FAULKNER & MCINTOSH
[2015] FamCA 916
•14 October 2015
FAMILY COURT OF AUSTRALIA
| FAULKNER & MCINTOSH | [2015] FamCA 916 |
| FAMILY LAW – CHILDREN – Best Interests – Where all the children have meaningful relationships with both parents – Where the children were exposed to family violence during the course of their parent’s relationship but that situation has now settled – Where the parties live about 860 kilometres apart – Children’s views – Sibling relationships – Where the children are assessed as having their primary attachment with the mother, who has consistently provided the majority of their care and supervision – Where both parties are able to meet the needs of the children – Where the children have settled in their current residence with the mother and are content with current arrangements – Where the children should continue to live with the mother – Where the children’s relationship with the father will be better strengthened by fewer weekends given the substantial travel between the parties’ residences – Children to spend time with the father during school holidays and one weekend per school term – Children to spend time with the father on two weekends per school term where there is no term holiday time with the father FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where the father has engaged in family violence – Where it would be an important positive benefit for the children if they knew that their parents communicated about them and made a genuine effort to reach a joint decision – Where the parties are well capable of doing so – Where an Order is made for the parties to have equal shared parental responsibility |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Ms Faulkner |
| RESPONDENT: | Mr McIntosh |
| FILE NUMBER: | BRC | 4806 | of | 2012 |
| DATE DELIVERED: | 14 October 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 31 August 2015 & 1-3 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rugendyke |
| SOLICITOR FOR THE APPLICANT: | Moin & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd |
| SOLICITOR FOR THE RESPONDENT: | Best Wilson Buckley Family Law |
Orders
That all prior parenting Orders in relation to:
B born … 2004;
C born … 2005;
D born … 2006; and
E born … 2007
(collectively known as “the children”) are discharged.
That the parents have equal shared parental responsibility for the children.
BY CONSENT that each party is restrained from changing the enrolment of the children or any of them (other than for progression to High School) from their current school, F School, G Town, without the prior written consent of the other parent.
Residence
That the children shall live with the mother.
Time and Communication with the father
That unless otherwise agreed, the children shall spend time with the father as follows:
Weekends
(a) From 5:00pm Friday to before school the following Monday:
(i)In each even numbered year commencing 2016:
A.
For one weekend period during Terms One and Two
(on the 5th weekend unless otherwise agreed);
B.The Father’s Day weekend in Term Three; AND
C.For two weekend periods during Term Four (on the 2nd and 5th weekends, unless otherwise agreed).
(ii)In each odd numbered year commencing 2015:
A.For two weekend periods in Term One (on the 2nd and 5th weekend unless otherwise agreed);
B.For one weekend period during Terms Two and Four (on the 5th weekend unless otherwise agreed); AND
C.The Father’s Day weekend in Term Three.
School Holiday Periods
(b)In each even numbered year for the whole of the Term One school holiday period (including Easter if it falls within the holiday period), commencing Saturday 9 April 2016 and concluding at 1:00pm on the third Saturday of that holiday period.
(c)In each and every year for the whole of the school holiday period at the end of Term Two from 1.00 pm on the first Saturday until 1.00 pm on the third Saturday, commencing June 2016.
(d)In each odd numbered year for the whole of the school holiday period at the end of Term Three from 1:00pm on the first Saturday to 1:00pm on the third Saturday, commencing September 2017.
Christmas school holiday periods
(e)In each holiday period starting in an odd numbered year from 1.00 pm on the first Saturday until 1.00 pm on the fourth Saturday, commencing on Saturday 19 December 2015 and concluding Saturday 9 January 2016.
(f)In each holiday period starting in an even numbered year from 1.00 pm on the second Saturday until 1.00 pm on the fifth Saturday, commencing on Saturday 31 December 2016 and concluding Saturday 21 January 2017.
Changeovers
Unless otherwise agreed, changeovers shall take place at:
(a)McDonald’s H Town for all school holiday periods, with the mother or her nominee to deliver the children to the father or his nominee at the commencement of each period and the father or his nominee to deliver the children to the mother or her nominee at the conclusion of each period;
(b)Warialda at the commencement of all periods of weekend contact, with the mother or her nominee to deliver the children to the father or his nominee at the commencement of the weekend and the father or his nominee to deliver the children to school on the following Monday morning.
Telephone Communication
Each parent shall be at liberty to communicate with the children by telephone when the children are with the other parent between 5.00pm and 7.00pm (extending to 8.00pm during daylight savings) each Monday, Wednesday and Friday.
