Cowles and Cowles

FEDERAL CIRCUIT COURT OF AUSTRALIA

COWLES & COWLES

[2014] FCCA 660

Catchwords:
FAMILY LAW – Whether one parent more able to provide for psychological and emotional needs than other parent – whether one parent more focussed on own needs rather than children’s needs – property with very small pool.

Legislation:

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

Applicant:

MS COWLES

Respondent:

MR COWLES

File Number:

DGC 2643 of 2012

Judgment of:

Judge Phipps

Hearing dates:

6 & 7 February 2014

Date of Last Submission:

7 February 2014

Delivered at:

Dandenong

Delivered on:

4 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Potter

Solicitors for the Applicant:

Einsiedels

The Respondent:

Appearing in person

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

Children

That the husband and the wife have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2007.
That the children live with the wife.
That the children spend time and communicate with the husband as follows:
(a)On alternate weekends from after school Thursday to commencement of school Monday;
(b)Half of all school term and summer holidays by agreement and failing agreement for the first half in 2014 and the second half in 2015 and alternate years thereafter;
(c)From 9.00am Boxing Day 2014 to 6.30pm on 27 December 2014 and alternate years thereafter;
(d)From 9.00am on 24 December 2015 until 9.00am on 26 December 2015 and alternate years thereafter;
(e)By telephone and electronic communication at all reasonable times;
(f)Otherwise by agreement between the husband and wife.
Paragraph 3(a) is suspended during all school term and summer holidays.
If the children are spending time with the husband during the first half of summer holidays the time is suspended from 9.00am 24 December 2014 until 9.00am on 26 December 2014 and alternate years thereafter and from 9.00am Boxing Day 2015 to 6.30pm on 27 December 2015 and alternate years thereafter.
Commencing second term 2014 the children will be enrolled and attend [K] Primary School.

Property

The remaining net proceeds of the sale of the party’s former matrimonial home be paid half to the husband and half to the wife.
Otherwise each party retain the property, including superannuation, now in their name or possession.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2643 of 2012

MS COWLES

Applicant

And

MR COWLES

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Cowles the wife, and Mr Cowles, the husband have two children, [X] born [in] 2005 and [Y] born [in] 2007 and a small amount of money remaining from the sale of their former matrimonial home and some superannuation. The wife proposes that the children live with her and the husband proposes that the children live with him. The wife proposes that the small amount of money should be divided in half and the husband should keep his superannuation. The husband proposes that $2,000 be paid to the wife and the balance to him and he keep his superannuation.

Issues

The significant issues concerning the children are which parent is better able to provide for their needs, and each parent’s attitude to the responsibilities of parenthood. The issues have to be decided in the context of the Children’s provisions.
Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). The objects of the part are contained in s.60B. Section 60CA provides that in making a parenting order the best interests of the child is the paramount consideration. Section 60CC contains the matters a court must consider in determining what is in the best interests of a child.
Section 61DA provides for a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply or is rebutted in circumstances described in the section.
Section 65DAA provides that when a court makes or intends to make an order for equal shared parental responsibility the court must consider whether spending equal time with each parent is in the best interests of the child and whether it is reasonably practical. If not then the court must consider whether spending substantial and significant time is in the best interests of the child and whether it is reasonably practical. Section 65DAA(5) describes the matters that court must take into account in determining what is reasonably practical. Section 65DAA(3) describes substantial and significant time.

