Eriksson and Tinkham
[2011] FMCAfam 341
•12 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ERIKSSON & TINKHAM | [2011] FMCAfam 341 |
| FAMILY LAW – Parenting – Christian and Islamic parents – dispute over Christmas period and changeover. |
| Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DAA, 65DA |
| In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Lindell & Ranteri [2010] FamCA 52 |
| Applicant: | MS ERIKSSON |
| Respondent: | MR TINKHAM |
| File Number: | SYC 5611 of 2009 |
| Judgment of: | Monahan FM |
| Hearing dates: | 25 & 26 October 2010 |
| Date of Last Submission: | 26 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fermanis |
| Solicitors for the Applicant: | Antoinette Campbell Legal Solutions |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Watts McCray Family Lawyers |
THE COURT ORDERS THAT:
Paragraphs two (2) to 21 of the Orders made on 26 October 2010 (“the final Orders”) remain in full force and effect.
Paragraph 22 of the final Orders be discharged.
In addition to the arrangements provided for in the final Orders, for all New South Wales gazetted summer school holiday periods (“the summer school holiday period/s”) the children [X], born [in] 2004, and [Y], born [in] 2007, (“the children”) spend time with MR TINKHAM (“the Father”) as agreed, or failing agreement, as follows:
(a)for the summer school holiday period commencing at the end of 2011:
(i)from 24 December 2011 until 26 December 2011; and
(ii)for two (2) non-consecutive seven (7) day periods as agreed, or failing agreement, from 3 to 10 January 2012 and 17 to 24 January 2012;
(b)for the summer school holiday period commencing at the end of 2012:
(i)for two (2) non-consecutive 10 day periods as agreed or, failing agreement, from 28 December 2012 to 7 January 2013 and from 17 January 2013 to 27 January 2013;
(c)in 2013 and for each year thereafter:
(i)for summer school holiday periods commencing in odd-numbered years, the first half of the holiday period (for the avoidance of doubt, Christmas day is included in the first half of the summer school holiday period); and
(ii)for summer school holiday periods commencing in even-numbered years, in the second half of the holiday period;
(d)for the purposes of subparagraph 3(c) herein:
(i)each summer school holiday period shall be calculated as commencing at 9:00am on the first day after the school term concludes and concluding on 9:00am on the last day before the school term commences; and
(ii)in the event that there are an odd number of days in the summer school holiday period, making it impossible to calculate the conclusion of the first half and the commencement of the second half of the holiday period (“the midpoint”), the midpoint shall be deemed to be at 9:00am on the morning in advance of the date closest to the midpoint; and
(e)in the event that the parties fail to agree as to the commencement and conclusion times for all periods defined herein, then such times commence at 9:00am on the first day and end at 9:00am on the last day of the period.
Effective immediately, unless otherwise agreed between the parties, for the purposes of facilitating changeover for all time that the children spend with the Father pursuant to these Orders and the Orders made on 26 October 2010, the following occur:
(a)the Mother deliver the children to the Father’s residence at the commencement of the children’s time with the Father; and
(b)the Father return the children to the Mother’s residence at the conclusion of the children’s time with him.
Both parties keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children move from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled.
Each party be restrained from denigrating, or permitting any other person to denigrate, the other party, any partner of the other party, or any family member of the other party, in the presence or hearing of the children.
Unless already complied with, the parties forthwith comply with paragraphs 13 to 18 inclusive of the Orders made by Sexton FM on
3 March 2010.
Both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to the children’s long term care, welfare and development.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Eriksson & Tinkham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5611 of 2009
| MS ERIKSSON |
Applicant
And
| MR TINKHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves an application by MS ERIKSSON (“the Mother”) against MR TINKHAM (“the Father”) for various parenting orders in relation to the children of the relationship namely, [X], born [in] 2004, (“[X]”) and [Y], born [in] 2007, (“[Y]”) (or collectively, “the children”).
The Mother’s application is opposed by the Father who seeks different parenting orders in relation to the children.
The matter initially came before the presiding magistrate at [omitted] Local Court on 8 September 2009; on that occasion the parties consented to an order transferring the proceedings to this Court.
The matter thereafter came before Sexton FM on 28 October 2009 and her Honour made interim parenting orders by consent (“the interim orders”). The interim orders related primarily only to [Y] and provided inter alia for:
·the parties to have equal shared responsibility for [Y];
·[Y] to live with the Mother;
·[Y] to spend time with the Father for various defined periods;
·changeovers at MacDonald’s Restaurant, [R]; and
·an airport watch list order.
Her Honour also made an order on that occasion for the parties to attend a Child Dispute Conference with a Family Consultant.
Sexton FM had previously made orders by consent on 21 December 2005 in relation to earlier proceedings commenced by the Mother against the Father in relation to [X] (“the 2005 orders”). The 2005 orders provided, inter alia, for:
·the parties to have joint responsibility for the long term care, welfare and development of [X];
·[X] to live with the Mother;
·[X] to spend time with the Father for various defined periods, increasing with her age;
·Changeovers to be at the parties’ respective residences, however this was varied by the interim orders to enable the Father to also collect [X] from MacDonald’s Restaurant, [R]; and
·an airport watch list order.
In respect of the current proceedings, the parties subsequently attended a Child Dispute Conference with Ms S, Family Consultant, on
15 February 2010 but were unable to resolve their dispute.
The matter returned before Sexton FM on 3 March 2010 and on that occasion her Honour made the following orders and directions for:
·a family report to be prepared;
·the matter to be listed for final hearing before me on 25 October 2010 and various trial directions; and
·the parties to undertake an initial post-separation parenting assessment with Centacare and for the parties to comply with the requirements of the nominated program.
The matter came before me for final hearing on 25 October 2010 (“the Final Hearing”). The mother was legally represented by Mr Fermanis of counsel and the Father was legally represented by Mr Sansom of counsel at the Final Hearing.
To their credit, the parties were able to significantly reduce the issues in dispute by the time the Final Hearing commenced. The dispute had essentially narrowed to two issues:
a)which party will facilitate changeover; and
b)whether the children should spend every Christmas period, that is from 24 to 26 December, inclusive, each year (“the Christmas period”) with the Mother.
Following the conclusion of the Final Hearing on 25 October 2010, I reserved my decision and made the following final parenting orders with the consent of the parties:
“…
2. The Orders made in the Federal Magistrates Court of Australia at Parramatta in relation to the child [X] born [in] 2004 be and hereby are discharged.
