FARINA & LOFTS
[2020] FamCA 915
•30 October 2020
FAMILY COURT OF AUSTRALIA
| FARINA & LOFTS | [2020] FamCA 915 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – Where it is in the children’s best interests that the parents have equal shared parental responsibility – Where it is in the children’s best interests that, from the start of the 2021 school year, they live in an equal-time week-about parenting regime |
| Australian Passport Act 2005 (Cth) Family Law Act 1975 (Cth) Hague Convention on the Civil Aspects of International Child Abduction |
| Banks & Banks (2015) FLC 93-637 Cox & Pedrana (2013) FLC 93-537 McCall & Clark (2009) FLC 93-405 MRRv GR (2010) 240 CLR 461 Vigano & Desmond (2012) FLC 93-509 |
| APPLICANT: | Mr Farina |
| RESPONDENT: | Ms Lofts |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 10102 | of | 2012 |
| DATE DELIVERED: | 30 October 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 10 & 11 August 2020; 17 & 18 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Martinovic |
| SOLICITOR FOR THE APPLICANT: | Keyworth Harris & Lowe Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Hawkshaw |
| SOLICITOR FOR THE RESPONDENT: | Cooper Maloy Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All parenting plans and previous parenting orders concerning the children N, born on … 2006, and M, born on … 2010, are discharged from 3.00 pm on 29 January 2021.
Notwithstanding the terms of any other order, the children shall be returned to the care of their mother by no later than 5.00 pm on Sunday 24 January 2021 and they shall live with her until 3.00 pm on Friday 29 January 2021.
From 3.00 pm on Friday 29 January 2021, the children shall live with their parents in an alternate-week regime during school terms and during the school holidays at the end of Terms 1, 2 and 3 each year, with such time to occur as follows:
(a)the children shall live with their father from the conclusion of school or 3.00 pm on Friday 29 January 2021 until the conclusion of school or 3.00 pm on Friday 5 February 2021 and each alternate week thereafter; and
(b)the children shall live with their mother from the conclusion of school or 3.00 pm on Friday 5 February 2021 until the conclusion of school or 3.00 pm on Friday 12 February 2021 and each alternate week thereafter.
The parents shall have equal shared parental responsibility for the major long-term issues of the children, including but not limited to:
(a) the children’s current and future education; and
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d)any changes to the living arrangements that make it significantly more difficult for the children to spend time with each parent.
The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other parent about the decision proposed to be made; and
(b)unless the decision relates to an acute or life threatening illness or injury to the children, when the time frame will be dictated by medical needs, each parent shall, at least two (2) months before the date on which the proposal is to be implemented, provide the other, in writing, with the details of any proposal and the intended date on which the proposal is to be implemented; and
(c)the parent receiving the proposal shall, within seven (7) days of receiving the same, provide the other parent with written details of any proposed variations to the proposal; and
(d)the parent receiving written details of any proposed variation to the initial proposal shall, within seven (7) days of that receipt, provide the other parent with written notice of their response to the proposed variation; and
(e)each parent shall make a genuine effort to come to a joint decision about a proposal before the intended date on which the proposal is to be implemented.
Each parent has responsibility for decisions about the day to day care, welfare and development of the children when they are in that parent’s care.
The children shall spend time with their parents during the school holidays at the end of Term 4 each year in the manner agreed between the parents in writing but, failing agreement, as follows:
(a)the children shall spend time with their father for the first half of this school holiday period in odd numbered years and for the second half of this school holiday period in even numbered years; and
(b)the children shall spend time with their mother for the second half of this school holiday period in odd numbered years and for the first half of this school holiday period in even numbered years.
The operation of Order (3) shall be suspended during the school holidays at the end of Term 4 each year and thereafter shall recommence such that:
(a)at 5.00 pm on the last Sunday of this school holiday period: the children shall return to live with the parent with whom they have not spent the last half of this school holiday period and shall live with that parent until after school or 3.00 pm on the Friday of the first week of the school term and each alternate week thereafter; and then
(b)the children shall live with the parent with whom they spent the last half of this school holiday period: from after school or 3.00 pm on the Friday of the first week of school term until after school or 3.00 pm on the Friday of the second week of school term and each alternate week thereafter.
Notwithstanding any other order and unless otherwise agreed between the parents in writing, the children shall also spend time with their father as follows:
(a)on the weekend during which Father’s Day falls: from after school or 3.00 pm Friday until before school or 8.30 am on Monday; and
(b)on the father’s birthday, if the children are not otherwise living with him in accordance with the terms of this Order, then: from 10.00 am that day until 10.00 am the following day, with changeovers to occur at the FF Town McDonald’s, GG Street, FF Town; and
(c)if not otherwise living with him on each of their birthdays: then on each of the children’s birthdays:
(i)if the birthday falls on a weekday: then from 3.00 pm until 8.00 pm, with changeovers to occur at the FF Town McDonald’s, GG Street, FF Town; and
(ii)if the birthday falls on either Saturday or Sunday: then from 1.00 pm until 8.00 pm with changeovers to occur at the FF Town McDonald’s, GG Street, FF Town.
Notwithstanding any other order and unless otherwise agreed between the parents in writing, the children shall also spend time with their mother as follows:
(a)on the weekend during which Mother’s Day falls: from after school or 3.00 pm Friday until before school or 8.30 am on Monday; and
(b)on the mother’s birthday if the children are not otherwise living with her in accordance with the terms of this Order, then:
(i)if the birthday falls on a weekday: from 3.00 pm or after school that day until 8.30 am or the start of school the next day, with the mother to collect the children from school at the commencement of such time and return them to school at the conclusion of such time; and
(ii)if the birthday falls on a Saturday: from 10.00 am that day until 10.00 am the following day, with changeovers to occur at the FF Town McDonald’s, GG Street, FF Town; and
(iii)if the birthday falls on a Sunday: from 10.00 am that day until 8.30 am or the start of school the next day,
(c)if not otherwise living with her on each of their birthdays: then on each of the children’s birthdays:
(i)if the birthday falls on a weekday: then from 3.00 pm until 8.00 pm, with changeovers to occur at the FF Town McDonald’s, GG Street, FF Town; and
(ii)if the birthday falls on either Saturday or Sunday: then from 1.00 pm until 8.00 pm with changeovers to occur at the FF Town McDonald’s, GG Street, FF Town.
Unless otherwise agreed between the parents in writing or otherwise specified in this Order, changeovers shall occur as follows:
(a)for those which occur on weekdays during school term: at the children’s school; and
(b)for those which occur during school holidays or on a non-school day: at the FF Town McDonald’s, GG Street, FF Town.
Each parent is at liberty to arrange for another person to collect the children at the commencement of their time with that parent, or to return them at the conclusion of such time, provided that any such person is known to the children.
The father or a responsible person known to the children, nominated by him shall be personally responsible for delivering the children to school and collecting them from school during the time they live with him.
Each parent is at liberty to communicate with the children, when they are not in their care, by telephone, Skype, FaceTime or other similar facility (the communication) each Tuesday and Thursday between 6.30 pm and 7.30 pm and in order to facilitate this:
(a)the parent with whom the children are not living or spending time shall initiate the communication; and
(b)the parent in whose care the children are at that time shall make the children available to receive the communication; and
(c)the parent in whose care the children are at that time shall arrange for the children to contact the calling parent on the following night if, for any unforeseen circumstance, the children miss the communication from that parent; and
(d)each parent shall ensure that the children have privacy during the communication.
The children are at liberty to communicate by telephone, Skype, FaceTime or other similar facility at all reasonable times with the parent with whom they are not then living and each parent shall facilitate any reasonable request made by the children for such communication.
During the time the children live or spend time with or communicate with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and
(d)if a third party is denigrating the other parent in the presence of, or within hearing of, the children: take all reasonable steps to remove the children from that location; and
(e)take all necessary steps to prevent any person, other than the parents or the children’s school, from physically disciplining the children; and
(f)encourage the children’s relationships with the other parent and with the children’s grandparents.
The parents shall communicate and exchange parental information via SMS text or email and neither shall use the children to convey the same.
Each parent shall keep the other informed of the details of the children’s doctors, health care and other treatment providers and of the details of any school, educational facility or extra-curricular activity provider at which the children attend.
Each parent shall inform the other as soon as is reasonably practicable of any chronic medical condition, significant health issue or illness suffered by the children and, in the event of either child being admitted to hospital for emergency treatment, receiving treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)the prescribing or provision of such medication and/or treatment.
By this Order, any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the children as they are lawfully able to provide about the children.
By this Order, any school, educational facility or extra-curricular activity provider at which the children attend is authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.
If there is a cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity providers, that expense shall be borne by the parent requesting the information.
Each parent shall inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the children.
Each parent shall keep the other parent informed at all times of their residential address, contact telephone number and an email address and each shall notify the other of any change in those details as soon as practicable, and no later than forty-eight (48) hours, after such change to the same.
Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them.
Each parent has leave to provide a copy of the Order made 30 October 2020, the Reasons for Judgment published on 30 October 2020 and the Family Reports prepared by Ms Q to any treating counsellor, therapist or psychologist upon whom they attend for assistance in dealing with issues arising from their relationship and their co-parenting relationship.
Each parent has leave to provide a copy of the Orders made 30 October 2020, the Reasons for Judgment published on 30 October 2020 and the Family Reports prepared by Ms Q to any treating counsellor, therapist or psychologist upon whom the children attend.
Each parent has leave to provide a copy of the Orders made 30 October 2020 to the children’s schools and health providers and other agencies as required, including the Australian Federal Police.
On the proviso that, unless otherwise agreed by them in writing, such travel occur during school holiday periods, each parent is permitted to remove the children from the Commonwealth of Australia for the purpose of holiday travel to any country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction and, with the written consent of the other parent, to any other country.
