Fare and Fare

FAMILY COURT OF AUSTRALIA

FARE & FARE

[2010] FamCA 311

FAMILY LAW – CHILDREN – with whom a child lives – equal time – elder child estranged from mother – proposed move of about 20 kilometres and change of school

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA, 61C, 61DA, 65DAA and 68B

G and C [2006] FamCA 994
Lake & Karter [2009] FamCA 682

APPLICANT:

Mr Fare

RESPONDENT:

Ms Fare

FILE NUMBER:

PAC

3123

2008

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Parramatta

JUDGMENT OF:

Benjamin J

HEARING DATE:

15 & 16 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Family Law Matters

COUNSEL FOR THE RESPONDENT:

Mr Allen

SOLICITOR FOR THE RESPONDENT:

Harman & Co.

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Clifford

SOLICITOR FOR THE INDEPENDENT

CHILDRENS LAWYER:

Kate Weaver, Legal Aid NSW

Orders

All previous parenting orders with regard to E and G are discharged.
BY CONSENT the parties have equal shared parental responsibility for their children E born … May 1997 and G born … October 2002.
BY CONSENT E live with the father.
IT IS NOTED there are no specific orders for E to spend time and communicate with his mother, however, each parent will use their best endeavours to encourage E to spend time and communicate with the mother.
IT IS NOTED that the parents agree that it is in the best interests of E to continue to attend family therapy with Dr V, and that they each will use their best endeavours to encourage E to continue with that therapy and will facilitate E’s attendance at appointments and they have agreed to share equally any costs associated with such therapy.
G live with the mother except as otherwise provided in these orders or as agreed in writing between the parties.
G shall live with the father:
(a)subject to (b) of these for one half of each of the New South Wales school holiday periods as agreed between the parties, and failing agreement in the first half of each year ending in an odd number and the second half in each year ending in an even number.
(b)from 3.00 p.m. on Christmas Day to 7.00 p.m. Boxing Day in 2010 and each alternate year thereafter and from 9.00 a.m. Christmas Eve to 3.00 p.m. Christmas Day in 2011 and each alternate year thereafter. In the event that G is otherwise living with the father over the Christmas holiday period then G shall live with the mother from 3.00 p.m. on Christmas Day to 7.00 p.m. Boxing Day in 2011 and each alternate year thereafter and from 9.00 a.m. Christmas Eve to 3.00 p.m. Christmas Day in 2010 and each alternate year thereafter
(c)in the event that G is not otherwise spending Father’s Day with the father then she shall spend from 5.00 p.m. on Saturday before Father’s Day until the commencement of school the following Monday with the father.
(d)in the event that G is spending time or living with the father on the weekend of Mother’s Day then such time shall cease for that weekend at 5.00 p.m. on the Saturday preceding Mother’ Day.
(e)During New South Wales school terms as follows:-
(i)from the conclusion of school (or 3.00pm if there is no school attendance) on Friday to the commencement of school (or 9:00am if there is no school attendance) on Tuesday on each alternate weekend commencing on the first Friday of each school term in even numbered years and the second Friday in odd numbered years;
(ii)from the conclusion of school (or 3.00pm if there is no school attendance) on Wednesday to the commencement of school (or 9.00am if there is no school attendance) on Thursday on each other alternate week commencing on the second Friday of each school term in even numbered years and the first Friday in odd numbered years.
The mother be permitted to change G’s schooling from L Public School to B or K Public School from the commencement of the 2011 school year.
The mother and the father shall ensure that one another is kept informed about:-
a)any medical problems or illnesses suffered by the children or either of them while in their care;
b)any hospitalisation of the children or either of them as soon as practicable;
c)any medication that has been prescribed for the children or either of them while in their care;
d)the residential address of each party;
e)the telephone contact details of each party including their landline and mobile telephone numbers.
As soon as practicable from the making of these orders and within fourteen (14) days of the children’s subsequent enrolment at any school, the mother and father shall each do all things and give all authorities necessary consent to ensure that the staff of such school forward copies of school reports, merit cards, news letters and any other documents pertaining to the children’s academic achievements and behaviour and any other written material intended to be sent to the children’s parents and all correspondence relating to extra-curricular activities and events to each parent.
Both the mother and the father are at liberty to attend all school events and extra-curricular activities that the children are involved in where parental attendance is permitted by the school and /or activity organisers.
The parties are restrained from directly or indirectly discussing the orders with or in the presence of the children or either of them and directly or indirectly providing to the children or either of them a copy of the reasons upon which these orders are based.
The parties are restrained from imposing or allowing others to impose physical discipline upon the children or either of them.
The Independent Children’s Lawyer must, within two weeks from the date of these orders, personally inform each of the children (separately) of the nature and effect of these orders. In that respect the parties must ensure that the children are brought to an appointment at a time and place reasonably nominated by the Independent Children’s Lawyer.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

