Childers and Childers (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILDERS & CHILDERS (No.2)

[2016] FCCA 1562

Catchwords:
FAMILY LAW – Children – Parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – one child under the age of 18 years – child now aged 15 years – changeover – need to reduce the number of changeovers – where parties have two other adult children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65H

Cases cited:

Childers & Childers [2014] FCCA 2905

In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Applicant:

MR CHILDERS

Respondent:

MS CHILDERS

File Number:

PAC 2831 of 2012

Judgment of:

Judge Scarlett

Hearing dates:

10-11 June, 4 November 2015

Date of Last Submission:

26 November 2015

Delivered at:

Sydney

Delivered on:

17 June 2016

REPRESENTATION

Solicitor for the Applicant:

Ms Lazarus (10-11 June only); Applicant in person on 4 November 2015

Solicitors for the Applicant:

Lazarus & Associates (10-11 June only)

Counsel for the Respondent:

Mr Ahmad

Solicitors for the Respondent:	Integrated Law Group
Counsel for the Independent Children's Lawyer:	Mr Guterres
Solicitors for the Independent Children's Lawyer:	KDB Holmes Solicitors

ORDERS

All previous Parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X (hereinafter after referred to as “X”) born (omitted) 2001.
The Father and Mother are each to have parental responsibility for the day to day decisions concerning the child X whilst he is living or spending time with them in accordance with these Orders.
X is to live with each party as follows:
(a)With the Mother from immediately after school on the Friday of the first week of each fortnight until the commencement of school on the following Friday;
(b)With the Father from immediately after school on the Friday of the second week of the fortnight until the commencement of school on the following Friday; and
(c)The above arrangements are to continue during each of the shorter New South Wales school holiday periods; and
(d)During the December/January school holiday period with the Father for the first half of school holiday period excluding Christmas Eve, Christmas Day and Boxing Day which are the subject of Orders (5) and (6) following, and with the Mother for the second half of the school holiday period.
Notwithstanding the provisions of the immediately preceding Orders X will otherwise spend time with the Father as follows:
(a)In 2016 and all even numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;
(b)In 2017 and all odd numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;
(c)On the Father’s birthday being (omitted) in each year from 9:00 am to 5:00 pm if the day falls on a weekend or from immediately after school until the commencement of school the following morning if the day falls on a week day when the child is not otherwise in the care of the Father;
(d)If Father’s Day falls on a day when the child is otherwise in the care of the Mother then from immediately after school on the Friday before Father’s Day until the commencement of school on the following Monday; and
(e)At such other times if any as the parties shall agree.
Notwithstanding the provisions of Order (4) above, X will spend time with the Mother as follows:
(a)In 2016 and all even numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;
(b)In 2017 and all odd numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;
(c)On the Mother’s birthday being (omitted) in each year from 9:00 am to 5:00 pm if the day falls on a weekend or from immediately after school until the commencement of school the following morning if the day falls on a week day when the child is not otherwise in the care of the Father;
(d)If Mother’s Day falls on a weekend when X is otherwise in the care of the Father then from immediately after school on the Friday before Mother’s Day until the commencement of school on the following Monday; and
(e)At such other times if any as the parties shall agree.
In the event of a significant event such as a wedding, engagement, christening or funeral, the parties must inform each other of their wishes to spend time with X as soon as is reasonably practicable and make such arrangements as are reasonable in the circumstances.
Changeover between the parties where the child is to go from the care of one party to the care of the other will take place at X’s school if on a school day and otherwise at the home of the child’s maternal grandparents.
Notwithstanding the provisions of Order (8) above if X is spending time with his paternal grandparents in Queensland during the school holidays when the Mother is also holidaying in Queensland during that time, then changeover between the parties will take place at the McDonald’s Family Restaurant at (omitted) in the State of Queensland.
The parties must keep each other informed of their current residential address, telephone numbers and email addresses and notify each other of any changes within seven (7) days of such change occurring.
In the event of a medical or other emergency the party who has the care of the child at the time must immediately notify the other party by SMS.
In the event that X suffers a serious illness or injury the party who has the care of the child at the time must inform other party of the relevant details and provide the other party with details of the hospital where the child is being treated and the names and addresses of any treating medical practitioners as soon as is reasonably practicable.
The parties are restrained by injunction from abusing, criticising or denigrating the other party in the presence or hearing of the child.
Each party must provide the child with a school uniform, sporting uniform and other necessary clothing for the child whilst he is in their care in accordance with these Orders and must ensure that the child is returned to the care of the other party with the appropriate school and sporting uniforms.
So far as is reasonably possible each party must ensure that X receives medical treatment from the (omitted) Medical Centre except in cases of emergency.
Each party must ensure that X attends school or organised sporting and extra-curricular activities in which the child is participating including any training or matches at the date of these orders or as otherwise agreed.
The parties are each restrained from attending any extra-curricular or sporting activities occurring at the time that X is living with or spending time with the other party in accordance with these Orders unless by prior arrangement with the other party.
In the event that X is to participate in a sporting event at the weekend and the parent who otherwise has the care of the child that weekend is unable or unwilling to facilitate the child’s attendance at that event, then the other parent is at liberty to spend time with X on the day for the purposes of taking the child to and from the sporting event and for the purposes of this Order the time will commence at a time that would allow sufficient time to enable the child to be taken to the event and to conclude no later than 5.00 pm on that day or at the conclusion of the event if the event concludes after 5.00 pm, and changeover is to occur at (omitted) Railway Station or as otherwise agreed between that parent and the child.
No later than six (6) months from the date of these Orders each party is to pay to Legal Aid New South Wales the costs of the Independent Children’s Lawyer in the sum of $6,116.00 each.

