Eaves and Weir

[2015] FCCA 2906

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAVES & WEIR [2015] FCCA 2906

Catchwords:
FAMILY LAW – Parenting – high conflict – Orders in best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Briginshaw & Briginshaw (1938) 60 CLR 336
MRR v GR [2010] HCA 4

Applicant: MR EAVES

Respondent: MS WEIR

File Number: WOC 563 of 2013

Judgment of: Judge Altobelli

Hearing dates: 27-28 August, 25 September 2015

Date of Last Submission: 7 November 2015

Delivered at: Wollongong

Delivered on: 22 December 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Hansons Lawyers

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitors for the Independent Children's Lawyer: Maguire and McInerney Lawyers

ORDERS

1. That all previous orders be discharged.

Parental Responsibility

1. That the Mother have sole parental responsibility for the children X, born on (omitted) 2009 and Y, born on (omitted) 2011

Live With Orders

1. That the children live with the Mother.

Spend Time With Orders in relation to school term periods

1. That the children are to spend time with the Father each alternate weekend from 3.00pm Friday (after school) until 7.00pm Sunday.

Spend Time With Orders in relation to Special Occasions

1. That the Father shall spend time with the children for the Christmas period as follows:

   (a)From 12:00 noon Christmas Eve Day until 12:00 noon Christmas Day in even numbered years.

   (b)From 12:00 noon Christmas Day until 12:00 noon Boxing Day in odd numbered years.

2. That the Father shall spend time with the children for the Easter period as follows:

   (a)From 9:00am Good Friday until 5:00pm Easter Saturday in odd years.

   (b)From 9:00am Easter Sunday until 5:00pm Easter Monday in even years.

3. That the Father’s time shall be suspended on the following occasions:-

   (a)On Mother’s Day each year from 9:00am to 5:00pm.

   (b)On the Mother’s birthday from 9:00am to 5:00pm if it falls on the weekend or from 3:00pm to 7:00pm if it falls on a weekday.

4. That the Mother’s time shall be suspended on the following occasions:-

   (a)On Father’s Day each year from 9:00am to 5:00pm.

   (b)On the Father’s birthday from 9:00am to 5:00pm if it falls on the weekend or from 3:00pm to 7:00pm if it falls on a weekday.

5. That the Father shall spend time with the children for their birthdays as follows:

   (a)If the children’s birthday falls on a weekday the children are to spend time with the Father from 3:00pm until 7:00pm.

   (b)If the children’s birthday falls on a weekend coinciding with the Father’s time then the Father’s time is to commence from 12:00pm (if on a Saturday) or his time is to conclude earlier at 3:00pm (if on a Sunday).

   (c)If the children’s birthday falls on a weekend coinciding with the Mother’s time then they will spend time with the Father from 9:00am to 1:00pm.

Spend Time With Orders in relation to School Holidays

2015 /2016 Christmas School Holidays

1. That for the purposes of the 2015/2016 Christmas School holidays, the weekend time that the children would otherwise spend with their Father shall be extended from 9:00am Thursday until 7:00pm Sunday or as otherwise agreed.

2016 School Holidays

1. That if relevant in addition to the spend time orders set out in paragraph 6, during the school holidays ending Terms 1, 2 and 3 2016 the weekend time that the children would otherwise spend with their Father be extended from 9:00am Wednesday until 7:00pm Sunday or as otherwise agreed.

2016 /2017 Christmas School Holidays

1. That for the purposes of the 2016/2017 Christmas School holidays, and if relevant in addition to the spend time orders set out in paragraph 5, the weekend time that the children would otherwise spend with their Father be extended from 9:00am Tuesday until 7:00pm Sunday or as otherwise agreed.

School Holidays from 2017

1. That during the school holidays ending Terms 1, 2 and 3 2016 for the first week of these school holidays, being from 3:00pm Friday (after school) until 3:00pm on the following Friday, and if relevant in addition to the spend time orders set out in paragraph 6.

Christmas School Holidays from 2017/2018

1. From 2017/2018 during the Christmas school holidays, and if relevant in addition to the spend time orders set out in paragraph 5, the children spend time with the Father for 2 blocks of 7 days from 3:00pm Friday until 3:00pm the following Friday with such time to coincide with the time that they would otherwise already be spending time with the Father or as otherwise agreed.

Changeover Arrangements

1. Unless the Father is collecting the children from school, the changeover arrangements will be as follows:

   (a)No later than seven (7) days before any such changeover, the Mother is to notify the Father by text message as to whether changeover is to be at her home or at a child-friendly public venue (such as McDonalds Family Restaurant) close to her home; and

   (b)Both parents may cause changeovers to be facilitated by any other adult person who is known by and familiar with the children.

Health

1. That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:

   (a)Any medical problems or illnesses suffered by the children whilst in each parent’s care;

   (b)Any medications that have been prescribed for the children;

   (c)Any specialist medical appointments;

   (d)Any significant social, school or religious functions which the children are to attend;

   (e)The details of any sporting body(ies) that the children are involved in;

   (f)The residential address of each parent and particulars of others who may reside with the children;

   (g)Any other important matter relevant to the welfare of the children.

2. That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning the child.

Education & Extra Curricular Activities

1. That the Mother be solely empowered to enrol the children in sport.

2. That each parent is entitled to attend all events involving the child including, but not limited to:

   (a)Sporting fixtures;

   (b)Extracurricular activities that allow for parent attendance or participation;

   (c)School functions and events that allow for parental attendance or participation.

   AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.

3. If the Father is unable to facilitate the children participating in the sport/extra-curricular activity that the Mother has enrolled the children in accordance with Order 18 when the children are spending time with the Father then the Father is to notify the Mother at least 24 hours prior and time with the Father is suspended and the Mother will collect the children one hour prior to the commencement of the activity from the Father’s home and return the children at the conclusion of the activity.

4. That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.

Communication between parties

1. That the parties are to maintain a communication log book for the purposes of communication with one another concerning the children’s health and welfare, including but not limited to the name and address of any institution of medical service provider that the child attends and details of any medication prescribed for the children with only the parties themselves permitted to write in the communication log book.

2. That the communication log book is to be returned along with the children at changeover.

3. That the parties shall notify each other via the communication log book if either party intends to take the children outside the (omitted) region and advise of the location that the children will be visiting and / or staying. If notification cannot reasonably be provided by the communication log book, that the parties are to notify the other party with at least two hours’ notice via text message.

4. That the parties shall limit their communication to the communication log book and only in the event of an emergency will each party notify each other via text message, except as provided by these Orders.

Restraints

1. That both parties are to refrain from making critical or derogatory remarks about the other party or members of his or her family in the presence or within the hearing of the child and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either party or members of his or her family in the presence or within the hearing of the child.

2. That the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child and from permitting any other person to do so.

Other

1. That both parties shall ensure that if they transport the children in a motor vehicle that such motor vehicle is fitted with appropriate child restraints.

