Filby & Northcott (No. 2)
[2021] FamCA 327
•21 May 2021
FAMILY COURT OF AUSTRALIA
Filby & Northcott (No. 2) [2021] FamCA 327
File number(s): TVC 909 of 2016 Judgment of: BAUMANN J Date of judgment: 21 May 2021 Catchwords: FAMILY LAW – CHILDREN – Where the father seeks an increase in time – Where the mother seeks to maintain the current interim arrangement – Orders made for the children to spend five nights per fortnight with the father with an increase to six nights per fortnight from the commencement of the 2022 school year. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
Number of paragraphs: 48 Date of hearing: 23-26 March 2021; 12 May 2021 Place: Brisbane Counsel for the Applicant: Mr M Fellows Solicitor for the Applicant: J Hamilton & Associates Counsel for the Respondent: Mr R Galloway Solicitor for the Respondent: Campbell & Co ORDERS
TVC 909 of 2016 BETWEEN: MR FILBY
Applicant
AND: MS NORTHCOTT
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
21 MAY 2021
THE COURT ORDERS:
Parental responsibility
1.That the parents have equal shared parental responsibility for the children, X born … 2010 and Y born … 2012 (“the children”)
2.That without limiting the parental responsibility of each parent pursuant to these Orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any major long-term issue in respect of the children.
3.That for the purpose of these Orders, major long term issues include:
(a)any serious medical or health matter concerning the children, including but not limited to advising the other parent as soon as reasonably practicable of any medical emergency, choice of medical practitioner or other health care provider, address and telephone contact number of medical providers, and shall authorise such medical provider to discuss with the other parent any matters pertaining to the children’s health;
(b)any serious medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children, including but not limited to the provision to the other parent of all school reports, school photographs and all communications from the children’s school other than with respect to routine or administrative matters;
(d)matters relating to disciplinary matters other than of a trivial nature;
(e)matters concerning the religion or faith of the children;
(f)the place of residence of the children and telephone number for contact with the children, including any change thereof; and
(g)any intended change in the surname by which the children are commonly known from that which appears on the children’s birth certificates.
Living arrangements
4.That the children live with the mother and spend time with the father as may be agreed between the parents, but failing agreement as follows:
(a)Commencing Thursday, 27 May 2021 each alternate weekend from after school Thursday to before school Tuesday;
(b)From the commencement of the 2022 school year, each alternate weekend from after school Thursday to before school Wednesday;
(c)For the first half of all school holidays in even numbered years; and
(d)For the second half of all school holidays in odd numbered years.
Telephone communication
5.That when the children are not in a parent’s care, they shall communicate with that parent by telephone/Skype/FaceTime each Sunday, Tuesday and Thursday between 6.00pm and 7.00pm.
6.That for the purposes of Order 5 hereof:
(a)the parent who does not have the care of children shall initiate the telephone call to the mobile telephone that is to travel with the children;
(b)the parent who has the care of the children shall ensure the children are available to accept the telephone call; and
(c)both parents shall respect the privacy of the children and ensure that the telephone call is not placed on speakerphone and that the mobile phone is charged and in working order.
7.That the children be at liberty to communicate with each of the parents by telephone at all reasonable times.
Changeover
8.That unless otherwise agreed in writing between the parents, when changeovers do not occur at school, changeovers shall occur as follows during school holidays:
(a)At AA Street, Town BB when the father is collecting the children from the mother; and
(b)At the corner of CC and DD Streets, Town BB when the mother is collecting the children from the father.
Special days
9.That notwithstanding any provision in this Order, the children shall spend time with the father on Father’s Day in each year from 9.00am to5.00pm.
10.That notwithstanding any provision in this Order, the children shall spend time with the mother on Mother’s Day in each year from 9.00am to 5.00pm.
Extra-curricular activities
11.That the parents shall ensure that the children attend and participate in their scheduled sporting, recreational and extra-curricular activities when they are in their respective care.
Exchange of information, authorities and restraints
12.That the parents shall keep each other informed of:
(a)the children’s address, mobile telephone number and landline number (if available) and shall notify the other within forty eight (48) hours prior to any change;
(b)the names and address of the children’s treating medical or other health practitioners who treat the children; and
(c)as soon as reasonably practicable, any serious medical condition, significant health issue or significant injury suffered by the children.
13.That during the time the children are in a parent’s care that parent must:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent or the other parent’s partner, or the family of the other parent, in the hearing of or in the presence of the children.
14.That this Order authorises any of the children’s treating medical practitioners or other health care providers to release the children’s medical or health information to each parent and to discuss the children’s treatment with each parent.
15.That this Order authorises the school/schools attended by the children to give each parent information about the children’s educational progress and the other school related activities and shall supply them with copies of school reports, photographs, certificates and awards attained by the children (at that parent’s cost).