Proposals

The wife’s proposal for children’s orders is:
a)The parents have equal shared parental responsibility for the children;
b)The children live with the wife;
c)The children spend time with the husband alternate weekends from after school Thursday to commencement of school Monday, half school holidays, time on various special days and otherwise as agreed.
The husband was represented until shortly prior to the hearing. While he filed affidavits he did not file a case outline. His response filed on 3 April 2013 proposed for property orders that he pay the wife $2,000 and that he retain the balance of the property.
The wife’s proposal for property is that the net proceeds of the sale of the former matrimonial home, about $14,000, be divided equally and that otherwise each party retained the assets in their respective positions including superannuation.
The husband’s proposal for children’s orders is:
a)The husband have sole parental responsibility, or at least sole responsibility for making decisions about education;
b)The children live with the husband;
c)The children spend time with the wife alternate weekends from after school Thursday to commencement of school Monday, half school holidays, time on various special days and otherwise as agreed.
The Independent Children’s Lawyer supports the wife’s proposal as does the Family Report writer. The decision on children’s matters is finely balanced. The Independent Children’s Lawyer’s preliminary opinion at the commencement of the hearing was to support the husband’s proposal. The family consultant, Ms F prepared two reports one dated 22 March 2013 and the other 6 January 2014. In both reports she recommended that the children live with the husband. In the course of her evidence at the hearing she changed to say that the children could live with the wife.

The parties and history of the relationship

The wife was born [in] 1976 and the husband [in] 1981. The wife has two children from a previous relationship [A] born [in] 1996 and [B] born [in] 1998.
The parties met in [omitted] in 2002 and then moved with the wife’s daughters to live in [omitted]. They left there after two years to live with the husband’s parents in [W]. Their first child, [X], was born on [in] 2005. The wife was in hospital for three months and the husband’s parents cared for her daughters.
The parties married [in] 2006 and the second child, [Y], was born [in] 2007. Both parties acknowledge marijuana use and the husband amphetamine use. For a time the husband worked as an [omitted].
The parties separated in September 2009 and the children lived with the wife and spent occasional weekends with the respondent. There is some difference between the husband and wife about how often this was. The husband was working as a [occupation omitted] and the wife continued to live in the former matrimonial home at [address omitted]. She was not working and was caring for the four children. The husband continued to make the mortgage payments on the house and pay the applicant $300 a week in addition. The wife had re-partnered with Mr K.
In November 2011 the wife obtained employment as a [omitted] starting at 7.00am and finishing at 3.00pm. She says she needed the extra funds to support the children. The husband was not working. The parties agreed that all four children would reside with the husband. I accept that what the wife says is correct, that is that the agreement was that it would be for three months while the wife settled into her work. The wife saw all four children only occasionally, each party blaming the other for time not being more frequent.
In February 2012 the two older children [A] and [B] returned to live with their mother, that being their wish, but [X] and [Y] remained with the husband, against the wife’s wishes. The husband did not send [X] and [Y] to school, he says for six weeks, the wife says 10 weeks. He did not send them because he was afraid the wife would collect the children from the school.
The wife did not see the children for 3 months. The parties then attended mediation and after that the children started seeing the wife from 9.00am Sunday until 9.00am Monday.
The wife commenced these proceedings on 27 August 2012. Consent orders made on 15 October 2012 provide for the children to live on a week on week off basis with each party, that is equal time with each party. Subsequent orders appointed an Independent Children’s Lawyer and ordered a family report.
The family report, dated 23 May 2013, was prepared by Ms F. It is the first of two reports by Ms F. This led to consent orders on 30 May 2013 that the children live with the husband and spend time with the wife each alternate weekend from the conclusion of school Friday to the commencement of school Monday or Tuesday if Monday was a public holiday, alternate Mondays from the conclusion of school to 7.00pm and one half of holidays and the various special occasions.
In June 2013 the wife and Mr K moved to a rental property in [omitted] near [K]. It was a four-bedroom house on 17 acres. After that move the husband and wife agreed that the alternate Monday evening after school would cease and be replaced to include Thursdays during the alternate weekend time so that the children now spend time with the wife alternate Thursdays to Mondays during school time and half of school holidays.
The wife now works [omitted] four nights a week, Sunday to Wednesday, from 9.00pm to 2.00am. Sometimes there are additional nights. She works on [omitted] and generally leaves home about 7.00pm and returns about 4.00am. Mr K [occupation omitted] during the day working 6.00am to 3.00pm Monday to Friday. The wife says that from her home in [omitted] to the children’s school in [W] is about a 45 minute drive.
The husband alleges that the wife frequently has missed taking the children to school on Friday. The wife says it was only twice when she had car difficulties. Mr K said that the car runs on gas and there have been problems with the gas freezing.
The husband lived with his parents until February 2013. The children had lived with him and his parents since November 2011. In early 2013 the husband commenced living with Ms A in rented premises in [C]. Ms A 15-year-old daughter, [name omitted], lived with them, spending weekend time with her father.
In September 2013 Ms A with her daughter moved out of the rental property in [C]. In the same month, September 2013, the husband and the children commenced living with Ms D and her three children [name omitted] 10, [name omitted] 8 and [name omitted] 3. Ms D lives in a house owned by her parents. Both the husband and Ms D say that their aim is that by the end of 2015 the house will be transferred into their names and they will resume all responsibility for mortgage and other payments for the house. The husband is currently not working because of a [medical condition omitted]. Prior to that he was working as a [omitted] about four days a week.
The husband says that he reconnected with Ms D in July 2013. He says they had known each other since high school but had not had contact with each other for many years. Ms D had separated from her husband after an eight year marriage.
The children are attending [W] Primary School. The father wants them to move to the [B] Primary School in [suburb omitted]. Ms D’s children attend this school and her mother has been on the staff of the school for over 23 years as [occupation omitted]. The wife wants the children to attend to [K] Primary School.

