immediately give him a cuddle and a kiss, smile and return rapidly to the car.
I found watching the video distressing and I am sure the children are placed in a very difficult position at changeover and are distressed.
It is also the father’s evidence that since January 2017 the mother has not brought [X] to the changeover from time to time.
It is the father’s evidence that when the children do spend time with him they enjoy the activities that they do and that his son [Y] loves spending time on his parent’s farm.
It is the father’s evidence that when he returns the children to (location omitted) for the purpose of changeover on a Saturday afternoon, the children often become quiet and appear to be anxious about the changeover soon to occur.
The father gives evidence that each Sunday when he speaks to the children at changeover they tell him either that they cannot go with him or that they are too busy with chores or other activities on the maternal grandparent’s property for them to attend.
The father's evidence is that he is hopeful that once an order is made for overnight time the children will enjoy spending weekends with him and that it will alleviate the pressure currently placed on them.
The father outlines in his affidavit at paragraphs 44 through to 60 the very many occasions that the mother has failed to comply with the orders I made on an interim basis.
The father gives evidence that the telephone interactions between the children and he has become increasingly difficult. His evidence is that the children are becoming more reserved during the telephone conversations with [Y] being the most reluctant to engage openly on the telephone.
Under cross-examination the father gave evidence that he intended residing with his partner Ms N in a four-bedroom home with her three children aged 16, 14 and 10.
The father said that in the short term he would spend overnight time with the children at his mother and father’s farm, a place the children are comfortable with and then ultimately in the accommodation he will share with his partner.
His evidence is that he could collect the children from after school on Friday and that his mother could return the children to school on Monday morning.
The father conceded under cross-examination that in circumstances where he initially told the children it was okay if they did not wish to see him so as to avoid any further discomfort to them, the children may have been empowered to believe that they can choose whether they wish to spend time with him or not.
The father conceded that the mother had raised as an issue that one of Ms N's children had displayed sexualised behaviour to [X] and [Y]. The father said that he spoke to his partner about that and said that the situation was under control.
The mother raised the issue that the father had grabbed [Y] by the neck and said he would rip [Y]'s ears off.
The father was cross-examined about that incident and gave evidence that he and [Y] enjoy roughhouse play and it was all said as a joke. The video at Exhibit 4 depicts the father grabbing the child [Y] by the front of the shirt in a playful manner. It is clear that [Y] is laughing with his father at the time.
After hearing the father's evidence I was satisfied that he was not a violent or aggressive person to his children.
Overall after hearing the father give evidence under cross-examination, I found him to be an honest historian who was doing the best he possibly could in difficult circumstances to spend time with his children and maintain a meaningful relationship with them.

Ms N

Ms N was cross-examined about the incident involving her son. Her evidence was that her son had been playing an Xbox game in the presence of the two children subject to these proceedings. It was her evidence that there was sexualised behaviour depicted on the Xbox game.
Ms N said that immediately upon being notified by the father of the fact that the two subject children had been exposed to that sexualised behaviour, she removed the Xbox game from her son and banned him from playing it.
Her evidence continued that she has heard the children say to their father that they are not allowed to come as their mother will not let them because they have too many chores to do.
Ms N also said that she has heard the children tell the father that they would spend time with him on a Sunday however they have never come.