16.That neither parent shall relocate the children from the City EE/Town BB area without the prior written agreement of the other parent or by Order of the Court.
17.That the children not be brought into contact with Mr FF or Mr B.
18.That pursuant to s.121 of the Family Law Act 1975, the mother and the father be granted leave to publish a copy of the Reasons for Judgment delivered 21 May 2021 and the family report prepared by Ms GG dated 15 February 2021, to any counsellor they choose to engage, by way of background.
Passports and overseas travel
19.That upon a request from the other parent to do so, the mother and the father shall execute and return to the other parent the relevant passport application/renewal form within fourteen (14) days of receipt of the passport application/renewal form from the other parent.
20.That should ether parent fail to execute a passport application and/or passport renewal in accordance with Order 19 hereof, a Registrar of the Family Court of Australia shall be appointed to execute that passport application on behalf of the parent who has failed to sign the document.
21.That each of the parents are permitted to travel overseas with the children during their school holiday time with the children, provided that eight (8) weeks’ written notice is provide to the other parent, and the following information is provided fourteen (14) days prior to the departure overseas:
(a)A copy of the return prepaid flight tickets (as relevant) for the children;
(b)A copy of the itinerary; and
(c)Contact details for the children for the duration of time the children are overseas.
22.That the parents must not take the children to any country where there is an existing Australian Government travel alert or travel warning (however described).
23.That while overseas the travelling parent shall initiate the children communicating by telephone with the other parent at least twice per week.
24.That each parent shall retain a passport for one (1) of the children. They shall provide the passport to the travelling parent upon receiving eight (8) weeks’ notice and shall return the passport to the other parent within four (4) weeks of the child’s return to Australia.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Filby & Northcott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
Statements of fact which appear hereafter shall be regarded and construed as findings of fact. This is a dispute between two good and capable parents who parent differently and who separated as long ago as 2014. It relates to their two children, X born … 2010, now aged 11 years, and Y born … 2012, who will turn nine later this year. Although the mother is qualified as a health professional, she has since that qualification obtained other tertiary qualifications and has demonstrated an entrepreneurial flair. The father, although he has been employed as a tradesperson for many years (now at a management level), has spent many years as a farmer in Queensland. The property proceedings that are reserved pending final submissions identify the extent of his activity, much of which was enthusiastically shared by the wife until their separation.
The children of these genuinely well-balanced and impressive parents – not affected by the challenges of mental illness, any kind of drug or alcohol dependency or antisocial traits – have been assessed by the family report writer as I identify later in these Reasons. It is fair to say that they also present as impressive children, described by Ms GG as confident, articulate and robust children and a credit, as she opined, and I agree, to both parents. That they presented and were observed by the family report writer on 19 January 2021 in such a way is to be seen as somewhat amazing when you consider the context that they have lived through, most of which has been beyond their choice, including:
(a)separation of the parents in late 2014;
(b)a period where the mother and the children relocated unilaterally and temporarily from Queensland to Canberra in January 2017, only to be returned by Order of the Federal Circuit Court of Australia some weeks later;
(c)both parents being away from the homes they then occupied post-separation in Queensland (when not caring for the children – the father as a tradesperson and the mother for a period whilst trying to hold down the employee position in Canberra which ended by June 2018);
(d)the ongoing and at times bitter and highly conflictual property settlement proceedings, which commenced in September 2016 and, disappointingly, ought to have concluded some months after March 2018 (when the parties finished a seven day final hearing before another Judge); and
(e)the mother’s strongly held view, yet to be the subject of any findings by me, that she was “alienated” from the parties’ property, income and financial resources, causing her significant financial distress.
Irrespective of these last issues, I accept the evidence of the report writer that it is likely that the children have, since separation, been exposed to some of the conflict that has engulfed their parents, mostly through hearing (or overhearing) adult discussions that are likely to be negative about the other parent. I will discuss this briefly shortly in these Reasons, but it can be noted that this concern of the report writer became clear with the additional evidence of the mother on 12 May 2021. That the children do not present as aligned now to either of their parents, considering the context given already, I find is again a recognition of the general quality of the parenting these two children have received from each of their parents to date. A further recognition of the parents’ attitude to date has been that the interim consent orders made on 24 October 2016, whereby the parents had equal shared parental responsibility; that the children were to live with the mother and spend four nights per fortnight (Friday to Tuesday) with the father and with holidays shared regularly); remain the current Orders and, as a result, the children’s experiences and wishes are to be seen in the context of the parenting arrangements they have experienced in accordance with these defined Orders.
COMPETING PROPOSALS
Essentially, the father seeks, as his case outline set out (see Appendix One), an increase in the school term time to from after school Wednesday to before school Tuesday, and a continuation of half holidays (six nights per fortnight). Although the father’s proposed order 4A(a)(ii) seeks time to be extended to the conclusion of school Tuesday (when on night shift) rather than before school (when on day shift), the father conceded that for the children time ceasing in either shift before school Tuesday is a more sensible and appropriate option.
