Farina & Lofts (No 2)

[2014] FamCA 537

FAMILY COURT OF AUSTRALIA

FARINA & LOFTS (NO 2) [2014] FamCA 537

FAMILY LAW – CHILDREN – INTERIM - where the mother seeks that the children live primarily with her

APPLICANT: Mr Farina

RESPONDENT: Ms Lofts

FILE NUMBER: BRC 10102 of 2012

DATE DELIVERED: 18 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 June 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Hawkshaw by way of direct access brief

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraphs 1, 2, 3 of the Order made 14 June 2013 is discharged.

2. The Father and the Mother have equal shared parental responsibility for the major long term issues of the children, N born … 2006 and M born … 2010 (“the children”) including in respect of:

   (a)       the children’s education (both current and future);

   (b)       the children’s religious and cultural upbringing;

   (c)       the children’s health;

   (d)       the children’s names;

   (e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with or live with either parent.

3. The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and make a genuine effort to come to a joint decision.

4. Each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.

5. The children live with the mother.

6. The children spend shall time with the Father at all times as may be agreed by the parties in writing but, failing agreement, for five (5) consecutive nights every fortnight being from the conclusion of school or 3.00 pm on Wednesday in week 1 of each fortnight until the commencement of school or 8.30 am on Monday in week 2 of each fortnight.

7. During school terms and unless otherwise agreed between the parties in writing, the father shall collect the children from school or day care at the commencement of their time with him and return them to school or day care at the conclusion of their time with him.

8. In the event that the parents are spending overnight time with the children at some place other than their usual residence, they are to notify the other parent by email of their contact details and provide notice of how long they will be away from their usual residence.

9. Whilst the children are spending time with the Father, that the children shall communicate with the Mother by telephone call or video conferencing such as Facetime or Skype:

   (a)       between 6.30 pm to 7.30 pm on Sunday night; 

   (b)       between 6.30 pm to 7.30 pm on the Tuesday night;  and

   (c)the Father shall do all that is necessary to reasonably facilitate the telephone call or video conferencing between the children and Mother by facilitating the children in initiating the call to the Mother.

10. Whilst the children are in the care of the Mother, that the children shall communicate with the Father by telephone call or video conferencing such as Facetime or Skype:

    (a)       between 6.30 pm to 7.30 pm on Sunday night; 

    (b)       between 6.30 pm to 7.30 pm on the Wednesday night;  and

    (c)the Mother shall do all that is necessary to reasonably facilitate the telephone call or video conferencing between the children and the Father by facilitating the children in initiating the call to the Father.

11. The children are at liberty to communicate with each parent by telephone call or video conferencing such as Facetime or Skype at all other reasonable times as mutually agreed between the parents.

12. The children shall spend time with the Father for one half of all gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years.

13. The operation of Clause 6 shall be suspended during all school holiday periods and shall recommence:

    (a)on the first Wednesday after school recommences for each Term in odd numbered years; and

    (b)on the second Wednesday after school recommences for each Term in even numbered years.

14. Unless otherwise agreed between the parents in writing, changeovers which occur during school holiday periods or on non-school days shall occur at McDonald’s, O Town in Region P.

15. In the event the children are not otherwise spending time with the Father, pursuant to the terms of this Order, on the weekend on which Father’s Day occurs, the children shall spend time with the Father on that weekend from after school or 3.00 pm Friday until school the following Monday and the Father shall collect the children from school or day care at the commencement of this time and return them to school or day care at the conclusion of this time.

16. In the event that, as a consequence of the terms of this Order, the children would not be spending time with the Mother on the weekend on which Mother’s Day occurs, the children shall spend time with the Mother on that weekend from after school or 3.00 pm Friday until school the following Monday and the Mother shall collect the children from school or day care at the commencement of this time and return them to school or day care at the conclusion of this time.