The children, N, born on … 2006, and M, born on … 2010, are permitted to leave the Commonwealth of Australia for the purpose of international holiday travel with either of their parents as provided for in this Order and, in order to facilitate such travel, both children are permitted to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth).
In the event that a parent wishes to remove the children from the Commonwealth of Australia pursuant to Clause (29), that parent shall provide the other with no less than sixty (60) days’ notice of the intention to travel overseas and shall provide details of the destination and proposed departure and arrival dates.
No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other:
(a)a copy of a return ticket for the children, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(b)a copy of an itinerary which contains sufficient contact details to enable telephone or Skype communication between the non-travelling parent and the children to occur in the manner provided for in this Order; and
(c)a copy of documents evidencing the existence of travel insurance for each child for that particular trip.
The mother is entitled to possession of the children’s passports on the proviso that, in order to facilitate overseas holiday travel notified by the father in accordance with Clause (31) of this Order, she shall provide the same to the father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.
In the event the father removes the children from the Commonwealth of Australia for the purpose of holiday travel, he shall return the children’s passports to the mother within seven (7) days of the children’s return to the Commonwealth of Australia.
Should the parents be unable to agree in the future about any significant parenting matters, then the process to be used for resolving disputes about the same and to resolve any disputes about the terms or operation of these Orders will be as follows:
(a)the parents will consult with a Family Dispute Resolution Practitioner (FDRP) such as via Relationships Australia or a private practitioner to assist with resolving any dispute or reaching agreement about changes to be made; and
(b) the parents will pay the costs (if any) of the FDRP equally; and
(c)in the event that the parents cannot agree upon the FDRP, then the mother will nominate three (3) practitioners and advise the father in writing of the details of each practitioner’s fees, experience and availability; and
(d)the father shall, within seven (7) days of receipt of her list, choose one of the practitioners from the mother’s list; and
(e)in the event that the father fails to choose a practitioner within seven (7) days, the mother may choose a practitioner; and
(f)whichever way the practitioner is chosen, the mother shall arrange for an initial appointment for the parents to attend upon that practitioner as soon as possible and shall notify the father of the details of the appointment in writing.
If either parent does not respond to the other parent’s proposal as prescribed by Clause (5) of this Order or does not engage in the dispute resolution process referred to in Clause (35) above, then the parent making the proposal is at liberty to implement the proposal from the date notified as being the date on which they sought to implement the proposal.
AND IT IS FURTHER ORDERED THAT
The Court requests that the Australian Federal Police remove the names of the children N born on … 2006, (a female) and M, born on … 2010, (a male) from the Family Law Watch List at all points of international arrivals and departures in Australia for the purpose of the children travelling to and from Australia, for travel in accordance with these Orders.
Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
All outstanding Applications are dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS DIRECTED THAT
Upon the mother making a written request for the same and upon the production of a sealed copy of this Order, the appropriate officer at the Brisbane Registry of the Family Court of Australia release the children’s current Australian passports to the mother.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farina & Lofts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10102 of 2012
| Mr Farina |
Applicant
And
| Ms Lofts |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
These proceedings require the determination of those parenting orders which are in the best interests of 14 year old N, who was born on … 2006, and 10 year old M, who was born on … 2010.
The children’s parents began their relationship in October 1995, started to live together in January 1998 and separated in May 2012.
Pursuant to the operative interim parenting orders made on 18 July 2014, the children live with their mother for nine consecutive nights each fortnight and spend time with their father for five consecutive nights each fortnight – from Wednesday afternoon until the following Monday morning.
This parenting regime reflected recommendations made in a Family Report dated 13 October 2013 and changed the prior week-about parenting regime.
As a consequence of the father moving to live with his partner at HH Town, in New South Wales, the children have been required to travel between 45-60 minutes from the father’s home to their school when in his care. It is agreed that, with good traffic conditions, it takes about an hour to travel between the father’s home at HH Town and the mother’s home at JJ Town.
The mother has re-partnered with Mr KK; at the time of the interviews for the July 2020 report, they had been in a relationship for about 12 months, although they do not live together. Mr KK has the care of his 10 year old twin sons on a week-about basis. He lives at LL Town and his evidence included what I assessed as the hope that, once renovations to his home are completed, he and the mother may reside there together, although he clearly also did not want to be presumptuous. If the mother and children move to live with Mr KK in LL Town, they will live geographically closer to the father but further from their current schools.
Competing proposals
The father
At the time of the interviews for Ms Q’s February 2018 report, the father continued to seek a return to week-about parenting of the children, with changeovers to occur after school on Friday afternoons. He told Ms Q in June 2020 that, as well as continuing to seek a week-about parenting regime, he continued to seek an order that the parents have equal shared parental responsibility for the major long-term issues relating to the children. He also sought that the children communicate with him by electronic means each Tuesday and Friday when not in his care and that they spend time with him on special or celebratory occasions, as outlined in his Case Outline.[1]
[1]Filed 7 August 2020.
The mother
At the time of the interviews for Ms Q’s February 2018 report, the mother was seeking a slight reduction in the children’s time with the father; she strongly opposed them being parented in a week-about arrangement.
In her Further Amended Response to Initiating Application, filed 3 September 2019, the mother proposed that she be accorded sole parental responsibility for the major long-term issues relating to the children; that they live with her and, in summary, spend time with their father on one weekend per month in specified months and for all of the June/July and September/October school holidays and for half of the Easter and Christmas school holidays.
When interviewed by Ms Q on 22 June 2020, the mother’s position remained that it was in the children’s best interests for them to live primarily with her and for her to have sole parental responsibility in relation to major long-term issues. She proposed that the children spend every third weekend with their father (from Friday until Monday) and that they spend more time with him than with her during their school holidays to compensate for the diminution in time during the school terms: she suggested that the children spend all of the June/July and September/October school holidays with their father and spend equal periods of time with each parent during the other school holiday periods.
I accept that, when interviewed by Ms Q on 22 June 2020, the mother outlined that she regarded her proposal as one which would enable the children’s routines to be less disrupted and enable them to follow through with their counselling, schoolwork and other activities without having to transition between their parents’ homes. I also accept that she told Ms Q that she wanted to reduce the children’s time with their father during school terms because of the disruption to their behaviours after spending time or speaking with him: she outlined that N, in particular, was initially much more adversarial and disrespectful toward her after returning from spending time with her father and bullied and taunted M and referred to him as “stupid” and “dumb arse” – comments she thought reflected the father’s influence.
In the Case Outline, filed 7 August 2020, the mother sought that she be accorded sole parental responsibility for the major long-term issues relating to the children; that they live primarily with her and spend time with their father each alternate weekend (from Friday after school until Monday morning) and for half of the school holidays in the manner particularised in that document.[2] She also proposed that the children communicate with their father via electronic means on Sunday and Wednesday evenings.
[2]That is: in even numbered years the children would spend time with her during the first half of the Easter and Christmas school holidays and during the second half of the June/July and September school holidays (with the remaining school holiday time spent with their father) and in odd numbered years they would spend time with her during the second half of the Easter and Christmas school holidays and during the first half of the June/July and September school holidays (with the remaining school holiday time spent with their father).
The Independent Children’s Lawyer
In a Case Summary Document filed 13 June 2019, the Independent Children’s Lawyer proposed that: the parents have equal shared parental responsibility for the major long-term issues relating to the children; the children live with the mother and spend time with the father for five consecutive nights each fortnight in school term (being from after school Wednesday until before school the following Monday), half of the school holidays and for specified times such as the Father’s Day weekend, his birthday and the children’s birthdays. It was also proposed that the children communicate with each parent twice per week by telephone or videoconferencing and that changeovers on non-school days occur at a public location situated halfway between the parents’ homes or at McDonald’s at O Town if there was no agreement about location for the same. The Independent Children’s Lawyer also proposed that the children’s passports be released to the mother and that both parents be permitted to remove the children from Australia for the purpose of overseas holiday travel to any country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
The orders ultimately sought by the Independent Children’s Lawyer were, subject to refinement during submissions, as particularised in a document provided by Counsel on 18 September 2020: in summary, the Independent Children’s Lawyer submitted that there should be an order for equal shared parental responsibility; that the children should live with their parents in an equal-time, week-about parenting regime during the school terms and should spend half of the school holiday periods with each parent. It was also proposed that the children communicate with the parents with whom they are not otherwise living or spending time with via electronic means each Sunday, Tuesday and Thursday.
APPLICABLE PRINCIPLES
In these proceedings, being proceedings for a parenting order[3] in relation to the children, I may, subject to s 61DA[4] and s 65DAB[5] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper.[6] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[7] In deciding whether to make a parenting order, I must regard each of the children’s best interests as the paramount consideration[8].
[3] Family Law Act 1975 (Cth) s 64B.
[4] Presumption of equal shared parental responsibility.
[5] Parenting plans.
[6] Family Law Act 1975 (Cth) s 65D.
[7] Family Law Act 1975 (Cth) s 60B.
[8] Family Law Act 1975 (Cth) s 60CA and s 65AA.
The matters to which regard must be had in determining those parenting orders which are in each child’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[9] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in each child’s best interests. I have considered all of the relevant considerations in arising at my conclusion about those orders which are in the children’s best interests.
The benefit to the children of a meaningful relationship with both parents[10]
[9]See Banks & Banks (2015) 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
[10]Family Law Act 1975 (Cth) s 60CC(2)(a).
The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.
In McCall & Clark,[11] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that he or she has a meaningful relationship with both parents. Thus, the Court must consider and determine whether there is a benefit to the children in having a meaningful relationship with each of their parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the children from physical or psychological harm.[12]
[11] (2009) FLC 93-405.