IT IS NOTED that publication of this judgment under the pseudonym Childers & Childers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 2831 of 2012

MR CHILDERS

Applicant

And

MS CHILDERS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for final parenting Orders in relation to the parties’ youngest child, their son X (known as “X”), who was born on (omitted) 2001. X is now aged 15 Years.
The parties have two other children, both of whom are adults. Their daughter Z was born on (omitted) 1996, so she is now 20 years old. The parties’ other son, Y, was born on (omitted) 1998. He is now 18 years of age. There was an interim Order made on 12^th December 2014, providing that until further order the parties were to have equal shared parental responsibility for Y, but this order is no longer in force as a result of his attaining the age of 18, under the provisions of s.65H of the Family Law Act 1975 (Cth).

Orders Sought

The Father seeks the Orders that are set out in his Minute of Proposed Orders. Essentially, he seeks orders that:
a)the parties are to have equal shared parental responsibility for the children Y and X and sole parental responsibility for decisions concerning the care of the children when the children are living with them or spending time with them;
b)Arrangements for X during the school term:
i)with the Mother each Monday, Tuesday and Wednesday of the first week of the fortnight and the Tuesday, Wednesday, Saturday and Sunday of the second week;
ii)with the Father each Thursday, Friday, Saturday and Sunday of the first week of the fortnight and the Monday, Thursday and Friday of the second week;
c)with the Mother for the first half of the Autumn, Winter and Spring school holidays in odd numbered years;
d)with the Father for the first half of those holidays in even numbered years;
e)with the Mother for the first and third fortnights of the Christmas/January school holidays in odd numbered years; and
f)with the Father for the first and third fortnights of the Christmas/January school holidays in even numbered years;
g)separate arrangements for Christmas Eve, Christmas Day, Boxing Day and Mother’s Day;
h)changeovers either at X’s school or at McDonald’s Family Restaurant at (omitted) or (omitted); and
i)Other ancillary orders.
The Mother seeks the Orders that are set out in her Minute of Orders filed in Court on 4^th November 2015. The orders that she seeks would provide that:
a)The parties are to have equal shared parental responsibility for Y and X and sole responsibility for day to day decisions concerning the care of the children when the children are living with them or spending time with them;
b)Y will live with the Father but spend time with the Mother as Y and the Mother agree;
c)X is to live with each parent in a fortnightly cycle:
i)With the Mother from immediately after school or 3:00pm on a non-school day on Friday of the first week of the fortnight until the commencement of school the following Friday or 9:00am on a non-school day;
ii)With the Father from immediately after school or 3:00pm on a non-school day on Friday of the second week of the fortnight until the commencement of school the following Friday or 9:00am on a non-school day;
iii)For the Easter and Spring school holidays in the same fortnightly cycle;
iv)For the Winter and Summer school holidays, with the Father for the first half and with the Mother for the second half; and
v)Separate arrangements for Christmas Eve, Christmas Day and Boxing Day;
vi)Changeovers are to be either at X’s school if on a school day or at the home of the child’s maternal grandparents on other occasions; and
vii)Other ancillary orders.
The Independent Children’s Lawyer also proposed a set of parenting orders, as follows:
a)The parties are to have equal shared parental responsibility for the child X and sole responsibility for decisions concerning X when he is living or spending time with them;
b)X is to live with each parent during the school term and each of the shorter New South Wales school holidays as follows:
i)with the Mother from immediately after school on Friday of the first week of the fortnight until the commencement of school the following Friday;
ii)with the Father from immediately after school on the Friday of the second week of the fortnight until the commencement of school the following Friday;
c)During the December/January school holiday period the child would live with the Father from the first half of the holiday period excluding Christmas Eve, Christmas Day and Boxing Day, which are to be treated separately;
d)Changeovers are to take place at X’s school if on a school day and otherwise at the home of the child’s maternal grandparents; and
e)Other ancillary orders.

Background

The background facts are set out in the earlier interim decision of 12^th December 2014 (Childers & Childers[1]).
[1] [2014] FCCA 2905
The Father was born on (omitted) 1968 and the Mother was born on (omitted) 1970.
The parties commenced their relationship in 1991 and were married on (omitted) 1994. They separated on 9^th June 2011 and were divorced on 20^th August 2012 by order of the Parramatta Registry of this Court.
There are three children of the marriage, two of whom are now adults:
a)Z was born on (omitted) 1996; she is now 20 years of age;
b)Y was born on (omitted) 1998; he is now 18 years of age; and
c)X (the subject child) was born on (omitted) 2001 and is now aged 15 years.
On 12^th December 2014, after an interim hearing, I handed down some interim Parenting Orders (Childers & Childers[2]). Those Orders provide that, until further Order:
[2] [2014] FCCA 2905
(1)    All earlier parenting orders are discharged.
(2)The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children Y born (omitted) 1998 and X born (omitted) 2001.
(3)The father and the mother will each have responsibility for day to day decisions concerning the care of the children when the children are living with them or spending time with them.
(4)The child X (otherwise known as “X”) is to live with each of the parties as follows:
(a)with the mother from immediately after school on the Friday of the first week of the fortnight during the school term until the commencement of school the following Friday; and
(b)with the father from immediately after school on the Friday the second week of the fortnight during the school term until the commencement of school the following Friday;
(c)for the Autumn, Winter and Spring school holidays in each year:
(i)     with the mother for the first week of the fortnight during the school holidays from 3:00 pm on the Friday until 3:00 pm the following Friday; and
(ii)    with the father for the second week of the fortnight from 3:00 pm on the Friday until 3:00 pm the following Friday; and
(d)During the December/January school holiday period with the father for the first half of the holiday period excluding Christmas Eve, Christmas Day and Boxing Day which days are the subject of Orders (6)(a) and (b) following and with the mother for the second half of the school holidays period.
There were specific Orders covering Christmas Eve, Christmas Day and Boxing Day in each year, the Father’s birthday being (omitted) 2015, Father’s Day, Mother’s Day and the Mother’s birthday on (omitted) 2015.
Changeovers were to take place at the child’s school or the home of the child’s maternal grandparents, where appropriate, although provision was made for changeovers to take place at the McDonald’s Family Restaurant at (omitted) in Queensland when the child was spending time with his paternal grandparents and the Mother was also holidaying in Queensland.

