Clives and Clives

FAMILY COURT OF AUSTRALIA

CLIVES & CLIVES

[2007] FamCA 695

FAMILY LAW - CHILDREN – Parental responsibility– Whether presumption of equal shared parental responsibility applies to a party who is not a parent of the child – Considerations of equal time and substantial and significant time – Parenting orders providing for parental responsibility – Attendance at a post-separation parenting program – Matters to be dealt with by a parenting order in respect of a child who is not the natural child of the parties

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755
R and R (2000) FLC 93-000

APPLICANT:

Mr Clives

RESPONDENT:

Mrs Clives

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

3941

2005

DATE DELIVERED:

12 July 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

10, 11, 12, 13 April 2007;
28 and 31 May 2007;

Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms R Winfield

SOLICITOR FOR THE APPLICANT:

Eleanor Murphy & Company

COUNSEL FOR THE RESPONDENT:

Ms M Cleary

SOLICITOR FOR THE RESPONDENT:

Taylor Scott

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr R Harper

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

Orders

Parenting orders

That the parties have equal shared parental responsibility for their two children S (“[S]”) born in June 1991 and M (“[M]”) born in August 1993 (“the two [boys]”) AND that the parties shall note the obligations created by this order and the parenting orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the two boys live with the wife.
That the parties ensure the two children spend time with husband as follows:
During school term
(a)Each alternate weekend from 6.00pm Friday to 7.30pm Sunday the first occasion to take place on the second Friday following the last weekend period of time spent by the two children with the husband and otherwise to start on the first Friday following the commencement of each school term.
(b)On one week-day evening per fortnight from 5.30pm to 8.00pm as arranged between the parties, and the two boys the first occasion to take place in accordance with such arrangements.
(c)For such alternative or other periods as the parties, and the two boys may agree upon from time to time.
School holidays and other occasions
(d)Half of the school term holiday periods being the second half in each odd numbered year and the first half in each even numbered year commencing at 9.00am on the first day of such periods and concluding at 7.30pm on the last day PROVIDED THAT in relation to the second half of school holiday periods it shall conclude at 9.00am on the last Saturday prior to the commencement of the new school term.
(e)For each of the birthdays of the boys being for a period of three (3) hours whether that birthday falls on a week day or a weekend.
(f)
For three (3) hours on the husband’s birthday whether it falls on a

week-day or weekend.
(g)From 4.00pm Christmas Day until 4.00pm Boxing Day in 2007 and each alternate year thereafter and from 6.00pm Christmas Eve until 4.00pm Christmas Day in 2008 and each alternate year thereafter.
(h)On Father’s Day from 9.00am until 7.30pm in the event of it falling on a Sunday when the two boys are not in the care of the husband in accordance with these Orders.
(i)For such alternative or further periods as may be agreed upon by the parties, and the two children from time to time.
That the parties have joint parental responsibility for J (“[J]”) born in September 2000 PROVIDED THAT the wife shall consult with the husband prior to any decisions being made in relation to J’s health and education and shall give the husband such notice as is reasonably possible of all appointments made by her with any medical practitioner, psychologist, social worker or counsellor and encourage the husband to attend such appointments and any professional fees payable for such consultations not the subject of government benefit shall be promptly paid by the parties equally.
That the parties shall ensure that J shall spend time with the husband as follows:
(a)During school term on each alternate Sunday from 9.00am until 7.30pm being a Sunday when S and/or M are due to spend time with the husband in accordance with Order 3(a).
(b)For three (3) hours on her birthday whether it be on a week-day or on a weekend.
(c)
For three (3) hours on the husband’s birthday whether it is on a

week-day or on a weekend.
(d)During Christmas Eve, Christmas Day or Boxing Day for the same period during which the boys are due to be with the husband in accordance with Order 3(g).
(e)On Father’s Day from 9.00am until 7.30pm in the event of it falling on a Sunday when J is not be in the care of the husband in accordance with these Orders.
(f)For such alternative or further periods during school term and in school holiday periods as the parties may agree upon from time to time.
That for the purpose of implementing Order 5 the wife shall take J to the husband at his premises at the commencement of the relevant period and the husband shall take J to the wife at the wife’s premises at the conclusion of such period.
That on or before the expiration of seven (7) days from the date of these Orders the parties shall join in seeking the earliest available consultation with Dr T or his nominee in the event of his unavailability for the purpose of:
(a)seeking advice in relation to the parties individual future parenting of J;
(b)further periods of time (if any) that J should be in the care of the husband either with or without the presence of S and/or M, and
the parties shall make arrangements for further periodic consultations with Dr T for the purpose of reviewing those matters with such frequency as he or his nominee may recommend or alternatively another paediatrician or other medical practitioner that the parties may agree upon from time to time.

General

That notwithstanding Orders 3 and 5 the parties shall ensure that the children spend Mother’s Day with the wife from 9.00am until the commencement of the next period of time that the children or any of them are due to spend with the husband.
That the husband may communicate by telephone with the children not more than once daily when they are in the care of the wife, except in an emergency or as may otherwise be agreed between the parties.
That the wife may communicate with the children not more than once daily when they are in the care of the husband, except in an emergency or as may otherwise be agreed between the parties.
That in the event of any of the children suffering from a serious injury or illness then the party who has the care of the child so affected shall inform the other party as soon as possible of the nature of the injury or illness and the name, address and telephone number of the relevant hospital or medical practitioner.
That the wife shall authorise and request the Principal of all schools attended by the children to furnish the husband at his request and at his expense, if necessary, copies of all school reports, notices and correspondence in respect of each child’s academic progress, sport and school activities and functions.
That neither of the parties shall denigrate or be abusive to the other in the presence or hearing of all or any of the children.
That on or before 26 July 2007 each of the parties directly or by their legal representatives shall consult with the Manager Child Dispute Services or her nominee at the Sydney Registry, Family Court of Australia for the purpose of obtaining advice as to the appropriate program and place at which each should enrol for the purpose of improving communication between them generally as well as in relation to matters which may affect all or any of the children
Each of the parties shall enrol and complete the relevant program referred to in Order 14 as soon as possible and shall inform each other in writing of the name of the program, the organisation which conducts it, and the place at which such program takes place on or before 2 August 2007.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number: SYF3941 of 2005