2. That in event that either party changes their accommodation, that they shall provide the other party with details of their new address as soon as practicable, but no later than forty eight hours before moving into new premises.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 563 of 2013

MR EAVES

Applicant

And

MS WEIR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the Orders that the Court has made in relation to two children:  X, born (omitted) 2009, 6 years old, and his sister, Y, born (omitted) 2011, 4 years old.  Both children currently live with their mother and spend time with their father.  Both parents wish to change the existing arrangements in this regard.

Background

1. The children’s mother in this case is the Applicant.  She is 25 years old.  The Father is the Respondent.  He is 28 years old.  The Mother has a daughter from a previous relationship, Z, who is eight years old.  The parents met in (omitted) 2008, commenced cohabitation in (omitted) 2008, and married in (omitted) 2009.  The parents temporarily separated in 2011 between July and September, resumed cohabitation, and then separated on a final basis in August 2012.  The parents put in place a number of informal arrangements for the children to spend time with their father.

2. When the Court has regard to the evidence filed by both parents, it is clear that the post-separation period was quite tumultuous for both of them and the children.  They struggled to communicate effectively in matters relating to the children.  The Father appeared to want to reconcile with the Mother, but she did not share that feeling.  They were unable to agree about important matters relating to the children’s lives, such as schooling and sports activities.  The Interim Orders that were in place as at the time of the hearing are contained in the first schedule to these reasons.

3. The Father represented himself in these proceedings.  His proposal was set out in his Affidavit of 14 August 2015.  He proposed that the parents have equal shared parental responsibility, except in relation to decisions about sports, schooling and extracurricular activities, where he proposed that he have sole parental responsibility.  He proposed that the children live with him, or alternatively that X live with him and Y live with the Mother.  In the alternative, he proposed that the children live with the Mother, but spend time each alternate weekend with him from after school on Friday to before school on Monday, with this time extending from 2 June 2016 to after school on Thursday, to before school on Tuesday, and then from 26 January 2017 on a week-about basis.  Apart from his Affidavit of 14 August 2015, the Father relied on his Affidavits of 28 June 2013, 4 December 2013, 19 December 2013, and 26 February 2014.

4. During the course of the hearing, the Mother’s proposal was amended so that she sought sole parental responsibility, that the children live with her, and spend time with their father each alternate Sunday from 9:00am until 4:00pm, as well as on special occasion, with changeover to be at a professional changeover service such as Catholic Care.  This is a reduction in the Father’s current time with the children.  The evidence in her case consisted of her Affidavit filed 17 August 2015. 

5. In very general terms and by way of overview, the Mother’s case was that the Father was a perpetrator of coercive and controlling violence, both before and after separation.  Her case was that he was incapable of prioritising the children’s needs above his own, was a poor role model for the children, and lacked insight into the impact on them of both his past and continuing actions and attitude, particularly towards the Mother. 

6. The Father’s case was that there had been no violence or controlling conduct, and that these allegations had been manufactured to further the Mother’s case which was to, in effect, exclude him from the children’s lives.

7. The children were represented by an Independent Children’s Lawyer.  The evidence led in the Independent Children’s Lawyer’s case consisted of a report by Dr H dated 15 October 2014. 

8. Ms Gilles of Counsel represented the Mother and Mr Jackson of Counsel appeared on behalf of the Independent Children’s Lawyer.

The applicable law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

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

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

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

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

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

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

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

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

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

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

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

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

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

   Primary considerations

   (2)  The primary considerations are:

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

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

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

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

   Additional considerations

   (3)  Additional considerations are:

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

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

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

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

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

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

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

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

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

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

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

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

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

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

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

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

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

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

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

   (i)  the nature of the order;

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

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

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

   (v)  any other relevant matter;

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

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

2. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

3. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The evidence of Dr H

1. The Court proposes to set out and discuss the evidence of Dr H first, simply because her evidence was not only independent, but expert.

2. In her report, Dr H noted that whilst the main issue in dispute was about the time that the children spent with their father, the parents were also very much in dispute about other matters including, for example, weekend sport.  Dr H records the Mother’s concerns about the Father at paragraph 13 of her report:

   Ms Weir justified her parenting proposal in terms of the obstacle to meeting the children’s developmental needs (especially X’s) posed by the father’s alleged inability and unwillingness  to prioritise the children’s needs above his own. She claims that throughout their marital relationship Mr Eaves was self-centred and continues in this vein – for example demanding that all the children’s appointments be made at times which suit him. She claims that he has not attended specialists’ appointments despite being informed. Overall, she characterised Mr Weir as someone who feels over-entitled relative to others in relationships and is incapable of mutuality or reciprocity. On that basis she doubts his ability to acknowledge or respect the children’s individual differences in order to meet their needs.

3. An issue in this case that emerges not just from Dr H’s report, but from the evidence generally is that the Mother believes that X has special needs including low/average IQ and indications of attentional difficulty.  He had been to see a paediatrician, Dr B.  The concern identified was that the Father did not necessarily accept that X suffered from these problems, or the extent of them.  X was also noted to have bed-wetting problem. 

4. Some of the concerns that the Mother has about the Father were recorded by Dr H at paragraph 19 of the report:

   Ms Weir claims that her entries in the communications book are mostly short and factual whereas the father’s entries contain lengthy criticisms about her failures to meet his expectations. Examples of his “pushiness” included insisting on putting the children into her car at handovers rather than relinquishing that role-right once she is present. Examples of his alleged unreasonable demands included expecting her to provide detailed feedback about X’s speech therapy although he did not attend sessions when invited.  She expressed no child welfare concerns about the paternal grandparents whom she described as decent people.

5. The Father’s concerns about the Mother are noted at paragraph 22 of Dr H’s report:

   Mr Eaves repeated his assertion that the mother is unfairly excluding him from full participation in the children’s lives and care. Mr Eaves disavows any current mental health problems saying that he was “cleared of depression” by his psychologist in October 2013 and no longer takes medication. He asserts that the mother is very controlling of the children and they fear her displeasure. Mr Eaves dismisses all the mother’s concerns about X’s behavioural or learning difficulties - describing the child as “smart” and asserting “He’s perfect with me.”  Mr Eaves claims X does not wet the bed when staying with him.

6. The children were observed with both parents and the paternal grandparents.  These observations are noted at paragraphs 30 and 31.  These are all positive observations, with Dr H concluding that both children behaved “like securely-attached children who expect adults to be available, kind and helpful.”