Best interests considerations

The pathway through the legislation described by decisions of the Full Court of the Family Court of Australia commences with a consideration of the s.60CC considerations, the matters a court must take into account when determining what is in the best interests of the children.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child's parents.

The parties’ affidavits contain various criticisms of the other parent and of the children’s attitude to the other parent. In the end, each parent acknowledges the love between parents and children on both sides and a good relationship between each parent and the children.
For the first report Ms F saw the parties and conducted observations on 18 April 2013. She describes the wife as demonstrating mostly involved and responsive parenting of the children. Ms F describes her as warm and mainly focused on the children. She says that the children seemed comfortable with the wife and interacted particularly warmly with their half-sisters [A] and [B]. They responded to Mr K as a friendly adult.
For the second report she saw the parties and conducted observations on 5 December 2013. Her observations of the relationship between the wife and the children was similar to the first occasion. Ms F described the session as proceeding with warmth and focus. She said that Mr K was involved and warm with the children who interacted enthusiastically with him.
Until September 2009 the children lived with both parents. From then until November 2011 they lived principally with the wife. From November 2011 until October 2012 they lived with the husband, and saw little of the wife. From October 2012 until May 2013 they spent equal time with each parent and since then they have lived with the husband and spent alternate weekends with the wife, Thursday night to Monday morning. They have spent holiday time with the wife, three weeks in January 2014.
The children will have a meaningful relationship with both parents no matter which parent’s proposal is adopted.

The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

According to the wife there have been two occasions of actual physical violence by the husband to her. The husband says there was one. No evidence suggests that now, nearly 3 ½ years after separation, there is any risk of family violence affecting the children.
There was an occasion when the child protection service and the Children’s Court of Victoria became involved. [Y] got out of the house when she was two and was found by the police. The wife explained that [Y] was not well the night before and the wife had been up most of the night. In the morning the husband was asleep. He was at that stage working as an [omitted] and was home for the weekend. The wife put [Y] into bed with the husband and went to the other end of the house. The husband woke as she came back and [Y] was gone. The involvement of the child protection services and the Children’s Court of Victoria was short lived. Nothing in this incident suggests that there is any current risk to the children.
Each party is critical of some aspects of the other party’s care. None of what is alleged amounts to physical or psychological harm or the risk of abuse or neglect of the type relevant to this consideration. The evidence is relevant to the ability of each parent to care for the children.
In earlier affidavits in the proceedings concerned were raised about the behaviour of a 19-year-old, Mr D. The wife explained that he no longer came to her house and there are now no concerns about him.

Additional considerations

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.