Each party shall use their best endeavours to facilitate the communication provided for in Order 7 above and shall actively encourage each of the children to participate in the telephone communication.
In relation to the telephone contact provided for in Order 7 above, each parent shall ensure that:
(a)The children are available to receive the call; and
(b)The children have privacy for the duration of the telephone conversation.
The children, and any of them, shall be at liberty to communicate with each of the parents by telephone at any reasonable time a child requests.
Communication between the parents
That the parents shall:
(a)Communicate via text message for the purposes of dealing with minor matters in relation to any of the children;
(b)Communicate via email on any substantive matters concerning any of the children;
(c)Phone the other should an emergency arise concerning any of the children.
That the parents shall:
(a)Keep the other informed at all times of their residential and email addresses, landline and mobile contact telephone numbers and notify the other of any change in this information within forty-eight (48) hours of that change occurring;
(b)Keep the other informed of the names and addresses of any treating medical or other health practitioners who treat any of the children and authorise those practitioners to provide the other with information that they are lawfully able to provide about any of the children; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by any of the children NOTING that these Orders authorise any treating medical practitioner to release any of the children’s medical information to the other parent.
Specific Issues
That the parents authorise, by these Orders, the schools attended by any of the children to give each parent information about any of the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by any of the children (at that parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question any of the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of any 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 any of the children.
IT IS NOTED that publication of this judgment under the pseudonym Faulkner & McIntosh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: BRC 4806 of 2012
| Ms Faulkner |
Applicant
And
| Mr McIntosh |
Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting arrangements for four children aged eleven, ten, nine and almost eight years.
They are the children of a relationship between the parties which began in 2000 and ended in mid-2010.
The Mother
The applicant is the mother of the children. She is 43 years old.
Her household consists of herself and the four children, living in G Town in Northern New South Wales.
She is presently not in the paid workforce, although she has been working until recently for her brother who lives locally.
The Father
The Respondent is the father. He is 50 years old.
His household consists of himself and on an occasional basis, his partner and her 14 year old son.
He lives and works on his rural property called “J” in I Town in the South West of New South Wales.
Proximity
The distance between the parties’ respective households is 826 kilometres; a road trip of about 10-11 hours.
Issues for determination
When these proceedings commenced, the issues in dispute related both to parenting and to the adjustment of interests in property of the de facto marriage.
However the parties were able to reach agreement on property adjustment and Orders were made by consent in that respect on the first day of hearing.
Parenting issues remained for determination. Until the last working day before the final hearing, the parenting orders sought by the mother were not revealed.
Residence
The optimal outcome for the father was for the mother to return to the K Town area to establish a residence for the children to live with her there. His proposed orders were framed to meet that outcome and in the alternative, that the children live with him.
From the outset of the hearing, the position of the mother was that she did not intend to move to the K Town area. Accordingly the central issue became whether the children should live with the mother in G Town or with the father in I Town.
Parental responsibility
The mother sought sole parental responsibility; the father sought equal shared parental responsibility. The issue was, given the past history of family violence and continuing inability to communicate directly about the children, should one parent only have parental responsibility for long-term decision making.
Spending time and communication
The parents each acknowledged the need for the children to spend substantial and significant time with the non-resident parent. Half school holidays, variously defined, was also a common position.
Had the mother wished to move to the K Town area, the father proposed week about shared care after gradually increasing periods of time with him.
The issue became wherever they are living, what are the appropriate and practicable arrangements for time to be spent with the other parent, given the long journey for the children between the households.
The consequential issues became, who would transport the children between households and where changeovers would take place. To date, the father has travelled to see the children in their local area or close to it.
There was no issue about telephone calls, and electronic communication.
Short History of Relevant Events
The parties met in late 2000 and formed a relationship without living together in a common residence. The mother lived with her then 8 year old son in a house she owned in K Town. The father lived and worked on his family property, J, at I Town.
The parties spent regular time together in each home. They continued in that way for about five years. During that period, in 2004 and 2005, the older two children of the relationship were born.
In October 2005 the mother and her son, by then aged 13, together with the parties’ two children, moved to live on the father’s property. They lived together at the property for approximately three years.
During those three years, two more children were born, one in 2006 and one in 2007.
The father readily conceded to the Family Consultant and in his oral evidence that he had been a heavy drinker most evenings throughout the period from 2005 to 2009. The burden of care of the four young children, and a teenager, fell exclusively on the mother.