7. In relation to the children, Dr H records at paragraph 32:

   Y (3,9) is not shy. She showed no separation anxiety and chatted confidently during a short 1:1 interview. On visual analogue she indicated equal happiness across social contexts- home with Mum, with Dad and at pre-school as did X (5,8). At the outset of his individual interview, before any questions were posed, X said “Dad’s not going to let me play hockey he’s going to make me play soccer. I said ‘I don’t want to’ and he said ‘You have to’” X said it is not fair if kids cannot play whatever sport they like. He said indoor hockey is better than outdoor hockey because “the floor is slippy not bumpy.”  X thought it would be a good idea if I told Dad he should play hockey and Dad came to watch him, but not while X was in the room. On the “(omitted)” (omitted) task X indicated he would be happy to spend more overnights with his Dad if his Mum agreed. He said “(omitted) is nice”  and fun to be with.

8. Dr H’s evaluation is found at paragraph 37 of her report.  This is reproduced in full below:

   37.    The issues specified in the assessment order are addressed below

   a) to consider the factors in ss 60CC and 65DAA of the Family Law Act 1975; Tacitly integrated throughout the following evaluations

   b)     to consider issues raised in the Family Consultant’s Memorandum to Court;   The father’s claim that the mother is unjustifiably excluding him from participating more fully in the children’s care and the mother’s claim that the father is coercive and intimidating both remain to be tested against evidentiary material at Final Hearing. Some subpoena material sighted was discrepant with both propositions. Nonetheless, the mother’s claims that the father feels entitled to impose his will on others seem plausible in the light of aggregated information. The father’s attribution of self-serving motivations to the mother cannot be entirely excluded but her parental sensitivity seems superior to his.  (Other issues from the Memorandum are dealt with under later sections)

   c)      to profile the parents (and other significant adults); The mother appears to be normally nurturant, capable and child-focused. No risk of harm has been identified disqualifies Ms Weir from exercising parental responsibility or providing the children’s principal residence. She is deemed capable of making decisions in her children’s best interests. 

   The father is deemed to be self-focused rather than child-focused.  He seems to narcissistically over-value his own ideas to an extent that impairs his abilities to make objective evaluations, to see the perspectives of others and value their views/needs equally with his own. Narcissism impairs parental empathy and due diligence in fulfilling role-obligations. During this assessment the father was evasive of social responsibility (as evidenced by the narcissistically self-absorbed excuses he gave for refusing to provide documents in accordance with his obligations as a self-represented litigant), from which only negative inferences can be drawn about his parenting capacity. Nonetheless, nothing emerged to suggest he poses an immediate risk of harm to children.

   d)         to assess the parent’s interactions (and those of other significant adults); There is virtually no capacity for co-parenting teamwork and improvement is not a realistic prospect. Each parent construes the other’s actions in terms of a desire to dominate and control. While there may be some truth to the father’s claims that the mother wilfully excludes him from the children’s appointments, such encounters are likely to be aversive for all concerned, including professionals. While it would be valuable for X to be supported by both his parents in any home program to support remedial efforts (for example speech therapy) it is unlikely that it would be productive for the parents to attend appointments jointly OR that they could communicate to effectively coordinate joint efforts. A better option may be for parents to escort X to appointments in turn and/or for treating clinicians to report to both parents separately. It is not clear whether Mr Eaves has asked X’s speech therapist or psychologist for copies of their reports.  They may be disinclined to provide services to a non-paying client but there is nothing to prevent Mr Eaves booking a consultation time with Ms D or Ms S in order to seek detailed information and advice about X’s remedial needs.

   The ability of the paternal grandparents to make rational evaluations and to prioritise children’s needs seems better than their son’s.  Both sets of grandparents and the mother seem capable of non-hostile, child-focused, civil interaction with each other.

   e)     to assess the children’s developmental and emotional state; No difficulties are reported for Y, and the mother contends she will come under less pressure from the father due to her gender. X was a pre-term baby. Although, as the father asserts, the mother may be over-stating X’s difficulties to some extent, he seems to have mild neurodevelopmental delay and some behavioural issues.  Test results indicate X is a boy of modest, normal intellectual ability with probable attentional difficulties. Dyslexia (i.e. inability to learn to read despite normal instruction) is thought to involve a double deficit: linguistic (phonological processing) and cognitive (working memory, attentional control, verbal IQ). Apparently, X has both types of deficit. In order not to compound his likely struggle with early literacy acquisition and classroom adjustment X should be shielded from any stress during his first two years of school. Continuing speech therapy could help. An OT assessment is also advisable at an early stage. If the father sincerely desires to make a constructive contribution to X’s life he should pay for any such treatments which the mother cannot afford.

   Both children are at an age where they could be expected to tolerate overnight separations from the primary caregiver. As long as the Court is satisfied the father can keep the children safe and comfortable during visits there is no reason to oppose 2-3 consecutive overnight stays with him.

   f)      to assess the relationship of the children to the parents (and other significant persons); The children are affectionately bonded to their older sister, both parents and their grandparents. X seems to be aligned with his mother, and wary of displeasing his father. The children are on warm terms with their father’s partner, who is deemed to be a protective presence pro tem, although the endurance of that couple relationship over time is still unknown.

   g)     to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance; The children seem content with the status quo, but due to their young ages their views cannot be the determining factor. At this stage the children probably uncritically accept that they will be subject to arbitrary authority in the care of their father. (For example, X expressed a wish to play hockey, combined with the expectation his father would override him.) When a parent will not tolerate the child’s right to a different view this is not usually a problem in early childhood, and open parent-child conflict does not usually emerge until middle to late childhood although sometimes younger children passively resist or protest visits to an oppressive parent. Y is unlikely to resist spending time with her father anytime soon, but in 2015 or 2016 being caught in the middle of the “soccer versus hockey” tussle might reduce X’s enthusiasm for visiting his father - especially if visits were scheduled to begin Friday after school and the father reused to take the child to indoor hockey that evening.

   h)     to assess the proposed and actual home environments;  No serious risk of harm was identified for either of the current home environments.

   i)      to assess the proposals of each party as to the children’s future. The father’s proposal for spending time with his children involves too many transitions. Children of divorce benefit from regular participation in their lives of both parents – although outcomes vary according to whether or not the parenting practices are positive.  Poor mental health outcomes have been found for Australian children who move frequently between parents in high conflict. Substantially shared care (i.e. ratios of > 5:9 days per fortnight) seems to work well for primary-school age children when parents are collaborative and when both have faith in the father’s parenting capacity, but the arrangement is not recommended as the default setting for children younger than 10 or when the parents remain in high conflict.  Aggregated information supports the mother’s proposition that X would be better served by having a settled weekday routine with no mid-week disruption in his school entry year (and thereafter until his school performance is at grade level).

9. The report recommendations commence at paragraph 38.  Dr H emphasised the need to avoid fragmenting the time the children spend with each parent, and minimising their transitions between parents.

