CROWTHER & KITCHENER
[2010] FamCA 1179
•23 December 2010
FAMILY COURT OF AUSTRALIA
| CROWTHER & KITCHENER | [2010] FamCA 1179 |
| FAMILY LAW – CHILDREN – Parenting – Equal time or significant and substantial time - Allegations violence and of father exposing children to pornography – Allegations that father’s mental health is a risk to the children | |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4A), 60CA, 61C, 61DA and 65DAA, | |
| MRR v GR [2010] HCA 4 McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010 |
| APPLICANT: | Mr Crowther |
| RESPONDENT: | Ms Kitchener |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
| FILE NUMBER: | HBC | 969 | of | 2009 |
| DATE DELIVERED: | 23 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 1, 2, 3 & 26 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Marcus Turnbull with Ms Mollross |
| SOLICITOR FOR THE APPLICANT: | Ogilvie Jennings |
| COUNSEL FOR THE RESPONDENT: | Mr Michael Trezise |
| SOLICITOR FOR THE RESPONDENT: | Dobson Mitchell & Allport |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kate Mooney |
Orders
All previous parenting orders be dismissed in respect of the children S born … April 2005 and L born … June 2007 (“the children”).
BY CONSENT Mr Crowther (“the father”) and Ms Kitchener (“the mother”) have equal shared parental responsibility for (“the children”).
BY CONSENT neither party physically discipline the children or either of them.
BY CONSENT and without any admissions the father not approach or speak to the child V born … August 1997 (sometimes known as …) without the written consent of the mother.
Except as otherwise provided in these orders or agreed in writing between the parties, the children live with the mother.
The children shall live with the father;
a.During school term from 2011 onwards, the children live with the father each alternate week from the conclusion of school Friday until the following Wednesday at the commencement of school (if L is not at school or pre-school/day care then from 4.00pm Friday until 8.30am Wednesday).
b.Changeovers are to take place at either the B Infant School or the N Day Care, if the child or children are attending school or otherwise from the home of the mother.
c.Such alternate weekend time shall commence the first Friday after the commencement of term if the children are primarily with the mother in the last week of the proceeding school holidays or the second Friday after the commencement of school term if the children are primarily with the father in the last week of the proceeding school holidays.
d.For one half of the two mid term school holiday periods as agreed between the parties and if not agreed the children shall live with the father the first part of school holidays in odd numbered years and the second part in even numbered years. Commencing at 10 am on either the first or second Saturday of the holiday and ending 10am on the second Saturday if the children are with the father the first week or 6pm Sunday if the if the children are with the father the second week second half.
e.For one half of the Easter school holiday period as agreed between the parties and if not agreed being with the father the first half in odd numbered years and with the father the second half in even numbered years.
f.The children will live with the father from 4.00pm Christmas Eve 2010 to 2.00pm Christmas Day and in each alternate year thereafter and from 2.00pm Christmas Day to 4.00pm Boxing Day in 2011 and each alternate year thereafter.
g.In respect of December 2010 and January/February 2011the children were to live with the father;
i.from 5.00pm on 26 December 2010 to 5.00pm on 1 January 2011,
ii.from 5.00pm on 8 January 2011 until 5.00pm on 15 January 2011,
iii.from 5.00pm on 22 January 2011 until 5.00pm on 29 January 2011, and
iv.from 5.00pm on 5 February 2011 until 5.00pm on 12 February 2011
thereafter following the 2011 Christmas Day arrangements the children are to spend one week with each parent on a week about basis for the remainder of the December/January/February school holiday period, such weeks to be agreed between the parties. If the parties are unable to agree then the children will be with the father from the second week after Christmas and each alternate week thereafter in 2011/2012 Christmas period and the first week after Christmas in the 2012/2013 Christmas period and each alternate year thereafter.
If the children are to be otherwise with the father on Mother’s Day the father shall return the children to the mother at 5.00pm on the Saturday before Mother’s Day and the mother shall return the children to the father’s home at 6.00pm on Mother’s Day.
If the children are with the mother on Father’s Day the mother shall return the children to the father at 5.00pm on the Saturday before Father’s Day and the father shall return the children to the mother’s home at 6.00pm on Father’s Day.
If the children are not otherwise spending part of their birthday with the other parent the parent with whom the child is living shall ensure the children spend at least two hours on their birthday (if a school day) and four hours with the other parent if a weekend or public holiday.
Both parties be restrained from abusing, demeaning, belittling or harassing the other party in the presence or hearing of the children.
Both parties be restrained from being adversely affected by alcohol while the children are in their care and for the purposes of this order the mother and father shall be deemed to be adversely affected by alcohol if their blood alcohol concentration is equal to or in excess of 0.05 per cent.
Both parties be restrained from the use of or exposing the children to pornography during their time with the children.
Neither party shall abuse, demean or belittle the other party or members of the other party’s family in the presence or hearing of the children.
Each party shall keep the other informed, as soon as practicable, of any significant health or educational issue which impacts upon the children.
Pursuant to s 65DA (2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
The appointment of the Independent Children’s Lawyer be discharged after twenty eight (28) days of the date of this order.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Crowther & Kitchener is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 969 of 2009
| MR CROWTHER |
Applicant
and
| MS KITCHENER |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Kitchener (“the mother”) and Mr Crowther (“the father”) cannot agree about some aspects of the parenting arrangements for their children, S and L. In addition there is conflict and distrust between them.
The parents agree (and I am satisfied) that they should have equal shared parental responsibility for the children. The parents are in general agreement with regard to significant days such as Christmas Day, Mother’s Day and Father’s Day. I have made orders about those days, albeit in a slightly different form from that sought by the parties.
The underlying issue is whether the children should live equal time with each of the father and mother. Equal time (including the school holidays) is what is sought by the father. Initially this would be on a five day then two days then five days then two days basis.
The mother wants the children to live primarily with her and live with the father each alternate weekend plus a Wednesday on a fortnightly cycle. This would continue until the youngest child attains the age of eight (in about four and half or so years then it would go to a Friday to Wednesday arrangement each alternate week during school term). The mother wanted this arrangement to continue over the school holiday period.
The Independent Children’s Lawyer supports the equal time approach, but if that is not to be the case she submits the children should live primarily with the father.
THE ISSUES
There are a number of issues to be resolved, including:-
a.Whether the father was physically violent to the mother’s eldest child, V. In respect of this issue there is a question as to whether I accept the views of the father’s expert (Mr H), the single expert (Dr W) or the child psychologist (Mr C). Mr C has seen V on about eighteen occasions.
b.The reliability of statements made by V.
c.Whether the father was violent to the mother on about six occasions and was regularly verbally abusive to her.
d.The reliability of the evidence of each of the parents.
e.The nature of the relationship between each of the parties and the children.
f.Whether the current arrangements are stable or unstable.
g.The extent and nature of the communication between the parties.
h.The differing parenting styles of the parties and the conflict that exists between them.
i.L’s age, in terms of shared parenting time.
j.Whether the father’s care of the children during the relationship was rendered unsatisfactory due to his excessive alcohol drinking, aggressive or violent behaviour.
k.The father’s threat of self-harm.