[12]Vigano & Desmond (2012) FLC 93-509, 86,517 [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Given the orders proposed by each parent and on the evidence before me, I am satisfied that there is a benefit to each of the children in having a meaningful relationship with each of their parents.
I am also satisfied that the children could continue to have a meaningful relationship with each parent if it was determined that living in an equal-time parenting arrangement is in their best interests. I accept that it is likely the children would continue to have a meaningful relationship with their father even if their time with him was reduced in the manner sought by their mother. However, given the manner in which the children have spent time with their parents to date, I consider it likely that the nature of their relationship with, potentially, each of their parents may fundamentally change if their time with their father is reduced.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[13]
[13]Family Law Act 1975 (Cth) ss 60CC(2)(a) and (2A).
When interviewed by Ms Q in June 2020, the mother said that she was afraid the father would repeat the pattern of domestic violence she alleged had occurred during their relationship: she told Ms Q that she had been given information by former business colleagues soon after the father and Ms Y started their relationship that the father had previously kicked Ms Y out of her home at one point and had given her a black eye on more than one occasion. Consequently, she was concerned that the children would be exposed to, and adversely affected by, these behaviours. The mother did not provide Ms Q with independent evidence to support her claims.
Ms Q noted that, when she raised the allegations directly with Ms Y, she denied them and said that the comments were completely untrue; she also said that the father’s former business partner (whom I infer she presumed was the source of the comments reported by the mother) was extremely disreputable.
I accept Ms Y’s evidence to the effect that she has not been subjected to any behaviours by the father which constitute domestic violence. I also note that neither N nor M raised any issue about their father’s behaviour towards Ms Y when they spoke to Ms Q.
Other than via continued exposure to the toxicity of the parental interactions – a matter which appears to remain largely unabated despite the significant period of time that has passed since these parents separated and is, I think, one of the constants in these children’s lives – I am not persuaded, on the evidence before me, that it is likely the children will suffer harm from being exposed to abuse, neglect or family violence in the care of either of their parents.
I am also unpersuaded that reducing the children’s time with their father is likely to result in a diminution in their exposure to parental conflict – if anything, I think it much more likely than not that reducing the children’s time with their father, as sought by their mother, would result in an intensification of the parental conflict.
The children: their views and the nature of their relationship with each of their parents[14]
[14] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d) and (g).
The child N
I accept that, when interviewed by Ms Q for the February 2018 report, then 11 year old N told her that it would be fine if the parenting arrangements stayed as they were; I also accept, though, that N also said that she would rather have more time with her father as it was “fair”; she also said that M wanted that too and would be happy with that. I accept N told Ms Q that she wanted more time with her father because she enjoyed her time with him; I also accept that she denied to Ms Q that travel was a problem and said she usually did her homework in the car. I accept that she also mentioned, however, that forgetting possessions (such as her sports uniform or iPad charger) could be a problem at times.
I accept that, in discussion with Ms Q, for the February 2018 report, N was positive about her father’s partner (Ms Y).
I accept that N told Ms Q that her parents did not see each other and only spoke via texts; I accept that she also told Ms Q that they did not talk about each other; I accept N was clear in knowing that her parents do not get along.
I accept that, when interviewed by Ms Q in June 2020, the mother told her that N was close to her father and acknowledged that the child wanted more time with him. I also accept that the mother’s view was that part of the attraction for N was that she was given much greater freedom in her father’s household and faced less demands about her school work and day-to-day tasks. I accept that, when interviewed by Ms Q in June 2020, the father told her that N loved being in his home and often wanted to stay longer. Consequently, it appears that one of the relatively limited matters about which the parents agree is that N wants to spend more time with her father than is provided for by the current fortnightly nine/five parenting regime.
I accept that, when interviewed by Ms Q on 8 July 2020 for the July 2020 report, nearly 14 year old N (who is in Year 8 at MM School) spoke positively about both of her parents’ households. I accept she told Ms Q that, whilst the existing care regime was working reasonably well, she would prefer to spend week-about with each parent.
I accept that N was positive to Ms Q about her mother’s partner (Mr KK); I accept she told Ms Q that she liked Mr KK’s 10 year old twins, although they could be a bit annoying at times. The latter aspect of her comment to Ms Q seems unremarkable.
I accept N told Ms Q that her mother’s house tended to be “a bit disorganised” and that they were late for school every day because her mother and M left it very late to get out of bed. I accept N said that her mother was planning to move further south – which would be further away from her school at NN Town than their current home – and that her preference was to remain closer to her school as most of her friends lived in the NN Town area.
I accept N told Ms Q that her father was highly organised; that they were always on time for school when with him and that it took between 40-50 minutes (depending on the border restrictions) to travel between his home and her school. I also accept that N told Ms Q that she did her homework in the car, which meant she could do other things when she got home.
I accept N told Ms Q that she was probably closer to her father than her mother and that she thought she felt closer to him than her mother. I accept she also told Ms Q that M was probably closer to her mother.
I accept N told Ms Q that neither parent bad-mouthed the other any longer. I accept she told Ms Q that: only her maternal grandmother spoke badly about her father; all of the maternal family disliked her father and thought him a “terrible person”; her maternal grandmother had called him a “liar”, a “thief” and a “horrible person” and had told her that she was just like him.
The accuracy of N’s recounting to Ms Q about the attitude of the extended maternal family to her father is, I consider, corroborated by the contents of the affidavits filed by each of the maternal grandmother and the maternal grandfather. Further, the accuracy of N’s recounting to Ms Q of the comments made to her by her maternal grandmother about her father was, I consider, clearly corroborated by the maternal grandmother’s evidence when cross-examined – such evidence included that: she accepted that she disliked the father; she had told N, at the end of November 2019 when the children were staying with their maternal grandparents, that her father was a liar and a thief and not a good person; she had told N, during a conversation about uneaten school lunches which occurred in M’s presence, that she did not want her (N) to become a liar like her father; during a conversation with the children’s paternal aunt (who was on speaker-phone) in at least N’s presence, she said that they had had to listen to the father’s lies for more than 25 years and did not want N lying to them.
It is, I think, also relevant to record that the maternal grandmother did not really think there was anything inappropriate in exposing N to comments such as these – her evidence in this respect included that: she wanted the truth to come out as she was tired of being lied to; the children had to find out sooner or later that their father is a liar; she does not want them to turn out the same way; she thought that the children already know he is a liar. She later said that she had told N that she did not want her to become a liar like her father, but she should love him.
Further, it was also completely clear that the maternal grandmother would not change the manner in which she approached this discussion with N now; her evidence included that, if she had the opportunity to go back to this particular conversation with N, she would have said the same things to N if the child had lied to her: she also said that she would have told N that the reason she said what she had was because she loved her and believed discipline was love.
The maternal grandmother’s evidence also included that the November 2019 conversation with N was the first occasion since 2012 during which she had made derogatory comments to the children about their father. Even if this is the case – about which I hold some doubt given the forthright manner in which the maternal grandmother gave her evidence and her apparent view that there was nothing really wrong with her approach to the situation – it is, I think, easy to conclude that it is more likely than not that the children may well – as they commented to Ms Q – have fully appreciated their extended maternal family’s general negative attitude toward their father.
I also note that the maternal grandmother accepted that, in about May 2020, she told N that they did not like talking about her father and that, whilst the child thought it okay to call her mother “a turd”, they could not say anything – I infer, derogatory – about him to her in return. I accept that, when asked during her cross-examination whether she accepted that having a conversation like that with N may have been overwhelming or perplexing for her – that is, in hearing her maternal grandmother speak so badly about her father – the maternal grandmother explained that she had been hurt because the father had so little respect for the mother and guessed that she had just been trying to “balance it out”.
I note that the maternal grandmother said that M had been in his room when she “explained” to N: “please don’t become a liar like your father”. However, I also note that, during another aspect of her cross-examination, the maternal grandmother said that she had just wanted the children to understand that their father does lie and that she did not want them to become confused in their lives because of his lies: comments which certainly seem to me to suggest that, at least at some time, M too has been told of his maternal grandmother’s views about his father’s lack of veracity. This conclusion is strengthened by the fact that, later during her cross-examination, the maternal grandmother said that M had been in the room when she told N “please don’t become a liar like your father”.
I accept that, during her interview on 8 July 2020, N also told Ms Q that, when her grandmother spoke in the manner discussed above to her in her mother’s presence, her mother did not do much about it, other than to tell her (the maternal grandmother) to calm down. I think this is more likely than not.
I accept that N also acknowledged to Ms Q that, whilst he did not express it verbally or openly, her father probably had a negative attitude toward her mother. That she was able to make this acknowledgement – adverse to her father – is, I consider, a factor which mitigates against a finding – as sought by the mother – that N’s expressed views for an equal-time parenting regime are nothing more than a mere parroting of her father’s views or nothing more than a consequence of her exposure to his views about this over the many years these parents have been engaged in litigation.
I accept that, when asked, N told Ms Q in July 2020 that she felt that her care arrangements were “unfair” and that she would prefer it to be “half/half”; I also accept she said that she thought M did not care either way and seemed quite happy.
I accept that N also told Ms Q that, during the time her mother had removed her phone from her, the father had lent her an old one so she could keep in contact with him and her friends. Whilst N told Ms Q that she liked to call her father three to four times per week and did not like to have to wait until Tuesdays to speak with him, the father’s actions in this respect appear to me to demonstrate a determination to act as he determined was appropriate, rather than support the mother’s decision that, in her home, N would not then have access to her phone. His behaviour in this respect is but another example of what I regard as these parents’ inability to present a united front about issues that commonly arise in parenting, to their children; however, for N and M, this is the way in which they have been parented since at least the 2012 parental separation. Whilst it may often be suggested that parents are the people who know their children the best, it should not, I think, be forgotten that the reverse may also often be true.
