Cunningham and Cunningham (No.2)
[2015] FCCA 1332
•12 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUNNINGHAM & CUNNINGHAM (No.2) | [2015] FCCA 1332 |
| Catchwords: FAMILY LAW – Application for parenting orders – competing applications for live with and spend time orders – dispute over parental responsibility – evidence of independent expert – where not in children’s best interests for their parents to have equal shared parental responsibility – where not in best interests to spend equal time – where in best interests to live with the mother and spend substantial and significant time with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA |
| Cases cited: Hall & Hall (1979) FLC 90-713 |
| Applicant: | MR CUNNINGHAM |
| Respondent: | MS CUNNINGHAM |
| File Number: | DGC 3065 of 2013 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 9, 10 & 16 April 2015 |
| Date of Last Submission: | 7 May 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 12 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | By his solicitor Mr Mulligan |
| Solicitors for the Applicant: | Goodman Group Lawyers (until 7 May 2015) |
| Counsel for the Respondent: | Ms Fisken |
| Solicitors for the Respondent: | Morley Naughton Pearn & Cook Lawyers |
ORDERS
That the mother have sole parental responsibility for the children of the marriage:
X born (omitted) 2009; and
Y born (omitted) 2011
(hereinafter referred to as “the children”) save that the mother shall, prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation thereto;
(c)consider by reference to the best interests of the children any such response prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)During school term periods:
(i)Each alternate weekend from the conclusion of school Friday until the commencement of school Monday (extended until the commencement of school Tuesday if Monday is a public holiday).
(ii)Each alternate Thursday (in the “off week”) from the conclusion of school Thursday until the commencement of school Friday.
(b)During school term holiday periods:
(i)In 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 12.00pm on the middle Saturday; and
(ii)In 2016 and each alternate year thereafter, from 12.00pm on the middle Saturday until 12.00pm on the last Sunday of the school term holiday period.
(c)For one half of the long summer holiday period at dates and times as agreed, and failing agreement:
(i)In 2015/16, on a week about basis with the father to have the first week, and the mother the second;
(ii)In 2016/17, on a week-about basis with the father to have the second week, and the mother the first week.
(iii) From 2017/18 onwards:
1. In 2017/18 and each alternate year thereafter, for the first half of such long summer holiday period.
2. In 2018/19 and each alternate year thereafter, for the second half of such long summer holiday period.
(d)At Christmas:
(i)In 2015 and each alternate year thereafter, from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii)In 2016 and each alternate year thereafter, from 3.00pm Christmas Day until 3,00pm Boxing Day.
(e)On New Years Eve/Day:
(i)In 2015/16 and each alternate year thereafter, from 3.00pm on New Years Day until 3.00pm on 2 January; and
(ii)In 2016/17 and each alternate year thereafter, from 3.00pm on New Years Eve until 3.00pm New Years Day.
(f)On Father’s Day weekend, from 5.00pm on the Saturday until the commencement of school on the Monday after Father’s Day.
(g)On the children and father’s birthdays:
(i) If a school day, for a period of two hours; and
(ii) If a non-school day, for a period of four hours
(h)By telephone each Tuesday and Wednesday, between 7.00pm and 7.30pm.
(i)Such further or other time as may be agreed between the parties in writing.
That if the children are otherwise in the care of the father pursuant to these orders, his time be suspended, and the children be in the care of the mother at the following times:
(a)At Christmas:
(i)In 2016 and each alternate year thereafter, from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii)In 2015 and each alternate year thereafter, from 3.00pm Christmas Day until 3,00pm Boxing Day.
(b)On New Years Eve/Day:
(i)In 2016/17 and each alternate year thereafter, from 3.00pm on New Years Day until 3.00pm on 2 January; and
(ii)In 2015/16 and each alternate year thereafter, from 3.00pm on New Years Eve until 3.00pm New Years Day.
(c)On Mother’s Day weekend, from 5.00pm on the Saturday until the commencement of school on the Monday after Mother’s Day.
(d)On the children and mother’s birthdays:
(i)If a school day, for a period of two hours; and
(ii)If a non-school day, for a period of four hours
That the children be permitted to communicate with the mother by telephone:
(a)During the alternate weekends when they are in the care of their father, on Sunday between 6.00pm and 6.30pm; and
(b)During school holiday periods when in the care of the father, on Sunday and Wednesday between 6.00pm and 6.30pm.
That in order to give effect to paragraphs 3 and 4 hereof:
(a)Changeover occur at the children’s school for all changeovers that coincide with the commencement or conclusion of the school day; and
(b)Unless otherwise agreed in writing, all other changeovers occur at the (omitted) library.
The parties forthwith do all such acts and things and sign all such documents (and in default of the father signing the mother be authorised to do so) as may be required to:
(a)Enrol X at (omitted) College in Grade 2, as and from the commencement of term 3 in 2015; and
(b)Enrol Y at (omitted) College to commence prep as and from 2017.
The father be at liberty to obtain directly from the children’s school/kinder any school notices, information, newsletters, reports, photos at his cost and be at liberty to attend at and participate in school related activities to which parents are usually entitled to attend.
That the children attend upon a single treating general practitioner, to be nominated by the mother, and in default of nomination to attend at (omitted) Medical Clinic, (omitted) (and, if available, Dr K, save for in the case of emergency) with the father at his expense able to get information about the children from the treating doctor.
The parties, their servants and/or agents be and are hereby restrained from -
(a)verbally abusing, harassing, belittling or denigrating the other parent or their family in the presence or hearing of the children or either of them;
(b)discussing these proceedings within the presence or hearing of the children or knowingly allowing the children or either of them access to documents filed in this matter.
That all extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Cunningham & Cunningham (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3065 of 2013
| MR CUNNINGHAM |
Applicant
And
| MS CUNNINGHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
“The rights of children, and assertions as to their best interests are, in many highly conflicted parenting cases ending in trials, refracted through a prism of each parent’s creation which contains their interpretation of the children’s best interests…..
Where there is conflict of a chronic and debilitating kind…, the issue is further considerably clouded by assertions and counter-assertions of past and present “wrongs” said to support ultimate assertions about the best interests of the children and said to “justify” the exercise of rights by a parent ….”[1]
[1] Lansa & Clovelly [2010] FamCA 80 per Murphy J at paras [50] to [51].
In these proceedings, the applicant, Mr Cunningham (“the father”) filed an application for parenting orders under the Family Law Act1975 (Cth) (“the Act”) on 21 November 2013. The respondent to that application, Ms Cunningham (“the mother”) filed her response on 28 January 2014.
The father is 40 years of age and lives in (omitted). The mother is 37 years of age and lives in (omitted). The parties married in (omitted) 2003 and separated on 15 September 2012. There was a divorce order made on 11 December 2013. There are two children of the marriage, X born (omitted) 2009 and Y born (omitted) 2011 (“the children”).
Unfortunately for the children and for reasons that will become clear presently, the comments referred to at the beginning of these reasons are just as apt to describe their parents’ dispute in this case.
Background
Both parents are tertiary qualified. The father works as a (occupation omitted) and during the relationship the parents both worked (but the mother didn’t do so outside the home). They were both involved in their (employment omitted) and lived in (omitted) and the father from time to time travelled overseas as part of his duties as a (occupation omitted). It appears that problems in their relationship escalated over the course of 2011 and 2012 with mutual allegations of infidelity and other concerns culminating in the separation. Following this the parties (who it appears were both in contact with Centrelink) tried to implement various informal arrangements for the children before these proceedings were commenced.
After his initiating application was filed in November 2013 and before the first Court date, the father filed an amended application on 28 January 2014. The mother filed her response to the initiating application the same day.
The proceedings came before the Court on 3 February 2014. The father appeared in person and the mother was represented. There were inter alia interim orders made for the children to spend with the father in week 1 from Saturday afternoon until Tuesday afternoon and in week 2 from Sunday morning until Tuesday afternoon and for the children to otherwise live with the mother. There were directions made for the parties to file further material, attend a section 11F conference with the children and the proceedings were adjourned for interim hearing.
On 25 February 2014 the father filed a further “amended” application seeking both parenting and property orders, an affidavit and financial statement.
Following the s.11F conference a memorandum was provided to the Court to which it will be necessary to return. The parties returned to Court on 21 March 2014. On that day the father appeared in person and the mother was represented. The Court made orders that a particular firm of lawyers be restrained from acting on behalf of the mother due to a conflict of interest. There were also interim orders made by consent for the parties to attend a parenting course, a family report to be prepared and for the parties to attend a conciliation conference on 5 June 2015.
On 29 April 2014 the father filed affidavits from seven different people (none of which he ultimately relied on). On 13 May 2014 the mother’s new solicitors filed a notice of address for service. On 22 May 2014 the first set of solicitors who have appeared for the father in these proceedings filed a notice of address for service on his behalf.
The proceedings returned to Court on 10 June 2014. By then the family report that had been ordered had been released to the parties (“the first report”). The conciliation conference that had been ordered didn’t proceed as there hadn’t been compliance with the orders for that purpose. The father and the mother were represented. The Court made orders for the parties to exchange documents and provide full and frank disclosure and the proceedings were adjourned for mention on 9 July 2014.
On 16 June 2014 the father filed an application in a case which was listed for the mention on 9 July 2014. The father’s solicitors filed a Notice of Withdrawal on 25 June 2014. New solicitors filed a notice of address for service on behalf of the father on 7 July 2014.
The proceedings returned to Court on 9 July 2014. Both parties were represented. The Court made interim orders for a further conciliation conference to occur on 25 September 2014 and the proceedings were adjourned for mention the same day.
On 10 September 2014 another set of solicitors filed a Notice of Address for Service on behalf of the father.
On 25 September 2014 when both parties were represented, final property orders were made by consent. There remained a dispute over parenting orders for the children and the recommendations in the first report. The parenting proceedings were adjourned for final hearing on 9 April 2015. There was also an order made for an updated family report (“the updated report”).
The father’s fourth set of solicitors filed a Notice of Withdrawal on 30 January 2015. On 17 February 2015 different solicitors filed a Notice of Address for Service on behalf of the father.
The trial commenced on 9 April 2015. At the trial Mr Mulligan, Solicitor, appeared on behalf of the father and Ms Fisken of Counsel appeared on behalf of the mother.
The trial
On 9 and 10 April 2015 the Court heard the evidence of the father, the paternal grandmother and the mother.[2] The proceedings were then adjourned part heard to 16 April 2015 for the purposes of hearing the evidence from the family report writer who had prepared two family reports in these proceedings.
[2] Neither party had filed a case outline as required by the interim orders
On the morning of 16 April 2015 the matter was stood down at the request of the father’s solicitor to inspect the report writer’s notes. When the proceedings resumed the father’s solicitor made an oral application which was dismissed for the reasons given ex tempore in Cunningham & Cunningham [2015] FCCA 1007. The Court then heard evidence from the family report writer and both parties had an opportunity to cross examine her.