In these reasons any statement of fact is to be regarded as a finding of fact, unless the contrary is clear from the context.
BACKGROUND
The father is aged 40 and the mother is aged 46. The parties commenced cohabitation in November 2004 and separated in 2009. There was an issue about the separation date. However, it is clear that the parties (or at least the mother) emotionally separated in April 2009. The mother moved out of the former matrimonial home, with the children, in late July 2009.
The parties’ have two children, S aged five and L aged three. The mother has the full time care of V, who is aged thirteen.
In about 2006 the parties opened a business at B. That business commenced in about 2006 and was run by the mother until about separation. Since September 2009 the father has been operating that business.
The father has had a long term friendship with Ms K and in April 2010 he commenced living with her at a home in B.
The father was either a primary or shared carer of the children (including V) up until separation although there is an issue as to the extent of the respective parties’ involvement with the children.
In September 2009 the father expressed suicidal ideation to the mother (and in that respect I prefer the evidence of the mother). There was another incident a little later and the mother stopped time between the children and the father and in November 2009. Subsequently orders were made that the children spend time with the father each alternate weekend from 10.00am Saturday until 10.00pm Tuesday, with such time to be supervised by the children’s paternal grandparents.
In August 2010 orders were made that the children live with the father each alternate weekend from Friday until Wednesday
This matter was listed for a two day hearing commencing 1 November 2010. The proceedings ran longer than anticipated due to the wide ranging cross-examination of both the mother and father. In addition, Dr W was unavailable on the third day of the hearing and the forth day was scheduled for that purpose.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to subsections 61DA(2), (3), (4) and (5).
[1] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted, under 61DA(2) but a Court determines that it is in a child’s best interest for an order for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:-
Primary considerations
(2) 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider;
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[2].
[2] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.
THE EVIDENCE
The father
The father gave evidence in accordance with his affidavits filed 21 October 2009, 18 June 2010 and 11 October 2010. By leave he gave further evidence responding to the mother’s affidavits, parts of which were dealt with in his affidavit.
During the course of his evidence the father was focused and appeared very determined. He considered each question carefully. From time to time he prevaricated in terms of his answers or gave incomplete answers.
In cross-examination by the Independent Children’s Lawyer he gave an answer saying how important family was to him but later conceded that at that time he was in a relationship (although the extent of that relationship was not agreed – having heard the evidence I am satisfied that the father had a long time emotional [at least] relationship) with his present partner.
The father denied using Stilnox sleeping tables in August 2009 but when pressed conceded he was prescribed a different brand or type of sleeping tablets, namely Temazepam. His evidence about this was unnecessarily narrow and I formed a view that it was fashioned by the father to create an incorrect perception.
When giving evidence in chief and in cross-examination the father took regular opportunities to make negative comments about the mother. His evidence seemed to minimise her involvement with the children. When asked by the Independent Children’s Lawyer her about positive attributes, he said she was a warm and loving person, good with the children and provided for their physical needs and they were always collected happy. Notwithstanding this he described her as “not very maternal” to the single expert. The father endeavoured to explain this however his explanation was not satisfactory.
The father was cross-examined in relation to the statement he made to the mother in August 2010 in respect of “jumping off the Tasman Bridge”. He gave an innocent explanation for that remark and was scathing of the mother in respect of her taking it as a suicide threat. In whatever context he said it, it must have been concerning to the mother and the father had no insight into that impact.[3]
[3] I note the report of Mr N (Mental Health Nurse) which appears at annexure “C” of the father’s affidavit filed 21 October 2009, The letter is somewhat confusing as Mr N says that the father was sleeping well and yet a week or so before he had been prescribed Temazepam.
The father clearly intended to convey to the mother that he was considering taking his life. He may not have had suicidal thoughts but he expressed them in clear and unambiguous terms.
He tried to relate this to the mother moving out of the home about four weeks before the statement was made. I do not accept his explanation.
The father says that the complaints by V that he had hit him or been verbally abusive to him are false. He explained that he gave the child ‘noggins’ which was a benign activity.
Having regard to the evidence of the child and particularly the evidence of the child psychologist and notwithstanding the concerns expressed by the single expert I am satisfied that on a regular basis the father was verbally abusive to V and from time to time hit him. The extent of that hitting is unclear. It may not be to the extent asserted by the child but it was not the innocuous and bland behaviour asserted by the father.
In late 2010 the father and his present partner attended at a restaurant where V, the children and the mother were celebrating V’s birthday. The father was aware of the child’s birthday, his fear of and concerns about the father. He was and is aware of the close relationship between the children and V, yet he did not walk away from the restaurant to defuse conflict. He remained and engaged with the mother and the children. This was a child’s 13th birthday party and yet the father was content to remain and engage notwithstanding that it was painfully obvious that such a course would upset V, potentially ruin his birthday party and that would adversely impact on the children. The father was legally entitled to remain at the restaurant but in doing so he put his interests ahead of the children and is indicative of a ‘beggar thy neighbour’ approach. The father, and for that matter his partner, were self-focused rather than child focused. In saying this it remains the case that the mother can likewise take no credit for her performance at that time.
The relationship between the parents is toxic. Their communication is poor and it is unlikely to change. The father believes that virtually the whole of the fault lies at the feet of the mother.
He said he is prepared to ‘forgive [the mother]’. He conceded that he still harbours grief about the breakup of the relationship notwithstanding his refusal to end his relationship or his ability to continue his relationship with his present partner during his relationship with the mother. This is not a criticism of him in terms of that relationship but an observation of his lack of insight in that regard.
The father’s evidence is not reliable, it is self-serving and is designed to assist the father’s desire for an outcome rather than rely on his memory.
The father gave evidence about his daily routine with the children which account was different to that provided by the mother. Having regard to the mother’s evidence I prefer her evidence on that issue to that of the father. The mother gave evidence as to the impact of time with L in particular. The father acknowledged parts but said it was not of any significance.
The father gave detailed evidence of a conversation he had with Ms R (which was denied by Ms R) about bringing the children to visit him. This was not set out in his previous affidavits. I am satisfied this is not an accurate version of events.
The father’s evidence was at times aggressive and self-serving. His evidence in relation to the reason why the children should be with him seemed to be more focused on his needs than those of the children.
The father was dismissive of the mother’s efforts in respect of the business and said that he was far better at that task and described his superior efforts since taking over the business. He said the business is now going strongly. Notwithstanding this the father applied for and reduced his child support liability and has not informed the Child Support Agency of his change in circumstances.