3. MS ERIKSSON (“the Mother”) and MR TINKHAM (“the Father”) have equal shared parental responsibility for and make joint decisions in relation to major long term issues effecting their children [X] born [in] 2004 (“[X]”), and [Y] born 25 July 2007 (“[Y]”) (and collectively referred to as “the children”).
4. Each party individually have the sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children on a day to day basis during periods when the children, or either of them, are living with or spending time with that respective party.
5. The children live with the Mother.
6. The children spend time with the Father as follows:
a. Each alternate weekend commencing 29 October 2010 from between 4:30pm and 6:30pm Friday until 5:30pm the following Sunday and extending to 6:30pm on Sundays during daylight savings periods in New South Wales, and extending to 5:30pm on Monday if Monday is a Public Holiday in New South Wales;
b. From between 4:30pm and 6:30pm Friday, 5 November 2010 until 6:30pm the following Sunday, 7 November 2010.
c. Commencing in 2011, for a period of four (4) nights for the first Eid festival each year, provided this period does not fall during time when either of the children would otherwise be in attendance at school, AND IF either of the children are in attendance at school during such periods, then the children spend weekend time with the Father during the first Eid festival each year from between 4:30pm and 6:30pm Friday until 5:30pm Sunday extending to 6:30pm during daylight savings periods in New South Wales;
d. Commencing in 2011, for a period of three (3) nights with the Father in the second Eid festival each year, provided this period does not fall during time when either of the children would otherwise be in attendance at school, AND IF either of the children are in attendance at school during such period, then the children spend weekend time with the Father during the second Eid festival each year from between 4:30pm and 6:30pm Friday until 5:30pm Sunday extending to 6:30pm during daylight savings periods in New South Wales;
e. Where the Father’s birthday falls on a weekend that the children would not otherwise be in the care of the Father pursuant to paragraph 6(a) herein then the children shall spend each such birthday weekend with the Father from between 4:30pm and 6:30pm Friday until 5:30pm Sunday, extending to 6:30pm during daylight savings periods in New South Wales, and not on the weekend of the Mother’s birthday;
f. In each even year only, if either [X] or [Y]’s birthday falls during the week, being a Monday to Friday, the Father will spend time with both the children the weekend after the birthday between 4:30pm to 6:30pm Friday until 5:30pm Sunday, extending to 6:30pm Sunday during daylight savings periods in New South Wales, only if the children are not already in care of the Father for that weekend;
g. Not during the period from 9:00am Good Friday until 5:00pm Easter Monday in each year;
h. During the first half of all New South Wales gazetted school holidays periods in Terms 1, 2 and 3 (“the School Term Holiday Periods”) in odd years and the second half of the School Term Holiday Periods in even years;
i. For the purposes of paragraph 6(h) herein:
i. Each School Term Holiday Period shall be calculated as commencing at 9:00am on the first day after the school term concludes and concluding on 9:00am on the last day before the school terms commences;
ii.In the event that there are an odd number of days making it impossible to calculate a midpoint, the midpoint shall be deemed to be at 9:00am the morning in advance of the date closest to the midpoint in odd numbered years and in even numbered years at 9:00am the morning before the date closest to the midpoint;
j. During the New South Wales gazetted Summer school holiday period in 2010/11 (“Summer School Holiday Period”):
i. From 9:00am 27 December 2010 until 9:00am
4 January 2011;
ii. From 9:00am 11 January 2011 until 9:00am
18 January 2011; and
k. At all other times, weekends, and occasions as agreed between the parties.
7. The time the Father spends with the children in accordance with paragraph 6(a) herein, but not the time the Father spends with the children during the Eid Festival, be suspended during the School Term Holiday Periods and the Summer School Holiday Period and recommence the weekend after the commencement of the school term.
8. Either party may communicate with the children when the children are not in that party’s care at all reasonable times and the parties shall facilitate such communication.
9. Each party will notify the other not more than 21 days prior to any change to their current residential address, mobile phone number and email address.
10. Both parties shall be at liberty to attend all official school functions and events along with special event days in which the children, or either may be involved and/or in which the children or either of them, are participating.
11. Both parties shall be at liberty to attend all extracurricular activities and events in which the children, or either of them, may be involved and in relation to which parents are invited or otherwise expected to attend.
12. The Mother and Father will forthwith, and will continuously until each child reaches the age of eighteen (18) years, provide all authorities and give all necessary consents to ensure that the principal and all staff at each child’s school, along with each child’s treating medical and health professionals from time to time, are authorised to communicate with, and provide information and copies of documents directly to, the Mother and Father upon either party’s respective request and at the requesting party’s own cost.
13.Both parties will keep the other informed of all serious medical and health issues affecting the children, or either of them, including any treatment obtained, sought or that which might be required within two (2) hours of any medical intervention being provided.
14.At all times when medication is prescribed for the children both parties will ensure at all times the prescribed medication is provided and the directions will be adhered to as set out by the treating practitioner.
15.The parties shall do all acts and things and sign all documents necessary to ensure that the children are known at all times by the names [X] and [Y], and both parties are restrained from using, or causing the children to be known by, any name other than [X] and [Y], and further neither party shall change either child’s name in any way or in any circumstances without written consent of the other party first obtained or further order of the Court.
16.Each party will notify the other party in writing of the address(es) and telephone number(s) of all place(s) where the children, or either of them will be staying overnight if such place(s) is not either party’s usual place of residence and the resident party will not be present with the children, and for this purpose:
a. If the children, or either of them, are staying with another person or persons, or are staying overnight at another person’s residence, without the resident party being present, the party organising and authorising such overnight stay will also notify the other party of the name(s) of the parents to whom the children will be in the care of 24 hours prior to the children staying overnight at the said third parties residence.
17. Unless otherwise agreed between the parties in writing, the parties agree that all discipline of the children will be the responsibility of the party with whom the children are in the care of and neither party will at any time allow any third party to physically discipline the children or either of them.
18. Unless otherwise agreed between the parties in writing, the Mother and Father, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [in] 2004 (female) and [Y] born [in] 2007 (male) from the Commonwealth of Australia.
19. The Marshal of the Federal Magistrates Court of Australia and all Officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to prohibit either party from removing or attempting to remove the children from the said Commonwealth of Australia.
20.Until further Order, the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s name on the Watch List also known as the PACE Alert System, at all points of arrival and departure into and out of the Commonwealth of Australia.
21. The Australian Federal Police maintain an Airport Watch list of the said children on all flights leaving an International Airport in all States and Territories of the Commonwealth of Australia.
…”
The consent orders contained the following notation:
“A. Paragraphs 18 to 21 herein reflect an airport watch list order already in effect pursuant to Orders made by consent by this Court on 28 October 2009 and the parties understand that the airport watchlist alert will cease upon each child attaining the age of 18 years.”