The parties formed a decision to change their lives by moving away from the rural property. They acquired a house in the city of L Town in Queensland and in January 2009 the parties and five children moved there to live.
Apprehended Domestic Violence Orders
On 24 January 2009, soon after the move, there was an incident of domestic violence. The parties argued. The father pushed and shoved the mother and grabbed her by the throat whilst standing over her. The children were inside standing at a window watching these events. Police were called.
An application was made to L Town Local Court for a Protection Order.[1]
[1] Affidavit of the mother filed 21/08/2015, Annexure A
On 5 February 2009 the father consented to a Protection Order (“the 2009 Order”) which was made for a period of two years[2]:
(1) The [father] must be of good behaviour towards the [mother] and must not commit domestic violence …
[2] Affidavit of the mother filed 21/08/2015, Annexure C
The parties continued living together for a further 17 months.
On 14 July 2010 the parties separated, with the mother and five children remaining in the former family home in L Town. At that point there was approximately six months to run before the 2009 Order expired. A variation to the Order was sought.
Over the following five months there were at least nine variations made in quick succession, as set out below:
a)On 15 July 2010 the 2009 Order was varied by consent for one week, until the matter could come back before the court, as follows:
(1) [as per the 2009 Order].
(2) The [father] is prohibited from going to … within 200 metres of, entering or remaining in premises where the … [mother] resides; Except when attending any court or tribunal or counselling, arbitration or mediation required by that court or tribunal or when attending legal aid conferencing or other mediation.
(3) The [father] is prohibited from having or attempting to have ANY contact (including by any means of communication) either directly or indirectly with, [following] or approaching within 100 metres of, the [mother] except when attending any court or tribunal or counselling, arbitration or mediation required by that court or tribunal or when attending legal aid conferencing or other mediation … Except … by written communication through a lawyer.
(4) The [father] may subject to the supervision of a Police Officer return to the [the former family home] to retrieve personal property.
b)On 22 July 2010 a temporary variation of the Order of 15 July 2010 was made by consent for 2 weeks as follows:
(1) [As per the 2009 Order].
(2) The [father] is prohibited from going to within 100 metres of, entering or remaining in premises where the … [mother] resides.
c)On 5 August 2010 a temporary variation of the Order of 22 July 2010 was made by consent for 4 weeks as follows:
(1) [As per the 2009 Order].
(2) The [father] is prohibited from going to, entering or remaining in premises where the … [mother] resides.
d)On 26 August 2010 a temporary variation of the Order of 5 August 2010 was made by consent for a period of 1 week (until 2 September 2010) as follows:
(1) [As per the 2009 Order].
(2) The [father] is prohibited from going to within 100 metres of, entering or remaining in premises where the … [mother] resides.
e)On 2 September 2010 a temporary variation of the Order of 26 August 2010 was made by consent for a period of 8 weeks (until 28 October 2010) as follows:[3]
(1) [As per the 2009 Order].
(2) The [father] is prohibited from going to within 100 metres of, entering or remaining in premises where the … [mother] resides.
(3) The [father] may subject to supervision of [a] Police Officer to attend at [the] shed located at the [former family home] for purposes of collecting items relating to the business.
f)On 7 October 2010 a variation Order was apparently made, but such documentation was not supplied to this Court.
g)On 13 October 2010 a variation of the Order noted to have been made on 7 October 2010 was made by consent as follows:
(1) [As per the 2009 Order].
h)On 11 November 2010 a variation of the Order of 13 October 2010 was made by consent for a period of 2 weeks as follows:
(1) [As per the 2009 Order].
[3] Affidavit of the mother filed 21/08/2015, Annexure C, pages 49 and 50
On 2 December 2010 a Protection Order (“the 2010 Order”) was made by consent for a period of 2 years as follows:
(1) [As per the 2009 Order].
(2) The [father] is prohibited from going to, entering or remaining in premises where the [mother] resides or works.
On 4 December 2010 the father breached the 2010 Order by attending the former family home. The mother withdrew from pursuing the breach of the 2010 Order.
In September 2011 the father pleaded guilty to an assault on the mother’s son.
Conduct after separation
The father continued to meet the payments on the “interest only” loan secured on the former family home and rates.
The father returned to live and work in I Town on the property but also boarded in the L Town area from time to time. The mother was uncertain as to the father’s whereabouts at any particular time. He attended the home without notice to see the children; the mother generally agreed. The residence and parenting arrangements continued in that way between mid-2010 and January 2013.