17. The children spend time:

    (a)with the Father on the Father’s birthday: from 3.00 pm to 8.00 pm if it falls on a weeknight or from noon to 5.00 pm if it falls on a weekend during which the children would otherwise be in the Mother’s care;

    (b)with the Mother on the Mother’s birthday: from 3.00 pm to 8.00  pm if it falls on a weeknight or from noon to 5.00 pm if it falls on a weekend during which the children would otherwise be in the Father’s care;

    (c)on their birthdays with the parent with whom they are not then living or spending time with: from 3.00 pm to 8.00 pm if the birthday falls on a weeknight or from noon to 5.00 pm if the birthday falls on a weekend.

18. In the event that there is a special occasion, family celebration, or a close family member is ill or there is the death of a significant person in the lives of the children, then the parent with whom the children are then living or spending time shall reasonably provide the children to the other parent to spend reasonable time with that parent.

19. Each party attend at and complete the Parenting Orders Program and enrol in the first available programme.

20. Within three (3) months of this Order, the Father enrol in and complete an Anger Management Program conducted by Lifeline or such similar organisation.

21. Both parents attend upon an experienced psychologist to assist in improving the co-parenting relationship and for the psychologist to be provided by the Mother with a copy of the Family Report and the relevant Court Orders:

    (a)by no later than 5.00 pm on 25 July 2014, the Mother provide to the Father a panel of three (3) experienced psychologists;

    (b)by no later than 5.00 pm on 1 August 2014, the Father select an experienced psychologist from the panel;

    (c)in the event that the Father fails, refuses or neglects to select an experienced psychologist from the panel pursuant to sub-paragraph (b) above, then the Mother shall select the experienced psychologist from the panel;

    (d)       the Father pay for the costs of psychologist for the consultations.

22. Each parent is hereby authorised to obtain from the children’s schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

23. Each parent is hereby authorised to obtain from the children’s treating doctor/s, treating hospital, psychologist, counsellor, allied health worker, specialist or otherwise any information, reports and/or clinical records pertaining to the children.

24. Each parent advise the other of any change of telephone number, including mobile number or residential address, within 24 hours of such change occurring with notification to be made by email or SMS text message to the other party.

25. Neither parent criticise or denigrate the other parent or the other parent’s family to or in the presence or hearing of the children.

26. In the event that a third party is denigrating the other parent in the presence of or within hearing of the children, the parent with whom the children are then living or spending time shall take all reasonable steps to remove the children from that location.

27. Each parent shall take all reasonably necessary steps to prevent any person other than the parents from disciplining the children.

28. Each parent shall encourage each child’s relationship with the other parent and each child’s relationship with their grandparents.

29. Unless otherwise agreed in writing, the parents shall communicate and exchange information in relation to parenting issues by SMS text or email.

30. Each parent shall keep the other informed of the names and addresses of all treating medical or other allied health practitioners by whom the children are treated and, by this Order, each authorises those practitioners to provide the other parent with all information they are lawfully able to provide about the children.

31. The parent shall inform the other parent, as soon as is reasonably practicable of any medical condition, significant health issue or illness suffered by the children and, in the event of the children being admitted to hospital for emergency treatment, treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, shall immediately and 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;

    (b)the medical or other complaint 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 prescribing or provision of such medication and/or treatment.

32. The parties’ costs of and incidental to the application for interim parenting orders are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farina & Lofts (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10102/2012

Mr Farina

Applicant

And

Ms Lofts

Respondent

REASONS FOR JUDGMENT

1. The parties commenced a relationship in about late 1995 and commenced cohabitation in about early 1998. Their final separation occurred in May 2012.

2. While the parties lived separately on occasion - when the mother was posted overseas as a result of her employment with the public service - during their approximately 17 year relationship, this ceased on the birth of the children.

3. There are two children of the relationship:

   a)N, born in 2006:  nearly 8 years of age; and

   b)M, born in 2010: currently 4 years of age.

4. It is uncontroversial that the mother was the children’s primary carer from the time of their respective births until separation.

What were the parenting arrangements from separation until 14 June 2013?