The parties agreed to the following order as to changeover on an interim basis for a maximum six month period:
“22. Changeovers occur as follows:
a. For a period not exceeding six (6) months, and subject to sub-paragraph (b) below, the Father will collect the children from the Mother’s residence at [address omitted] (“the Mother’s Residence”) between 4:30pm and 6:00pm on the days that he is to spend time with them pursuant to these Orders and the Mother will collect the children from the Father’s residence at [address omitted] (“the Father’s Residence”) at the conclusion of such time at 5:30pm extending to 6:30pm during daylight savings periods in New South Wales[.]”
The Father agreed to this interim order “in order to bridge the gap between the parties”[1] and by way of acknowledging that the Mother currently has an infant child with her new partner, Mr N.
[1] Father’s Outline of Case document dated 22 October 2010, page 2.
The parties also agreed for the Father to spend time with the children for two separate weeks during the forthcoming long summer holidays. This interim agreement would, by default, enable the Mother to spend the Christmas period with the children in 2010.
That said, the parties remained in dispute as to which party would facilitate the changeovers required for the forthcoming long summer holidays periods. By way of interim order I determined that the children’s best interests would be served by the parties sharing the required changeovers as follows:
“22. Changeovers occur as follows:
…
b. With respect to the Summer School Holiday Period:
i. On 27 December 2010 the Mother will deliver the children to the Father’s Residence and on 4 January 2011 the Father will return the children to the Mothers Residence;
ii. On 11 January 2011 the Father will collect the children from the Mother’s Residence and on 18 January 2011 the Mother will collect the chlidren from the Father’s Residence.”
At the time that I made this interim determination, I ascertained that
Mr N would not be working on 27 December 2010 and that the Mother would thus have a motor vehicle at her disposal.[2]
[2] Transcript, 26 October 2010, page 74.
Background
The Mother was born [in] 1979 and is currently aged 32 years. The Father was born [in] 1979 and is 31 years old.
The parties commenced cohabitation in early 2000 and married [in] 2004. The parties separated in March 2005 when [X] was an infant but reconciled in September 2006. The parties separated for the second and final time in late 2006 (according to the Father) or early 2007 (according to the Mother), when the Mother was pregnant with [Y].
The parties were divorced on 20 August 2007.[3]
[3] Orders of Registrar Cameron, dated 20 August 2007, in proceedings number PAC3353/2007.
Following separation and divorce, the Father has not re-partnered. He resides in [R]. His father, step-mother and younger siblings also live in [R]. His mother lives at [omitted] with his adult siblings from his parent’s marriage.
In September 2008, the Mother commenced a relationship with Mr N and they have been living together since July 2010. They are engaged and plan to marry soon. The Mother and Mr N recently had a child, namely [Z], on [date omitted] 2010 (“[X]”).
In January 2009, the Mother moved to [B] with the children. [B] is situated approximately 80km south of [R]. The maternal grandparents also live in [B].
The Mother is a full-time parent. Mr N recently commenced work as a [omitted] and is proposing to do some additional work [omitted].
The Father is a [omitted]. He is also enrolled in postgraduate studies on a part-time basis at [university omitted].
Issues and proposals
As stated, by the time the Final Hearing commenced, the dispute had narrowed to one about which party would facilitate changeover at the commencement and conclusions of all periods of time the children spend with the Father, and whether the children should spend the Christmas period every year with the Mother.
The Father also agreed, on an interim basis for a period not exceeding six months, to collect the children from the Mother’s residence between 4:30pm and 6:00pm on the days that he is to spend time with them and the Mother agreed that she will collect the children from the Father’s residence at the conclusion of such time.
Mother’s proposal
Consequently, in relation to the remaining issues requiring judicial determination, the Mother seeks the following orders, as outlined in the “Short Minute of Orders Sought by the Mother” contained within the Mother’s Outline of Case Document:
“6.2For all the New South Wales gazetted Summer school holiday (Term 4) period [X] and [Y] shall spend the first half of the school holiday period with the Mother in each year and spend two (2) weeks with the Father in the second half of the school holiday period in each year provided the father is able to obtain such holiday period in order to care for the child and provide 1 months [sic] notice of the dates he seeks for such periods;
…
11. For the purpose of facilitating change over for all time the children shall spend with the Father pursuant to these Orders (other than as otherwise stated) the Father or his nominee will pick up the children from the Mother’s place of residence at the commencement of the children’s time with the Father, and the Mother or her nominee will pick up the children from the Father’s place of residence at the conclusion of the time spent with the Father.”
Father’s proposal
In the Amended Response filed 21 October 2010, the Father seeks the following orders in relation to issues in dispute:
“17. That in addition to the time referred to at Order 6 above, and commencing 1 January 2010, the Father shall be entitled to spend up to and including X days (including overnights) block holiday time with [X] and [Y] in each calendar year to be exercised in one or more block periods between dates to be agreed between the parties, but failing agreement to be nominated by the Father provided that:
17.1 The Father shall notify the Mother in writing of the dates he nominates for holiday time not less than fourteen (14) days prior to the nominated commencement of each block holiday period; and
17.2 IT IS NOTED that the Father will use his best endeavours to exercise his block holiday time during school holiday periods applicable to the school at which the children attend from time to time to the extent the same is feasible having regard to his employment; and
17.3 IT IS FURTHER NOTED that a block holiday period may be of one (1) day and one (1) overnight in duration.
18. For the purposes of Order 7 above, X is deemed to be one half of the combined annual total of all school holiday days (inclusive of overnights) applicable to the school at which [X] attends each calendar year.
For example:
If [X] has a total of twelve weeks (equivalent of 84 days) of school holiday days in 2010, then the Father shall be entitled to spend block holidays with both children between dates he may nominate, up to and including 42 days (inclusive of overnights,) in the year 2010.19. Notwithstanding the provisions contained in Orders 15, 16 and 17 above, the children shall live with the Mother during the following periods, and the time the Father may have otherwise spent with the children during such periods of time will be suspended subject only to Order 20 below:
19.1 From 24 December (Christmas Eve) until 28 December (Boxing Day) in each even- numbered year;
19.2 From Good Friday until Easter Monday in each odd-numbered year; and
19.3 From 9:00am on the Mother’s birthday and Mother’s Day each year until 9:00am on the day after the Mother’s birthday each year.