At the conclusion of the evidence the Court made orders for the parties to file written submissions.
The father’s solicitors filed written submissions on 23 April 2015. The mother’s solicitors filed written submissions on 30 April 2015.
On 4 May 2015 the father’s solicitor requested an extension of time to file submissions in reply which the mother’s solicitor did not oppose.
On 7 May 2015, the same day the fifth set of solicitors engaged by the father filed a notice of withdrawal, submissions in reply were filed by the father in person.
Material relied upon at trial
At trial the solicitor for the father told the Court his client relied on:
a)his affidavit filed 21 November 2013;
b)his affidavit filed 12 March 2014;
c)his amended application filed 25 February 2014;
d)his affidavit filed 18 February 2015;
e)his affidavit filed 12 March 2015; and
f)the affidavit of the paternal grandmother filed 12 March 2015.
The father also relied on the following exhibits tendered during the course of the final hearing:
a)the father’s proposed minute of orders sought;[3]
b)correspondence between the mother’s solicitor and the father regarding X’s health issues;[4]
c)text messages between the parties;[5] and
d)a photograph.[6]
[3] Exhibit A1
[4] Exhibit A2
[5] Exhibit A3
[6] Exhibit A4
Counsel for the mother told the Court her client relied on her:
a)affidavit filed on 8 April 2015;
b)affidavit filed on 28 January 2014 and
c)affidavit filed on 19 March 2014.
The mother also relied on her proposed minute of orders which was marked exhibit R1 and an email dated 29 January 2014 marked exhibit R2.
Orders sought by the parties
The orders sought by both parties changed during the course of the trial. Because of this at the conclusion of the evidence the Court made the orders for the parties to file any amended proposed minute of orders along with their submissions. In order to put the position of the parties in context it is necessary to set out the position of each of the parties on the orders they were seeking over the course of the proceedings.
The father
In his “amended” application filed 25 February 2014 the father sought the following parenting orders:
“1.That the father and mother retain equal shared parental responsibility for the children of the marriage, namely:
(a)X born (omitted) 2009, and
(b)Y born (omitted) 2011 (“the children”)
2.That the father have sole parental responsibility for the children’s religious education. That the children attend (omitted) church with the father every Saturday from 4.00pm – 8.00pm.
3.That the father and mother have shared care of the children as follows:
(a)WEEK 1: 3 nights with the father starting from Saturday 4.00pm til Tuesday 5.30pm, and 4 nights with the mother starting from Tuesday 5.30pm til Saturday 4.00pm; and
(b)WEEK 2: 4 nights with the father starting from Saturday 4.00pm till Wednesday 5.30 pm, and 3 nights with the Mother starting from Wednesday 5.30 pm till Saturday 4.00 pm/ The children will get to have both weekdays and weekends with both parents and they will not miss attending church.
(c)If driving the children to school is a challenge for the mother, then make WEEK 2 schedule the permanent one every week, thereby reducing the Mother’s driving time.
4.That the father and mother otherwise spend time with the children as follows:
(a)On Christmas Eve the children spend time with the father from 10.30 am till Christmas Day 10.30 am.
(b)On Christmas Day the children spend time with the mother from 10.30 am till Boxing Day 10.30 am.
(c)On the (religion omitted) holidays (omitted), the children spend time with the father by agreement between the parties and if there is no agreement, from 5.30 pm or school pick up of the Friday closest to the holiday ((omitted)) to 5.30 pm Saturday.
(d)In the event that Father’s Day falls on a day that the children would otherwise be with the mother, the father shall spend time and communicate with the children by agreement between the parties and if there is no agreement, from 10.30am of Father’s Day till 10.30 am of the next day.
(e)In the event that Mother’s Day falls on a day that the children would otherwise be with the father, the mother shall spend time and communicate with the children by agreement between the parties and if there is no agreement, from 10.30 am of Mother’s Day till 10.30 am of the next day.
(f)In the event that the father’s birthday falls on a day that the children would otherwise be with the Mother, the father shall spend time and communicate by agreement between the parties and if there is no agreement, from 10.30am of father’s birthday till 10.30am of the next day.
(g)In the event that the mother’s birthday falls on a day that the children would otherwise be with the father, the mother shall spend time and communicate with the children by agreement between the parties and if there is no agreement, from 10.30am of the next day.
(h)On the child’s birthday, that both parents be permitted to attend children’s birthday parties. If no party is organised, the parent who is not with the children is allowed to call the child.
(i)That transport to and from parents be shared equally between the parties by agreement, or if there is no agreement, the mother or her representative picks up the children from the father at the beginning of her week, and the father or his representative picks up the children from the mother at the beginning of his week.
(j)That the children be allowed to call the father as often as they need when they are in the mother’s care.
(k)In the event that either party seeks to vary the times outlined in these Orders, that party will provide the other party with written notice at least 72 hours prior to the commencement of scheduled time via text or email.
(l)In the event that either party is unable to live with the children during the period outlined in paragraphs 3 and 4 due to work reasons, that party must notify the other party no less than 7 days prior to the commencement of their usual time with the child. At the time of providing notification that he or she will be unable to spend time with the children, the parties who is unable to live with the children will provide notification of make up time to the other party. Make up time is by agreement between the parties and if there is no agreement, to be equal to the time that he or she was unable to live with the child.
5.That schooling be decided immediately so X can enrol before it is too late at (omitted) College, which is a (omitted) school both parents approved of during the marriage.
6.That the children’s passports and birth certificates be returned to the father’s care. I have needed them to complete the application to X’s first school. Both parents will sign all documents to obtain or renew a passport for each of the children.
7.That the father be permitted to plan and approve the children’s holidays as he deems reasonable. A general guideline proposed is that the children be able to travel with each parent at least twice per year, including international trips. A domestic trip may last up to 8 days. An international trip may last up to three weeks. The travelling party must provide the other party with at least 30 days’ written notice including a full itinerary of the child or children’s flights and contact phone number during such travel. Telephone or internet calls (such as Skype) during travel will be permitted.
8.That each party let the other party know if a child requires medical attention or gets vaccination while in their care, and to do so within 24 hours of a child receiving medical attention. Each party is to give the other party at least 48 hours notice of any medical appointments the children may have.
9.All urgent communication to take place between the parties via telephone.
10.That each party advise the other as to any changes to their residential address, landline, mobile numbers or email address within 48 hours of such change.
11.That both parties be provided with copies of all children’s school reports, circulars, memoranda, correspondence, photo order forms or any information relating to the children’s education and sporting activities.
12.That both parties be permitted to attend parent-teacher interviews and meetings, school plays, sporting events and other like activities involving the children.
13.That the parties agree that they will jointly determine the schooling and extra-curricular activities of the children and in the event that such an agreement cannot be reached the father be the primary decision maker.
14.That the mother be ordered to respond to communication from the father, whether by phone, voicemail, email, or text message within 48 hours.
15.That the mother and her relatives or representatives do not show or discuss the contents of any affidavits to the children, that they stop coaching the children to take sides with the mother or take sides against the father.”
In his affidavit filed on 12 March 2015 the father sought that the children live with him[7].
[7] see paragraph 29
At the commencement of the trial the Court was told the father sought the following orders:
“CHILDRENS ORDERS
1.That the parties have equal shared parental responsibility for X (X) born (omitted) 2009 and Y (Y) born (omitted) 2014 (sic), (the “Children”).
2.The children live with the father.
Contact times
3.The children spend time with the mother as follows:
SCHOOL TERMS:
a.From Monday 6pm to Saturday 4pm. (father picks up X from school and brings both children to the mother’s house at the start of mother’s time on a fortnightly basis).
b.Such further other times may be agreed between the parties from time to time.
4.School holidays. Unless otherwise agreed by the parties in writing:
a.the children spend the first half of school term holiday with the mother and the second half of school term holiday with the father, commencing at 5pm of the mid-point of the holiday.
b.the school holidays shall be calculated as commencing at the conclusion of the last day of school until 5pm on the day immediately preceding school recommencing.
5.Summer holidays. Unless otherwise agreed by the parties in writing:
a.The children maintain the regular schedule during the long summer holidays until 1 January.
b.From 1 January, the long summer holidays are to be divided in two equal blocks. The children spend the first block with the mother, concluding at 5pm of the mid-point and the second block with the father, concluding at the morning of the first day of the new school year. Thereafter the regular schedule recommences.
SPECIAL DAYS
6.On children’s birthdays, the parent who does not have current care may call, Facetime or Skype the children.
7.On any birthday of the father or mother, and if it falls on a weeknight, the parent who is celebrating their birthday may pick up the children from school or the home of the other parent at 3.30pm and return to the other parent at 7.00pm.
8.On any birthday of the father or mother, and if it falls on the weekend, no change to the schedule shall be made.
9.On Christmas Eve and New Year’s Eve, the children spend time with the father from 10.30am of the day until 10.30am of the next day.
10.On Christmas Day and New Year’s Day, the children spend time with the mother from 10.30am of the day until 10.30am of the next day.
11.On Chinese New Year’s Eve and Chinese New Year’s Day, the children spend time with the father from the end of school, and if no school, from 10.30am of the day until 10.30am of the next day on even numbered years.
12.On religious holidays as per the (religion omitted) calendar, the children shall spend those days with the father from 10.30am of the Day until 10.30am of the next day: (omitted).
13.The father provide the mother written notification of the dates of those religious holidays at least fourteen (14) days prior to the date of those holidays.
14.At such additional or alternate times as may be agreed between the parties via text message or email.
Changeover
15.The mother or her representative deliver the children to the father’s house or Aunty’s house next door in (omitted) at the commencement of the children’s time with the father. The father or his representative deliver the children to the mother’s house at the commencement of the children’s time with the mother.
Communication
16.That the parents communicate with each other regarding issues about the children via text or email. In an emergency or urgent situation via telephone.
17.That each parent shall keep the other informed of their residential and postal addresses and their landline and mobile telephone numbers and notify the other parent of any change to these details within forty eight (48) hours of the change.
18.The parties not speak or permit any other person to speak to or about the other parent or their family in an abusive or denigrating fashion in the children’s hearing.
Telephone communication
19.Each child is allowed to have their own phone from the age of 6 onwards. Each parent undertakes not to withhold the child’s phone from him or her.
20.The children shall be free to contact the parent they are not with at any reasonable time.
21.The parties ensure to call on behalf of the children if they have requested to speak with the other parent.
Education, Health and Welfare
22.The children attend (omitted) College in (omitted).
23.That both parties be permitted to attend jointly parent-teacher interviews, school meetings, school plays, presentation nights, spelling bees, sporting events and other like activities involving the children.