1. After separation and with the assistance of mediation, the parties came to an interim agreement in about June 2012. It provided that the children live primarily with the mother and spend two overnights per week and some time on one afternoon per week with the father.

2. Whilst they also apparently agreed at the mediation to review the terms of the interim agreement, this did not eventuate.

3. Subsequently, the father commenced proceedings seeking parenting orders on 3 November 2012.

Operative order

1. On 14 June 2013, Judge Howard made an interim parenting order (the June 2013 Order) which provided that:

   a)the parties have equal shared parental responsibility for the children; and

   b)the children live in a week about “shared care” arrangement from after school/day care Friday until before school/day care Friday; and

   c)the children communicate by telephone with the parent with whom they are not then living on three occasions per week between 5.00 pm and 5:30 pm; and

   d)in the event the parents are spending time with the children during their week at someplace other than their normal residences, they are to notify the other parent by email their contact details and how long they will be away; and

   e)when the children are spending time with the father, they are to remain in his care.

2. The June 2013 Order had the effect of creating an alternating week parenting regime in circumstances where the children had previously been cared for primarily by the mother and had spent no more than two non-consecutive overnights each week in the care of the father since separation, with the exception of an eleven day camping holiday in the Easter holidays of 2013[1]. It did so without the benefit of any expert evidence to suggest that the imposition of such a regime was, at that time, in the children’s best interests.

   [1]          Family Report paragraph 116.

3. No doubt in order to address the absence of expert evidence relevant to a determination of those interim parenting orders which were likely to be in the children’s best interests on a longer interim basis, the June 2013 Order directed the preparation of a Family Report by Ms Q for the Court’s assistance in determining appropriate future parenting Orders. This report (the Family Report) was completed on 13 October 2013 and released to the parties on about 24 October 2013.

4. I accept Ms Q’s conclusion that, in the circumstances which existed in the lead up to the June 2013 Order, the determination that the children spend equal time on an alternating week basis with each parent appears, on a prima facie basis, to have been premature.

5. However, the children have now been parented within this parenting regime since June 2013.

6. N is currently in Grade 2 at R School where she attends Monday to Friday each week.  M started Pre-Prep at S Kindergarten this year. He attends from 9.30 am until 2.30 pm for five days each fortnight. He will commence attendance at Prep at the end of January 2015.

7. It is uncontroversial that during 2013:

   a)M attended day care - first on Mondays and Fridays and later on Mondays only - during the week he lived with the mother; and

   b)M did not attend day care during the week he lived with the father – rather, the father took him to his work where he says he was well cared for.

8. A current Domestic Violence Protection Order, in which the mother is the aggrieved spouse and the father the respondent spouse, is operative until 19 July 2014.

Interim Parenting Application

1. In these proceedings, being proceedings for a parenting order (section 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.

2. The manner in which these principles are to be applied to a determination of interim parenting applications is well known, uncontroversial and does not require detailed elaboration.[2]

   [2]          Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386; [2006] 36 FamLR 422.

The mother’s proposal and arguments in favour of it

1. By Application in a Case filed 14 March 2014, the mother seeks orders substantially similar to those proposed in the Family Report. In summary, she seeks that:

   a)she have sole parental responsibility for the children;

   b)the children live with her;

   c)the children spend time with the father for a period of 5 (five) consecutive nights in each fortnight - namely, from after school/day care on Wednesday until before school on Monday – and for half of each school holiday period;

   d)changeovers occur via school or day care provider during the school term and at McDonald’s at O Town during school holidays;

   e)the children communicate with the parent with whom they are not then living by nominated electronic means (telephone, Skype, Facetime) each Tuesday and Sunday night between 6:30 pm and 7:30 pm;

   f)the parents attend a Parenting Order Program;

   g)the father attend an anger management program;

   h)both parents attend a psychologist for therapy directed toward improving their co-parenting relationship;

   i)the children be permitted to travel overseas for holidays with each parent on the proviso that the travelling parent provide the other with prior notification of the intention to remove the children from the Commonwealth of Australia; and, to facilitate such overseas travel,

   j)the children’s names shall be removed from the airport watchlist.