…
22. That for the purposes of facilitating changeover for all time the children shall spend with the Father pursuant to these Orders, the Mother will deliver the children to the Father’s residence in [R] at the commencement of the children’s time with him, and the Father will return the children to the Mother’s residence in [B] at the conclusion of the children’s time with the Father.”
Family Report
Pursuant to orders made by Sexton FM on 3 March 2010, a Family Report was prepared by Dr G, Regulation 7 family consultant, dated
29 September 2010 and was released to the parties the following day by Scarlett FM (“the Family Report”).
The interviews and observations for the Family Report were conducted by Dr G on 21 and 25 September 2010.
Dr G outlines the history of the parenting arrangements and proposals for the children in paragraphs 1 to 9 of the Family Report.
As to the proposals she states at paragraphs 8 and 9 that:
“8. The applicant Father agrees for the children to live primarily with their Mother and spend every second weekend and half school holidays with him. He wants to be an active and involved co-parent.
9. The respondent Mother would like the travel associated with the children’s time with their Father to be shared, or alternatively that the parties meet half way between the two homes. She would like [Y]’s time spent with his Father to continue to be phased in at the child’s pace. She would like handovers to be at a public place.”
Dr G outlines the issues in dispute in paragraphs 10 to 12:
“10. Many of the outstanding issues are now agreed to.
·It is agreed that the parents have joint parental responsibility.
·It is agreed that the children live primarily with their Mother.
·It agreed that both children spend every second weekend and part of school holidays with their Father.
·It is agreed that the children are not to be removed from the Commonwealth of Australia and that their names should be included or remain on the Airport Watch List.
·It is agreed that the children should spend blocks of holiday time with their Father but in [Y]’s case the Mother prefers that the blocks of time be ‘built up’ gradually.
·It is agreed that the children be instructed in both the Christian and Moslem religions by their respective parents, and that the children not be pressured into adopting one or the other religion, but make their own decision when they attain maturity.
11.The most contentious issues pertain to the travel arrangements for handover. The Mother claims that she is now unable to travel outside the [B] area every second Friday evening to deliver the children because she does not have a vehicle and also she has a ten week old baby which hampers her ability to use public transport. The Father claims that he is unable to travel to [B] on Friday evenings to collect the children at a suitable time. He is non negotiable that the Mother should bring the children to him in Sydney on Friday evenings as she can set out at 3.30pm after school. There is an impasse over this issue. The Father is non negotiable that he must spend two nights per fortnight (rather than one) with the children to have a significant and meaningful relationship with them.
12. The Mother prefers that handovers occur in a public place rather than the respective parents’ residences. The Father prefers that handovers taken place in a more natural setting like the home.”
Dr G described the relationship between the parties in paragraphs 13 to 15 as follows:
“13. The Mother is somewhat intimidated by the Father. The Father feels that the Mother is trying to marginalise his role in the children’s lives.
14. The applicant Mother claims that her relationship with
Mr Tinkham was a mentally and emotionally abusive one. She claims that she was constantly bullied into doing everything that the Father wanted and that this dynamic continues to this day.
15. The respondent Father finds the Mother ‘vague’ and ‘inconsistent’. He perceives her as ‘paranoid about my intentions’ and ‘believes I am intent on controlling her’. He perceives her as a ‘really loving mum’ and that they have ‘grown in different directions’.”
Dr G thereafter outlines her interviews with the parties and Mr N in paragraphs 16 to 29.
Dr G describes her interviews and observations of the children with the parties in paragraphs 30 to 41 of the Family Report. This is discussed later in this decision.
Dr G thereafter provides the following evaluation in paragraphs 42 to 51 of the Family Report:
“42. The main impasse relates to the handovers to the Father every second Friday evening. This is a logistical and problem solving exercise and can be worked through if the parents approach it with an open mind.
43. I am of the view that the Mother’s reasons for not being able to deliver the children to the Father every second Friday evening have merit. I am satisfied that her partner cannot relinquish the family car at that time, and that he cannot do his Friday evening shift at any other time, eg. on the following day. I can certainly understand the Mother’s resistance to taking three children, including a very young baby, on public transport from [B] to [R] on a Friday evening, and am of the view that she should not be required to do so. It should also be noted that the Mother has some post-partum health issues.
44. I can also understand the Father’s frustration with the situation. He feels that he cannot have a meaningful relationship with his children if they spend only one overnight a fortnight with him. He is strongly of the view that the Mother knew she had pre-existing commitments for Friday handovers both when her partner took this new job and also when she sold their second car. To him it is symptomatic of what he perceives as the Mother’s attitude that the children’s relationship with their Father is of secondary importance.
45. From the perspective of the children’s welfare, it is better that they set out on the journey to Sydney earlier on a Friday evening than later. Optimally they should set out at the conclusion of [X]’s school day. If they can be handed over to the Father at 5.30pm they can have a pleasant evening with him and can participate in normal family life on that night (meals, bath, bedtime rituals). Thus I would urge the Mother to make enquiries of her family members whether she can borrow a car from them or otherwise be transported by a family member. The choice of whether to take [Z] on the trip would then be entirely up to her. This would be the most satisfactory course of action by far from the children’s perspective.
46. There may also be merit in the Father’s recent offer of purchasing a vehicle for the Mother. At the very least it must be seen as a token of his good will and his commitment to the children.
47. I am of the view that the Mother’s resistance to Friday evening handovers also relates to her protectiveness of [Y]. It has been a difficult process for her to let go of [Y], bearing in mind that the separation took place during the pregnancy. It also took some time for [Y] to start to feel secure with his Father. The Mother by her own admission is more comfortable with [Y] spending one overnight per fortnight with his Father rather than two consecutive nights. However [Y] is a very strong minded little boy (graphically illustrated in the observation) and is coping well now with weekend stays with his Father. He is also articulate enough to state his wishes and needs. For instance in my interview with him he stated, ‘I need my Mum now’, a clear and assertive message with which I felt obliged to comply. He also sent clear and direct messages about his wants to his Father during the observation. I assess that [Y] can cope with two overnights a fortnight, especially as his sister will be with him, which will provide him with additional security and familiarity. To make special provision for [Y] for one overnight for a short period on an interim basis would prove a logistical nightmare unless the Mother was living in Sydney.
48. The Mother still suffers some feelings of intimidation from contact with the Father. Thus she prefers that handovers take place at a public place. The Father is strongly of the view that the children would find greater benefit from handovers at their respective homes. While I appreciate the rationale for the Father’s preference, I am of the view that the Mother’s feelings and need for emotional safety need to be respected, and therefore I suggest that handovers take place at the nearest McDonalds (which place should be specified in the order) to the parents’ respective homes. If in the course of time, should the Mother feel confident for handovers to take place at their respective homes, the parents are at liberty to consensually vary the handover place. No pressure should be placed on the Mother to do this.