Litigation commences
On 31 May 2012 the mother filed an Initiating Application, seeking property orders only, in the Brisbane Registry of the Family Court.
On 13 July 2012 the father filed a Response seeking property and parenting orders.
On 23 July 2012 interim Orders were made by consent which provided for the parties to have equal shared parental responsibility. A range of other Orders were made and a Family Report was ordered.
On 7 August 2012 the mother filed an Amended Application. She indicated in this document that she would formulate her final parenting orders once a Family Report had been delivered.
Unfortunately, in circumstances detailed elsewhere in these Reasons, two years passed before a Family Report was prepared and released.
On 10 August 2012 the matter was adjourned for a Conciliation Conference and a further raft of interim Orders were made by consent.
The children continued to live with the mother and spend time with the father.
Mother moves from L Town to G Town
In late December 2012 to early January 2013 the mother moved with the children to live in G Town and has remained living there to date of hearing.
The mother enrolled the children at F School without reference to the father.
The move itself was done in such a way that the father was unaware until after the event, although he was by then aware of the wish of the mother to make the move.
Litigation continues and is protracted
On 15 February 2013 a Conciliation Conference was adjourned to enable the completion of certain single expert valuations. The Court noted an anticipated Application in a Case regarding proposed relocation of the mother with the children to G Town. It was further noted that at the next court event, orders would be considered as well as an addendum to an anticipated Family Report.
On 21 February 2013 the mother filed that Application in a Case.
On 24 April 2013 the father filed a Response to an Application in a Case seeking to restrain the proposed relocation of the residence of the children. In fact the mother and children were already living, working and attending school in G Town.
On 3 September 2013 the parties were still awaiting the Family Report and Addendum. That first Report was apparently not prepared or delivered.
On 5 November 2013 a further order for a Family Report with a second Family Consultant was made.
In January 2014 the sale and settlement of the former family home in L Town occurred. By then the mother and children had been living in G Town for a year.
On 4 February 2014 a further order was made for a Family Report with a third Family Consultant.
On 17 June 2014 the Family Report was released. The children were all expressing a wish for both parents to be living in the K Town area and for more time on the father’s property.
On 25 June 2014 the father filed an Amended Response to the Application in a Case of the mother, seeking an order for the mother to re-establish a residence for the children in the K Town area.
On 10 July 2014 interim Orders were made for the mother to maintain the residence of the children with her in G Town. Fresh orders for time with the father were also made.
On 2 September 2014 the proceedings were transferred to this Registry.
On 15 October 2014 a suite of procedural orders and trial directions were made. The Registrar noted the intention of the mother to file a Notice of Child Abuse arising from recent allegedly abusive actions by the father.
On 29 October 2014 that Notice of Child Abuse was filed.
The parties undertook further property valuations.
On 12 December 2014 the father filed an Amended Response proposing residence for the children with him.
On 22 May 2015 the matter was set down for final hearing for four days commencing 29 August 2015.
On 31 August 2015 the Mother filed in Court a Further Amended Initiating Application setting out her proposed orders. Her proposals could be described as substantial and significant time between the children and the father in circumstances of the parties being 800 kilometres apart.
A further Family Report
By agreement between the parties, the children were re-interviewed by the Family Consultant during the course of the hearing. By then the children had been living in G Town for 2 years and 8 months.
A “Children’s Wishes Report” (the “Wishes Report”) was generated.[4] The Wishes Report, dated 2 September 2015, reflected the children’s love for both their parents and also the longevity of the children’s residence in G Town. They have settled at school and made friends there. To the extent that each child expressed a preference, it was to remain living with the mother in G Town but also to see the father very regularly.
[4] Exhibit 9
Evidence
The documents relied on in respect of the application were as follows:
Mother
a)Further Amended Initiating Application filed in Court on 31/08/2015;
b)Notice of Child Abuse filed 29/10/2014;
c)Affidavit of the mother filed 21/08/2015;
d)Affidavit of the mother (the response to the Notice to Admit Facts) filed 21/08/2015;
Father
e)Second Amended Response filed 24/08/2015;
f)Affidavit of the father filed 25/08/2015;
g)Supplementary affidavit of the father filed 25/08/2015;
h)Parenting Questionnaire filed 12/11/2014;
i)Affidavit of the father’s partner filed 21/08/2015;
Reports
j)The Family Report released 17/06/2014; and
k)The Wishes Report dated 02/09/2015.