2. Counsel for the mother relied significantly upon Ms Q’s assessment and recommendations in submitting that the Court would be persuaded that, at present, it is in the children’s best interests that orders are made in the terms sought by the mother. She further points to the presence of domestic violence on the part of the father, the father’s alleged lack of insight into his purported emotional harm of the children, and the parties inability to successfully co-parent.   

3. The mother asserted to Ms Q that, whilst the father claims to want equal time with the children, the reality is that he is unavailable to care for them on occasions. She provided the example that, he travelled overseas between 22 June and 8 July 2013 and again between 27 July and 17 August 2013.

4. As I understand it, a significant part of the mother’s case that it is in the children’s best interests for them to live primarily with her relies upon the assertion that the father lacks the emotional intelligence and/or insight to provide for and meet the children’s emotional needs. She asserts he exposes them to his negative and critical view of her parenting.

5. She told Ms Q that:

   a)she does not believe the father is patient enough to care for the children for a whole week on an ongoing basis;

   b)the father often speaks harshly and inappropriately to the children, does not have empathy for them when they are upset, and will often demand that they “stop crying”, or “stop being a baby”;

   c)the father has a very dominant attitude towards parenting, frequently telling the children that he is “the boss” – an approach which she feels undermines their self-confidence;

   d)the father teases and ridicules the children in a destructive manner: for example, ridiculing N and making fun of her for not being able to ride her bike to the point that she was very upset and lost confidence;

   e)sometimes after returning from spending time with the father, N is upset and has commented to her mother, “I just block my ears when Daddy teases me”;

   f)N’s behaviour toward her has become increasingly negative and she believes the child is picking up her father’s attitude: she is concerned that N is modelling her behaviour on the father and, if she is exposed to his dominating and insensitive attitudes for extended periods of time, this will “inevitably” affect the way in which she relates to others;

   g)the father has involved the children in the conflict between them – she relied on the occasions on which he attended to collect possessions from the home at times when the children were present, knowing the Police would also be present.

The father’s proposal and arguments in favour of it

1. The father resists any alteration to the June 2013 Order. He does so on the basis that:

   a)there should be no change to the parenting regime which has operated since June 2013 “until such time as there is a proper hearing where any disputed matters may be tested;”[3]

   b)the current arrangements are “working well for the children” - he refers to discussions with the children’s class teachers in relation to their emotional, physical and scholarly development for which “all reports [were] extremely positive.”[4]

   a)it would be premature and disruptive to the children if their care arrangements are changed at this stage;

   b)that the Family Report is now more than nine months old;

   c)the current arrangements have been in place for more than 12 months;

   d)the children are accustomed to and enjoy the current arrangements and routine;

   e)if changes were made as recommended in the Family Report, there is now less than six months to go before the time recommended for review of the parenting arrangements – that being when M starts Prep (which will be at the end of January 2015);

   f)the glowing reports from the children’s teachers mitigate against any argument that the current parenting regime is having a detrimental impact on them;

   g)both children have, in any event, spent substantial time away from the mother since birth.

   [3]Father’s affidavit, filed 28 April 2014, Paragraph 7; see also Response to an Application in a Case filed 28 April 2014.

   [4]          Father’s affidavit, filed 28 April 2014, paragraph 6.

1. In addition, in his affidavit filed 29 June 2014, the father asserts:

   [N] has indicated verbally that she mostly enjoys her time with me rather than [Ms Lofts] for a number of reasons, these include:

   (a)when she is with her mother both [M] and herself are left in the house alone whilst [Ms Lofts] teaches classes on Tuesday, Wednesday and Thursday evening;

   (b)[Ms Lofts] rarely assists her with her homework and that I help with her homework and read regularly to her;

   (c)[Ms Lofts] is constantly dropping her late to school;

   (d)that whilst in my care I arrange activities for them including fishing, bike riding, camping, skateboarding, craft and baking.”