49. The parents need to be careful not to criticise the other parent within hearing of the children, because these kinds of comments hurt children and also embroil them in a loyalty conflict. The children apparently have repeated things they have heard the other parent say. [X] and [Y] are very intelligent and articulate children, so the parents need to be on their guard about this.
50. The Father would be wise to allow [X] to openly call her Mother’s fiancé ‘Dad’ if she wishes. School children want to be part of a ‘normal family’ like their peers and have an ‘in house’ Dad. At this time [X] has a positive relationship with her Mother’s partner. If the Father does not allow her to freely express herself, she will learn to be on her guard with her Father and censor her behaviour and comments with him. Mr Tinkham’s status as ‘Baba’ the children’s ‘real Dad’ has never been at issue.
51. It may also be expedient for the Father to ensure that he supervises the children at all times when they are visiting with his young step-siblings at the home of the paternal grandfather, to allay the Mother’s concerns that the children could be exposed to inappropriate forms of play.”
Finally, Dr G provides the following recommendations on pages 19 and 20 of the Family Report:
“...
·That the children spend every second weekend with their Father from Friday 5.30pm until Sunday 5pm.
·That the travel be shared between the parents such that the Mother delivers the children to [R] at 5.30pm every second Friday and the Father delivers the children back to [B] every second Sunday at 5pm (6pm in daylight saving).
·I recommend that the local McDonalds should be specified in the orders as the handover place until both parents feel comfortable to vary this.
·That the children spend blocks of holiday contact with their Father.
·That [Y] builds up his block holiday time with his Father gradually over the next twelve months so that when he turns four he is spending the same blocks of holiday contact with his Father as [X] does.
·In my view, until the children reach primary school, ideally the blocks of contact should be for one week, and two one week blocks during the long Summer vacation, unless a special holiday away is planned.”
Evidence
Both parties provided me with affidavit and oral evidence.
The Father required Mr N for cross-examination. Unfortunately, as it became apparent that Mr N was present in Court during the time that the Mother gave evidence, I determined that it would not be proper for him to give oral evidence. Consequently as stated below, the Mother chose not to rely on Mr N’s affidavit sworn 1 October 2010 and filed
7 October 2010.[4]
[4] Transcript, 26 October 2010, page 40.
Dr G was also required for cross-examination by the parties’ counsel and I agreed to commence the Final Hearing with Dr G’s evidence.
Dr G’s evidence
I apprised Dr G prior to her giving evidence of what agreement the parties had been able to achieve and the two specific issues that remained in dispute. Dr G subsequently confirmed, in response to a question from me, that she did not seek to make any changes to her recommendations in light of that appraisal.[5] She also confirmed that she had spoken to the parties separately, and to Ms E (“the maternal grandmother”), prior to giving evidence.[6]
[5] Transcript, 25 October 2010, page 18.
[6] Ibid, page 19.
Mr Sansom, for the Father, commenced his cross-examination by asking Dr G the following:
“…Doctor, the first issue I just want to address with you briefly is this, as I understand the Mother's proposal, I'll be corrected if I am wrong, that if the Father can't continue with his Friday afternoons picking up the children from [B], after six months his time would revert to start from a Saturday morning; now just understand that to be the background to the question if you would?
‑‑‑All right, then.
Now just in relation to that, can I make this suggestion: that if that were the case, and his periodic or alternate weekend contact became Saturday morning, Sunday afternoon, can I make this suggestion that it is not as conducive to a meaningful relationship being established over time with two young children as will be the case if it were two evenings?
‑‑‑I agree with that.
…
Now just in relation to that further, if the children start spending time from ‑ given their ages ‑ they start spending time with their Father from Friday evening shortly, at the end of the first six months, if the Father were unable to continue with that arrangement, and the time he were thereafter to spend with them were to revert to a Saturday morning, would the children, do you think, suffer any sense of loss or change as a result of being started, and then cut back on their time with their Father?
‑‑‑Well, it depends on what their experience is, but in general terms, I agree with your proposal or your submission that two nights is going ‑ a fortnight ‑ is going to promote a more meaningful and significant relationship, in theory, than one night a fortnight.
And certainly would it be the case, you would agree in principle at least, that as the children get older and develop over the years that come, one night will become more and more inadequate in terms of the development of their relationship with their Father?
‑‑‑Well, probably, yes. Look, things change, don't they? Things ‑ as we know too well, but, look, I support the idea of two consecutive nights.”[7]
[7] Ibid, pages 19-20.
Mr Fermanis, for the mother, commenced his cross-examination of
Dr G by questioning her in relation to the significance of the children having never spent the Christmas period, and more specifically Christmas Day, with the Father, and the possible impact upon the children should any change occur.[8] To these questions Dr G responded as follows:
“They're very young. I mean, you know, I don't know that I would want to call that a significant change. It would be a change, but they are very young. There hasn't been a lot of history of Christmases yet, has there, especially with the little fellow.”[9]
[8] Ibid, page 22-23.
[9] Ibid, page 22.
While Dr G acknowledged the religious significance of both Eid and Christmas for the Islamic and Christian religions respectively, she also acknowledged that the Christmas period, in particular, is a cultural event as much as it is a religious event.[10] Dr G stated that Christmas:
“… is a special occasion in Australian culture and society, and the Father, we hope, is integrated into … I'm not sure whether he was born here or not, but he has been here for a very long time, and there is an argument for him to be integrated into our culture and society and its festivals and traditions. So in that sense, I can see that, you know, there is an argument for him celebrating Christmas with his children …now that's just from the adults' perspective. From the children's perspective, there may be an expectation that they spend, you know, a special occasion like Christmas, which is the big culture festival of our calendar, with both of their parents. Maybe the children, as they're growing up, might like to spend some of Christmas with both of their parents. So I don't know if I've helped you, I think I've just complicated the picture more, but certainly there are different ways of approaching this and different points of view, and by far the simplest is to say if the Father has Eid, then the Mother has Christmas.”[11]
[10] Ibid.
[11] Ibid, pages 22-23.
Mr Fermanis also asked Dr G about the dispute between the parties as to changeover. He commenced his questions by stating that while the parties have agreed that changeovers are to take place at each other’s respective residence, they remain in dispute as to whether the Mother should deliver the children to the Father on Friday afternoons or whether the Father should collect the children from the Mother.[12] He then asked Dr G:
“…you'll agree, that … in your report you say I can certainly understand the Mother's resistance to taking three children, including a very young baby, on public transport from [B] to [R] on a Friday evening?