The father was content for the mother to return to work within three days of the caesarean birth of their younger child and within two or three weeks to go back to heavy lifting. He says he was excluded from the business. I do not believe him and I prefer the evidence of the mother in that respect.
Psychologists Mr C and Mr H
Oral evidence by Mr C and Mr H and cross examination of them was done on a concurrent basis.
Mr C is V’s treating psychologist and attended court pursuant to the subpoena. He had only seen the child on a therapeutic basis.
Mr H had initially been engaged by the father to provide a report in terms of the father’s alleged suicidal ideation and to comment on Mr C’s report. Mr H had not seen the child V.
There was no issue as to the professional qualifications of either of the psychologists.
On balance, I preferred the evidence of Mr C to the evidence of Mr H. The reason I prefer his evidence is that Mr C’s approach seemed more balanced and open to change. When pressed on issues such as the D.A.S.S.[4] test Mr C was thoughtful, careful and made enquiries of experts in the field. His approach seemed rational and scientifically based.
[4]Depression Anxiety Stress Scale.
On the other hand Mr H’s approach seemed at times somewhat cavalier and at other times fixed in his views. At one stage, in his evidence, Mr H said:-[5]
[V] is too young and too vulnerable emotionally to be a credible witness.
[5] Page 2 of the Affidavit of Mr H filed 6 November 2009.
This was a black and white statement but when pressed he backed away from it. I am concerned that Mr H is too closely identified with the ideas of his client, the father and that his reports are more akin to that of a ‘hired gun’ rather than being objective. Mr H was quick to make conclusions in respect of the child notwithstanding that he had not seen the child. He was also quick to make conclusions about the mother, notwithstanding that he had not interviewed her.
Mr H was not open to alternate views, whereas Mr C was open to alternate views.
Mr C carefully and thoughtfully answered questions on cross-examination by the father’s counsel.
In his report of 4 September 2009 Mr H made statements which were well outside the scope of the information he had before him. These included:-[6]
I am hopeful that they [the parents] can re-negotiate custody and access on a more equitable basis, say 50/50 with a week on and week off.
[6] Ibid at Annexure “B”.
This was made absent an interview with the mother or the children.
He concluded:-[7]
I do not believe it is in the best interests of the children or for the welfare of the children to allow any parent to decide on inadequate or weak grounds to unilaterally block access to the other parent.
[7] Ibid.
Mr H had no evidence, apart from that of the father, that there were adequate or weak grounds. He was dismissive of the evidence of the child V and dismissive of the evidence of the mother. As such I treat his evidence with great care and, as I indicated earlier I prefer the evidence of Mr C.
Ms A
Ms A provided an affidavit[8] in relation to the toileting of the child L. Her evidence was that there were some toileting difficulties but overall it was innocuous. Her evidence was unchallenged and as such I accept her evidence.
[8] Filed 27 October 2010.
Dr W
Dr W (“the single expert”) prepared a report dated 20 July 2010 which was attached to his affidavit filed 21 July 2010. That affidavit was read into evidence.
There was no issue about Dr W’s qualifications. The single expert recommended that the most appropriate arrangements for the children, having regard to their best interests, were fifty fifty equal shared time.
In his report he observed:-[9]
That the children had a close and loving relationship with their father and their mother.
[9] At page 27 of the Single Expert’s Report dated 20 July 2010.
His view was that equal time would preserve that relationship. I am satisfied that significant and substantial time would achieve the same result.
The single expert said that both parents appear to have flexible work arrangements and the children have coped well with this scenario in the past. I am not satisfied that the work arrangements of the parties are as flexible as was believed by the single expert. The single expert said the conflict between the parties appears to have been managed and that in his view the hostility would fade when the arrangements were put into place. Having seen the demeanour of the parties when giving evidence I am concerned that the hostility emanates from both and both have impaired or limited insight which is less likely to fade as is hoped by the single expert.
He observed that the mother had difficulties trusting the father and directly noted that this would put a significant strain on a co-parenting relationship. He was of the view that neither parent had any mental health or emotional health issues which would impede on their parenting. I accept that evidence.
The single expert endeavoured to deal with the claims by V that the father had hit him around the side of his head and hard. He discounted V’s evidence as more likely an exaggeration.
As I have said elsewhere in these reasons I am satisfied that there is some element of truth to those complaints (perhaps not to the extent asserted by V but certainly to some extent). In part this concern arose out of the father’s use of a “noggin” where he turned his knuckles against the child’s head. The father said this was simply robust interaction to get the child moving, as I indicated earlier it was more than acknowledged by the father. At the very least, the father lacked insight into the nature of this interaction with V. The child genuinely treated it as abuse, particularly in the light of the failure of the relationship between the father and the mother.
I am satisfied that V has a genuine fear and dislike of the father.
The single expert also discussed the complaints of the emotional and physical abuse by the mother against the father. He noted that the children did not express any fear of the father nor did they indicate that he displayed anger.
I am satisfied that there was at least one isolated incident of violence shortly before the mother gave birth to S. I am also satisfied that this was an isolated example and that it arose out of the father’s relationship with Ms K. I am satisfied that whilst it probably occurred there was an element of exaggeration on the part of the mother and that there has been no issue in that regard since that time.
The single expert was critical of the mother in relation to her complaints about the father. The mother’s complaints are probably exaggerated but all have some element of fact. As I have said elsewhere in these reasons the father made reference to self-harm at the time of separation, he collected and maintained (prior to separation) an extensive portfolio of pornographic DVD’s. There is no concern that he engaged in any sexualised behaviour towards the children but it shows a significant lack of insight on his part to maintain such a quantity of pornographic material whilst he is caring for two young children.
He says that he has now destroyed that material and has not set up another library of them. I reject his evidence that this was an endeavour which the mother supported and at some levels engaged in the watching of the material. I prefer the mother’s evidence in that regard, that is that this was an interest of the father alone.
The single expert had read Mr C’s report and was not overly critical of Mr C’s use of the diagnostic tool in relation to V.
In terms of the collected reports of Jennifer McIntosh, Bruce Smyth, Margaret Keleher, Yvonne Wells and Caroline Long of May 2010[10], the single expert had read that material and said that it was not strong research and the sample groups were small. He said he accepted many of the general statements contained in the report but said it did not apply to this family because of the strong attachment between the children and both parents.
[10] Post-Separation parenting arrangements and developmental outcomes for infants and children.
The single expert was of the view that the parties’ communication was not altogether as bad as it could otherwise be in real terms. Their communication is not good as is indicated by the difficulties at changeover. I am concerned that the single expert’s view of the parties’ communication was somewhat optimistic. My assessment was that the communication was poor.
The single expert said that there was a warm relationship between the children and each of their parents and that the children easily separated from the parents and were able to return without any obvious anxiety. He also said there a warm relationship between the children and each parent. I accept that evidence.