24.That if the children have been prescribed medication, treatment or therapy the parent who has taken the relevant child for medical treatment shall inform the other parent within twenty four (24) hours by text or email:
a.the children’s symptoms and the doctor’s diagnosis;
b.the medication, therapy or treatment prescribed and the doctor’s advice regarding the administration of such medication, therapy or treatment.
25.Each parent be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by them: copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children. For this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the person so informed.
Passports, Birth Certificates and International Travel
26.The mother returns the children’s passport and birth certificates to the father’s safe keeping.
27.Parents will facilitate the issue or renewal of passports for the children. If either party refuses to provide consent of the passport application or renewal, the Registrar may sign the documents in their stead.
28.The child/children may accompany their father and mother on international travels or holidays for up to 2 weeks at least twice a year.
29.The child/children may accompany each Parent on international travels while under the care of that Parent.
30.Written consent shall not be required provided the travelling parent deliver to the non-travelling parent no later than 14 days prior to travel: a copy of the child/children’s return airfare to Australia, accommodation and contact details while abroad.
31.Neither parent shall unreasonably withhold consent to the child/children travelling internationally. If parents do not agree, the parents must attend one and only one session of mediation at a Family Resolution Centre at the earliest available date and the parent who is deemed unreasonable by the Mediator(s) shall bear the costs.
32.The non-travelling parent may call, Facetime or Skype the child/children at reasonable times during the trip.
Specific Children’s Issues
33.That the children attend (omitted) church with their father every Saturday evening except holidays.
34.The father has sole responsibility for making decisions about the children’s religious observance and religious education.”
On 23 April 2015 in final submissions the father’s solicitors filed an amended minute of proposed orders, which were:
“Orders and Time
22.The father withdraws the order for sole parental responsibility in relation to religion.
23.In relation to time, it is submitted that the father is flexible. It is in the best interests of the children to have equal and if not, substantial and significant time. The father attends church (omitted) on Saturdays. Compared to the mother he does not have a full weekend due to his work timetable.
24.The father has had a routine with the children of substantial and significant time. It is in not in their interest for this to be drastically changed.
25.The father proposes the children live with the Father and Mother equally on a basis similar to the current schedule that has been working for more than two and a half years.
Week 1 – The children live with the father from Saturday 4.00pm to Wednesday 6.00pm
Week 2 – The children live with the father from Sunday 10.00am to Wednesday 6.00pm.
26.The father is seeking to add only one day a week to the current schedule. This advantages the children as they will continue to live near their current school, near their father’s (omitted), near immediate relatives, reduces mother’s driving days, and gives them one more day for extra-curricular activities which are established routines at the father’s house, and allows for sports for both children, in particular Y who is showing much interest in sports now.”
In submissions in reply filed on 7 May 2015 the father (who by this stage was unrepresented) then told the Court in the “summary” attached that he sought certain orders.[8] However the actual minute provided for different orders which were:
[8] See para 1-2 of summary attached to “Applicant’s Proposed Orders” in reply submissions
“1.The applicant father and respondent mother have equal shared parental responsibility for the children X born (omitted) 2007 (sic) and Y born (omitted) 2011.
2.That the children live with the father on a fortnightly rotating basis as follows,
IN THE FIRST WEEK
a)from 4pm Saturday to 6pm the following Wednesday
IN THE SECOND WEEK
b)from 10am Sunday to 6pm the following Wednesday.
3.That the children live with the mother at other times.
4.That the child X continue to attend (omitted) College. That the child Y be enrolled in (omitted) College and commence school on a date agreed by the applicant and respondent.
5.That the father be permitted to take the children to (country omitted) for a holiday from 20 June 2015 to 28 June 2015.
6.On children’s birthdays, the Parent who does not have current care may call, Facetime or Skype the children.
7.If any birthday of the Father or Mother, falls on a weekday, the parent who is celebrating their birthday may pick up the Children from school or the home of the other parent at 3:30pm and return to the other parent at 7:00 pm.
8.On Christmas Eve and New Year’s Eve, the Children spend time with the Father from 10:30am of the day until 10:30am of the next day.
9.On Christmas Day and New Year’s Day, the Children spend time with the Mother from 10:30am of the day until 10:30am of the next day.
10.On Chinese New Year’s Eve and Chinese New Year’s Day, the children shall spend time with the Father from the end of school until the start of school the next morning and if no school, from 10:30am of the day until 10:30am of the next day.
11.On (religion omitted) the Children shall spend time with the Father from 10:30am until 10:30am of the next day. The Father shall provide the Mother written notification of the dates of those religious holidays at least fourteen (14) days prior to the date of those holidays.
Changeover
12.The Mother or her representative deliver the children to the Father’s house or the children’s Uncle and Aunt’s house next door in (omitted) at the commencement of the children’s time with the Father. The Father or his representative deliver the children to the Mother’s house at the commencement of the Children’s time with the Mother.
Communication
13.That the parents communicate with each other regarding issues about the Children via text or email except in cases of emergency.
14.That each parent shall keep the other informed of their residential and postal addresses and their landline and mobile telephone numbers and notify the other parent of any change to these details within forty eight (48) hours of the change.
15.Each child shall be permitted to have their own phone from the age of 6 onwards.
16.The Children shall be free to contact the parent they are not with at any reasonable time.
Education, Health and Welfare
17.That both parties be permitted to attend jointly parent-teacher interviews, school meetings, school plays, presentation nights, spelling bees, sporting events and other like activities involving the children.
18.That if the Children have been prescribed medication, treatment or therapy the parent who has taken the relevant child for medical treatment shall inform the other parent within twenty four (24) hours by text or email:
(a)The children’s symptoms and the doctor’s diagnosis;
(b)The medication, therapy or treatment prescribed and the doctor’s advice regarding the administration of such medication, therapy or treatment.
19.Each parent be entitled to obtain directly from any school attended by the Children or from any health or welfare professional or other professional attended by them: copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children. For this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the person so informed.
Passports, Birth Certificates and International Travel
20.The Mother deliver the children’s passport and birth certificates to the Father.
21.Parents will facilitate the issue or renewal of passports for the Children. If either party refuses to provide consent for the passport application or renewal, the Registrar may sign the documents in their stead.
22.The Child/Children may accompany their Father on international travels or holidays for up to 2 weeks at least twice a year.
23.That the father be permitted to take the Children to (country omitted) for a holiday from 20 June 2015 to 28 June 2015.
24.That the Mother and the Father be restrained from abusing, insulting or otherwise denigrating the other in the presence or hearing of the children.”
The mother
At the commencement of the trial the Court was told the mother sought the following orders
“1. That the parties have equal shared parental responsibility for the children of the marriage:
X born (omitted) 2007 (sic); and
Y born (omitted) 2011.
2.That the children live with the mother.
3.That the children spend time and communicate with the father as follows:
a.during school term:
i. each alternate weekend, from the conclusion of school Friday until the commencement of school Monday (extended until the commencement of school Tuesday if public holiday);
ii. each alternate Thursday, from the conclusion of school Thursday until the commencement of school Friday.
b.during school term holiday periods:
i. in 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 12.00pm on the middle Saturday and;
ii. in 2016 and each alternate year thereafter, from 12.00pm in the middle Saturday until 12.00pm on the last Sunday.
c.for one half of the long summer holiday periods, at dates and times as agreed and failing agreement;
i. in 2015/16, on a week about basis with the father to have the first week and the mother the second week.
ii. in 2016/17, on a week about basis with the father to have the second week and the mother the first week.
iii. from 2017/18 onwards, with the father for the first half in 2017/18 and each alternate year thereafter,
iv. with the father for the second half in 2018/19 and each alternate year thereafter.
d.at Christmas:
i. in 2015 and each alternate year thereafter from 3pm Christmas Eve until 3pm Christmas Day.
ii. in 2016 and each alternate year thereafter, from 3pm Christmas Day until 3pm Boxing Day.
e.on New Years Eve/Day.
i. in 2016 and each alternate year thereafter, from 3pm on New Years Eve until 3pm on New Years Day.
ii. in 2015 and each alternate year thereafter, from 3pm on New Years Day until 3.00pm on 2 January 2016.
f.on Father’s Day weekend from 5.00pm on the Saturday prior until the commencement of school Monday.
g.On the children and father’s birthday;
i. if a school day, for a period of two hours;
ii. if a non-school day, for a period of four hours.
h.by telephone each Tuesday and Wednesday between 7pm and 7.30pm.
i.such further or other time as may be agreed.
4.That if the children are otherwise in the care of the father, his time be suspended and the children’s time in the care of the mother at the following times:
a.on Mother’s Day weekend, from 5pm on the Saturday prior until the commencement of school Monday.
b.at Christmas;
i. in 2015 and each alternate year thereafter, from 3pm Christmas Day until 3pm Boxing Day.
ii. In 2016 and each alternate year thereafter, from 3pm Christmas Eve until 3pm Christmas Day.
c.At New Years:
i. in 2015 and each alternate year thereafter, from 3pm New Years Eve until 3pm New Years Day.
ii. in 2016 and each alternate year thereafter, from 3pm on New Years Day until 2 January 2017 at 3pm.
d.on the children and mother’s birthday:
i. on a school day, for two hours;
ii. on a non-school day, for a period of four hours.
5.That the children be permitted to communicate with the mother by telephone:
a.at 6pm to 6.30 pm on Sunday during the alternate weekends they are in the care of the father; and
b.during school holidays, at 6pm to 6.30pm Sunday and Wednesday.
6.That in order to give effect to paragraphs 3 & 4 hereof;
a.changeover occur at the children’s school for all changeovers that coincide with the commencement and or conclusion of the school day.
b.unless otherwise agreed in writing, all other changeovers occur at the (omitted) Library.
7.That the parties forthwith do all such acts and things and sign all such documents as may be required to:
a.enrol X at (omitted) College, for her to commence in grade 2 as and from the commencement of term 3 in 2015;
b.enrol Y at (omitted) College to commence prep as and from 2017.
8.That the children attend upon a single treating general practitioner, to be agreed between the parties, and in default, (omitted) Medical Clinic, (omitted) (and if available Dr K) save for in the case of an emergency.”
However during the course of the first 2 days of the trial Counsel for the mother gave notice her client would in light of the evidence seek an order for sole parental responsibility. On 30 April 2015 the mother in final submissions filed an amended minute of proposed orders which were:
“1.That the mother have sole parental responsibility for the children of the marriage:
X born (omitted) 2007 (sic); and
Y born (omitted) 2011
(hereinafter referred to as “the children”) save that the mother shall, prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation thereto;
(c)consider by reference to the best interests of the children any such response prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
2.That the children live with the mother.
3.That the children spend time and communicate with the father as follows:
(a) During school term periods:
(i). Each alternate weekend from the conclusion of school Friday until the commencement of school Monday (extended until the commencement of school Tuesday if Monday is a public holiday).