Evidence and Submissions

The Father and the Mother gave evidence and were cross-examined. The Family Consultant, Ms K, was cross-examined by Counsel for the Independent Children’s Lawyer; Mr Guterres, by Counsel for the Mother, Mr Ahmad, very briefly and by the Applicant’s solicitor, Ms Lazarus.
It was brought to the attention of Ms K that the Mother sought an order for a week about arrangement with the children, and that the parental communication had improved since the previous report. The Mother considered that as a result of the new regime, her relationship with the elder boy, Y, had improved.
It was put to Ms K that at recent parent teacher interviews, the teachers had expressed some concern about the child, X’s, progress at school. The Family Consultant was not of the view that there were any serious concerns in that regard.

Submissions

Each party presented written submissions. Each party presented a minute of proposed orders which have been set out earlier in the decision.
The Father submitted that the child, X, known as X, had lived with each parent on an equal time basis since January 2013. There were no issues in dispute relating to the equal time arrangement, family violence or the child’s welfare. Mr Childers submitted that the issues for the parties were the configuration of the equal time arrangement, arrangements for school holidays and for X’s ongoing enjoyment of extra-curricular activities.
Mr Childers referred to the interim orders made by this Court on 12^th December 2014. He submitted that X, despite objecting to the orders, had adhered to them, and both parties had adhered to those orders. A further family report had been issued on 1^st June 2015, prepared by Ms K, making a recommendation to reinstate the voluntary arrangements that the children had implemented from January 2013.
He submitted that, under cross-examination, Ms K confirmed that in light of all of the evidence from both parties and documents produced on subpoena, she still upheld her recommendations as being in the child’s best interests.
Mr Childers referred to the matters in section 60CC of the Family LawAct 1975, and in respect of the primary considerations he submitted that neither parent considers that the child, X, was at risk of harm while living with the other parent, despite identified physical violence between the Respondent Mother and the older siblings.
He submitted that it was implicit that both parties consider that X has a meaningful relationship with both parents. As far as additional considerations were concerned, Mr Childers submitted that X said that the current week about arrangement could be problematic; he expressed his views.
At the time, X was 14 years and five months old and was clearly able to express his views. Mr Childers noted the comment in the Family Report of 1^st June 2015 where, at paragraph 65, the family reporter said:
X is of an age at which he is most likely to adhere to an arrangement if he feels he has been heard and listened to in terms of his wishes.
The Father further submitted that X had a positive relationship with both parents and did not like to be away from either of them for an extended period of time. Of critical importance was his ongoing relationship with his two older siblings. The older brother, Y, plays a pivotal role in X’s home and sporting activities and the two boys enjoy a tremendous bond which is strained by separation with the week about arrangements.
The Father and Mother have had separate accounts with (omitted) College in respect of the children’s fees and costs and Mr Childers submitted that he had provided equally for the cost of uniforms, books and resources for X since separation.
He complained, however, that on several occasions when X required significant medical attention while in the care of the Mother, the details of the child’s condition or hospital and doctor had not been provided to him.