The Respondent mother seeks to maintain the current interim arrangements as final orders, namely that the children live with her and spend time with the father from after school Friday to before school Tuesday, effectively four nights per fortnight, and that holidays be shared. Her formal orders are set out in her case outline, annexed to these Reasons and marked Appendix Two. I note that at order 12 the mother seeks to impose some conditions around extra-curricular activities. However, this was not the subject of significant dispute between the parties, having made a number of arrangements from time to time since separation. I see no need, on the evidence, to seek to prescribe how the parties should manage the children’s time through extra-curricular activities when the children are in the other parent’s care other than to the extent that the parents should support their children’s activities.
Both parties seek an order for equal shared parental responsibility. The father says, as a result of issues which arose after 26 March 2021 (when the hearing had to be adjourned part-heard to 12 May 2021), he seek to vary his parenting proposal in the following ways, namely that:
(a)the children spend the first half of all school holidays with the father, because seemingly to avoid issues arising in calculating the middle point of a block of school holidays, but also to ensure the father has certainty around spending time with the children at Christmas time; and
(b)the mother be restrained by injunction from collecting the children from the school in the manner which would prevent the father from collecting the children on the last day of school term.
These issues are considered when the evidence, briefly analysed shortly, about the events after 26 March 2021 are discussed.
FAMILY REPORT
The family report of experienced social worker Ms GG, was published on 15 February 2021 (marked Exhibit 18) and arose from observations and interviews conducted on 19 January 2021. Ms GG was briefly cross-examined and the testing of her evidence did not cause her to depart significantly from the opinions expressed in her report and her ultimate evaluation that in the week the father is not rostered for work, the children should spend time with the father from after school Monday to Sunday afternoon at 4.00pm (essentially six nights per fortnight). When Ms GG was informed of the father’s roster (making his maximum availability, after necessary travel, essentially from after school Wednesday to before school Wednesday), the report writer was comfortable with an alternate proposition raised by the Court of time commencing after school Thursday, continuing to before school Wednesday.
Some aspects of the report writer’s cross-examination should be recorded additional to her opinions expressed in the report, namely:
(a)although she agreed with Mr Galloway of Counsel for the mother that the fact that the current interim arrangements have worked well and provided some certainty and stability for the children was an important considered, the report writer still maintained her view that the children would benefit from additional time with the father;
(b)when discussing views expressed by the children to her, upon questioning by Mr Galloway, Ms GG said:
(i)although at paragraph 110 of her report she recorded in summary X’s wishes for the current arrangements to be maintained, X qualified his views by the comment that “it’s not that I don’t want to spend more time with dad but I am used to what happens with this routine”. The report writer explained that X feels his mother is “at times overprotective” and in one breath he wanted to have equal time, but with further exploration by the report writer, X was aware that extending time with the father may not be the position of his mother and he said things suggesting that he may not wish to hurt the mother’s feelings; and
(ii)the report writer did not deviate from the conclusion as to Y’s views and wishes recorded at paragraph 125, that she wishes to spend more time with her father and “wanted a shared care agreement”; week-about. She also referred to her evaluation at paragraph 145; and
(c)at paragraph 107, Ms GG made it clear that she formed the impression the children were exposed to adult conversations. On the evidence, I am comfortably satisfied this is the case, more significantly, though, when the children are in the care of the mother.
Whilst I accept the mother’s frustrations (at times bordering on anger) about how she feels the father has controlled and used financial resources to her exclusion, I find that feeling is deeply ingrained in the mother and I find she has found it more difficult to protect the children from her feelings or disguise them. One only needs to read the very hurtful and emotional outbursts by the mother in her email to the father on 31 March 2021, as follows:
Mr Filby,
Mums car has now broken down and is not repairable.
We are all now without a car.
You have now caused more grief than is humanly possible for my family and your kids.
You need to provide me with funds to purchase a car immediately.
You have clearly embezzled millions of dollars from the businesses, thousands of livestock. You have drug addicts working at both Town HH and Location JJ and you allow the kids to be exposed to such low life’s. You are not a fit parent and your behaviour last week and constant lies in court is breathtakingly deluded. Along with your parasite legal counsel you should hang your head in shame with your antics last week.
Until you can prove that you are a decent person and provide access to funds for the kids and I to purchase a car and sort out something for Mum and Dad, there is no way that I will allow you to have the kids until this situation is rectified.
Consider yourself notified that you no longer have access to the kids until you have rectified both funds for the kids and I for a car, funds for Mum and Dad to sort out a car for them and that you have removed your drug producing and addict caretakers from both the properties that you take the kids to. I will not have their safety compromised and for them to be exposed to your shocking behaviour and antics.