Oral Evidence
The Mother
Cross examination of the mother revealed a resilient personality.
She was questioned in considerable detail about the fact that she had withdrawn funds from joint accounts without consultation with the father. In total she received and withdrew, by December 2010, about $91,000. The mother put aside these funds for the benefit of herself and the children. She was sharply criticised for being what was variously described by Senior Counsel for the father as “deceitful” and “dishonest” conduct.
Whilst I accept that the mother did not tell the father that she was allocating funds to an account of her own in this way, I do not accept the characterisation of her actions as dishonest or deceitful.
In May 2009, four months after the parties re-established themselves in L Town, the mother sold her property in K Town that she had owned at the time when the parties first met. Property issues were resolved without cross-examination, but it did not appear to be contested that the proceeds of sale of that property were deposited directly into the father’s farming account.
In mid-2010 the parties separated in circumstances of police being called and a Protective Order being made for the mother. She thereafter had the care of five children: her adult son then aged 18 and the subject children aged six, five, three and two. She was not in the paid workforce. No direct child support was being paid by the father, although he paid the mortgage and outgoings on the house.
I conclude that the mother was accumulating funds in order to provide for the needs of herself and the children. The father’s propensity to anger and violent reaction could easily be understood to have contributed to the mother’s decision not to tell him that she was withdrawing funds into a personal account without his knowledge. There is no suggestion that those funds were dispersed on anything other than the immediate needs of the children and the mother.
The mother readily conceded that the children loved the father but expressed some reservations about his methods of discipline, as well as her own ongoing fear of being in direct contact with him.
The mother was also closely questioned about her move from L Town to G Town. She said that the move had been prompted by feelings of insecurity which related to the father, “[he] would just show up”.
That is consistent with the evidence of the father that after a final Protective Order was made restraining him from coming to the former family home on
2 December 2010, two days later the father came to the home without prior notice to the mother.
The father’s explanation was that he had approval from a police officer he had spoken to to do so. The bewildering number of variations to the 2009 Order included, for a one week period in July 2010 and a four week period in September 2010, the right to attend the former family home to collect possessions subject to the supervision of a police officer. This leaves open the possibility that the father thought he was within his legal rights to do so. However he had given no thought to the impact on the mother of his arrival without notice.
The evidence of the mother, which I accept, is that in that period in L Town between mid-2010 and January 2013 she was scared of the father, at least partly because he gave no notice of his visits, although she allowed the children to spend time with him when he did “show up”.
The mother’s move from L Town to G Town reduced the distance between the parties by about 200 kilometres. She moved from the house for which the expenses were covered by the father.
I am unable to determine, since nothing was made of it, whether the 2010 Order, expiring in December 2012, played a part in the mother’s decision making. It may be coincidence, but the evidence is that the mother made her final decision to move with the children to G Town in that month.
In relation to arrangements for time between the children and the father since January 2013, Orders have been complied with by both parties.
The mother has not taken responsibility for any of the travel undertaken by the children and there was no obvious explanation for that.
I accept that the mother feels the benefit of being in G Town where her father, her father’s partner, and their son; her brother and sister-in-law and their children, are all living locally. She has been employed by her brother and that work may resume. The mother has a Driver licence and will likely purchase a suitable motor vehicle as a result of the resolution of the financial aspect of these proceedings.
It would be a positive message for the children if the mother was involved in their journey to spend time with the father. It would also be a way of breaking what is a very long journey, presently undertaken by the father without any overnight stop.
The mother very much wishes not to have direct contact with the father and I have no reason not to accept her evidence that she has not found it easy to recover from the family violence she experienced. Accordingly, changeovers unless otherwise agreed, will need to be in a public place.
The mother gave evidence that the local bank manager had spoken to her, telling her that the father intended to sell the former family home in L Town and that she had also taken that possibility into account in her decision to move. The mother appeared to believe that she had been told that the bank may have to foreclose on the mortgage if it was not paid. Logically that would be so, although there was no evidence to suggest that the situation in fact arose.
The evidence tendered and properly conceded is that the interest only loan in respect of the L Town property was always in order and other than for a brief period, not exceeded. That is not to say that the mother did not become concerned that the father might cease making the payments.
The children now attend a school in G Town, F School. There is no complaint by the father about the school itself, although he was certainly unhappy that the change of school came about by the mother moving from L Town to G Town.