He noted that as set out in the Family Report, the school counsellor at (omitted) College had recommended to the Mother that X should spend more time living with his brother, Y and the Applicant Father but the Mother did not wish to take this advice.
Mr Childers referred to evidence that the Mother’s ongoing issues of anxiety had ceased by 2014, and she no longer required the therapeutic support of the clinical psychologist. The Mother gave evidence that she felt that her time of ongoing anxiety could have influenced the way she parented in the years that she was undergoing therapeutic support.
There was, however, no evidence provided by expert opinion that connected the Mother’s lower level of anxiety with any changes effected by the interim orders. Mr Childers noted that the Family Consultant, Ms K, noted that since the last Family Report there appeared to have been an improvement albeit small in the parental communication which in his submission coincided with the timeframe of the Mother’s lowering of anxiety prior to the interim orders having been made on 12^th December 2014.
He submitted that there was no evidence provided to indicate in any way that implementing the recommendations of the Family Report of 1^st June 2015 would have any negative impact on X’s education and achievements or would have any negative impact on the child’s extra-curricular activities or sport.
Mr Childers submitted that X has clearly expressed that he found his personal management of schoolwork and study easier and had better continuity of support under the previous arrangements which were recommended by the family consultant.
The Family Consultant noted in the Family Report of 1^st June 2015, at paragraphs 44 and 45, that X preferred the arrangement that was in place prior to the week about arrangement, as he found it more difficult to organise himself and gave homework as an example.
The Father noted that the Mother, in his view, continued to make allegations that he was violent and possessed an illegal firearm. All allegations of violence and possession of weapons and the like were investigated by the New South Wales Police and no action was taken.
He submitted that there are no matters of domestic violence to consider in relation to himself. In short, the Father sought to reinstate the arrangements for equal time with each parent that had been implemented voluntarily by the children and were maintained by X prior to the interim orders taking place.
He noted that it was the direct recommendation of the Family Consultant, Ms K, in her report, 1^st June 2015, to implement the arrangements that he sought. Under cross-examination, Ms K maintained her view.
The Mother submitted through her Counsel, Mr Ahmad, that the Father’s proposal for a division of X’s time between the parents could be described as a five/two system where the child would spend five days with the Father, two days with Mother, two days with the Father and five days with the Mother.
The disadvantage of that he submitted, would be that it would require X to move between (omitted) and (omitted) on a Tuesday and then back to (omitted) on the Thursday to go back to (omitted) on the Sunday.
In the second week of the fortnight, it would require the child to move from (omitted) to (omitted) on the Thursday until the cycle repeated in the first week of the next fortnight. He submitted that his client advocated a week about proposal whereby changeovers occur at school once a week on Friday which effectively proposed the interim orders that have been in place from December 2014 becoming final orders.
As to the issues in the case, Mr Ahmad submitted that both parties advocated for shared equal parental responsibility for the child although the mother contended that there is an intractable conflict between the parties by which effective communication is stifled. The debate assumes less significance given X’s age.
Over the course of the proceedings, the issue in dispute had shifted from the quantity of time that the child should spend with each parent to the manner in which that time was shared. The level of cooperation between parents needed to successfully implement an equal time regime with constant changeovers is considerably deeper than that required for the successful implementation of equal shared parental responsibility.
The Father’s proposed arrangement demands:
(a) frequent interaction and,
(b) cooperation and consensus on a host of both important and menial day to day issues. He submitted that this level of cooperation is not presently achievable.
Mr Ahmad referred the Court to the decision of her Honour Brown J in Mazorski & Albright[3] as the twin pillars, quoting from her Honour’s judgment that the first of the primary considerations is the importance of the children having a meaningful relationship with both parents. The second one is the need to protect children from physical and psychological harm.
[3] (2007) 37 Fam LR 518; [2007] FamCA 520
The best interests of the child are, of course, the paramount consideration, but section 60CC assists the Court in determining what is, or what matters are in the child’s best interest. Mr Ahmad submitted that the Court may resolve the competing proposals having regard to, on the one hand:
(a)    the ability of the parties to co-parent effectively in a regime that promotes more frequent changeovers;
(b)    the risk of conflict between the parents and the risk of X and the other children being drawn into that conflict;
(c)     the risk of that conflict leading to denigration of the mother, and the risk of the father marginalising the mother from the children;
(d)    the degree of supervision and parenting provided at each parent’s home; and
(e)     the likelihood of X spending time with Y at his Mother’s home.
On the other hand, the Court should consider the child’s age, the child’s asserted views and the desirability of facilitating more time with Y at the Father’s house. Mr Ahmad submitted that the Mother contended that her proposal is in the best interests of the child for the following reasons:
(a)     The Father’s proposal seeks to reintroduce a proposal that has in the past given rise to numerous conflicts between the parents;
(b)    The Mother has a real and substantial fear of the Father;
(c)     There is no reason to suggest that those risks have subsided;
(d)    Increased conflict between the parents would have a detrimental impact on his party’s ability to co-parent; and
(e)     The Mother’s evidence reveals that the Father has a track record of drawing the children into the conflict between them and that the likelihood of increased conflict will have a negative impact on X.
He submitted that the Mother’s evidence demonstrated that X’s behaviour, both domestically and academically, had improved significantly following the implementation of the interim parenting regime.
He noted that due to the conflict between the parents, in the earlier judgment the Court in its reasons made some observations at paragraphs 44 to 46 and in the Mother’s respectful submission, those observations remain in force.
He submitted that some of those concerns about the consequences of X being drawn into the conflict are set out at paragraph 62 of the updated Family Report. He noted that the Mother continued to pay amounts of child support of approximately $745.
It was asserted on behalf of the Mother, that parallel parenting has operated effectively and has a positive effect on everyone involved. This has included the Mother’s relationship with her elder son, Y, as the week about arrangement has encouraged him to spend more time with her.
The arrangements have also helped the parties’ adult daughter, Z and Y to begin restoring their relationship. The benefit of the arrangement imposed by the interim orders also has relevance to the consideration of the matters under s 60CC(3)(d), insofar as, those benefits and others not directly visited upon the children but which carry an indirect effect are at risk of being lost.
The arrangements sought by the Father has, in his submission, demonstrably failed to provide better outcomes for X in relation to his relationships with his mother and his academic results and school performance.
It was submitted that the effect of a return to the original arrangement of those areas of X’s life, would be adverse to the purposes of paragraph (d) of subsection 60CC (3). Overall, the Mother noted her relationship with and quality of time spent with all of the children had improved as a result of the court’s interim orders, and had reduced the amount of chaos and pressure resulting from constant changeovers within one week.
Consideration of the living arrangements should refer to evidence of family violence relevant to subsection 60CC (3) paragraph (j). The Mother’s evidence was that family violence takes place in the form of abusive language, intimidation and bullying.
There was evidence of communications of the Father to the Mother and of the children about the Mother that could be considered belligerent, abusive and threatening. The Mother has given evidence that the impact of the interim orders had been positive and significantly assisted her in reducing her anxiety levels.
Mr Ahmad noted that the updated family report writer recommended in her report on the basis of the view expressed that the existing regime be implemented now. The Mother resisted the recommendations on the basis that the report writer presented her recommendations in the climate of reduced conflict, flowing from what she asserted were the positive benefits of the existing interim orders.
Mr Ahmad submitted that the report writer did not give sufficient weight to:
(1)    the nature of the Mother’s fear of the father;
(2)    the historical matters and conflict that arose from the existing regime;