Fix this situation immediately.
Ms Northcott
(See annexure A1 to the father’s affidavit filed 15 April 2021)
This email, sent by the mother, personally and without the benefit of legal advice, it is acknowledged, helps to understand the depth of her current feelings. It is true that she did fail thereafter to abide by the changeover arrangements on 10 April 2021 that had been agreed to when in Court (between the parties personally with their legal advisers on 26 March 2021); did nothing to facilitate any time (even telephone time) between the children and the father for a period of nearly one month until she “permitted” the children to recommence physical time with the father on 2 May 2021. I regard her actions as not child-focused, even if her concerns about Mr B remained. Other ways of ensuring the children enjoyed holiday time with the father could have been negotiated. The mother regarded her actions as requiring a response by the father and that she was not required to “parent” him. Her comments in that regard were inappropriate.
The email of 31 March 2021 seems to be to a large part motivated by financial issues including a difficulty with the maternal grandmother’s car and issues that may have created for her parents. I accept that this email came, as I say, after a long period of litigation, frustration and delay. That the mother must have involved the children in discussions prior to 10 April 2021 about why they were not, as I infer is likely to have been their expectation, to spend holidays with their father. The mother reluctantly conceded this when giving further evidence. However, her defensive reaction to questions from the Bench about the issue, and also her decision to speak to X on the morning of 12 May 2021, before she gave further evidence when she raised with him issues in the father’s affidavit filed 11 May 2021, did her little credit. All it did, in my view, was to demonstrate, on this occasion, appalling insight by her.
The report writer emphasised not only that the children enjoyed the best of rural life with the father and the more urban lifestyle of the mother whilst attending KK School, the report writer agreed that for X a strong and caring male role model like the father assists with his developing his “maleness”, which is who he is. Ms GG restated her strong view that both parents would benefit from individual counselling, as recommended at paragraphs 169 and 170. As Mr Galloway contended in his final oral submissions, the Court is not bound to adopt the opinions and recommendations of any expert report writer (see Hall & Hall (1979) FLC 90-713). However in this case the factual basis of the expert’s recommendations is supported by the evidence and the findings of the Court, weight should be attached to the family report recommendations. I do so.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
PRIMARY ADDITIONAL CONSIDERATIONS
I will now make findings on the evidence within the matrix of the relevant primary and additional considerations prescribed at s 60CC(2) and (3) of the Family Law Act1975 in a narrative form. In so doing, I rely upon but do not necessarily repeat, earlier findings made in these Reasons.
Both parties’ proposals make it clear that they believe it is in the children’s best interests and that they will benefit from a meaningful relationship with both of the parents. I agree.
Although I have already indicated that the parents themselves do not, in my view, present with any significant risk to these children, the Court is, on the evidence, required to make some findings within the matrix of s 60CC(2)(b), namely: “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
In that regard, the mother’s primary affidavit identified a number of factors that she felt reflected poorly on the father’s parenting, including, for example:
(a)the bleeding nose incident (paragraph 468);
(b)Y’s quad bike accident (paragraph 469);
(c)X’s broken tooth (paragraph 515);
(d)the allegation of ear pulling (paragraph 529);
(e)what she alleges to be the father’s unsafe practice of keeping guns on their rural property (paragraph 533); and
(f)Y’s head lice (paragraph 543).
In my view, these generally minor incidences, explained away adequately by the father, in my view, in his evidence, was more an attempt by the mother to attack, whenever she could, a good father rather than concede the qualities of his parenting. It was interesting to note that when she gave evidence on 12 May and an incident arose from how Y, in an accident on a bike, had injured herself, the mother was terribly defensive.
In fact, to some degree she was misleading, because although she said to the Court under oath that the child was not wearing her helmet, for adequate reasons in that she was not on a road but on a grassed area, she gave the impression that she had observed this child in this position. It was only when the Court raised further questions that it became apparent that she was not even present at the time, but that that child was being supervised by the grandparents. It seemed lost to the mother that one of the things about which she was critical of the father was a matter which, using her perspective, she could be criticised. I criticise neither parents, however, in that respect.
When the evidence finished on 26 March 2021, an issue arose at the very end of the evidence arising from the subpoena issued by the mother to the Queensland Police Service, seeking details of the criminal records, if any, of a Mr B (aged 60) and a person who had been residing on the rural property owned by the husband for a couple of years now, and one of the husband’s casual workers on the property, Mr FF (aged 25). Both Mr B and Mr FF gave evidence relating mostly to the property proceedings. Mr Galloway, as instructed, but properly so, raised concerns about the conduct and risk which both Mr B and Mr FF may present to the children in the circumstances. As the information only became available within hours of the trial completing on Friday, 26 March 20121, the Court made directions for the father to provide further evidence about the issues raised in the subpoena material which he had not at that stage had an opportunity to inspect. He did so.