In the second family report Ms F says that if he could choose living arrangements, [X] said “I’d live with Mum because she is more funner. I’d see Dad every two weeks.” This statement has to be put in the context of the mother’s living arrangements. She lives on a small farm with 17 or 18 horses. As well as a [occupation omitted]. The children have horses to ride when they are at her home and both parents acknowledge the farm is an attraction for the children.
While the attraction of the farm and the horses might influence [X] it is part of his relationship with his mother and so his statement that “she is more funner” should not be seen as a statement that it is the mother’s home which is more fun rather than the mother. [X]’s age, a little over eight years, has to be taken into account but I accept that his view is that he would rather live with his mother.
Ms F does not record any view by [Y] about where she would rather live. The husband says that [Y] has told him she would rather live with her mother. The circumstances in which she said were not explored. Given this and [Y]’s age at not quite seven, little weight can be placed on her view.

The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child).

The history of the relationship of the children with each parent and

Ms F’s observations of the children’s relationship with each parent is described under the first of the primary considerations. Given the parties’ working history the children’s primary attachment prior to separation would have been to the wife. For the next two years she was their principal carer, then there was the time from November 2011 until October 2012 when they lived with their father and saw little of the mother. That was followed by the time from October 2012 to May 2013 when they spent equal time with each parent and from then they have lived with their father and spent extended alternative weekends with their mother.
The children have a strong attachment to each parent. Ms F describes it as a dual attachment. Significant to this case is the children’s relationship with their half-sisters, [B] age 17 and [A] aged 15. The children have lived with them as siblings all their lives until February 2012 when [B] and [A] returned to live with their mother after living with the husband and the children from November 2011. Since then the children have seen their sisters when they have been spending time with their mother.
[B] this year commenced a TAFE college [omitted] course at [omitted] and lives in accommodation provided by the college in [omitted]. Her mother drops off on Monday morning and picks up on Friday night. [A] lives at home with the wife and Mr K, and the children when they are there.
[B] and [A] attended for the observation sessions for Ms F’s first report. Ms F noted that when they joined the observation the children greeted them warmly and [B] and [A] were equally responsive. Ms F describes a warm and playful atmosphere with the older sisters actively chatting with the children.
The evidence shows that the paternal grandparents have had and still have a significant involvement in the children’s lives. The paternal grandmother took a large part in caring for them while the husband and the children were living with her from November 2011 until February 2013.
The children get on well with the husband’s partner, Ms D. She plays a large role in their care. When the husband was working he would get up at 5.30am in the morning and leave shortly after. Ms D would get the children breakfast, prepare them for school, make lunches and take them to school.

Since the husband has not been working he has helped, but generally Ms D on a school morning gets up before him and does the morning tasks such as getting breakfast, doing hair, making lunches and generally preparing the children of the day. She does some of the school drop-offs and pickups.

The extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

Other than the history of the children’s time and communication with each parent and of these proceedings there is no other evidence relevant to this consideration.

The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

Each party has maintained their obligations to maintain the children.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

The children have a good relationship with each parent and with their half siblings. If the children’s living arrangements are changed from predominantly with the husband to predominantly with the wife they will continue to maintain those good relationships.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

The distance the parties live apart, a 45 minute to one hour drive, means that short periods of time with a parent, such as sufficient time to have an evening meal on a school day, is not practicable. The only practicable living arrangements are those proposed by each party.