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

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: PAC 3123 of 2008

MR FARE

Applicant

And

MS FARE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Fare (“the father”) and Ms Fare (“the mother”) have two children, E aged 12 (almost 13) and G aged 7 ½.
These parents had an acrimonious breakup to their marriage and have been engaged in litigation in respect of their children since the second half of 2008.
At present E is reluctant to spend time with his mother and to some extent is alienated from her and he is angry with her.
The parties agree that E should live with the father and that the parents should have equal shared parental responsibility for him. At the commencement of the trial the only question for me to determine with regard to E was whether there should be an order requiring him to continue seeing a psychologist or whether it should be left to the parties. However, this was resolved by way of an agreed notation.
G lives primarily with the mother and her present partner, Mr D in the western suburbs of Sydney. The mother proposes to move to the Blue Mountains area with her partner and with G.
Pursuant to interim orders made 13 October 2008, G spends time with the father, during school term, from the conclusion of school on Friday until the commencement of school on Monday in week one, and from after school on Wednesday until the commencement of school on Thursday in week two.
In regard to G, her parents are in agreement about equal shared parental responsibility (which in the circumstances of this case is an appropriate arrangement) and are generally agreed in relation to the time G spends with each of them during half school holidays and special occasions.
Having regard to the mother’s desire to move to the Blue Mountains area, there are a number of questions. These include whether G should live primarily with her mother and spend each alternate weekend during school term with her father from the conclusion of school on Friday to the commencement of school on Tuesday (as is the mother’s view), equal time (as is the view of the family consultant). Alternatively to live primarily with the father and spend time with the mother each alternate weekend during school term from the end of school Friday to the commencement of school Monday in week one, and from after school Wednesday to the commencement of school Thursday in week two. The mother also seeks permission to change G’s school from L Public School to a school in the Blue Mountains area.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context.

BACKGROUND

The father, aged 42, is a teacher who lives with E at a western suburb of Sydney situate at the foot of the Blue Mountains.
The mother, aged 38, works part time in a supermarket and lives in a western suburb of Sydney. The mother has re-partnered and shares her residence with G and Mr D. He operates a business in the Blue Mountains. He has three children from a previous relationship and they visit him on a regular basis.
G is attending L Public School and is in year 2. E is in his first year high school and attends M School, there is no issue about him remaining at that school.
The mother is from a large extended family. She is one of six siblings. The mother has a close relationship with her parents who live at K in the Blue Mountains. The mother’s brothers and sisters live in the Blue Mountains. The mother says, and I accept that she is close to her family.
The parties married in April 1996 and separated on 24 June 1997. A divorce order was made on 16 March 2010.
After separation the father remained in the former matrimonial home, where he continues to live. This home is owned by his parents. He says, and it is not in issue, that the children have a good relationship with his parents, who live close to G’s school. The father says that he has two siblings and he has a good relationship with them. The mother does not concede that fact. However, the determination of that fact does not have any significant bearing on the issues to be determined by me.
The circumstances of the parties’ separation represent a significant issue of fact which I will deal with later in these reasons.
After separation the mother and G moved to a home of a friend for about two weeks. She then moved to the home of her sister in K for a period of time. The mother then moved back to Sydney and whilst living in that town she met her present partner Mr D. In June 2009 the mother moved in with her present partner at his home in the western suburbs of Sydney. That home is on the market for sale and both Mr D and the mother believe that it will be sold some time this year. Once it is sold it is the intention of the mother and her partner to move to the Blue Mountains area.
The father lives in L. L is a suburb of Sydney which is on the western side of the Nepean River and at the base of the Blue Mountains. It is about nine kilometres from the mother’s current home. L is about 18 kilometres from B in the Blue Mountains. K is about 30 kilometres from L.
With great respect to the parties, none of these distances are extraordinary and this is not a so called “relocation case”. The two primary remaining issues are with whom G should generally live with and which school G should attend from 2011 onwards.
There was an issue about the father’s relationship with a friend “Ms T” whom he had known about nine or ten years. It is clear that the father and Ms T do not live together although it is the father’s wish that they will eventually form a relationship. The father’s evidence in relation to his partner was initially problematic but in any event no one is complaining about Ms T or her involvement with the children.
During the course of the hearing I noticed that there was an application filed in the Federal Magistrates Court, by the father, seeking an order for divorce. Rather than force the parties to return to the Court on another occasion after the proceedings had been finalised, I arranged for that application to be transferred to the Family Court and made that divorce order on the second day of the trial.
By the time the trial had concluded the mother had agreed that there ought not to be any orders for E to see her although both parties said they would encourage E to develop a relationship with the mother.
During the trial there was an issue as to whether there ought to be an order requiring the father to take E to counselling with Dr V. The parties submitted, and I accept, that E’s involvement with Dr V should be voluntary. However, I will note that both parties will encourage E to continue his relationship with his mother and to continue the counselling with Dr V.