‑‑‑Yes.
And you also say that you're of the view that she should not be required to do so?
‑‑‑Yes, absolutely.
[12] Ibid, page 23.
And is it fair to say that this view is not just a short‑term view, but a long‑term view?”
‑‑‑Yes.”[13]
[13] Ibid.
At this point Mr Sansom advised that the Father did not propose that the Mother use public transport at any stage to facilitate changeover.[14]
[14] Ibid, page 24.
As a consequence of this concession, Mr Fermanis asked Dr G:
“If it is the case that the Mother is not in a financial position …to purchase a motor vehicle, maintain a motor vehicle?
‑‑‑Yes
… would your view be that the Father would be better positioned to pick up the children from the Mother's residence on a Friday?
‑‑‑Well, see, there's different sorts of resources that make people better or less well positioned. The Father may have financial resources, but he has got work restraints, although I'm told that he has a work contact that is quite liberal and allows him a lot of flexibility to get the children. The Mother certainly has financial restraints and she does have resources in extended family, but we've canvassed that pretty extensively this morning, and it seems as though there is no assistance at hand for her. Everyone has a good reason for why they can't do it. The reasons seem to be quite sound, and that's what has led to the stalemate.”[15]
[15] Ibid, page 24.
I then asked Dr G some questions. In answer to one of these questions Dr G agreed that, in principle, there would be merit in the children being collected from, and returned to, school during school terms. However, Dr G went on to say that any benefits such an arrangement would have for the children would be met by countervailing challenges; one particular challenge being the distances to be travelled by the Father to implement such an arrangement and the chance of further discord between the parties that this may entail.[16]
[16] Ibid, page 27-28.
Dr G also confirmed to me that she had not changed her recommendation that the children should spend two nights every fortnight during school terms with the Father despite the obvious geographical and related problems.[17] She acknowledged that young children often take some time to become “accustomed” to any change associated with alternate weekend time.[18] She stated that:
“It is very common for young children to have difficulties with ‘transitions’" that's the word, with transitions, just emotionally. So the two nights enables that, your Honour, and also it enables the children to participate in bedtime rituals, you know, doing meals together and bedtime stories, and those sort of ordinary parenting things, you know. I think that's very important for the non‑resident parent to be involved with the children in a variety of contexts, not just a going out and entertainment context, but the day‑to‑day routines in a household.”[19]
[17] Ibid, page 28.
[18] Ibid.
[19] Ibid.
In relation to my question as to the benefit of the parties having further counselling and completing their respective parenting assessments,
Dr G stated:
“At this point in time, to be perfectly frank with you, I can't see that any intervention would [be of] assistance [to] them. Perhaps, you know, later on it might, but at this time I think they need a good set of orders that they can manage and, you know, just pretty much do it”.[20]
[20] Ibid, page 29.
The decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 contains an authoritative statement about how family reports such as Dr G’s should be treated in proceedings such as this:
“In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; (1976) 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris (1977) 3 Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[21]
[21] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Given that Dr G is the only independent and expert party in these proceedings, the Family Report and her recommendations are entitled to be given considerable evidentiary weight.
Mother’s evidence
The following documents were relied upon by the Mother:
·Amended Initiating Application filed 27 September 2010;
·Mother’s Case Outline document and Short Minute of Orders Sought by Mother dated 25 October 2010; and
·
Affidavit of the Mother sworn 1 October 2010 and filed on
7 October 2010.
Given the narrow issues in dispute, the Mother did not rely on the following affidavits that were filed on her behalf:
·Affidavit of the maternal grandmother sworn 1 October 2010 and filed on 7 October 2010; and
·Affidavit of Mr N sworn 1 October 2010 and filed 7 October 2010.
The Mother also relied on two tendered documents:
·Document titled “Conditions of Sale of Mitsubishi Magna [registration omitted]” dated 19 June 2010 marked as Exhibit “AW1”); and
·Documents from [omitted] regarding the Father’s employment dated 17 May 2010 marked as Exhibit “AW2”).
The Mother presented as a capable parent who demonstrated her clear love and affection for the children. That said, her evidence about her financial circumstances, and in particular her reasons for disposing of her various motor vehicles, was largely unconvincing.
Of some significance was the Mother’s admission that Mr N and herself are planning on spending the Christmas period every second year with his family in Victoria.[22] Indeed the Mother agreed with the proposition that:
“…it would be fair to say that in year 1 … your preference is to spend Christmas with the children with your family in Sydney, or in [B], and in year 2 to spend time with the children and [Mr N’s] family in Victoria”.[23]
[22] Transcript 26 October 2010, page 28.
[23] Ibid.
Father’s evidence
The following documents were relied upon by the Father:
·Amended Response filed 21 October 2010;
·
Outline of Case Document of the Respondent father dated
22 October 2010; and
·
Affidavit of the Father sworn on 20 October 2010 and filed on
21 October 2010 (“the Father’s affidavit”);
Given the narrow issues in dispute, the Father did not rely on the following affidavits that were filed on his behalf:
·Affidavit of Ms P sworn and filed on 21 October 2010; and
·Affidavit of Mr T (“the paternal grandfather”) sworn and filed on 21 October 2010.
Generally speaking, the Father presented as a polite witness who appeared genuinely concerned for the children’s welfare.
Of some relevance to this dispute was the Father’s evidence that the paternal grandmother, who is divorced from the paternal grandfather, is “an agnostic at the best of times” and that her side of the family continue to celebrate Christmas.[24]
[24] Ibid, page 54.
The Father confirmed that he uses public transport to travel to and from his place of work, that is from [R] to [omitted] Railway Station, although he acknowledged there is a public car park near his workplace which he could utilise if he paid the daily parking fee.[25]
[25] Ibid, page 55.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of a child, or the children in this case, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case as different circumstances require different resolutions. That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act. I will consider these specific provisions in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child. In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, as stated in the recent case of Lindell & Ranteri [2010] FamCA 52, “…the general direction in life that is so important for children in teenage years”.[26]
[26] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for parents to have equal shared parental responsibility.
Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests, those interests being determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption is not applied or is rebutted, then the Court must still make an order which is in the best interests of a child, again taking into account the considerations in s.60CC of the Act.
There is no dispute between the parties in this case that each should have equal shared parental responsibility for the children. Indeed, an order to that effect has been in place for [X] since 21 December 2005 and in respect of [Y] since 28 October 2009.