I accept that N told Ms Q in July 2020 that a week-about parenting arrangement would be best and ideal. I also accept that, whilst she initially also told Ms Q she would like the flexibility to be able to move between her parents’ households as she wished, she later acknowledged that this would not work as her parents do not get along and have problems agreeing to things. On the evidence before me, N has accurately assessed her parents’ relationship.
That N was able, after discussion with Ms Q, to modify her position to reflect the reality of the parental relationship and the consequences of the same for her care regime is, I think, a further demonstration of her maturity.
I accept that N was adamant to Ms Q that she does not want to live primarily with one parent; I also accept that she was, in essence, adamant in her view that it is important for her (and M) to have the same amount of time with each of their parents. Given her lived experience with her parents, her accurate assessment and reporting of their relationship and her age and maturity, I consider that these views – as well as her view about wanting to live in an equal-time parenting regime (a view which she has consistently expressed to Ms Q on a number of occasions during the lengthy time her parents have been involved in parenting litigation) – ought be accorded significant weight.
In arriving at the determination to accord N’s expressed view significant weight, I have also taken into account that the mother was, during her cross-examination, willing to accord N the responsibility, at her age, of deciding whether or not she would receive the HPV vaccine on the basis that it is “her body” and, consequently, her wishes about the administration of the vaccine should be respected.
I accept Ms Q’s assessment of N as a child who has a strong relationship with her mother also, who wants time with both of her parents and who has made it clear that she is not picking “sides”. I consider it more likely than not that N’s attitudes in this respect should assuage the mother’s concerns that affording N more time with her father will erode the relationship that N has with her.
I accept Ms Q’s assessment of N that she is, in a sense, waiting for the parenting regime to be “made fair”; I also accept her assessment that, if orders were made to reduce N’s opportunity to spend time with her father during the school term, it is more likely that not that she will be distressed and unlikely to easily accept the same.
The child M
I accept that, when interviewed by Ms Q for the February 2018 report, seven year old M told her that he thought one week with each parent might be better than the current parenting regime. I also accept, though, that he also told Ms Q that two weeks with each parent might be better. I accept he said he would be okay if things stayed as they were, but ideally would like two weeks with each parent, so he would get to have the same amount of time with them.
I accept M told Ms Q that he wanted his parents to have equal time so he could see each of them as much as the other and that he missed each of them when with the other. I also accept that he said that he still wanted his parents to get back together again, for the whole family to live together and for everyone to be happy. I accept that, whilst M told Ms Q that his parents did not talk to each other, he also told her that they did not talk about each other either.
I accept that, when interviewed by Ms Q on 8 July 2020 for the July 2020 report, 10 year old M (who is currently in Year 5 at the R School) spoke positively about each of his parents’ households, said he had lots of friends and enjoyed going to school. I accept he also told Ms Q that his mother, N, Mr KK and his father helped him with his homework. I also accept he said that he had a lot of fun with Mr KK’s children and was also positive about his time with his father and Ms Y. I note he told Ms Q that he did not feel sad in the home of either parent.
I accept that, when Ms Q asked him in July 2020 about his care arrangements, M was quite definite that he would prefer having a week-about arrangement: he said he was sometimes confused about when he was going to his father and that he thought it would be easier to have equal time and to swap each Monday at school. Given this comment – which seems to me to recount something that is an actual, lived experience for M – I am not persuaded that, in telling Ms Q of his wish to live in an equal-time parenting regime, M was simply parroting his father’s wishes.
I also accept though, that M also acknowledged to Ms Q in July 2020 that he felt closer to his mother; I accept he said he was more inclined to talk to her if he had a problem and that, if something worried him in his father’s week, he would be more likely to call his mother to talk about it.
I accept M told Ms Q in July 2020 that he had overheard his maternal grandmother making nasty comments about his father – he said she had said mean things about him, which included that he was a “really mean person.” I accept M told Ms Q that he did not believe this and did not like to hear these types of comments about his father.
When cross-examined about M’s comment to Ms Q that he had overheard her making nasty comments about his father and saying that he is a “really mean person”, the maternal grandmother denied saying such a thing. Whilst she also denied saying that the father was a horrible person, she said that she might have said that he was a “bad” person. There is little meaningful distinction, it seem to me, between saying, in M’s presence, that his father is a ‘really mean person’ and saying that he is a “bad” person: what is clear, I consider, is that – as has been the case with N – M has clearly learned of his maternal grandmother’s negative view of his father.
M’s age persuades that less weight should be accorded to his expressed views about his future parenting regime than ought to be accorded to N’s views. However, his lived experience of being parented by his parents persuades me that his expressed views for a week-about living arrangement – in part, at least, to solve his confusion about transitioning between his parents’ homes – ought not simply be ignored entirely.
The likely effect on the children if the orders sought by their parents are made[15]
[15] Family Law Act 1975 (Cth) ss 60CC(3)(d).
I consider that making an order – as sought by their mother – to reduce the time the children spend with their father during school terms to that which occurs on every alternate weekend (instead of the five nights each fortnight that they have spent with him since the July 2014 order was made) would implement a parenting regime that is completely contrary to the children’s expressed views to spend equal time in the care of each of their parents. There is no evidence at all to suggest that either child has ever sought a reduction in the time they have been spending with their father since the July 2014 orders were made.
I think it highly likely that the mother minimises the children’s likely reaction to a reduction in their time with their father to three nights a fortnight; I do not join in her assessment of this being “just” a reduction in time and think it much more likely than not, given their comments to the Family Report writer longitudinally, that they may react adversely to this. I also consider that the greater risk is that such adverse reaction will impact negatively upon their relationship with their mother into the future.
I accept that the making of orders to implement an equal-time parenting regime – whereby the children spend alternate weeks during the school terms and the shorter school holidays and equal time (albeit not in alternate weeks) during the end of year school holiday – would implement that which the children have expressed to Ms Q on the various occasions they have spoken to her over the years as being the parenting regime each seeks.
I also accept that making orders to implement a parenting regime by which the children would spend the majority of time with one parent would result in implementing a parenting regime to which N is completely and adamantly opposed – a stance with which, given his expressed views to Ms Q in his most recent interview. I consider it more likely than not that M joins.
Whilst I accept that it is highly likely that both of these children are well aware of what each of their parents wants for them in terms of a future parenting regime, I am not persuaded that it is appropriate to dismiss the children’s expressed views about the same out of hand as being simply the manifestation of their father’s influence on them over time. I think it much more likely than not that these two children – with their lived experience of being parented by each of their parents – almost intuitively recognise that the parenting regime which is most likely to ensure relative peace for them is one which sees them spend equal amounts of time in the care of each parent.
Having regard to the evidence before me, I join in that assessment.
Given that N told Ms Q that she wanted to spend equal time with each parent, I am not persuaded that, despite spending five nights per fortnight during school terms and half of the school holidays with her father since no later than the July 2014 orders were made, N has been so adversely influenced by him against her mother that anything “bad” in their current relationship is his fault; rather, I think it much more likely than not that N’s sometimes difficult relationship with her mother at present is simply a function of her age and the likely friction between them on occasion consequent upon her adolescence.
Unlike the mother, I am not prepared to discount the possibility that forcing the children – and in particular N – to have less time with their father may rebound adversely on her relationship with them. In fact, given N’s age and associated developmental stage, the history of the time she has to date spent with her father and their acknowledged close relationship, I think it quite possible that she may react adversely to her mother if she considered that the mother was responsible for decreasing her opportunity to spend time with her father.
The mother advances that less time between the father and the children will mean less time for him to influence them and impact negatively on her relationship with them. Whilst this may be true in one sense, it is clear that, despite being subjected to the father’s influence for five nights each fortnight and half of the school holidays for the last six years, both children continue to say that they want to spend equal time with each parent – and neither has expressed a desire to spend more time with their father than with their mother.
Further, I consider that the mother’s approach fails to recognise and/or accord appropriate weight to her influence on the children during their time with her.
The father: the children’s relationship with him; his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[16]
[16] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
Overall capacity to meet the children’s needs
I accept that, as recounted by Ms Q in the February 2018 report, the mother told her that she felt somewhat reassured that Ms Y was at the home to help him with the children.
I accept that, when interviewed for the February 2018 Family Report, the father told Ms Q that the main reason he was seeking more time with the children and for them to move to live in a week-about parenting regime was his concerns about their education. I accept he also outlined his view that a week-about parenting regime would provide the children with more stability, allow a consistent approach for homework and eliminate issues about belongings being left behind.
The mother told Ms Q in June 2020 that, after the property settlement proceedings in January 2019, the father has not paid any child support for the children and has declared that he received “nil” income; she raised that, despite this, he continued to travel overseas frequently and that he and Ms Y run a successful business. In contrast, the father told Ms Q that he did not pay child support because he has virtually no income, received “not a cent” after the property trial and lived a simple life with his partner.
I accept that the father does not currently pay any child support to the mother for the children; I think it much more likely than not that the only way in which the father will make any additional financial contribution to the children’s support is via that which he would be required to make by virtue of them actually spending more time in his care.
Whilst the mother told Ms Q in June 2020 that M had claimed that the father threatened to ‘belt’ him if he did not do his homework, M did not raise any issue about his father’s approach toward him and the issue of him completing his homework during his July 2020 interview with her.
I accept that, when interviewed by Ms Q in June 2020, the father told her that M appeared happy in the care of each parent; he said he was a sensitive child who was keen to please and often followed N’s lead. He explained that Ms Y in particular spent extra time with M doing special activities with him and that, if he spent more time in their care, he would receive even more educational support.