THE EVIDENCE OF THE PARTIES

Dr V provided a report in her affidavit filed in court and sworn 12 March 2010. Dr V is qualified as a psychologist and those qualifications were not challenged. E and his parents have seen Dr V for family therapy on a number of occasions between January and July 2009. Following Orders made in December 2009 Dr V saw the parents for one session together. Another session was organised in March 2010 but was cancelled because E was ill.
In Dr V’s report she observed that the details of the issues discussed with the parties and E were not included as they were confidential.
In her report Dr V observed:-
[E] continues to harbour considerable anger towards his mother for her abandonment of him. He sees her past behaviour as unforgivable and as having destroyed his life [from obvious perception]. He also feels angry towards his mother for having been critical of his father’s family. [The mother] seems unable to acknowledge this and retaliates by accusing the [father’s] family for not having been supportive of her and her family. [1]
[1] At pages 1 and 2 of the report.
Dr V goes on to say that E will “feel more relaxed and relieved”[2] once the pressure of the Court case has abated. She also says that if the father has formed a new relationship, this is likely to disrupt the family system E has known in his father’s household.
[2] Ibid at page 2.
It is troubling that while living in the father’s household, since separation, E’s belief that his mother has abandoned him has been allowed to flourish.
Dr V was not called or cross examined on her evidence and it was admitted as it stood. I accept her evidence. It is upon this evidence that I will decline to make any particular orders with regard to E and make the notations asked of me.

The Father

The father relied upon an affidavit sworn by him on 9 March 2010 and filed on 10 March 2010.
The father was not an impressive witness. His evidence about Ms T was to initially understate the relationship and in cross examination it became clear that there was much more to the relationship than his initial assertion that it was “not a romantic relationship”. The relationship was not such as it would adversely impact on the parenting arrangements. He minimised its nature and prevaricated in giving this evidence.
The father was reluctant to make any positive comments about the mother and in many ways his evidence endeavoured to have the mother damned with faint praise.
At one stage the father was cross examined about the children’s maternal grandmother. He said that he had genuine fears for the safety of the children because he had seen the maternal grandmother grab G by the arm on one occasion. The father also said he did not like the maternal grandmother picking G up from school. He did not put this in his affidavit and there was a sense of exaggeration in terms of this evidence. At times when the father was presented with difficult questions, such as the assertion that he said to the mother “You haven’t got an education, you have no brains at all”, he said the he didn’t recall, although when pressed in cross examination he said that he did not regard the mother as being academically bright.
Observing the father’s demeanour in the witness box when answering questions he prevaricated and he was obscure in terms of his evidence. He said that he had heard E call the mother “a bitch” and “an idiot” but did not recall any obscene language by E to the mother. I do not believe him on that point. I am satisfied that when E is abusive to or about the mother, the father does little to interfere.
I am concerned and troubled by the quality of the father’s evidence.
The father asserts that the mother has never had a close relationship with E even from before E was born. The evidence of the father was that the mother was much more loving and closer to G. He goes on to say that the mother was focused on G and did not meet E’s needs. During the course of the relationship the father worked full time and studied at a high level to obtain his qualifications as a teacher. He obtained qualifications and eventually became a teacher.
The father was cross examined in relation to a note that was annexed to the mother’s affidavit which was created sometime between the birth of E and the birth of G. The father said this note was the result of a joint effort by he and the mother. I do not accept that evidence, it is on any reading controlling and seeking submission by the mother to his requirements. I do not include the precise terms of the note in these reasons but I have had regard to them. The note sought to limit the mother’s smoking, her visits with her family, the quality and quantity of her housework, the frequency of their intimacy, her involvement with her friends and acquaintances and even the cost and quantity of hair care products. It made comment on the mother’s appearance, and challenged her intellect.
Whilst this note is many years old the controlling and manipulative nature of it was echoed in the father’s behaviour at and after the time of separation. This included his implicit and/or explicit support in E’s anger and sense of abandonment from his mother. I am satisfied that the father was controlling of the mother and that in the later years of the relationship actively alienated E from the mother. Since separation the father has done little to cure the rift between E and the mother and was content to allow that situation to continue. His evidence about the text message from E during a visit with the mother shortly before the hearing was at least indicative of the father having little regard for the relationship between that child and his mother.
The mother must, and does take, some of the responsibility for the alienation of E from her post separation but the father lacks the insight to see his own involvement and participation in that history. The worrying feature is how this would impact on G if she were to live full time with the father.
The father’s evidence was structured by him to meet his perceived needs and I have concerns over its quality.