10. In terms of the spends-time-with arrangements, she recommended at paragraph 39:

    Maintain the current “spend time with” arrangement until the end of 2014, with incremental extensions from Saturday morning until Sunday 5 pm then Saturday morning until Monday before pre-school. From the beginning of the school year in 2015  it will be in the best interests of X and Y to reside with their mother and spend alternative weekends and half school holidays with their father – if the Court is satisfied there are no hazards in his environment.  The question of mid-week visits could be reviewed at the end of 2016 subject to X’s progress.

1. At paragraph 40, Dr H recommended that another adult could always attend at the children’s time with their father to ensure their comfort and safety.  She thought that the Father’s partner, Ms M, would be suitable, as would one of the paternal grandparents in her stead.  However, she emphasised the need to protect the children from parental conflict, and thus face-to-face handovers should be avoided, as well as minimising the need for any communication.  If handovers could take place to and from preschool/school that would be beneficial.

2. At paragraph 42, she suggests that the parents would benefit from parallel parenting.  They would need some coaching in this regard.  They needed to increase their communication skills.

3. In relation to the sporting issue, Dr H noted at paragraph 43:

   No recommendation can be made for Orders which will fulfil X’s request to play the sport of his choice with the encouragement of both parents in 2015 since each parent is likely to discount the child’s expressed preference as the outcome of coercion by the other.  The slight chance this thorny issue could be resolved in mediation may improve if each parent is first prepared by several sessions with a Relationships Australia counsellor so s/he is better able to maintain a child-focus during negotiations AND to take the long view about the future of his/her relationship with X. With injudicious management this minor dispute has the potential to snowball into a major conflict: cross-allegations of realistic estrangement versus alienation.

4. Dr H was cross-examined on the first day of the hearing.  She was provided with copies of the Father’s latest Affidavit, and of the Mother’s trial Affidavit.  The Father’s proposal was made known to her. 

5. The following matters emerge from Dr H’s cross-examination:

   a)Equal shared parental responsibility was out of the question for these parents.  It would be unworkable.  The parents cannot communicate or collaborate.  Sole parental responsibility to the Mother would be better.

   b)Parallel parenting would need to be implemented.  This would give autonomy to each parent to act independently of the other.  There would need to be clearly defined roles and expectation, with clear rules of engagement about, for example, how to use a communication book.  Even parallel parenting would not be unproblematic.  She described the conflict between the parents as intractable.

   c)Insofar as the dispute between the parents was manifested as a disagreement about whether X should play hockey or soccer, Dr H suggested that either the Court decides, that the Mother decides because she is given sole parental responsibility, or the Mother is given sole parental responsibility except in relation to sport, where the Father would decide.  She emphasised the need for the removal of any requirement for collaboration between the parents in this regard.  In short, she said one person must be in charge of making decisions about sport.

   d)She was satisfied that on the information presented to her, X had special needs.  It was not uncommon, in her experience, for one parent to dispute a diagnosis about a child having learning difficulties.  Where the dispute arises in the face of clear professional evidence, it is suggested that the person taking exception to the evidence was not properly equipped to respond to the children’s needs.  This merely emphasised, Dr H said, the need for sole parental responsibility to the Mother.

   e)If the Mother’s evidence was accepted by the Court, it is strongly suggested that the Father lacked parental empathy and insight.  There was the risk that the child would become a lifestyle accessory, and Dr H’s concern was the possibility that the sporting issue between the parents was merely a manifestation of this.

   f)In relation to risks of harm, none were apparent in the Mother’s household, but there were some concerns about the Father’s ability to meet the children’s emotional needs.  She pointed that in her recommendations about time, she explicitly referred to the absence of any hazards in the Father’s environment.  Exposure to conflict was one such hazard, be that at changeover or elsewhere.  She opined that if the children were exposed to the parental conflict and the Father’s reaction to this, it would probably take them several days to recover from the stress and anxiety they would feel.  If there was evidence of the Father avoiding his social responsibilities, this might limit the amount of time that the children should spend with him.

   g)If the Mother’s assertions of the Father’s coercive and controlling violence were established by the evidence, this would be significant.  There was a risk that the Father would replicate his behaviour on others.  It would be an antisocial parenting style.  If the Court finds that the Mother’s allegation of the Father’s sexual assault on her after separation was indeed established, it would raise concerns about the Father and warrant a reconsideration about how much time he spends with them.  There would still be benefit, however, to the children spending time with him, provided it was safe.

   h)The consequences of adverse findings against the Father might lead the Court to reduce the amount of time that the children spend with him, due to the risk of emotional harm. 

   i)Dr H conceded that if the Mother’s allegations against the Father were found to be false, and possibly malicious, it would reflect poorly on her, but would not necessarily mean that the children should automatically live with their father.

   j)The Father put to her that the children had said certain things to him about their preferences in relation to playing sport.  Dr H urged caution in placing weight on what the children said, in the context of this case.

   k)She thought there was little chance of an improvement in terms of the relationship between the parents noting that, for example, the most recent Affidavits suggested a continuing trend of poor communication.

6. Dr H acknowledged the obvious limitations in her report, and recommendations.  The Court would need to make findings about the more contentious matters between the parents, and seek to integrate her recommendations to those findings.  Subject to this caveat, there was nothing in Dr H’s evidence, or in her cross-examination, that would lead to her recommendations being reconsidered.

The cases summarised and discussion

1. The Independent Children’s Lawyer’s case emphasised the history of the matter and how the mother’s stated concerns at the hearing were so totally inconsistent with her previous actions.  The history of Orders made in this matter is set out at paragraphs 7-10 inclusive of the written submissions of the Independent Children’s Lawyer:

   7. On 30th September 2013 Consent Orders were made that provided that the children live with the Mother and spend time with the Father as supervised at the (omitted) Contact Service, with the Father to meet the costs of such service.

   8. On 27th February 2014 Orders made by the Court, whereupon there was a removal of supervision, with the Father’s time with the children extended to every Monday and Thursday 4.15pm to 7.15pm and every Saturday from 12.30pm to 4.30pm.

   9. On 11th July 2014 further Consent Interim Orders were made. Those Orders provided that the children spend time with the Father each Monday and Wednesday from day-care to 7.00pm, and each Sunday from 9.00am, extending from 1st September 2014 to overnight time (for the first occasion) until Sunday at 12 noon.

   10. By 26th November 2015 the Father’s time with the children as ordered by the Court was each alternate Monday and Wednesday from 3.30pm to 7.00pm and each alternate weekend from 9.00am Saturday until 5.00pm Sunday, plus special occasions.

2. The Independent Children’s Lawyer submitted, and it was indeed the case, that the Mother conceded under cross-examination that the interim Orders were consented to by her as she believed the Orders were in the best interests of the children.  The mother was at all relevant times represented by a lawyer.  To the extent that, in cross-examination, she sought to convey the impression that she entered into these Consent Orders as a result of pressure, the Court does not accept the same.  Moreover, it would be inconceivable for the Mother to somehow suggest that she did not then have the concerns that she has now, and which are clearly articulated in her Affidavit for evidence.