The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

Ms F describes parenting capacity, particularly of the wife, as a significant issue in dispute. She refers to the issues raised about the wife’s capacity in the family consultant’s memorandum of 16 November 2012. This resulted from an order I made pursuant to s.11F of the Family Law Act 1975 (Cth) for the parties and the children to attend a family consultant. The meeting with the family consultant included [B] and [A].
Issues which came up with the family consultant included [B]’s isolation at school, allegations of inappropriate behaviour towards [B] by the husband when all four children were living with the husband, the wife’s claimed unwillingness to cooperate with the school to assist with [X]’s reading, her alleged collusion with Mr K to denigrate the father and to encourage the children to have a diminished view of their father, her unwillingness to support the children having a relationship with the father and claims that neither [B] nor [A] confided their alleged concerns about the husband’s behaviour to the mother but to a 19-year-old.
The family consultant’s memorandum described the wife as not appearing to be child focused and that her work, her horses and her relationship with Mr K were prioritised over the needs of the children.
Ms F in her first report said that the wife again demonstrated limited appreciation of the children’s needs and their development. Ms F says that it was notable that when the wife was provided with the opportunity to discuss the children’s needs in relation to her proposal for the living arrangements, the wife emphasised her own needs and rights as perceived by her. In the first report Ms F also remarked on the wife’s and Mr K’s full-time employment which would have required considerable organisation to meet all four children’s needs for structure and routine. Ms F referred to the husband’s concerns about incomplete homework and uncertain study habits for the children.
In the second report Ms F says that both parents had modified their views on the extent of the incompetence of the other since the first report in May 2013. The wife conceded that the children were progressing well in the husband’s care but that she continued to raise specific incidents allegedly told to her by the children in relation to health issues.
In the second report Ms F describes the husband as speaking in detail about the children’s developments and their needs describing a routine and support of education that he and Ms D employed. Ms F says that the wife did not elaborate on the children’s development, instead again focusing on the husband’s purported failings.
Ms F describes the children presenting as healthy and well cared for. She says they interacted positively with both parents and with Mr K. They engaged warmly with the paternal grandmother and Ms D.
Two incidents occurred in early 2014. Each parent says an incident reflects poorly on the other parent’s parenting and attitude to parenthood. The children spent three weeks of the summer holidays with the wife. When the husband and Ms D arrived to collect them the wife and one of her daughters and another person were riding horses on the dirt road about 500 metres from the home. When they arrived at the house [X] was cantering his horse around the metal track at the front of the house.
The husband and Ms D say that no one was supervising. The wife says that there was another adult present. The wife says she was riding because the third person she and her daughter were with was a potential buyer of a horse.
The husband and Ms D are critical of the way the children were dressed, they say, in long tracksuits and thick long-sleeved tops although the temperature was 30°. The mother says the children were wearing tracksuits and long-sleeved T-shirts because they were riding horses.
[X] was wearing a helmet and he is a competent rider. Whether another adult was present close enough to supervise [X] is not something I can resolve. The wife is a [occupation omitted]. She is knowledgeable about horses and must be aware of [X]’s capabilities. I think it unlikely that she would leave [X] in a situation she regarded as unsafe.
The husband and Ms D say that when they left with the children the children complained they had not eaten that day and they stopped for some food. The mother described breakfast and lunch. I think it unlikely that the children had had nothing to eat at all. Before the children left with the husband and Ms D they wanted to ride their horses to show their father, their mother agreed, and that was done. This suggests that the children were having a happy day and so must have eaten something by mid-afternoon. Perhaps they saw an opportunity for something to eat without waiting for the evening meal.
The next weekend the husband and the children went with Ms D and her family to camp near [omitted]. [X] was badly sunburnt in a strip across his legs. The husband and Ms D say that [X] was wearing a wetsuit and they were careful to apply sunscreen. The explanation for the sunburnt strip was that sitting in the boat a strip of skin between the legs of the wetsuit and the sun cream was exposed.
The criticism of the husband and Ms D seems to be that they did not inform the wife about the sunburn which Ms D had been treating with cream. The wife learnt of the sunburn when she collected the children from school that week.
An incident of sunburn in the circumstances described does not demonstrate an overall lack of care by a parent. The criticism of the husband seems to be that the wife was not informed. This demonstrates the lack of communication between the parties, in this case on the husband’s part, but it is only one example of many where there has been a lack of communication by one or other of the parties or both of them.
In both reports Ms F describes the wife as poorly groomed. The wife says that at the time of the first interview she had been working the night before and had the flu. For the second interview she had purchased new clothes and made an effort to be neatly dressed. The wife was well-dressed and tidy at the hearing.
Ms F acknowledged that the wife lived in a country area and had dual occupations of [omitted]. Ms F said that other people from a rural background attended for interviews dressed well and neatly. Ms F said that poor dressing when attending an interview for a family report could suggest a badly organised person.
From November 2011 the children have lived either principally with the husband or half the time with the husband. This suggests competence on the part of the husband in caring for the children. Against this is that he has always had the assistance of another person, first his mother, then Ms A and now Ms D. Ms D’s description of the daily routine of caring for the children suggests that she takes the principal part, even since last November when the husband stopped working because of his knee.
There was almost no gap in the time between the husband stopping living with Ms A and commencing with Ms D. The husband says that he and Ms D had known each other since high school but had no contact with each other for many years. They reconnected in July 2013. He says that even though the children had formed a good bond with Ms A neither of them were terribly sad or affected when they decided to end their relationship.
The husband says that he and Ms D decided it would be more suitable for [X] and [Y] to only have to move once rather than back to his parents while he found another house to rent with the possibility of moving again and eventually into Ms D’s property. The husband claims that he and Ms D explained their decision to the children and that they would not go ahead if the children did not feel comfortable. He claims that the children stated they were really excited about the idea and really wanted all, including Ms D’s three children, to live together.
For the first report Ms F conducted interviews and observations on 18 April 2013. The observations of the children with the husband included being joined by the husband’s then partner Ms A. The husband told