2. Whilst no doubt relied upon by the father as N’s expression of a wish to spend more time with him than the mother, it is concerning that the father seemingly permits N to engage in conversations which are critical of the mother’s parenting capacity and which, tellingly, at least in part reflect his views of the mother’s deficiencies as a parent.

3. The father’s willingness to attribute fault to the mother is apparent from the following:

   a)he asserts that the mother is constantly late in dropping the children to school which causes problems because N’s teacher has suggested she is uncomfortable entering the classroom late and N’s learning is being affected because the first lesson of the day is spelling; but

   b)he asserts “[N] has achieved either High or Very High results in both academics and behaviour”[5] in her school reports.

   [5]          Father’s affidavit filed 29 June 2014, paragraph 9.

4. Whilst the father raised with Ms Q his view that the mother’s “personal disorganisation” disadvantages the children - for example, reading books are not signed off in the children’s home work logs and N is regularly late to school during weeks the children are in her care - his criticisms of the mother’s parenting capacity must be seen in the context of his support for a continuation of the current parenting regime.

5. Clear indicia of the father’s lack of insight into the impact of his behaviours on the children can be found in his decision to take M with him to collect property from the house knowing the Police to be there. When speaking with Ms Q of this event, the father told her he did not see anything problematic at the time but he did acknowledge to her that the Police presence may have been unsettling from M.

6. It is clear that the father does not see any difficulty in his direct approach with the children. He clearly is unconcerned about the impact on them as they develop of being told things in the manner he accepts takes place. It is unlikely, therefore, that the father will change the manner in which he interacts with the children because he does not accept that such interaction is likely to, or could, cause harm to them.

The presumption and the power to make a parenting order

1. When making a parenting order, I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility (“the presumption”) for them.[6] 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 the children’s best interests for their parents to have equal shared parental responsibility for them.[7]

   [6]          Family Law Act 1975 (Cth), s 61DA.

   [7]          Family Law Act 1975 (Cth), s 61DA(4).

2. Section 61DA(2) of the Act provides that the presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in either abuse of them or another child, or family violence.

3. The mother asserts the father subjected her to significant physical, emotional and verbal abuse during the relationship. Whilst the father denies the extent of any such domestic violence – and asserts that the mother has exaggerated the same – he acknowledges there was domestic violence during the relationship:  albeit that, on his case both parties were responsible for the same. It is undisputed that, following an incident in 2008, mutual Domestic Violence Orders were made. As noted above, the current Domestic Violence Order expires on 19 July 2014.

4. Given the acceptance by both parties that there was family violence during the relationship – albeit that they differ about the particulars of the same and who was responsible for it - the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply:  rather, “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[8]

   [8]          Cox & Pedrana [2013] FamCAFC 48 at paragraph 19.

The Family Report

1. Ms Q interviewed the parties and children on 12 September 2013. She also observed the children’s interaction with each of their parents.

2. I accept the following relevant information, assessment and opinions contained within the Family Report:

   a)while the children are primarily attached to the mother, they have a strong attachment and relationship with the father and their observed interactions with him suggest that he has the capacity to connect with them positively;

   b)the children’s ages are such that it is inappropriate to place much weight upon their expressed wishes;

   c)N is aware of the conflict between her parents, knows the father wants the existing alternating week arrangement to continue and is careful not to upset him;

   d)N is acutely aware of the father’s anger, most of which has been directed toward the mother but some of which has been directed toward her and she feels the need to be quite careful around him and is not confident to assert a contrary position because he might get angry with her;

   e)the children enjoy time with both of their parents and may well say that they have more fun or do more fun things at the father’s home;

   f)the children have a warm and loving relationship with both parents and each parent was positive and appropriate in the way they interacted with each other in front of the children during Ms Q’s interview process;

   g)while the father clearly loves his children very much, he lacks understanding of their emotional needs and of the importance for the children for both them and him to have a considerate and respectful relationship with the mother;