The single expert was mildly critical of Mr C’s expertise in relation to the comments he made in the report. At some levels Mr C was put in an impossible position as he was a therapeutic counsellor required to provide forensic evidence. I did not adopt that criticism by the single expert. I am satisfied that Mr C’s approach was sound.
The single expert was cross-examined in relation to his criticisms of the mother over the suicide threats, the sexualised behaviour and the violence to V. I find that the single expert’s assessment of the mother was harsh. This is not a criticism of the single expert but I have had the benefit of seeing both parties give evidence and observed them when each was cross-examined.
I am satisfied that whilst the mother’s reaction in August, September and October 2009 may have been somewhat excessive they were reasonably based bearing in mind the events of the previous months. She was not endeavouring to alienate the children from the father, I accept she was endeavouring to be protective.
I am not satisfied that the father suffers from alcoholism. I am satisfied he uses alcohol and that the mother has exaggerated his use of it.
The single expert’s report is very much based upon a book by a Dr Phil Watts published in 2008 and many parts of his report are quotations from that book. It is significant that Dr Watts suggest children need a primary base and the single expert agrees with that as a general proposition.
Whilst this idea has been ignored by the father it seems to me that the children are entitled to a primary base
Mr Crowther Senior
Mr Crowther Senior is the children’s paternal grandfather and he gave evidence in accordance with his affidavit filed 20 October 2010. He is strongly aligned to the father and his evidence must be seen in that light.
I accept that he has a good relationship with his grandchildren and had a good relationship with V. The paternal grandfather has provided financial assistance for the parties in terms of their business. He was positive in respect to the father’s relationship with the children.
I have some difficulties in relation to his evidence of a conversation with Ms R. It is at some levels troubling that that material was raised with the mother during the trial. Ms R’s affidavit was filed on 14 October 2010. There was time for the conversation to be included in the paternal grandfather’s affidavit but it was not included.
Ms K
Ms K gave evidence and is the father’s present partner. They have known each other since about 1994 and had been in a relationship for about six or seven years prior to the father entering into a relationship with the mother. She is closely aligned with the father and hopes to marry him in due course. She is presently working at the business.
Ms K gave evidence of a benign view of the mother. I do not accept that evidence. The mother gave evidence of Ms K abusing her at a set of traffic lights at one time. That is at some levels supported by a text message sent by the mother. I do not accept her evidence of a benign explanation of what occurred at the thirteenth birthday lunch for V and I am satisfied that she is more aggressive or more engaged in the conflict than was deposed in her evidence.
Mrs Crowther Senior
Mrs Crowther Senior is the father’s step mother and is married to the paternal grandfather. She provided an affidavit filed 22 October 2010 in relation to the relationship with the children.
She disputed a discussion she had with the mother about the father’s drinking although admitted there could have been some discussion. She denied seeing bruises on the mother in relation to the allegation of violence before the birth of S but recounted that the mother complained about physical abuse at that time.
I accept her evidence in regard to that conversation.
She gave evidence that the children had informed her that the mother made them hide from her. I do not know whether that is true or not true, I make no finding in one way or the other although it is troubling that it was not contained in the affidavit filed 22 October 2010.
The mother’s evidence
The mother relied upon her affidavits filed 20 November 2009 and 14 October 2010. She gave evidence in relation to the circumstances surrounding her desire for a family violence order in April 2010. I generally accept her evidence in that regard.
The mother gave evidence about the events on V’s thirteenth birthday. I am concerned that there was an element of understatement or exaggeration of her involvement in that incident. I am generally of the view that it was a high conflict interaction between the mother, the father and Ms K for which all of the adults should be ashamed.
In about September 2010 there were communications between the father and the mother by telephone. The mother’s evidence was that she was endeavouring to telephone the children but this had not been met with any success. This shows a continuing level of hostility between the parties even in relation to something as simple as a telephone call. The mother said, at that time, that she would be prepared to agree to an arrangement where the children live with the father five days a fortnight and with the mother nine days a fortnight. The father’s evidence in this regard was somewhat inconsistent having regard to his use of his partner as a supporter but endeavouring to show that he was protecting the children from the telephone calls. I am troubled by the evidence of all the adults in respect of this high conflict event.
The mother was cross-examined by counsel for the father in relation to the report on family violence by Professor McIntosh and others (supra) released in May of this year. The mother was cross-examined by the Independent Children’s Lawyer in relation to her understanding of the report. The mother used this report to support her previously held views.
I am satisfied that the mother from time to time exaggerated when giving evidence but there is an element of truth in much of what she says. Her evidence is subjective. The mother’s evidence needs to be treated carefully.
The mother said she initially sought counselling with the father (I accept that evidence). However, subsequent to separation she rejected counselling. She completed a Parenting after Separation course.
The mother was reticent in describing the episode of violence, although she gave some outline of it in an earlier affidavit and to the single expert. I am not critical of the mother in terms of her failure to provide great detail of the violence. The mother said, and I accept, that it was difficult for her to talk about the violence.
In relation to the particular incident when the mother was seven months pregnant with S she informed the single expert about that in general terms but was not questioned by him in detail in respect of the event. The mother’s evidence was that she had a discussion with the father’s stepmother in respect of that incident and showed her the bruising and said that the father’s stepmother had said she had heard the argument. The argument had arisen, apparently out of a meeting the father had had with his present partner at a bar at that time.
Mrs Crowther Senior’s evidence was that she recalled being told about bruising, had a recollection of being told about the bruising at that time but otherwise had no recall. I accept the evidence of the mother in that respect.
I accept the mother’s evidence that the father was reluctant to work at the business and prefer the mother’s evidence in that respect to his.
The mother was cross-examined about her views of the father. He was dammed with faint appraise. The mother thinks poorly of him.
At the commencement of the forth day of hearing, counsel for the father sought to tender a document from the Child Support Registrar showing that the father had paid child support. There was some argument as to its admissibility and eventually it became Exhibit F2. What it showed was that the father had paid about $650 in child support between October 2009 and May 2010 of which the sum of $449.54 had been credited against the child support and some of that money repaid.
The purpose of this evidence was to show that the mother was not truthful when she said that the father had paid no child support. I gave leave for the mother to give evidence in relation to that issue. In that evidence she prevaricated. She was not frank with the Court in relation to the question of child support.
Ms R
Ms R is the mother’s house mate. They have shared the same accommodation for about fifteen months. Ms R provided evidence in accordance with her affidavit filed 14 October 2010.
She provides evidence, which I accept, of the mother’s good, warm and loving relationship with the children. She also provides evidence of the high levels of tension at changeovers. She said, and I accept, that the mother was initially afraid of the father but this has to some levels dissipated.
I accept Ms R’s evidence in this regard and I find that too many changeovers would be contrary to the children’s best interests. That predicates against short sharp periods and moves towards longer periods (having regard to the other factors).