Ms F that he and Ms A had lived together since February 2012. He said they had known each other for 10 years and that “it is going really good. We’re on the same page… [first name omitted] is fantastic with the kids… She’ll shall watch the kids and tell me that [X] needs to kick the footy with you.… [Y] gets her hair done every day with ribbons”.
Ms F describes the atmosphere when the children were with the husband and Ms A as warm, active and focused. Clearly the children had a very positive relationship with Ms A and she helped with the day-to-day care of the children.
According to the husband the relationship with Ms A had finished by the start of June 2013. He says she decided to move out in early September 2013 although she had not actually resided at the property since the start of June 2013. He says they had arguments and disputes before that so it seems that the relationship between the husband and Ms A, commenced in February 2013 and observed by Ms F on 18 April 2013, was short lived but in that time the children had developed a close relationship with Ms A.
While the husband says this is the case he then says that the children were keen to commence living with Ms D and her children in September 2013. He does not seem to appreciate how moving the children from one household, and from Ms A, with whom they had a relationship and who had played a significant part in their care, to another household with Ms D who was to immediately commence taking a significant part in their care, might affect the children.
The husband is critical of the way the children are dressed when with the wife. The wife says that they are on a farm environment and riding horses and she dresses them appropriately. The wife is critical of some aspects of the children’s care with the husband.
Ms F observed healthy well cared for children with positive relationships with both parents and their half-sisters. The independent evidence suggests that the criticism each parent makes of the other is not well founded.
Ms F, in her report, assessed that the father was better able to provide for the children’s intellectual and emotional needs. She describes

Ms Cowles as talking more about herself rather than the children. A particular matter is [X]’s reading. He was behind in reading but has caught up. The father gave quite detailed evidence about attending to the reading and homework of both children but particularly [X]’s reading.
While Ms F assesses the father better able to provide for the children’s emotional and intellectual needs she acknowledged in her oral evidence that the decision about where the children would be better living was marginal. Thus it is not a matter of the mother not providing for these needs of the children but Ms F’s assessment at the time that the father was better able to do it.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

No evidence other than that already described is relevant to this consideration.

If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right.