3. The Independent Children’s Lawyer submitted, and the evidence confirms, that the Father did in fact spend time with the children in accordance with these Orders and with relatively few problems.  Indeed, the Court observes, for a case where the communication difficulties between the parents are so acute, the children’s time with the Father was indeed, relatively unproblematic.

4. The Independent Children’s Lawyer submitted that the evidence indicates that the children have developed a good relationship with their father in the post-separation period.  The Court observes that that is indisputably the case, and even the Mother could not contend to the contrary in her cross-examination.

5. The Independent Children’s Lawyer submitted that, significantly, from 27 February 2014 there was, by consent, a removal of the need for the children’s time with the Father to be supervised.  Indeed, up until the trial itself the Mother’s case was that the children’s time continued to be unsupervised, and subject to gradual increases including overnight time.  This was reflected, for example, in her Amended Response filed 25 November 2014.  In that document even she proposed that in 2016 the children have up to a week of time with their father, unsupervised, during school holidays.

6. The Court observes that in cross-examination, when the history of Consent Orders was put to the Mother, and she was given the opportunity to explain what had changed that would cause her to present a significantly different proposal to the Court during the hearing, the Mother quite frankly conceded “nothing”.  Even when she was given the opportunity to highlight possible problems at changeover (again, the Court observes, the flashpoint for these parents) all the Mother could do was to say that there was an incident at a changeover at which, she asserts (but he denies) that he was yelling at her in front of the children.  She then conceded, however, that this incident was more than 12 months before the hearing, but probably less than 18 months.  She acknowledged that the difficulties at changeover were managed by having others present to facilitate the changeover.

7. The Court observes that the Mother’s evidence quite clearly articulates the concerns that she has about the Father including the mental health issues that she says he suffered, and the violence and abuse which she says he perpetrated on her.  There can be no question that these concerns were present in her mind at the time that she filed her Amended Response, and at the commencement of the hearing.  Indeed, the Minute of Orders proposed by her in her Case Outline dated 21 August 2015 not only provided for the Father to have unsupervised overnight time but for changeovers to take place at the Mother’s residence.

8. The Independent Children’s Lawyer submitted that to the extent that the Mother’s dramatic change of position was attributable to the evidence that Dr H gave in relation to family violence, the situation was by no means as clear as the Mother contends.  The fact was that Dr H gave evidence first, primarily because of her own availability.  The matters put to her about family violence were put in a hypothetical manner.  Her evidence was likewise given in a hypothetical manner.  In any event, the Court observes, to the extent that Dr H gave evidence that a perpetrator of violence who denied the nature and extent of the same and who sought no assistance in relation to the same was both a potential risk to children as well as a poor role model, these are matters that the Court would accept based on its own experience.  But, as the Independent Children’s Lawyer submitted, whatever Dr H said did not detract from the reality in these children’s lives of their father’s continued positive presence, despite parental conflict.  Dr H certainly did say that if the Court assessed there to be risk to the children, i.e. that the Father could not “keep the children safe and comfortable during visits” (page 13) then other scenarios for time and communication needed to be considered.  Ultimately Dr H’s evidence was subjected to the very obvious caveat that the Court might make a finding that he was unable to protect the children from harm.

9. The other submission made by the Independent Children’s Lawyer is that the evidence does not entirely support the Mother’s case about family violence.  In this regard, it was submitted that, perhaps the most serious allegation about the alleged rape in November 2012 could not be born out on the evidence before the Court.  Whilst this will be discussed in further detail below, the Court records that there is merit in this submission.

10. Ultimately, the Independent Children’s Lawyer submitted (and as it turns out, the Court accepts) that there was no evidence of such risk of harm to the children that the existing contact arrangement would need to be dramatically reduced in the fashion ultimately proposed by the Mother.  The Independent Children’s Lawyer pointed to the potential adverse impact on the children of such dramatic change in their lives as well as the further dissonance in the Mother’s case, i.e. that if her concerns were as great as she asserts, how could the children be any less exposed to the risk presented by the Father on her proposal for time?

11. The Father’s submissions largely reflected those made on behalf of the Independent Children’s Lawyer.

12. The written submissions on behalf of the Mother were prepared by her Counsel, Ms Gillies.  As expected, the submissions were comprehensive but, with respect, really failed to grapple with the Mother’s almost incomprehensible change of position in these proceedings.  A number of uncontentious points are made, certainly as between the Independent Children’s Lawyer and the Mother.  It is clear that the parents cannot communicate, even using the medium of a communication book.  It is correct, to use the words of Dr H, that as between the parents “there is virtually no capacity for co-parenting teamwork and improvement is not a realistic prospect...”  Their inability to co-parent is demonstrated by their inability to resolve the issue of the children’s sporting activities.

13. On behalf of the Mother, it was submitted that the father lacked empathy and insight.  The Independent Children’s Lawyer could not contend to the contrary.  To the extent that the Father contends otherwise, it merely demonstrates his lack of insight.  Dr H’s observation of the father that he was “self-focused rather than child-focused...” was unquestionably correct.

14. Extensive submissions were made about family violence.  The Court infers that this is the basis, in some way, for the Court in effect ignoring the Mother’s previous course of conduct and making the significantly restricted Orders that she proposes.  The Mother’s evidence of family violence includes harassment, abuse, controlling and coercive behaviour, but culminates in what is described in the submissions as the Father’s sexual assault of the Mother in November 2012, in premises in which the children were present.  It is conceded on her behalf that she did not seek counselling after the attack, nor did she report it to the police.  It was submitted that her explanation for not doing so was plausible, indeed believable.  Thus, if the Court accepted her evidence about the rape, it was submitted the Court would be profoundly concerned about Dr H’s evidence to the effect that it would significantly change her opinion because of the issues, particularly about controlling and coercive behaviours, as well as raising issues about risk of harm in the Father’s care.

15. But one of the issues for the Mother is that the seriousness of the allegations that she makes invokes the Briginshaw standard of proof, i.e. that the Court must feel an actual persuasion of the occurrence of an event (see Dixon J in Briginshaw & Briginshaw (1938) 60 CLR 336 at 361-362).

16. On behalf of the Mother, it was submitted that the demeanour in which she gave evidence about the sexual assault would lend credibility to her evidence.  However, there was nothing about the demeanour of the Father in denying the event which would in any way detract from his credibility about his issue.  In this regard, it is important not to confuse credibility with lack of insight.  Just because a witness might be found to profoundly lack insight about a matter such as parental responsibility, it does not necessarily make them a liar about other factual matters.  In any event, at no point is there any serious attempt to explain the startling dissonance between the Mother’s evidence and her willingness to propose to the Court at the commencement of the hearing that the children have unsupervised overnight time with their father including, in 2016, one week during the school holidays.