The mother

The mother gave evidence that the child [Z] had suffered from anxiety for quite some time and was being treated by Dr K regarding her anxiety issues.
It is the mother’s evidence that the child finds it difficult to talk to a psychologist.
The mother says that prior to separation, [Z] had experienced acts of discipline involving being hit with a belt and that [Z] has made it very clear that she will spend no time with her father. The mother confirms that [Z] has spent no time with her father since separation.
It is the mother’s evidence that immediately upon the children being required to spend two days with their father they informed her that the father told them they did not have to attend.
Her evidence is rather than confirming this with the father she simply accepted her 10-year-old and eight-year-old's word and thereafter worked in the farm until 5:30pm that day.
Her evidence is that at 5:30pm on 8 January she received a telephone call from the father wherein the father told her that he had been waiting to spend time with the children. Her evidence is she told the father she was complying with what the children had told her.
Her evidence is that on the second occasion the children were to spend the Sunday with their father they again told her that the father said they did not have to come. Once again she took the children at their word and did not take the children to changeover.
The mother's evidence is that on 4 February, the third occasion the children were to spend time with their father, she had family visiting.
Her evidence is that the father agreed to change weekends with her. Accordingly the children spent time with the father on Saturday, 11 February and once again, according to the mother, the children told her that they did not have to go on the Sunday because their father had said it was okay. Once again the mother says she took the children at their word.
It is the mother’s evidence that on Sunday, 12 March 2017, some three months after the Sunday time was to commence, she attended changeover on a Sunday with the children and the children initially refused to get out of the car.
The mother gave evidence that she tells the children they should get out of the car to spend time with their father.
It is the mother’s evidence that [X] has said to her: “Dad let [Z] make her mind up about going to see him when she was my age, so why can't [Y] and I do the same?”
It is the mother’s evidence that the children are “prepared” to attend with their father on a Saturday.
It is the mother’s evidence that the father is adding to the difficult situation at changeovers by not getting out of his vehicle or alternatively not going to her vehicle to entice the children out of her car.
When the mother was cross-examined she conceded that she was very unhappy when the father left because he was having an affair.
The mother said under cross-examination that after she refused to allow him to enter the former matrimonial cottage the children did not go with him to spend time because he did not ask. The mother conceded she also did not offer.
The mother conceded that the children are missing out because of the breakdown in communication between the parents and that they want to see their father.
The mother conceded that the paternal grandparents do not pose a risk nor have they ever done anything to hurt the children.
The mother changed her evidence as to whether the children asked if the paternal grandparents could go to Grandparent’s Day, initially saying they did not ask and then saying when I asked the children they said no. I formed the view that the mother was making up her evidence on the run.
The mother conceded that the children wanted to spend time with their father on the weekends initially and that she did not agree to weekends. When asked why she did not agree she said it was because the children's point of view was that they did not want to go because they saw how the father treated [Z].

After hearing that evidence I formed the view that the mother did not fulfil her parental role because she does not value the father as being an important person in the children's lives.
When cross-examined as to why she did not offer make up time or alternate Saturdays or additional Saturdays, the mother's evidence was she did not do it because the father has not done anything about it. When pressed in relation to that evidence and having pointed out to her the many requests through solicitors for compliance with the orders and make up time, the mother scoffed and said:
“Yes, that's through the lawyer not to me.”
When I suggested to the mother that her ability to encourage and facilitate the relationship between the children and the father was insufficient or lacking she replied:
“No it is not. The father doesn't do anything to assist.”
The mother said that she would comply with orders of the court subsequent to the hearing. I have my doubts as to whether she will or not but I also have no doubt that the father will bring a contravention application before me in the event the mother does not comply with the orders I make.
The mother conceded under cross-examination that sometimes she brings [Z] along to changeover and that [Z] hides in the car. The mother could not see how that situation could be awkward for the other two children.
The mother acknowledged that the children are happy to spend time with the father and said it was good for them.
The mother acknowledged that the father could pick the children up from school on a Friday, noting that she preferred it be a Saturday, and that the father could return the children to school on Monday.
The mother further acknowledged that [Z] will be attending a different school and so therefore will not be present at changeovers and agreed that she should not be present at the school on a Friday or Monday at the time of changeover.

Child Inclusive Memorandum

The memorandum dated 4 October 2016 provided an insight into [X] and [Y]'s relationship with their father.
The memorandum clearly shows that the children want to spend time with their father and that there are no issues with regards to the father but for some discipline issues.
The main complaint of the children was that the father did not do very much with them when they spent time with him.
The Child Inclusive Memorandum dated 27 January 2017 provides evidence that the children had been spending time on Saturdays without issue. The memorandum confirms that when time was to commence on the alternate Sundays the children did not attend.
The memorandum provides evidence that the mother has told the children that she does not want them to go to their father’s on Sunday.
The subsequent memorandum reveals that the mother believed the children were at risk of physical harm with the father. The memorandum dated 4 October 2016 reveals that both parties agreed that there were no safety risks or other risks in either household.
The memorandum provides evidence that the mother told the Family Consultant:
“If Judge Middleton orders them to go I am not forcing those children to go if they don't feel safe. [Y] is scared of him.”
The mother denied saying that under cross-examination. I believe the mother told the Family Consultant precisely what the Family Consultant quoted.
The memorandum provides an insight into the children in that the children both told the Family Consultant that their mother thought their father was “really really mean.” The memorandum also provides evidence that the children echo the complaints made by the mother.