MR CLIVES

Applicant

And

MRS CLIVES

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings each of the parties seeks parenting orders as well as property settlement and superannuation splitting orders.
I had given notice that judgment would be given and orders made on 29 June 2007 in relation to all of the issues in the proceedings. However, on the previous day my associate received three emails from counsel for the wife, the contents of which did not satisfy me that the relevant material in relation to superannuation entitlements had been agreed upon. My associate was subsequently informed that counsel for the parties were absent from chambers on vacation until towards the end of this month.
Accordingly, I will proceed to give judgment and make orders in relation to parenting issues. I will then make directions in relation to the outstanding superannuation matters so that judgment can be given and orders made in relation to both property settlement and superannuation splitting as soon as possible.
So far as parenting orders are concerned, there was no issue that the two children of the parties, and the wife’s niece J who has been in the care of the parties since early 2001 following difficulties in the care provided by her mother (the wife’s sister) who had become very ill. J’s mother committed suicide several months later.
The parties cohabited for a period of approximately 15 years which commenced in 1990.
The parties married on 29 April 1995 and in the absence of evidence or information from counsel to the contrary, I have assumed that the marriage has not been dissolved.
The parties separated for a period from December 1991 to March 1993 according to the husband. The wife contends that the period of separation was for six months commencing in May 1992. That factual issue was not fully explored. The parties finally separated on 4 March 2005 and have lived separate and apart from each other continuously since that time.
The husband is 49 years of age and is employed as a project manager.
The wife is 38 years of age and is employed as a police officer on a part-time basis.
The children, the subject of the proceedings, are:
(a)S (“[S]”) who is 16 years of age having been born in June 1991.
(b)M (“[M]”) who is 13 years of age having been born in August 1993.
(c)J (“[J]”) who is 6 years of age having been born in September 2000.
The children have primarily lived with the wife since the parties separated. The boys attend G College, whilst J attends K School.
J has a brother, A who is 12 years of age who lives with his maternal grandmother.

Historical background

The following are further brief relevant historical matters.
In 1986 the husband purchased S property(“the [S] property”) for a purchase price of $62,000.00 funded in part by mortgage advance of $45,000.00. Implicitly, the equity was provided by the husband from his funds.
In 1989 the wife purchased P property (“the [P property]”) for $91,500.00 funded as to $30,000.00 by combination of her savings and gift from the maternal grandmother of $10,000.00, and the balance of $76,400.00 by way of a loan.
The wife sold the P property for $91,500.00 with net proceeds of sale being approximately $8,500.00.
In September 1996 the husband sold the S property for $135,500.00. The amount or approximate amount of the net proceeds of sale was not the subject of evidence although neither party contended that the S property was still subject to a mortgage.
In about 1997 the parties jointly purchased T property (“the former matrimonial home”) for $225,000.00. It was funded by a combination of the net proceeds of sale of the S property and mortgage advance from the National Australia Bank of about $95,000.00.
In April 2001 J came into the care of the parties, as did J’s brother A. A lived with the parties for about three months before commencing in the care of his maternal grandmother.
On 10 July 2001, J’s mother died.
On 23 September 2001 in the Children’s Court L an order was made providing for the parties to have parental responsibility for J.
In about September or October 2001 an order was made in the Children’s Court L allocating parental responsibility for A to his maternal grandparents.
In about early 2004 the former matrimonial home was sold by the parties for $519,000.00 unencumbered. The net proceeds were approximately $506,385.00.
In February 2004 the parties and the children occupied rented premises at G.
On 26 October 2005, Johnston JR made parenting orders apparently partly by consent. Those orders provided inter alia for the children to reside with the husband for half of certain school holiday periods as well during school term for each second weekend from 6.00pm Friday until Monday morning before school.
On 2 November 2005 the wife appealed against the orders made 26 October 2005.
On 10 January 2006 orders were made by Le Poer Trench J. Those orders provided inter alia for the appointment of an independent children’s lawyer (formally children’s representative); discharge of the orders previously made in relation to J; discharge of the order for the period of time to be spent by the boys with the father during school term and substituting in lieu an order that they reside with him each second weekend from 6.00pm Friday until 7.30pm Sunday subject to such period being extended until Monday prior to the commencement of school should they so request by contacting the wife by telephone prior to 7.30pm on the relevant Sunday.

PROCEEDINGS FOR PARENTING ORDERS

The issues in these proceedings will be determined by me prior to the resolution of the issues that arose in respect of the property settlement proceedings. That approach is not a matter of controversy.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s 65AA.
For the purpose of determining what is in the children’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to the children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. [emphasis added]
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)a child’s right to enjoy his/her culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the children, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
The primary considerations are:
“(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.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the children and the parenting orders that will be made.

Views expressed by the children and other relevant factors

Each of the parties gave conflicting evidence regarding the views expressed by each of the children in relation to spending periods of time with the husband.
The husband’s evidence was that the children were positive regarding spending time with him in accordance with current arrangements and also staying with him on Sunday overnight at the conclusion of the alternate weekend periods that they spend together.
The wife, for her part, gave evidence that the children resisted at times spending periods with the husband, especially as the boys felt pressured by the husband into staying with him overnight on Sunday with strong negative reactions by each of them at times to the husband’s perceived pressure on them to spend more time with him.
The wife’s evidence also was that M further complained about sharing a room with S which hampered him in completing his homework at the husband’s home.
Exhibits 1 and 2 are Family Reports dated 6 July 2006 and 9 March 2007 prepared by Ms L, family consultant (“the family consultant”). The family consultant also gave oral evidence. I was impressed by the detail and sensitive consideration of the parenting issues which were the subject of the family consultant’s written and oral evidence and accept her evidence unless otherwise stated.
The family consultant’s recommendations will be taken into account together with all other relevant material.