I have also had an opportunity to inspect the police records which were provided by way of disc and marked in the proceedings as Exhibit 29. It is clear that Mr B had a criminal history commencing from as early as July 1979 and involving multiple offences including assault, attempted break and enters, possession of dangerous drugs and supply of dangerous drugs. This has resulted in numerous fines, suspended sentences and a short term of imprisonment. Most recently, on 6 December 2018, police executed a search warrant at an unnamed address at Town LL where chemicals and equipment that police described as “items commonly used in the production of methamphetamines”, were found. It is not clear that the address at which the search warrant was executed is the farm owned by the father. The address was redacted from the documents produced by the Queensland Police Service.
In any event, Mr B was charged and when he appeared at the local Magistrates Court on 24 November 2020 (nearly two years later), he was convicted. The conviction was recorded but he was not further punished. An earlier charge of producing dangerous drugs and a charge relating to the items found was dealt with in the same Court but on 19 February 2019 (some time earlier than the latter charge for reasons not clear), but on that serious charge he was sentenced to four months’ imprisonment to be suspended for 12 months. I am satisfied that although Mr B has not had an opportunity to provide his response, he has had a long history of drug use and there are good reasons why it would be inappropriate for him to come in contact with the children. The father agrees and, in fact, has terminated his employment and deposes to Mr B having left the farm.
Mr FF is a younger person, aged 25, and his adult criminal history as revealed by the subpoenaed records begin in 2012, mostly involving minor stealing offences. Mr FF has also been the subject of a Protection Order for two years made on 15 July 2015, and more recently a five year Protection Order against him made 11 November 2020, which appears to relate to a former domestic partner of his and their infant child. The father, having had a chance to read the material through his Counsel, Mr Fellows, confirms that he would agree to an order being made that the children do not come into contact with Mr FF. He indicated that it will be possible even if Mr FF remains in his employment to ensure that the children, if they are at the farm, do not come in contact with him.
For the reasons given, I do not regard there to be any other concerns or risks to the children arising from the parenting style or attitude of the parents.
In respect of the children’s views, I have already identified through the discussion of the family report above in these Reasons what the children have said, but also the context in which they have said what their views and feelings are. Notwithstanding being engulfed by their parents’ conflict for so long, I am satisfied that some weight can be given to Y’s desire to have extra time with her father, but also that X would also seek to have more time with his father but likely finds it difficult, against the mother’s clear opposition, to express those wishes to her.
In respect of the nature of the children’s relationship with each of the parents and other persons, it is clear they have strong, intact and valuable relationships with each of their parents and that the siblings also have a strong relationship with each other. Neither parent, for example, indicated that there should be any differential parenting arrangements for each of the children.
The parties have enjoyed equal shared parental responsibility since separation and have to a large degree made decisions together. The only issue of significance where this did not occur was the mother’s unilateral decision to relocate to Canberra, but that was short lived and, to her credit, when required to return, made the best of it and has done so since. Although the mother would say that the father has failed to fulfil his obligation to maintain the children, this really is a dispute within the context of the disputed contested property proceedings. Issues like the mother’s access to a car, funds for the children’s schooling (which the father pays), funds for the mother to maintain herself and access to significant funds to allow her to maintain her litigation in this Court have all shaped the mother’s perception that the father has failed to fulfil his obligation to his children. I make no such finding.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the children’s circumstances. In my view, as the evidence set out and as the findings make clear, the change in the children’s circumstances, which the competing proposals effectively identify, is whether they spend more time with the father. Clearly, if they are to spend more time with the father, they will be spending less time with the mother. I accept that that will be a change and not one which the children may at their age have made the full capacity to cognitively assess. However, I do not believe that an increase in time with the father, with the ultimate result of less time with the mother, is contrary to their best interests, as the mother proposes.
There are no real practical difficulties that are encountered in the children spending time with each of the parents.
I have made findings already as to the capacity and attitude of the parties to the role of parenting and I rely upon those.
To the extent that I have been more critical of the mother in some small aspects, I also accept that she has to a large degree been the one under the most pressure with the breakdown of the relationship. The father has continued to work as a tradesperson and manage with partners and staff the farming pursuits and the required management of significant financial indebtedness from time to time also cause pressure and stress.
There are no family violence orders in existence at this time. I do note that the evidence of the mother is that in August 2004 the father had grabbed her by the throat and threatened her and that there was a further incident in July 2006 after the father’s father died. The mother conceded that in December 2010 there was an incident which forced her to throw plastic knives at the father and, as a result, an incident occurred in which she was, she says, injured. There was an incident where the mother alleges the father threatened her and/or strangled her in June 2014, approximate to the time of separation. The mother did file an application for a domestic violence order in November 2016, however, on 20 February 2017, the application was dismissed.