On the evidence before me, I accept that, in the future, the father would be able to meet the children’s needs – as he has done during the five nights per fortnight they have spent with him since the July 2014 orders were made – if they were to live with him in an equal-time parenting regime.
Whilst the father has, in my view, failed to prioritise the provision of financial support for the children whilst in their mother’s care, I consider that he has demonstrated an ongoing desire to be actively involved in their lives.
Attitude toward the mother and her role in the children’s lives
I accept that, as the mother told Ms Q in June 2020, the father used the phone he gave N in December 2018 as a vehicle through which he could make derogatory comments about her to their daughter: for example, by telling her, in essence, that her mother had prioritised overseas travel ahead of paying the child’s school fees when, in fact, he was the parent responsible for the failure to meet his previously agreed contribution to the same.
I accept that it is much more likely than not that, at least initially, N defied her mother’s instruction not to bring the phone her father had given her with her when she returned to her mother’s home; I also accept though, as the mother told Ms Q in July 2020, that N does not now bring her phone with her on her return to her mother’s care.
I accept that the mother told Ms Q in June 2020 that the father had told N about the Court proceedings. I accept she also told Ms Q that he had always told N that, once she is 14 years of age, she can choose where she wants to live. I accept the mother told Ms Q that N had previously told her that she would attend personally at Court in August 2020 and say that she wanted to live with her father. Assuming these assertions to be correct – and, particularly, that the father had told N over time that at her current age she can choose where she wants to live – it is, I think, particularly telling that N told Ms Q that she wanted to live in an equal-time parenting regime. It is also telling, I think, that she did not tell Ms Q that she wanted to live primarily with her father.
I also accept that, after the parental separation in 2012, the father acted, on occasion, contrary to court orders and in a manner that caused the mother financial harm: for example, despite orders requiring him to make payments to the body corporate, he simply failed to comply, with the result that the body corporate sued the mother for the outstanding funds. Further, despite travelling overseas on occasion, he previously allowed arrears of child support to occur and, via his decision not to pay the required amount in a timely way, caused the mother (and, indirectly, the children) financial hardship – a hardship he remedied only when he realised that his failure to pay the required child support may have resulted in him being prevented from travelling overseas to do something he wanted to do. I also accept that he previously failed to pay rates and N’s school fees on time despite agreeing to be responsible for the payment of half of the latter.
I also accept that, in acting as he did vis-à-vis the issue of the parents engaging with a psychologist as ordered in July 2014, the father was simply trying to be antagonistic toward the mother; whilst I also accept that a consequence of his behaviour in this respect was that the parents did not participate in counselling intended to assist them in their co-parenting, I think it highly unlikely that such counselling would – even then – have resulted in any marked improvement in their co-parenting relationship.
I also accept that, after the 2012 parental separation, the father has, on occasions, involved N in the parental dispute and acted to undermine or denigrate the mother to her: for example, I accept that, in about early December 2019, (at a time when he had not paid his previously agreed contribution to N’s school fees), the father told N by text that he was trying to keep her at MM School and then, in about mid-December, sent her the following text about her mother: “She keeps telling me that she’s got no money to pay for it but she can spend money on going to Country T.” Given that the issue about N’s school fees arose because he (not the mother) had failed to pay the previously agreed 50 per cent contribution to the same, his behaviour in this respect was highly manipulative.
I do not accept that, in communicating with N as he did via text on this occasion, the father did not intend to denigrate the mother to N. I do accept, though, as the father did during his cross-examination, that the content of these texts was not child-focused; I also accept that it was “really stupid” for the father to communicate with N as he did.
I also accept that, when N replied in a manner that was derogatory of her mother, the father did nothing to correct her or challenge that view. I further accept that the father then sent N a text in which he pointed out that the mother paid others to do gardening work for her – a comment which was clearly intended to convey to N that her mother prioritised this expenditure ahead of her school fees.
The father admitted during his cross-examination that his denigration of the mother was not child-focused. I agree. Whilst he also said that he would try his hardest not to involve the children in the same again, his past behaviours suggest that this may well prove to be a difficult goal.
I also accept that, on occasions, the father has answered telephone calls and texts from N, but not those sent by the mother, with the consequence that N has been required to be the go-between for her parents.
I also accept that there have been occasions when the father and maternal grandfather have communicated abusively and that the father does not like either of the children’s maternal grandparents. I accept that, on occasion, he told the maternal grandfather that N hated him and did not want to go back to their home. The father tried to justify such communication as being, in essence, him doing nothing more than telling the maternal grandfather about the consequences of their actions in removing N’s mobile telephone from her and speaking to her as outlined in his affidavit. However, I consider that, in deciding positively to tell the maternal grandfather what he did, the father simply manifested the complete absence of regard he has for the children’s maternal grandparents: in fact, when cross-examined, he said that, until the maternal grandparents “abused” N (as he described their actions in removing her mobile phone and addressing the issue of her uneaten school lunches), they were rarely spoken of in his home; he also said that “I absolutely dislike them”.
I accept that, in about mid-2020, the father attempted to open a line of communication with the mother about the issue of N receiving certain vaccines; I accept that he had Ms Y help him write his communications to the mother in an attempt to ensure that the same were not so forceful and so that they would not be perceived as unilateral. I see nothing wrong in the father having Ms Y act, in essence, as an editor in the hope that she could assist him to communicate with the mother in a manner that was not received by her as being intimidating, derogatory or determinative of the issue under discussion. Any criticism by the mother of his actions in this respect is, in my view, misguided – but demonstrative of the manner in which these two parents regard each other’s actions.
The mother: the children’s relationship with her; her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[17]
[17] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
Overall capacity to meet the children’s needs
As noted earlier, at present, the mother and children remain living at JJ Town. N currently attends high school at MM School (the Suburb NN Campus) and M attends R School in PP Town.
The father told Ms Q in June 2020 that the mother struggled to get the children to school on time; he also said he thought she did not spend enough time with M doing homework and that, whilst the school had indicated that M needed his hearing tested, the mother had not taken him for this test; he also inferred that the mother was delaying in getting M help for his learning difficulties.
Whilst I accept that, on occasions, the children have been late to school whilst in their mother’s care, I am not persuaded on the evidence before me that she lacks the capacity to care for them appropriately or to meet their overall needs appropriately.
Attitude toward the father and his role in the children’s lives
When interviewed for the February 2018 Family Report, the mother’s position was that, whilst the children loved their father and needed to spend time with him, she thought that they would cope better if their time was reduced slightly. She opposed an equal-time co-parenting regime because she felt that co-parenting with the father was extremely difficult – she outlined that, for example, it took about two years to have the father sign the documents necessary to renew the children’s passports after they expired and that he chose a counsellor who had moved to TT Town as the person to engage with them in their Court-ordered counselling.
I accept that, when she spoke with Ms Q for the February 2018 report, the mother expressed her view that she did not believe the children would benefit from extra time with their father. I also accept that she was concerned that more time with him would mean that the children would have to travel more, given the location of his residence in New South Wales meant that that the children had to travel for between 45 and 60 minutes at the start and end of the school days whilst in his care. I also accept that the mother told Ms Q of her concerns that, when she returned from spending time with her father, N exhibited a defiant attitude toward her and was rude, challenging and bullying toward M. Ms Q’s evidence, when cross-examined about N’s behaviours toward her mother following her returning from spending time with her father, included that, whilst it may be indicative of exposure to her father’s attitude toward her mother, one had also to take into account that N is a teenager. I accept Ms Q’s evidence to the effect that she was doubtful that the answer to this behaviour was to reduce N’s time with her father.
I accept the mother told Ms Q in July 2020 that, when interviewed, N would suggest that the maternal grandparents did not care about her because her surname is ‘Farina’. Whilst I also accept that the mother suggested to Ms Q that the father had promulgated this foreshadowed attitude in N, the maternal grandmother’s evidence about her comments to N about her father provide an obvious alternative explanation for why, if she told Ms Q that, N might have made such a comment. However, whilst N told Ms Q the matters discussed earlier about her maternal family’s view of her father, she did not in fact tell her that she thought they did not care about her because of her surname or because she is her father’s daughter.
Family violence[18]
[18] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
There is a current protection order involving the parents in effect until 22 May 2022. This order is the most recent of a series of orders obtained by the mother against the father:
a)in August 2008: the mother sought the first temporary protection order after an asserted incident of domestic violence on the day of N’s birthday party – she said the father threatened her with scissors before pushing her to the ground and hitting her head to the floor several times and the order she obtained was subsequently extended for two years; and
b)on 19 July 2012: the mother obtained a further two year protection order, which, on her account, included provisions which ousted the father from the family home, prevented him from being within 500 metres of the home, prevented him from being within 100 metres of her and prevented him from having any contact with her; and
c)on 18 July 2014: the mother applied for and obtained a further temporary protection order; and
d)on 27 April 2015: the mother obtained a temporary protection order; and
e)on 23 May 2015: the Magistrates Court made a five year protection order.
In addition, the father has previously sought a protection order against the mother: on 23 February 2016, he made an urgent application for a domestic violence protection order against the mother, but subsequently withdrew the same later that year.
I accept that, during their relationship, the father on occasion swore at the mother, called her derogatory and belittling names, commented adversely about her appearance and demonstrated aggressive and demeaning behaviour toward her. For example, I accept that, in about 1997, the father “tussled” with the mother in such a manner that she suffered a black eye; I accept that, in about 1998, an argument erupted over the mother’s use of the wrong burrito sauce and that the father subsequently hosed the mother in the front yard of their house.