(ii). Each alternate Thursday (in the “off week”) from the conclusion of school Thursday until the commencement of school Friday.
(b) During school term holiday periods:
(i). In 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 12.00pm on the middle Saturday; and
(ii). In 2016 and each alternate year thereafter, from 12.00pm on the middle Saturday until 12.00pm on the last Sunday of the school term holiday period.
(c)For one half of the long summer holiday period at dates and times as agreed, and failing agreement:
(i). In 2015/16, on a week about basis with the father to have the first week, and the mother the second;
(ii) In 2016/17, on a week-about basis with the father to have the second week, and the mother the first week.
(iii) From 2017/18 onwards:
1.In 2017/18 and each alternate year thereafter, for the first half of such long summer holiday period.
2.In 2018/19 and each alternate year thereafter, for the second half of such long summer holiday period.
(d) At Christmas:
(i). In 2015 and each alternate year thereafter, from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii) In 2016 and each alternate year thereafter, from 3.00pm Christmas Day until 3,00pm Boxing Day.
(e) On New Years Eve/Day:
(i). In 2015/16 and each alternate year thereafter, from 3.00pm on New Years Day until 3.00pm on 2 January; and
(ii) In 2016/17 and each alternate year thereafter, from 3.00pm on New Years Eve until 3.00pm New Years Day.
(f).On Father’s Day weekend, from 5.00pm on the Saturday until the commencement of school on the Monday after Father’s Day.
(g).On the children and father’s birthdays:
(i) If a school day, for a period of two hours; and
(ii) If a non-school day, for a period of four hours
(h).By telephone each Tuesday and Wednesday, between 7.00pm and 7.30pm
(i).Such further or other time as may be agreed between the parties in writing.
4.That if the children are otherwise in the care of the father pursuant to these orders, his time be suspended, and the children be in the care of the mother at the following times:
(a) At Christmas:
(i) In 2016 and each alternate year thereafter, from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii) In 2015 and each alternate year thereafter, from 3.00pm Christmas Day until 3,00pm Boxing Day.
(b) On New Years Eve/Day:
(i) In 2016/17 and each alternate year thereafter, from 3.00pm on New Years Day until 3.00pm on 2 January; and
(ii) In 2015/16 and each alternate year thereafter, from 3.00pm on New Years Eve until 3.00pm New Years Day.
(c)On Mother’s Day weekend, from 5.00pm on the Saturday until the commencement of school on the Monday after Mother’s Day.
(d)On the children and mother’s birthdays:
(i). If a school day, for a period of two hours; and
(ii). If a non-school day, for a period of four hours
5.That the children be permitted to communicate with the mother by telephone:
(a)During the alternate weekends when they are in the care of their father, on Sunday between 6.00pm and 6.30pm; and
(b)During school holiday periods when in the care of the father, on Sunday and Wednesday between 6.00pm and 6.30pm.
6.That in order to give effect to paragraphs 3 and 4 hereof:
(a)Changeover occur at the children’s school for all changeovers that coincide with the commencement or conclusion of the school day; and
(b)Unless otherwise agreed in writing, all other changeovers occur at the (omitted) library.
7.The parties forthwith do all such acts and things and sign all such documents as may be required to:
(a)Enrol X at (omitted) College in Grade 2, as and from the commencement of term 3 in 2015; and
(b)Enrol Y at (omitted) College to commence prep as and from 2017.
8.That the children attend upon a single treating general practitioner, to be agreed between the parties, and in default of agreement to attend at (omitted) Medical Clinic, (omitted) (and, if available, Dr K save for in the case of emergency.”
Section 11F memorandum
As noted earlier an order was made early in the proceedings for a family consultant to interview the parties and the children under s.11F of the Act in March 2014. In her memorandum the family consultant noted:
“The parents were married on the (omitted) 2003. They separated on the 15/9/2012 and divorced on the 11/12/2013. The father is a (occupation omitted) and lives in (omitted) on his own. The mother lives in (omitted) with her mother and her mother’s partner. They live approximately 30 Kilometers distance from each other. The main reason for their separation was increased conflict between the parents and the mother’s suspicions about the father having an extra marital affair.
The main contributing factor which appears to underlie the parental dispute is their inter-personal conflict and disparate parenting styles. Neither parent accepts responsibility for their conflict and the resultant impact on their children. They each blame the other and are in competition about who was the better parent throughout their marriage. This was particularly true for the father who remains particularly highly critical of the mother’s parenting capacity to care for the children and does not acknowledge the positive relationship the children have with both parents. He considered himself the primary caregiver throughout the relationship based on his better parenting skills, ability to focus on the children’s needs, and maintaining the household chores compared to the mother.
The father presented as very controlled and somewhat disingenuous. It was apparent he wanted to present himself in the best light and as a fair person who is child focused. He was reluctant to discuss the concerns he outlined in his Affidavit material about the mother and tended to minimise these concerns about the mother. However, when challenged throughout the assessment, he was quick to blame the mother. He was very passive in his communication style and presented himself as the victim and accepted little responsibility for the marriage break down and the current Court dispute.
The father’s main concerns about the mother are: she coaches the children and embroils them in the parental conflict which he attempts to “shield” them from; she is “manipulative” and makes the children hide information from their father; she has low standards of cleanliness in the home and does not ensure the children’s hygiene; and she is not as involved in the children’s education as he is.
The mother’s experience of the relationship post separation is they are unable to communicate without conflict and any communication tends to end with the father verbally abusing and threatening her. They currently communicate via text messages and the mother avoids communication where possible.
The mother reported the father did not take responsibility for his actions which led to their separation and made her feel like everything was her fault. She believes he was more concerned about losing respect and saving his reputation as a (occupation omitted) than addressing the concerns in their marriage. She only became aware of the way she was treated throughout the relationship when she sought professional assistance. She described herself as subservient in the relationship and often appeased the father. She seeks Court orders to assist in placing boundaries around the father and ensure the parents’ communication is minimised so they are not required to negotiate about the future parenting arrangements which causes conflict between them.
She claims the parents agreed she would be the primary caregiver, whilst the father concentrated on his work as a (occupation omitted). She does not deny the father assisted in parenting the children and with maintaining the household chores. She further reported the father travelled on at least five occasions throughout 2012 for 2-3 weeks each time. In October 2012 the father reportedly had an overseas trip and was away for 2.5 months. The father spoke to the children via Skype once per week when they spent time with the paternal grandparents. Throughout these trips the mother was the primary caregiver and the father had no concerns about leaving the children in her care. She vehemently disagreed with the father regarding the state of the house and hygiene of the children. She stated they have different standards but these issues are not risk issues.
Equal Shared Time
Equal shared time parenting arrangements have existed post separation when Y was 12 months and X 3.5 years. The mother denies she agreed to this parenting arrangement.
The main concern identified in this assessment regarding this arrangement is the unresolved conflict between the parents. The father’s proposal for equal shared time appears to be based on his wishes for fairness and equity and an underlying sense of entitlement as opposed to what is in the best interests of the children at their age and developmental stage. The father is fixated on the number of days he spends with the children and ensuring this is equal to that of the mother’s.
X in particular appears to be embroiled and caught in the middle of this conflict which neither parent accepts responsibility for. Despite this, there are no significant identified risk issues or concerns about the children’s relationship with either parent that would preclude the children from continuing equal shared time with their parents, at least in the interim. A thorough assessment is required to establish whether these arrangements can be maintained and are in the best interests of the children in the long term, particularly at their age and developmental stage.
The parents reported the children are able to transfer between each parent easily and are happy to spend time with both parents. The mother reported X at times resists spending time with her father initially and she has to encourage her to go. The mother could not explain why this was the case and stated she appeared happy upon her return. The main concern for the father is the mother’s coaching of the children and X often making statements and reporting things the mother has told her.
School
Both parents appear to take the children’s education and academic abilities very seriously and therefore choosing the right school is a priority for them. They each have their own concerns about the school/s proposed by the other parent which are outlined in their Affidavit maternal. The mother’s main concern is the geographic distance. The current school is approximately 40 kilometres from her home and Y is also required to travel this distance to and from school, twice per day. The mother seeks X attends a school closer to her if the Court outcome is for the children to live primarily with her and equal distance between the parents if the outcome is equal shared time. She also reported the children’s extended community supports and activities are more prominent where the mother lives. The father presented a myriad of concerns regarding the mother’s proposals about which school the children ought to attend. He is adamant the current school will provide the children with the best education and was inflexible about changing this, despite the distance the children are required to travel.
It is beyond the scope of this assessment to ascertain which school is most appropriate for the children to attend. Until the Court makes a final order regarding the parenting arrangements, it is recommended X remain at the same school she currently attends. If final orders reflect equal shared time then a school with equal distance from the parents’ home would be more suitable for the children to reduce travel time when living with either parent. If final orders reflect one parent has the primary care of the children, then a school closer to that parent is recommended.
THE CHILDREN
Y (age 2) was not interviewed on this occasion due to his age.
X (age 5) was briefly interviewed. She presented as a very bright girl who appeared older than her stated age. She was quite serious during the interview and provided the writer with information without being prompted.
She appeared to have an understanding about her parents dispute, stating “mum wants more days and dad wants more days”.
X appeared to have a positive relationship with her parents and enjoys spending time with them both. She repeated a number of times throughout the interview that she wanted her parents to reunite and she felt “sad” about them living separately and having to move from her home in (omitted).
She appeared to have knowledge about the parental dispute and was blaming of her mother. She stated her mother and maternal grandmother say that her father “hurts mum and he is bad and not a good father” but she disagrees with them and thinks he is a good father. She stated her mother called the police on her father, however she believes it was her mother who was at fault when she took the children from their (omitted) home and left.
Her perception appeared to be that her father likes her mother but wants to spend “longer days” with the children. She does not believe her mother likes her father.
At the end of the interview, X stated in a very mature manner “I am only a child and not an adult”.
It was apparent that X has been caught in the middle of her parents conflict by the statements she made throughout this interview.
FUTURE DIRECTIONS
Maintaining a positive relationship and connection with each parent, in the absence of any parental conflict, will provide the children with an appropriate foundation for happy, healthy and trusting adult relationships into the future. This however can only occur if the parents remain amicable, have clear lines of communication and co-parenting strategies and are able to put aside their own personal difficulties with each other. It is also more likely to occur if the parents are able to acknowledge and address any parenting concerns that they each have about each other in a timely manner and without involving the children in such discussions. Both parents ought to attend a professional service to address their communication difficulties and ensure they are able to focus on the children’s needs and the value of the other parent in the children’s lives.
1.A family report to consider the above issues more thoroughly.
2.The existing equal shared time arrangements remain in place on an interim basis.
3.X continue to attend her current school on an interim basis.