I accept that the mother enrolled the children without reference to the father and physically moved whilst the children were spending school holiday time with him in January 2013. She dissembled when she arranged to collect the children in L Town to the extent that she allowed the father to believe that she was still living there when the children were returned to her.
The evidence suggests that a combination of fear of consequences, fear of confrontation and a determination to make the move whether the father approved of it or not, led to that conduct. I do not accept that it was done simply to frustrate or torment the father.
I do accept that the mother feels safe and supported by her family in G Town.
The Father
The father presented as a taciturn man, slow but considered in his responses.
My overall impression of his evidence was that for the father, the move to L Town was a brief aberration in his life after which he returned home to live and work in I Town.
I have the impression that he also considered that the children regarded the property at J in I Town as their natural home; but this could hardly be the case. The oldest child was almost 5 years when the move was made; the youngest was 14 months. From the children’s perspective, there was four years in L Town and it has been almost three years in G Town. The father’s farm, although they greatly enjoy visiting it, has become a holiday venue.
The father conceded that his relationship with the children prior to separation had not been as good as it could have been because of the level of his drinking, in particular, he was unavailable to the children through a combination of working and secluding himself for drinking in the evening.
The father was not so forthcoming in concessions about the violent character of the relationship. He denied that the children had seen him and the mother fighting, despite comments by the three eldest children to that effect. The father acknowledged that he had not considered the impact of that conflict on the children, but agreed that it would have made them feel scared and anxious about the future.
The father afforded some credit to the mother for the fact that the children enjoy good relationships with him, but denied her support of those relationships. In my view, the father is wrong about that.
None of the children attributed blame to either parent for their separation, although it was a matter of regret for all of the children. Given that there were long periods spent where the children did not see the father at all, due to his obligation to stay on the farm to get work done from time to time, relationships could have easily diminished without the mother’s emotional support.
In his affidavit, the father had referred to having no “strong concerns with respect to [the mother’s] ability to provide for the needs of the children”.[5]
[5] Affidavit of the father filed 25/08/2015, par 278
I conclude that the father has no serious reservations about the mother as a parent at all, reflected in his hope to ultimately have a shared care arrangement in the K Town area.
My impression was that the father is thoroughly familiar with the different natures and personalities of the children and is devoted to all of them.
The father’s partner
The father’s partner was not required for cross-examination. Accordingly, I accept her evidence is unchallenged.
The father and his partner spend two or three nights together per week and are taking the building of their relationship slowly to consider the interests of the four subject children and her 14 year old son.
The father’s partner is clearly genuinely fond of each of the children and has been pleased by their respectful and affectionate attitude to her.
The approach she took to meeting the mother and reassuring her that she would treat the children as if they were her own has been an effective one, and she is likely to be a warm and supportive presence for the children in the father’s household.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The children do have meaningful relationships with both of their parents, which each of them strongly wish to maintain.
The need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence
The children were exposed to family violence during the course of their parent’s relationship. Each of the children referred to such memories in their interviews with the Family Consultant.
B said she had sad memories of when “they used to argue … they yelled … they pushed. Mum would get hurt … Dad pushed too hard … and when I was little there was a chilly breeze [caused by a hole in a wall] and Mum told me Dad punched a hole”. B also recalled at the time her parents were separating that, “… Mum got pushed out of the truck … Mum took the keys and Daddy pushed her”.[6]
[6] Family Report, pars 44-45
In early 2014 B was hoping, “I’d like them not to fight and get along and things might work better … get back together … that would be easier to get through school”. Eighteen months later, B reflected that she was no longer hoping for reconciliation for her parents, noting that “they say hello but they don’t get along … they’re still edgy”.[7]
[7] Wishes Report, par 3
C referred to his parents in conflict at the time of separation, “they were fighting and stuff … pushed each other”.[8] In September 2015 C thought that his parents” just don’t see each other” and he therefore could not gauge what terms they were on.[9]
[8] Family Report, par 52
[9] Wishes Report, par 8
D recalled her parents “… fighting a lot, saw they weren’t together and that they would do stuff by themselves”.[10] For D in September 2015 her sense was that her parents were “friendly in public … but just being polite”.
[10] Family Report, par 58
The youngest child E was too young to remember events prior to separation and appeared to be the least affected by past trouble in the family.
The situation between the parents has settled, however, it is essential that the children are not exposed to any further flare ups between their parents, which could unravel the settled emotions of the all of the children.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
In 2014 the children very much wanted their parents back together and were interested in living on the father’s farm, or near to it. B and C in particular were keen to move back to the K Town area. C has continued to express an interest in being a farmer himself.