Ms R also confirms that there were a large number of pornographic DVDs which the father had collected during the time the parties were together. This is supportive of the mother’s evidence in this regard. I accept the evidence of Ms R in respect of that aspect of the material.
Ms R was questioned about an argument she had with the mother between August and November 2009. The father’s evidence, and that of the paternal grandfather, was that Ms R expressed strong views as to the appropriateness of the children not seeing the father and that the mother had mental health issues.
The evidence of Ms R was that she and the mother had an argument that day and Ms R was somewhat ‘teary’. She normally took the children to a park area near the parties’ business and on this occasion took the children to see their paternal grandfather. He sought permission and she agreed that he could ring the father to come and see the children. Her evidence was that she made no derogatory comments about the mother and was quite content with the protective approach the mother had adopted with regard to the children.
Ms R was clear in her evidence although it was not without its blemishes and she is somewhat aligned to the mother’s cause, on balance I prefer her evidence to that of the father and the paternal grandfather. I accept her evidence that she was the subject of some pressure from them to collect information.
Generally
There was an issue between the parties about the issue of the children attending jazz dance lessons. It is indicative of the conflict that exists between the parties. The father had arranged to take the children to dancing without notifying the mother.
After they attended he arranged for a note to be delivered to the mother together with some dance gear which explicitly or implicitly put pressure on the mother to send the children to that function the following day. The father tried to offer a benign explanation in that regard, I do not accept that explanation. He was determined that it would occur and he adopted a fixed and unbending approach. The mother was negative to it and immediately sought to parent through lawyers. That shows the poor communication between these parties.
The mother wanted to take the children to a children’s show. She asked the father to provide for a change of weekends. He did not do so. Her evidence was that the father, on the day he picked up the children, put her in a position where she had no alternative but to go with him and the children to the show and she did go so as not to upset the children.
The father’s evidence was that the mother knew about this in advance. I prefer the evidence of the mother. This is another example of poor communication and high levels of antagonism between the parties. I am satisfied that the father manipulated this outcome.
The mother gave evidence of her car being “keyed” and her suspicions of the father in that regard. There is certainly suspicion arising from it but there is no evidence to relate the damage to the father. The mother’s suspicions are indicative of her lack of trust of the father. The father’s approach in relation to the mother’s concerns is also somewhat aggressive and lacks insight.
The mother observed Ms K park her car in an area adjacent to the mother’s car and was looking at the mother’s car when one of the mother’s work colleagues approached. Ms K went away. Ms K’s evidence was that she was simply walking past the car. On balance I prefer the evidence of the mother.
After separation the parties had entered into a joint parenting arrangement with regard to the two children. The father was upset at the circumstances of the relationship breakdown and even now lacks insight into his part in that process. In the witness box he seemed genuinely astonished that his relationship with his present partner should have led to the breakdown of his relationship with the mother.
The father was angry with the letter he had received from the mother’s lawyers and reflected that in a letter he sent in reply[11]. In that letter he, amongst other things, set out:-
Your letter was received to ‘hand’ with a strong degree of ‘shock’ and ‘surprise’ due to some inconsistencies of fact in previous conversations that I had with [the mother] in relation to a possible separation.
[11] Exhibit M2 letter 5 August 2009.
In his first affidavit[12] the father says this:-
This occurred [the change of arrangements] because when I had seen [the mother] on the previous Thursday 27 August 2009 I told her that I was upset because I was packing up our former home. I was getting things ready to move to my father’s home where I am currently living. At no time did I threaten suicide or mention that I was depressed or suicidal. This was simply not the case.
[12] Affidavit filed 21 October 2009 at paragraph 11.
In evidence in chief led by his counsel the father said what he said to the mother was:-
I can see when people are upset why they would want to go to the Tasman Bridge and jump off.
He said that no one could take that as an indication that he was going to commit suicide. Curiously Mr H supported him in that view and Mr H seemed to believe that the general community had significant psychological knowledge.
The mother’s evidence was:-[13]
He [the father] said to me, “[Ms Kitchener] do you realise that last Thursday I drove up to the bridge and was going to jump off”?
[13] Affidavit filed 14 October 2010 at paragraph 10 page 4.
This comment was made to the mother in a conversation at the business and in the same conversation the father said to the mother
“you would not care if I was alive or dead”.
The mother said the father had told her that he had obtained a prescription for sleeping medicine Stilnox. The father vehemently denied this but it was determined that he obtained sleeping medicine the day before but of a different brand. Of this event I have made earlier comment. In respect of the events I prefer the evidence of the mother.
The mother was clearly worried about the children and albeit somewhat belatedly withheld them from the father’s care. I am satisfied that the mother had a genuine belief that the father, at that time, was threatening suicide. Whether that was a real expression of self-harm by the father or an expression of rage and/or frustration I do not know.
The father’s relationship with V
The father described in detail his role as a primary carer of the children and in particular V. He expressed great love for V and was surprised that V’s attitude changed after separation.
Whilst I am satisfied that the father has significantly exaggerated his evidence in respect of the care of the children and the nature of his relationship and extent of his relationship with V I am satisfied he was significantly involved in that child’s life.
I accept the evidence of the mother that the father yelled at V and the mother observed him raise his hand to V on at least one occasion. As I have said earlier in these reasons, I am satisfied that V had been hit by the father on regular occasions. I am not satisfied that these are the extensive beatings that V suggests but I am satisfied that it was regular hitting which traumatised the child and which the child was able to express once he felt safe out of the household of the father. On the evidence of V, the mother did not know about the alleged abuse, except for the one instance to which I raised earlier in this paragraph and that it was only afterwards when the mother learnt of the full details of the alleged physical abuse.
I accept the evidence of Mr C that V was depressed and had high levels of anxiety at the time of his first interview but that this resolved itself relatively quickly by December 2009. I accept the evidence of Mr C that the child had expressed some sense of self harm in November 2009.
Implicitly the father asserts that the mother has turned this child against him, there is no acceptable evidence to that effect and as such that proposition is, on the evidence, rejected.
Father’s involvement with the business
The mother asserts that the father was asked to work in the business but chose not to. The father’s evidence was that the mother did not want him to work in the business. On balance and having regard to the comments made earlier I prefer the evidence of the mother that the father chose not work in the business.
The evidence of the father was that he would not take on paid employment elsewhere. The mother was by circumstances forced to manage and run the business in the absence of any significant help by the father. I prefer the mother’s evidence on this point.
January/February 2008 S’s disappearance
In January/February 2008 the parties had moved into a new home. The father had the care of S, L and V. S managed to get out of the house and was absent for about half an hour before the father became aware of this.
He was unable to find S and it was only when she was discovered at a shopping centre some distance from the house and recognised by a teacher that the father was notified.