17. To the extent that the Mother’s case about family violence stands independently of the alleged sexual assault in November 2012, there is certainly substance there.  The Father did concede in cross-examination that he sent her abusive text messages which contained references to her as a slut and a whore.  He did concede in cross-examination that he threw a chair over a balcony, which then landed on the Mother’s car.  It is quite likely, in the Court’s estimation, that there is substance to some of the Mother’s other allegations about the Father’s conduct which would amount to family violence as it is presently defined in s.4AB of the Act.  But none of this detracts from the reality that up until a Damascus Road line episode during the hearing, the Mother was urging the Court to make Orders for unsupervised overnight time.  It is not that the Father’s behaviour is irrelevant, because it certainly is.  It suggests lack of insight.  It suggests a potentially appalling attitude as a parent.  But the evidence does not suggest any risk of harm, as was an inherent contention in the Mother’s case.

18. There was a dissonance in the Mother’s case that remained unexplained as at the close of the evidence and which remained equally unexplained in her closing written submissions.

19. The Court now proposes to examine the relevant considerations under s.60CC of the Act.

Meaningful relationship

1. Even the Father conceded that the children would be living with their mother primarily, at least up until a shared care arrangement commenced. It was common ground between the parents and the Independent Children’s Lawyer that the children would, of course, benefit from the meaningful relationship with both of their parents. There is no question on the evidence that the children actually enjoy a meaningful relationship with their father and their mother. The Mother wants to significantly reduce the children’s time with their father, a change which, in her submissions, even she recognises would change the very nature of the relationship they have with him. The Father wants more time with the children, ostensibly on the basis that it would enhance the meaningful relationship that he already has. In this regard, the Court simply does not accept that the Father’s meaningful relationship with the children would be somehow enhanced by having more time. The real focus in this case is the Mother’s contention for change. In effect, her case was that, consistent with Dr H’s evidence, a balancing act had to be performed between the benefit to the children of having a meaningful relationship with their father and the need to protect them from harm. The difficulty of course, foreshadowed in the previous section of these reasons is that the Court simply does not accept that there is evidence suggesting there is a risk of harm to them. Once again, it needs to be emphasised that lack of insight and having a poor attitude about parenting does not necessarily result in the children being subjected to a risk of harm. The fact that the children have two parents who are locked in a high level of conflict about them, who cannot communicate, and who do not trust each other, does not necessarily result in a finding that these children need to be protected from physical or psychological harm in accordance with s.60CC of the Act, because these matters do not, of themselves, amount to abuse, neglect or family violence.

1. The Mother has simply failed to demonstrate that the children’s meaningful relationship with their father, which will be inevitably changed as a result of her proposal, is warranted by the evidence. Indeed, the evidence that is before the Court, even the Mother’s own admissions, suggest that the children enjoy a meaningful relationship with their father and that it would be unwise to materially interfere with the existing arrangement unless there is a very good reason to do so.

The need to protect the children from harm

1. Following on from the paragraph above, perhaps the need to make the change arises from a need to protect the children from harm?  The Father and Independent Children’s Lawyer’s case focused on the evidence that suggested that whatever the problems may have been, as recently as 2013 (on the Mother’s evidence) or earlier (on the Father’s evidence) there was simply no evidence to suggest any problems suggesting risk of harm or exposure to violence in at least 18 months, and possibly more than two years.  This is indeed the evidence before the Court.  The Mother’s evidence goes nowhere near establishing the risk of harm that she says warrants such a substantial change.  Without wishing to labour the point, but nonetheless returning to the issue of the dissonance in the Mother’s case, paragraph 39 of the Mother’s submissions states as follows:

   39. The mother diametrically opposes any suggestions that changeovers take place at the parties respective homes. She herself has not undertaken changeovers for some months because of her fear of the father. Those changeovers have been effected by the maternal grandmother. This cannot be a long term solution. In any event an order for changeovers that involves the parties exposes the children’s primary care giver to a person who she says has abused her physically and emotionally. That would not be in the child’s best interests given its’ inevitable capacity to undermine the emotional well being of their primary carer.

2. All the Court can say is that this is a remarkable submission to make in a document that was received on 4 November 2015 when a Case Outline filed on behalf of the Mother on 21 August 2015 contains a Minute of Order in which the Mother proposes the changeover occur at her home. Nothing occurred in between those dates to warrant such a change.

3. When the Court reviews the evidence, it is clear that the period following separation was a tumultuous one for the parents.  It was emotional for both of them, but particularly for the Father.  But things settled down.  Both parents moved on in their lives.  The Mother did so at a faster rate than the Father.  The parenting arrangements put in place in the immediate post-separation period adequately reflected the turmoil at the time.  Those Orders were adequately protective of the children at the time.  But as the nature of the parental relationship changed, so did the need to protect them, and this too was reflected in the parenting arrangements put in place.

4. As Dr H indicated in her evidence, both in writing and orally, there is a risk to these children if the parents cannot manage the unsatisfactory communication that they have and their lack of trust of each other, but these are not matters that are properly dealt with as risk of harm issues.

Nature of children’s relationships

1. It should be clear from these reasons so far that the evidence strongly indicates that the children have a very good relationship with both parents, as well as their sister, Z. The children appear to have good relationships with grandparents. They have a good relationship with the Mother’s partner, Mr O, and a warm relationship with the Father’s partner, Ms M. The Mother’s case for a reduction in the time that the children spend with their father is also based on his character and personality, matters that will be discussed below. For present purposes, the Court inclines to the view that having regard to all of the evidence before it, to reduce the children’s time with their father would necessarily bring about a change in their relationship with him, and thus there would need to be a good reason for doing so. Whether this reason exists will depend on an examination of the evidence pertinent to other considerations.

Failing to take opportunities

1. The Court believes that the focus here should be on more recent times, rather than what it is already described as being the tumultuous post-separation period.  In recent times, the Father appears to have taken advantage of the opportunities given to him pursuant to the various Consent Orders entered into.  The Mother criticises the Father, quite properly the Court believes, for not taking the opportunities to participate in decision-making about X in particular.  He had opportunities which he did not adequately take up to become involved in X’s therapy and medical appointments.  Whilst this consideration is important, and certainly relevant, its significance and weight must be seen in context.  The Father had a different view about the nature and extent of X’s needs.  His experience of X was inconsistent with what the Mother contended was the condition that he was suffering.  Even though the Father was blind to X’s actual needs at the time (but now he sees clearly, he says) he was nonetheless genuine in his belief.  Moreover, criticising the Father for not attending medical appointments and therapy, in circumstances where the Mother might be present, is a somewhat hollow criticism.  The very nature of the relationship between these parents means such events would have merely become flashpoints of conflict.  The Father could certainly have done more to involve himself in X’s treatment and therapy, but probably needed to find a more creative way of doing this.  He lacked the capacity to do so.