It is also noteworthy that Dr G did not recommend against equal shared parental responsibility being maintained.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA(1) and (2) of the Act to consider whether a child’s best interests would be served by making an order that a child spend equal time, or alternatively substantial and significant time, with each of the child’s parents. Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent 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.”
In considering the reasonable practicality issue, s.65DAA(5) requires the Court to 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.”
These statutory provisions are particularly relevant in this case because the parties both accept that they will be living a reasonable distance from one another and hence the spend time orders need to factor in that reality. The parties have largely agreed on the periods of time that the children will spend with the Father, including during school terms on alternate weekends from between 4:30pm and 6:30pm on Friday until 5:30pm on Sunday (and extending to 6:30pm on Sundays during daylight savings periods in New South Wales, and extending to 5:30pm on Monday if Monday is a Public Holiday in New South Wales).
The Father, of course, raises an issue about whether the quality of the time the children will spend with him will be diminished if he is required to drive to [B] after work on alternate Fridays to collect them.
Best interests of the children
As stated, the Court is under an obligation to make parenting orders that it determines are in the children’s best interests. For this purpose, the Court will now turn to consideration of the factors in ss.60CC(2), (3) and (4) of the Act in the context of this case.
Primary considerations: s.60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence of the parties that both accept the need for the children to have a meaningful relationship with the other party. Where they differ is on how this can be achieved.
As stated, the Father asserts that the quality of time the children will spend with him will be diminished if he is required to drive out to [B] after work on alternate Fridays during school terms to collect them.
Dr G was clear in her recommendations that during school term “the children spend every second weekend with their Father from Friday 5.30pm until Sunday 5pm”.[27] Moreover, she recommended that that the parties should share the travelling involved in changeovers, with the Mother delivering “the children to [R] at 5.30pm every second Friday and their Father delivers the children back to [B] every second Sunday at 5pm (6pm in daylight saving)”.[28]
[27] Family Report, page 19.
[28] Ibid.
Dr G also recommended the children spend “blocks of holiday contact with the Father” and that this holiday time be gradually built up “over the next twelve months”.[29]
[29] Ibid, pages 19-20.
With the exception of the two areas of dispute to be determined by this decision, the parties have largely adopted, or adapted, Dr G’s recommendations.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are no relevant matters of assistance here.
Additional considerations: s.60CC(3)
Section 60CC(3)(a): any views expressed by the child and any other 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
In the Family Report, Dr G records her interviews and observations of the children with the parties in paragraphs 30-41 as follows:
“30. [X] aged 5 years and 10 months old presented as a confident, sociable child. Her Mother perceives her as ‘happy’ and ‘very outgoing’ but also a ‘sensitive’ child who ‘takes things to heart a lot’ for example, imagined or real slights from friends at school. Her Mother perceives her as ‘so perceptive and intelligent’ that she is not sure if she should take the things that [X] says on face value, as she may be trying to please her parents. She perceives that [X] is critical of the way the Father sometimes treats the Mother and also of the way he speaks about her, for example, in saying that she is ‘lazy’.
31. [X] told me that her ‘real Dad’ is ‘Baba’ and her step Dad is [Mr N]. She calls [Mr N] ‘Dad’.
32. When asked her favourite person and the one she is closest to, she nominated Baba, but then added, ‘I have another favourite, Mummy and [Mr N].’ She ranked her paternal grandmother next, followed by her brother and then her baby brother.
33. When I asked her whether she would like to spend more time with Dad, less time or if it is ‘just right’ she answered ‘just right’. She said that she likes to go to the park and the beach with her Father. She likes him playing with her and also playing the Barbie game on the computer. She likes Dad’s place a lot because she enjoys ‘going up stairs’.
34. When given a forced choice between her two parents of who she would like to tuck her in at night, she replied ‘both’. When asked who she likes to look after her when she is sick, she thought for a long time then replied, ‘[Z], cause he cries and hurts my ears. Once he was crying so loud my cough went away.’ (This is a good example of how children can attribute causality because two things occur concurrently. Children can make misattributions and blame themselves for things).
35. [X] said that she was excited about going to her Baba’s for a week in the school holidays. Holding up both hands she said, ‘I’m going for this many days’. She thought that the Easter show might be on again and she would get another lolly bag. [X] said that [Y] doesn’t go with Dad, ‘only for one day and then he says, I want to go home to Mummy.’ [X] was pleased about this because she can be the special one.
36. I asked [X] whether Mummy and Daddy liked each other and she replied that they never talk, ‘because Baba is mean to Mummy and shouts at Mummy sometimes’. When I asked her if she had heard this she replied that she does not hear it anymore, but did when Mummy used to go to his house. When I asked her if Baba and [Mr N] liked each other she replied that they don’t, because Baba had told her ‘Don’t call him Daddy’. I asked her to tell me more about that and she replied that she had replied, ‘Nup, I want to’ and Baba had made her upset and she cried. I asked her whether her Father was angry and she replied, ‘No he was yelling’. She added, ‘I call him Daddy when Baba doesn’t know’.
37. [Y] aged 3 years and 2 months old presented as an extremely confident, independent child for his age. He presented as strong-minded, determined and very focussed on particular activities. He was observed to articulate his needs in a very assertive and articulate manner to adults on a number of occasions.
38. His Mother described him as ‘a typical little boy’ who ‘runs amok and gets into mischief’. He is ‘more of a daredevil’ than his sister. While he ‘loves his Dad’ the Mother perceives that [Y] is closer to her than to his Father. The Mother perceives that [Y] used to have trouble leaving her to go with his Father, but now perceives that he goes happily with his Father, particularly if it is for one night only.
39. His Father told me that [Y] ‘thinks he is a little man’. This comment was elicited after the Father, on meeting me, shook my hand, and [Y] then also wanted to shake my hand. The Father, quite surprised and amused, commented to [Y], ‘That’s very gentlemanly [Y]’.
40. I was not able to interview [Y] about the family, so intent was he on his own activities He was quite happy to accompany me away from his Mother, but could not maintain enough focus on my questions to interview him. I don’t have any concerns about this. He is only three. Much was learned about [Y] by observing his behaviour.
41. During the observation with his Father, who had been tasked with reading the children a story, [Y] announced that he was ‘reading my own story’ and went to a different part of the room and ‘read’ another book. Several times he went back to his Father to tell his Father about his alternate activity. The Father answered him politely and encouraged him to join in with him but did not force the issue. Towards the end of the story, [Y] became exasperated and came over to his Father and said, ‘I’m drawing with Nanny, so just be quiet.’ The Father replied, ‘Am I annoying you?’ [Y] replied ‘Yes, you have to be quiet.’ A few minutes later [Y] came over to his Father, pointed his finger at him in an accusatory manner and demanded ‘I want you to quiet down. Just close it (the book). You have to close it.’”