The mother complained that the father was intoxicated. I do not accept the mother’s evidence in that regard. It was open for her to call staff from the childcare centre or from the shop in which the child was found. I am, however, satisfied that the father may have had some alcohol on his breath but not sufficient as would constitute drunkenness.
The mother’s complaints about the father were that he left the children in day care on Fridays when he went out with his friends, he abused alcohol, he did not keep the house well, and he lost his temper in front of the children and was not warm to the children. The mother asserted the father was violent to her. The father denied this and said it was all made up.
In terms of the mother’s evidence in relation to violence it was not detailed except with regard to an event shortly before the birth of S. The mother complained of that alleged event to the father’s step mother. I am satisfied something along those lines of physical violence occurred to the mother. There may be an element of exaggeration to the claims although any physical violence is unwarranted.
I generally accept that the father had been verbally abusive of the mother at times throughout the course of their relationship.
I am satisfied that the father was at times short tempered, aggressive and from time to time overused physical discipline which may have amounted to physical abuse with regard to V.
Allegation of sexual impropriety
The father says the mother made an allegation of sexual impropriety. The mother’s evidence was that she observed the girls acting out in a sexually inappropriate way. She did not believe that the father sexually abused the children. The mother was concerned that the father had left out some of his pornographic material and that the children may have accessed it.
In that regard I am satisfied that the father kept and ordered significant quantities of hard core pornography at the house which the parties occupied. As I said earlier, I prefer the evidence of the mother that she did not participate in the watching of those videos or any associated activities arising from those.
On the other hand the father did collect his material and maintained a large library of it. He said he has at all times kept it from the children. I accept that he did endeavour to do so, although nothing can be absolutely secure from children in a shared household.
I am satisfied the father drank regularly but was rarely detrimentally effected by alcohol but from time to time was affected in that way.
In late August early September 2009 the children were taken from the equal care of the father and the father’s time with the children was either restricted or removed between late August 2009 and the end of November 2009. This has the appearance of being arbitrary, although I make no findings to that end.
Prior to that time the father was significantly involved in the lives of the children. However, the children have been in the mother’s primary care since September 2009. I am satisfied that the mother is now the children’s primary attachment figure. It may be that the father is another primary attachment figure.
Equal time
In their report “Post Separation Parenting Arrangement and Development and Outcomes for Interest in Children” (supra) the authors summarised shared care, parental conflict and children’s outcomes as follows:-[14]
Litigating and high conflict families who enter substantially shared care arrangement are different from co-operative parents who are self-selecting into shared parenting. They enter in a different track and stay on that track by differing means, with differing outcomes.
Parents in this population frequently experience elevated stress and anxiety through concern about their child’s well-being in the care of the other parent.
Continuing abuse of power by cohersive and controlling ex-spouses can be amplified in shared arrangements.
Children in conflicted shared parenting are exposed to high levels of conflict between their parents, of the type that embroils them or uses them in the expression of conflict between the parents.
The children are frequently distressed by their living arrangements.
There is an elevated risk of poor mental outcomes of children who sustain shared care in a climate of parental acrimony, who are highly vulnerable phase in their development, and who were vulnerable through other circumstances.
[14] At page 104.
Each of the parents in this case has strengths and weaknesses. I am satisfied that the mother provides a warm, stable and supporting relationship with the children and encourages their relationship with each other.
The essential argument is whether the children live equal time with each parent or whether the children have a primary residence. I have concerns about the quality of the evidence of both parents.
In terms of the father I am concerned that he is aggressive, dominating and at times verbally abusive. I am satisfied that he has shown physical aggression to the mother and to V.
I am not convinced as to his sincerity in terms of a relationship with the mother. He was sometimes glib in his answers. He gave an impassioned speech on the importance of family and his distress at the failure of his relationship. Yet he was (at that time) in a relationship with his present partner and he had maintained contact with that partner throughout the time he spent with the mother and contrary to the mother’s clear opposition to that course. He was of course entitled to do that but the consequences must have been apparent to him.
These children need a stable home. A reduction in time from equal time to significant and substantial time will not prevent the children from having a meaningful relationship with the father, it is after all the quality not the quantity.
I had considered an order that the children live primarily with him, however having regard to his aggression, pre-disposition to yelling and the other facts and factors articulated in these reasons I assess that would not be in the children’s best interests.
Physical discipline
The parties agreed to consent orders that neither party physically disciplines the children. Having regard to the evidence, particularly that of the mother, I am satisfied that that order meets the needs of the children.
The mother sought an order that the father not speak to her eldest child V. The father has made no application in respect of that child and whilst I am satisfied that the father has physically disciplined or hit that child, he has not endeavoured to contact the child since shortly after separation. There was an accidental meeting in 2010 to which I have already made comment. The father consents to such an order, but without any admission of the need for it to be made.
The father initially opposed an order that he be restrained from exposing the children to adult themed material however in evidence he re-considered this position. The father had a history of keeping such material at the parties’ home when they lived together. There is no evidence that the children have seen such material. However there can be no sensible reason why the parties ought not to be restrained from bringing such material into the lives of these children. Accordingly having regard to the history I will make that order.
The mother seeks an order that the father not consume alcohol whilst the children are in his care. The father’s evidence was that he drinks alcohol socially albeit sometimes by himself.
The mother says that the father from time to time collected her and the children whilst intoxicated during the course of the marriage. There was no evidence that the mother took steps in that respect over that time.
The father has a tendency to drink and sometimes drive albeit, on his evidence, well below the limit. I do not intend to impose such a draconian order upon the father although I will restrain both parties from caring for the children whilst affected by alcohol in that respect, and affected by alcohol shall mean a blood alcohol level greater than 0.05. The order sought by the mother is protective of the children and there is no reason why it should not be put in place, if for no other reason to provide comfort to the mother.
The father objected to an order that the parties not abuse, demean, belittle or harass the other. Having regard to the toxic communication between the parties and its impact upon the children I am satisfied that an order should be made in that regard.
I have considered whether equal time is appropriate in the circumstances of these children. Having regard to all of the factors under s 60CC referred to elsewhere and the other findings, including the age, particularly of L, the poor level of communication and the high levels of conflict between the parties I am not satisfied that it would be in the best interests of these children to spend equal time with both parents. This is notwithstanding the evidence of the single expert and the evidence that the father was significantly involved in the children’s care prior to separation.
I do not propose to adopt the course submitted by the mother, that is each alternate weekend and a Wednesday. That would involve additional interaction between the parties and the children. That can only add to the burden the children already have to bear with these highly conflicted parents.
What I intend to do is provide that the children spend significant and substantial time with the father, that is during school term, each alternate weekend from after school Friday to the commencement of school Wednesday.
The mother submits that I should put in place orders for further time when L attains the age of eight. That is some five years hence. I am not comfortable in making such an order as the changes that could occur over that five years are so significant and variable it is not a reasonable course to adopt.