Parental obligations to maintain children

1. The Father’s submissions, indeed his whole attitude about financial support of the children, reflected poorly on him.  The attitude that pervaded his evidence was that paying child support, as assessed, was enough, irrespective of any special needs the children had.  Indeed, some of the entries that he wrote into the communication book on this topic are nothing less than appalling.

The likely effect of change for the children.

1. Both the Father and the Independent Children's Lawyer submitted that the Mother’s proposal would present dramatic change for the children which would have a likely effect on their relationship with the Father.  Both asserted that there was no evidence before the Court that would justify this.  The Mother’s case, quite apart from the family violence issues already discussed, was that the children were not coping with the existing arrangements.  X was bedwetting.  She asserted that he was becoming withdrawn.  In evidence, she suggested that Y was anxious and clingy.  Her case was that by eliminating overnight time, the children would cope better. 

2. There are a number of problems with the Mother’s case.  Firstly, the evidence about how the children were coping was not consistent, as the Father gave evidence that he did not observe or experience these issues when the children were in his care.  Moreover, these issues were not put to Dr H in cross-examination, so the Court was denied the opportunity to hear expert evidence in this regard.  But the biggest problem the Court has is, once again, the dissonance issue.  Even the Mother was not suggesting that these are issues that developed during the trial so how, therefore, can she justify on this basis the changes that she now proposes to the Court? 

3. To the extent that the Father’s proposal involves significantly extending the children’s time with him, even over a period of time, this is highly problematic.  Dr H would not support it to the extent he proposed.  The Father’s characterological flaws, strongly contraindicate this. 

Parental capacity and parental attitudes

1. Because of the overlap in these considerations, the Court will deal with them together. 

2. There is little doubt that both parents have the ability to provide for the children’s physical needs.  There might have been a doubt about the Father’s capacity in this regard, so far as X is concerned, but the Court is satisfied from his evidence that he now understands that there is a problem that must be addressed.  The real focus in this case is the ability of the parents to meet the children’s emotional needs.  Both parents must realise, consistent with Dr H’s evidence, that their inability to function cooperatively as parents, manifested by a lack of trust and inability and dysfunctional communication, inhibits their ability to meet the emotional needs of the children, as well as reflects a poor attitude towards them and to the responsibilities of parenthood.  Indeed, in this regard both parents presented in evidence as being immature, and both parents appeared to blame each other for the trust and communication problems that exist between them. 

3. Beyond this, however, there is an aspect of the Father’s behaviour, personality and attitude that is disconcerting. Dr H described it as self-focused, rather than child-focused. On behalf of the Mother, it was contended that the Father demonstrated aspects of narcissism.  It is the case, based on the Court’s own observation of the Father, that he exuded a sense of entitlement about these children, and an insensitivity about their needs, that is inconsistent with good parenting. Whilst in evidence, he made limited concessions about family violence (as discussed above), he demonstrated not the slightest insight about how this might affect the children directly indirectly by impairing their mother’s ability to care for them. His proposal, at one stage, for splitting the siblings, with X living with him and Y with her mother again demonstrated amazing lack of insight into their needs. The communication book is replete with examples of the very issue being discussed. Ironically, the Father was quite happy to have the communication book go into evidence, as he seemed confident that these documents would somehow support his case. The opposite was true. The tone of his communication was often imperious, and almost always critical. He showed no insight or understanding whatsoever about the potential impact on X of either discussing aspects of the proceedings with him, or pressuring him to play a particular sport on the weekend. The Father has such a long way to go in this regard. And yet, there are signs of emerging maturity and insight. He seemed to understand a little bit more why the Mother would be concerned about X’s developmental issues. By the time of closing submissions, he abandoned the proposal for the siblings to be split, or for the children to live with him, favouring instead an equal time arrangement in due course.

4. The Mother has demonstrated a far greater capacity to provide the children’s needs and a far better attitude as a parent.  There might have been times in the past where, in respect of relatively uncritical issues about the children, it might have been better to simply back off and accommodate the Father’s demand. 

Orders least likely to lead to further proceedings

1. The Father’s sense of entitlement makes it difficult to be confident that there will be no further proceedings.  The fact that the children are so young is also a further indicator that developmental changes might precipitate a dispute between these parents that leads to further litigation.  All the Court can do is to plan for the foreseeable future. 

Parental responsibility

1. The Mother and the Independent Children’s Lawyer both propose sole parental responsibility to the Mother. The Father proposes equal shared parental responsibility in his proposed Orders. The Court finds that s.61DA(4) applies in this case, and that the presumption has been rebutted as it is not in the best interests of the children for their parents to have equal shared parental responsibility. There is no need to go over the evidence in detail. Dr H was strongly opposed to equal shared parental responsibility. These parents cannot communicate such that the consultation in decision making that is inherent in equal shared parental responsibility is not possible. There is total absence of trust between there. There are key issues in respect of which decisions need to be made, e.g. X’s therapy, where there is likely to be deadlock unless sole parental responsibility is ordered. In any event, the Father’s lack of insight and parenting capacity deficits identified in these reasons contra-indicate equal shared parental responsibility. Indeed, an order for equal shared parental responsibility in this case would, in the Court’s view, almost inevitably lead to further conflict and litigation.

2. X’s weekend sport is an important issue for him, and the parents’ inability to agree about this issue is a good example of the issues discussed in this section.  The Court wants to ensure there is clarity in respect of this issue.  Whether or not sport is a matter properly classified as a long-term issue or otherwise, given its importance to X, the Mother will decide this issue and a specific order will be made in this regard to put this issue beyond doubt.

Orders in the best interests of the children?

1. It follows from the Court’s reasons above that the children should live with their mother, who is to have sole parental responsibility.  It also follows from the reasons above that neither the Mother nor the Father’s proposals for the children to spend time with the Father is in their best interests.  The Mother’s proposal for a reduction in time is not supported by the evidence.  The Father’s proposal for a significant increase in time is likewise not support by the evidence.  The Orders proposed by the Independent Children’s Lawyer properly reflect the evidence and the findings made by the Court, and focus on the needs of the children within the context of a difficult parental relationship.

2. The only concern that the Court has about the Independent Children’s Lawyer’s proposed Orders is Order 15 about changeover.  When it is not from school, it is proposed to be at the Mother’s home.  By contrast, the Mother proposes it take place using a professional changeover service or at a supervised contact centre at the Father’s cost, and where that service is not available changeover be at the home of the maternal and paternal grandmothers respectively.

3. The evidence indicates that despite changeover being at the Mother’s home historically, there have been no problems in the last 18-24 months because the Mother has ensured that changeover is facilitated by someone else. For the children, therefore, changeover at their mother’s home is part of their routine. The Mother’s discomfort, however, needs to be recognised, and is indeed validated by the evidence overall, even if there have been no incidents in recent times. Whilst she proposes the use of grandmothers to facilitate changeovers, neither gave evidence about their willingness or availability, save that it can be inferred that the maternal grandmother, who has had an historical involvement in this role, would probably be willing to continue in the role.