The Mother

The mother gave evidence in accordance with her affidavit sworn by her on 11 March 2010 and filed 12 March 2010. The mother’s evidence was frank although at times I am satisfied she understated the level of discipline she imposed upon the children, in particular E, and her use of language. The evidence shows that from time to time the mother lacked insight, this particularly having regard to the evidence of Dr V.

The mother believes that the father is arrogant and has not supported her and has alienated E from her. I am satisfied this evidence is accurate
The counsel for the father submitted that the mother’s evidence was unreliable. He went further to suggest that her evidence be treated as at least disingenuous and at times mendacious, he submitted it was clearly careless. I do not accept that assessment of the mother’s evidence and, as I have said earlier, she is a witness who endeavoured to be truthful from her own perspective of her own subjective foundations.
The mother was criticised by counsel for the father in terms of her evidence on physically disciplining E. I am satisfied that she was frank in that evidence and was not endeavouring to minimise what had been said. If there is criticism of the mother’s evidence I assess that it was as a consequence of her nervousness in giving evidence.
I generally prefer her evidence to that of the father.
The mother has a history of depression, although there is no sign of the illness at present, and she has show a willingness to acknowledge the problem and effectively address it. I have had regard to that history in terms of this determination.

The Mother’s partner Mr D

Mr D gave evidence in accordance with his affidavit sworn and filed on 12 March 2010. He is clearly attached to the mother and is endeavouring to support and assist her. I generally accept his evidence. He was an impressive witness.
Counsel for the father submitted that the evidence of Mr D ought to be treated with great care for a number of reasons set out in the document headed “Assessment of Evidence”. I have had regard to those submissions and I confirm my assessment that he was a witness of truth.
It was also submitted that Mr D ought not to be believed as he lacked insight, as indicated because of some of the answers that he gave. I am not convinced that is the case, Mr D (and for that matter the mother) are not sophisticated people and the delineation of their views is much sharper than others. That does not mean their evidence is not reliable. I am generally satisfied with his evidence.

The maternal grandmother

The children’s maternal grandmother gave evidence in accordance with her affidavit sworn and filed 12 March 2010. She does not think highly of the father. She was cross examined about an incident involving E and a spider. Apparently E was at his maternal grandparent’s home and saw a spider and asked it to be killed. His grandparents did not do so as the spider was some distance away and E became agitated and upset. They moved him inside. The maternal grandmother denies she has teased E about this incident since that time. I accept her evidence, she cares deeply for these children and she endeavoured to give her evidence frankly. I generally accept her evidence.

The family consultant

Evidence was given by the family consultant, Ms M, in terms of her report dated December 2009. Ms M is a psychologist and her qualifications were not challenged.
Ms M (“the family consultant”), recommended that there be an order for equal shared parental responsibility (which is the agreement of the parties), she also recommended that G live with each parent on an equal arrangement during alternating weeks. She also recommended that G should live with the father and spend time with the mother, each alternate week from after school on Friday to the commencement of school Monday morning, if the mother were to relocate to the Blue Mountains. This would involve a change from the current status quo.
The family consultant was concerned about the high levels of anger exhibited by E (this was also reflected in the evidence of Dr V). Ms M said that if this anger continues E is likely to suffer depression in puberty, and with the levels of anger combined with his feelings of rejection by his mother is likely to act out in unsatisfactory ways. In the long term the anger and feelings of rejection could also impact on E’s adult relationships in the future.
The family consultant observed that G wishes to spend more time with the father and misses her father. The family consultant said that when a shared care arrangement was explained to G, she was open to an equal time arrangement. The family consultant observed that when with the father both formally and informally, G was noted to need his attention and closeness. This was part of the basis upon which the recommendation of equal time was made.
The family consultant expressed the view that if the mother relocated to the Blue Mountains it would significantly reduce the amount of time that G would be able to spend with her father and E. She said this was not assessed by her as being in G’s best interests.
In terms of staying at school, the family consultant said that G would cope with the change but that G is settled and happy in her school and the school community. It is significant that she did not say that G should live with the father just that she wanted more time with the father.
I was concerned that the family consultant had not fully considered the alienation of E from the mother and the possibility that the same could occur with G if she were to spend most of her time in the care of the father.

