DEAKES & DEAKES

[2019] FamCA 589

FAMILY COURT OF AUSTRALIA

DEAKES & DEAKES [2019] FamCA 589

FAMILY LAW – CHILDREN – Consent Orders – Orders that children live with the father – Orders that children spend time with the mother – Orders that parents have equal shared parental responsibility of the children – Specific Issues Orders– Injunctive Orders

Family Law Act 1975 (Cth)

J v C in [1969] 1 ALL E.R.
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Mr Deakes

RESPONDENT: Ms Deakes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

FILE NUMBER: HBC 810 of 2014

DATE DELIVERED: 1 April 2019

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 1 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Higgs

SOLICITOR FOR THE APPLICANT: Dobson Mitchell & Allport

COUNSEL FOR THE RESPONDENT: Ms Saunders

SOLICITOR FOR THE RESPONDENT: FitzGerald & Browne

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mrs Ryan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission of Tasmania

Orders

1. BY CONSENT orders be made in accordance with the minute of consent order signed by the parties and by counsel for the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same other than the minutes of consent order signed today.

THE COURT NOTES

1. The extension of time in relation to the appointment of the Independent Children’s Lawyer as per order 40 of the minute of consent order.

IT IS DIRECTED

1. The legal practitioner for the respondent mother forward to my administrative associate, within one (1) business day, an electronic version of the minute of consent order in word format.

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

   
   

Exhibit “1”

1. All extant Parenting Orders and Applications are hereby dismissed.

Parental Responsibility

1. The Parents will have equal shared parental responsibility for the children B born in 2009 and C born in 2011 (collectively known as “the children”).

2. Commencing in Term 2 of 2019, the Children will attend BB School for the remainder of their primary school education, unless agreed otherwise in writing by both parents.

3. The Father will be noted on the Children’s school enrolments as the first contact person, and the Mother will be noted as the second/alternative contact person.

4. Each parent will be at liberty to communicate directly with the children’s school/s in relation to the children’s education and development, and to obtain school reports, newsletters, updates, and school photographs at his or her own expense.

5. Each parent will be at liberty to attend the children’s school events such as assemblies, performances, sports carnivals, excursions, parent/teacher interviews, and parent’s help.

6. Each parent will notify the other in writing of:-

   a.Any upcoming appointment to be attended by the children with a medical practitioner or allied health practitioner; and

   b.The results or recommendations of any appointment referred to in paragraph 6(a) above.

7. Each parent will provide his or her authority for the children’s medical practitioners and allied health practitioners to provide information about the children to the other parent at the other parent’s request.

8. The Mother will be restrained from:-

   a.Taking the children to a General Practitioner (GP) other than their usual GP’s, Dr T or Dr U, at the Medical Clinic in Town CC (or alternative GP as agreed in writing), unless in the case of a genuine medical emergency;

   b.Requesting or obtaining a referral for the children to a medical specialist without the knowledge and consent of the Father.

Time and Communication

10.The children will live with the Father.

The mother’s spend time

11.During school terms: The mother will spend time with the children on a fortnightly basis, commencing on the Friday 12 April 2019 from the conclusion of school Thursday, or 3.30pm if not a school day, until commencement of school Monday or 3.30 pm if not a school day (“usual weekend time”)

12.The mother’s usual weekend time will commence on the first weekend of Term 1 each year.

13.AND THE COURT NOTES that the Mother spent her first weekend with the Children by agreement from the conclusion of school Friday 29 March 2019 to the commencement of school Monday 1 April 2019.