4. The use of a professional changeover service, whether privately funded or community based, is potentially problematic because of cost and availability.  The last thing the parents need is yet another issue of potential conflict.

5. Whilst the Court would have preferred that further attention was given to this issue in the evidence and in submissions, it is important to bring closure to this litigation.  The Court will make an order that when changeover is not at school, it is to be, at the Mother’s election notified 7 days in advance, either at her home or at the McDonalds Family Restaurant closest to her home (or similar child-friendly public venue).  In all instances the parents are free to facilitate changeovers via any adult person who is known to the children.

6. The Court records it has specifically considered the Independent Children’s Lawyer’s proposed Orders in relation to special occasions and school holidays, and considers them appropriate and in the children’s best interests.  The remaining Orders proposed are both necessary and appropriate.

7. The Court further records that it has specifically contemplated, but rejected, the idea of progressing the children’s time with their father in future years as they become older, beyond that the Independent Children’s Lawyer’s proposal contemplates.  The children are too young to make confident predictions about how their time with the Father should progress.  Whilst there are signs of the Father’s emerging maturity as a parent, again the Court lacks sufficient confidence about this so as to make definite Orders.

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

Associate: 

Date:       22 December 2015

Schedule One

Interim Orders made 26 November 2014

BY CONSENT IT IS ORDERED:

1.  That all previous orders be discharged.

Live With

1. That the children X born on (omitted) 2009 and Y born on (omitted) 2011 live with the Mother.

Spend Time With

1. That the children are to spend time with the Father as follows from 26 November 2014 until the week prior to X commencing Primary School (the week commencing 26 January 2015):

   a)    Each alternate Monday from 3.30pm to 7.00pm.
   b)    Each Wednesday from 3.30pm to 7.00pm. 

   c)    Each alternate weekend from 9.00am Saturday until 5.00pm Sunday.

2. That from the week prior to X commencing Primary School (the week commencing 26 January 2015) the children shall spend time with the Father as follows:

   a)Each alternate weekend from 9.00am Saturday until 7.00pm Sunday.

Special Occasions  

5.  That the Father shall spend time with the children for the Christmas period as follows:

a)From 12.00 noon Christmas Eve Day until 12.00 noon Christmas Day in even numbered years.

b)  From 12 noon Christmas Day until 12 noon Boxing Day in odd numbered years.
6.  That the Father shall spend time with the children for the Easter period as follows:

a)  From 9.00am Good Friday until 5.00pm Easter Saturday in odd years.

b)  From 9.00am Easter Sunday until 5.00pm Easter Monday in even years.

7.  That the Father’s time shall be suspended on the following occasions:-
     a)  On Mother’s Day each year from 9.00am to 5.00pm.
     b)  On the Mother’s birthday from 9.00am to 5.00pm if it falls on the weekend or from      3.00pm to 7.00pm if it falls on a weekday. 
8.  That the Mother’s time shall be suspended on the following occasions:-
     a)  On Father’s Day each year from 9.00am to 5.00pm.

b)  On the Father’s birthday from 9.00am to 5.00pm if it falls on the weekend or from     3.00pm to 7.00pm if it falls on a weekday. 

1. That the Father shall spend time with the children for their birthdays as follows:

   a)If the children’s birthday falls on a weekday the children are to spend time with the Father from 3.00pm until 7.00pm.

   b)If the children’s birthday falls on a weekend coinciding with the Father’s time then the Mother is to spend time with the children from 9.00am to 1.00pm or if the children’s birthday falls on a weekend coinciding with the Mother’s time then they will spend time with the Father from 9.00am to 1.00pm.

Changeover Arrangements

1. The Father agrees to collect the children from the Mother’s home for the purposes of Orders 4 and return the children to the Mother’s home for the purposes of Order 3.

2. For the purposes of Order 3 the Father agrees to collect the children from school.

Restraints

1. That both parties are to refrain from making critical or derogatory remarks about the other party or members of his or her family in the presence or within the hearing of the child and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either party or members of his or her family in the presence or within the hearing of the child.

1. That both parties are to refrain from speaking to the child about the Court proceedings or speaking about the Court proceedings in the presence of the child and both parties are to do all things reasonably necessary to ensure that no other person speaks to the child about the Court proceedings or speaks about the Court proceedings within the presence of the child.

2. That the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child and from permitting any other person to do so.

Health

1. That the mother and father shall ensure that they keep each other informed as soon as it is reasonable practical of:

   15.1Any medical problems or illnesses suffered by the children whilst in each parent’s care;

   15.2Any medications that have been prescribed for the children;

   15.3Any specialist medical appointments;

   15.4Any significant social, school or religious functions which the children are to attend;

   15.5The details of any sporting body(ies) that the children are involved in;

   15.6The residential address of each parent and particulars of others who may reside with the children;

   15.7Any other important matter relevant to the welfare of the children.

2. That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable to the other parent to obtain all necessary information concerning the child.

Education & Extra Curricular Activities

1. That each parent is entitled to attend all events involving the child including, but not limited to:

   17.1Sporting fixtures;

   17.2Extra curricular activities that allow for parent attendance or participation; 

   17.3School functions and events that allow for parental attendance or participation.

   AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.

2. That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.

Communication between parties

1. That the parties are to maintain a communication log book for the purposes of communication with one another concerning the children’s health and welfare, including but not limited to the name and address of any institution of medical service provider that the child attends and details of any medication prescribed for the children with only the parties themselves permitted to write in the communication log book.

2. That the communication log book is to be returned along with the children at changeover.

3. That the parties shall notify each other via the communication log book if either party intends to take the children outside the (omitted) region and advise of the location that the children will be visiting and / or staying.  If notification cannot reasonably be provided by the communication log book, that the parties are to notify the other party with at least two hours’ notice via text message.

4. That the parties shall limit their communication to the communication log book and only in the event of an emergency will each party notify each other via text message, except as provided by these Orders.

Other

1. That the parties agree to attend Relationships Australia in accordance with the recommendations of the Family Report prepared by Dr H dated 15 October 2014 and leave be granted to the parties to provide the Family Report to Relationships Australia.

2. That the parties on a without admissions basis, cannot consume more than one standard drink while the children are spending time with or living with them.

3. That the father shall ensure that if he transports the children in a motor vehicle that such motor vehicle is fitted with appropriate child restraints.

4. That in even that either party changes their accommodation, that they shall provide the other party with details of their new address as soon as practicable, but no later than forty eight hours before moving into new premises.

NOTATION:

1. The parties agree that the children will attend the Independent Children’s Lawyer prior to Mediation in respect of the issue of sport.

2. That the parties will discuss increasing weekend time at Mediation.