RELEVANT LEGAL PRINCIPLES TO BE APPLIED

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.
The principles set out in s 60B(2) that underlie those objects are that, except when it 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).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[3] for the child, subject to subsections 2, 3, 4 and 5.
[3] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is found to apply and is not rebutted, as not in the best interests of the child, an order must be made in accordance with s 61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s 61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:
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).
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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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);
(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)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
A court also needs to evaluate the nature and quality of the parent/child relationship.

Section 60CC(2) Factors
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

G has been in the primary care of the mother since her birth. Since separation this has remained the case although G spends significant and substantial time with the father.
The relationship between the mother and E is problematic. I am satisfied that this is as a result of a number of factors including the hostility between the parties at the time of separation and the mother’s inability to manage E’s behaviour. However this must be seen in context and I am satisfied that the father has implicitly, and perhaps explicitly, supported E in his rejection of the mother. I accept the mother’s evidence that E behaved appallingly to her in terms of language and the father did not at least intervene.
The separation of the parties was traumatic for the children, in particular E. The father sets out his recollections of the events at separation in paragraphs 72 to 86 of his affidavit filed 10 March 2010. The mother describes the same events in paragraphs 47 to 72 of her affidavit filed 12 March 2010.
I am satisfied that the relationship between the parents had broken down in the weeks and months prior to separation. On 24 June 2008 an argument arose between the mother and E. I accept the evidence of the mother that the father said to E “you don’t have to listen to anything she [the mother] says”. I accept the mother’s version of events in paragraph 52 of her affidavit in which the oral argument between her and the father took place in front of E (for which both parties should hang their heads in shame).
The conflict between the mother and E continued and E was verbally abusive to the mother. The conflict escalated and became a physical fight as described by the mother. She said:-[4]
54.I said to [E] [about the play station] “It’s going” and walked towards his bedroom and unplugged the play station. [E] jumped on me and began to hit me and kick me and bit me on the back 4 times. [The father] was present and in the room and said nothing and did nothing.
55I left [E’s] room and walked away from him. [The father] said “I hope you’re happy” [E] followed me and grabbed hold of the play station and began to tug at it yelling at me … [The father] was standing looking at me and did nothing.
56. [E] let go of the play station and began to cry and went to his room and slammed the door.
57.A few minutes later [E] came out of his room and began to yell at me … [E] picked up a cushion and began to hit me with it. I smacked [E] across the cheek. [E] then began hitting, kicking and punching me.
58.Whilst this was happening [the father] was in the room and was standing looking towards us. [The father] did not say anything and was smiling.
[4] Filed 12 March 2010.
The father says of the same incident:-[5]
75While we were watching TV [E] then left the room and argued with his mother in the lounge room. I then heard both [E] and [the mother] yelling. I got up and walked out to the lounge room. [E] then walked back towards his room and [the mother] followed. I stood in the hallway at [E’s] door. [The mother] then proceeded to rip the PlayStation off the shelf, chords and all and it fell on the floor. [E] attempted to stop her while this was occurring.
76I observed [the mother] hitting [E] around the shoulders and head, her arms were flailing around and hit [E] all over the upper part of his body, face and head. I saw [E] trying to hit his mother back, there were arms everywhere, they were both hitting each other. At this stage I removed [G] from the situation to the lounge room and came back to separate [the mother] and [E].
[5] Filed 10 March 2010.
On balance, I prefer the mother’s version of those events to that of the father. In making that finding I accept that the mother’s evidence is subjective. Neither parent can take credit for that situation, the mother in terms of her clear loss of temper and physical hitting of E and the father for encouraging the conflict and facilitating its escalation. The father did not intervene until it was at a time that suited his advantage.
There was some evidence of the father during the hearing of a recent time when E went voluntarily to visit his mother. He sent a text to the father saying that he was upset with Mr D, the mother’s partner. The issue was that E needed to acknowledge Mr D and behave appropriately. The father’s response was at the surface adequate, but there was no real overt expression by the father to try and resolve the situation.
There is evidence that the father did not initially encourage the counselling for E and I am satisfied that part of the estrangement between E and the mother is a result of the father’s approach in accepting E’s behaviour and encouraging him to adopt the father’s view. In coming to that conclusion I generally accept the evidence of the mother in terms of the interaction between the parents and E.
The family consultant’s evidence was that there is prejudice to the child G moving to the Blue Mountains. I have considered that evidence in the overall assessment in the outcome of these proceedings.
I am concerned that should G spend equal time with the father or live with him most of the time during the school week the father will at least passively and possibly actively endeavour to alienate G from her mother, when it is in the child’s best interest to have a close and meaningful relationship with both of her parents. It is significant that despite the clear animosity between the parents, particularly since separation, G has continued to have a close relationship with the father. The mother ought to be given credit for that continuation, and it should be seen in the light of the relationship between the mother and E whilst E was in the father’s full time care.
The father claims that the mother has prevented him from having a close and positive relationship with G since separation, and gives some examples. Whilst this is the father’s sworn view it is not the fact. The father spends significant time with G and the evidence of the family consultant is of a positive and close relationship. The view of the father seems more in line with his desire to exercise dominance and control over the mother than the reality of the situation.