In Exhibit 1, S expressed the views that the then current periods of time spent by him with the husband were “special and exciting”. However, S also expressed a number of qualifications. His views were that he felt uncomfortable as the husband permitted the children to “do whatever we like” and on occasions he felt unsafe with the husband due to him having allegedly exposed the boys to “intoxicated and argumentative adults, resulting in them witnessing acts of violence”.
S also expressed the view that he had communication problems with the husband who “does not listen to me”. However, S considered he had good communication with the wife.
S expressed the further view that his preference was to remain living with the wife for the reasons previously given by him and that he did not want to spend additional time with the husband, subsequently changed to spending additional time on a flexible basis.
Views were also expressed by the boys in particular, whereby they indicated reluctance about relocating with the wife to the Central Coast. However, that was no longer an issue for determination by me as the wife had subsequently withdrawn her proposals in that regard.
S stated a preference for the maternal grandmother to care for him when he was ill, implicitly during such times as the wife was absent while engaged in her part-time employment.
M expressed the view “that the current arrangement is perfect because it works”.
Significantly, M also expressed the following view to the family consultant that:
“He wants his parents to stop fighting because it upsets him. He experiences his father’s angry outbursts at his mother, in front of his friends at soccer, as embarrassing.”
M informed the family consultant that he enjoyed the current period of time that he spent with the husband but:
“feels pressurised by him to stay on Sunday nights, when he would prefer to return to his mother and get ready for school on Monday. He is willing to consider a mid-week contact but is anxious about committing to this, because he is unsure if this would work with his other commitments.”
The family consultant found that J was:
“ambivalent about how much time she would like to spend with [the father] because ‘he is always mean to mummy – every time’. She feels ‘sad’ and ‘angry, very angry!’ about the parental conflict and seemed acutely aware that they argue over her. She feels safest and happiest with [the mother] and would prefer to not move to another home.”
In Exhibit 2, S stated that the parties continued to argue at change-over and found their behaviour “silly, embarrassing and immature”. S further stated that:
“He would like to celebrate his 16^th birthday with his parents together, but commented that this would not be possible because of their propensity for conflict.”
S’s views were that the periods of time spent with the husband were “fairly good” but that the husband becomes “really stressed” due to the demands of caring for the children. In that regard, S identified a difficulty due to the “demanding” behaviour of J and the husband’s indulgence of her which leads to arguments that he and M have with J resulting in unfair blame and angry reprimands by the husband.
S considered a good idea would be for he and M to spend some time on their own with the husband. This would give them a period of time with him uncomplicated by the problems due to J’s behaviour.
In addition, S emphasised that he would like to have the freedom to spend more time with the husband when he wished, although considered that the wife may make that difficult due to her expectation that it be organised by S. S considered that he could quite easily spend additional time with the husband due to the short distance between the parties’ homes. S suggested that he would be able to take his school uniform and books in his backpack and catch the morning bus to school from the husband’s home with the husband returning his bike to the wife’s home.
S stated his preference was to remain living mainly with the wife and that the time he spent with the husband was “special”.
S also informed the family consultant that he considered the wife mistrusted him, that she was very strict especially about him having a “special female friend”. S was puzzled about her attitude in that regard.
M continued to express the view that “the current alternate weekend arrangement works well for him, because it does not interfere with his school work”. M explained that he completed his school work at the wife’s home so that he could “relax with Dad and not worry about school”.
M also stated that the parties were arguing again despite an improvement in that regard during the second half of 2006.
M stated that he enjoyed “popping in on the husband whilst riding his bike and staying with him for varying periods of time”.
M in referring to the same difficulties with J as S had identified during the time spent with the husband, considered that the problem could be addressed by them spending time with the husband without J. He considered that such periods of time would be additional to that which currently occurred. However, M expressed difficulty as to how that would be achieved due to his activities three nights a week and contemplated that perhaps an early dinner with the husband and then him taking M to his activity would overcome the problem. M further stated that his preference was to return to the wife’s home to sleep.
The boys considered that a suitable frequency for the additional and separate time with the husband was once a month.
During the course of her oral evidence the family consultant reiterated the views and statements made by the boys previously set out in Exhibits 1 and 2. Particular emphasis was given to the views expressed by the boys regarding them spending time with the husband separate from J; S’s preference for returning to the wife’s home on Sunday night; and M’s definite concurrence in that regard.
The family consultant surmised that the boys would be positive in relation to an order in relation to arrangements between them and the husband whereby they had dinner with him fortnightly during the week and that he accompany them to any activities before returning them to the wife’s home.
Having regard to the evidence of the family consultant, which I have accepted, I find the views of the boys that generally alternate weekend periods of time spent by them with the husband together with J during school term have proceeded reasonably well with the following qualification. Those periods have at times been marked by distress felt by the boys as a result of their perception that the husband does not adequately manage J. Perhaps due to the stress they experience, it is the boys’ perception that the husband unfairly blames and reprimands them for the conflict that arises.
S, and in particular M, want to return to the wife’s home on Sunday night at the conclusion of such alternate weekend periods. So far as M is concerned, that was a matter of importance to him due to his need to prepare for school the next day without stress, as well as his obvious comfort in being ready for the school week ahead from the wife’s home rather than the husband’s home.
The boys would also like the flexibility to spend varying periods of time with the husband during the week on an impromptu basis and in addition a more fixed arrangement monthly or perhaps fortnightly, according to the family consultant, would be for their benefit. The important qualification expressed was that the husband ensures dinner is held early and that he accompanies them or either of them to a particular activity they are otherwise engaged in and return them to the wife’s home at the conclusion of such activity.
The boys also were consistent in their views that the parental conflict which manifests itself at change-over or otherwise when the parties communicate with each other is very distressing for them and clearly has affected them, especially S. J has also expressed to the family consultant her distress that those events have occurred.