I also accept that, on N’s second birthday in … 2008, the parents had an angry argument during which the mother hit the father with a feather duster and he became angry whilst holding a pair of scissors. The mother’s evidence about this incident included that the father became angry with her after finding a mark on the refrigerator, threatened her with scissors and then cornered her in a bedroom before pushing her to the ground, smashing her head into the floor several times and kicking her whilst she was on the floor. She said that she was bruised as a result of his actions and that the same were later photographed by police. She also said that the father knew that she was in the first trimester of a pregnancy at the time.
When cross-examined about this event, the father admitted that he had grabbed the mother’s wrist – he said to remove the feather duster from her hands – and asserted that each of them had perpetrated domestic violence against the other that day and that they had scuffled. He did not accept that smashed her head into the floor or kicked her.
I accept that documents from the Queensland Ambulance Service record the mother’s presenting injury as a soft tissue injury (swelling to the left wrist); no other injuries are recorded. I accept that the OO Hospital (being the hospital to which the mother was conveyed by ambulance that day) Emergency Department Clinical Examination notes include a record of the assertion that the mother had been assaulted by her partner and that she presented with pain and swelling to her left wrist: the presenting injury was a painful left wrist; the notes include that there was a small bump on the wrist, which might have been a ganglion. There is no mention in the notes of other injury. I accept that the hospital records did not show any mention of injuries of the father’s alleged behaviour of smashing the mother’s head against the floor a number of occasions or kicking her in … 2008, nor any record that at the time the mother complained of such behaviour.
I accept that, in April 2010, after the mother sent him an email about his anger issues, the father responded to tell her to be a good housewife; I accept that, during an argument in the children’s presence in 2011, when the mother was trying to record the events, the father smashed her mobile phone by snatching it from her and throwing it out of the car before driving away with the children and leaving her without a means of communication; I accept that, on occasion, he regarded her housekeeping as being unsatisfactory and not up to his standards; I accept that, on occasions, he yelled at the mother in front of the children.
Ms Q recorded in the February 2018 Family Report that the mother acknowledged that, to some extent, there had been a settling of the father’s abusive behaviour toward her since his involvement with Ms Y; however, she also said he continued to try to push boundaries – for example, by suggesting that, despite the terms of the Domestic Violence Order, he drop the children back to her house. The mother also told Ms Q that she felt somewhat reassured that the Domestic Violence Order was in place until 2022.
According to the February 2018 report, the father’s partner reported no incidents of family violence in her relationship to Ms Q.
Further, Ms Q recorded in the July 2020 report that there have been no further court proceedings about domestic violence since the February 2018 report.
When interviewed by Ms Q in June 2020, the father rejected the suggestion that there had been any violence in his relationship with Ms Y and emphasised that she loved the children and was contributing to N’s school fees.
Parental Relationship and communications between the households
At the time of the interviews for Ms Q’s February 2018 report, the father told her he had completed an online anger management programme, but counselling between the parents to improve their communication had been unsuccessful. Further, both parents told Ms Q that, despite attending previously ordered counselling to attempt to improve their co-parenting relationship, this had been unsuccessful.
I accept that, when interviewed for the February 2018 Family Report, the father told Ms Q that he did not think that the communication issues between the parents would change whether the children spent more time with him or not. I also accept he noted that, as changeovers occur at school and communication takes place via emails or texts, he and the mother only ever have contact in relation to the children.
I accept that Ms Y told Ms Q in the interview for the February 2018 report that, whilst she knew the mother through the father’s business, their relationship had been non-existent since the parental separation. This is unsurprising given the mother’s evidence that the parental separation followed on her discovery of personal text messages between Ms Y and the father.
As Ms Q noted in the July 2020 report, these parents have been involved in litigation since they separated eight years ago; the children have been the subject of proceedings since N, now 13 years of age, was five years of age and M, now 10 years of age, was two years old.
Ms Q also remarked – very accurately I consider – that the parents separated after a highly conflictual 12 year relationship which was characterised by family violence. I also accept the father’s description, during his cross-examination, of the parental relationship as being “a horrendous relationship that two people should not have been in”.
That it is also characterised by an inability to compromise can easily be seen when regard is had to the issue of the location for changeover, which the 2014 orders provided occur at O Town. The mother told Ms Q that, given circumstances had changed, she had tried to arrange for changeover to occur at X Town McDonald’s (which she considered half-way), whilst the father had wanted it to occur at QQ Town McDonald’s; she also told Ms Q that an acceptable midway position would be the Suburb RR McDonald’s, whilst the father said that it would be better to do the changeover at SS Town. That the place for changeovers which occur other than at the children’s schools has proven to be so difficult to agree provides a good example of the difficulties these parents appear to have encountered when attempting to agree to depart from the terms of operative orders.
The mother told Ms Q in June 2020 that she sought to have sole parental responsibility for the major long-term issues for the children because decision-making about them had been a “constant drama”: she said she and the father had been unable to agree about most issues, which she said had caused ongoing uncertainty for the children and limited her ability to arrange for them to participate in activities and support them attending counselling. She said she and the father had been unable to agree about the children’s extra-curricular activities and that, whilst he often suggested and planned activities, he failed to follow through. She also said that she and the father had struggled to manage the children’s health and that he appeared to expect her to take them to the vast majority of their medical appointments.
However, the father told Ms Q in June 2020 that shared parental responsibility was mostly working well; he also said, though, that if the mother disagreed with him, she simply refused to communicate – a response which he interpreted as her attempting to maintain control. He also said the mother had failed to inform him about some medical issues. He raised that, whilst he thought immunisation was very important, the mother was opposed to vaccination. He said that, whilst he thought that M should repeat a year of school, the mother had refused to agree to him repeating at his current school.
When cross-examined, the father agreed that he and the mother had not had a relationship where they could talk or communicate well for a long time; despite this, he said he believed that the orders then proposed by the Independent Children’s Lawyer would alleviate some of the difficulties that they had previously had about making decisions about major long-term issues, because they would provide them with a structure to assist them to make such decisions. Whilst I am certainly not persuaded that the existence of specific orders about the manner in which there parents are to approach their decision-making will be a panacea, I am persuaded that such structure will probably assist the process of decision-making.
What Orders are in the children’s best interests?
The Court is assisted in this matter by three reports prepared by Ms Q, being those dated October 2013, February 2018 and July 2020. Whilst I have had regard to the contents of all three reports, I consider that the two more recent of them require some further discussion.
The February 2018 report
I accept that Ms Q assessed that, whilst the children loved both parents (and that both had said that they liked Ms Y), they were well aware of the parental discord and that their father had always wanted them to spend equal time with each parent. I also note that she then opined that it was hard to assess the impact of this knowledge on the children’s stated positions, especially given that she also noted that they wanted to please their father.
Ms Q outlined that, as she accepted that the children enjoyed spending time with their father, she thought it very likely that they equated having more time with him to having more fun and that this would then likely have been a contributing factor in N’s choice to seek more time with him.
Ms Q also noted that, given the long history of the father being critical of the mother’s parenting, it was quite possible that N was exposed to the father’s highly critical attitude/negative sentiment toward the mother during the time she spent with him.
Ms Q also noted that, despite the father’s stated concerns about the children’s education forming part of his rationale in wanting them to spend equal time with each parent, he had also told her that he did not like to do homework with them on weekends as that was their “fun” time.
Ms Q expressed a view that, whilst the children had not raised it with her, the travel they were required to undertake was considerable; she also thought that once N started high school, she would likely require more time and a quiet place in which to do her homework – rather than completing it in the car during the trip home from school to her father’s home.
As at February 2018, Ms Q opined that, for an equal-time parenting regime to work, there would need to be a far greater level of co-operation and positive communication around the children’s physical and emotional needs and routine than the parents had been able to achieve to date. She said that, absent good communication and co-operation, living in an equal-time week-about arrangement would expose the children to a lack of continuity and force them to compartmentalise their two worlds – something she thought would add considerable stress for them and which could lead to emotional problems such as anxiety and insecurity. She also said she thought there remained an ongoing lack of co-operation between the parents – particularly on the father’s part.
Ms Q outlined that it was possible that, as they knew that their father wanted an equal-time regime very much, the children saw moving to it as being the only way to achieve peace between their parents and/or everyone being happy. However, she also said that she was not necessarily persuaded that an equal-time arrangement would necessarily achieve the peace which she assessed the children as seeking. She seemed to arrive at this conclusion because she was concerned about the viability of the same (that is, an equal-time arrangement) given the history of domestic violence and the long-term dysfunction in the parental relationship. Ms Q was also concerned in 2018 that the father’s push to change the parenting arrangements would result in more conflict; she said she thought he was likely to use it as an opportunity to engage in a competitive style of parenting that would ultimately be to the children’s detriment.
It was for the reasons summarised above that, in February 2018, Ms Q recommended that the children continue to live with their mother for nine consecutive nights per fortnight and spend five consecutive nights per fortnight with their father and that the parents share equally in school holiday time.
The July 2020 report
It is relevant to record that, in her July 2020 report, Ms Q noted that the children have an extensive experience of living between their parents’ households and that she then considered them to be of an age where their views need to be seriously considered. I have already outlined the weight to be accorded to each child’s views about their future parenting regime.
I note that Ms Q also thought it notable that on the three occasions she had interviewed the children, they had consistently expressed a wish to spend equal time with each of their parents. She said, and I accept as more likely than not that, if the children had in fact been exposed to domestic violence between the father and Ms Y, they would not seem to be so enthusiastic about spending time with him.