Mr P – Family Consultant

Mr P prepared a report dated 25 May 2017.
It was the Family Consultant's view that the mother had in all likelihood inappropriately empowered [X] and [Y] with regards to their decision-making about spending time with their father.[1]
[1] Paragraph 16 of the Family Report.
Mr P gives evidence that the mother informed him that she had informed all three children following the father leaving the family home that he had “met someone online.”[2]
[2] Paragraph 45 of the Family Report.
The mother acknowledged that she had denigrated the father to the subject children.[3]
[3] Paragraph 49 of the Family Report.
It was also the view of the Family Consultant that the mother “did not demonstrate any insight into how damaging her denigration of the father has been for the children's relationship with the father.”[4]
[4] Paragraph 55 of the Family Report.
Both children were interviewed and both children made complaints about the father.
Having regard to the fact that I formed the view that the children have been exposed to negative comments in the mother's house and much discussion about the father's faults I take very little notice of what the children say are failings in the father.
At paragraph 88 of the Family Report, Mr P provides evidence of his observations of the children and the father. His observations are that the children were relaxed and happy to see their father and he engaged both children in play. It was his view that the father appropriated his time capably between both children and remained warm in his interactions with both children throughout the entire observation.
It was the Family Consultant's view that both parents had influenced the current situation. However it was evident to the Family Consultant, through the mother's own admissions, that she had denigrated the father to the children and given their strong attachment to her that it was likely that this has had an ongoing implication for the children's view of the father.
Under cross-examination and after being asked whether the children's relationship with their father could be improved if they were forced to spend time with the father, the Family Consultant said “yes.”

The orders sought

The father set out the orders that he sought in his case outline. The father seeks orders for the children to spend each alternate weekend with him from 5.00pm Friday until 5.00pm Sunday and for half of all school holiday periods.
The father also seeks telephone time and special occasion times and other ancillary orders as outlined in his case outline.
The mother sets out the orders she seeks in her Response filed 21 September 2016.
She seeks an order that the children live with her and spend time with the father as follows:
(a)With regard to [Z] and [X], at such times as requested by them and;
(b)With regard to [Y] each alternate Sunday from 9.00am to 4.0pm.
The mother seeks further ancillary orders as set out in the Response.

The law

Informed by the objects and principles contained within section 60B of the Family Law Act and having regard to the children's best interests as my paramount concern, I must make orders that are in the best interests of the children after considering the relevant matters contained within section 60CC of the Act.
Both parents seek an order for equal shared parental responsibility for the children. Accordingly I must consider the provisions of section 61DA.
In the event that I make an order for equal shared parental responsibility the provisions of section 65DAA are triggered and accordingly I must consider and make determinations with respect to both matters contained within section 65DAA.

Section 60CC matters

The evidence satisfies me that both [X] and [Y] will benefit from having a meaningful relationship with both of their parents. Neither parent seeks an order in relation to [Z] and having regard to her high levels of anxiety that is appropriate in my view.
It is incumbent upon both parents to do all things that they reasonably can to encourage the relationship between the children and their father.
For the mother this means that she must take charge and inform the children that it is in their best interests to spend time with their father in accordance with the orders that I have made. She must do all things to encourage the children to spend that time.
For the father this means that he must focus on the children when they spend time with him. It is not sufficiently appropriate for him to simply have the children spend time at his home. He must engage the children meaningfully. The evidence establishes as a fact that the father has been attempting to engage the children meaningfully since this has been brought to his attention.
The mother gave some evidence that she believed the children were at risk of harm in the father's care. The evidence does not satisfy me that the children are at risk of harm in the father's care.
Other than simply repeating what appears to be the mother's sentiments neither of the children displayed any signs of discomfort or fear during their observations with the Family Consultant. Both children indicated that they wish to spend time with their father.

