Demarco and Demarco

FAMILY COURT OF AUSTRALIA

DEMARCO & DEMARCO

[2009] FamCA 1057

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – rebuttal
FAMILY LAW – CHILDREN – Equal time
FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time

Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Demarco

RESPONDENT:

Ms Demarco

FILE NUMBER:

PAC

6984

2007

DATE DELIVERED:

3 April 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

31 March 2009 - 3 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR JACKSON

SOLICITOR FOR THE APPLICANT:

STOIKOVICH MACRI

COUNSEL FOR THE RESPONDENT:

MR DURA

SOLICITOR FOR THE RESPONDENT:

McLACHLAN THORPE PARTNERS

Orders

That all existing parenting orders in respect of the subject children C born … October 2000 and M born … November 2003 be and are hereby discharged.
That the mother have sole parental responsibility for the major long term decisions relating to the care, welfare and development of the children subject to following orders herein.
That the subject children live with the mother.
That the subject children spend time with the father as follows:
a.During school term each alternate weekend from the conclusion of school on Friday, or 3pm in the event that Friday is for whatever reason a non-school day, until before school Monday.
i.The father shall be responsible for collection of the children at the commencement of each such period and return of the children to school at the conclusion of each such period.
ii.Such time shall commence on the weekend the father is to next spend time with the children in accordance with the current regime.
b.Each Wednesday afternoon, commencing next Wednesday, from after school until before school Thursday.
i.The father shall be responsible for collection of the children at the commencement of each such period and return of the children to school at the conclusion of each such period.
c.In accordance with paragraphs 3.2, 3.3, 3.4 [amended to reflect that the holiday period is to be from 9am on 1 January to 5pm on 7 January and 9am on 14 January to 5pm on 21 January], 3.5, 3.6 [amended to specify the commencement at 9am], 3.7 [concluding at the word “herein”], 3.8, 3.9, 3.10 and 3.11 [substituting “9am” for “10.00am”] of the document Minute of Parenting Orders Sought by the Respondent Mother and herein set out as follows:
3.2Subject to Order 3.3 below, for the first half of all school holidays periods except for the Christmas school holiday period;
3.3That the father’s time with the children pursuant to Order 3.2 above be suspended from the conclusion of school on Thursday prior to the Easter weekend to 5pm on Easter Saturday in 2009 and each alternate year thereafter and from 5pm Easter Saturday to 5pm Easter Monday in 2010 and each alternate year thereafter at which times the children shall live with the wife.
3.4For two (2) one week periods during the Christmas school holiday period being from 9am on 1 January to 5pm on 7 January and from 9am on 14 January to 5pm on 21 January in each year.
3.5From 3pm Christmas Eve to 3pm Christmas Day in 2010 and each alternate year thereafter and from 3pm Christmas Day to 3pm Boxing Day in 2009 and each alternate year thereafter.
3.6That the school holidays be defined as commencing at 9am on the day after the last day of the school term and as concluding at 5pm on the Saturday prior to the commencement of the new school term.
3.7That changeover during school holidays be at 5pm on the middle day of the holidays where applicable in these Orders and as defined in order 3.4 herein.
3.8That for the purpose of these Orders, whenever the children are not at school, the parties shall meet for all other changeovers at the McDonald’s Family Restaurant, located at P.
3.9In the event that the children are not otherwise in the care of the mother on Mother’s Day, that the children spend time with the mother on Mother’s Day from 9am until 6pm.
3.10In the event that the children are not otherwise in the care of the father on Father’s Day, that the children spend time with the father on Father’s Day from 9am until 6pm.
3.11That the parent who does not otherwise have the care of the children on their birthdays spend time with the children on each child’s birthday from after school until 6pm if it is a school day and from 9am to 2pm if it is a non-school day.
That orders be made in accordance with paragraphs 4, 5 and 6 of the document Minute of Parenting Orders Sought by the Respondent Mother and herein set out as follows:
4.   That each parent is at liberty to communicate with the children not more than every second day during any period that the children are not in their care and the other parent shall not prevent the children, or either of them, from speaking with the parent initiating the telephone call provided such telephone call is at a time as agreed between the parents and failing agreement between 6pm and 6.30pm.
5.   That each parent notify the other, not more than 24 hours after any change to their landline and/or mobile telephone numbers and/or their email addresses.
6.   That each parent notify the other of an operative contact telephone number during any holidays spent away from their residence, not later than 48 hours prior to the commencement of any holiday period.
That the mother shall not change the school of the children or either of them without written consent of father or order of this Court first had and obtained.
That the mother shall be solely responsible for determining the winter sporting activities to be undertaken by the children and shall have the responsibility for enrolling and registering the children in any such sports. The father shall, if any sport attendances are required during his time with the children, use his best endeavours to ensure the children attend such sporting activities.
That the father shall be solely responsible for determining the summer sporting activities to be undertaken by the children and shall have the responsibility for enrolling and registering the children in any such sports. The mother shall, if any sport attendances are required during her time with the children, use her best endeavours to ensure the children attend such sport activities.
That all applications so far as parenting orders are concerned be and are hereby dismissed.
That all parenting issues be removed from the Active Pending Cases List.
That the orders made on 31 March 2009 be and are hereby discharged and in lieu thereof, the following orders are made.
That the parties have leave to approach the listing manager to obtain a hearing date for two days with such priority as can be allocated to the hearing.
That the parties file and serve any primary affidavits, financial statements and affidavits by any other lay person by no later than forty-two days prior to the date allocated for hearing of the property issues.
That orders made in accordance with paragraphs 6, 7, 8, 9, 10 and 11 of the document Minute of Order & Directions provided to the Court on 31 March 2009, copy annexed hereto.
That liberty be granted to either party to restore the matter to the list upon giving forty-eight hours notice.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6984/07

MR DEMARCO

Applicant

And

MS DEMARCO

Respondent

REASONS FOR JUDGMENT

Introduction

This unfortunate matter concerns the future parenting arrangements for the parties' two children - C, who is eight and a half, and M, who is five years and four months. I say "unfortunate" because it is a very long time since I have encountered a matter that has been fought with such bitterness, not only so far as the Court proceedings are concerned but so far as the parties' personal relationships are concerned. Each of them seems determined to oppose anything, on principle, that the other party postulates or puts forward as something that might be considered for the sake of the children. I am left with the unpalatable concern that both parties are enjoying this round of litigation. Doing the best I can, the parties have expended, or will expend, a combined sum of about - and not much less than - $80,000 to have arrived at this point.
At present, both boys live with the mother. They spend time with their father, pursuant to consent orders of this Court, which were made on 28 May 2008, which provide for the father to have the children from after school on Friday to before school on Monday in each alternate weekend.
The parties - I suspect, only with the assistance of their lawyers - have narrowed the issues. The method of address and submissions to me, very sensibly, was that I was informed, in respect of a minute of order prepared by the wife's solicitors, matters which were in agreement and which were not in agreement. I am invited, in respect of that minute, to make orders in accordance with paragraphs: 3.2; 3.3; 3.4; 3.5, with minor variations; 3.6, with minor variations; 3.7, the same; 3.8, 3.9, 3.10 and 3.11, with minor variations. I am asked to make orders in accordance with paragraphs 4, 5 and 6 of that document. The father provided, for his part, a short minute that dealt with the children attending Martial Arts.
The issues that remain are clearly identified. I believe I can summarise them as follows: whether the parties should have equal shared parental responsibility, as contended for by the father, or whether the mother should have sole parental responsibility, as she proposes. Secondly, whether the time that the children spend with each parent should be equal, which is the father’s proposal, or whether, as the mother seeks, the children live with her and spend time with the father from after school Friday to 6pm on Sunday each alternate weekend and one school afternoon each week, from after school and expiring at a fixed time.
Additionally, there are matters that are indicated to me that need a decision at this stage. To my mind, and this indicates the difficulties these parents have, they are matters in respect of which it might have been expected the parties would have discussed and reached a decision. These are: the school that the boys are to attend from the beginning of next year. The wife proposes a change to one of two schools that she nominates. The father wishes to maintain the children at their present school. Finally, each of the parents seeks orders concerning the sporting activities of the boys as to the ability of the boys to play soccer and train for soccer or whether the boys attend martial arts training each week.

Brief Background

A very brief history of this matter is as follows.
The mother was born in 1966 and the father in 1967. The parties married and commenced living together in May 1990. In October 2000 C was born (prematurely). In November the child M was born.
The father asserts that he cared for the children, and particularly M, at the business premises of the parties; he says that he stopped work full‑time.
The parties separated under the one roof in late 2006.
They remained living under the one roof until March 2007, when the father vacated the former matrimonial home. That vacation by the father followed an altercation between the parties, which involved police, and, thereafter, there were a number of court attendances in respect of an apprehended violence order sought by the mother against the father.
It seems unchallenged that between March and May 2007 the father did not see the children. There were then, as I understand it, final orders made in June 2007 for the protection of the mother for one year. It seems that, very shortly after that order expired, the father obtained an order against the mother for his protection, that order still being current. These proceedings were then commenced by an application of the father filed in December 2007 and on 28 May 2008 there were orders made by consent, in the terms that I have described above.
The father commenced the proceedings with his application, as I say, filed on 21 December 2007. The wife filed a response to that document on 8 February 2008. Significantly, that response and the application which it replied to were, so far as parenting orders were concerned, in identical terms. One might have thought that that would have indicated the parties were in agreement so far as the children's issues were concerned and that would be an end to it. That was not so. The father filed further amended applications, in March of 2008 and, finally, on 24 December 2008. In those documents he sought that there be equal shared parental responsibility and equal shared time. It must be remembered that, until these proceedings were under way, the mother seemed to concede that there should be equal shared parental responsibility, but certainly her position changed significantly with the minute to which I have referred.

The Father’s Case

The father's case, as I apprehend it, is that he requires the orders he contends for, that is, an order for equal shared parental responsibility and an order for equal time, so that his relationship with both his sons can be maximised for the benefit of those children. He says that, even though communication has been difficult in the past, in the future, he is satisfied that, by some process (which I am not satisfied I understand), the situation will change and there will be no difficulty, or a minimal difficulty, for these parties communicating and dealing in a reasonable and cooperative manner with the needs of their sons. He says that equal time is something that he has always wanted and, again, he says this is essential for the welfare of the boys, because it is absolutely important that his time with the boys and their exposure to him is maximised.

The Mother’s Case

The mother's case, which has evolved somewhat, is now that, because of the situation that exists between the two parties, equal shared parental responsibility is unworkable. She asserts that the level of communication is so poor that the prospect of these parties cooperatively parenting these children is effectively nil. She also asserts that, having said that, it is not necessary nor desirable for the children that they spend equal time with their father, because, she again says, the lack of any ability to communicate in a meaningful fashion between these parents is such that the idea of them parenting these children equally - and by that I mean having the children with them for equal time - would, again, also be unworkable.

The Material of the Parties

So far as the material that the parties have relied upon is concerned, the father, for his part, relied upon his affidavit, which, in these proceedings, was sworn on 22 March 2009, together with a further affidavit that was filed in Court, dealing with the soccer issue particularly. He relied also on an affidavit of his sister, the paternal aunt, sworn 22 March 2009, and his mother, the paternal grandmother, also sworn 22 March 2009.
The wife, for her part, relied upon her own affidavit of 16 March 2009 and that of her sister, the maternal aunt, also of 16 March 2009.
In addition to the affidavit material of the parties, there was before the Court a report of Mr O, a family consultant attached to this registry, which was released under cover of a header sheet of 19 November 2008 and was prepared by Mr O following interviews with both parties and the children. That report was of significant assistance to me in reaching a decision in this matter

The Hearing before Me

In the hearing before me I heard oral evidence from the father and his sister (his mother not being required), and from the mother and her sister. In addition, I heard oral evidence from Mr O.
The father's evidence, which I heard at length, was, at times, difficult to understand and to accept. One of the matters that caused me real concern was what it was precisely that the father actually wanted and when he reached various decisions. His evidence seemed to be that he had always wanted equal time, that somehow he had been convinced that he would not get this, and that was the reason why he had asked for the weekend time, if I may describe it as that, in his original application of 21 December 2007. He said that at all times he wanted to see more of his sons. Clearly, the parties were not in agreement, even though their documents indicated that they were. The father then proceeded to seek, in his first amended application, equal shared time.
The matter that causes me real concern in the light of that evidence of the father is his position in not accepting a proposal made in May 2007, whereby the wife proposed to the husband at the time that he should have the boys for alternate weekends. I am unable to know, and I am certainly not satisfied on the evidence before me, what it was that caused the father to say that he wanted Sundays only, rather than the entire weekends that were offered. He talks about being under a number of other pressures; these were not defined. I find that I am unable to reconcile his statement that he always wanted equal time with his refusal to take alternate weekends when offered. This was certainly not what he sought, but it was significantly more than the Sundays that he decided to exercise. That situation continued between May 2007 and May 2008. The current orders were made in May 2008 and those orders gave him alternate weekend time.
I was further concerned that the evidence established that offers were made for him to spend time at Christmas 2007 with the children, which he refused or declined. The only conclusion I can draw is that he was aware that those proposals had been made and he simply chose to ignore them and/or not respond to them.
A matter of more recent timing - and, because of that, to my mind, of real significance - is that the husband concedes that, through solicitors (which is the only way these parties have been able to communicate for some time) it was suggested that he might make available an email address so that the wife could communicate with him about the children. Previously, he had been receiving emails addressed to him via his brother-in-law’s email address. He works for his brother-in-law.
As I understand it, an email address was set up for him and details were provided. Thereafter, it is clear that he did not bother to check those emails. That to my mind indicates to me that he is not in any way anxious to engage in communication with the wife for the benefit of the children. It is not a case that he says, "The moment I opened that email address, I was inundated with meaningless, offensive or harassing emails." What he says is, "I provided the email and I have done absolutely nothing about it." His protestations to me that he thinks that in future the situation miraculously will improve, and that he believes that there can be some form of communication that would enable the parties to work at a cooperative level are completely contradicted by what he did in relation to emails.
I am concerned about his evidence concerning moneys payable to the Child Support Agency. Whilst I do not want to be sidetracked in this regard, the impression the husband sought initially to create was that, having been paying money into an account and subsequently having received a child support assessment, he continued to pay the same amount as previously to the Child Support Agency for the benefit of the wife and children. There is no dispute that he paid the money to the Child Support Agency. However, it cannot be said that those payments benefited the wife above and beyond the minimal assessment. I am satisfied that the husband knew that the agency would forward to the wife the amount that had administratively assessed, but would retain any amount above and beyond that assessment, so as to create a significant credit in the account. However such monies held in credit were of no benefit or assistance to the mother in her support of the children.

I am particularly concerned that the parties, at a time when one of them asserts there should be equal shared parental responsibility, are unable to reach a determination about schools or about sporting activities. What it is that the husband believes will, or can, change as a result of this Court making orders I do not know. It is not a case - and one, of course, wishes it were - of saying, "I order you to communicate with each other at a meaningful level," and have it occur. Indeed, if such an order could be effected, I suspect, it might be the only order that need be made in situations such as this.
I formed the view that the husband was, at times, and for most of the time, more concerned with the fight than with the needs of the children. I am satisfied that his intention was to win contests rather than focus on the needs of his sons.
His sister supported him in a very significant way. I was concerned with her evidence as to what she had asked one of the children by way of leading questions. In light of her experience as a teacher, I was concerned that she indicated that she could not see what was wrong with her questions in the situation then prevailing.
The father's proposals for the future, to my mind, are as yet unformed. Certainly, there is a process under way whereby he is moving from his parents' home to a property that he proposes to furnish over a period of time. However, I am not satisfied that he has any real timetable in mind as to when he will do that, and when it would be that the children would commence to live with him, on his proposal, every second week in those premises.
The mother's evidence was also marked with a need to be proven right.
Whilst solicitors are perfectly entitled to be rewarded for the work they undertake on behalf of clients, in a case such as this, the amount spent, not just in preparing and running a Court case but in communicating between solicitors, because that was the only method of communication, to my mind is something that indicates what really was the level of communication between these parties.
I am concerned with the mother's evidence about soccer. Particularly, I do not understand why she deregistered the children. She has given me a number of explanations, none of which I find that I can accept, and some of which I do not even understand. I am also not impressed with her answer that she did not read letters from the husband's solicitor that had been forwarded to her by her solicitor, because she found them too long and involved. I am satisfied that she has also at times focused more on the dispute and the winning of the dispute.
However, when one performs a comparison of the parties as one finds them, whilst both of them may have fallen short of what would be considered best practice, in this situation I am satisfied that the mother has been more active in endeavouring to involve the father than has the father in either communicating with, or proposing to the wife, anything that he said should occur. The wife did not notify the husband that the boys had been registered for soccer initially. To some extent, that can be explained - although I am still of the view that non-informing was inappropriate - by the fact that C at least was by then an experienced soccer player. I am satisfied that M (as a matter of commonsense, any younger brother would want to do what his older brother does) was anxious himself to start soccer and both boys were enrolled.
The father, for his part, enrolled the children in taekwondo - they had been undertaking karate last year - but the father did that without any notification.
Both parties seem to have involved medical practitioners without notifying the other. The father has had the boys involved in visits to an optometrist. When I raised that issue with his counsel, I was informed that the husband believed that was a proper and appropriate course. Thus, if one has to find that one parent has been more concerned with communication and proposals for the other to spend time with the children, clearly in this case it was the mother. I am satisfied that she did make the offer for each alternate weekend in May '07 and, as I say, I am entirely unable to understand why the father did not take that offer up.
Mr O’s report describes the parents in this fashion (par 28):
"[The father] presented as a passionate parent who wanted to maintain his established relationship and significant care of the children with a shared care arrangement. He went on to comment upon the support that [the mother] could expect and the support of the family for the assertions by the husband of the time that the children had spent with them at family functions."
The mother he described as "a focused parent". He noted her availability and ability to organise her professional business times around the daily need and management of the children. Indeed, it seems to me that neither party has criticised the ability of the other to physically care for the children whilst with that parent.
Mr O was examined in some detail by each of the counsel. He did not, in my view, change his position from that set out in his report. He has indicated, as I understand it, that there should be significant and substantial time with the father, but he does not agree, that that should be an equal amount of time with each parent. He indicated his concern if there was to be shared parenting, and by that I took him to mean the larger concept of both time and responsibility, that there needed to be a level of communication which was really, and demonstrably, not present in this current case.

The Law to be Applied

I turn then, as did both counsel in their most helpful addresses to me, to the matters that I must take into account under the Family Law Act, having regard to the amendments of 2006. The first of the matters that I must have regard to is section 60B which sets out the objects and the principles underlying those objects. The objects may briefly be described as:
a)Ensuring children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests;
b)Children must be protected from harm;
c)It is to be the case that children are to receive proper and adequate parenting;
d)It is the case that parents are to fulfil their duties and meet their responsibilities concerning care, welfare and development of their children.
It will be noted that, in the objects, there is no question of a parent's entitlement and it will be recalled that the father, in answer to a question, was very quick to say that he believed he had an entitlement to choose. To my mind, that reinforces the view that I have formed concerning the father, that he is concerned with what he perceives to be his rights and the enforcement and protection of them. That attitude I did not observe in the mother.
The principles underlying the objects are:
a)That children have a right to know and be cared for by both parents, to spend time on a regular basis with both parents and other significant people;
b)That parents jointly share duties and responsibilities;
c)That parents should agree about the future parenting of their children; and
d)Children have a right to know and enjoy their culture. As I understand it, that is not an issue in this case; that is, the cultural background of either of the children.
The next of the matters to which I must have concern is section 60CA, which tells me that, in dealing with a parenting matter, I must regard the best interests of the child as the paramount consideration.
Section 60CC(1) then says that I must determine a child's best interests by considering the following matters. I am then told that there are two primary considerations: the benefit of the child having a meaningful relationship with both parents; and the need to protect the child. This is in very similar, if not identical, terms to the first objects set out in section 60B and referred to above. It is, of course, a balancing exercise.
There are then additional considerations that I must take into account. The first of those under section 60CC(3)(a) is any view expressed by the child. I am assisted in this regard by the report of Mr O. He has interviewed both children and, in my view, has professionally and correctly made an assessment of those children, having regard to their age and maturity. It seems that C has identified what he likes doing in both households, but has said, "I like it the way it is and the weekends with dad" so far as further views are concerned, this child, not yet nine, said, "They hate each other and don't like each other because they are divorced." There are two matters of real significance arising from that statement for me. The first is the perception of the child and the second is the way it is introduced. The father has indicated, as has his sister, that the use of the word "hate" by C has indicated to each of them that that must be something that they are learning in the mother's household. Indeed, it is that very question, as to what the mother says, that I found so objectionable in the evidence of the children's paternal aunt.
Clearly, C is fully aware of what is happening between his parents and, equally clearly, he does not like it. I accept that he has expressed a view to keep things they way they are. He has spoken of a few days with dad, saying that, "Dad goes to work and we stay at nona's." I am satisfied that the husband has, in the past, taken the children to work, not on a great number of occasions but, again, that evidence came out after the father had given me an absolute denial - never taken the children to work with him.
M, at five, talks about living "with my mummy" and "want to stay with my dad next week for two days and live with mum". I do not find that the views of either children are determinative in this matter, but they are something I take into account. I am equally concerned that both parents have, from time to time, indicated to the children their wishes - that is, the parents' wishes - in relation to what should occur.
The nature of the relationship of the child with each of the parents and other persons is the next matter I must consider (section 60CC(3)(b)). Let me do this in reverse order. I am satisfied that the children have a good relationship with the extended family of each of their parents. I am satisfied that in the father's case, more so than the mother's, he relies heavily on involving the boys with members of his extended family, at weekends when he has them. Indeed, it was partly suggested that the children, from time to time, might crave some more time with him, with others not present, but I did not understand that that particular line of inquiry was followed up. I am, however, satisfied that the father depends and relies upon the help of members of his extended family; and I am not critical when I say this. The mother seems to be more capable of organising her own time, so that she can be available for the children, notwithstanding her professional commitments. I am not able to be satisfied as to precisely what the father's commitments are. As I understand it, he leaves quite early in the morning, returning - or finishing work, in any event - quite early in the afternoon. As to precisely what is to happen I am not sure.
Next I must take into account 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 (section 60CC(3)(c)). Both parties fare miserably under this subsection. However, once again, I am left in the position that some comparison must be drawn between these parties, not between either of them and what might be called a standard of excellence. The mother, I am satisfied, has demonstrated at least a capacity to seek to communicate with the father, to encourage him to have time with the children that he has not availed himself of. The father, for his part, in my view, has simply not cooperated with the mother, so far as continuing that relationship with the children. He has taken the children to health professionals, an optometrist, without notifying the mother, and I am satisfied the father chooses to go his own way and not bother to communicate with or tell the mother what is happening.
The likely effect of any change (section 60CC(3)(d)) is a matter of some concern. The father, by his proposal, would significantly alter the children's situation. It seems to me that, so far as the parties reaching agreements are concerned, it would not alter it very much, because I am satisfied that, unless something is undertaken by me to break the deadlock, these parties will continue to argue about anything and everything concerning the lives of these children. The change that I envisage that the children would undergo, if I acceded to the father's application, is that they would spend a much longer period of time with him and, conversely, a longer period away from their mother. There is no evidence before me as to quite how the children would manage this.
I am satisfied that the father's intentions in saying he wants the children with him are good, in that he believes, and firmly believes, that the children would undergo no difficulty in the event that he were to obtain the time he seeks with them. However, I am satisfied, on what I have read and what I have heard, that, if the children were to spend more time with their father, there would be a period of readjustment for them, and I am not able to be satisfied that the husband would either recognise that there was some difficulty being experienced by the children, or, if he did recognise it, have the skill and capacity to deal with it.
The difficulty of expense of the child spending time with the other parent (section 60CC(3)(e)), to my mind, is not of great concern. If orders are made that specify with some clarity what is to happen, then I am satisfied that it will happen. It seems to me that, as long as the parties have prescriptive orders that require them to do something, those things are done. It is when matters are left to the parties' best intentions that a failure occurs.
The next of the subject matters is the capacity of the child's parents and any other person to provide for the needs of the child (section 60CC(3)(f)). I am satisfied that the father, with the help of his parents and extended family, has cared for the children to date. Indeed, the mother concedes - as I understand her case - that she is not concerned that the father would be able to care for the children, certainly, in their present situation, and, it seemed, if they were to live with him for longer periods of time. I am satisfied that the mother, having regard to what has happened in the past, has a proven capacity to care for the children and to provide for the children’s needs.
I am not concerned with subsection (g), as to the maturity, sex and lifestyle of the parties. They both come from a common background, culturally, and I am satisfied that there is no difficulty presented by that fact. Certainly, no evidence has been led before me in that regard.
Section (h) has no application.
Section (i), the attitude to the children and to the responsibilities of parenthood, I have said, to the point of boredom, that the parties have not, in my view been able to deal with the situation in which they find themselves as separated parents, in a cooperative and sensible fashion. To my mind, the attitude of each of the parents, in not recognising the need for the other parent to be as involved as possible with the children, establishes that they have both selfishly looked upon the children as their own. They have, in effect, considered, so far as I can ascertain it, that the other parent is effectively worthless as a parent and that must be a view that in some way affects the children. In other words, the children know that both their parents dislike each other and, indeed, that is borne out by C’s comment, to which I have already referred, made to Mr O.
There has been family violence (subsection 60CC(3)(j)), but, to my mind, it is of a minor significance. I understand, and accept, that the mother is presently the subject of an apprehended violence order, which appears to have arisen in respect of telephone calls, and certainly there has been some difficulty at a soccer match. That is something that, again, indicates to me that these parties are incapable of making proper arrangements. The mother was at the soccer match. The father had the child. The mother should have known that, under the terms of the order that bound her at that time, she should not have approached the father. The father, for his part, says that a strange woman tried to take the child from him. Clearly, there was an incident that could have been avoided, and should have been avoided, by the parties recognising their responsibilities and maintaining proper distance and proper control of themselves in the situation in which they found themselves.
There is in place a current order restricting the mother's behaviour so far as the father is concerned, and I take that into account under subsection 60CC(3)(k).
In his very carefully-reasoned submissions to me, Mr Dura dealt with subsection 60CC(3)(l), whether it would be preferable to make the order that would least be likely to cause further proceedings. He put to me that, were I to make an order for equal shared parental responsibility, the parties would find themselves in exactly the same impasse they are today and would, therefore, be coming back to the Court to see what was required to have them fulfil the very rights that had been conferred upon them. To my mind, there is merit and validity in that argument.
The next of the matters that I must deal with is section 60CC(4). That takes up an earlier subsection largely as to what each of the parents has done and the opportunities taken by each of those parents to participate in decision‑making, to spend time with the child, to communicate with the child, and, conversely, to facilitate the other parent doing those things. This subsection has, to my mind, real relevance. I have that the mother has proffered time with the children to the father which he has not accepted. To my mind, therefore, it is to her credit that she has facilitated - not succeeded, but facilitated - making the children available to the father. In the father's case, he has failed to take the opportunity, for reasons I have not understood, to take time with the children between May '07 and May '08. I cannot understand what prevented him from taking the weekends. There would still have been the same number of changeovers, and this was referred to again by Mr Dura. It would simply have meant that, had he taken the wife's proposal on board, he would have picked the children up on Saturday morning rather than Sunday.
There is no real evidence of his endeavours to communicate with the children. It seems to me that the father, at times, for whatever reason, has simply decided to minimise what he would do so far as involvement in the children's lives is concerned, and, when it suited him, or when he thought it appropriate, he would seek to maximise that same involvement. I find the two positions contrary.
Subsection (4)(a) deals with what has happened since separation. It is clear that in this case, since separation, the parties have existed in two separate households that have touched each other, so far as the adults are concerned, by accident rather than by design.
I have said all that I wish to say concerning family violence that I am required to take into account under section 60CG. I would only add that I am not in any way concerned that there would be violence by either party such as would affect the children.

I then turn to section 61DA(1). This section requires me to apply a presumption. That presumption is in these terms: when making a parenting order, 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. That is made clear by a note to apply to parenting and parental responsibility, not time. The subsection that follows says the presumption shall not apply where there has been engagement in abuse of the child, or another child, or a family member. Both parties have obtained apprehended violence orders. In my view, so far as the non‑applicability of the section is concerned and notwithstanding the existence of those orders, this is not a case where I can find the presumption does not apply by virtue of such violence. However, subsection (4) says:
"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 - "
Indeed, this is the section where it may be said that counsel for each of the parties joined action.
The submissions of Mr Jackson were that the presumption would not be rebutted simply because it would be difficult for the parents if it were to be left in place. He indicates to me, and I accept, that there must be at least unusual circumstances for me to consider whether or not the presumption has been rebutted. Having heard and read the evidence that I have, I am satisfied that the situation within this family is an intolerable one for the children. It is not simply a matter of the parties being frustrated with each other. It is not simply a matter of the parties having difficulties with the communication that might be required if they were to exercise equal shared parental responsibility. The situation here is that their capacity for communication to a meaningful level is absolutely zero.
Even more difficult, so far as I am concerned, is endeavouring to look into the future and see if there is any possibility or a prospect that - given time, and given counselling, and given anything else that anyone can think of - the relationship between these parties will improve. It was put again by Mr Jackson that one might expect that, with the end of the litigation, the parties would indeed be able to move forward. There is one immediate difficulty in that. The litigation between these parties has not finished. Whatever I do in respect of parenting or children's issues, these parties remain locked in litigation so far as the distribution of their property is concerned. I do not know when that property matter can be brought on for hearing. Certainly, it will come on more quickly, now it is only, perhaps, a two‑day hearing rather than a four‑day hearing, but to say, "Right. The children's proceedings are over. A determination has been made. Now it is inevitable we will move forward," is, to my mind, absolutely flawed as a proposition.
There is no doubt that the children love both parents and I have absolutely no doubt that both parents, when they bother to concentrate on the children, love them to death. It was put that it is very important that the father maintain an aspect of responsibility to protect his relationship with the children. That is important, but, equally, to my mind, if there are other matters that countervail and overwhelm it, then I am left with the position that, if it is not in the best interests of the child for equal shared parental responsibility, then the presumption is rebutted. In this case, to sentence these children to have their parents fight over them for the foreseeable future, and I suspect, with some regret, that that will be the case until these children are in their early teens and telling their parents that they do not accept what has happened to them, is not to create or permit a situation that is in the best interests of the children. Accordingly, I have come to the conclusion that this is not a case where the parents will share equally the responsibilities of parenting. Therefore, I must determine which of the parents is the person to have that responsibility. Once again I say, if both parents were being necessarily measured against a standard of perfection, both would fall short. However, I must consider the situation as it stands as between the parents. In those circumstances, I am satisfied that the mother is the appropriate person to have sole parental responsibility for these children.
I then turn to the question of the time the father is to spend with the children. I have not made an order for equal shared parental responsibility, which can act as a trigger for the consideration of equal or significant and substantial time. However, their Honours of the Full Court, in Goode and Goode[1], made it clear that trigger is not the only method by which the Court can consider what should be done so far as time with the parent that they are not to live with. In this situation, again, of course, it must be determined on the basis of what is in the best interests of the child. In this case the father says, again, that he needs this equal time to ensure that he continues to have a meaningful and proper relationship and involvement with the boys.
[1] (2006) FLC 93-286
In my view, for the reasons I have spoken of when dealing with equal shared parental responsibility, there are difficulties with shared time. The inability of the parents to cooperate would mean that these children would not just be spending week and week-about time, they would be living their lives in two entirely separate and non‑overlapping worlds. I am satisfied that the father does not wish the mother to know what he is doing when the children are with him, and I suspect that the mother is in a similar situation.
The tragedy of this entire matter is that it has got to the stage that it has, but it has and, accordingly, in the light of the situation as presently prevails, orders must be framed as best they can. I have come to the conclusion that it would not be in the best interests of these boys to have equal time with each parent. I am satisfied that the difficulties that would arise in each household, for items of clothing, equipment and the passage of information between one household and the other would make such a proposition, at a practical level, unworkable. I am satisfied that, in the situation in this case, which the parties themselves have driven, it is essential for these boys to have one particular home and, certainly, to move to the other parent as required. Accordingly, I will not make an order for equal shared time.
I am then required to turn to various other matters. If I do not make an order for equal shared time I must consider an order that the child should spend substantial and significant time, in the best interests of the child, with his or her parents (s 65DAA (2)), and I must consider if such a proposition - that is, substantial and significant time - is reasonably practicable. Subsection (3) tells me: that a child will be taken to spend substantial and significant time if he spends time that falls on weekdays and holidays and days that do not fall on weekdays and holidays; that both parents share events of equal significance to the children. I am told by subsection (5) that, in determining the reasonable practicality, I must take into account how far apart the parents live, their current and future capacity to implement an arrangement, and the parents' current and future capacity to communicate.
In respect of their current and future capacity to communicate, I find that there is absolutely no prospect for them to do so for themselves at a meaningful level. I am satisfied, however, that if orders are in place that clearly dictate and direct the parties as to what is required of them, then, the arrangements the subject of those orders can be implemented. I am satisfied that the parents live a short distance from each other and, notwithstanding the mother's protestations about difficulties of travelling to the school, which I will return to shortly, I am satisfied that distance is no extraordinary difficulty.
I have come to the conclusion that the father should spend more time than he presently does with the children. There are difficulties between the children moving between these households, difficulties that would be insurmountable if it were week and week-about. However, I am satisfied that, if the father was to see the children for time that is overnight, but not equal, then the boys' situation can be managed and they can deal with the requirement to move between their parents. I have come to the conclusion, in all the circumstances of the case, that it would be appropriate for the children to spend time with their father each alternate weekend, from after school Friday to before school Monday. Both parties say that they cannot communicate at changeover. What can be done then is to have the changeovers effected from and to school and that is the order I will make. In addition, I am satisfied the father should spend overnight with the children one night each a week, taking the children from school and returning them to school. I propose that night will be a Wednesday.
Accordingly, I will make an orders providing for the mother to have sole parental responsibility, for the children to live with her and for the children to spend time with their father as I have set out in these reasons for judgment.
That leaves me to deal with the two specifics, school and the soccer. The mother contends that, if she is to have sole parental responsibility and have the children live with her, it is best that the children move to a school near her, so that they will be closer to her home, to make her transporting the children easier, and they will be in close proximity to children who would be their playmates at school. There is something in that. However, the current school is one that the parties agreed upon. In the circumstances of this case, whilst appreciating the mother's convenience, I am not satisfied that it would be in the children's best interests to move and I am aware in saying that that the mother's application is for a move at the beginning of next year. With the level of dislike between these parties and the disruption that they have achieved in their children's lives, one of the givens, one of the places that the children might feel safe is their school. To require them to undergo a change of school is unnecessary. If it were demonstrated to me that there were benefits for the children that required it be done, I would have no hesitation. However, as it is put to me, it is largely a convenience to the mother. Further, I suspect, it is just another episode of a party finding something to fight about. I do not propose to make an order as sought by the mother. Notwithstanding that I will order the mother have sole parental responsibility for the children, I will order that she is not to change the children’s school without the written consent of the father or further order of this Court.
The soccer situation astounds me. How parties can find themselves in such an impasse about something such as sport for a nine‑year‑old and a five‑year‑old is breathtaking. If the parties cannot agree, then I am certainly not going to set this Court up to have to arbitrate that decision every time the soccer season comes around.
Whilst I would normally hesitate to make an order concerning sporting activities when the mother is to have sole parental responsibility, I will in this case order that so far as the children’s sporting activities are concerned, the mother shall have the choice of the winter activities that the children are to be involved in and the father shall have the choice of the summer activities for the children. If that order encourages the parties to in any way communicate with each other and endeavour to exercise some compromise, some give-and-take, then I will consider these orders to be somewhat successful.
I will therefore make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 16 November 2009

[2009] FamCA 1057

3 April 2009

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Areas of Law

Family Law