In the July 2020 report, Ms Q expressed her assessment that the mother had tried to limit the children’s time with their father because of her mistrust of him and her scepticism that he truly has their best interests at heart. She noted – as I have earlier – that the mother’s proposal for the children to have less time with their father was “starkly” at odds with their expressed wishes. As was the case for Ms Q, I am not persuaded that there is any evidence to support the mother’s contention that spending time with their father during the school week was detracting from the children’s education. Ms Q in fact noted that N was doing well at school.
I accept Ms Q’s evidence that her review of these proceedings over the past seven years made it evident to her that both children had been heavily drawn into the parental disputes – by both parents, but particularly by their father. I accept her assessment that, whilst what she described as “this destructive dynamic” had generally improved over time, the co-parenting relationship was not ideal or as supportive as it could be.
I note Ms Q’s opinion to the effect that the mother now had difficulty, as a consequence of the trauma associated with her past abusive relationship with him, separating her feelings about the father from what the children might experience of him and her assessment that the mother’s mistrust of the father appeared to be based on her past experiences of him.
I accept and place particular weight upon Ms Q’s concern that the mother’s attempts to try to limit N’s communication with her father is likely to cause “way more problems” than she seeks to avert; I also accept her assessment that, given N clearly has a close and very strong relationship with her father, the more the mother attempts to try and limit their interaction, the more likely it is that the results will be counter-productive and “backfire” on her relationship with N.
I accept Ms Q’s opinion that, notwithstanding the ongoing problematic co-parenting relationship, a change now to a week-about parenting regime is more likely to provide the children with continuity during the week than the maintenance of the current 9/5 fortnight arrangement. I also accept Ms Q’s assessment that, as both children are well aware of the differences in their parents’ parenting of them and that the rules and expectations differ in each household, they adjust accordingly.
I note Ms Q’s view that, whilst the co-parenting relationship is not ideal, it is “difficult” to see how granting either parent sole parental responsibility would improve the situation. I accept her evidence when cross-examined that her assessment of the matter over the time of her involvement in it was that the parental conflict had improved; that whilst it is never going to be a perfect situation, she thought things had improved significantly given that both children told her that neither of their parents was bad-mouthing the other; I accept her assessment that the children are both happy in each of their parents homes. I also accept her evidence to the effect that these parents will never like each other or get along. I also accept her evidence to the effect that there is a risk that if a parenting regime contrary to her wishes is imposed on N, the consequence for the mother may not be what she wants.
I accept Ms Q’s evidence to the effect that it is “the ideal” that parental co-parenting requires good communication and trust; I also accept her evidence to the effect that, in this case, there has always been a lot of mistrust between the children’s parents; that this is not getting worse and that, in fact, the overall situation had improved slightly in terms of there being a reduction in overt conflict and “blow-ups” between the parents.
I consider that, whilst Ms Q accepted that many of the matters about the children’s reported behaviour whilst in the mother’s care were concerning and that it was worrying that the father could in some way be responsible for the same, she also took issue with the contention that this could worsen if the children spent more time with their father; I accept her evidence to the effect that she did not necessarily think that this would be the case, noting that what she described as “the push” by the father in this case has been for the children to spend equal time with each parent and that, as the children are well aware of this and have been for some time and consider that it is not “fair” for them to spend an unequal amount of time with their father, there might be a good possibility that an equalisation of that time might in fact improve these matters. I also accept Ms Q’s evidence to the effect that she did not necessarily think matters for the children would be worse if their time with their parents occurred on an equal-time, week-about basis.
I accept Ms Q’s evidence that she had not said that M would not cope if he was to spend seven consecutive nights away from his mother’s care; rather, her evidence was that she assessed him as having, as at July 2020, a stronger attachment to his mother than to his father; I also note that she remarked that this had always appeared to have been the case, in the same way that N always appeared to have had a stronger attachment to the father.
I also note Ms Q’s recommendation that the children live in an equal-time, week-about, shared parenting arrangement and that the parents email each other weekly to convey information about the children. Despite the efforts of Counsel for the mother, I consider that Ms Q was not really moved from her assessment: whilst she certainly accepted that there should ideally be better parental communication and co-operation to support an equal-time parenting regime, she maintained her recommendations which she explained involved balancing that the children sought equal time with both parents and that they had grown up in the midst of their parents’ conflict and interactions.
I consider that, in arriving at her recommendations, Ms Q also took into account her assessment that, for the children, their parenting regime was about “fairness’ and that this had evolved to the point where “fairness” in the same is something that is very important to them. I also note that Ms Q expressed the hope that things may settle for the children if an equal-time parenting regime is ordered.
Conclusions about other relevant facts and circumstances
I am satisfied that, on occasion, both parents have previously used N to convey messages to the other about parental issues. I am also persuaded that, in the past, both parents have acted so that N was well aware of their dispute about matters: in so far as the father is concerned, about school fees as a consequence of the text he sent to her which I consider to have been sent in a deliberate and intentional way with the purpose of undermining her relationship with her mother; on the mother’s part, by telling N – rather than the father – that she was not to take the mobile phone with her when she returned from her father’s home to her mother’s home.
I am satisfied that it is highly unlikely that the father will ever contribute financially to the children’s costs other than by meeting those costs associated with the time they spend with him or in his care. I think it highly likely, given the father’s past history of non-compliance with orders for the provision of financial support to the mother (and the children) that his asserted “intentions” of being able in the future to contribute more financially toward the support of the children are little more than lip service – at least when the financial support relates to the time they are in their mother’s care.
I am easily persuaded on the evidence that the father has, on occasions, adopted a discretionary approach to complying with Court orders: that is, I am persuaded that he has previously failed to comply with some terms of some orders and/or has complied with terms of the same when it suits him to do so or when he considered his own interests furthered by compliance.
Allocation of parental responsibility
When making a parenting order, I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them.[19] The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in their best interests for the parents to have equal shared parental responsibility for the children.[20]
[19] Family Law Act 1975 (Cth) s 61DA.
[20] Family Law Act 1975 (Cth) s 61DA(4).
Given the findings I have made about the issue of family violence, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them[21] does not apply in this case.
[21] Family Law Act 1975 (Cth) ss 61DA and 61DA(2).
I am persuaded that the children have previously been exposed to family violence during the course of the parental relationship: I am persuaded that the father perpetrated family violence against the mother and that, on occasion, the mother perpetrated family violence against the father. Whilst there is in existence a current operative domestic violence order, there is nothing in the evidence to suggest that the father has breached any of the orders that have been made as between these parties from 2012 to date.
Given my findings in relation to family violence and that the presumption of equal shared parental responsibility does not apply, I am required to determine whether it is in the children’s best interests for their parents to have equal shared parental responsibility.
The absence of a likelihood of agreement or co-operation between these parents may suggest that it would not be beneficial or in the children’s best interests for their parents to have equal shared parental responsibly for the major long-term issues relating to them; however, permitting one parent to exercise sole decision- making seems to me to be highly likely to result in increased future conflict and angst for the children. I consider it more likely than not that to accord to one parent what is, in essence, a controlling hand vis-à-vis major long-term issues for the children is more likely than not to lead to an increase in parental conflict: it is certainly unlikely to lead to a diminution in the same, as it seems to me to be much more likely than not that the parent not accorded sole parental responsibility would feel completely disenfranchised and would likely react against that situation by seeking somehow to be heard about the matters encompassed by the exercise of parental responsibility. Further, I think it highly likely that these children, who I accept have sought fairness in their parenting regime for a considerable time, are unlikely to accept what they may well perceive as a complete absence of fairness associated with a ‘sole parental responsibility’ order.
I accept that, of those issues covered by the definition of “major long-term issues”, matters of religion, the children’s names and their medical treatment – other than vaccination – appear not to be an issue as between the parents. Rather, the only matter falling within the term “major long-term issues” that really requires future decisions to be made is the children’s education; in so far as this issue is concerned, I accept that, subject to their respective financial situations, both parents want N to continue to attend MM School. However, as noted during the course of the trial, each parent’s financial situation may mean that this is not realistically feasible.
The father said that he would be more than happy with an order which resulted in him ‘losing’ parental responsibility for the issue of at least N’s education if he was unable in the future to meet his previously agreed 50 per cent contribution to her school fees. However, I am concerned (as I raised with Counsel during the course of their submissions) about the potential risks to the mother’s relationship with N, which I consider to be associated with such an order: for example, if such an order was made and the father did as he previously has done (namely, failed to pay his agreed 50 per cent of N’s school fees), the mother would be left to either meet the entirety of the costs or to explain to N that it was her sole decision (and not a joint parental decision) to remove her from her current school. That is, the parent who in fact met their financial commitment to N would be the parent left to bear the responsibly of the consequences of the non-contributing parent. Given the contents of the text messages passing between the father and N about the issue of the payment of her school fees (as discussed earlier in these Reasons), I think it highly likely that there is a very real risk that an order which causes the mother solely to bear the responsibility for any decision to remove N from her current private school may well impact adversely on their future relationship. I consider that if the parents together cannot afford for N to continue to attend a private school, then it is in N’s best interests that her parents together bear the responsibility for that outcome and the decision to remove her from her current school.
Whilst others may disagree, in the exercise of the broad discretion accorded to judges at first instance and after much reflection and notwithstanding the communication and relationship difficulties between these parents, I have ultimately concluded that it is in these children’s best interests for there to be an order that their parents have equal shared parental responsibility for major long-term issues about them. In arriving at this decision, I have placed particular weight on my conclusion that it is much more likely than not in this case that to accord sole parental responsibly for major long-term issues to only one of these parents would be productive of ongoing conflict and be much more likely than not to result in increased discord for N and M.
Living and time orders: what orders are in the children’s best interests?