In Dacia v Bennington [2008] FamCAFC 135 the Full Court considered the benefits/risk of making orders into the future and said :-
60.We therefore consider his Honour fell into error in failing to identify the basis upon which “more stability” would be introduced into [P’s] life as a result of the change in arrangements mandated by paragraph 4 of his orders in four years’ time.
61.We must add that we consider any attempt to predict what arrangement was most likely to provide “stability” as far in advance as 2012 was fraught with difficulty.
In terms of school holidays the mother submits that the arrangements proposed by her should occur throughout the school holiday period. I do not accept that view. There is no reason why the children cannot spend half the school holidays with one parent and half with the other.
Whilst L is young and there is high level of conflict between the parents school holidays are a time where the parents can take leave and spend quality time with the children. Having regard to all of the facts and circumstances and the factors under s 60CC I am satisfied that this is an appropriate course for both children, including L.
One of the other factors in terms of the time the children spend with the father being significant and substantial time, as I have put in place and not equal time, is the need for L and S to maintain their relationship with V. On the evidence of the single expert it is a good relationship and ought to be maintained.
When the trial concluded on 26 November 2010 I was informed that the parties had reached an agreement with regard to Christmas Day. The parties had not reached an agreement in relation to the Christmas holidays.
I made interlocutory orders in relation to the Christmas period and these reasons deal with the basis upon which I made those orders.
Section 60CC Factors
I am required to consider the factors under s 60CC in determining these parenting issues. In considering these factors I have had regard to all of the relevant evidence provided during the hearing and findings made by me.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
There is no issue in these proceedings that the child will benefit in having a meaningful relationship with both parents. Whichever proposal I adopt, whether it is that suggested by the Independent Children’s Lawyer or the mother of significant and substantial time, the children will continue to have a meaningful relationship with both parents.
I am satisfied that that is in the best interests of the children. It is the extent of the time which is the significant feature on this case against which I can make a determination. What I cannot solve is the conflict that exists between these parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father had engaged in some violence to the mother prior to the birth of S however there was no indication of violence to the mother since that time. The alleged violence by the father to V is such that it was over rough behaviour to a sensitive child. It is not the father endeavouring to hurt the child but simply reflects a lack of insight on the father’s behalf.
I am not satisfied that the father abuses alcohol, I am satisfied that he drinks alcohol and the mother has exaggerated his use of it.
The father did threaten self-harm in August 2009. Although the mother believed there may be some substance to it I am satisfied that the father said words not with any intention of causing self harm but rather to vent to his anger or emotionally blackmail the mother to reconcile with him.
I accept the evidence of the single expert that neither party presents as an unacceptable risk in their care of the children and that the children both have close and loving relationships with both parents.
Section 60CC(3)(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children’s age and maturity is such that their views are not significant features in these proceedings.
Section 60CC(3)(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
There was general agreement that the father was the principle carer of the children from about one year prior to the birth of L until the mother moved out in late July 2010. I am satisfied on the material before me that the children have significant attachments to both parents.
The children have a good relationship with their parents and the parents are close to the children. I am also satisfied they have a close relationship with their brother V who also has a close relationship with them.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
I do not believe either party will encourage a relationship between the children and the other party. The mother makes it clear she does not like the father and lacks the insight to try and overcome or at least pretend in relation to that issue.
The father asserts that he will encourage a relationship, however I have serious misgivings about the quality of that evidence.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father wants the arrangements to be equal time and if not equal time then for the children to live with him for more time rather than the mother. That is also the view of the Independent Children’s Lawyer.
The mother wants something akin to the present circumstances to remain but with a little less time.
This is a case where the issue is whether the time should be significant and substantial or equal. Any change of the arrangement would not impact in terms of the parents but may impact in terms of the relationship between the children and V.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live within close proximity of one another and I am satisfied there are no practical difficulties and/or expenses attached to the children spending time and communicating with either parent or their broader family. There is a difficulty with changeovers and the impact of the animosity of the parents to each other and its flow on effect with the children.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
Both parents have displayed a capacity to provide for the needs of the children including their emotional and intellectual needs with the exception of the parents’ capacity to foster a relationship between the children and the other parent.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
There are no significant features in respect of this factor. The children will continue to have a relationship with both families and both parents and their brother V.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Save and except the conflict which I refer to elsewhere in these reasons I have discussed this in general in these reasons and I have had regard to that evidence.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
I am not satisfied that either party has exposed the children to family violence, except that the father had engaged in overly rough discipline of V but that such behaviour is unlikely to occur in the future.
Section 60CC (3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no present family violence order.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The parties have been engaged in litigation since shortly after separation. These orders will secure the relationship between the children and each of their parents and with V. These orders are intended to bring an end to the parties’ litigation. Had I made orders for equal time, having regard to the conflict between these parties, it is likely that more litigation would have followed.
Section 60CC(3)(m) any other fact or circumstance which the court thinks is relevant
I have considered all of the relevant evidence before me.
Section 60CC(4) of the Act
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the extent of which each of the parents has fulfilled or failed to fulfil their responsibilities as parents both before and after separation and I have considered those in the light of these determinations.
CONCLUSION.
The Independent Children’s Lawyer initially recommended (subject to the evidence during the hearing) that the children spend equal time with both parents. This would be subject to any concerns the Court may have in relation to the father’s mental health, excessive drinking, lack of affection in parenting, possible exposure of the girls to sexualised content or behaviour, violence against V and lack of support of the mother in her role as a parent.
There are some aspects of that behaviour which are concerning and which I have dealt with earlier in these reasons.
My concerns about equal parenting time relate to it being parent focused not child focused. These children are entitled to have a primary home. The parents do not have mutual respect for each other, there is poor parental communication and trust and limited co-operation. These parents have limited ability to compromise.
They live in geographic closeness. The children are still relatively young. There is the destabilising influence of Ms K who has been in a long term relationship with the father. This will continue to exacerbate the relationship between the parties.
In Handley and Tranter [2007] FamCA 344 Moore J considered the question of what time a child should spend with their parents and said:-
104.Turning to the question of apportionment of the child’s time between her parents, the rebuttal of the presumption means it is not necessary to consider whether spending equal time with each parent would be in the child’s interests and reasonably practicable [s65DAA], but the father’s application for equal time makes it necessary nonetheless.