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

The father says that the mother hits E and that that is troubling. He submitted that there is a different relationship with G, although the father submitted that there was some evidence through E, that the mother hit and yelled at G and that Mr D yelled at G.
Earlier in these reasons I discussed and made findings in respect of the events at the time of separation. I am also aware of the incident in about Easter 2009 when E was hit in the face by the mother. Her evidence was that E had pushed over G and that G was very upset and had a large lump. The mother went to smack E on the arm but he ducked and was hit on the face.
I accept the mother’s evidence that there was no intent to hit the child on the face on this occasion.
At paragraph 59 of the father’s affidavit filed the 10 March 2010 he says;
When [G] tried to stop [the mother], I then saw [the mother] repeatedly hit [G] on her upper arms and back. [The mother] said to [G], “I will leave you at my mother’s for the day!”, which seemed to terrify [G] as [G] was pleading NO, NO NO". He goes on to say that ne noticed "three days later that G] still had welt marks on her body where [the mother] had hit her".
At paragraph 60 of his affidavit the father says he became aware that the mother had torn G’s dress in the process of getting G bathed.
I do not accept the accuracy of this evidence by the father.
The mother has shown a propensity towards physical discipline which, on at least one occasion was excessive and driven by anger. As such I will be making an order that neither parent impose physical discipline on either child.
The father’s behaviour in terms of his part in alienating E from the mother is worrying and I have had regard to that in this determination.

Section 60CC(3) Factors
(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;

There is no issue that E should live with his father and that the parents should have equal shared parental responsibility for him. These orders are consistent with E’s views as expressed to the family consultant.
G’s wishes are to spend more time with the father than she currently does. I accept the family consultant’s observations of G with her father supporting those sentiments as being genuine. When the family consultant explained the concept of equal time to G, she somewhat enthusiastically embraced the concept. However, counsel for the Independent Children’s Lawyer, noted that G has not said that she wishes to live primarily with the father.
Counsel for the mother submits that G’s comment to the family consultant that a shared care arrangement “would be so good, was not something suggested by [G], that it was clear that it was something which was put to her”.[6] He goes on to submit that the family consultant had failed to discuss with G, or discuss in the family report, “the contrary proposition as to whether [G] would miss or be affected by any diminution in her time with her mother”.[7] He goes on to say “[G] does not express any desire to reduce the time that she spend with her mother and the sole focus of the report has been upon views expressed by [G] in response to propositions put to her”.[8] I accept those submissions.
[6] Paragraph 1(c) of the mother’s case outline dated 12 March 2010.
[7] Ibid at 1(d).
[8] Ibid at 1(f).

(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);

I am satisfied that G has a good relationship with Mr D and has a good relationship with the mother’s extended family (and for that matter the father’s extended family).
G has a close relationship with both of her parents and they with her. She is close with E and will spend at least one half (and possibly more) of the school holidays with E and at least one half of the weekends in school term.
The mother has been the primary carer of G throughout her life.
Counsel for the father submitted that the mother’s evidence showed negative attitudes to the father which must impact upon the child G. As I have indicated earlier I reject this submission. G has done well at school and has developed a strong relationship with both her mother and the father. The mother needs to be given some significant credit for that. Clearly the mother is not fond of the father but her views of him do not go to the higher degree as submitted on behalf of the father.
The mother was criticised for wanting to move with Mr D to the Blue Mountains. This was said to be a personal choice whereby the mother (and indeed Mr D) put their personal choices ahead of those of the child.
That criticism is not warranted as the mother has family in the Blue Mountains and that is where she spent time subsequent to separation. There is work available for Mr D in the Blue Mountains and of course the mother’s extended family lives in and around K and B.
The mother is seeking to create a better life for herself, her partner and her children. I do not accept that that is a mere personal choice but is clearly a considered decision by the mother.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