This consideration is not relevant.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

In November 2011 the wife placed the children in the husband’s care and then saw little of them until the parenting plan in May 2012. While her wish to be able to concentrate initially on her new employment is a rational reason for doing this, seeing little of the children, if that was her choice shows a lack of focus on the children’s needs. Until then she had been their principal carer.
The wife says that the husband prevented her from seeing the children but there is little evidence of the wife’s attempts to do so. Once [A] and [B] return to her she then did commence attempts to have the other two children returned to her.
When in February 2012 the dispute arose between the parents about where the children were to live the husband withheld the children from school and did so for the sole reason of preventing the wife from taking them into her care. He wanted to keep them. By then it was quite clear the wife not only wanted to see the children, she wanted them returned to her care. Preventing the children from seeing their mother and withholding them from school for at least six weeks shows a focus by the husband on his own needs and desires and a disregard of the children’s need to see their mother and to attend school.
Ms F in her oral evidence said that the children had dual primary attachments; that is attachment to both the husband and the wife. She accepted a proposition put to her by counsel for the wife that the question of who the children would be better with, the husband or the wife would be decided by a small margin. One of the matters put to her was that the husband, in his evidence when asked what he would propose for the children’s time with him if it was decided the children should live with the mother said Friday through to Sunday after initially saying Thursday through to Monday. He said this was because of the distance to be travelled to school. Ms F acknowledged that it was concerning that the husband seemed to be backing away from significant time with the children if they were living with the mother.
In her second report Ms F remarks on the negotiations between the husband and wife for changeover of the children that day. The children would return home with the husband and be collected by the wife that day. Ms F says that the wife had to ask the husband twice for his address because she did not know it. Ms F acknowledges that the husband not letting the wife know where the children were living and then hesitating about giving her the address was not child focused.

Any family violence involving the child or a member of the child's family.

The wife alleges two instances of actual physical violence. She says that in 2007 she and the husband were having an argument. She was going to leave with the children and he said you’re not taking them and grabbed [Y] who was in her arms and punched the wife in the jaw breaking it. Later he took her to hospital.
The wife says there was an earlier occasion in 2005 when she received concussion. She asked him to come to dinner when he was playing on the computer he refused. She turned the computer off and he pushed her against the wall.
The husband acknowledges both things happening but says that they were both in the one incident in September 2009. He punched the wife and pushed her against the wall. He acknowledges breaking her jaw and that she suffered concussion. He says the children were not present although in the house.
Each party has a different version of the incident. The significance is that there was one and possibly two occasions of physical family violence, two years or more before separation. There is no allegation of similar events since then.

Any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested by a person.

There are no family violence orders.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

No evidence is relevant to this consideration.

Any other fact or circumstance that the court thinks is relevant.

No other fact or circumstance is relevant.
Section 60CC(4) contains considerations which are the extent to which each parent has taken the opportunity to participate in decision making about the child and spend time and communicate with the child, and has facilitated the other parent doing the same. The subsection contains a consideration of the extent to which a parent has fulfilled an obligation to maintain the child. Any matters relevant to this consideration have already been discussed.

Conclusion

Ms F acknowledges that whether children will be better living with the husband or the wife is a marginal decision. When a number of things were put to her by counsel for the mother she said that she would support the possibility of the children spending more time with the mother or living with the mother and that she would support quite substantial time with the father given the children’s secure attachment relationship with both parents.
A number of the matters discussed above under the best interests considerations point to the mother being the better principal carer of the children.
Both have the capacity to care for the children. The mother was the principal carer from separation until November 2011. The children have done well in the father’s care since then and noteworthy is that [X]’s reading has improved. There is some doubt about the father’s ability to care for the children on his own. He has had either his mother or each of his two partners to help him. Ms D’s evidence shows that she took the major role in day-to-day care, understandable at the time when the father was working and understandable because, as she said, she does the same thing for her children. The mother has had the principal role in the day-to-day care of the children. She has Mr K’s help and their working arrangement means that she can work at night and be actively involved with the children.