The nature of the relationship of the children with each of the parties and other persons

There is no issue that each of the children has a loving relationship with each of the parties and with the maternal grandmother.
The relationship that the boys have with each of the parties has its complications. Not the least of which is the distress caused to them by the highly conflicted relationship that the parties have with each other manifested by arguments at change-over or when the parties have a need to communicate with each other.
So far as the husband is concerned, the boys feel that they are pressurised by him in relation to spending additional periods of time with him including overnight on the Sunday of the alternate weekend period otherwise spent with him, especially due to the manner in which he exerts that pressure whether wittingly or otherwise.
S has the perception that the husband does not listen to him, implicitly as opposed to hearing him. In addition, the relationship that the boys have with the husband is marred at times by arguments and resentment in their view due to the husband’s lack of appropriate management of J’s behaviour and the angry response that he has directed towards the boys.
So far as the wife is concerned, the relationship between S and her creates pressure for him due to her mistrust of him in the particular circumstances to which I have made earlier reference.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other party

The evidence of the husband is that prior to the orders made 26 October 2005 the wife was both non-consultative and arbitrary in the arrangements for the children to spend periods of time with the husband and had influenced the children to resist spending significant time with him.
In that regard, the husband contended that subsequent to the separation of the parties J had told him that she hated him and that “you’re not my real father”.
It is alleged that in November 2005 the wife had unreasonably failed to provide the school uniforms for the boys for their use upon returning to school following a period of time spent with the husband the result of which he had to make other arrangements.
In addition, the husband contends that the wife provokes arguments in front of the children by the manner in which she speaks to him and remained implacably opposed to the children remaining with him on Sunday overnight. Notwithstanding the orders made 10 January 2006 whereby Sunday overnight periods may be spent by the husband in accordance with the wishes of the boys, the wife had been arriving at the husband’s home on Sunday evening and pressurised the children to return to her by banging on the door and then returning to her car and waiting for the children to come out.
The husband contends that he has been willing to facilitate time spent with the wife on special occasions such as Mother’s Day and in his view it is appropriate that the children spend two to three hours with her on that occasion and a similar period of time with him on Father’s Day which he considers represents sufficient time for that purpose.
The wife for her part claims that it is the husband rather than her who causes the arguments between them in front of the children due to his abrupt and at times sarcastic manner as well as his intimidation of one or other of the boys to acquiesce in spending the period of time with him that he considers should be spent.
The tenor of the wife’s evidence was that she denied engaging in conduct with the children or any of them which may have caused a negative reaction to spending periods of time with the husband as he wanted, but rather their refusal or ambivalence was brought about by a variety of reasons. Those reasons included the husband’s alleged pressuring of one or more of the children; the stress created for them due to the difficulties the husband has encountered in the children staying with him largely due to J’s difficult behaviour; his verbally abusive behaviour towards S in particular; and M’s earnest desire to return to the wife’s home on Sunday nights so as to be properly prepared for the ensuing school week.
The wife in her affidavit evidence acknowledges that she has shown the boys a copy of the orders made 10 January 2006 in the context of a discussion as to whether or not they have to stay with the husband overnight on alternate Sundays. The wife’s evidence is that she has reminded them that they can stay on Sunday night if they wish.
The wife also gave evidence that following a complaint by the boys in relation to their perception of the husband pressuring them, she responded to them by saying “don’t worry boys it’s your choice remember, not his”.
The wife has also given evidence that she considers that she has been flexible in relation to periods of time that the children have spent with the husband which was illustrated by her agreement to them spending an extra half an hour on Sunday night as requested.
In May 2006 the wife was admitted as a patient at a Sydney Hospital for treatment in relation to a throat complaint. The wife was required to remain as a patient for a period of some days beyond that originally anticipated. The wife’s evidence is that the husband reluctantly and after much discussion agreed to bring the children to see her.
The husband’s evidence is that he received the wife’s telephone request late and he needed to think about it due to the travel time involved which was from 40 minutes to one and a half hours, dinner and homework arrangements, and in any event the wife was due to be discharged the following day.
The wife also contends that there have been disputes between the parties regarding the children spending time with her on Mother’s Day, notwithstanding it fell on a weekend when they were due to be with the husband and that he had been obstructive in that regard. The wife contends that the boys were distressed. The wife also gave evidence of the husband having been abusive to her in the driveway of her home on Mother’s Day in the hearing of the children.
The wife also contends that the husband has disrupted school holiday periods that the children spent with her due to his daily telephone calls to them, at times more than once, as well as multiple text messages.
In addition, the wife contends that on 10 January 2007 when she attended the husband’s house to collect the children for them to commence living with her for the appropriate half of the school holidays, J made a request in the husband’s presence that “daddy said to ask you” whether she could sleep over at each of their homes on alternate nights.
The wife also contends that difficulties in arrangements for periods of time to be spent by the children with the husband have been exacerbated by his abusive conduct to S which has caused S to run out of the husband’s house of his own accord on three occasions. Allegedly, arguments have developed over the husband’s failure to set boundaries on J’s behaviour and her telling untruths about S.
The wife’s evidence is that S has walked to the wife’s house very agitated and on one occasion the police stopped to speak to him due to his evident distress.
In her Affidavit sworn 5 April 2007, paragraphs 141, 142, 143, 144, 146, 147, 152, 156, 159, 163, 164 and 165 the wife sets out in detail incidents she alleged occurred which have created not only issues between her and the husband but with consequential adverse impact upon one or more of the children at different times due to unreasonable conduct by the husband, apart from arrangements between the parties which related to fortnightly weekend periods of time that the children spent with the husband that proceeded without difficulty.
There was little, if any, challenge to that evidence in cross-examination.
I also add that there was little, if any, cross-examination of the husband in respect of his allegations of the wife having adopted an unreasonable and arbitrary approach to arrangements for time to be spent by him with the children.
Generally, I accept the evidence of the wife and in particular where it conflicts with the husband. I do so not only because of the wife’s evidence having been presented in a detailed, plausible fashion but also because of the independent evidence of the family consultant, which I have accepted. That evidence which includes both Exhibits 1 and 2 and her oral evidence satisfies me that the husband has at times been abusive to S in particular, the stress which has been occasioned to the children due to their perception that the husband has not been able to impose appropriate boundaries upon J’s behaviour; his unreasonable blaming of the boys for difficulties that have developed between the children and the pressure the husband has created upon them spending extra time with him. Unwittingly or not, that pressure has been stressful for the two children.
In addition, having regard to the seriousness of the wife’s allegations in respect of the outcome of the husband’s behaviour towards S whereby he left the husband’s home highly distressed on three occasions, not the subject of challenge, is another matter which I find did occur in those circumstances.
Further, I find and take into account the husband’s less than generous attitude to facilitating time to be spent by the children with the wife on Mother’s Day 2006 and his apparent reluctance to take the children to see the wife in hospital as requested by her, notwithstanding her expected discharge the next day. As well, the husband’s initial unseemly resistance to making a tent available for Christmas last year, unfortunately demonstrates a proprietorial focus by the husband on both the tent which had been purchased for family use and periods of time he regards as being his, as opposed to being child-focused.
Consequently, I find the husband has shown a marked reluctance to be willing to facilitate and encourage a close and continuing relationship between the children and the wife.
I find that generally speaking the wife has shown the requisite willingness and ability. However, at times the wife has also embroiled the boys in the parental conflict by not only showing them a copy of relevant parenting orders, but also attempted to fortify them in opposition to the husband by her emphasis upon time being spent as they wished. The orders made 10 January 2006 were clearly not meant to be used as an instrument in the conflict between the parties.