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
There is no doubt that both parties love the children. In addition there are no concerns about the nature of the relationship of the children with each of the parties.
The parties also have extended maternal and paternal family relevant to the children.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
While both parties argue that they have individually been willing to encourage a closer relationship between the children and the other party, they make criticisms of each other in this regard. That said, the parties have been able to significantly narrow the dispute between them and make the necessary informed compromises to enable them to co-parent the children despite geographical constraints.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
As stated above, the parties live a considerable distance apart from each other. While there is a live issue about the need for the children and the parties to travel some distance to ensure that the children have a meaningful relationship with each party and their extended families, this difficulty is unavoidable, given the respective residential circumstances of the parties.
As to the dispute regarding the Christmas period, I am not satisfied that the children would experience any emotional difficulties in transitioning to a situation where they will spend Christmas in every second year with the Father and their extended paternal family. I note that this was also the view of Dr G. I also do not believe such an outcome will impact upon their on-going relationship with their new sibling, [Z].
I am also satisfied that the Mother’s wish to have the children spend every Christmas with her is not related per se to the religious significance of the period but rather its cultural significance and her wish to spend every second year away visiting Mr N’s family.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
I am satisfied that both parties have the capacity to provide for the children’s needs and generally demonstrated a positive attitude to the responsibilities of being a parent.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
There are no specific matters here that are of assistance.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Despite both parties being involved in the children’s parenting since their birth, each party questions the other’s parenting ability. I reiterate my earlier comments.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
This consideration is not relevant to the present dispute.
Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family …
There is no family violence order between the parties or impacting upon the children.
Section 60CC(3)(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
While I propose that any such order be subject to any agreement between the parties that benefits the children, it is clear that the parties will require specific Court orders to assist them in their future parenting.
The Court is confident that once these parenting proceedings are resolved and defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future. That having been said, I believe that the parties would be assisted by an order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.
In addition, the parties, and more particularly the Father, will need to complete their obligations pursuant to existing orders and fulfil the requirements associated with their respective post-separation parenting assessment by Centacare.
Section 60CC(3)(m): any other fact or circumstance that the Court thinks is relevant
I stated earlier at paragraph 57 that I found aspects of the Mother’s evidence regarding her financial circumstances, and her relatively recent disposal of two motor vehicles, “largely unconvincing”.
Although not part of the Father’s proposal, its was clear from the evidence that at some time prior to the Final Hearing the Father had offered to purchase a car for the Mother and provide some on-going financial assistance to assist with running costs (“the car proposal”). The Father asserts that the car proposal was rejected by the Mother.[30]
[30] See Father’s affidavit, paragraph 127.
Interestingly, Dr G discusses the car proposal in paragraph 46 of the Family Report and she states:
“46. There may also be merit in the Father’s recent offer of purchasing a vehicle for the Mother. At the very least it must be seen as a token of his good will and his commitment to the children.”
The Mother was questioned about the car proposal by Mr Sansom during cross-examination:
“So…can I make this suggestion, ma’am? Even without an accommodation from the NAB, or a settlement of the amount as owing to them, if you wish to, you could afford to find the money to facilitate you transporting the children on a Friday evening?
‑‑‑No.
You disagree with that?
‑‑‑I disagree, yes.
Then can I suggest that you could have certainly done so had you accepted the Father’s proposition that you – he buys you a car, and pay you $500 for its maintenance each year. You could have afforded the difference in terms of ongoing running and similar expenses, couldn’t you?
‑‑‑No.
Why not?
‑‑‑Because there is literally not enough money left over, after the expenses, and etcetera, to afford to run and maintain a second vehicle.”[31]
[31] Transcript, 26 October 2010, page 23.
It is noteworthy that the Mother subsequently acknowledged that her outstanding legal fees are now her greatest financial liability and that this debt “partially” explains her asserted inability to take the children from [B] to [R] on alternate Friday afternoons.[32] This is presumably because Mr N uses the Ford motor vehicle owned by the Mother to travel to and from his work. This is the only vehicle that the Mother now owns.
[32] Ibid, page 24.
It is also noteworthy that the Father cited his own legal expenses as the justification for the withdrawal of the offer to purchase a vehicle for the Mother.[33]
[33] See Father’s trial affidavit, paragraph 127.
The Court is also required under s.60CC(4) to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent”. In this case both the Mother and the Father have been involved in the children’s lives and, despite this particular parenting dispute, the evidence suggests they have been generally able to make the necessary major long-term decisions in relation to the children.
Conclusion
As stated earlier in this decision, the parties, to their credit, were able to significantly reduce the issues in dispute by the time the Final Hearing commenced. Consequently, with the consent of the parties, I was able to make comprehensive final parenting orders in respect of all matters excepting the contentious issues of changeover and the Christmas period.
Having considered the proposals and submissions in light of the available evidence, Dr G’s recommendations and the relevant statutory provisions, I am satisfied that in respect of the two issues in dispute the children’s best interests would be served by the orders sought by the Father but with some modification in respect of the Christmas issue and the summer school holiday period.
Consequently, for the purposes of facilitating changeover for all of the time that the children shall spend with the Father pursuant to these Orders, effective immediately, the Mother will deliver the children to the Father’s residence in [R] at the commencement of the children’s time with him, and the Father will return the children to the Mother’s residence in [B] at the conclusion of the children’s time with the Father.
In respect of the summer school holiday period commencing at the end of the school year 2013, the children will spend one half of the summer school holiday period with each of the parties, as agreed, and failing agreement, the first half with the Father and the second half with the Mother in summer school holiday periods commencing in odd-numbered years and each alternate year thereafter, and the first half with the Mother and the second half with the Father in summer school holiday periods commencing in even-numbered years and each alternate year thereafter.
Paragraph 6(i) of the final orders made with the consent of the parties on 26 October 2010 will be extended to cover the summer school holiday periods commencing at the end of the school year 2013 and onwards.
In respect of the summer school holiday periods commencing at the end of the school years in 2011 and 2012, there will be a gradual increase in the time the children spend with the Father. The orders will be drafted to enable the children to spend the Christmas period with the Father in 2011 and with the Mother in 2012.
Both parties will keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children move from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled.
There will also be an order directing the parties not to denigrate each other (or allow any third party to do so) in the children’s presence or hearing.
In addition, the orders will include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to the children’s long-term care, welfare and development.
Lastly, there will be final orders and notations to reflect this decision.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 12 May 2011
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