4.Both parents attend a post separation cooperative parenting course in their local area and provide evidence of their attendance to the Court. This can be located by contacting the Family Relationships Advice Line, ph 1800 050 321.
5.Subpoenaed material from DoHS, Child Protection regarding past intervention and outcomes.
6.That the parents refrain from denigrating the other parent in the presence or hearing of the children, or permit or cause others (including the children) to engage in such behaviour.
7.The parents refrain from discussing the Court proceedings and parental dispute with the children or in their presence.”
Family Report
The first report ordered in March 2014 was released to the parties on
2 June 2014. The first report noted inter alia:
“EVALUATION
99.This report is written to assist the court in determining parenting arrangements for 5 year old X and 2 year old Y. The focus of the dispute is the quantum and pattern of time the children might spend with each parent and which schools X, and, in future Y, might attend.
100.While Mr Cunningham’s position is that he can be deemed to be the primary carer, at the same time it is not in dispute he has travelled for his work as a (occupation omitted) and that Ms Cunningham did not have a full-time job during the marriage.
101.Mr Cunningham’s position is that in mediation he compromised and reduced the 50-50 routine in place since separation, to the current 9/5 routine. He cannot recall the exact days of the 50/50 arrangement. His view, however, is that 50-50 ‘…is the prescription of the law’, and that is the routine he seeks; of a rotating 3 and 4 days each week, 7 days each over a fortnight.
102.In considering an equal shared parenting arrangement there a number of considerations to address; such as the benefits to the children of having more time with the parent they are not primarily living with; the routines within and across households and, importantly, the quality of the parents’ relationship and communication.
103.Other factors relate to the geographical distance between homes and the location of schools, kindergartens or crèches. In this matter the parents live about 32 kilometres from each other. X attends school at (omitted) College in (omitted), 12 kilometres from the father’s home and 38 kilometres from the mother’s home.
104.Another important issue in this case is the impact of Mr Cunningham’s religious involvement on the children. While both parents are (religion omitted), and attend fundamental (omitted) churches, Mr Cunningham is a (omitted). His social, emotional, religious, cultural and working life revolves around the church. He also travels overseas for his (omitted).
105.A concern in this case, evidenced by the 7 affidavits Mr Cunningham has filed in his support, is the judgement and less than favourable views against the children’s mother, expressed by those people in his support network.
106.The concern here is that such damning views about Ms Cunningham as a person and as a parent indicate an unwillingness and inability to facilitate and encourage the children’s relationship with her. Mr Cunningham has seen fit to file such views.
107.Mr Cunningham’s own views about Ms Cunningham as a person and as a parent also demonstrate very little goodwill towards her. The post-separation parenting relationship and communication does not bode well for a workable, effective future shared care arrangement. Both describe their current relationship as poor. While the litigation has not enhanced their relationship, it has highlighted an essential lack of trust between them; particularly, on the mother’s part towards the father. The choice of school for X is a major source of disagreement.
108.X exhibited extraordinary behaviour at these interviews in terms of her unprompted, unsolicited comments about the number of days she wants to live with her father. By her presentation and by her own account, X was coached by Mr Cunningham and his partner on the morning of the interviews. It was particularly evident as the child has no understanding of the days of the week.
109.X is over-involved in the parental dispute by specifically presenting her father’s views. At the same time she impresses as a serious and emotionally young child. Ms Cunningham’s view, confirmed by an educational assessment and interviews at the (omitted) College school last year that the child was not socially ready for grade 1, seems correct. Notwithstanding Ms Cunningham’s recollection, the psychologist considers Ms Cunningham’s opinion is more reliable than that of Mr Cunningham and X should have commenced prep this year.
110.At this stage the indications are that the parents are unlikely to agree on living arrangements and will require a court order. It must be said that Mr Cunningham’s views alone, jeopardise the suitability of shared care, to the point that the children are possibly at emotional risk if Mr Cunningham persists with his opinions of the mother.
111.In the absence of a workable parenting relationship, the children are too young to manage routines across households and require the predictability and security of residing in one home.”
The first report then made the following recommendations:
“112.That the parents have equal shared parental responsibility for the children.
113.That the children live with their mother.
114.That the children spend time and communicate with their father each alternate weekend, Friday to Monday, plus 1 other night in the fortnight such as alternate Thursday to Friday plus any lengthy intervals in time be broken with a meal or activity.
115.That X attend a school closer to the mother.
116.That X commence in grade 1 in 2015.
117.That if the choice of school remains in dispute, the parties obtain an assessment on X from an educational psychologist.
118.That if they have not already done so, both parents complete a post separation parenting course.
119.That both parents attend for mediation if further issues arise.”
The updated report ordered for the trial was released to the parties on
2 March 2015 stated inter alia:
“EVALUATION
55.Readers are referred to the comments in the evaluation section of the previous Family Report. Little has changed and little more can be added. The dispute focuses on the quantum and pattern of time the children might spend with each parent, and which schools X, and, in future, Y might attend.
56.The children currently live with their mother and spend 5 nights a fortnight with their father; 3 nights in week 1 and 2 nights in week 2. The children’s weekend is split between each parent.
57.Mr Cunningham interprets the current routine by saying ‘in a 30-day month’ the children live with him for ‘15 days’ and with their mother for ‘15 days’. He insists this is a 50/50, shared care routine. In practice the routine actually translates to 11 nights with him and 19 nights with the mother, out of 30 nights.
58.Mr Cunningham’s position is that he has conceded to Ms Cunningham’s demands, when, ‘…she hasn’t compromised on any issue’. His position is that he is the parent who seeks open communication but ‘…on important issues it’s one way’; meaning coming from him. This is one of the reasons, including the disagreement about choice of school, why ‘equal shared time’ is ‘no longer practical’ and he is changing his proposals to sole care.
59.Readers are referred to the comments on Mr Cunningham in the body of the report. There is little more that can be said. It seems Mr Cunningham chose to attend the interviews in bad faith. He remains critical of Ms Cunningham and continues to involve X in adult matters. It is best for Mr Cunningham to explain his position and proposals directly to the court as he told the psychologist he prefers.
60.Ms Cunningham again impressed as being attuned to the children’s overall needs. She is a capable and competent parent. At times she appears ambivalent about her parenting relationship with Mr Cunningham: alternately wanting to establish a good post-separation parenting relationship, but also feeling somewhat embattled and manipulated by him. It is suggested she continue with her counselling support.
61.While X is achieving academically, she still presents as an emotionally young child. She remains caught in the parental dispute; to the extent that she continues to present her father’s views, against what she knows to be the actual situation. The concern is that X is learning to lie in support of her father.
62.It is suggested that X needs respite from the intensity and control of her father’s character and parenting style. And, as stated in the previous report, the expected pre-requisites for equal shared care are not, in the psychologist’s opinion, evident. But, in any case, Mr Cunningham intimates he is now seeking sole care of the children.
63.If there are changes to the current quantum and pattern of time the children spend with each parent, and if X was to change schools, it would be anticipated and expected that each parent will make that transition a positive one for X, by supporting her and encouraging her. The child is resilient enough to cope with changes, but only within the environment of a supportive and loving family.”
The updated report then went on to make the following recommendations:
“64.That the parents have equal shared parental responsibility for the children.
65.That the children live with their mother.
66.That the children spend time and communicate with their father each alternate weekend, Friday to Monday plus 1 other night in the fortnight with any lengthy intervals in time broken up with a meal or an activity.
67.That the current fragmented weekends be removed so that the children enjoy alternating full weekends with each parent.
68.That the children share school holidays with each parent with no more than 7 consecutive days with each, plus share other celebration events.
69.That X and Y attend school close to the mother’s residence.
70.That Ms Cunningham continues with her personal supportive counselling.
71.That Mr Cunningham attends a parenting course to enable him to understand the social and emotional needs of young children.
72.That Mr Cunningham give some consideration to supportive counselling to assist him with aspects of his parenting style, not the least the impact of over involving the children in adult issues and recognising the value of the other parent in the children’s lives.”
Evidence at the trial
In Saunders & Saunders (1976) FLC 90-078, it was said:
“[R]estraint is called for in expressing views about the parties because of the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.”
In order to be able to determine this application for parenting orders for the children, where those otherwise responsible have asked the Court to make decisions affecting those children, it is necessary to form an assessment of the character and the personality of the parties in this case. I do not intend to recite all of the evidence at trial. However all of that evidence, and the submissions made by the parties, has been considered and taken into account.
Evidence of the father
In his evidence before the Court the father adopted his affidavits referred to earlier. Having observed the father give evidence and be crossed examined it was apparent he was aware he would be scrutinised when doing so. That said at times the father appeared to have difficulty giving answers which were responsive to questions and was unable to make obvious concessions.[9] The father also repeatedly used the collective pronoun (“we” as reference apparently to “his” family) when asked questions about why he thought the children were better off living with him. This was consistent with his evidence before the Court which revealed what appeared to be a binary attitude to issues regarding what was in the children’s best interests where only one of the parents could be right and decide what was best for the children.
[9] See para 6 of mother’s submissions
On many occasions the father appeared not able to resist the need to say things which it appeared that he perceived were favourable to his case. Whilst I accept the father was desperate to give evidence to support his case as to what were orders in the children’s best interests his evidence before the Court satisfies me it was more likely than not he was critical of the mother to, and in front of the children. Moreover, all of the evidence leads me to conclude that the mother’s allegations about the father’s attitude to her, and their inability to communicate is the case and to note that the observations by the experts in this case about the father were only underscored by his evidence before the Court.
In evidence in chief the father said in relation to medical issues for X there had been no cooperation until 2 weeks before the trial. In cross examination the father agreed the idea of a single treating doctor for the children was a good idea but maintained that he believed he had done better in providing for the children’s health than the mother.
The father agreed with the suggestion put to him in cross examination that equal time for the children was not practical. The father also agreed that his proposal before the Court at the start of the trial was different to what had been in his most recent affidavit and also contrary to the recommendations of the updated family report.
The father also accepted that on the proposal he put before the Court the children would not spend a whole weekend with the mother.
The father agreed the children travelling 1.5 hours each day was tiring but maintained his opposition to the children attending a school close to the mother’s home.
The father denied he had withheld the children prior to the start of the proceedings and denied that he did this so that he could unilaterally enrol the eldest child at the school at (omitted) College.
The father’s evidence in cross examination was he found the report writer to be biased. Whilst acknowledging the report writer had never said before making her recommendations that the children should be living with the mother, the father maintained he could sense the report writer’s bias and pointed to her reply to him that the children were very young when she was told their ages as somehow demonstrative of this.
The father gave evidence in cross examination that he believed the report writer had been trying “to trap” him and that she tried to “steer” questions.