14.In the event the children are absent from school on three (3) occasions or more while in the mother’s care, during any given school term and without satisfactory explanation (by either the provision of a medical certificate or other document verifying a genuine cause for absence), the Father is at liberty to give notice he elects to limit the mother’s usual weekend time to the conclusion of school on Friday (or 3.30pm if not a school day) until 3.30pm the following Sunday;

15.During the school holiday periods, the Children will spend time with the Mother as follows:-

a.In the Term1, Term 2 and Term 3 school holiday periods, each year the the mother’s usual weekend time with the Children may be extended to up to five (5) consecutive nights at her election as follows:-

i.If the children’s usual weekend time with the Mother is due to occur on the weekend immediately after term concludes or immediately before term starts, the Mother will nominate which one of those weekends be extended up to five (5) consecutive nights (extended time).

ii.If the mother nominates her extended time will occur on the weekend immediately after term concludes, her time will then commence from the conclusion of school on the final Friday of term (or 3.30pm if that Friday is a student-free day) until the following Wednesday at 3:30 pm;

iii.If the mother nominates her extended time will occur on the weekend immediately before school term commences, her time will then commence on the preceding Wednesday at 3:30 pm to the commencement of school Monday (or 3:30 pm if that Monday is a pupil free day);

iv.If the children’s usual weekend time with the mother is due to occur on the middle weekend of the school holiday period, the Mother will elect to spend extended time with the children for up to five (5) consecutive nights with the children, provided the time commences on either the Tuesday at 3:30 pm or the Friday at 3:30 pm inclusive of the middle weekend of the school holiday period;

v.In the term 1 school holidays 2019 only, any election made by the mother must ensure the Children are returned to the father’s care by 3:30 pm on 28 April 2019. 

b.In the Term 4 (summer) school holiday period, the children will spend time with the mother:-

i.During the period between the last day of Term 4 and the first Friday in January, the children will live with the Father and spend time with the Mother for per the usual weekend time provision of these Orders,

ii.From the first Friday in January until the final Friday of the school holiday period, the children will spend time with the mother each alternate week for a period of seven (7) consecutive nights and the mother’s first week will commence 3:30 pm on the first Friday on January till 3:30 pm the following Friday.

iii.For the purposes of paragraphs 15(a) not less than four (4) weeks before the commencement of each school holiday period the mother will provide the father with written notice of her election.

c.Such other or alternative times as may be agreed between the parties in writing (including by text message or email)

16.On special occasions, the arrangements in paragraphs 10,11 and 15 above will be suspended and the children will spend time with each parent as follows:

a.At Christmas in 2019 and each alternate year thereafter with the Father from 3.30pm on Christmas Eve until 3.30pm on Christmas Day and with the Mother from 3.30pm on Christmas Day until 3.30pm on Boxing Day;

b.At Christmas in 2020 and each alternate year thereafter with the Mother from 3.30pm on Christmas Eve until 3.30pm on Christmas Day and with the Father from 3.30pm on Christmas Day until 3.30pm on Boxing Day;

c.At Easter 2019 and each alternate year thereafter with the Father from the conclusion of school on Easter Thursday until 3.30 on Easter Sunday and with the Mother from 3.30 on Easter Sunday until 3.30 on Easter Tuesday;

d.At Easter in 2020 and each alternate year thereafter with the Mother from the conclusion of school on Easter Thursday until 3.30 on Easter Sunday, and with the Father from 3.30 on Easter Sunday until 3.30 on Easter Tuesday;

e.If they are not otherwise in her care, the children will spend time with the Mother for Mother’s Day 3.30pm on the Saturday before Mother’s Day until 3.30pm on Mother’s Day;

f.If they are not otherwise in his care, the children will spend time with the Father for Father’s Day 3.30pm on the Saturday before Father’s Day until 3.30pm on Father’s Day;

g.On each of the children’s birthdays, both children will spend time with the parent with whom they are not living or otherwise spending time with on that day from the conclusion of school, or 3.30pm if it is not a school day, until 6.30pm.

17.Changeover will occur:

a.On school days at the children’s school; and

b.At all other times at the carpark of the Z Centre.