(3)    the Father’s asserted undermining of the Mother and denigration of her and the Father’s belief that there was no parental conflict.
The Family Report, he submitted, does not explore the content of the practical difficulties asserted by X at paragraph 45 of the report. Mr Ahmad noted the Family Report writer accepted, under cross-examination, that her recommendations were based on the stated preferences indicated by X and without regard for the risk of a protracted and serious conflict between the parents.
This conclusion was submitted on the basis of the following matters:
(a)     the Family Report writer accepted the preferences expressed could be characterised as marginal rather than forcefully held;
(b)    that she accepted that her recommendation was ground in an environment of reduced conflict;
(c)    she accepted that X’s views assumed more significance in circumstances where the family report writer assumed there was minimal conflict between the parents;
(d)    she indicated that, contrary to what would be expected of a child of X’s age forced into an undesirable arrangement, there was no evidence of rebellion or attitude or behavioural problems;
(e)     the Family Report writer conceded that if the Court were to find that the parents lacked the material ingredients for effective co-parenting, being the kind of matters necessarily required of the father’s proposal, then X’s marginal preferences for the father’s regime ought not to take primary significance.
He submitted further, that under cross-examination the Family Report writer accepted if the Court were to find that there was a significant risk of the parents’ conflict re-emerging on basis of the Father’s regime, it would have an adverse impact on X’s psychological state and, accordingly, his views ought not to take primary significance.
In those circumstances it was submitted that the Court should adopt the thoughtful and considered recommendations by Ms A, the author of the previous Family Report dated 17^th January 2014. Her recommendations, in Mr Ahmad’s submission, properly weighed up the entirety of the matters.
It was also submitted that the context in which X expressed his preference to the Family Report writer should be considered and may qualify the recommendation with the preference prompted. The arrangement recommended in the Updated Family Report was progressed on the basis that an arrangement in conflict with X’s preference would risk attempts by him to unilaterally effect an arrangement that suited his preference.
As noted, it was accepted by the writer that it was significant but there is no evidence that X had sought to alter the arrangement imposed by the interim orders. Again, the Mother accepts that X had expressed the view that would tend to support the Father’s case but submits that the context of that view in which that view is expressed should be taken into account.
Mr Ahmad referred the Court to the decision of In the Marriage of Hall[4], where the Court made some general observations about the nature and utility of family reports. In particular, there is no magic in the Family Report and the judge is not bound to accept it and there should never be any suggestion that the counsellor[5] is usurping the role of the Court or that the judge is abdicating his responsibilities.
[4] (1979) 5 Fam LR 609; FLC 90-713
[5] Now called a Family Consultant
Family Reports are meant to be and almost invariably are valuable and relevant material to assist the judge in forming his ultimate conclusion. While the counsellor’s views will normally have weight with the Court, because of the counsellor’s expertise and experience the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in Court under examination and cross-examination and make findings of fact based on evidence before the Court which might not have been available to the counsellor or family consultant.
So the Family Consultant’s assessment of the parties may often be based upon facts which the Family Consultant or counsellor has accepted but which turn out to be wrong or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of those persons.
Mr Ahmed went on to submit that the Father’s amended case outline identified the critical issue as to whether the previous routine ought to be reinstated over the present interim regime. The evidence put forward by the Mother identified plainly that the previous routine was fraught with parental conflict and negatively impacted on all of the persons involved particularly X.
The evidence revealed the Father did not have the insight or the ability to promote any of the agreements for effecting co-parenting, namely:
(a) that the Court would not be satisfied that the Father would not inspire mutual trust and confidence in the Mother’s parenting style;
(b) the Court would not be satisfied that the Father was sensitive or had taken any step to acknowledge the Mother’s particular sensitivity that the mother has of the Father’s behaviour;
(c) the Court would not be satisfied that the Father would immunise the children from conflict between the parents; and
(d) the Court would not be satisfied that the parents could reach consensus on day to day issues.
It was further submitted that the Father’s proposal did not appreciate the difficulty and undesirability of the changeover to occur at an aquatic centre, although that was no longer being sought by the Father. Mr Ahmad submitted that the Mother was in broad agreement with the conclusions of the Independent Children’s Lawyer and the Independent Children’s Lawyer’s submissions although disagreed with the characterisation that expending effort agitating outstanding issues which were relatively minor was perplexing.
He submitted that the Mother has shown much restraint in both her cross-examination and the orders which she sought. The material she relied on was adduced for the sole purpose of trying to demonstrate the real risks of the Father resorting to communication that was of a belligerent, abusive, threatening and bullying nature.
As the Independent Children’s Lawyer noted, at paragraph 73 of the written submissions that material was a potent basis for making permanent the arrangements provided for by those orders. Mr Ahmad submitted that the Mother reserved her position in respect of an application to seek costs against a party to the proceedings and submitted that it was premature to receive written submission on the question of costs in advance of the Court’s judgment and reasons. He submitted that the Mother’s case was short and efficient. Her cross-examination was limited to one and a half hours of the Father and to 15 minutes of the Family Report writer.
Supporting affidavits of the Mother from the maternal grandparents were served and not read and admitted to assist the Court in dealing with the allocated hearing time. Whilst numerous affidavits were filed, the Mother only read paragraphs that concerned poor communication, allegations of violence, bullying and intimidation. This was identified to the Court and to all the parties.
The material adduced by the mother was adduced for the sole purpose of trying to demonstrate the real risks of the Father resorting to communication that was of a belligerent, abusive, threatening and bullying nature.
The Independent Children’s Lawyer submitted that despite the seemingly intractable conflict between the parties and the seriousness of the allegations raised in the proceedings, the parties surprisingly and to their credit, reached agreement about parental responsibility and equal time. It was, however, perplexing that the parties expended such effort agitating the outstanding issues which, on any view, were of a relatively minor nature, being:
a)How equal time was to be effected between the households;
b)Whether handover should be at school or at the parties’ homes; and
c)X’s extra-curricular activities.
The Independent Children’s Lawyer sought orders in accordance with a minute of order presented to the Court. In respect of the primary considerations under subsection 60CC(2) of the Family Law Act, it was submitted that it was implicit in the agreement the parties had reached about X’s time that they both consider that X has a meaningful relationship with each of them and X derives benefit from those relationships. It was also implicit in that agreement that neither parent considers that X was at risk of harm within either household. The need to protect X from the risk of exposure to family violence was relevant, however, to the determination of where the handover should take place.
The Independent Children’s Lawyer accepted that X had expressed a view that would tend to support the Father’s case. He told the Family Consultant, Ms A, the author of the earlier report, that he was satisfied with the arrangements then in place but he told the Family Consultant, Ms K, that he wanted to revert to the previous arrangements. Ms K suggested in light of X’s age where he was likely to adhere to an arrangement if he considered he had been heard and the Family Report concluded that weight should be to X’s express views.
The Independent Children’s Lawyer did not cavil with the proposition that the Court ought to give close consideration to X’s views and weight should be placed on those views. However, his express views are not determinative. In this case there are sufficient bases upon which the Court would impose a regime different to that suggested or endorsed by X. First, X’s reasons in support of the earlier arrangement do not reflect any great opposition to the week-about regime. It was notable that X’s comments aligned with the reasons advanced by the Father. When considering the weight to be attached to X’s views, the Independent Children’s Lawyer submitted that it was important to consider not only what he had said but as Ms K accepted in her oral evidence, it was significant that he had not himself sought to alter the arrangements.