The father, whilst denying he had coached the eldest child or told her what to say, maintained the report writer was making up what the child was reported to have said to the report writer but agreed the mother could not have told the child to say what the report writer recorded the child saying. The father’s evidence in cross examination was he believed the report writer had manipulated the eldest child. The father denied telling the eldest child what to say during the report interviews and didn’t accept that the concerns expressed by the report writer about that child’s presentation during interview suggested that he had.
Finally the father agreed the mother complied with the interim orders but was critical of her for not facilitating extra time.
The father’s case was notable for the repeated emphasis he claimed he placed on the rights of the children and his repeated invocation of those rights as he articulated them in support of the orders (as they changed and changed again) that he sought. As Murphy J said in Lansa &Clovelly [2010] FamCA 80:
“the rights of children and assertions as to their best interests are in many highly conflicted parenting cases ending in trials, refracted through a prism of each parents creation which contains their interpretation of the children’s best interests clouded by the (often unstated and sometimes denied) assertion of parental rights both of the type earlier described and of a more self-centered type).”
In light of the father’s evidence before the Court His Honour’s comments seem apposite.
Evidence of the paternal grandmother
The paternal grandmother’s evidence was understandably wholly supportive of the father. However importantly she did give evidence in re-examination that the mother and the father did not want to talk and so she had been repeatedly placed in the position where she had to act as an intermediary between the mother and the father. The paternal grandmother’s evidence made clear she found this difficult and she had seen the eldest child also used as a messenger between the parents.
Evidence of the mother
The mother adopted her affidavits referred to earlier. Generally I thought the mother was genuine in her answers to questions. Contrary to the claim made in submissions on behalf of the father the mother did not give evidence she was working in (omitted) 2 days per week. The mother had been volunteering. There was no evidence given by her that she was in paid (or had been offered paid) employment.
Unlike the father the mother readily made concessions in cross examination. One example will suffice to illustrate this. In cross examination the mother agreed that in enrolling the eldest child at the (omitted) College school she had done so without informing the father which was the same behaviour she accused him of.
In her evidence in cross examination the mother said communication with the father was limited and when she tried she said she found the father’s responses to her were abusive, critical and condemning.
The mother’s evidence about the disputes over medical treatment for the children, whether it was the inhaler or antibiotics was she received constant accusations and criticisms from the father.
The mother’s evidence was she believed an order for sole parental responsibility to the parent the children live with would reduce problems.
The mother’s evidence in cross examination was she fostered a positive relationship between the children and the father and his family. Whilst acknowledging that she and the father were both (religion omitted) the mother’s evidence in cross examination made clear she remained suspicious of the father’s motives and claimed that in seeking time with the children on “biblical” holidays the father was just seeking extra time as they didn’t celebrate these holidays when they were together.
The mother’s evidence made clear communication between the parties only improved every time there was a court date coming up and that she was still intimidated by the father and needed help to “filter” the language in his emails to her.
Evidence of the family report writer
The family report writer was called to give evidence and was cross examined. The report writer told the Court that she had perused all material filed by the parties since the updated report was released.
The report writer confirmed that she had also been provided with a copy of the parties respective proposals and was aware of the orders being sought by the parties.The report writer told the Court that in light of the material filed since the first report and the updated report and the proposed orders sought by the parties that she wished to change her recommendation at paragraph 64 of the updated report from the parties having equal shared parental responsibility for the children to the mother having sole parental responsibility for the children.
In her evidence before the Court, the report writer confirmed the contents of the first report dated 2 June 2014 were true and correct as were those in the updated report dated 2 March 2015 save that she wished to change one of the recommendations in the updated report. The report writer’s evidence was:
“THE WITNESS: There are no errors. There was a typographical error, I think, related to a date of an order or a document. I do wish to make a correction to my recommendations.
HIS HONOUR: Yes?
THE WITNESS: At paragraph 64.
HIS HONOUR: Of which report?
THE WITNESS: The second report.
HIS HONOUR: Yes.
THE WITNESS: And I wish to correct that based on recent documents and my perusal of the – the information and documents I have had at hand recently, and I wish to change that to sole parental responsibility to the mother.
HIS HONOUR: I see. So paragraph 64 would now read?
THE WITNESS: That the mother have sole parental responsibility for the children.
HIS HONOUR: All right. Aside from that change, are there any other corrections or changes that you wish to make to either report?
THE WITNESS: No, your Honour.
HIS HONOUR: Okay.
THE WITNESS: No.
HIS HONOUR: All right. And those reports represent your view as to arrangements that would best promote the children’s best interests?
THE WITNESS: They are, your Honour. Yes.”[10]
[10] Transcript 16 April 2015 p 5, line 30 – p 6, line 15
The father’s solicitor cross examined the report writer about this change and her evidence as to why she made that changed recommendation included this exchange:
“MR MULLIGAN: Thank you, your Honour.
I guess the question needs to be asked – that’s a pretty major change to your most recent recommendation to change it to sole parental responsibility. Do you want to share with the court what the basis of that change in your recommendation is, please Ms D.
MS D: It is a significant change, I agree and – and as I have just stated, in – in light of reviewing all the information available to me and, significantly, the recent documents as well filed by the parties, of which I was not privy to at the time of the report, I – my opinion – my professional opinion is that the mother should have that sole parental responsibility.
MR MULLIGAN: Well, Ms D, with respect, can you expand on that. You’ve said you’ve read further affidavits and based on those affidavits, you’ve changed your mind about equal shared parental responsibility. So on what factual basis are you making that change in your opinion Ms D.
MS D:The case has persisted or continued, if you like, on some major issues for the children, not the least health issues, education, religious issues. It seems there has been no change to the respective parties’ position and, indeed, their current documents indicate that it’s still a source of major disagreement for them, hence that is going to, as it appears to have in the past, continue to impact on the welfare and the best interests of the children.
MR MULLIGAN: So does that mean if there’s a dispute about what school the children go to, your opinion would – would have to say sole parental responsibility – is that right?
MS D:Yes, the – the history of the matter to date and the fact that it remains unresolved would indicate that unless that decision is made, then there is going to be ongoing conflict over significant areas of the children’s life.
MR MULLIGAN: So you’ve read the affidavits and it’s your first time in court today, so based on the affidavit evidence, yes, the school has been an issue. Have you put your mind to the fact of what’s going to happen to the children changing school?
MS D: Sorry. If the children what?
MR MULLIGAN: Have you put your mind to the issue, moving forward in the future, about the impact this might have on the children of changing school?
HIS HONOUR: The child.
MR MULLIGAN: Sorry, sir?
HIS HONOUR: The child.
MR MULLIGAN: Sorry.
MR MULLIGAN: Child for now, yes. So
MS D:Of course, I have yes. I mean, that’s one consideration is the impact of the parental – aspects of parental responsibility including decisions made about their education. One of the issues is the impact of that on the – the children.
MR MULLIGAN: So does that mean that every time there’s a dispute about what school the children go to, according to what you’re saying, then you would make a suggestion for sole parental responsibility?‑‑‑
MS D:Well, one would anticipate in the light of there being a decision made for sole parental responsibility, that there would not be an ongoing dispute.
MR MULLIGAN: So, again, if she – if the parents can’t agree on what school the children go to, your default suggestion is sole parental responsibility – is that right?
MS D:That – that’s correct, that – that there needs to be, in my opinion, one parent being responsible for that matter decision – those major decision-making areas about the children, yes.”[11]
[11] Transcript 16 April 2015 p 6, line 25 – p 7, line 30
The report writer’s reasons for this change were pursued in cross examination and her evidence for this was:
“MR MULLIGAN: All right. But based on that school, your making this sole parental responsibility basically means you accept Ms Cunningham’s version of events in relation to what school the children should go to; isn't that right?
MS D:No. I disagree. I’m not making it on the basis of any particular school. I’m making it on the basis that one parent – in my view, one parent – and in this case the mother – needs to be responsible for those major decisions concerning all those areas that fall under the umbrella of sole parental responsibility.
MR MULLIGAN: So have you read my client’s affidavit on 17 February 2015?
MS D:Yes. I read it on the day – I think it was given to me or emailed to me at 3.30 on the – the day before the interviews. Yes.
MR MULLIGAN: All right. So – and you’ve also read the further affidavits sworn on 11 March; is that right?
MS D:Yes.
MR MULLIGAN: All right. So the schooling and everything was in issue still when you initially made your report, wasn’t it?
MS D:The schooling has been an issue throughout, even at the time of the first report, which was written for a mention hearing. Nothing has changed in terms of the dispute over the education – over the schooling. And, therefore, that leads me to recommend what I’ve just said.
MR MULLIGAN: But you’ve only just made it today. You’ve seen these clients – isn't this right – you’ve seen them over the period of a year. You’ve made two reports. Isn't that right?
MS D:That's correct. And when family consultants write reports, initially, we write them – they’re a tool or an assessment to try and settle matters, even through to prior to the final hearing. That’s one of the focus, if you like. But obviously this matter has not settled and, since I wrote the report, the matter commenced on 9 April.
MR MULLIGAN: That's right. But in your most recent report which was released in March this year, you’ve said equal shared parental responsibility. Here we are one month later, and there seems to be quite – what I would suggest to you is a very drastic change in that recommendation. What has changed in one month?
MS D:What has changed is that well, actually, what has changed is that the dispute has continued, the father has raised issues in his affidavit of 11 May – sorry – 11 March which show that nothing has changed; there’s still a dispute over those – I mean, I can’t see how there has been any – any difference. It – as you say, it still continues. And, therefore, as I sit here, it’s my opinion that a parent needs to – and in this case, the mother – needs to have responsibility for those decisions; otherwise, it will continue to be a dispute and continue to be relentless and will not change. And that is not in the best interests of the children.”[12]
[12] Transcript 16 April 2015 p 9, line 15 – p 10, line 5
The father’s solicitor returned again to the raison d’etre for this change later in cross examination:
“MR MULLIGAN: Now, you’ve read the – the sole parental responsibility is allegedly based on having read further affidavits. Is that right?
MS D:And the fact that there is still, as I’ve said before, an ongoing dispute over these particular parental responsibilities. It’s not settled. It has been a theme, if you like, throughout this case, in terms of disagreements, and to have some surety that they won’t continue my recommendation is that the mother take on that sole parental responsibility”[13]
[13] Transcript 16 April 2015 p 16, lines 10 – 15
When confronted in cross examination with the father’s position before the Court at trial, on who the children should live with and on time they should spend each week with their parents in cross examination the report writer’s evidence was:
“MR MULLIGAN: So just going back on these proposals about spend time, I put it to you that, you know, my client, who is effectively – well, Saturdays a lot of the day is work-based. What would be your views in the event that, say, an order were made whereby my client spent time from Saturday night through till Tuesday morning, for example, so he gets more time because he’s working?