The mother’s day-to-day care of the children is criticised by the father but, as I have already noted, given the children are happy and secure in their lives, their day to day care must be satisfactory.
In the first report Ms F saw the wife as being more focused on her own needs and the husband more focused on the children. In the second report she found the mother more involved with the children. Some of the husband’s actions show him more focused on his own needs.
In February 2012 he kept the children out of school for at least six weeks so that he could retain them and the mother could not collect them from school to have them live with her. He disregarded the children’s interests in two significant ways. They were not attending school and they were not seeing their mother and he was deliberately keeping them away from the mother. In addition, the children were separated from and not seeing their siblings, siblings they had lived with all their lives.
In September 2013 he moved the children’s residence to live with

Ms D and her three children. In his evidence he did not seem to appreciate how this might affect the children. They had formed a relationship with Ms A; a person significantly involved in their care, and then were moved to live with Ms D who became another person significantly involved in their care. In addition they moved into a family with three children and them. The father talked of the children as if they were a single family, and said that this was the decision he and Ms D had made. They made no distinction between the children.
While steps to integrate two families are desirable it is another indication of the husband looking to satisfy his own needs in a new relationship without taking into account the children’s right to and need for their relationship with their mother.
The husband’s attitude to the time the children should spend with him if they were living principally with their mother, I consider, shows he was thinking more of his own interests than the children’s. Given the children’s secure attachment to him that they should spend a substantial amount of time with him. A reversal of the current interim arrangement so that the children would spend Thursday night to Monday morning with him was at first accepted by him but then almost immediately he changed to Friday night to Sunday night, his reason being the amount of travelling.
While the husband puts this as affecting the children my impression is that he was thinking more of his own interests. The children have been doing the travel, driven by the wife, since May 2013. The travel time is about three quarters of an hour according to the wife a little longer according to the husband. While it is a considerable amount of travel time it is not so much that its reduction should take precedence over the children’s relationship with a parent. In rejecting the longer amount of time I consider the husband is thinking of his own interests rather than the children’s.
Overall the ability to care for the children and attitude to parenthood factors favour the wife. Added to this is the view of [X] that he would rather live with the wife and the children’s relationship with their older siblings. [B] now lives away from home during the week and she will probably move away more as she gets older but she will see the children for a significant amount of time. [A] should remain living at home for some time. Ms F’s observations show that the children’s relationship with their siblings is important.
The husband proposes that he have sole responsibility for education matters. This could only be the case if the children were living with him and attending school near his home. The children will be living with the wife and changing schools. She proposes equal shared parental responsibility and while the presumption might be rebutted by the evidence of family violence acknowledged by the husband, the involvement of both parents with the children and the children’s secure attachment to both means that there should be an order for equal shared parental responsibility.
An order for equal time is not reasonably practicable even if it is otherwise in the best interests of the children. This is because of the distance the parties live from each other. So far as substantial and significant time is concerned, again because of the travel, the reasonably practicable arrangement is alternate weekends. The parties themselves found this to be the case.
If the children are living with the wife the husband proposed alternate weekends Friday night to Sunday night. Ms F considered that not enough and it should be Thursday night to Monday morning. The children’s best interest will be served by the father having the opportunity to have the children spending from Thursday night to Monday morning with him. He may elect to have them for less time but that will be his decision. Half school holidays and special occasions are not in dispute.

Property

The property is small an amount, about $14,000, the balance of the proceeds of sale of the former matrimonial home, and the husband’s superannuation. Each party has already received a payment from the sale proceeds.
The history of the parties’ relationship, working arrangements and care of the children is set out above. The husband proposes that $2,000 be paid to the wife and the balance to him because he continued paying the mortgage after separation and the wife remained living in the house with little contribution.
This factor is an element in assessing contributions but it does not determine what should happen. Throughout the relationship until separation the husband was the principal income earner while the wife was the principal child carer and homemaker. The care of the children since then has been described in detail. The husband has had the greater share of the care including the greater financial contribution. That does not affect the assessment of contributions. Contributions are equal.
The significant factor in determining whether there should be any adjustment for the matters contained in s.75(2) is the amount of property. The wife does not seek a superannuation splitting order. The amount is about $14,000. The wife is working and so is her partner. The husband is not working and neither is his partner but they have secure accommodation. The children will be living principally with the wife. There should be no adjustment.
An order that each party be paid half of the amount is just and equitable.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 4 April 2014

[2014] FCCA 660

4 April 2014

Key Legal Topics

Areas of Law

Family Law

Property Law