The Mother gave evidence that X had not sought to impose or even suggested a different regime. The primary basis upon which Ms K’s recommendation was made was a concern, given X’s age, he would simply unilaterally effect an arrangement in accordance with his express wishes but this has in no way eventuated. There was no evidence at all before the Court that X had rebelled against the arrangement since Ms K's Family Report.
Counsel for the Independent Children’s Lawyer submitted that the parental conflict in this matter had had a devastating effect on the relationship within the family. It had left lasting effects on the relationship between Y and the Mother on the one hand and Z and the Father on the other and the sibling relationship between Y and Z.
The material before the Court established that the parents were unable to shield the children from their own dispute. Moreover, the Independent Children’s Lawyer submitted that the evidence enabled the finding that the children had been actively drawn into the parental dispute by the Father. The Father, however, disputed that he had undermined the Mother’s relationship with the children. Mr Guterres submitted that the Father’s denial ought to be rejected by the Court to the extent that this was necessary to determine the issues in dispute. The evidence of the Father’s communications directed to the Mother and to the children betray the Father’s denial. The evidence speaks for itself and confirms the Mother’s claims in this regard.
Y and X reported the Family Consultant’s discussions they had had with the father. Both Ms A and Ms K expressed concern about the involvement of the children by the Father and considered the implication of this conduct on the relationships within the family. It was an unfortunate circumstance that X, the youngest member of the family, must continue to navigate the fractured and fractious relationships within his family. The evidence, however, supported the conclusion that X has warm and loving relationships with each of his parents. His relationship with his father is a clearly relaxed and loving one. They share many interests. There is no evidence to suggest that the Father’s relationship with X has been adversely affected by the week-about arrangement.
The child also has a positive relationship with the Mother, although perhaps a less natural affinity than he displays with the Father. The potential difficulties that Ms K foresaw in that relationship if X were to live predominantly with the Mother in the Mother’s home had not eventuated. It was submitted that the Court would accept the evidence of the Mother that the relationship with X has improved since his living arrangements have changed according to the orders of 12^th December 2014. That evidence was largely unchallenged and it was compelling evidence in support of a continuation of that arrangement.
It was conceded that X has a strong attachment to his elder brother, whilst his relationship with Z is not close but it does not appear to be a difficult relationship. It was submitted that the Court would accept the Mother’s oral evidence that X’s relationship with Z continued to improve and that X was excited about becoming an uncle.
The Father had expressed concern about the impact of X’s living arrangements on the relationship between the brothers. According to the Father, it was too long a separation to be imposed on them. He gave evidence that it had caused Y stress and upset as he missed X and he argued that this was an important reason that the Court should make the orders that he proposed.
The Independent Children’s Lawyer submitted that it was notable that the Father did not appear to contemplate even the possibility that a remedy to his concern would simply be for Y to spend time with X at the Mother’s home. In any case, the evidence is that that is precisely what has occurred. That is, Y has spent time with X at the Mother’s home. As a consequence, the relationship between the Mother and Y has thawed. The boys have spent time together with their mother, and at the Mother’s home including overnight time. The Mother’s oral evidence was that she had contacted Y every two to three weeks. The Father’s concern about the adverse effect on the brothers’ close relationship would appear to be unfounded.
The Independent Children’s Lawyer submitted that the improved relationships that X and Y have with the Mother was in X’s best interests, as well as those of Y. The Independent Children’s Lawyer noted that the Father emphasised at the hearing that he and Z maintained a reasonable relationship and that they were in regular communication. There was no reason not to accept that evidence but this represents a profound shift in the relationship that existed at the time of each of the assessments of the Family Consultants. It must be the case then that since December 2014 the Father’s relationship with Z had become a more positive one.
The Mother had asserted that the Father had failed in his obligation to provide proper child support. The Independent Children’s Lawyer noted with concern the evidence that the Father refused to contribute to expenses associated with X’s education. The Father’s inconsistent oral evidence about his work circumstances would do little to assuage any concerns the Court might properly have about the Father’s willingness to meet his obligations to provide financial support for X. It is, however, unnecessary for the Court to make findings resolving this controversy in order to determine the issues in dispute.
The Independent Children’s Lawyer submitted that the likely effect of any changes in the child’s circumstances was a particularly important consideration. The Court has the benefit of being able to compare directly the family’s circumstances under each of the competing proposals. The proposal propounded by the Independent Children’s Lawyer is the regime that has been in place since 12^th December 2014. However, the Father was urging the Court to revert to the living arrangements in place for X prior to the date of the interim orders. The Independent Children’s Lawyer submitted that the preferable options was readily apparent. The evidence discloses that since December 2014, the following has occurred:
a)X is better behaved, both at school and in the Mother’s home. According to the evidence, at school X has been less destructive. He has had fewer detentions and has even received merit awards. The Mother’s evidence is that X is less defiant and more respectful and affectionate towards her;
b)X has achieved better academic results. The Mother, who it will be recalled is a (occupation omitted), gave persuasive oral evidence describing how X’s school reports conveyed his improvement at school;
c)As already noted, there have been benefits to the relationship between X and his mother;
d)There have been positive developments in the Mother’s relationship with Y and in the Father’s relationship with Z;
e)The Mother’s level of anxiety has considerably diminished, such that in 2014 the mother no longer required therapeutic support of a clinical psychologist with whom she had been engaged since 2009;
f)A particularly significant development with the improvement in the parents’ own relationship which was noted by Ms K. The Mother’s oral evidence compared the difference between the parties’ communication when X suffered a broken bone in 2013 and then again recently. Those aspects of the evidence were largely without challenge.
The Independent Children’s Lawyer accepted that there are likely to be other factors that might have influenced the development of the more positive relationship between various family members and particularly X’s relationship with Z. However, the Independent Children’s Lawyer’s submission was that the current situation was considerably better than it had been for some time.
To the extent that the week-about regime had contributed to improved outcomes for X, then such an arrangement should be promoted. Ultimately, however, the Independent Children’s Lawyer contends that it matters little whether or not those developments can be directly attributed to the arrangements that fell from the orders made in December 2014. The more important consideration is whether or not the Father’s proposal would lead to discernibly better outcomes for X. Absent some compelling evidence that it would, the Court should not disturb the current situation. There is no such evidence. The Father was seeking a regime for X that had already been proven to be entirely unsuccessful. Indeed, the Father must have been unsatisfied with the arrangement, given that he was the one who instituted the proceedings when they were in place.
Accordingly, it was submitted little weight should be placed on arguments advanced by the Father in support of his proposal. The Father’s evidence about the adverse effect on X’s academic performance was without foundation. In any case, the independent evidence is that X’s performance at school has in fact considerably improved. Both his behaviour and his school reports are better and the Court should place much weight on the observation of the school principal as reported by the Family Consultant, Ms K.