In September 2015 the children were more inclined towards staying in G Town with the mother.
B in particular did not want to be disrupted from friends and school.
C reflected on his father’s anger at times being “scary” and disclosed having been put under pressure to make a decision to coming back to live there.
D prefers the space of rural life but declared herself not really ready to “leave Mum”.[11] She too described having told her father that she wanted to live with him on the farm, “so he doesn’t get upset and lash out”.
[11] Wishes Report, par 16
E expressed no preferences and was quick to reflect on the love he felt for both parents and that he would be equally happy to live with either of them. With a little bit of encouragement about preferences, he described the mother as “special”.
The children are assessed as having their primary attachment with the mother, who has consistently provided the majority of their care and supervision. The mother has been consistently emotionally available throughout their lives. The father, even when physically available, was for a period emotionally unavailable due to heavy drinking and of course, consistent hard, physical work on the farm.
With the passage of time, all of the children have settled in G Town and are content with current arrangements.
I conclude that the children should continue to live with the mother in G Town.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children have good relationships with each other, with each of their parents, and members of the maternal extended family. They have friends at school and associations with sporting groups and other activities. They have a warm and affectionate relationship with the father’s partner and her 14 year old son.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The parents appeared to have common values about raising the children, including religious instruction at school.
The mother enrolled the children at their current school without involving the father in that process. In context, the mother had made a decision to move from L Town to G Town and did not want to let the father know in advance. However, it was the move rather than the school which the father objected to.
There is no doubting the commitment of either parent to the children. There have been times when the father has not spent time with the children due to his farm commitments, but he has consistently travelled on a journey of almost 2,000 kilometres return, to spend weekends with the children and to bring them to the property for holiday periods.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father has not paid child support since separation. He did continue to pay the expenses associated with the former family home in L Town until it was sold. Now that the financial aspects of the dispute are resolved, it will be open to the mother to obtain a child support assessment.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
This is a significant factor.
To move the children to live with the father in I Town would be to significantly reduce the time spent with the mother, who has provided most of their care all their lives.
The arrangements proposed by the father for their education was appropriate educationally, but would involve extensive daily travel by bus. There was evidence from the father that he would pay someone to carry out farm work so he could supervise the children after school. In periods when he had demanding farming obligations such an arrangement might not be sustained.
The impact on the children would be likely adverse given that they have now settled and become less distressed by the separation of their parents, although still upset by certain parental conduct, such as criticism of the other parent and over involving the children in the litigation, particularly about financial matters.
The mother did not move away from the I Town area with the children against the father’s wishes; the parties decided to try a new style of life by leaving the farm and the parties setting up a home in L Town with the father running a successful business there.
The relationship did not survive the move. After 18 months it broke down in circumstances of high conflict. Thereafter the mother remained in the L Town area for two and a half years before moving further south to where she had family support, which also extended to satisfactory employment.
The children’s strong and affectionate interest in the farm does not mean that they would easily adjust to the absence of the mother from their lives or the disruption to their local friendships and interests through school, church, and other activities in the G Town area.
The practical difficulty and expense of a child spending time with and communicating with a parent
This too is a significant matter.
About 862 kilometres separate the parents. It is a long trip for the children, potentially dangerous undertaken in a stretch. This journey should only be undertaken by the children for holiday periods.
During the course of submissions, the mother put forward a new proposal on how the children could spend time with the father.[12] This represented an acknowledgement that her previous proposal, that the children spend every Christmas with her was unrealistic, as was the notion that the father should do all of the travel.
[12] Exhibit 10
In her new proposal, the mother suggested alternate weekends for the children with the father, within 150 kilometres of G Town. This is a reference to the father’s practice of collecting the children from school and spending a weekend with them at a property owned by a friend in M Town, about 120 kilometres out of G Town.
The children have enjoyed these visits but at times been aggrieved about this arrangement. When one of them has had a commitment in town to sport or a birthday party, there has been too much travel involved for the father to be able to achieve that child’s wish at the expense (in terms of time) of the other three.
In my view, the children’s relationship with the father will be better strengthened by fewer weekends on this basis. I do not doubt his stated willingness to travel at this level to see them. However they are likely to become increasingly resentful of every second weekend out of town, in circumstances where there is still substantial travel; too far to easily return for special events.
The children should spend time with the father in some, but not all, of the holiday periods each year and also have specified weekends in the extended local area to meet their needs to spend as much time with the father as possible, balanced against the burden on them of extensive travel.