The father wanted G to live with him or spend equal time with him. Whilst intellectually the father may be better for G, I have concerns about his ability to promote G’s relationship with her mother, bearing in mind the position the parties find themselves in at present with regard to E.
In submissions counsel for the Independent Children’s Lawyer submitted that both parents have made some contribution towards the breakdown of E’s relationship with his mother. She submitted that at present there was no sign of any such relationship breakdown between G and her mother, but said there was a risk which needed to be “considered and addressed ensuring that [G] continues to spend as much time as possible with each of her parents so as to maintain those close relationships particularly as she matures”.[9]
[9] Paragraph 10 of the written submissions dated 22 March 2010.
The mother would be more likely to promote a relationship between G and the father if G were to live primarily with her. I am not confident that the father would promote the relationship between G and her mother if G lived primarily with him. Further, I am concerned that the father may encourage G to minimise her relationship with the mother or abandon it altogether, as he has with E.
At paragraph 76 page 27 of the family report[10] the family consultant gives an example of the father reinforcing E’s poor behaviour towards his mother. For example not addressing E’s failure to greet his mother at his pre selection interview. The family consultant says “by failing to address this behaviour [the father] may be providing reinforcement for [E] to behave in a manner that lacks the appropriate respect due to every person. Setting and enforcing appropriate boundaries is also an important part of parenting”.
[10] Dated 14 December 2009.

(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;

The orders proposed by the father, viz change of primary care, could mean that G’s relationship with her mother is diminished.
On the other hand the move to the Blue Mountains is not a great distance, and will enable G to continue a close relationship with her parents, her brother and the extended families.
The change of school so early in G’s education will be managed by her. Living and going to school in the same area is a sound approach and one which the mother considers to be in G’s best interest. I agree.
The Independent Children’s Lawyer’s submissions are in essence that a move will result in a significant and important reduction of time with one of G’s parents. I do not agree. Under the mother’s proposal the child will spend 5 nights per fortnight with the father.

(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;

In her written submissions counsel for the Independent Children’s Lawyer submitted that “to the parent’s credit, this has not been a significant matter to date”.[11] The father lives in L which is about 9 kilometres from the suburb where the mother and her partner live. L is about 30 kilometres from the Blue Mountain area, where the Mother and her partner intend to move once the property in the western suburbs is sold. As I have said elsewhere in there reasons, with great respect to the parties none of these distances are extraordinary and this is not a so called “relocation case”. In submissions counsel for the mother submitted there would be no issue with respect to the practical difficulties or expense for the father if G were to live in the Blue Mountain area, save those which arise from his work commitments. Counsel for the mother submitted that the father does not presently transport the children to and from school and relies upon his parents to do this.
[11] Ibid at paragraph 12.
I accept the mother’s submissions with the caution that although there will be some practical expense and difficulties of the father spending time with G if she were to live with her mother in the Blue Mountain area they will not substantially affect G’s ability to maintain personal relations and direct contact with her father such as the geographical limitations which a “relocation” to another state or country would cause.

(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;

Each parent is capable of providing for the needs of the children in a physical sense. As I have said elsewhere in these reasons whilst intellectually the father may be better for G I have concerns about his ability to provide for G’s emotional needs, in particular, his ability to facilitate a close and meaningful relationship between G and her mother, bearing in mind the position the parties find themselves in at present.
Each of the parents have had an important role to play in caring for G’s needs to date. I am satisfied that the mother has the continued to display good parenting skill as being primarily responsible for identifying, assessing and addressing G’s needs, whist she spent regular time with her father. This is likely to continue.
The mother gave evidence that she believed equal time was not in G’s best interest because she [G] would have a divided life with a reduced ability to maintain friendships as she matured and, in essence, no permanent home. The mother adopted a strongly child centred approach when she said in evidence that if G was not to live primarily with her then, rather than sentence the child to this almost Bedouin existence, she should live primarily with the father. I was impressed with that child focused attitude.
In all of the circumstances I am satisfied that the mother is better able to meet G’s emotional needs particularly her need to maintain a close and meaningful relationship with both parents. This finding is made particularly having regard to the state of the relationship between G and the father despite the difficulties which exist between the parties.

(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;

This has been dealt with generally throughout these reasons.