The likely effect of any changes in the children’s circumstances including the likely effect on them of separation from a parent or any other person with whom the children have been living

This matter arises in the context of an issue between the parties as to whether or not the two eldest children should continue to spend periods of time with the husband in accordance with the orders made 10 January 2006 so far as the wife is concerned, or alternatively as sought by the husband that the boys live with the husband each alternate weekend in school term from the conclusion of school on Friday until the commencement of school on the following Tuesday morning and one evening in every other week. The husband’s application is also that J live with him for the same weekend as the boys except that the period be from 6.00pm Friday until 6.00pm on the following Sunday and Thursday overnight following that particular weekend.
There did not appear to be any issues of substance between the parties regarding the periods during school holidays that the children should spend with each of them. The parties’ oral evidence demonstrated that there were issues for determination so far as periods of time on Mother’s Day, Father’s Day, and Christmas Day that the children should spend with one party or the other.
Obvious likely effects of the children spending increased periods of time with the husband as sought by him are that he will be afforded a greater opportunity to be involved with the children both personally and in their school, sport and extra-curricular activities. That may be for their benefit as it could enhance the relationship between the husband and the children.

However, there are contra matters to take into account. They include the consistent and substantial resistance by both the boys to having fixed arrangements whereby they are compelled to spend greater periods of time with the husband during school time than currently exist. In that regard, I have made findings in relation to their views which do not require reiteration.
In addition, the husband has a limited capacity to provide for the reasonable needs of both boys and especially the latter so far as homework and study are concerned due to those two children having to share a room, the problems perceived by M, and the inability to use the internet.
Further, both boys have expressed views regarding the frequency of spending time with the husband during school term and staying with him overnight on Sunday in that period.
Consequently, so far as school term is concerned the likely effect upon the boys of an order which requires the parties to ensure they spend periods of time with the husband in school term as sought by him would be stressful for them.
So far as J was concerned, there is not a substantial difference between the current situation and the order sought by the husband.

Practical difficulty and expense of the children spending time with and communicating with a parent and the effect on the children’s right to maintain personal relations and direct contact with both parents on a regular basis

The parties live within close proximity of each other.
Consequently, no issue arises in relation to this matter.

The capacity of each of the parties and any other person to provide for the needs of the children including emotional and intellectual needs