This chronology of events, although contained in the mother’s evidence and broadly denied by the father, were not the subject of any significant cross-examination for two reasons:
(a)Counsel for the mother, on instructions, did not pursue in the property proceedings a Kennon & Kennon (1997) FLC 92-757 argument; and
(b)considering the age of the incidents and the generally satisfactory way in which the parenting arrangements have continued since the Orders of October 2016, the relevance of some of these past issues was questionable. They are also to be seen in the context of neither parent seeking any supervised or restricted time because of past allegations of domestic violence.
I do not ignore the fact that there were unhappy moments in this relationship. That is abundantly clear. However, I was not able, on the evidence and the way the case before me ran, to make any findings in respect of each of the allegations made by the mother.
Section 60CC(3)(l) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the” children. It is clear that these parties will want a finalisation of all matters, both parenting and property. Neither of them should have any appetite for further litigation. Only time will show whether that is the case. The order which I propose to make, I believe, is least likely to lead to further parenting proceedings being instituted.
DISCUSSION
Both parties seek an order for equal shared parenting responsibility which has the Court’s support and, as a result, the Court is required to give real consideration to whether it is in the best interests of the children, and reasonably practicable, to order:
(a)equal time; or
(b)substantial and significant time.
In my assessment, the father’s work roster does make an equal time arrangement reasonably practicable for the children. However, both parents accept the children will benefit from an arrangement where they live with the mother and spend substantial and significant time with the father. I agree and the orders I now put in place are reasonably practicable, where the mother intends to remain living in the home at Town BB where the children have lived primarily since separation now six and a half years ago.
I accept that the father will be able to have changeovers at school or in the Town BB area and that, from time to time, at his election and in a practical way, meeting the desires of the children, he may take them to the farm, particularly over the holidays but occasionally on a weekend. The farm to which I refer is approximately one and a half to two hours’ drive from Town BB. I accept the father has not had complete control of his work roster even though he is in a senior management position now. It would be simplistic to view this dispute through the narrow prism of the father’s proposal to increase immediately time to six nights per fortnight and the mother’s proposal being to retain the current arrangement of four nights per fortnight. However, in some sense, that is the nature of the dispute.
These two capable but different, loving and focused parents have much to offer their children. The mother, in particular, I accept, has been under, at times, extreme pressure dealing with the growing development as primary carer of the children, whilst the financial issues, so important to her desire for financial independence and autonomy, have been delayed and unresolved. Although the property proceedings should be concluded by final orders made in the second half of this year, there is no certainty that for these highly litigious parties, final orders in property will be the end of litigation between them. However, for the reasons already identified, I am satisfied that it is in the best interests of both X and Y that they have increased time with their father, as set out in the orders at the commencement of these Reasons. Essentially, that will take the form of:
(a)an immediate increase to after school Thursday to before school Tuesday each alternate weekend (five nights); and
(b)from the commencement of the 2022 school year, a further increase to after school Thursday to before school Wednesday each alternate weekend (six nights a fortnight).
By graduating in this way, in the context of these applications, I give both parents and, importantly, the children, time to adjust. Frankly, although I find this order is least likely to lead to further parenting proceedings, I hold little concern that the children will adjust to the orders, even if immediately imposed but the mother may find it more difficult.
I do not propose to compel the mother and father to undertake therapeutic counselling, as recommended by the report writer, however I strongly support those recommendations. If this occurs in the second half of the year, the new arrangement for 2022 and thereafter (even if the parents continue their parallel parenting) has, in my view, more sustainability than if imposed immediately.
As a result, I will give the parents leave to provide a copy of these Reasons and the family report to any counsellor they choose to engage, merely by way of background. I believe alternating holidays between first half and second half is better than the father’s proposal for fixing the first half of Christmas school holidays. Christmas Day will fall where it will fall, mostly in the first half of each school holiday period. This will allow the children to spend one full Christmas each alternate year with that parent and that parent’s extended family. This is for their benefit.
It also allows each parent to consider a more lengthy holiday experience for the children, not inhibited by Christmas Day, if that is their choice. Of course, if the parents agree from time to time to slightly vary the ordered arrangements, they are able to do so in writing and after discussion. It might be hoped that with counselling these parents can find the strategies to improve their communication. Certainly, X and Y would welcome that development. They make that clear from what they have said to Ms GG. The parents should note those comments by their children.
Otherwise, the orders that are found at the commencement of these Reasons are in the children’s best interests.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 May 2021
APPENDIX ONE
PARENTAL RESPONSIBILITY
1. That the parents have equal shared parental responsibility for the children.
2. That without limiting the parental responsibility of each parent pursuant to these orders each parent shall keep the other parent informed of and shall properly consult with the other with respect to any major long-term issue in respect of the children.