   h)his decision to refuse to tell the mother where he had taken the children camping – even if done on the basis of legal advice – reflects a lack of empathy for the mother, and a preparedness to completely ignore her experience, or to take into account how her distress in turn affects the children;

   i)his actions in taking M to collect the belongings from the family home with the Police, and then exposing both children to the Police on a second occasion, is indicative of a failure to appreciate the children’s emotional world and their vulnerability in this situation and to put their needs first;

   j)the parent’s long history of conflict and domestic violence constrains their relationship and makes it extremely unlikely they will be able to work together to the extent that they can provide an emotionally contained, consistent experience for their children under an equal time arrangement;

   k)the parents require a much higher level of co-operation, and an ability to negotiate day-to-day matters that arise between them, often spontaneously for the children to move comfortably back and forth between the households without sustaining emotional damage;

   l)such a level of co-operation does not appear to exist at present; and

   m)it is likely there will continue to be intermittent escalations of conflict and tension due to miscommunication and the lack of co-operation which will cause considerable stress and anxiety for the children.

3. I also consider as uncontroversial that, during the parties relationship, the father was highly critical of nearly everything the mother did within the home and considered her deficiencies (as he saw them) to be significant and unacceptable. There is no dispute that the father is very direct in his criticisms of the mother and children and let them know exactly what he thinks about their behaviour and their failings.

4. Ms Q’s report makes clear that the children have a strong attachment to both parents, and the continuation of such a meaningful relationship is important.

5. It is clear the father very much wants the opportunity to be involved in all aspects of the children’s lives. I accept that he does not want simply to be a “weekend father”. What is also clear, however, is that the children will have the opportunity of his involvement in their school and weekend life irrespective of whether an order is made in the terms sought by the mother or her application is dismissed.

6. I do not accept that it is likely that, if the children spend the time with the father in the manner the mother proposes, there will be a negative impact upon their relationship with him. There is nothing to suggest the mother will undermine the children’s relationship with the father and there is nothing to suggest that he will be unable to have a meaningful relationship with them if they spend five nights per fortnight rather than seven nights per fortnight in his care.

7. While some may question the impact of an additional two nights to be spent in the mother’s care, it is, in my opinion, these additional two nights that will provide the children, who are of a reasonably young age, with the additional emotional continuity which Ms Q has assessed as unlikely to be provided in the current week-about arrangement.

8. Ms Q asserts the father has minimised the impact of the domestic violence upon the mother and the children and failed to acknowledge the extent of his contribution to the problems. However, any conclusion about these matters requires a determination of the disputed extent of the alleged domestic violence – a matter which cannot occur during this interim process.

9. I take into account the mother’s belief that the father conveys his disrespect for her to the children in her absence, and that he continues to exhibit the same aggressive attitude towards them as he did to her during the relationship. If this is, in fact, the case, the mother’s concern that the children’s exposure to this “behavioural model” may be destructive to their emotional development and their relationship with her is certainly reasonable.

10. I take into account that it is not disputed the father’s approach to parenting is one of directly telling the children his views of their behaviour. On his own report to Ms Q he is very direct with the children and tells them exactly what he thinks: for example “don’t be a sook” and “don’t cry like a baby”. In this context, N’s description of him as cranky, bossy and mad, often impatient with her to the point of causing her to cry and that she does not say anything to him because she is afraid he will become angry with her, has resonance. At this stage, it seems to me to be beneficial to the children that they are shielded – at least a little- from exposure to this type of ‘direct’ parenting style.

11. It would appear from Ms Q’s report, that N, who was seven at the time of the Family Report Interviews, was at least aware of the ongoing dispute between the parties. She expressed she would like the current arrangement to persist because “they were fair; and they were what her Dad wants, and she wants the same”. Further evidence of N’s awareness of the ongoing conflict, seems to me to be found in the father’s discussion with her about whose house she prefers. Her age and awareness of the parenting dispute and her father’s wishes seems to me to mitigate against N’s expressed view being accorded any significant weight in the overall assessment of those orders which are in the children’s best interests.