Additional considerations

Although the children expressed some concerns regarding their time with the father, I was satisfied on the evidence that their views had been influenced by the mother. In those circumstances I do not give those views much weight.
The children were clear to state that they wish to spend time with their father despite what appears to be exposure to his denigration and to the mother’s views about the father. In those circumstances weight should be given to the children's views regarding spending time with their father.
The Family Consultant provides evidence that the children are primarily attached to the mother and that they have a secure, loving relationship with her. Furthermore the children have a good relationship with the maternal grandparents.
The Family Consultant's evidence satisfies me that the children have a loving secure attachment to their father. The evidence satisfies me that the children are comfortable in his care and relate well to him.
In relation to the paternal grandparents the evidence satisfies me that the children like the paternal grandparents but have had limited exposure to them. It is clear though that [Y] enjoys time on the paternal grandparent’s farm as he does on the maternal grandparent’s farm.
The mother has taken every opportunity to participate in making decisions, spend time with and communicate with the children.
The father’s ability to be involved with the children including decision-making has been limited due to the circumstances that have arisen post-separation.
There is no evidence before me with regards to the parent’s fulfilling or otherwise not fulfilling their obligation to maintain the child. In those circumstances I make no findings.
The father proposes that the children spend time with him each alternate weekend. The mother wants [X] to be able to decide whether she spends time with the father and wants [Y] to spend time with his father one day per fortnight.
The children currently spend one day per fortnight with their father. The children are supposed to spend two days per fortnight with their father however each Sunday that they are required to attend with their father they are placed in a very difficult position at changeover and as such are enduring that situation to their detriment.
The children are very aware that their parents do not get along. In those circumstances the parents should not be present together at changeover.
Whilst the father proposes that weekend time cease at 5.00pm on a Sunday I am of the view that if I were to make an order for weekend time that such time should finish by returning the children to school. In doing so the children will not be exposed to the very difficult circumstances at changeover that they are now exposed to.
The evidence satisfies me that the children will benefit from a relationship with their father and that being encouraged to attend to spend time with their father will improve their relationship with the father.
Accordingly I am satisfied that if I were to make orders consistent with the father's proposal this would bring about an advantageous change for the children that would assist in their development in the long-term.
The parents live approximately one hour apart. In those circumstances there is no practical difficulty and expense that will substantially affect the children's right to maintain personal relationships and direct contact with both parents on a regular basis.
The capacity of the mother to provide for the needs of the children including their emotional and intellectual needs must come into question.
On the evidence I am satisfied that she has been exposing the children to adult themes and issues and has been denigrating the children with regards to their father.
In those circumstances I am satisfied that she lacks insight into the emotional needs of the children and as a result she fails to have the capacity to provide for that need if she continues to denigrate the father in the presence of the children.
Similarly the father had displayed a lack of capacity to provide for the needs of the children. I am satisfied on the evidence that he lacks insight into the need to be focused on the children when they are spending time with him in the past.
I am also satisfied on the evidence that he has taken on board the suggestions of both Family Consultant's and that his level of insight in regards to this has improved.
Provided the mother discontinues her denigration of the father and sharing of her views about the father with the children, I am satisfied that she otherwise has the capacity to meet the needs of the children moving forward.
Similarly provided the father continues to engage with the children and be focused on them moving forward, I am satisfied that he has the requisite capacity to provide for the needs of the children including their emotional and intellectual needs.
Nothing turns in relation to subparagraphs (g), (h), (i), (j) and (k) of the Act.
It was submitted by counsel for the mother that it is incumbent upon me to make orders that are least likely to lead to the institution of further proceedings in relation to the children. The thrust of that submission, as I understand it, was that if I make orders for the children to spend anything other than one day with their father it is likely the children will refuse to go and therefore likely that the father would commence contravention proceedings.
I have made it clear that I believe the mother has been influencing the children and empowering them to make decisions regarding their time with the father. I have made it clear that it is incumbent upon the mother to comply with the orders that I make. These children are too young to be making decisions. The mother needs to realise this and needs to step up and parent these children.
The evidence satisfies me that the mother has the capacity to influence the children. Accordingly I am satisfied that the mother has the capacity to properly encourage the children to spend time with the father in accordance with my orders.
In those circumstances I am satisfied that the orders I have made are least likely to lead to further proceedings.