105.The circumstances in which equal time might be seen as consistent with a child’s best interests have been the subject of discussion in many cases over the years, both at first instance and at appellate level. These include Jann v Yann (1976) FLC 90-027 [Demack J], Foster v Foster (1977) FLC 90-281 [Full Court], H v H-K (1990) 13 Fam LR 786 [Kay J], Padgen v Padgen (1991) FLC 92-231, Forck v Thomas (1993) 16 Fam LR 516 [Nicholson CJ], C v B, [Full Court], unreported delivered 15 April 1997, F v B [2000] FamCA 676, M v M, [2001] FamCA 1688 [Le Poer Trench], delivered 13 December 2001, and M v G [Kay J], unreported, delivered 15 July 2003, and see also H v H (2003) FMCA Fam 41 [Ryan FM as she then was]. I discussed these decisions in M & M, [2005] FamCA 207, and delivered 9 March 2005. That need not be repeated here. Suffice to say those cases suggest some careful deliberation is necessary in considering whether a child should spend equal time between the households of their parents and the cases suggest that to be workable and of benefit to the child –
‘…desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.’
106.Of course failure to tick off one or more of these considerations is not to be seen as a disqualifying factor; they are merely matters that might be considered in coming to a view about whether an equal time arrangement would meet the best interests requirement, mindful at the same time of the prospect of issues being manufactured to avoid such an outcome. As I said in M & M [2005] FamCA 207 none of that is to be found in the legislation directed to a best interests outcome which must ultimately depend on the particular facts of the case and the evaluation of all options. Of course the law has changed since these cases were decided, as outlined earlier and in particular directing an equal time consideration to follow the application of the presumption of equal shared parental responsibility, but I think consideration of the factors summarised from the earlier cases holds good nonetheless.
Moore J in Korban and Korban (2009) FamCA 292 again considered the question of equal time and said:-
Best interests & reasonably practicable
77.As for the best interests component, that is to be seen through the relevant considerations discussed, bearing in mind the stated objects and principles. Those matters are markers to the whole range of possible decisions about a child’s best interests and are not directed specifically to the decision about whether a child’s best interests would be served by an equal time arrangement, on the one hand, or something falling short of it, on the other. In other judgments I have reviewed cases over the years, both single instance and appellate, where consideration has been given to children spending equal time between their parents and I see those cases as unaffected by the amendments to the Act from 1 July 2006 [see M & M [2005] FamCA 207 and Handley & Tranter [2006] FamCA 344]. There may be others but the cases reviewed are Jann v Yann (1976) FLC 90-027 at 75,120; Foster v Foster (1977) FLC 90-281 at 76,511; H v H-K (1990) 13 Fam LR 786; Padgen v Padgen (1991) FLC 92-231; Forck v Thomas (1993) 16 Fam LR 516; unreported decision of the Full Court (15 April 1997) in C v B; F v B [2000] FamCA 676; McGlynn v McGlynn, unreported 13 December 2001 per Le Poer Trench J; M v G, unreported 15 July 2003 per Kay J, and H v H (2003) FMCA Fam 41. Without repeating the earlier discussion, the conclusion I reached is this:
‘These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.’
78.Obviously these considerations or something similar are not a checklist requiring 100% or even a preponderance of positive scores before equal time could be seen as aligning with a child’s best interests. Where they are found to exist, it will also be questions of degree which might range from relatively benign to plainly damaging. As I see it, they all seem to be based on the fundamental premise that whatever household a child grows up in or whatever households the child moves between throughout their developing years, a sense of continuity and commonality is a desirable thing for a child and likely to promote the child’s best interests. So absent guidelines about it, I see it as appropriate to ask questions of this kind in discharging the obligation to ‘consider’ an equal time arrangement or in assessing a proposal directed to that end. Obviously findings that parenting values are not particularly compatible, trust and cooperation are not present, there is uncertainty about how a child will cope, and there are destabilising influences of one kind or another, do not mean that equal time could not be in the child’s best interests on the particular facts of the case; but it stands to reason a bundle of assessments along these lines, or even the marked presence of one or more of them, would render it difficult to align such an outcome with the child’s best interests.
79.As for being reasonably practical, there are factors for consideration specifically set out in s 65DAA(5).
The father claims that he will improve communication, I do not believe him.
Counsel for the father rightly says the mother took to the McIntosh report like a “drowning person to a life preserver”. In many ways he was right in that regard. The mother has moved her position after reading that report from the current arrangements to less time.
The assessment of the mother by counsel for the father was somewhat harsh. The mother adopted a protective role in the second half of 2009 and having regard to the father’s threats of self harm, his collection of pornographic material and the complaints by V, her stance at that time was sensible although she took some effort to move from that position.
Having regard to all of the facts and circumstances in this case I am not prepared to order equal time. I do not adopt the submissions of counsel for the father and the Independent Children’s Lawyer that the children spend more time with the father in the circumstances or live with the father for more time than with the mother.
The children have a relationship with their brother and they have been in the primary care of the mother for a period of over eighteen months. The orders I propose to put in place will provide for significant and substantial time during school term and equal time over school holidays.
In addition to the factors I have outlined above I am also concerned as to the age of these children. It was submitted on behalf of the mother’s counsel that I should put in a step program over the next three to five years. I was reluctant to do so as circumstances can change over that time.
In addition time needs to be left to the parents to see whether they can take responsibility for their children as between themselves.
My concern with the children, having regard to their age, is that they will have no primary home. It is six of one and half a dozen of the other as between the parents. They each have their very strong points and their equally weak points.
What has been consistent through the children’s young lives is their relationship with V. Their age, their relationship with V and the advantage of having a primary residence (as accepted by the single expert in a general sense) are significant features in my determination in these proceedings.
In MRR v GR [2010] HCA 4 the High Court set out the following:-
7.Section 65D(1) provides that the Court[15] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child[16]. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
[15]Section 69H(4) confers jurisdiction on the Federal Magistrates Court in relation to matters arising under Pt VII.
[16]Family Law Act 1975 (Cth), s 61DA(4).
8.Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
As there is to be an order for equal shared parental responsibility I am bound to positively consider those matters required by s 65DAA.
In the light of the findings of fact and the s 60CC considerations I have considered whether the children spending equal time or significant and substantial time with each of the parents would be in the best interests of the children.
Similarly I have considered whether the children spending equal time or significant or substantial time with each of the parents is reasonably practicable.
Finally I have considered making an order to provide (or including a provision in the order) for the children to spend equal time or significant or substantial time with each of the parents.
Having regard to all of the facts and circumstances of this case I determine that it would be in the children’s best interests to live most of the time with their mother and brother and spend significant and substantial time with their father.
In coming to this decision I have had regard to the best interests of the children as the paramount, but not sole, consideration.
This is a finely balanced exercise having regard to the evidence before me, the findings of fact and the other matters discussed in these reasons, including the factors under s60CC referred to earlier.
Both parents’ proposals have positive and negative elements to them, which I have considered.
I am satisfied that arrangements for the children to spend such time and communicate with the father are reasonably practicable, having regard to the matters referred to in s 65DAA(5), including referring back to the earlier s 60CC findings.
I certify that the preceding two hundred and twenty one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 December 2010.
Associate:
Date: 23 December 2010
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