12. I consider that the children’s best interest are met, on an interim basis, by an order which sees them spend the majority of their Term time in the mother’s care. Ms Q’s assessment – which I accept on an interim basis – suggests she is the parent better able to address the children’s emotional needs, particularly as M starts to transition from pre-Prep to Prep. The children will be well able to maintain a meaningful relationship with the father during the five consecutive nights they spend in his care each fortnight, especially when this is also supplemented with time with him for half of each school holiday block. They will also have the opportunity for his involvement in school and non-school activities.

Parental Responsibility

1. The June 2013 Order provides that the parties have equal shared parental responsibility for the children.  The mother now seeks an order that she have sole parental responsibility for the long term issues in relation to them. The father opposes such an order and supports the continuation of the existing order.

2. Whilst the Family Report contains no specific recommendation in respect of the allocation of parental responsibility between the parties, Ms Q’s observations, assessment and opinion about the parties’ capacity to co-operatively co-parent the children are clearly relevant to a determination of the competing proposals.

3. Whilst I accept, for the purpose of determining this interim application, Ms Q’s evidence that the long history of conflict and domestic violence between the parents “constrains the relationship and makes it extremely unlikely that the parents will be able to work together to the extent that they can provide an emotionally contained, consistent experience for their children under an equal time arrangement,”[9] I also note that the parties are agreed that they should attend therapy to improve their communication.

   [9]          Family Report, dated 13 October 2013, paragraph 183.

4. Whilst there is, of course, the risk that the parents may be unable to agree about matters encompassed by the exercise of their parental responsibility, there is also the prospect that, with the assistance of the various therapeutic interventions I intend to order, the parents may be able to work out a “good enough” method of communication to allow them to discharge the obligation to make decisions jointly when required.

5. I note also that the passage of time means that M’s pre-school enrolment is no longer an issue between the parties.

6. I consider that it is not in the children’s best interests on an interim basis that an order be made according to the mother sole parental responsibility for them. I arrive at this conclusion taking into account the children’s ages, the fact that the parties are hopeful counselling may assist them to improve their communication, that this is an interim determination and that there are significant consequences for the children and the father of an order which removes from him parental responsibility for them.

7. I consider it is in the children’s best interests that the parties have equal shared parental responsibility for the major long term issues for the children.

Attendance at counselling/therapy

1. When speaking with Ms Q, the father told her of his proposal that the parties attend upon a qualified counsellor to assist with improving their communication. The mother now seeks an order to this effect.

2. Given Ms Q’s opinion about those matters which require attention in order to provide the children with a safe and stable environment in moving between the parties respective households, it seems to me to be appropriate and in their best interests that the parties attend on such counselling.

The airport watchlist

1. In March 2013, Judge Howard temporarily removed N’s name from the watchlist to permit her to travel to Country T with the mother.

2. The father seeks a continuation of the existing position: namely that the children’s names remain on the watchlist and that the parties are restrained from removing them from the Commonwealth of Australia. The mother seeks the removal of these prohibitions and that the parties have liberty to take the children outside the Commonwealth of Australia for a holiday on the giving of appropriate notice and information as to the destination and contact details.

3. The mother asserts, in essence, that she does not present a flight risk and that the father’s refusal to agree to the children’s names being removed from the watchlist is a manifestation of the controlling behaviour she alleges he exhibited during their relationship.

4. The mother has previously given evidence of previous discussion between the parties about the children attending school overseas for a Term. Whatever his earlier position about this, the father no longer agrees that this would be in the children’s best interests.

5. I consider that, at present, the children’s best interests are met by a continuation of the exiting Orders in this respect. Should the parties be able to agree – via counselling or therapeutic intervention – that the children travel outside Australia with either of them for the purpose of a holiday, they will be able to arrive at such orders. In the event of a particular proposal for overseas travel, it will be open to the interested party to approach the Court in the event that the other party does not agree.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 July 2014.

Associate:                 

Date:    18 July 2014