Currently, the husband has a restricted capacity to provide for the physical needs of the children as the accommodation available means that the boys share a room, although the only consequence is in relation to M’s intellectual needs to which I have referred.
Otherwise, no other relevant matter arises in that regard.
Whilst there is no doubt on the evidence that the husband loves the children and has been doing his best to meet their emotional needs, it seems that a combination of his personality, the stress engendered at times in coping with the children particularly J, and last but far from least the highly conflicted relationship between the parties has had a detrimental effect on his capacity to provide for the emotional needs of the children.
Those emotional needs, unsurprisingly, are for having a stress-free environment with a parent demonstrating sensitivity and flexibility in dealing with growing children each of whom have their own special emotional and other needs.
The evidence of the husband’s emotional abuse towards S identified in the findings made by me in that regard suggest a parent who is under a great deal of strain which has had the result of him being unable to consistently provide for S’s emotional needs. Implicitly, this must have had an effect upon M especially as the boys have a close relationship.
On the evidence before me including the expert evidence of the family consultant and Dr T paediatrician represented by his clinical notes and other material contained in Exhibit 4 and the Report dated 3 August 2005 of Dr C paediatrician being Exhibit “B” to the Affidavit of the wife sworn 13 July 2006, demonstrate that J has difficult emotional needs due to the diagnosis of “oppositional defiant disorder”, significant emotional issues and Dr C’s further diagnosis of “hearing loss secondary to chronic middle ear disease”.
The husband’s evidence demonstrated that he was either in denial so far as the significant health issues affecting J, or was not fully informed. It may be a combination of both, especially in view of the husband’s concessions of previous lack of awareness after having read the material contained in Exhibit 4. That is not due to his lack of interest, but rather as a result of the poor level of communication between the parties and the lack of reasonable opportunity for him to join in further consultations with Dr T.
I accept the husband’s evidence that he will consult with Dr T with or without the wife so that he may be fully informed from a medical viewpoint and follow Dr T’s advice regarding managing J’s behavioural problems and the periods of time and circumstances in which J may be in his or the wife’s care.
The husband’s capacity to provide for the intellectual needs of the children is only qualified in so far as he is unable to meet their requirements for computer technology.
There was no issue that the wife has the capacity to meet the physical and intellectual needs of the children.
So far as their emotional needs are concerned, the wife has a loving relationship with them. However, the wife also played a part in the highly conflicted relationship of the parties. This included, but is not limited to, the wife showing the two eldest children a copy of the orders made 10 January 2006 as a means of fortifying them in their opposition to the husband’s requests for extra periods of time with him, to which earlier reference has been made; as well as her failure to keep the husband fully informed with regard to medical consultations in relation to J; and whether, deliberately or not, arbitrary decision-making in respect of periods of time that the children may spend with the husband following the parties’ separation.

The maturity, sex, lifestyle and background of the children and with either of the parties

The boys appear to have the maturity commensurate with boys of their age, although affected by the parental conflict between the parties.
J has significant health issues to which earlier reference has been made.

The parental attitude of each of the parties

There is no issue that the parties have a loving parental attitude to the children.
Unfortunately, the manifestation of that attitude, which in normal circumstances would be very much for the benefit of the children, has become burdened by the highly conflicted relationship that the parties have with each other which in turn has caused the children a great deal of unnecessary stress and pressure.

Family violence and family violence orders

There are no family violence orders.
Part and parcel of the poor relationship between the parties has been the abusive behaviour by the husband towards the wife whether provoked or not, the wife’s arbitrary decision-making regarding periods of time that the children may spend with the husband prior to interim orders being made, and the lack of consultation with the husband in relation to matters affecting the children especially J.
The wife’s explanation in part is that it has not always been possible to have effective communication with the husband due to the adversarial nature of their relationship post-separation.
The parties have become swept up in their perception of the rights and wrongs of the positions that each has taken in relation to a variety of matters affecting one or more of the children.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the children

It is not reasonably feasible to make an order which captures the object of this discrete matter as whatever orders are made there will be the potential for further proceedings between the parties in relation to the children due to the parties’ highly conflicted relationship. As a result, I cannot assess the degree of likelihood of a particular order or orders least likely to lead to the institution of further proceedings in relation to the children.