3. For the purpose of these Orders the major long term issues includes:-
a. Any serious medical or health matter concerning the children, including but not limited to, advising the other as soon as reasonably practicable of any medical emergency, choice of medical practitioner or other health care provider, address and telephone contact number of medical providers, and shall authorise such medical provider to discuss with the other parent any matters pertaining to the children’s health;
b. Any serious medical or health matter affecting either parent with may affect the ability of that parent to care for the children;
c. Matters relating to the education of the children, including but not limited to the provision to the other parent of all school reports, school photographs and all communications from the children’s school other than with respect to routine or administrative matters;
d. Matters relating to disciplinary matters other than of a trivial nature;
e. Matters concerning the religion or faith of the children;
f. The place of residence of the children and telephone number for contact with the children, including any change thereof;
g. Any intended change in the surname by which the children are commonly known from that which appears on the children’s Birth Certificates.
DURING THE SCHOOL TERM
4. That the children live with their parents on an equal time basis as follows:-
A. With the Father:-
a.Whilst the Father is on a 7 day on, 7 days off roster:-
i.When the Father comes off day shift, with the Father from the conclusion of school on Wednesday to the commencement of school on the following Tuesday:
ii.When the Father comes off night shift, with the Father from the conclusion of school on Wednesday to the conclusion of school the following Tuesday;
b.In the event that the father’s employment changes from a 7 day on, 7 day off roster for 6 nights per fortnight.
B.With the Mother at all other times.
SCHOOL HOLIDAYS
5. The children shall spend time with their parents during school holidays in odd numbered years as follows:-
a. With the Mother for the first half;
b. With the Father for the second half.
6. The children shall spend time with their parents during school holidays in even number years as follows:-
a. With the Father for the first half;
b. With the Mother for the second half.
EXTRACIRRICULAR ACTIVITIES
7. The Mother and Father shall ensure that the children attend and participate in their scheduled sporting, recreational and extracurricular activities when they are in their respective care.
CHANGEOVER
8. Unless otherwise agreed in writing:-
a. When changeover does not take place at school, changeover shall take place as follows during school holidays:-
(i)When the Father is collecting the children from the Mother at AA Street, Town BB;
(ii)When the Mother is collecting the children from the Father at corner of CC and DD Streets, Town BB.
b. Changeover for the second half of the Christmas School holiday period is the 29th December at 3.00pm provided the children are attending KK School.
FATHER’S DAY
9. Notwithstanding any provision in this Order the children shall spend time with the Father on Father’s Day in each year from 9.00am – 5.00pm.
MOTHER’S DAY
10. Notwithstanding any provision in this Order the children shall spend time with the Mother on Mother’s Day in each year from 9.00am – 5.00pm.
AUTHORITIES
11. This Order authorises any of the children’s treating Medical Practitioners or other health care providers to release the children’s medical or health information to each parent and to discuss the children’s treatment with each parent.
12. This Order authorises the school/schools attended by the children to give each parent information about the children’s educational progress and the other school related activities and shall supply them with copies of school reports, photographs, Certificates and awards attained by the children (at that parent’s cost).
TELEPHONE COMMUNICATION
13. The children shall be at liberty to communicate with the parent that they are not living with by telephone at all reasonable times.
14. The non-residential parent shall communicate with the children by way of telephone, skype and/or face time at all reasonable times and in particular each Sunday, Tuesday and Thursday evening between 6:00pm and 7:00pm with the non-residential parent to instigate the call to the mobile telephone that is to travel with the children and the residential parent to ensure that the children are available to accept the call and will respect the privacy of the children and ensure that the telephone call is not placed on speakerphone, and shall ensure that the phone is charged and in working order.
15. Both parents shall ensure that the children are available to speak with the other parent and will respect the privacy of the children and shall ensure that the telephone call is not placed on speakerphone when the other parent calls.
SPECIFIC ISSUES
16. Each parent to keep the other informed:-
a. Of the children’s address, mobile telephone number and landline number if available and shall notify the other within 48 hours prior to any change;
b. The names and address of the children’s treating medical or other health practitioners who treat the children;
c. As soon as reasonably practicable of any serious medical condition; significant health issue or significant injury suffered by the children.
17. The Mother/Father shall not relocate the children from the City EE/Town BB area without the written agreement of the other parent or by Order of the Court.
18. That during the time the child/children are in a parent’s care that parent must:-
a. Respect the privacy of the other parent and not question the child/children about the personal life of the other parent;
b. Speak of the other parent respectfully;
c. Not denigrate or insult the other parent or the other parent’s partner, or the family of the other parent, in the hearing of or in the presence of the child/children.
PASSPORTS AND OVERSEAS TRAVEL
19. Upon the request from the other parent to do so, the Mother or the Father shall execute and return to the other parent the relevant Passport Application/Renewal Form within 14 days of receipt of the passport application/renewal form from the other parent.