One weekend per school term, and two weekends in the term where there is no term holiday following, will break up the time away from the father but also provide for participation in weekend commitments in their local community.
There was effectively an agreement that in the event the children remained living with the mother, that changeovers would take place in H Town at a McDonalds Restaurant.
This changeover at 1.00 pm enables the mother to choose whether to leave the previous day and stay overnight in H Town or to set out early on Saturday morning. It gives the children the opportunity to have a break, to eat, play, and relax before undertaking the next approximately 400 kilometres of their journey.
The Family Consultant expressed his concern that the children would not be able to tolerate long trips long term. It may well be that as each child starts High School the parents, in consultation with that child, will need to negotiate different arrangements for individual children.
However, at this time, all the children are very strongly committed to spending time with the father and to spending time on the farm and the Orders will be framed accordingly.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Both parties present as intelligent, capable, hard working people with the capacity to meet the needs of the children.
Both parents have been insensitive to the children in their willingness to blame and criticise the other and justify their own conduct. All of the children have raised the issue of their parents discussing which parent was at fault, in financial terms, with them.
Both parents are committed to the children’s education and all appear to be managing reasonably well at school.
The father may have underestimated the impact on the children of his drinking patterns during their young lives and of his attitude to the mother since separation.
It is essential that both parents cease discussing adult issues and this litigation with the children. An Order will be made accordingly.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
B is a girl aged 11 and in Year 5 at school. She is especially close to the father and takes some responsibility for all of the children caught in the conflict between their parents.
C is a boy aged 10 and in Year 4 at school. He enjoys his relationships with his maternal cousins in G Town, but loves the farm.
D is a girl who has just turned nine and in Year 3 at school. She is especially close to one of her maternal cousins and also to the father’s partner. She enjoys the open space on the farm and loves holidays with the father. She reveals her thoughts and feelings to the mother because, “Mum is calmer”.[13]
[13] Wishes Report, par 17
E is a boy aged almost eight in Year 1 at school. He appears to draw comfort from being the youngest child and has been able to resolutely not take sides in the family dispute, although each of his parents have invited loyalty statements from the other children.
The group of four are very close together in age and although they have their differences, clearly draw strength from being a group of siblings.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The parents have both taken responsibility for the children.
The mother has provided their consistent care. The children are the primary focus of her life. She has also had the responsibility of caring for her son from an earlier relationship, who now lives independently. The mother is attending to the children’s education and has worked to provide for them.
The father has provided financially for the children by working and maintaining the L Town house post-separation, for at least two years. However, his resentment over the mother’s surreptitious move has affected his judgment in terms of school fees and otherwise providing to the fullest extent possible for all the needs of the growing children.
Any family violence involving the child or a member of the child’s family, and if family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There are no current family violence orders.
There have been family violence orders in the past, in circumstances where the father seriously assaulted the mother. That assault has not left permanent injury, but I am satisfied that it has left the mother wary, if not actively frightened, of the father if they were to be alone together.
Parental Responsibility
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the children.
The presumption is rebutted in this matter. The father has engaged in family violence. Two Protection Orders, each one for a two year period, have been made.
However, I consider that there is a benefit for the children in seeing each of their parents actively involved in decision-making about them.
My observation of the father is that he would be unlikely to offer any proposal to the mother about the major events in the children’s lives if she were to be the sole decision-maker. The evidence suggests that he would withdraw, accept the situation, and keep his views to himself. The children could interpret that as a lack of interest in them.
As stated the parents appear to have common values. The religious faith of the children and the education they are receiving in that regard are supported by each of them. It will be important for both parents to participate in significant events concerning the children’s religious life and instruction.
Perhaps because she has been living as a sole parent for more than six years, the mother has been accustomed to making decisions for the children whilst avoiding the father to the extent that she can.
Now that residence is determined, there is no reason why the parents would be unable to communicate on significant matters and come to a negotiated decision. Most of the big issues have already been determined, certainly the school which the children attend.
It would be an important positive benefit for the children if they knew that their parents communicated about them and made a genuine effort to reach a joint decision. The parties are well capable of doing so, in terms of their intellectual capacity.
For that reason an Order for equal shared parental responsibility is appropriate and an Order will be made for methods of communication, which can be abandoned by agreement if and when the parents agree on different approaches.
I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 14 October 2015.
Associate:
Date: 12 October 2015
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Procedural Fairness
0
0
1