Section 61DA

Section 61DA(1) provides a presumption that it is in the best interests of children for the children's parents to have equal shared parental responsibility for them.
There is no evidence of family violence or abuse such as to cause the presumption to not be applied.
I am satisfied on the evidence that it is in the best interests of these children for an order for equal shared parental responsibility to be made.
The parents have some difficulty in communicating. The parents have shown however that where they fall into conflict around decisions their relationship is such that they will avoid conflict by putting their own views secondary to the needs of the children. Historically, in the main, it has been the father who has made the concessions. I am satisfied that he will continue to make those concessions rather than to avoid conflict in the future.

S 65DAA

As I intend making an order for equal shared parental responsibility, I must give consideration and make findings in relation to both of the matters contained in section 65DAA.
The evidence establishes that the parent’s relationship is dysfunctional. It establishes that there is rigidity between the parents.
Whilst the parents can communicate on some level that level of communication is insufficient to allow an equal time order to work.
Furthermore the parents live approximately one hour apart and in those circumstances an equal time order would be very difficult to work effectively.
In short I formed the view that the parents lacked the flexibility and sufficient level of co-parenting relationship that would be required in order to make an equal time order both in the best interests and reasonably practicable. For those reasons an order for equal time will not be made.
As to whether an order for substantial and significant time as defined within section 65DAA(3) should be made, for similar reasons as to those expressed previously such an order is contraindicated.
The orders I have made will, in my view, provide these children with the benefit of having a meaningful relationship with both of their parents without exposing them to unnecessary ongoing conflict between their parents. An order for substantial and significant time has the possibility of placing these parents in direct contact more often than is indicated as appropriate in this matter.

Other matters

The father seeks limited holiday time. The father seeks holiday time for one half of the end of school year holiday period; that is December through January.
In circumstances where these children have had a difficult post-separation relationship with their father I am of the view that the order sought by the father in relation to holiday time is appropriate.
The holiday time that the father seeks will allow the children to spend one block period of time with their father during their holidays at a time when the father does not need to work. The children have expressed a view that they want their father to focus on them. This holiday period will allow the children to enjoy their time with the father whilst he focuses on them. In my view the time sought by the father is child focused and in their best interests.
The father seeks each alternate weekend time commencing from 5.00pm Friday until 5.00pm Sunday.
Upon being cross-examined the father indicated that he could pick up the children from their school on a Friday evening and arrange for the children to be returned to their school on a Monday morning.
The evidence indicates that the children experience a very difficult time during changeovers when both parents are present.
In my view it is appropriate for the parents not to be in contact with each other at changeover.
In those circumstances I am satisfied that the children should spend time with their father each alternate weekend from after school Friday until return of school Monday morning.
The father indicated that he would ensure that the children's uniforms are returned in a clean and tidy state. I have no doubt that this will occur.
The father seeks telephone communication with the children and I am satisfied on the evidence that this is in the children's best interests and accordingly I will make such an order.
I am satisfied that the orders that the father seeks with regards to Christmas time and Easter time are orders that are in the best interests of the children. They are orders that can be facilitated on special occasions and will not overly expose the children to conflict at changeover.
The father seeks orders to be able to spend time with the children on their birthdays and on the parent’s birthdays.
I am not satisfied that order is an appropriate order to make. The fewer times these parents are in direct contact with each other at changeover the better it will be the children.
I am of the view that the children can experience birthday celebrations with their father and mother when they would otherwise ordinarily be spending time in accordance with the orders I have made. For those reasons I will not make an order for birthday time.
Changeover should always occur at the school each alternate weekend. The mother should not be present at the children's school at the commencement of time and at the conclusion of time. This will avoid any conflict for the children being in the presence of both parents at the same time.

In circumstances where some changeovers will be required outside of school hours, I am satisfied that the changeover location should be on the western side of the highway near (location omitted). Accordingly I will make that order for changeover.
I am satisfied that it is in the children’s best interests for both parents to be able to obtain information regarding their school and extracurricular activities. It is also in the children's best interests for both parents to obtain information regarding their health and any accidents that they are involved in. Accordingly I will make orders to facilitate the sharing of that information.
Having regard to the circumstances of this matter the evidence satisfies me that it is appropriate to make an order that neither parent denigrate the other in the presence of the children or allow the children to be present or in the hearing of any third party denigrating the other parent or the other parent’s family and I will make an order accordingly.
For these reasons I am satisfied the orders I have made are in the best interests of the children.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 4 May 2018

[2018] FCCA 795

4 May 2018

Key Legal Topics

Areas of Law

Family Law