MS D:My general view on those issues is that children’s living arrangements and their life really should not be matched to a parent’s work availability. I get a range of people, who might be oil rig workers, or firemen, or whatever. As best as possible, the – the issue is to have a living arrangement that best suits the children, not one that suits the parents’ availability.
MR MULLIGAN: So that’s not a relevant consideration – a parent’s working circumstances, how much time they get to spend with the children?
MS D:Well, of course it’s relevant, but I guess my answer to that would be parents probably need to prioritise their commitments and their responsibilities.”[14](emphasis added)
[14] Transcript 16 April 2015 p 17, lines 30 – 40
In light of all of the evidence and more particularly that of the report writer I am satisfied the mother’s proposal is to be preferred as more likely to promote the opportunity for the children to have a meaningful relationship with both parents into the future.
Protection from harm
Here the Court has to consider the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence. When determining what is in a child’s best interests, the Court is required by s.60CC(2A), to give more weight to the need to protect the children from physical and psychological harm and from exposure to abuse, neglect or family violence than it gives to whatever benefit it discerns will flow from the children having a meaningful relationship with both parents.
The mother’s submissions addressed this factor as follows:
55.The evidence of Ms D is that the children are likely to be at risk of emotional harm if the father persists with his opinions of the mother.
56.There is no evidence before the Court to suggest that the father’s opinions of the mother have changed, or will change at any time in the foreseeable future.
57.It is of significant concern that, notwithstanding that such matters were raised with the parties in the first family report, the father’s attitude towards the mother and her parenting of the children remains unwaveringly critical.
58.The impact of this on the children has been shown to be significant, particularly on X.
The father’s submissions in reply took issue with those submissions claiming the mother presented a greater risk than the “merely implied and exaggerated risks being speculated of the [F[ather”.
The report writer’s evidence in relation to this factor does not raise any concerns (despite the father’s claims about previous events) regarding the children in the mother’s care. However the report writer gave evidence that the eldest child in particular needed respite from the intensity and control of the father’s character and parenting style.[42] The report writer’s evidence was the father had and would over expose the children to parental matters,[43] had not been positive about the mother or her relationship with the children[44] and her view was he demonstrated a lack of insight into the children’s emotional needs.
[42] Transcript 16 April 2015 p 25 lines 10-11
[43] Transcript 16 April 2015 p23 lines 4-6
[44] Transcript 16 April 2015 p23 lines 25-26
On all of the evidence, I am satisfied the mother has a better parenting capacity and is more likely to permit and encourage the children to have a relationship with the father than is the case in reverse. Accordingly, the risk to the emotional and psychological welfare of the children is not as great if they live with the mother and spend substantial and significant time with the father than were they to live with (or spend the majority of their time with) the father and spend the rest of their time with the mother. There also needs to be an order restraining the parties from denigrating the other to protect the children.
Additional considerations
The additional considerations which are relevant to this case will be considered when evaluating the primary considerations, (i.e. benefit that may flow from having a meaningful relationship with both parents and ensuring that they are protected from harm and exposure to abuse, neglect or family violence).
Any views expressed by the children
The father’s submissions (both those filed by his solicitor and his own submissions in reply) addressed this factor. The mother’s submissions also addressed this factor making clear her position was the eldest child’s views (having regard to the evidence of the report writer about the reliability and genesis of those views) showed she had been over involved in the dispute by the father. I accept those submissions and place little weight on the stated views of the eldest child.
The report writer’s evidence about the eldest child’s views was particularly concerning and does, notwithstanding the father’s denials, lead to the conclusion that he sought to involve the eldest child in the dispute and expose her to adult issues.
The nature of the children's relationships
The father in his submissions in reply addressed this factor by claiming “[i]t was documented …that the [c]hildren have a stable and healthy routine with the father”. I accept the submissions made on behalf of the mother that given the report writer’s evidence (against the background of her observations of the parties and the children over an extended period of time) the children have a loving relationship with both parents.
Unfortunately the conflict between the parents casts a pall over the children’s ability to continue to enjoy relationships with both sides of their family. The interaction between the parents provides an opportunity for further hostility in front of or in a way that affects the children. The children’s relationships would be more secure if they weren’t burdened by their parents’ conflict or if they didn’t have to navigate around that conflict.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child
The mother’s submissions addressed this factor by pointing to examples where the father by his actions had excluded the mother or frustrated her involvement in making decisions about and for the children. The father’s submissions revealed an attitude that was unfortunately dismissive of the mother and sought to make a virtue out of his conduct in making unilateral decisions about the children. The father’s submissions in reply included the following:
“19.The Father has taken the responsibilities of enrolling X in her first year of school, arranging tutoring for her in (hobbies omitted), taught both children to swim and bicycle, taught X to (hobby omitted), and prepared the children’s bedrooms, study room, music room, vegetable patch, and sand box for them to enjoy life under his care. This sense of responsibility arises out of 10 years of habit as the breadwinner, homemaker and primary caregiver of the children.
20.The Mother has repeatedly shunned responsibilities. For the breakdown of 10 years of marriage (2003-2012), Ms Cunningham scapegoats Ms C for an affair that did not exist, and Ms Cunningham cannot see herself responsible for any part of the breakdown other than she did not clean the house or cook for 9 years. Under cross examination, the Mother could not articulate any area in which she would compromise with the Father and deflected with words to the effect, “I will have to ask my lawyer first.”
…
22.A characteristic of the father is he is willing to take much responsibility; a characteristic of the mother is she prefers others to be responsible. It is submitted that this decade long pattern of the two parents, far more than speculations resulting from a few hours of interview, gives the clearest picture of what the likely outcome of the Children’s living with either parent. It is submitted that the Children will thrive better living with a responsible Father.”
I accept the mother’s submissions that the evidence demonstrated an inability on the father’s part to accept responsibility for his own actions, and a propensity to deflect attention to what he perceived to be the mother’s shortcomings. Further I accept that the father’s evidence demonstrated an inability to separate the children’s needs from his own.
Unfortunately the polarised positions of the parties on the issue of parental responsibilities means there is little doubt they are incapable of communicating (other than in the most rudimentary form) without those exchanges being pregnant with the possibility of further conflict.
The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child
The father was critical of the mother on this factor in his submissions in reply. The mother’s submissions were also critical of the father in relation to this factor though for different reasons.
The mother claimed the father provided her with no financial support for the children whilst the father made much of the benefit he would be able to provide through reduced fees at the school of his choice. Overall the parties left the impression that notwithstanding their denials the dispute over the amount of time the children spent with them was at least in part driven by financial considerations.
The likely effect of any changes in the children's circumstances
The mother’s submissions addressed this factor[45] whilst the father’s submissions didn’t specifically refer to the consideration as such but did raise matters that were relevant.
[45] See para 45
The extant live with and spend time arrangements have been in place for some time. The report writer’s evidence set out the rationale for why the live with and spend time arrangements she recommended were more likely to promote the children’s best interests. I accept the following submission made by the mother:
(e)In her amended family report of 2 March 2015, Ms D opined that:
62.It is suggested that X needs respite from the intensity and control of her father’s character and parenting style.
(f)In her oral evidence Ms D was asked to expand upon the likely impact on X in the event that orders were made for her to spend more time with her father. Her prognosis was bleak. In particular, she identified that X was likely to become more confused, and that such an increase would likely lead to an increase in conflict between X and her mother.
(g)Ms D agreed with the proposition that Y was also likely to become vulnerable to the negative influence of his father as he became older.
The report writer’s evidence made clear she preferred the mother’s proposal and the children needed the stability and routine afforded by living with the mother and spending substantial and significant time with the father but in a configuration that was best suited to their needs rather than what one of their parents wanted.
Practical difficulties and expense
The mother’s submissions addressed this factor[46] whilst the father’s submissions did so only obliquely and then only to either dismiss or minimise this as an issue. That may have been the case as far as he was concerned but I am not satisfied this isn’t an issue of real practical significance for the children. As the mother’s submissions noted:
“The current care arrangements for the children, and those proposed by the father, if the children were to attend (omitted) College in (omitted) are highly impractical. They require two young children to spend almost two hours in a car during the midweek periods when they are in their mother’s care.”
[46] See para 46
In light of the evidence of the report writer I am satisfied this factor tells in favour of the orders sought by the mother.
Capacity of the parents to meet the children's needs
The father’s submissions in reply didn’t mention this factor specifically but to the extent his submissions (both those filed by his then solicitor and those submissions in reply) raised matters relevant they have been taken into account. The mother’s submissions contended inter alia that she had demonstrated a consistent and commendable capacity to meet the children’s needs.[47]
[47] See para 47
The report writer’s evidence was the mother was “more attuned to the developmental needs of the children”[48] and was better able to prioritise and disentangle her own needs and put the children’s needs above that.[49] The report writer’s evidence (on the basis of the father’s proposal before the Court at that time) was the father’s proposal would have “quite a negative impact” on the children and it would be very hard for them to adjust moving from one home to the other.[50]
[48] Transcript 16 April 2015 p 21 lines 44-45
[49] Transcript 16 April 2015 p 22 lines 2-3
[50] Transcript 16 April 2015 p 22 lines 27-32
The report writer was asked in cross examination by the father’s solicitor what routine she would recommend for these young children. Her evidence was “the aim is to normalise the children’s lives as much as possible so that while there might be a resident parent…they should spend substantial and significant time with the non-resident parent”.[51] The report writer’s evidence makes clear she held greater concerns about the father’s capacity to meet the children’s emotional and developmental needs than she did in relation to the mother. Consistent with that evidence the best way to address the best interests of the children is to provide them with a predominant home base and minimise the number of issues over which the parents have to interact.
[51] Transcript 16 April 2015 p 15 lines 37-39
In light of all of the evidence I accept there are reasons to be concerned about the father’s ability to separate his own needs from those of the children and am satisfied this factor tells in favour of the orders sought by the mother.
The maturity, sex and background of the children and the children’s parents
The father’s submissions in reply addressed this factor.[52] The mother’s submissions didn’t explicitly address this factor though to the extent they raised matters relevant they have been taken into account.
[52] See para 181 of submissions in reply
The problems between the father and the mother dominated the evidence and an issue identified by the report writer, which tells in favour of the orders sought by the mother, was that these problems (which are relevant for the purposes of this factor) meant the children’s needs weren’t being properly addressed.
Any family violence
The mother’s submissions addressed this factor[53] whilst the father’s submissions in reply denied this was a factor the Court should place significant weight on at least so far as he was concerned. There had been intervention order proceedings between the parties however these were resolved before the trial. As the mother’s submissions noted allegations pertaining to family violence were not vigorously pursued by either party during the course of the trial.