18.When the children are in the Father’s care, they will communicate with the mother by telephone, skype, facetime or other electronic verbal communication platform, with the Father to assist the children to make a call to the Mother, each week on Wednesday at 5.30pm and with those calls, at the discretion of the Mother, to be private between herself and the children (i.e. not on speaker phone).

19.Paragraph 18 above does not preclude the children themselves contacting a parent and to that extent, the other parent will facilitate such reasonable requests by the children to communicate with their parents.

20.During school holidays only, while in the Mother’s care, the Children will communicate with the father by telephone, skype, facetime, or other electronical verbal communication platform on Wednesday at 5.30pm and with those calls, at the discretion of the Father, to be private between himself and the children (i.e. not on speaker phone).

21.Neither parent will discuss these proceedings or any dispute or disagreement arising out of or in relation to these Orders with the children AND neither parent will discuss with the children any proposed changes to these Orders, variations to parenting arrangements, or any matter arising in relation to the children’s health, welfare, education, or development unless prior to any occasion the parents have agreed in writing that it is a matter which can be discussed with the children at that time.

22.Neither parent will use the children to pass messages, either written or verbal, to the other parent save and except via a communication book if one is used.

Parents’ communication with each other

23.Unless in the case of a medical emergency, the parents will communicate by email pursuant to the following:

a.The parents will use the template which is Annexure A to this email to ensure that discussion is limited strictly to matters related to the children;

b.The parents will communicate using neutral, polite, and business-like language.

24.In the case of a genuine emergency, each parent will notify the other as soon as reasonably practical by telephone call.

25.Each parent will keep the other parent informed of his or her residential address, mobile phone number, and email address, and will advise the other parent within 48 hours of any changes made to those details.

Mother’s psychological treatment

26.The Mother will continue to attend upon her psychologist, psychiatrist and GP, and will adopt all reasonable recommendations from those professionals including as to treatment, frequency of appointments, and medication.

27.The Father will be permitted to contact the Mother’s psychologist, at his expense, a maximum of three (3) times each calendar year, in writing using the template which is Annexure B to these Orders and the Mother will authorise her psychologist to respond.

28.The mother will within seven (7) days of the date of these Orders provide her written authority to her psychologist authorising that professional to communicate with the father in accordance with these Orders and she will provide a new authority each twelve (12) months during the periods her psychologist recommends the mother continue to consult her.  Should the mother change psychologist, she will provide authorities to her new psychologist in accordance with this Order.

29.The mother will within seven (7) days of the date of this Order provide the Independent Children’s Lawyer with an authority to communicate with her treating health professionals.

30.The Mother will notify the Father as soon as reasonably practicable if she changes psychologists or ceases seeing a psychologist.

31.The father may suspend the children’s time with the Mother and will be at liberty to apply to the Court for further Orders if he is notified that the Mother is either not attending her psychology appointments as recommended and/or is not complying with treatment as outlined in Orders 26.

32.That leave is granted to the Independent Children’s Lawyer to provide to the Mother’s treating medical professionals such as Psychologists, Psychiatrists and GP’s a copy of these Orders, together with a copy of the Single Expert Report of Ms E dated the 23^rd July 2018 and the Affidavit or Dr V dated the 25^th March 2019 and the affidavit of Dr W dated the 18^th March 2019 and Ms M dated the 30^th July 2018 AND the Mother will ensure her treating practitioners on-forward these reports in referrals to new or other treating medical professionals.

Other Orders

33.The Father continue to facilitate the children’s attendance on their respective psychologists for such duration and frequency as recommended by the children’s psychologists;

34.Each parent is hereby restrained from speaking negatively or rudely to or about the other parent or members of the other parents’ family, verbally or in writing, including in the presence or hearing of the children, at any time and the parents will use their best endeavours to ensure that third parties also comply with this;

35.The parents are restrained from sharing a bed or bedroom with C;

36.Should either parent intend to travel interstate with the children in their own time, they will notify each other at least 21 days in advance of the intended departure and provide each other with a copy of the children’s flight itineraries and advise them of the return flights, where the children will be staying, who they will be with in addition to the travelling parent, and telephone numbers where the children can be contacted whilst away.