Given that I will make an order for the parents to have equal shared parental reasonability for the major long-term issues relating to the children, I am required to consider, having regard to the reality of the situation for the children and their parents and by way of a practical assessment of the feasibility of the possible parenting regimes,[22] whether the children spending equal time with each parent is in their best interests and reasonably practicable.[23]
[22] MRRv GR (2010) 240 CLR 461.
[23]Family Law Act 1975 (Cth) ss 65DAA(1) and 65DAA(5).
I am persuaded that, whatever the time arrangements for these children, the reality is that they will continue to be required to negotiate two very different households in which they know their parents do not like each other or communicate or trust each other or co-operate. It seems to me to be highly likely that, as they move into adolescence, the scenario in which they find themselves will prove itself amenable to manipulation by each child providing each parent with the information that they think is most appropriate for their own ends.
I am persuaded that whatever orders for the children’s time with each of their parents are made will not affect or change their parents’ behaviours or attitudes toward the other. The reality for these children, it seems to me, is that this has been their life since the parental separation eight years ago – when N was about six years of age and M was about two years of age. That is, this is the reality within which these children have grown and that is the reality they will continue to confront into the future.
The mother clearly thinks that each of the children’s expressed wish to spend equal time with their parents is completely the product of the father’s influence; she discounts pretty much completely any possibility that the children have simply reached their own views as a consequence of their experiences in each household. I do not join in these assessments.
The children have been in their current parenting arrangement of spending five nights per fortnight with their father since July 2014.
The positives for the children associated with moving to a week-about care arrangement seem to me to include the following: that this will reflect the children’s consistently expressed views over three Family Reports spanning seven years; it will remove the requirement for the children to change houses during the school week and will give them a parenting regime where block time in each parent’s care can continue for the majority of the year save for the Christmas holiday period; each household will clearly be responsible for ensuring tasks – such as children’s homework and activities – are done for an entire week period; the children will have the opportunity of a week to settle into the routines of each of their parents’ respective homes and establish their own routines whilst there.
It seems to me that the negatives associated with moving to a week-about parenting regime for the school terms include that it is contrary to the mother’s wishes for the children. I am not persuaded that it is likely that there will be any unavoidable deleterious impact on the children’s education if they spend alternate weeks in the care of each parent during school terms. I am not persuaded that the increased impost on them consequent on them having to travel more than they currently do cannot be offset by the father ensuring that appropriate bedtime arrangements are made in his household and I consider it more likely than not that, if he thought either child was becoming tired as a result of the travel, he would act to remedy this.
It seems to me that the positives for the children of making time orders in the terms sought by the mother include that it would implement a parenting regime which has her full support; further, it would minimise the extent of the children’s travel during the school term and remove the requirement that they transition between their parents’ homes during the school week. Given the history of the parenting orders and the parenting regime imposed by the same, I am not persuaded that a change to spending only weekend time during the school terms is likely to provide these children with greater stability than could be achieved by the implementation of a week-about parenting regime during school terms.
I consider the negatives associated with the mother’s sought time orders – which would decrease the children’s time from five nights per fortnight to three nights per fortnight during school term (that is, a nearly 50 per cent decrease in the time they have, since July 2014, spent with their father) to include that: they are contrary to the children’s consistently expressed wishes; given the father’s attitude to the payment of child support and his current unemployment, the mother will be required to provide an even greater amount of financial support for the children than she does at present; there is a possibility that N might rebel against them, with the possibility of negative consequences and impacts on her relationship with her mother (this may be possible for M also, although the evidence does not suggest, at this stage, that this is likely); they would result in the children spending significantly less time with their father compared to that to which they are accustomed given the routine established by the orders made in July 2014. In addition, I consider it much more likely than not that a reduction in the children’s time with their father would result in an increase in the parental conflict, disagreements and resentment with an associated adverse impact on the children, rather than a reduction in it.
Having regard to the evidence, my findings and the matters summarised above, I consider that the likely benefits to the children of a change to living in a week-about parenting regime during the school terms and spending half of the holidays with each parent outweigh the possible detriments of the same. Consequently, I consider that it is in the children’s best interests that, from the start of the 2021 school year (in the manner particularised in the orders), their parenting regime change to one in which they spend alternate weeks during school terms in the care of each of their parents and that they continue to spend equal time with each parent during the school holidays. I have arrived at these conclusions having accorded particular weight to the children’s expressed views, to the fact that neither parent has advanced that there be disparate parenting regimes for the children and to my conclusion that, considered overall, both parents are capable of meeting the children’s needs during their time with them. I also record that I have arrived at the determination that it is in these children’s best interests to spend equal time with their parents despite it being abundantly apparent that there is no parental trust and very, very limited parental communication.
I consider it is not in the children’s best interests, at this relatively late stage of the school year, to change the current parenting regime prior to the start of the 2021 school year – this delay will also enable the children to get used to the change that will be implemented.
Whilst the mother has concerns about the impact on the children into the future of the travel associated with them living with their father during the school term for any period other than alternate weekends, I am persuaded that it is reasonably practicable that the children spend equal time during the school terms and during the school holidays with each parent. In arriving at this determination, I have had regard to all of the matters particularized in s 65DAA(5) of the Act: in particular, I record my additional conclusions that, despite the absence of trust and communication between these parents, they each have the capacity to implement an equal-time parenting regime and to communicate and resolve issues that might arise in implementing a week-about parenting regime sufficiently to ensure that the children are not adversely effected by the same.
I turn now to a brief discussion of some of the issues about which specific orders were sought.
Birthday arrangements
The Orders to be made deal differently with the time the children will spend with each parent on that parent’s birthday because the father’s birthday falls during the school holidays at the end of Term 4.
Changeovers
The father proposed that changeovers other than at school occur at SS Town, about 25 minutes’ drive for him and about a 32 minute drive for the mother; the mother proposed that changeovers other than at school occur at LL Town – currently, about a 25 minute drive for her and about a 38 minute drive for the father.
Doing the best that I can, it seems to me that it is appropriate that changeovers other than those which occur at the children’s schools occur at the McDonald’s at FF Town – which will require the mother to drive for about 31 minutes and the father to drive for about 29 minutes. Whilst the mother’s travel will be lessened if she moves to live with Mr KK at LL Town, equality of travel time and distances cannot be given unnecessary focus – especially as the father’s original position of a changeover at SS Town would have required him to travel for about 25 minutes in any event.
Telephone communication
The father ultimately joined with the Independent Children’s Lawyer in submitting that the children should communicate by telephone with the parent with whom they are not living at a frequency of three times each week.
I am not persuaded that it is in the children’s best interests that they be required to communicate with each parent with whom they are not living at such frequency as I am concerned that it may be intrusive for each parent. Instead, I consider that the children should have telephone communication with the parent with whom they are not living each Tuesday and Thursday – the call on Thursday will, it seems to me, provide an opportunity for any practical matters to be discussed the night before the children transition between their parents’ households.
Counselling
I am not persuaded on the evidence before me that the children need to participate in counselling or that it is in their best interests now that they are compelled to undergo the same. I consider that the issues that have resulted in the ongoing litigation are issues completely of their parents.
Passports
I intend to make an order pursuant to the Australian Passports Act 2005 (Cth) to permit the children to have Australian travel documents in the hope of ensuring that there is no repeat in the future of what I regard as the father’s infantile approach to the mother’s previous request for him to co-operate to have the children’s passports renewed.
Other orders in relation to the children’s passports
The children’s passports have been held by the Court for a significant period of time. I intend to make a direction that they be returned to the mother upon her request and production of a copy of the final orders I will make. It is, I think, appropriate that the mother hold the children’s passports, but also that she make them available to the father to facilitate any overseas travel the children may have the opportunity to undertake in school holidays whilst in his care.
Final comments about the terms of the orders to be made
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the children’s best interests because such orders will, for example: manage the children’s return to the week-about living arrangement after the end of the Christmas school holidays each year; enable the week-about living regime to continue through-out the school holidays at the end of Terms 1, 2 and 3 so as to minimise disruption to the children; ensure that both parents receive information about the children in a timely way; provide the parents with clearly defined mechanisms by which to consult with each other about decisions to be made about issues relating to the children; minimise the changeovers the children are required to do in school holiday periods; ensure that they spend time with each parent on the weekend on which Mother’s Day and Father’s Day fall; ensure that the children spend time with each parent on their birthdays and on each parent’s birthday; ensure, as far as possible, that the children are protected from the harm which may be caused to them as a consequence of exposure to derogatory comments about each of their parents; ensure that, if they attend on any counsellor or therapist and it is thought helpful to that process, their parents are empowered to provide such therapist with a copy of these Reasons, the final parenting orders and Ms Q’s reports; enable the children to obtain the benefits of travel outside of Australia with each of their parents; and enable each parent to remain aware of the children’s location and contact details if they travel overseas with the other parent.
To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in the children’s best interests. Additionally, given the extant Protection Order is operative until May 2022, I have not been persuaded that it is appropriate for the children’s welfare, proper or just or convenient to make the injunctive orders sought by the mother.
I conclude by noting that, on the evidence before me, these parents appear to have frequently encountered particular difficulties when they have attempted to depart from the terms of operative Orders: that is, it appears that they encounter more issues, problems and conflict when they attempt to negotiate changes to orders than when they simply follow what has been ordered. Whilst it is ultimately entirely a matter for each of them in the future, it might be in the children’s best interests if their parents simply follow the terms of the Orders made to finalise these proceedings, rather than attempt to reach agreement about alternatives, as the process of attempting to negotiate changes to the Orders seems to contribute to – and exacerbate – parental conflict, rather than ameliorate the same.
For the reasons expressed above, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of these children’s circumstances, as established by the evidence before me and as adverted to above, are now in their best interests and proper.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 October 2020.
Associate:
Date: 30 October 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Appeal
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