Both the Father and X highlighted a problem of X forgetting items, as he has to ensure that he has everything for the whole week. It is difficult to see how the regime the Father proposes would mean that X was less likely to forget items that he might need in one parent’s home. The ICL submitted that this was a more likely result, given the more frequent transitions between the houses. In any case, there was no evidence to suggest that this difficulty had eventuated to any significant degree. The school principal did not report it as an issue.
The Father had maintained that changeovers should occur at the parties’ residence or at a public place. The Father’s rationale for proposing handover where the parties were likely, if not required, to come into contact was unclear. The likely consequence would be conflict between them at handover and it was likely that X would be exposed to and drawn into that conflict. The Father’s own evidence set out unfortunate exchanges between the parties at handover including at least on one occasion where the Father asserts Y was almost hit by the Mother’s motor vehicle. The Father’s insistence that handovers occur at his residence make little sense in the circumstances.
The Mother gave clear evidence that reverting to the previous arrangement would be likely to have a deleterious impact on her level of anxiety. This could not be in X’s best interests. This alone, it is submitted, provides a sufficient basis upon which the proposal ought to be rejected. Again, there is no issue about the ability of each parent to provide for X’s physical day-to-day and intellectual needs. The parents were quite complementary in terms of their parenting strengths. There was considerable evidence, however, that the parties had failed to provide adequately for the children’s emotional needs.
The parental conflict had resulted in strained relationships between the elder children and each of the parents and between the elder siblings themselves. The Mother, to her credit, was able to concede that her parenting capacity was affected by the parental conflict and her levels of anxiety. However, the Father made no such concession in his evidence. The Independent Children’s Lawyer submitted that the inability of the parties to focus on their children’s needs instead of their own conflict was manifested in the continued disputation about X’s extra-curricular activities. In this regard, neither party had displayed a particularly child-focused approach. Each parent was critical of and had taken objection to X’s participation in activities selected or encouraged by the other parent.
Despite the orders made by the Court on 12^th December 2014, the Father had failed to ensure that X participated in activities that fell on the weekend where X was otherwise in his care, unless it was an activity that the Father had selected or approved. The Father did not dispute the Mother’s evidence that X missed out on basketball matches in the weeks he was with the Father and similarly, under cross-examination, the Father gave evidence that he had not facilitated X’s attendance at the (omitted) class. He explained that this was because he had had job interviews that happened to fall that afternoon each and every week.
It was submitted by the Independent Children’s Lawyer that the Father’s evidence in that regard was facetious and fanciful and should not be accepted. At the same time, the mother displayed a lack of insight in her evidence. She was critical of the father for placing the children’s sporting commitments over and above their academic performance. She rejected the proposition, however, that she focused on academic performance without sufficient regard to the children’s sporting interests. The Mother explained that she considered the children required there to be a balance. The Father would no doubt make the same assertion and, of course, the Mother refers to the balance that she perceives to be required.
The Mother was dismissive of X’s comments to the family consultant where he described his parents’ interest and participation in his rugby. The Mother suggested that X must have been referring to the period between December 2014, when she accepted that she anxious about attending rugby games due to her fear of the Father. However, that explanation ignored the fact that X’s comments were made several months after the interim orders were made and X had been recounting that the Father was unable to attend his games. However, even if the Court were to accept that the Mother’s explanation was accurate, that did not diminish a lack of empathy for the substance of X’s complaints. The complaint is that he perceives that his mother is uninterested in something that he enjoys and at which he excels.
The Independent Children’s Lawyer submitted that X should not miss out on participating in extra-curricular activities in which he was involved as a result of this dispute and, in particular, because his father was unwilling or unable to ensure that this occurred. The Mother’s evidence was that she was prepared to take X even on days when he was the Father’s responsibility and the Independent Children’s Lawyer proposed an order to enable that to occur. Despite the parties’ consensus as to parental responsibility and equality of time, the Mother claimed that the Father was the perpetrator of family violence. She alleged one incident of physical violence, where it is claimed the Father hit her, although the father disputed that allegation.
The Mother’s evidence was, in any case, to the effect that the family violence was in the nature of coercive and controlling behaviour by the Father, abusive language, conduct that was intimidating or bullying and his involvement of the children.
The Independent Children’s Lawyer submitted that the Court need not resolve the controversy as to whether there was physical violence or other specific allegations about financial control. The question of family violence was relevant to the extent that it explained the Mother’s expressed and persistent wish to have an arrangement which restricted the number of handovers and which limited the parties’ contact at handover. It was important to the extent that the Mother argues that the longer block of time reduced the Father’s capacity to convey his negative attitudes about the Mother to X. Regardless of the specific allegations of incidents of violence, the Independent Children’s Lawyer submitted that the evidence of the Father’s correspondence and communications to the Mother and to the children about the Mother was entirely consistent with the Mother’s claims.
The communication was often belligerent, abusive, threatening and of a bullying nature. There was evidence of discussion with Y, at least, where the father was derogatory of the Mother. When viewed against the background of that type of communication, the Mother’s evidence of the ameliorating impact of the interim orders upon the anxiety levels was highly persuasive. That of itself is a potent basis for making permanent the arrangements provided for by those orders. It was submitted that the Father’s proposal would reinstitute the very arrangement in place when the Father commenced the litigation. That arrangement failed for X then and it is submitted will be likely to fail again. It is not a proposal that is in X’s best interests.
There was little evidence to support a change in the regime currently in place. It was submitted that the Court was prescient in its consideration of the matter in December 2014. X has derived much benefit and stability from that arrangement and it should continue. On the question of costs, the Independent Children’s Lawyer sought an order that the parties should pay the costs of the Independent Children’s Lawyer in equal shares. The parties are in full-time employment. The Mother is a (occupation omitted) and the Father is a (occupation omitted). There was no real evidence otherwise of their financial circumstances. It was not suggested that the parties were people of great means.
Neither party is in receipt of a grant of legal aid. It was submitted that, in considering the application for costs, weight should be placed on the position taken by each party in the dispute and the nature of the issues in the dispute. Each party sought to rely on a number of affidavits filed earlier in the proceedings. This was contrary to the directions made by the Court and resulted in unnecessary time and cost incurred by the independent children’s lawyer. The volume of evidentiary material, it was submitted, was not commensurate to the issues in dispute. Indeed, the resources directed to the case were entirely disproportionate to the relatively minor matters in dispute. Those resources included the appointment of the Independent Children’s Lawyer, the preparation of two family reports by two Family Consultants and three days of court time.
The parents, it was submitted, were both intelligent, articulate people who were legally represented for much of the proceedings. The Independent Children’s Lawyer submitted that this was a matter that ought to have been resolved without need for a judicial determination after a three-day hearing. The maintenance of the parties’ respective positions to the bitter end was conduct that the Independent Children’s Lawyer submitted ought to weigh heavily in favour of an order for costs as sought by the Independent Children’s Lawyer.