37.The Mother will ensure that children attend:

a.Any school events during school time, such as sports carnivals and school camps;

b.any extracurricular sports or other activities which are scheduled to occur during her time with the children; and

c.School on the children’s birthdays.

38.Each parent is restrained from discussing these proceedings or any allegation made during these proceedings with the children’s teachers, other members of staff at the children’s school, or parents of other children at the children’s school.

39.Each parent will be restrained from discussing, disseminating or publishing information about these proceedings, or matters arising out of or in relation to these Orders, on social media.

40.The Appointment of the Independent Children’s Lawyer is hereby extended, subject to a grant of Legal Aid funding, for a period of 12 months from the date of this Order.

NOTATIONS

A. Pursuant to sections 62(B) and 65DA(2) of the Family Law Act, 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.

B. The Father agrees to advise the mother before making any significant changes to C’s hair save and except for a standard trim. 

C. The parents agree that it is intended that the Children will attend Taroona High School or another secondary school proximate to the Father’s home for their high school education.

D. The parents agree that for the Term 1 school holidays, the mother will spend time with the children as follows:

(i)From the conclusion of school on Friday 12 April until 3.30pm on Tuesday 17 April;

(ii)From 3.30pm on Easter Sunday (21 April) until 3.30pm Easter Tuesday (23 April);

(iii)     From 10.30am on Anzac Day (25 April) until 3.30pm Sunday 28 April.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deakes & Deakes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 810 of 2014

Mr Deakes

And

Ms Deakes

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are parenting proceedings between Mr Deakes (‘the father’) and Ms Deakes (‘the mother’) relating to their children B, who is approaching his 10^th birthday in a month or two’s time, and C, who has just celebrated her eighth birthday (‘B’ and ‘C’ and collectively known as the children’).  Today was to be the start of the second possible hearing in relation to these parties. 

THE ISSUES

1. The issues related to parental responsibility, residence, time and communication. 

2. The parties tendered before me today minutes of consent orders signed by each of the parties and on behalf of the Independent Children’s Lawyer.  I have initialled those orders and dated them today’s date.  I had concerns about this matter settling, given what happened in 2015, where a settlement was put in place, but it clearly failed. 

3. I have, in this case, read all of the material to which the parties have asked me to have regard.  For the Independent Children’s Lawyer, I have read material including: a case outline; the report of Ms E, a single expert, whose report has been adopted by both parents; the report of Dr X and the report of Ms Y.  The latter two being the psychologists working with the children. 

BACKGROUND

1. The mother is aged 46.  The father is aged 47.

2. It seems from the material that the parties commenced cohabitation in about 2007.  They married in 2008 and apparently separated in about 2013.  Proceedings commenced shortly after that time, when C was aged perhaps three and when B was aged about five or six or seven, somewhere in that vicinity. 

1. The matter came before the Court, and the parties, at least on the surface, resolved the matter.  It came unstuck following that time, and these new proceedings were commenced in October 2017.  Orders were made for supervised time for the father, given the allegations that were raised against him, and the matter was put in the Magellan list at that time.

2. A single expert report was ordered from Ms E, which issued in about July 2018.  That report raised significant issues in relation to the mother’s mental health and issues as to safety of the children.  As a consequence, on 1 August 2018, the parenting arrangements were changed, the children having been in the primary care of the mother up to that date and now in the primary care of the father.  The expert evidence of Dr X and Ms Y shows that the children are at least managing.

3. The mother provided evidence as to her own mental health with Dr W and Dr V.  Since August of last year, this must have been an awful path for the mother to follow, and, I imagine, since 2015, it was an awful path for the father to follow.  I cannot imagine how it would have impacted on the children over that time. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

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

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[1]

   [1] Page 824.