Conclusion

I will set out my conclusions in relation to the parenting orders to be made in relation to the boys separate from the conclusion with respect to J as different findings and considerations apply.
Each of the parties seek an order to reflect the presumption of equal shared parental responsibility that applies in accordance with s61DA. The order so sought is supported by the independent children’s lawyer.
The order so sought is a parenting order in accordance with s64B(1) and s64E(2)(c). Parental responsibility is given the meaning as set forth in s61B. Parental responsibility may include one or more of the major long-term issues defined in s4(1).
Counsel for the independent children’s lawyer recognised the practical problem that currently exists as between the parties of their lack of consistent, constructive communication which was recognised by all concerned as being necessary ingredient for equal parental responsibility to be implemented in a way which benefits the boys. Each of the parties gave evidence of being willing to take part in appropriate counselling courses to improve communication between them.
A parenting order of the type referred to must still be in the best interests of the boys as is required by the provisions of s60CA.
Despite my circumspection, I have concluded that the order as sought by the parties will be made due to the weight that I give to the approach taken by them and the independent children’s lawyer referred to in previous paragraphs.
So far as the boys are concerned, the husband’s proposals are that they live with him each alternate weekend in school term from the conclusion of school on Friday until the commencement of school on the following Tuesday morning as well as one evening in each alternate week, apart from half of school holiday periods and other specified occasions such as Christmas and birthdays. Otherwise, the husband proposes that the two children continue to live with the wife.
The wife, for her part, proposes that the boys continue to live with her and spend periods of time with the husband in accordance with the orders made 10 January 2006 so far as M is concerned, and that S make his own arrangements direct with the husband.
There appeared to be some ambivalence in that regard during the course of the wife’s evidence in terms of whether those arrangements should supplement the periods of time spent in accordance with those orders.
I have determined that it is in the best interests of the boys that parenting orders will be made providing for them to spend periods of time with the husband in school term for each alternate weekend as currently applies, without reference to their “wishes” regarding overnight on Sunday, except that part of that time will be spent by them with him without J, unless otherwise arranged between the parties.
In addition, an order will be made that the boys spend an evening with the husband on a week night during the week in which the weekend period does not occur and such other times as the parties deem appropriate.
Orders will also be made to enable there to be flexibility in arrangements to meet the particular needs and activities of the boys as the parties consider appropriate. My reasons for making such orders are as follows.
I have found that there is no issue that the boys have a loving relationship with each of the parties. Unfortunately, those relationships have become unnecessarily complicated due to the highly conflicted relationship between the parties themselves which in turn has produced much stress and pressure upon the boys.
The husband in particular has played a significant role in that regard due to the pressure that he has applied to the boys to spend periods of time with him as he virtually demanded. Whether that was deliberate or not at times, has nonetheless frequently produced tension for the boys overlaid by the obvious power struggle and animosity between the parties which has enmeshed all the children.
I have made findings in relation to the difficulties that have arisen from time to time during the alternate weekend periods spent by the children with the husband. Those difficulties have been demonstrated by the consistent stress that the boys have experienced due to their perception of the husband’s inability to appropriately manage J and the blame that he places upon them as a consequence.
There have been unfortunately incidents of abusive behaviour by the husband towards S which has resulted in S leaving the husband’s home in a highly distressed state.
I have made findings in relation to the views of the boys regarding periods of time to be spent by them with the husband during school term and the circumstances which have given rise to those views.
In essence, those views are that the two children would like very much to continue to spend alternate weekends in school term with the husband and for part of the time that they spend with him to be without J as implicitly they consider their relationship with the husband will be more enjoyable without the difficulties they perceive the husband has in managing J who unfortunately has significant behavioural problems.
M in particular, as well as S to a lesser extent are firm in relation to their desire to return to the wife’s home on Sunday evening so as to be properly prepared for school as well as no doubt being comfortable in the prospect of being ready for the ensuing school week.
Both boys emphasised their views that they would also like to not only spend an additional evening once a month with the husband, although the family consultant surmised that fortnightly would also be attractive, but additionally to have the flexibility of calling in to see the husband and spend such periods of time with him as deemed appropriate given their other activities and needs.
The views of the boys, which I have summarised, were affirmed by the family consultant as being their genuine, independent views which she regarded as significant. I have accepted the family consultant’s evidence and made detailed findings in relation to the views of the boys as previously set forth.
I have given much weight to the views of the boys in accordance with the Full Court’s guidelines in R and R.[5] I have also given weight to my previous findings in relation to the capacities of the parties to provide for the emotional needs of the boys and the respective willingness of the parties to facilitate and encourage periods of time that those children may spend with each of them. Those findings refer to the limitations that each of the parties have, although more so in the case of the husband than the wife.
[5] R and R (2000) FLC 93-000
It is against that background that having regard to the ages and apparent maturity of the boys and the need to minimise so far as possible future stress and pressure upon them directly as a result of the highly conflicted relationship between the parties and the husband’s own need to pressure the boys from time to time, that I have attached much weight to their views.
The parties live within close proximity of each other. Movement between both homes is easy and convenient. The boys would enjoy the prospect of spending spontaneous periods of time with the husband. The parties should encourage them to do so whenever it is reasonable having regard to other demands upon the boys’ time such as school work, sport and extra-curricular activities. Hopefully, the parties will now apply both flexibility and sensitivity in that regard on a solely child-focused perspective.
Section 65DAA(1) requires me to consider making orders that provide for equal time to be spent by the boys with each of the parties as a consequence of my proposed order sought by consent that the parties have equal parental responsibility.
As is apparent, I do not propose to make such an order. Neither of the parties sought an order in those terms. It is also clear that it would not be in the best interests of the boys that such an order was made having regard to the strong views expressed by each of them to which I have attached considerable weight as earlier referred to, and the settled routine that those two children have of primarily living with the wife in her home.
The orders that I intend to make so far as the periods of time to be spent by the boys with the husband represent substantial and significant time which I am required to consider pursuant to s65DAA(2)(iii). Those orders provide for not only a period of time during weekends in school term but also a period of time during alternate weeks. Whilst that may not suggest further time of real substance and significance, it must not be overlooked that each of the parties supports flexibility for both or either the boys to spend time with the husband during the week over and above the formal terms of orders. That will be very much in accordance with the views of the boys supported by the family consultant. True flexibility can obviously not be provided if a fixed routine is to be the subject of an order.
Consequently, the orders that will be made for periods of time to be spent by the boys with the husband together with the parties’ support of the views of the boys for flexibility to which I have referred represents both a fixed regime and one which enables each of those two children to make a spontaneous arrangement with the husband so far as it is reasonable to do so. In reality, that should provide not only substantial and significant time with him but represents fulfilment of one of the primary considerations of the promotion of a meaningful relationship between those two children with both the husband and the wife in the particular circumstances of this case.
An important issue between the parties was whether or not they should have joint parental responsibility for J as sought by the husband or sole parental responsibility as sought by the wife.
After some analysis of the legislation by counsel, it was acknowledged that the presumption of equal shared parental responsibility provided in s61DA does not apply so far as J is concerned. The reasons are as follows.
The parties are not J’s parents. J is the niece of the wife. The parties are not parents within the definition of “parent” as defined in s4(1).
Consequently, the “presumption of equal shared parental responsibility” provided for in s61DA(1) specifically referring to “the child’s parents” [emphasis added] does not apply to the parties so far as J is concerned.
Nonetheless, each of the parties seeks parenting orders in relation to J. There is no issue that the Court has jurisdiction to make a parenting order in view of the appropriate document signed by the Minister for the Department of Community Services New South Wales dated 11 July 2006 being Exhibit 3.
Section 64B provides that a parenting order is an order under Part VII of the Act dealing with a matter mentioned in s64B(2) or an order under that part which discharges, varies, suspends, or revives a previous order or part thereof. That alternative basis is not relevant in these proceedings.
Section 64B(2) sets out the matters which may be dealt with by a parenting order. Those matters include inter alia a person with whom a child is to live; the time that the child is to spend with another person; and the allocation of parental responsibility for a child. Those matters lie very much at the heart of the respective applications of the parties.
So far as “parental responsibility” is concerned, it includes “all the duties, powers, responsibilities and authority” which, by law, parents have in relation to children in accordance with s61B.
Section 65DAC provides that in the event of a parenting order requiring two or more persons to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to that child, then the decision is required to be made by those persons jointly after consultation between them and a genuine effort to arrive at a joint decision. In that regard, s65DAE provides that there is no need for consultation on issues that are not major long-term issues.
“Major long-term issues” are defined in s4(1) which includes relevant to these proceedings “the child’s education (both current and future)” and “the child’s health”.
J came into the care of the parties when she was a baby in the traumatic circumstances to which I earlier referred. J has serious health issues. There is considerable expert evidence in relation to those issues.