Whether it be preferable to make an order that would least likely to lead to the institution of further proceedings
[53] See para 49
The mother’s submissions (which I accept) were that in the absence of an order for sole parental responsibility, there will almost inevitably be further proceedings between the parties as the evidence establishes that parties are incapable of communicating effectively, and negotiating matters as between themselves. Disputes have arisen in relation to matters as minor as extra-curricular activities, and as significant as the children’s schooling.[54]
[54] See para 50
Given the dysfunctional relationship between the parents any orders made should be as clear cut as possible so as to avoid ambiguity or the possibility of further conflict. In light of the evidence this is necessary to avoid the adverse impact on the children of further litigation.
Any other fact or circumstance
The Court is required to take into account any other fact or circumstance that is considered relevant. This ensures that the infinite variety of individual circumstances for children can be taken into account. The parties in submissions didn’t raise any matters for consideration under this factor
Parental Responsibility
When considering the specific parenting orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61B of the Act states:
“61B [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C of the Act provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ arises as a result of s.61DA which provides:
“61DA [Presumption of equal shared parental responsibility when making parenting orders]
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.”
The effect of an order for shared parental responsibility is set out in s.65DAC of the Act as follows:
“65DAC [Effect of parenting order that provides for shared parental responsibility]
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons that the decision has been made jointly.”
Section 61DA requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of a child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child, who at the time, was a member of the parent’s family (or the other person’s family); or
b)family violence.
Neither party contended the presumption should not be applied on the basis of the above. However section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children.
In Chappell & Chappell [2008] FamCA FC 143 it was said:
“75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss.60CC(2) and (3), one of which requires the Court to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.”
In Marvel & Marvel (No.2) [2010] FamCA FC 101 it was said:
“103.It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.”
The decision of Murphy J in Lansa & Clovelly [2010] FamCA 80 at paragraphs [135] to [152] was referred to by the parties in submissions and those comments (which in interests of brevity won’t be repeated) have been taken into account.
In circumstances where there is a mandatory, statutory responsibility for parents who have equal shared parental responsibility to consult the other parent in relation to decisions to be made about “major long term issues” and to make a genuine effort to come to a joint decision, difficulties exist and concerns for the welfare of the children arise where a lengthy history of significant conflict which attends the co-parenting relationship as it does here.
The report writer’s evidence was one of the factors for her recommendation that there be an order for sole parental responsibility was the persistent and unrelenting nature of the disputes between the parties, the significant level of distrust and:
“…the history says there has been no agreement between [the parents] on the school, but there’s also health issues…it’s a matter of the father taking the children to medical or allied health professionals not necessarily with the mother’s permission and then …indicating that that’s an example of her not attending to their health …so it’s not just lack of communication but in this case it’s the father’s actions as well.”[55]
[55] Transcript 16/4/2015, page 18 lines 32-38
As the mother noted in her submissions the report writer’s evidence identified the adverse impacts on the children in the event an order for sole parental responsibility was not made.[56] The children need someone to be able to make decisions on long term issues so they have the necessary structure, reliability and consistency required to promote their best interests. The evidence is since separation decisions on long term issues have either been taken unilaterally (more often than not by the father) or due to intractable conflict long term issues are not addressed in a timely or appropriate manner.
[56] See para 60-75 of mother’s submissions
The submissions prepared on behalf of the father by his solicitor at the time referred to Lansa & Clovelly [2010] FamCA 80 at paragraphs [135] to [152]. In that case Murphy J did order equal shared parental responsibility in circumstances where there was apparent intractable conflict. However in that case (unlike the situation in this case) in the past there had been significant co-operation between the parents and apparently some good will. Moreover in that case His Honour was hopeful that the conflict would abate. This is not that case. Even assuming (which is not necessarily a given) an end to the litigation by the way of final orders my assessment of the parties (in light of the report writer’s evidence and) having seen them in the witness box was that theirs was a relationship redolent with the possibility of further conflict especially if the mother did not bend to the father’s will.
I have considered that the parents do not have a relationship in which they have and can communicate about the children. In this case there are an irreconcilable difficulties or differences between the parents over long term issues regarding the children. On the evidence I have no confidence in the ability of the parents to consult and agree in relation to long term issues, or any issues really. Lack of consultation and/or agreement around education or health issues has resulted in important decisions being delayed to the detriment of the children about whom the decision was required to be made in a timely manner.
In this case, it seems to me that the very long standing conflict and, sadly, its apparent intractability, points against the duties, powers and responsibilities attending to parental responsibility being exercised “equally”, with all that implies by reference to section 65DAC of the Act, and Part VII generally. Given the above discussion, in my view, in light of my consideration of the relevant statutory provisions set out earlier in these reasons I find that the presumption is rebutted by reference to the children’s best interests.
In Mallahan & Mallahan [2010] FamCA 631 at paragraphs [67] to [72] Murphy J also discussed the situation whereby the presumption of equal shared parental responsibility was rendered inapplicable did not mean that the Court ought not ultimately make a finding that the parents should share parental responsibility equally.
The report writer was asked in cross examination what would be the impact on the children of not having decisions about long term issues made. Her evidence was:
“Well, the children need consistency and reliability of routine. They need boundaries. They need structure. And it seems the parents…haven’t been able to put those boundaries and structure in place. [This]…lends itself to a lot of emotional, social, emotional problems for the children…They’re not going to know what’s right and what’s wrong.”[57]
[57] Transcript 16 April 2015 p 21 lines 22 to 31
In this case the evidence is that there is no civil relationship between the parties, no effective communication, no good will, no evidence their parenting styles are similar and no evidence they have a commitment to such an arrangement. The evidence is their relationship is characterised by mistrust, suspicion and an inability to communicate yet alone negotiate. In light of all of the evidence I am not satisfied the parents could share parental responsibility equally in such a way that there wouldn’t be adverse consequences for the children. In those circumstances the welfare and the best interests of the children mean that given the above and to avoid what appears to be the inevitable adverse consequences for the children were the parents to share parental responsibility equally, that for the children’s sake one parent should have sole parental responsibility.
Given the evidence of the report writer which I accept it is more likely to promote the children’s best interests for the mother to have sole parental responsibility for long term issues effecting the long term care, welfare and development of the children. The mother must, however, afford the father the opportunity to express his views before making a decision and if, after that, they cannot agree, she will make the final decision regarding the children and the father will be able to get access to necessary information at his expense.
I now turn to the issue of where the children should live and what time they should spend with the other parent.
Parenting Time
When deciding upon orders for time between the children and each of the parents, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65DAA of the Act states:
“65DAA [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1)[Court must consider whether equal time is in the best interests of the child] 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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)[Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In 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, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.”
In MRR v GR [2010] HCA 4 the High Court addressed the relationship between s.65DAA and s.61DA.
The father’s “amended proposed orders” sought what was described in his submissions in reply as a “compromise” to add “only one night to the present schedule” but “graduate to equal shared care when the eldest child turns seven”. In this case in light of all the evidence, the findings set out above and my consideration of the factors in s.60CC and ss.65DAA I accept the evidence of the report writer and find that an equal time arrangement or the “amended proposed orders” would not be in the children’s best interests or reasonably practical.
Noting that the children’s best interests are the paramount consideration and in light of all the evidence, the findings set out above and my consideration of the factors in s.60CC and ss.65DAA I accept the evidence of the report writer that it is more likely to promote the children’s best interests and be reasonably practical for the children to live with the mother and spend time and communicate with the father in the terms set out in the mother’s proposed minute of final orders which constitutes substantial and significant time.[58]
[58] S65DAA(3)
Other issues
The father had sought orders for time on particular religious or other nominated feast days. The evidence was there was no agreement that those nominated days were observed by the parties and celebrated by the children during the course of the relationship. The mother’s evidence was particularly forthright on this issue which she described as an attempt by the father to get more time with the children. The evidence of the report writer made clear the children’s best interests demanded a stable, predictable routine live with and spend time arrangement. There was no evidence why within the structure of any such arrangement there couldn’t be suitable celebrations approximate to the actual day or days. The proposals of both parties accommodated many of the existing special occasions such as Easter, Christmas, Mother’s and Father’s Days etc. In the circumstances and as there was no detail or explanation given as to when those additional days sought by the father would fall or how they would impact on any arrangement I can’t be satisfied it is in the children’s best interests that additional time be set aside for those days. The orders of the Court will include the usual provision for additional time as agreed between the parents which could otherwise accommodate these days.
The father had also sought an order in his submissions in reply that the children have their own phone from ages 6 years onwards. Given no time was spent on this in the evidence or with the family report writer and mobile phones whilst convenient can be distracting, disruptive and a tempting means of engaging in inappropriate communication, the mother will decide when and if the children should have mobile phones.
The issue of schooling has been the source of protracted conflict between the parents. As Cronin J said in Beard & McCarthy [2009] FamCA 73 on the issue of schooling the Court should be reluctant to intervene unless the parents or either of them lose sight of the focus of those developmental needs. A parent in that case, might be more concerned with their own needs, including a desire to continue the battle.[59]
[59] Beard & McCarthy [2009] FamCA 73 at [87]
The authorities on issues of schooling for children are the Full Court decision in Re G: Children’s Schooling (2000) FLC 93-025
and Eden & Eden-Proust [2011] FamCAFC 138. The relevant considerations set out in Part VII of the Act, insofar as they would be relevant to this issue have been set out earlier.
There was little independent and objective evidence provided by the parties or attention given to the issue by the parties themselves (except as a means of accusing the other of historical and inappropriate conduct). The report writer’s evidence was her recommendation that the children attend a school in the geographic proximity of the mother’s home was because the children needed to be part of a community close to where they lived and the less travelling or commuting they did from their primary residence the better.[60]
[60] Transcript 16 April 2015 p24 lines 13-21
The parties have previously been involved in church communities and the mother’s proposal will see the children attending a similar school in geographic proximity to her home. Given the conclusion on parental responsibility reached earlier for the reasons set out above and in light of the relevant considerations for the purpose of this issue I am satisfied that it is in the children’s best interests she make that decision.
The father sought an order that he be permitted to take the children overseas to (country omitted) for a period of time. The considerations to do with children travelling outside Australia, in the company of their father where in this case that order is opposed by the mother are in Kuebler & Kuebler (1978) FLC 90-434 ; Line & Line (1997) FLC 90-729 and King & Finneran [2001] FamCA 344.
The Court must determine whether the travel proposed is likely, on balance, to be in the children’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable s.60CC factors, both primary and additional which have been referred to above. There was almost no time spent on this issue during the evidence. Whilst it appears the parties did travel during the course of their relationship this appeared to be more to do with the father’s working arrangements. Ultimately, bearing in mind the orders set out above and the brevity of the detail around and absence of evidence about the father’s proposed travel to (country omitted), I can’t be satisfied it is in the children’s best interests.
Conclusion
I will, for those reasons, make orders as set out at the beginning of these reasons for decision as I am satisfied in light of all of the evidence and having considered the submissions made by the parties that they are in the children’s best interests.
I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 12 June 2015
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