   3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases.  The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240

   4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance.  For all I know that may have been true in some cases containing dicta to that effect.  But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change.  I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion.  But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.

2. These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.

3. The Full Court, comprising of Murphy & Macmillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.

4. The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-

   25.    In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. 

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75]. 

   (Bold emphasis added).

   26.    Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:

   It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …

   and more broadly, at [75]:

   While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …

5. The Full Court in Yamada & Cain (supra) went on to conclude:-

   27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

6. I will endeavour to apply the principles of law to the facts.

DISCUSSION AND CONCLUSION

1. Suffice to say that my task is not about making life easier for parents.  My task is to put in place arrangements that meet the best interests of the children.  In doing so, I am obliged to consider two fundamental pillars of the law.  The first is the benefit of children having a meaningful relationship with both of their parents and second the need to protect children from neglect, abuse or family violence.  Hence the order was made in 2017 on limited information, which must have been difficult for the father, and I acknowledge that.  Similarly, an order was made in August of last year which clearly has had a profound impact on the mother.

2. Over the weekend, I had heard that this matter had settled, and I wondered whether I ought to make orders in this case or whether it needed the full ventilation of a hearing, rather than a consent order, given what happened years ago.  I have decided to accept the terms of settlement in this case, and there are a number of reasons why I have done so.  First, on reading all of the evidence, it seems to me that the orders are appropriate for these children in these circumstances.  Second, it leaves the door wide open for the mother to continue a relationship with the children, but in a way that is safe for the children and, frankly, probably safe for the mother.  However, it provides that the mother has to undergo ongoing treatment, and the orders make it clear that if that treatment stops or is abandoned, then “all bets are off”, to use a colloquial expression.

3. The mother’s role in terms of these children is recognised by the orders for equal shared parental responsibility, and appropriately recognised, but they are somewhat constrained.  The needs of the children in terms of their mother are also properly addressed in terms of the time that they will spend with her.  In accordance with the law, when considering these orders, I considered whether equal time may have been a better outcome, and, given the circumstances in this case, I am satisfied that it would not be in the best interests of these children.

4. I also considered whether significant and substantial time ought to be considered at this time, and I have determined, the way things are at the present time, that this is not in the best interests of these children.  I have no doubt that, as at 31 July last year, if the children were asked where they would like to stay, it would not have been the father’s household.  I do not know clearly what the children’s views are at the present time, however, given the evidence, I would have given those views some weight but not persuasive weight, given the need for the Court to protect the children in the circumstances in which they find themselves. 

5. I intend to and I do address each of the parents directly.  I do not know what you have gone through over the almost six years since you separated and probably the years before.  It would have been a pretty tough time, and I know you have said and thought things about the other party which is not kind.  My certain knowledge is that these children need both their parents in their lives over the coming years.  These are going to be particularly difficult years for the children, when they grow from being children into adults.  Maturity over those teen years is fraught with difficulties.

6. For what it is worth, can I suggest to each of you to be gentle with the other, not to make demands on the other, to try and listen to the other, to endeavour to make joint decisions in relation to these children because teenagers, by their very nature, are far more adept at driving wedges between parents to gain what they think is best for them but which is often not best for them.  So I pass that on to you for what it is worth.  I am satisfied in all the circumstances that the consent orders that are put in place meet the best interests of the children, and I make those orders.

7. I also acknowledge and thank the Independent Children’s Lawyer for staying on for another twelve months.  That in itself may assist these children and these parents in navigating at least some part of the course they have to follow over that period of time.  I also note that each of the parties was well represented.  Without competent practitioners, the decision may have been left to me.  Each of you may have been cross-examined in the witness box, which would have added another level of scar tissue to the emotional wellbeing that these children need from each of you into the future.  So I thank them and acknowledge their role in this settlement. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 April 2019.

Associate:     

Date:              22 August 2019