That evidence includes the report of Dr C, paediatrician, the reports and clinical notes of Dr T, paediatrician, and notes of counsellors at M Community Health Centre as contained in Exhibit 24. In addition, the school records in relation to J deals further with her behavioural problems and what is described as “very needy emotional demeanour” (Exhibit 18).
It is obvious that careful and sensitive parental care must be offered for J to assist in her gradually overcoming her behavioural issues. There have been two consultations with Dr T at the end of 2006. On each occasion J took part. On the first occasion, the parties were also present. On the second occasion, only the wife attended. The husband did not have prior knowledge of the latter consultation. I accept that it was organised urgently on the day that issues involving J were pointed out to the wife by one of the school staff who it seems was the Deputy Principal. Nonetheless, it was unfortunate to say the least that the husband was not informed even on very short notice.
I have determined that in accordance with s65DAC(1) the parties have joint shared parental responsibility for J in relation to the major long-term issues involving her current and future education as well as her health for the following reasons.
Whilst the wife has had the primary responsibility for J’s daily care, education and health, and is undoubtedly dedicated to doing the best for J, there is no issue that the husband loves J and wants to assist her to progress. The problems which have arisen as between the parties so far as J is concerned, have been due to a combination of poor communication between the parties due to the conflict between them; the husband’s misguided view that J’s difficulties were not as serious as the wife had made out; and the inconsistent parenting styles as between the two households.
The husband was not as fully informed as the wife in relation to Dr T’s opinions and recommendations partly due to not having had the opportunity to attend the second consultation at the end of 2006, or being informed about it so he could make his own individual enquiry of Dr T, but also because he considered his method of parenting J was the appropriate one.
Given that there is no issue in principle that J should continue to spend time with the husband, it is important that he be directly involved with the wife in obtaining the advice of the appropriate health professionals as to the most appropriate parenting that J should receive from each of the parties. As both

Dr T (Exhibit 4) and family consultant have emphasised, it would greatly benefit J not to mention the boys if there was a consistent parenting style for her in both households.
The husband gave evidence that he is willing to consult further with Dr T who he has confidence in so as to receive and follow his advice in that regard.
It seems to me that realistically, in this particular case, it is in J’s best interests that the parties join together in seeking advice from the same professionals, including Dr T and the counsellors at the M Community Health Centre preferably at the same time, so that the most appropriate parenting style can be followed by each of the parties for J’s benefit.
That is more likely to be achieved if there is an order which provides for joint shared parental responsibility.
So far as the periods of time that should be spent with the husband, his proposal is that J spend the alternate weekends with him and the other two children from 6.00pm Friday to 6.00pm Sunday as well as week day overnight period.
I have previously made findings and consequent determination that it is in the best interests of the sons that they have a regular period of time with the husband without J being present due to the difficulties that have arisen in the past to which I have referred.
Given that J attends school, the obvious period for consideration is during the weekend. There are clear benefits for her to spend time with the husband in the company of both the boys which, having regard to the orders that will be made so far as they and the husband are concerned, would then inevitably mean part of alternative weekends during school term.
Consequently, I will make an order that requires the parties to ensure that J has the period from 9.00am Sunday until 7.30pm that day being part of the same alternative weekend in school term that will be spent by the boys with the husband.
So far as other periods of time are concerned, I do not propose to specify those periods given the particular behavioural and other problems that J has which require sensitive and flexible parenting following expert advice. As previously noted, the husband gave evidence that he is willing to seek and follow such advice especially from Dr T.
I consider that it is J’s best interests the parties join in seeking and following that expert advice as soon as possible and thereafter as required. That may mean that a flexible approach is required by the parties as to the periods of time that J spends with the husband which may very well vary from time to time in the foreseeable future depending upon her progress and expert advice.
The manner in which the parties finally make a joint concerted effort in that regard has implications not only for J’s best interests, but also those of the boys as well as the parties themselves.
There have been past disputes between the parties regarding periods of time the children should spend with each of them on Christmas Day. The parties have a different approach so far as Father’s Day and Mother’s Day are concerned. It would not be surprising that upon reflection each of the parties finds their disputes on those matters, as well as generally, to have been demeaning considering they are both intelligent, educated people who undoubtedly love the children.
Unfortunately, as their evidence differs in relation to those particular occasions, I will make orders as to the periods of time that the children should spend with each of the parties when those occasions and other similar important days occur. That will involve sharing of Christmas Day and Boxing Day on an alternative basis as well as the children spending Father’s Day and Mother’s Day with the appropriate party and reasonable time to enjoy birthdays together.
A common thread that runs through the range of issues impacting adversely upon the children is the highly conflicted relationship between the parties. They have been solely responsible for those issues, except for the issues peculiar to J.
Each of the parties expressed a willingness to take part in a suitable program to improve communication between them. Appropriate orders will be made.
Consistent with the expert evidence before me, including that of Dr T in Exhibit 4, the parties must now work together to find a constructive solution for the benefit of the children. Only the parties can do so. They hold the key to their children’s future happiness. Time will tell whether the fine sentiments expressed by the parties during their evidence will be put into action. They will have to realise they have the responsibility to do so.

I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 10 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CLIVES & CLIVES

[2007] FamCA 695

12 July 2007

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