(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;

This is not a relevant consideration in these proceedings.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Counsel for the mother submitted that the father has “demonstrated a less than exemplary attitude towards recognising the importance of and facilitating the mother’s relationships with the children, and in particular but not limited to, the child [E’s] relationship with his mother”. [12]
[12] Paragraph 9(b) of mother’s case outline dated 12 March 2010.
Counsel for the mother submitted that the mother has “at all times demonstrated an exemplary attitude towards recognising and facilitating [G’s] relationship with her father notwithstanding the difficulties that persist in the relationship between the parties”.[13] I accept and adopt that submission.
[13] Ibid at paragraph 9(a).

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

I have dealt with the question of violence earlier in these reasons and I have considered the allegations of violence made by the father in his evidence.

(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;

There are no family violence orders in force between the parties.

(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;

The orders proposed are unlikely to reduce the conflict that exists between the parties. I am concerned that if I made orders for equal time it would lead to proceedings by one or other of the parties at some time in the future. It is one of the many matters of which I have considered.

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

I have considered all of the relevant evidence before me.

Section 60CC(4) of the Act

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the events that have happened and the circumstances that have existed since separation occurred.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the children’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s 60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interests of the children are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s 60CC(4) and (4)(A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far.

CONCLUSIONS

Counsel for the Independent Children’s Lawyer submitted that G should live in an equal time arrangement so long as the mother remains living in close proximity to the school. However, counsel for the Independent Children’s Lawyer submitted that if the mother were to move the Blue Mountains, then G should live primarily with the father and spend two out of every three weekends with the mother. I do not accept that approach bearing in mind the concerns I have articulated elsewhere in these reasons.
As I said in a recent decision of Lake & Karter [2009] FamCA 682:-
89.The concept of equal time is often raised by parents as being a ‘fair’ solution. No doubt from some parent’s point of view equal time is ‘fair’. But is it fair to that parent or the child? Often children are taught that it is fair that this occur and those words are reproduced to family consultants. I do not know and make no such finding in this case.
90.Children are being committed to childhoods moving from one home to another without a primary place to regard as theirs, a week here a week there. I often wonder how parents would cope with moving home week about.
91.Children are not loaves of bread to be divided and sliced to meet adult concepts of what is or is not fair. Courts are constantly being asked to make equal time orders despite high conflict and continuing animosity. Courts exercising jurisdiction under the Family law Act 1975 (Cth) have the difficult task of putting in place arrangements when parents are unable or unwilling to do so. The task of a court in those circumstances is to put in place arrangements which are in the best interests of a child and not necessarily the parents. Children need and are entitled to stability and certainty in their lives. Success in parenting after separation is not a measure of time it is determined by the absence of conflict between parents and the effective use of the time children have with each parent and other members of their families.
I make it clear to the parties that I expect them to deal with the counselling with Dr V seriously and if it does not occur it may warrant a further application to the Court to convert the notation to an order.
As a consequence of my concerns articulated in these reasons I will make an order that the Independent Children’s Lawyer inform the children of these orders. I will also make an order that the mother and father be restrained from discussing the orders with the children or in their presence and further, that neither party inform the child/children of the contents of the reasons.
In MRR v GR [2010] HCA 4 the High Court set out the following:-
7.Section 65D(1) provides that the Court[14] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to 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. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child[15]. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
[14]Section 69H(4) confers jurisdiction on the Federal Magistrates Court in relation to matters arising under Pt VII.
[15]Family Law Act 1975 (Cth), s 61DA(4).
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".

As there is to be an order for equal shared parental responsibility I am bound to positively consider those matters required by s 65DAA.
In the light of the findings of fact and the s 60CC considerations I have considered whether G spending equal time or significant and substantial time with each of the parents would be in the best interests of G. Having regard to the considerations set out above I do not consider equal time to be in G’s best interests. I do consider that the significant and substantial time that G live with the father, as set out in there orders, is in the child’s best interest.
Similarly I have considered whether G spending equal time or significant or substantial time with each of the parents is reasonably practicable. Both equal time and significant and substantial time are reasonable practicable.
Finally, I have considered making an order to provide (or including a provision in the order) for G to spend equal time or significant or substantial time with each of the parents. Having regard to the considerations set out above I have determined that the child should live primarily with the mother and live with the father for significant and substantial time.
Having regard to all of the facts and circumstances of this case I determine that it would be in G’s best interests to live primarily with her mother and to live with her in the Blue Mountains. In coming to this decision I have had regard to the best interests of G as the paramount, but not sole, consideration.

I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 23 April 2010

[2010] FamCA 311

23 April 2010

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