The law to be applied in parenting proceedings

When considering the law to be applied in proceedings for parenting orders, the Court is bound to consider a number of matters set out in Part VII of the Family Law Act 1975. In particular, the Court must consider section 60B of the Act, which sets out the objects of Part VII and the principles underlying those objects.
The Court must consider section 60CA, which provides, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how it is that a court determines what is in a child’s best interests. The primary considerations are to be found in subsection 60CC(2) and consist of:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Subsection 60CC(2A) provides that in applying the considerations set out in subsection (2) the Court is to give greater weight to the considerations set out in paragraph (2)(b), that is to say, the need to protect the child from physical or psychological harm.

Subsection 60CC(3) sets out the additional considerations and they are to be found at paragraphs (a) through to (m) of the subsection. They include, at paragraph (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.
The Court must also consider the matters in section 61DA of the Family Law Act. Section 61DA refers to the presumption of equal shared parental responsibility when making parenting orders. Subsection (1) provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, under subsection 61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child, or another child, or family violence.
Subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child.
Where a Court does make an order for a child’s parents to have equal shared parental responsibility, the Court must consider the matters in subsection 65DAA of the Family Law Act. Subsection (1) states that if a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
a)Consider whether the child spending equal time with each of the parents would be in the child’s best interests; and
b)Consider whether the child spending equal time with each of the parents is reasonably practicable and,
c)if it is, consider making such an order providing for the child to spend equal time with each of the parents.
However, under subsection 65DAA(2), if the Court does not make an order for the child to spend equal time with each of the parents when an order has been made that the parents are to have equal shared parental responsibility for the child, the Court must then consider:
a)whether the child spending substantial and significant time with each of the parents would be in the child’s best interests, and
b)whether spending substantial and significant time with each of the parents is reasonably practicable and,
c)if it is, consider making an order providing for the child to spend substantial and significant time with each of the child’s parents.
All of those matters have been considered in making this decision.

Conclusions

It is noteworthy that there is a consensus between the parties that there should be equal shared parental responsibility.
There is a consensus between the parties that there should be equal time for the child with each parent. The parties disagree on how this time should be implemented and the parties disagree on such matters as changeover. I have considered all of these matters.
It is significant that this Court made an order on 12^th December 2014 providing for X to spend equal time with his parents on a week-about basis. I am satisfied, on the evidence, that such an arrangement has largely been successful. It seems to me that it represented a significant improvement on the arrangement that had previously been in place.
It may not have been to X’s liking at the time but he has complied with it. The Mother’s evidence, at least, is that this arrangement has been beneficial for the child and with the child’s relationships with his parents and with his elder siblings. Why, then, should it be changed as the Father submits? Indeed, the Father submits that there should be return to the previous regime and as the Independent Children’s Lawyer pointed out, it was that regime that was in force when the Father commenced his proceedings. Why, then, should the Court take what clearly appears to me to be a retrograde step? I am satisfied that the basic arrangements set out in the interim orders of December 2014 have been successful. They have provided a framework and a stability for X. They have considerably reduced the Mother’s anxiety and that has had a beneficial effect on her relationship with the child. It appears that the communication between the parents has improved.
The Father’s proposal involves changeovers, either at the parents’ homes or at McDonald’s Family Restaurants. It would appear to me that changeovers at school, where appropriate, or at the home of the maternal grandparents would be far preferable. Whilst the Father is of the view that there is little, if any, parental conflict, that is not the Mother’s views. A significant reduction in the amount of time that the parents have to spend in each other’s company would reduce, to my mind, the Mother’s anxiety of the Father which appears to me still to be a real consideration and is likely to remove the likelihood of unfortunate comments or denigrating statements which, as the Court well knows, are so often unsettling for a child.
Essentially, X would spend one week with his mother and one week with his father. He would not be chopping and changing every two days or five days between one parent or the other. He would go to one parent’s home and then settle into that regime for the week. In my view, the best argument for such an arrangement is the fact that this is what has taken place since 12^th December 2014. I am satisfied that the arrangements proposed by the Independent Children’s Lawyer, which essentially support making final the interim orders of December 2014, are in the best interests of the child, and I propose to order accordingly.
I will order that the parties should pay an amount towards the costs of the Independent Children’s Lawyer. The proceedings have taken longer than they should have. They should not have required three days’ hearing time. There seems to me to have been a considerable amount of time wasted with unnecessary and unfocused cross-examination which was unhelpful.
The matter was originally allocated two days. It should have finished well within the two days. One may even ask why, when the parties were legally represented, the matter could not have been resolved, wholly or in part, by consent orders.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 28 June 2016

[2016] FCCA 1562

17 June 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs