DENT & REES
[2012] FMCAfam 1303
FEDERAL MAGISTRATES COURT OF AUSTRALIA
DENT & REES [2012] FMCAfam 1303
FAMILY LAW – Parenting – parents in a same sex de facto relationship for 17 years – three children each conceived by an artificial conception procedure – where the applicant mother seeks an order that the children live primarily with her and the respondent mother seeks a week about arrangement – where each parent works shifts and will need help from third parties to care for the children – whether one parties proposal in that regard is superior – where one of the children has special needs – whether one parent has a superior capacity to provide for the needs of that child – where the respondent mother regards it as important that two of the children are her biological children and the remaining child is the applicant mother’s biological child but the applicant mother regards this as unimportant – relevance of each parent’s attitude in this regard.
BIRTH CERTIFICATES – Where the children were all born prior to the amendments to the Births Deaths and Marriages Registration Act NSW which permits two women who have a child in a relationship together to both be named as parents on the child’s birth certificate – applicant mother seeks an order for the inclusion of the names of both parents on each child’s birth certificate – respondent mother opposes this application.
Birth Deaths and Marriages Registration Act 1995 (NSW), s.19, Clause 17 of Part 4 of Schedule 3
Family Law Act 1975 (Cth), ss.60CC, 60H, 61DA, 65DAA, 65DAC
AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100
Applicant: MS DENT
Respondent: MS REES
File Number: NCC 1854 of 2010
Judgment of: Terry FM
Hearing dates: 17, 18 & 19 October 2012
Date of Last Submission: 19 October 2012
Delivered at: Newcastle
Delivered on: 19 December 2012 REPRESENTATION
Counsel for the Applicant: Mr Kelly
Solicitors for the Applicant: Winder Lawyers
Counsel for the Respondent: Mr Wilkinson
Solicitors for the Respondent: Oliver Campbell Heslop Counsel for the Independent Children’s Lawyer Ms Burns Solicitors for the Independent Children’s Lawyer: Neisha Shepherd Solicitor ORDERS
(1)The parties have equal shared parental responsibility for the children [X] born [in] 2000 [Y] born [in] 2001 and [Z] born [in] 2006.
(2)Until the conclusion of the fourth school term in 2012 the orders made on 10 December 2010 shall continue in force.
(3)Thereafter the children shall live with MS REES (“Ms Rees”) as agreed between the parties but failing agreement as follows:
(a)During school terms:
(i)All of the children from 3.00pm or the conclusion of school each alternate Thursday until the commencement of school on the following Monday commencing on the first Thursday of each school term;
(ii)[X] and [Z] from the conclusion of school each Wednesday until the conclusion of school the following day.
(b)During school holidays:
(i)Half of all school holidays being the first half in odd numbered years and the second half in even numbered years.
(ii)From 2.00pm on Christmas Day until 2.00pm on Boxing Day in odd numbered years and from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in even numbered years.
(c)During the Easter long weekend (save and except when Easter falls during the school holidays, in which event the school holiday arrangements will apply):
(i)In even numbered years from the conclusion of school on Easter Thursday until 12 noon Easter Sunday; and
(ii)In odd numbered years from 12 noon Easter Saturday until the commencement of school on the Tuesday following Easter Monday.
(4)Subject to order 5 the children shall live with MS DENT (“Ms Dent”) at all other times.
(5)The time the children live with MS REES is suspended as follows:
(a)From 2.00pm on Christmas Eve until 2.00pm on Christmas Day in odd numbered years and from 2.00pm on Christmas Day until 2.00pm on Boxing Day in even numbered years and the children shall live with MS DENT at such times.
(b)During the Easter long weekend (save and except when Easter falls during the school holidays) from 12 noon on Easter Saturday until the commencement of school on the Tuesday following Easter Monday in odd numbered years and from the conclusion of school on Easter Thursday until 12 noon on Easter Saturday in even numbered years and the children shall live with MS DENT at such times.
(6)The children shall spend time with the parent they are not living with on the relevant day as follows:
(a)On each of the children’s birthdays (unless the birthday falls during the school holidays and the children are absent from Newcastle on holiday with the parent with whom they are living during that part of the holidays) from 3.00pm or the conclusion of school until 7.00pm if on a school day and from midday until 4.00pm if not on a school day;
(b)On the birthday of the parent from the conclusion of school until 7.00pm if on a school day and from midday until 4.00pm if not on a school day;
(c)On Mother’s Day from 2.00pm until 7.00pm.
(7)Each parent shall facilitate the children communicating by telephone with the other parent on a liberal and flexible basis.
(8)Unless otherwise agreed changeovers shall occur at the children’s schools if a school day and if not a school day by the parent whose time with the children is to commence, or a nominee who is known to the children, collecting the children from the home of the other parent.
(9)If the parents are both present at changeover they shall behave respectfully to each other and neither shall attempt to initiate discussion with the other parent about parenting arrangements.
(10)The parents shall exchange information about the children including information about medication, medical or other appointments and sporting and extra-curricular activities by email or text message and each parent shall ensure that they are civil and respectful in this communication
(11)Each parent is authorised to attend any of the children’s schools and school functions at any time and receive any information they require from the schools such as school reports, newsletters, school photographs and the like.
(12)Each parent is authorised to attend any of the children’s appointments with their treating medical practitioner or other allied health professionals and obtain any information or reports they require from such treating professionals.
(13)Each parent is authorised to attend any of the children’s sporting or extracurricular activities at any time.
(14)Each parent shall contact the other as soon as reasonably practicable if any of the children are involved in an accident or are the subject of a medical emergency requiring their attendance at hospital or are diagnosed as suffering from a serious medical condition.
(15)Each parent shall use their best endeavours to ensure that the children maintain their usual social, educational and sporting commitments while the children are living with them.
(16)Each parent shall maintain any medication regime for any of the children that may be prescribed for the children by their treating medical practitioners.
(17)Each parent is restrained and an injunction is granted restraining them from allowing the children to read any court documents including but not limited to the Family Report and these reasons for judgment.
(18)Unless otherwise agreed in writing between the parents [Z] shall attend [G] School for the remainder of her primary schooling.
(19)Each parent shall forthwith ensure that the other parent has their current mobile telephone number, residential address and email address and shall advise the other of a change to any of these details within twenty four (24) hours of the change occurring.
(20)MS DENT is authorised to apply to the Registrar of Births Deaths and Marriages for the State of New South Wales to request that:
Her name be added to the birth certificates of [X] and [Z] as a parent.
MS REES’S name be added to the birth certificate of [Y] as a parent.
(21)The Registrar of Births, Deaths and Marriages for the State of New South Wales shall upon such an application of MS DENT do all acts and things required to alter the particulars in the register for each child notwithstanding that the consent of MS REES has not been obtained.
NOTING that pursuant to s.60H of the Family Law Act Ms Dent and Ms Rees are each the parents of each child
IT IS NOTED that publication of this judgment under the pseudonym Dent & Rees is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLENCC 1854 of 2010
MS DENT Applicant
And
MS REES Respondent
REASONS FOR JUDGMENT
Introduction
1.Ms Dent (Ms Dent) and Ms Rees (Ms Rees) separated in May 2010 after a de facto relationship of 17 years. They have three children ([X], 12, [Y], 10 and [Z] 6) and they cannot agree about future parenting arrangements for the children.
2.At present they share the care of the children fitted around their shifts and the result for the children is that they are changed over between the parents at about 7.00pm nearly every school day.
3.The parents agree (for different reasons) that this is unsatisfactory and cannot continue but they have found it impossible to come up with a mutually acceptable alternative.
4.Ms Dent would like the children to live primarily with her. She maintains that this would be best for the children as a group because she has a far better proposal for the care of them when she is working and because she is far better able to parent [Y], who has special needs.
5.Ms Dent sought orders that the children live with her and spend time with Ms Rees as follows:
· each alternate week during school terms from after school Thursday until the commencement of school on Monday.
· [X] and [Z] from after school each Wednesday until the commencement of school on Thursday provided that Ms Rees advised that she would be personally available to care for them during that period.
· All three children for half of each school holiday period and on special days.
6.Ms Rees would like the children to live in a week about arrangement. She does not accept that she will have difficulty making care arrangements for the children when she is working and does not accept that she will have such difficulties caring for [Y] that the overall outcome should be a substantial reduction not only in her time with him but also in her time with [X] and [Z].
7.Ms Rees sought orders that the children live week about during school terms and spend half of each school holiday period with each parent, and she also sought orders about the division of time on special days.
8.Counsel for the Independent Children’s Lawyer proposed that the following orders be made:
· The children live with Ms Dent.
· [X] and [Z] spend time with Ms Rees from after school Thursday until Monday morning each alternate week during school terms.
· [Y] spend time with Ms Rees from the cessation of Ms Rees’s work on Friday until Monday morning each alternate week during school terms.
·
All three children spend time with Ms Rees from 3.00pm to 7.00pm each alternate Wednesday provided that she gave
Ms Dent 48 hours notice of a wish to spend this time.
· school holidays and special days be shared.
9.Counsel for the Independent Children’s Lawyer submitted that although this would result in a considerable diminution of the children’s time with Ms Rees it was for the best because Ms Dent had by far the better plan for caring for the children while she was at work and it would also best ensure both that [Y]’s needs were met and that the children as a group did not spend too much time apart.
10.Ms Rees and Ms Dent were also in dispute about two specific issues namely:
· whether [Z] should commence attending [M] School instead of [G] School.
This order was sought by Ms Rees and opposed by Ms Dent.
· whether an order should be made that the parent not currently named on the birth certificate of each of the children should have their name added to the birth certificate.
This order was sought by Ms Dent and opposed by Ms Rees.
The Independent Children’s Lawyer supported Ms Dent’s proposal about both of the specific issues.
Ms Dent, Ms Rees and the Independent Children’s Lawyer all agreed that there should be an order for equal shared parental responsibility.
The evidence
Ms Dent relied on her affidavits filed on 14 July 2010, 22 August 2011, 25 June 2012 and 24 September 2012 and the affidavit of her mother Mrs D filed on 25 September 2012.
Ms Rees relied on her further amended response and her affidavit filed on 26 September 2012.
A family report was prepared by Dr S, a clinical psychologist and Regulation 7 Family Consultant.
All of the witnesses were cross-examined.
Background
17.Ms Dent and Ms Rees commenced a de facto relationship in late 1992/early 1993 when they were 18 and 25 respectively. They decided to have children, and as a result [X] was born [in] 2000, [Y] was born [in] 2001 and [Z] was born [in] 2006.
18.[Y] is Ms Dent’s biological child and [X] and [Z] are Ms Rees’s biological children. The father of the children is same anonymous sperm donor, and pursuant to s.60H of the Family Law Act Ms Dent and Ms Rees are the parents of the children.
19.The law in force at the time the children were born did not allow both parents to be named on the children’s birth certificates and only the birth mother appears as a parent on each certificate. However the children were all given the surname Dent-Rees.
20.By the time [X] was born the parents were both shift workers with [omitted]. They both continued working after becoming parents and they arranged their shifts so that as far as possible one of them was always available to care for the children.
21.Ms Dent worked a night shift and Ms Rees a day shift, and the upshot of this was that Ms Dent was the parent who was primarily involved in the children’s school life and who became the organiser of their extra-curricular activities and medical and other appointments.
22.Ms Dent’s mother Mrs D was the main alternative provider of care when neither Ms Dent nor Ms Rees were available. If needed Mrs D cared for the children during day until Ms Dent awoke, took the children to school, prepared their meals, took them to extra-curricular activities and minded them when Ms Dent and Ms Rees went on holidays.
23.
[X] and [Z] did not present the parents with any extraordinary parenting challenges, but [Y] did. From an early age he began to display troubling behaviour such as explosions of temper with hitting and kicking, and also some behaviours such as lining up cars which Ms Dent considered unusual. Ms Rees tended to the view that [Y] had behavioural problems which would respond to strict discipline.
Ms Dent was concerned that there might be underlying problems which were causing this behaviour and this turned out to be correct.
24.Dr S summarised [Y]’s situation as follows:
[Y] has been diagnosed with Delayed Speech, Aggression, Oppositional Defiant Disorder (ODD), Attention Deficit Hyperactivity Disorder (ADHD) and Aspergers. His delayed speech was diagnosed by Ms H, Speech Pathologist. Ms A (Clinical/Neuropsychologist) diagnosed [Y] with ADHD as well as Aspergers in 2005. Dr L supported the diagnosis of ADHD and Aspergers in 2007 and believed that [Y] did not meet the criteria for Autism. Dr M (paediatrician) supports all the diagnoses and has added Oppositional Defiant Disorder due to a consistent pattern of anger and aggression reported by both parents and [Y]’s schools.[1]
[1] Family Report paragraph 76
25.The unfolding difficulties with [Y] and Ms Dent’s perception that she was unsupported in dealing with him placed a strain on the parties relationship, and the relationship came under further strain when the parties home was damaged in the July 2007 storms in Newcastle. They were required to move into temporary accommodation pending an insurance payout which took a long while to come through.
26.The final straw came in 2009 when Ms Rees discovered that Ms Dent was having an affair. She reacted badly and assaulted Ms Dent and had a mental health crisis.
27.On 25 May 2010 the parties separated under one roof, but they continued to work their usual rosters and to share the care of the children much as they had done in the past.
28.On 14 July 2010 Ms Dent filed an application for parenting orders and on 10 December 2010 interim orders were made which provided for the children to be cared by Ms Rees when Ms Dent was working and by Ms Dent when Ms Rees was working.
29.In April 2011 Ms Rees moved out and commenced renting her own accommodation. The arrangements for the children since then have been that they sleep at Ms Rees’s home on school nights and (save for [X] who catches the bus) are delivered to school by her the following morning, they go to Ms Dent’s home from school and she takes them to their extra-curricular activities and gives them dinner and they then return to Ms Rees’s home at about 7.00pm. The children spend alternate weekends and half school holidays with each parent.
30.Mrs D has continued to play a role in the care of the children since the parties’ separation. Before [Z] commenced school in 2012 Mrs D looked after her until Ms Dent awoke, and she has also cared for the children when they have been sick and for [Y] when he has needed to be collected from school early or has been unable to attend school because of suspensions.
The children today
31.[X]
is 12, almost 13. He commenced Year 7 at [M] School in 2012 and he is progressing well. He does [activity omitted] on Mondays, [omitted] on Tuesdays and [omitted] on Wednesdays, all of which
Ms Dent takes him to. Both parents take him to weekend [omitted].
32.[X] has recently asked Ms Rees about his father and Ms Rees has been able to obtain some background information for him, but in general terms he is settled and doing well.
33.[X] catches the bus to school. He might be too old to attend an outside school hours care program but clearly he is at an age when it should be relatively easy to make suitable arrangements for his care if the parents are unavailable.
34.[Y] is 11. He is enrolled at [G] School but he currently attends [K] School from 9.00am to 2.30pm on Wednesday, Thursday and Friday each week. [K] School educates children in Years 3-6 with emotional disturbance and behavioural disorders, and its aim is to transition children back to their home school.
35.On Monday and Tuesday and provided that he is not suspended [Y] attends [G]. He has been suspended on four occasions this year and was recently suspended for 20 days. At the time of the hearing [Y] was only permitted to attend school from 9.00am to 1.00pm.
36.
Under the present parenting regime if [Y] is suspended Mrs D meets Ms Rees at the school and takes [Y] either to her house or to
Ms Dent’s house and looks after him until Ms Dent gets up. Ms Dent is responsible for collecting or arranging for someone to collect [Y] if the school requires him to be picked up early because of behavioural issues, which has happened on occasions.
37.
Ms Dent said that [Y] might need to change schools next year and
Ms Rees stated that [Y] would be attending [S] School in the [omitted] class next year. There is clearly some uncertainty about where [Y] will attend school in the future.
38.[Y] would not be accepted at an outside school hours care program.
39.[Y] does [activity omitted] on Mondays and [omitted] on Wednesdays, both facilitated by Ms Dent.
40.[Y] is under the care of a paediatrician and at the time of the preparation of the Family Report in May 2012 he was taking Catapres and Concerta. Ms Dent said that this medication affected his appetite and that careful attention had to be paid to ensuring that he was provided with a meal at the right time. [Y] has in the past been taken to a chiropractor, naturopath and occupational therapist.
41.A particular concern which has been raised about [Y] in the past is that he appears to have precocious interests of a sexual nature, and on two occasions in the last two years he has been suspected of behaving in an inappropriate way with other children.
42.In December 2010 when [Y] was 9 he was found with his cousin [name omitted] (11) with no clothes on and wanting to have time with her in his bedroom alone.
43.The incident was investigated by JIRT, but JIRT could not be satisfied who the “person of interest” was in the matter. JIRT recommended that [name omitted] and [Y] have no further contact with each other.
44.In October 2011 Ms Rees rang Ms Dent and asked her to come and get [Y]. Ms Rees told Ms Dent that she had left [Y] and [Z] alone together watching television and when she came back into the room she found [Y] sitting behind [Z] with his hands down her pants.
45.The children were separated for a week at Ms Rees’s insistence and she took [Z], then 5, to a doctor who conducted a physical examination to see whether any sexual behaviour had taken place. This incident was also referred to JIRT but they declined to interview the children and did not substantiate any wrongdoing.
46.Ms Dent told Dr S that she believed that Ms Rees had manufactured the October 2011 claim about [Y] and [Z] in order to separate the children. During cross-examination however Ms Dent said that she accepted that “something’ had occurred although she remained of the view that Ms Rees had overreacted in separating the children for a week.
47.Ms Rees also referred in her affidavit to what she considered a suspicious incident between [Y] and [Z] in May 2011.
48.Ms Dent advised at the hearing that [Y] had now been enrolled in a program designed to assist children who have displayed precocious sexual behaviour.
49.[Z] is 6. She is in Kindergarten at [G] School and attends five days a week from 9.00am to 3.00pm. She does [activity omitted] on Mondays and [omitted] on Tuesdays, both facilitated by Ms Dent. [Z] is doing well.
50.[Z] would be suitable to attend an outside school hours program.
Ms Dent’s situation
51.Ms Dent lives in the former family home at [C] and subject to being able to refinance the mortgage, which is not anticipated to be a problem, she will retain it pursuant to consent property orders made on 18 October 2012.
52.Ms Dent has not re-partnered.
53.Ms Dent is a [occupation omitted] and currently works from 9.00pm to 3.30am Sunday to Thursday. She said that she might be able to manage the children’s morning routine (which she has not had to manage to date but would have to manage on a minimum of five and up to eight nights per fortnight depending on which proposal prevails) by splitting her sleep so that she had a brief sleep after work, woke up to get the children ready for school and to drop off [Y] and [Z] and had a further sleep until she needed to pick [Y] up at 1.00pm and [Z] at 2.30pm.
54.Ms Dent conceded during cross-examination however that she might quickly become sleep-deprived and I strongly tend to the view that this is not a realistic proposal.
55.Ms Dent said that as a fall back position she would arrange for her mother to help. This would require Mrs D to sleep at Ms Dent’s home on anywhere between five and nine nights per fortnight.
56.Mrs D was asked about this in the witness box when only Ms Dent’s and Ms Rees’s proposals were on the table. She insisted that it was feasible for her to help Ms Dent out as required by those proposals and said that this was something she was prepared to do. Mrs D said that she was a former [omitted] worker herself and that she and her husband had a long history of working opposing shifts and not socialising much together and she maintained that her husband would be unlikely to raise any opposition to this.
57.The proposal by the Independent Children’s Lawyer would require of Mrs D an even greater commitment of time than Ms Dent’s proposal – it would require her to sleep at Ms Dent’s home for five out of seven nights each week. Mrs D was not asked whether she could accommodate this and I have some misgivings about whether this massive commitment of time and the travel back and forth to her own home during the day which this would involve will be sustainable.
58.Another option would be for Ms Dent to change her working hours to day hours or to change her job.
59.Dr S discussed this with Ms Dent and reported that:
[Ms Dent] would not consider changing her current hours as she believes that ‘the night shifts work’ and she plans to continue working the night shift. [Ms Dent] said that the benefits of her doing night shift was that she could still continue to work and bring in money but was also available for the children to take them to afternoon activities and scheduled appointments.[2]
[2] Family Report paragraph 24
60.Ms Dent was asked during cross-examination about whether there was any possibility of her changing her working hours or changing her job. She said that she had not made any inquiries about whether it might be possible to change her working hours, and as for changing jobs she said that she had worked for [omitted] for 15 years and had no qualifications which would fit her for another job.
61.Ms Dent said that her only option if she left [occupation omitted] would be to study. and she had thought about possibly obtaining qualifications fitting her to assist parents who faced the kind of difficulties she had faced with [Y].
62.Whether it would be economically feasible for Ms Dent to resign from her employment in order to study given that she had just consented to orders that require her to refinance the mortgage on the home was not explored during cross-examination and must be open to question.
Ms Rees’s situation
63.Ms Rees lives in [E], which is about a 20 minute drive from Ms Dent’s home in [C] and probably a similar distance from the schools [Y] and [Z] attend. She is in a new relationship of about three month’s duration but her partner does not live with her and she did not call her partner to give evidence.
64.Ms Rees is renting and she could move again in the future. Pursuant to the property orders she will receive a vacant block of land in [omitted] but she said that she had not thought about whether or if so when she might build a house on the land, or about whether she might purchase a home for herself now that the property matters were settled.
65.Ms Rees is a [occupation omitted]. She has always worked a day shift and is required (subject to obtaining an exemption on compassionate grounds) to work a rotating roster. According to one of the case outline document Ms Rees has three different shifts available to her, namely:
a)5.00am to 12.21pm Monday to Friday
b)10.00am to 5.21pm Monday to Friday
c)Midday to 6.21pm Monday to Friday
66.Ms Rees has been working a permanent 10.00am to 5.21pm roster since 2011 to accommodate the existing arrangements for the care of the children. She said that if she was successful in obtaining an order for week about shared care she intended to do the 5.00am to 12.21pm shift in the week the children were with her because this would give her a chance to become involved in the children’s school and extra-curricular activities and attend medical and other appointments in the afternoon.
67.In the other week Ms Rees would do one of the later shifts and would not be available to pick the children up from school.
68.Ms Rees’s was not able to outline any terribly satisfactory plans for caring for the children when she was at work. She told Dr S that her friend Ms L would help but no mention was made of Ms L during the hearing. During cross-examination Ms Rees said that she had a friend called Ms T who was willing to come to her house and look after the children until they awoke, give them breakfast and get them to school, but she did not ask Ms T to give evidence and when questioned she seemed to know little about Ms T.
69.Ms Rees said that she also had other friends who could help out.
70.There was no evidence that Ms Rees had turned her mind to what she would do if [Y] needed to be collected from school before she finished work or was unable to attend school because of suspension. In the past Ms Rees has called on Mrs D for help; whether that would be feasible in the future is an unknown.
The children’s best interests
71.Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration, and S.60CC(2) and (3) of the Family Law Act (as it stood prior to the amendments on 7 June 2012) contain the matters to which I must have regard in order to determine the children’s best interests.
72.The primary considerations in s.60CC(2) are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
73.I accept unreservedly that the children will benefit from having a meaningful relationship with both parents.
74.
Each parent has played a role in nurturing the children throughout their lives and each parent has something different to offer them. Dr S for example noted [X]’s comment that things were relaxed at Ms Dent’s home and that there were more things to do and more outings at
Ms Rees’s home.
75.Provided that each parent accepts the courts decision, tries to get on a little better with the other parent in the future and takes on the challenge of providing care for [Y] and does not give up on him then both parents can continue to have a meaningful relationship with all of the children no matter which configuration of time is ordered.
76.Neither parent has ever neglected the children nor are they likely to do so in the future.
77.There was no evidence that Ms Dent had ever abused the children or might do so in the future.
78.Ms Rees disciplined [Y] in an inappropriate way in the past by washing his mouth out with soap but this is in the past. Ms Rees has also smacked [Y] in the past and has smacked [Y] since the interim orders were made on 10 December 2010 prohibiting this. It is of concern that the court order was breached, and smacking [Y] is counter-productive, but there was no evidence that the smacking amounted to abuse.
79.There was an occasion during the parties’ relationship when Ms Rees smacked [Y] and he lost his balance and fell over and hit the corner of the coffee table and sustained a black eye. The black eye was the result of misadventure, and there was no evidence that there was a pervasive problem with Ms Rees subjecting any of the children to excessive physical discipline.
80.I need to consider whether there is any risk of [Y] being a perpetrator of abuse to [Z], and about the capacity of each parent to protect [Z] from [Y] if need be.
81.Dr S expressed the view in her report (despite what Ms Dent said to her about being sceptical as to whether anything untoward had happened between [Y] and [Z] in October 2011) that both parents were aware of the potential risk posed by [Y]’s sexualised behaviour. She was of the view that there did not appear to be a high level of risk of [Z] being assaulted by [Y], and she re-iterated this during cross-examination.
82.I am satisfied after hearing Ms Dent give evidence that she now accepts that “something happened” in October 2011 and that there is a potential for [Y] to behave in a sexually inappropriate way, and I am satisfied that she is capable of protecting [Z] from any risk of harm posed by [Y]. Ms Dent does not favour [Y] over [Z] and I am certain that she would be devastated if any harm came to [Z].
83.My greatest concern is that Ms Rees may overreact again in the future to any perceived issue between [Y] and [Z]. She overreacted in October 2011 which resulted in [Z] at the age of 5 being subjected to an unnecessary and invasive medical examination and [Y] being excluded from Ms Rees’s home for a week. I hope that Ms Rees will reflect on what happened and whether her response was appropriate but no orders I make can protect against this happening again in the future.
84.There is a risk that if Ms Dent and Ms Rees come into contact with each other family violence may occur. It has occurred in the past, and I am satisfied that Ms Rees can be quite confrontational in her dealings with Ms Dent.
85.Neither of the parents accepts responsibility for the conflict between them and there is not much cause for optimism that things will improve in the future.
86.Orders which ensure that the children are as far as possible changed over without the need for both parents to be present (changeovers at school for example) are to be preferred.
87.The first additional considerations in s.60CC (3) is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
88.Ms Rees maintained that all the children “wanted 50/50” but she was not able to back this up with any specific evidence. When asked how she knew that [Z] wanted 50/50 she said “because she tells me she wants to see myself and Ms Dent every day”.
89.[Z] said something similar to Dr S namely that she wished to continue to live with both parents, but this cannot be deemed an endorsement of a week about regime.
90.In regard to [Y], Dr S said as follows:
[Y] expressed a clear preference for living at home with [Ms Dent] saying “we know each other a lot”, and “she copes with me.” [Y] also spoke about having more friends to play with when he stayed at [Ms Dent’s] house. [Y] did not identify any negative issues regarding anything with [Ms Rees], but stated that he found the house “scary and hard.”[3]
[3] Family Report paragraph 81
91.Dr S said that subpoenaed notes from [Y]’s paediatrician Dr L indicated that [Y] had also told Dr L that he wanted to live primarily with Ms Dent.
92.The “biggest wish” [X] expressed to Dr S was to spend time away from [Y] every now and again. He identified positives about both parents homes namely more things to do and more outings with Ms Rees and a more relaxed atmosphere with Ms Dent.
93.Dr S said that:
When asked about his wishes and wants [X] stated the following, he would like to ‘spend a bit of time away from [Y]”, have time with both parents, to have less rush [which is associated with the almost daily changeovers between the parents] and to share weekends with both parents.[4]
[4] Family Report paragraph 93
94.[Y] expressed a clear view to Dr S and [X] and [Z] more diffuse views. I will take the children’s views into account, but they are children and children do not necessarily have the maturity to judge what is best for them.
95.The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including any grandparents or other relative of the children.
96.Both parents claimed to have a good relationship with the children and Dr S’s observations suggest that this is indeed the case.
97.Dr S said that the children were quiet and calm when interacting with Ms Dent and that Ms Dent did not appear to favour any of the children. She said that the session with Ms Rees was noisy and interactive and there was much laughter and enjoyment.
98.Dr S was asked during cross-examination whether she had a view about the children’s primary attachments and said that in her opinion [X] and [Z] were primarily attached to Ms Rees and [Y] was primarily attached to Ms Dent. She said however that all of the children had a strong attachment to both parents, and she made the following comment about [Y] and Ms Rees:
[Y] identified that when he was staying at [Ms Dent’s], “Ms Rees rings me always”. Indeed, during my interview with [Ms Rees], [Y] rang [Ms Rees] for support.[5]
[5] Family Report paragraph 83
99.The children have a sibling bond and while both [X] and [Z] find [Y] troublesome on occasions, neither expressed a wish to live completely separately from him.
100.Dr S noted that [Z] did not show any signs of fear in regard to [Y] and frequently interacted with him verbally and physically. She expressed the view that:
These children have been raised together all their lives, and unless the risk of harm is probable, it would be best for them to continue to live together.[6]
[6] Family Report paragraph 109
101.I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
102.I am satisfied that Ms Dent has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and Ms Rees. Dr S noted that Ms Dent
....spoke positively about the respondent mother’s relationship with the subject children....[7]
[7] Family Report paragraph 22
103.During cross-examination Ms Dent readily conceded that Ms Rees had a loving relationship with [X] and [Z] and that she loved [Y].
104.There was no evidence that Ms Rees denigrated Ms Dent to any of the children or consciously sought to undermine their relationship with her, but I am less confident about Ms Rees’s willingness and ability to facilitate and encourage a close and continuing relationship between all the children and the other parent.
105.Since separation Ms Rees has been quite fixated on the issue of ‘maternal rights’ and Dr S said that:
[Ms Rees] seemed to be in doubt about whether it is best for the three children to live together.[8]
[8] Family Report paragraph 17
106.
When asked during cross-examination if she felt like [Y]’s mother
Ms Rees responded “sometimes, no”. Referring to [X] she said that “he’s a smart boy, he knows he’s only got one mum”. Later she referred to [X] as “her” son and when asked if he was not also
Ms Dent’s son she replied “not to the full extent, no”.
107.Dr S observed during cross-examination that despite Ms Rees’s belief about the significance of the biological connection Ms Rees treated all the children the same on the day of the report interviews and said that in her opinion how Ms Rees acted rather than how she thought was the relevant issue.
108.This may be so, but Ms Rees has done a number of things since separation which demonstrate that she not only thinks about the children differently but acts on those thoughts.
109.In April 2011 when she left the home in [C] Ms Rees asked the post office to redirect her mail and that of [X] and [Z] (but not [Y]) to her new address.
110.Later in 2011, in order to change an arrangement Ms Dent had made for [X] to attend an interview at his high school at a particular time to a time which suited her, she took [X]’s birth certificate to the school and insisted that as she was named on the birth certificate and Ms Dent was not that her wishes should prevail.
111.Ms Rees is opposed to an order that both parents be named on each child’s birth certificate.
112.
I do consider that there is a risk that if Ms Rees struggles to cope with [Y]’s behaviour or to make appropriate arrangements for his care while she is at work she might all too easily decide to leave his care to
Ms Dent and focus on the children she considers more her own, which could result in an enforced separation of the children contrary to what Dr S considered was in their best interests.
113.This may well have been one of the concerns which underlay the Independent Children’s Lawyers proposal that all the children live primarily with Ms Dent and spend fairly limited time with Ms Rees.
114.I must consider likely effect of any change in the children’s circumstances including the likely effect of any separation from a parent, any other child, or other person with whom he or she has been living.
115.Change is inevitable for the children as there was general agreement that the current regime was inappropriate. Dr S put it this way:
The negatives of the current situation are considerable. Both parents have to have contact with each other on an almost daily basis which in turn leads to conflict on some occasions which is then witnessed by all three children. The children do not appear to have any “down time”. Each afternoon they have various activities, which are normal for children of this day and age, and then after dinner and so forth they are whisked off into the night to [Ms Rees’s] home before they can settle and relax.[9]
[9] Family Report paragraph 99
116.Dr S remarked that the current regime was particularly unsuitable for [X], who needed time to relax and do his homework, and for [Y], who requires consistency and for whom witnessing conflict is likely to have a particularly deleterious effect.
117.
Dr S suggested that a possible alternative was that the children spend an almost equal number of nights with each parent each fortnight, being 5(N)-2(T)-3(N)-4(T) for [Y] and 4(N)-3(T)-2(N)-5(T) for [X] and [Z]. This would have resulted in [Y] spending 8 nights with
Ms Dent and 6 with Ms Rees and [X] and [Z] spending 8 nights per fortnight with Ms Rees and 6 nights per fortnight with Ms Dent. It would have given [X] 2 nights per fortnight when he lived in a different household to [Y] but would otherwise keep the children together.
118.There are some attractions to this proposal, which achieves something close to equal time but with the children separated from each parent for shorter rather than longer periods, but neither party nor the Independent Children’s Lawyer supported it.
119.The three remaining proposals all have both potential benefits and potential detriments for the children.
120.The benefits inherent in Ms Dent’s proposal are that the children would live primarily with the parent who has a better plan to care for them when she is at work, and it would best suit [Y] who would prefer to live primarily with Ms Dent, the parent who has the proven track record of being able to care for him in the good times and bad.
121.The negatives however are that [X] and [Z], who are primarily bonded to Ms Rees, would spend significantly less time with her than they do at present, change which they might find difficult to accept and understand. Also if Mrs D found that the new regime was simply too much for her then Ms Dent like Ms Rees would have to cast around for other people, people not familiar with the children and with [Y]’s problems, to help her.
122.
The Independent Children’s Lawyer’s proposal would see the children living with Ms Dent and spending only alternate weekends with
Ms Rees and perhaps a few hours on the Wednesday afternoon in the off week.
123.[Y] would probably cope well enough with this and the benefits of it are that it further reduces the risk of [Y] being not properly cared for if Ms Rees struggles to find alternative carers and it reduces the risk of the children ending up substantially separated, but it would require an even greater commitment of time by Mrs D and create an even greater difficulty for Ms Dent (and possibly the children) if Mrs D ceased to be available.
124.In addition the proposed four hours after school in the off week might not occur if Ms Rees was unable to organise her shifts to take advantage of it, and Dr S in any event did not favour this part of the proposal as it would require a handover between the parents which could expose the children to conflict on a school night.
125.This would result in all three children having their time with Ms Rees reduced to three/four nights and two/three days per fortnight. The children are very attached to Ms Rees and enjoy her company and might not easily adjust to this outcome. It would not fit with [X] and [Z]’s views and Dr S did not support such a dramatic reduction in the children’s time with Ms Rees. She commented that the children would miss Ms Rees a lot and that she would not recommend this outcome unless there was a significant risk of harm to the children if they spent longer time with Ms Rees.
126.Ms Rees proposed week about. The advantages of this are that the number of changeovers for the children between the parties would be reduced and the call on Mrs D’s time would be reduced creating less risk of her help evaporating. It would ensure that the children spent a large amount of time with each parent and it would be a comfortable fit with the views of [X] and [Z] save that it would not give [X] any time away from [Y].
127.
[X] and even for [Z], who has a good bond with both parents and is able to ‘count sleeps’ and understand time might adjust to this but it is unlikely that [Y] would cope with it and perhaps more importantly
Ms Rees might struggle to cope with [Y].
128.Dr S considered that week about would not be appropriate. She said as follows:
Week about would not be useful for this family as there is limited communication between the parents and neither parent could manage the hours on their own. Furthermore this would result in the children not seeing each parent for 7 days which is a long period of time for children who are currently seeing each parent on a daily basis.[10]
[10] Family Report paragraph 116
129.Ms Rees’s counsel challenged Dr S’s opinion that the parents were not able to communicate well enough for week about to work. Dr S said that what she meant by this was that the parties did not have the kind of co-operative relationship which would ensure that each parent informed the other about what had happened during their week, and I certainly consider that this is a soundly based opinion. The risk is high that a parallel parenting situation would come into existence and given [Y]’s special needs this would be a very detrimental result.
130.The other issue is whether Ms Rees would be able to make appropriate care arrangements for the children while she was working. Ms Rees said that if week about was ordered she intended to work an early morning shift in the week the children were with her which would mean that she would be gone long before the children woke up. She expressed confidence that she would be able to make appropriate arrangements for the children’s care but was able to name only one person who might assist her and she did not call that person to give evidence.
131.I am prepared to accept that Ms Rees would do her utmost to ensure that the children were properly cared for in the mornings, because I am convinced that she would not willingly see any harm come to them, but she might well face difficulties with making appropriate arrangements and if [Y] acted up with a carer or the carer did not meet [Y]’s needs the situation could become fraught.
132.There is considerable risk that [Y] might not cope with changing arrangements for his care if this was the outcome and I am concerned that if [Y] became too much for Ms Rees then she might relinquish his care to Ms Dent thus substantially separating the siblings.
133.I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
134.The parents live about 20 minutes drive of each other and within reasonable proximity of the children’s schools and this is not a relevant consideration.
135.I must consider the capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.
136.Ms Dent described in considerable detail the caring role she had always had with all three children, including preparing their meals, taking them to extra-curricular activities and dealing with their particular issues for example [X]’s weight and [Y]’s special needs.
137.She was not challenged about this evidence and I accept that Ms Dent is a capable parent, but while she continues to work night shift she cannot care for the children on her own, and her plans for the future involve her mother taking on a substantial role with the children.
138.Ms D would be a capable alternative carer for all three children. She has cared for them regularly since they were very young and she knows them well and is under no illusions about [Y].
139.
Ms Rees made no complaint about Mrs D’s capacity to care for the children; her only complaint was that it was unreasonable for Mrs D to be allowed to assume a significant role with the children when
Ms Rees, their mother, was willing to carry out that role.
140.The mere fact that Ms Dent’s plan would involve a non-parent rather than Ms Rees having a substantial role in the children’s care is not a strike against it, but my concern is that Mrs D is 67 and she has some health problems including emphysema, arthritis and eczema although they were not currently troubling her.
141.Ms Dent’s proposal, and even more so the Independent Children’s proposal, would require a much more substantial commitment of time by Mrs D than has ever been the case in the past, including sleeping up to five nights out of each seven nights at Ms Dent’s home.
142.If Mrs D could not sustain the new role required of her Ms Dent would find herself in no different a position to Ms Rees in terms of needing to arrange for third parties who were not familiar with the children to care for them, unless of course she changed her hours or gave up her job.
143.Ms Dent told Dr S in May 2012 that she would not consider changing her hours and she did not suggest in her affidavit filed on 24 September 2012 that she might change her hours or change her job.
144.She gave some answers during cross-examination which suggested that there were different options available for her at work but given the other evidence I do not consider that it is open to me find that it is likely that Ms Dent will change her hours or change jobs in the future.
145.It was put to Ms Dent that she had suffered from depression in the past. Ms Dent denied that this was the case and there was no evidence that Ms Dent had any mental health issues.
146.I am satisfied that Ms Dent has the capacity to provide for the children’s emotional needs and particularly note that she understands that the current arrangement of the children moving between households ever day is difficult for them and has long wished to change it.
147.When the parties lived together Ms Rees had a different role in the household than Ms Dent but I am satisfied that she has the capacity to provide for the children’s day to day needs in terms of feeding and caring for them and that she is capable of providing for their intellectual needs in terms of facilitating their school attendance and encouraging them in achieving at school.
148.However Ms Rees like Ms Dent will need help with the care of the children if they live with her as she proposed or even as Ms Dent or the Independent Children’s Lawyer proposed.
149.
Ms Rees does not have family members who can assist her and her plans to provide care for the children were not terribly clear. She told Dr S in May 2012 that her friend Ms L would help and Ms L accompanied Ms Rees to the family report interviews. Ms L was not mentioned at the hearing however and Ms Rees said that a lady called Ms T would help her. Ms T’s full name had to be dragged out of
Ms Rees and when questioned she was able to provide little information about Ms T.
150.
I am left with a feeling of unease about whether Ms Rees will easily be able to arrange appropriate care for all three children while she is at work. I am absolutely certain that she believes she can manage it and absolutely certain that she would not deliberately expose the children to harm, and [X] and [Z] are probably resilient enough to cope with whatever eventuates, but there is a real risk that [Y] might suffer if
Ms Rees is being over-confident and finds it difficult to obtain assistance or has to engage a variety of carers.
151.Ms Rees did not give any indication that she had thought about what she would do if [Y] had to be picked up early from school or could not go to school because of suspension. On one or two occasions in the past Ms Rees has asked Mrs D to help when [Z] has been sick.
152.Mrs D is not hostile to Ms Rees and during cross-examination said that Ms Rees was a good mother but just had a different way of doing things. Mrs D commented that Ms Rees was a good person and that she did not dislike her, so Ms Rees calling on Mrs D is perhaps an option, but whether Mrs D could cope with both Ms Dent and Ms Rees asking her for help I cannot be certain.
153.Ms Rees had some mental health issues around the time of the breakup of the relationship. In December 2009 she was suicidal and sought emergency treatment and was referred to the [omitted] Community Mental Health Team. She saw a psychologist between July 2010 and May 2011 for “depression, relationships and anger management”[11] and she attended six sessions of anger management counselling with Relationships Australia between March and October 2010.
[11] Family Report paragraph 53
154.Dr S did not consider Ms Rees’s mental health a current issue of concern. She said as follows however:
[Ms Rees] has a history of involvement with the mental health services; however this was in response to the relationship breakdown between herself and [Ms Dent]. [Ms Rees] received a short term intervention. There appears to be minimal risk factors associated with her past mental health history.[12]
[12] Family Report paragraph 114
155.I have some concerns about Ms Rees’s capacity to provide for the children’s emotional needs. Her actions following the incident with [Y] in her home in October 2011 were not at all sensitive of either [Z] or [Y], and Ms Rees can see nothing wrong with the way she handled that issue.
156.Ms Rees is also either unwilling to acknowledge or unable to see that while the current arrangement suits her, it does not suit the children, and her reason for seeking to change it is not anything to do with the children but is because of her own wish to be able to work different shifts so that she can take part in school and extra-curricular activities.
157.In addition Ms Rees’s week about proposal does not cater for [X]’s wish to spend some time away from [Y] and Ms Rees did not explain why she had decided to ignore that issue.
158.It is very important however to keep concerns about Ms Rees’s parenting capacity in perspective. The three children have spent time with Ms Rees on alternate weekends and on almost every school night for 18 months, and there was no suggestion that they had been poorly cared for overall. The major issue is whether Ms Rees will be able to cope when she needs to get outside help.
159.I must have regard to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
160.[Y] has special needs. He requires sensitive handling and the availability of someone to collect him from school on occasions when the school has had enough of him. Dr S said that it was important that anyone caring for [Y] was fully briefed on his difficulties.
161.As a result of the way the parents organised their working lives both before and after separation, Ms Rees has never had to cope with [Y]’s problems to their full extent on school days, and there was no sign that she had thought about how she might deal with them if [Y] lived in a week about arrangement.
162.I must have regard to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
163.Ms Dent has shown a good attitude to the children and the responsibilities of parenthood since separation. She has continued to play a caring and nurturing role in their lives. She has never shied away from providing [Y] with love and support despite the difficulties which his behaviour has caused for her and the other children.
164.Ms Rees has also shown a good attitude to the children and the responsibilities of parenthood in that she has been keen to assume her parental duties and has provided care for them since separation, but my concern about Ms Rees is that it was very clear when she gave evidence that she makes a distinction between [X] and [Z] who are her biological children and [Y] who is not, despite the fact that during the parties relationship they agreed to have children and agreed that the children would be brought up together.
165.I must have regard to any family violence involving the children or a member of the children’s family.
166.For the majority of their relationship there was no violence between Ms Dent and Ms Rees, but Ms Rees was physically violent to Ms Dent toward the end of the relationship.
167.Ms Dent gave evidence that on the day of a football grand final in September 2009 and in the presence of all three children Ms Rees grabbed her around the neck so forcefully that she had trouble breathing. [Y] was behind Ms Rees trying to hit her while [X] tried to protect [Z].
168.On Christmas night 2009 Ms Rees again grabbed Ms Dent around the neck and squeezed her throat. [Y] advanced on Ms Rees holding an aluminium bar over his head. Ms Dent managed to free herself and called the police. After the incident she was vomiting, had difficulty breathing and collapsed in the toilet.
169.The police found Ms Rees next day and due to her mental state took her to hospital.
170.Ms Rees did not deny that these events had occurred.
171.Ms Dent alleged that about two months after the parties ceased living under one roof Ms Rees came to the house demanding the children. She arrived with a screech of tyres driving on the wrong side of the road and demanded that the children get into her car. Ms Dent was holding [Z] and Ms Rees grabbed hold of her. Ms Dent let [Z] go. [Y] was punching Ms Rees in the bottom. Ms Dent took the car keys from the car to prevent Ms Rees leaving with the children given the state she was in and the police were called. Police suggested that Ms Rees get medical help. Again Ms Rees did not deny that these events occurred.
172.
Ms Dent only recently applied for an Apprehended Domestic Violence Order (ADVO) against Ms Rees and complained to Dr S about
Ms Rees
Entering the family home and not leaving when requested to do so, raising her fist and [yelling] loudly and abusively at [Ms Dent] during changeovers.[13]
[13] Family Report paragraph 28
173.
Ms Dent gave evidence in more detail about these issues in her affidavit and I accept her evidence about Ms Rees’s recent behaviour. It is credible because Ms Dent was generally a witness of credit and there was no dispute that Ms Rees had behaved aggressively toward Ms Dent in the past so the potential for her to behave in the way
Ms Dent described is there, and Dr S felt that Ms Rees was a person who could be intimidating if she wanted to be. I accept that Ms Rees’s behaviour on those recent occasions caused Ms Dent to be fearful.
174.This behaviour also involves Ms Rees committing acts of family violence and I consider that there is a potential for family violence to occur between the parties if they come into contact with each other in the future. This is not a case in which I can be reasonably confident that once orders are made the relationship between the parties is automatically going to improve and the heat go out of the matter.
175.There is an interim Apprehended Domestic Violence Order in place for the protection of Ms Dent from Ms Rees at present, but that matter was due to return to court shortly after the hearing before me and whether any ADVO is currently in place between the parties is unknown to me.
176.
On 11 October 2011 an ADVO was made for the protection of
Ms Rees, [Y] and [Z] from Ms Dent’s father Mr D. This ADVO expired on 11 October 2012.
177.Ms Rees applied for this order alleging that Mr D had threatened her at a changeover. The order provided that Mr D was not to have any contact with the children within 12 hours of consuming alcohol.
178.I must consider whether it is preferable to make the order least likely to lead to further proceedings.
179.I have considerable concern that these parties might come back to court no matter what orders I make.
180.I have real reservations about whether Ms Rees’s heart is in her proposal that all three children live with her week-about, and consider that there is a real possibility no matter what orders are made that if [Y] becomes too much for Ms Rees she might send him to Ms Dent and decline to exercise her time with him.
181.If that occurred Ms Dent might bring the matter back to court, as she is strongly of the view that the children should largely be brought up together.
182.The orders sought by the Independent Children’s Lawyer are the orders least likely to result in further proceedings as a result of this issue. However I have reservations about whether the orders proposed by the Independent Children’s Lawyer would work for [X] and [Z] in particular and this could also result in the matter coming back to court.
183.Finally each party sought an order for equal shared parental responsibility. For reasons to be given shortly I intend to make it, but the risk of the parties being unable to agree on one or more major long term issues about the children is very high and this also could result in further court proceedings.
184.I must consider any other relevant fact or circumstance.
185.The parents have a poor relationship and no demonstrated capacity to co-parent the children peaceably. I will refer to this again when discussing the issue of allocation of parental responsibility, but it is important to record that I am satisfied that Ms Rees does tend to behave aggressively when she considers that Ms Dent is attempting to by-pass her or is not complying with the orders. The incident described in Ms Dent’s affidavit which occurred on 15 March 2012 is an example of that.
186.However it is not possible to sheet blame for the poor relationship between the parties home exclusively to Ms Rees. Ms Rees complained that Ms Dent did not always tell her about activities and appointments for the children, an inflammatory action in the circumstances of this case and Ms Dent conceded that this was correct.
187.Ms Rees also complained that Ms Dent chose to raise parenting matters with her at changeover leading to conflict and there is substance in this complaint.
188.Ms Rees completed a parenting after separation course not long before the hearing, but I have no confidence that this will result in a dramatic improvement in the parties’ relationship. Neither party showed any sign of accepting responsibility for their contribution to the conflict and there was no sign that their attitudes towards each other were in the process of changing.
Parental Responsibility
189.Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them, absent a finding that one of the parents has engaged in abuse of the children or family violence.
190.Ms Rees has committed some acts of family violence and this rebuts the presumption, but I can still make an order for equal shared parental responsibility if I choose to and both parents asked me to do so and the Independent Children’s Lawyer supported this.
191.The parents may consider this fair, but I have considerable reservations about whether it will work in the children’s best interests.
192.An order for equal shared parental responsibility requires the parents to comply with s.65DAC of the Family Law Act which provides as follows:
(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.
193.Ms Dent and Ms Rees have no post-separation track record of being able to discuss major long term issues and reach agreement.
194.They fight with each other leading to ADVO applications if they try to discuss matters face to face.
195.They required court assistance in 2012 to resolve the issue of whether Ms Dent should be able to have the children for a few extra days in the mid year school holidays to allow her to make full use of a trip to Cairns for her brother’s wedding.
196.They each initially enrolled [Z] at different primary schools for the start of school in 2012, although Ms Rees eventually backed down.
197.They squabbled about the time for an interview for [X] at [M] School, and Ms Rees prevailed by producing [X]’s birth certificate on which only she is named as a parent.
198.[Y]’s precocious sexual interests have concerned for the parties for some time. During the hearing Ms Dent revealed that she had recently enrolled [Y] in a program designed to assist with this issue. Ms Rees expressed some resentment that Ms Dent had not told her about this earlier and maintained that she was the one who suggested the program in the first place and that Ms Dent had seemed to fob her off.
199.The parties’ inability to communicate could potentially affect the children adversely. This is particularly so for [Y] but [X] has also needed to attend counselling in the past and has issues with his weight, so an inability by the parties to discuss and reach agreement if discussions are required could also affect him.
200.I am reluctant to refuse to make an order for equal shared parental responsibility when both parties seek it and when both are involved and generally competent parents. However unless the parties each closely study s.65DAC and start consulting with each other about major long term issues concerning health and education (for example medical decisions for [Y] and the choice of a school for him next year should a change be required) they are going to quickly find themselves back in court.
Conclusion
201.As I intend to make an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act to consider whether the children spending equal time, or alternatively substantial and significant time, with each parent would be in their best interests and reasonably practicable and if so, to consider making an order of that kind.
202.Ms Rees sought equal time, in the form of a week about arrangement.
203.Dr S did not favour week about and for reasons set out earlier in the judgment I am satisfied that week about has too many potential disadvantages for the children.
204.The ‘almost equal time’ arrangement suggested by Dr S has more to recommend it but it was not supported by either of the parties or by the Independent Children’s Lawyer and it is an order which Ms Rees would find difficult to accommodate given her wishes about the shifts she prefers to work in the future.
205.That leaves for consideration the proposals put forward by Ms Dent and the Independent Children’s Lawyer. I am not of course bound by the proposals put to me but no other possibilities spring to mind as an alternative solution to the problem presented by the case.
206.I preface consideration of these proposals by saying that I am satisfied that provided that appropriate arrangements can be made for their care while the parents are at work it would both be in the children’s best interests and be reasonably practicable for them to spend significant and substantial time with Ms Rees as well as Ms Dent.
207.Both parents are generally good parents, they love and are loved by the children and they each have much to offer them. [Y] expressed a preference for living primarily with Ms Dent but he enjoys spending time with Ms Rees. Ms Rees has shown a propensity to behave in an aggressive way toward Ms Dent since separation but this is very much a personal issue and I do not consider that the children are at risk of being subjected to or exposed to family violence or abuse in Ms Rees’s separate care.
208.The parents live within reasonable proximity of each other and of the children’s schools and while their capacity to communicate is poor I do not consider that this would not prevent substantial and significant time operating satisfactorily.
209.The proposal by the Independent Children’s Lawyer would see [Y] spending each alternate weekend from Friday until Monday morning with Ms Rees and [X] and [Z] spending time with her each alternate weekend from Thursday until Monday. The Independent Children’s Lawyer also proposed that the children spend a few hours with Ms Rees on the alternate Wednesday but this is impractical and in my view unlikely to occur even if ordered.
210.Even if time on the alternate Wednesday did occur this proposal would not result in [Y] spending significant time with Ms Rees, as he would be spending barely any time with her on weekdays, and 3 nights/2 days out of 14 plus a few hours each alternate week does not rate as substantial time. This arrangement does not even scrape in at the far end of the spectrum as substantial and significant time for [X] and [Z].
211.The positives of this proposal are that while Mrs D continues to be available to help Ms Dent I can have confidence that [Y] will be properly looked after on every school morning bar one each fortnight and [X] and [Z] on every school morning bar two each fortnight.
212.It would be the optimum outcome for [Y] in terms of physical care and would contain the least risk that the children might be separated.
213.The negatives of this proposal however are that it results in a massive reduction in the time the children spend with Ms Rees and I have considerable misgivings about whether [X] and [Z] or even [Y] would cope well with this.
214.I can understand why the Independent Children’s Lawyer put forward this proposal. She is clearly concerned about the unsatisfactory nature of Ms Rees’s proposals to care for the children in the mornings and about the likely impact on [Y] of unsatisfactory arrangements. I am not persuaded however that it is in [X] and [Z]’s best interests or even [Y]’s best interests to spend as little time as this with Ms Rees.
215.Ms Dent’s proposal (if the requirement that Ms Rees be personally available on the alternate Wednesday is removed) would see [X] and [Z] spending six nights per fortnight with Ms Rees and [Y] spending four nights per fortnight with her. Time for [X] and [Z] would then be within the spectrum of substantial and significant time. Although for [Y] it would not quite get there.
216.The positives of this proposal are that it reduces the number of nights on which Ms Dent would need to call on Mrs D for help, which might make that situation more workable, although if Mrs D became ill or found the commitment too much Ms Dent could still face difficulties.
217.It would leave the children subject to unknown care arrangements on the one/three school mornings each fortnight and perhaps on other occasions if they were sick or unable to attend school, and this is not ideal because while I am convinced that Ms Rees would not knowingly place any of the children at risk of harm [Y] might struggle to cope if Ms Rees found it difficult to arrange for him to be collected if he had problems at school on the Friday or if there were changeable morning care arrangements with adults who found [Y] difficult to manage.
218.However anything that I do in this matter is a step into the unknown and there is a risk that any orders I make might not work leading the parties back to court, a most regrettable situation as the current proceedings have been in the court system for more than two years.
219.For the following reasons I consider that the proposal put forward by Ms Dent is in broad general terms, out of the range of proposals, the one which should be adopted and the one most likely to be in the children’s best interests.
220.As a result of [Y]’s special needs the arrangements which would be ideal for [Y] are different from the arrangements which would be ideal for [X] and [Z], and if the goal of keeping the siblings together is prioritised then the outcome has to be that [X] and [Z] spend slightly less of their time with Ms Rees than might have been the case had [Y] not needed to spend more of his time with Ms Dent.
221.Too great a reduction of their time with her is not desirable however and neither is too great a separation of the children from each other. Ms Rees loves the children and I am sure keenly wants to do the right thing by them and balancing everything as best I can I consider that Ms Rees should be given the opportunity to prove that she can make the care arrangements required so that Ms Dent’s proposal works for the children.
222.I intend to order that the current arrangements continue until the end of Term 4 2012. Ms Rees will thus have until the commencement of the first school term in 2013 to decide on the shifts she will work in the future and to make arrangements for the care of the children whilst she is at work pursuant to the new arrangements.
223.
Turning to the precise order to be made, Ms Dent proposed that
Ms Rees’s time with [X] and [Z] on Wednesday overnight to Thursday only occur if Ms Rees gave her notice of wishing to spend this time and confirmation that she would be personally available to care for the children during that time. I do not intend to make this order because the proposed restriction does not make sense for two reasons.
224.First, it should be relatively easy for Ms Rees to make alternative care arrangements for [X] and [Z] if she is not available either early in the morning or until later in the evening. Second, it would be illogical, as no such restriction was sought in relation to Ms Rees’s time with any of the children overnight Thursday until Friday.
225.Ms Dent sought an order that changeovers which did not take place at school take place at [omitted] Shopping Centre, while Ms Rees proposed that they occur at the parties residences.
226.Given the history of conflict between the parents and the fact that there is no reason to believe that it is likely to end (their personalities have not changed and Ms Rees’s attitude may not be improved by the orders I make) I am concerned about ordering that changeovers occur at the parties homes. However the number of occasions on which changeovers have to occur directly between the parties will be greatly reduced by the new orders and the parties have been doing endless changeovers at their homes since April 2011 and only some have reportedly ended in conflict. Further, the parties both sought an order for equal shared parental responsibility, and if the matter is not to speedily come back to court they are going to have to learn to get along better somehow.
227.It will be easier for the children if changeovers which do not take place at school take place at the parties’ homes and therefore with some misgivings I intend to make this order.
228.Ms Rees sought an order that both parties be restrained from taking the children interstate without obtaining the other parents permission before travelling. There is no justification for such an order and the matter was not addressed in submissions.
229.Ms Rees sought an order that Mr D be restrained from consuming alcohol within 12 hours of spending time with the children. This is a condition of the recently expired ADVO between Ms Rees and Mr D which also protected the children, but the ADVO was obtained after an incident between Mr D and Ms Rees not Mr D and the children. There was no evidence that Mr D posed a risk to the children and moreover he is not a party to the proceedings and I do not intend to make this order.
230.Ms Rees sought an order that [Z] commence attending [M] School rather than [G] School as [E] is closer to her home.
231.Ms Dent opposed the order. One reason she gave was that [X] had previously attended [G] and [Y] was currently enrolled there, but [X]’s past enrolment is not relevant and [Y] attends a special school at [K] for part of the school week and his enrolment may need to change so this is not a compelling reason for [Z] to remain at [G].
232.A more compelling reason for not making the change is that [G] is closer to Ms Dent’s home than [E] and [Z] will be spending more time with Ms Dent. It will be Mrs D rather than Ms Rees who is required to get [Z] to school (from Ms Dent’s home) on the majority of school mornings, and it is also Mrs D who often collects the children if they need to be collected earlier than the conclusion of school (eg if they become ill or there are behavioural issues for [Y]) or cannot go to school at all and she then takes them to Ms Dent’s home in the afternoon.
233.In addition Ms Rees is living in rented accommodation, and her accommodation could change. She could if she chose give consideration to moving closer to [Z]’s current school.
234.I therefore do not intend to order that [Z]’s school be changed because there is no demonstrable benefit to [Z] in making this change.
The birth certificate issue
235.Ms Dent and Ms Rees decided while they were in a committed de facto relationship to have children, and each of them underwent an artificial conception procedure, which resulted in the birth [X], [Y] and [Z].
236.Only one mother is registered on the birth certificate of each child, but the option of including two mothers was not open in New South Wales when the children were born. The parties gave each of the children the surname of Dent-Rees.
237.The children have always lived together and consider themselves siblings, as indeed they are. They each call both parents Mum or Mummy.
238.In 2008 legislation was introduced in New South Wales which permits two parents of the same sex to both be named on a child’s birth certificate. The legislation operates retrospectively, and Ms Dent would like the birth certificates of all three children to be amended accordingly. She is entitled to make this application notwithstanding that her relationship with Ms Rees has broken down.[14]
[14] AA v Registrar of Births Deaths and Marriages and BB[2011]NSWDC 100
239.Ms Rees opposed the application and her counsel submitted that I did not have the power to make an order sought by Ms Dent.
240.I do not accept this submission.
241.Pursuant to Clause 17(14)(a) of Part Four of Schedule 3 of the Birth Deaths and Marriages Registration Act (NSW) a women who is presumed to be a parent of a child can apply to the Registrar to have her name added to the birth certificate.
242.The Registrar cannot make that addition unless the birth mother consents or there is a court order.
243.S.19(2) of the Births, Deaths and Marriages Registration Act 1995 provides that:
If any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child’s parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register.
244.Pursuant to s.60H of the Family Law Act Ms Dent and Ms Rees are the children’s parents and therefore this court has the power to make the order sought by Ms Dent.
245.S.19(2) provides that a court may make the order and the issue then is whether in the exercise of my discretion I should make the order.
246.Ms Dent argued that the change should be made because it reflected reality and because it would prevent Ms Rees usurping to herself the right to make decisions about [X] & [Z] by producing their birth certificates.
247.Ms Rees’s reason for opposing the change to the birth certificates came down to her apparently recently formed belief that the children’s biological heritage is of primary importance. During cross-examination she agreed that all of the children saw both Ms Dent and Ms Rees as their parents but said as follows:
Q: Does [X] have a right to have a birth certificate with both parents on it?
A: Biologically yes
Q: You don’t want your name on [Y]’s birth certificate?
A:I see myself as a parent to him. (Thinks for a long time). No, because the children know who their biological mother’s are and I think it will confuse them more.
It’s my maternal right if I don’t want Ms Dent to be on [X] and [Z]’s birth certificates].
248. Ms Rees also argued that it would be confusing for the children if their birth certificates were changed. I suggested to Ms Rees that far from the children finding it confusing to have each parent named on their birth certificate they might actually find that it made perfect sense because they have a hyphenated surname containing each of the parents’ names. Ms Rees agreed that this might be the case.
249. For a number of reasons I consider that I should make the order sought by Ms Dent.
250. First, pursuant to the law in force in Australia Ms Dent and Ms Rees are the children’s parents, and birth certificates are public records and should contain accurate and complete information about children’s parentage unless there is some unusual compelling reason for this not to occur.
251. Second, the parties have agreed to an order for equal shared parental responsibility and it is important that the existence of both as parents of all three children is recognised in official documents. This is particularly important given that Ms Rees deliberately used [X]’s birth certificate and the absence of Ms Dent’s name on it to gain a point with [M] School in 2011.
252. In the case of AA & BB[15] earlier referred to Judge Walmsley SC referred to the second reading speech for the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 and said as follows:
A key motivation for the government in enacting these new parenting presumptions is to ensure that lesbian same-sex parents can take parental responsibility for their children with respect to their health, education and general well-being in the same way as we expect all other parents to. Accordingly, the bill makes consequential amendments to the Births, Deaths and Marriages Registration Act 1995 to ensure that both parents can be noted on the child's birth certificate. This is an important measure, as it will enable both parents of a child conceived as a result of a fertilisation procedure provided to those in the lesbian same-sex de facto relationship to hold themselves out as the child's parents in circumstances where evidence of the parent-child relationship is demanded by our state's public institutions, such as hospitals and schools. It will also enable same-sex parents to engage with other authorities, such as sporting registration bodies, so often encountered by parents in the course of bringing up children.
[15] AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100
253.Third, while I am deciding this issue pursuant to state legislation about the registration of births I am deciding it in the context of family law proceedings concerning children, and although the children’s best interests are not the paramount consideration I consider that they are relevant consideration. It is in the children’s best interests that the possibility of conflict occurring between the parents over which of them has the right to make decisions for the children is reduced, and changing the birth certificates will in some small way help to do that.
254.Finally, I do not accept that changing the birth certificates will result in confusion for the children. On the contrary, it will make it clear to them and to all who see the birth certificates why the children have the hyphenated surname of Dent-Rees.
255.I therefore intend to make, and consider that it is the children’s best interests that I make, the order proposed by Ms Dent.
256.I acknowledge Ms Rees does not wish to be named on [Y]’s birth certificate but that is not a good enough reason not to make the order.
257.As a result of decisions she freely made during happier times Ms Rees is [Y]’s parent pursuant to s.60H of the Family Law Act. To recognise this on [Y]’s birth certificate is not to ride roughshod over Ms Rees’s rights, rather it is to give [Y] the same status as a child of Ms Dent and Ms Rees that will be accorded to his siblings [X] and [Z].
258.For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 19 December 2012
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