20. Should ether parent fail to execute a Passport Application and/or Passport Renewal in accordance with Order 18, a Registrar of the Family Court of Australia/Federal Circuit Court of Australia shall be appointed to execute that Passport Application on behalf of the Mother or the Father, whichever the case shall be.
21. The Mother and the Father are permitted to travel overseas with the children during their school holiday time with the children, provided that 8 weeks written notice is provide to the other parent, and the following information is provided 14 days prior to the departure overseas:
a. A copy of the return prepaid flight tickets (as relevant) for the children;
b. A copy of the itinerary; and
c. Contact details for the children for the duration of time the children are overseas;
d. The parents must not take the children to any country where there is an existing Australian Government travel alert or travel warning (however described);
e. While overseas the travelling parent shall initiate the children communicating by telephone with the other parent at least twice per week.
22. Each parent shall retain a Passport for one child. They shall provide the Passport to the travelling parent upon receiving 8 weeks’ notice and shall return the Passport to the other parent within 4 weeks of the child’s return to Australia.
NOTATION
If a parent engages the children in an extracurricular activity without the written consent to the other parent that parent shall be entirely responsible for the cost associated with that extracurricular activity.
APPENDIX TWO
1 That the parties shall have equal shared parental responsibility for the children X (born … 2010) (“X”) and Y (born … 2012) (“Y”): (“the children”).
2 The children shall live with their mother.
3 The children shall spend time with their father as follows:
3.1Each alternate weekend during term time, from after school on Friday until the commencement of school the following Tuesday;
3.2For the first half of all school holidays in even numbered years commencing at noon on the first Saturday of the holiday and the second half in odd-numbered years commencing at noon on the middle Saturday of the holiday or middle Wednesday should the holiday have an uneven number of weeks.
3.3Changeovers for term time pursuant to Order 3a above shall occur at the school during term time.
3.4Changeovers for holiday time pursuant to Orders 3b above shall occur at noon on the relevant first or middle Saturday and conclude at noon on the middle or last Saturday of the holidays outside each parent’s Town BB home. Should there be an uneven number of weeks in the holiday changeover shall occur at noon on the middle Wednesday.
3.5The father shall ensure that the children are not left unsupervised nor left with other people for more than one (1) hour.
4 The parent with whom the children are staying or living, shall ensure the children are available for telephone communication:
4.1for a period no longer than 30 minutes between 6:00pm and 7:00pm EST on each Wednesday and Sunday.
4.2The children are otherwise at liberty to communicate with the parent with whom they are not living and the other parent shall ensure that such communication is facilitated and encouraged.
4.3During such communication neither parent shall discuss these proceedings or interrupt the other parent if able to be heard on the phone.
5 That on Mother’s Day and Father’s Day each year, notwithstanding the provisions of these Orders, the children shall spend time with the relevant parent from 9:00am to 5:00pm on the relevant day.
6 On each child’s Birthday, the parent with whom they are living or spending time shall ensure that child is available to spend from after school until 7:00pm should the birthday fall on a school day and from noon until 6:00pm should the birthday fall on a weekend or holiday with the other parent.
7 In the event that the Father’s or the Mother’s birthday falls during a period when the children are in the other parent’s care, that parent shall ensure the children are driven to the relevant parent’s home in the City EE area at 3:30pm and shall collect them at 6:00pm that day.
8 That each party will notify the other as soon as practicable but within 2 hours, of any medical emergency or medical condition in relation to the children and authorise any medical profession treating the child/children to discuss with the other parent the matter and any medications prescribed.
9 This Order authorises any of the children’s treating Medical Practitioners, Dentists or Health Care providers to release the children’s medical or health information and discuss such information with each parent.
10 Noting that the mother holds X’s passport and the father holds Y’s passport: upon receipt of eight (8) weeks’ notice of the date of departure by a parent wishing to take the children overseas for a holiday (unless to New Zealand where such notice shall be four weeks prior to travel) the parent holding the child’s passport shall make it available within seven (7) of the notification. Should a longer time be required due to visa requirements, the other parent shall not withhold provision of the passport after notification. The passport shall be returned to the relevant parent at the end of the time overseas.
11 This Order authorises the schools attended by the children to release any information about the children to either parent and provide any documents, photos, reports or other written communication about the children upon any request by the children’s parent to do so.
12 That neither party shall enrol the children in extra-curricular activities commencing Term 1 2021, without the written agreement of the other parent. Apart from swimming lessons, the children will be enrolled in only one other sport activity should they wish to engage in it: and one cultural activity. Cultural activities can include ballet, music lessons, gardening, dance, robotics, public speaking etc.
13 Neither party shall discuss these proceedings, nor denigrate the other to or in front of the children.
14 Both parents shall ensure that the other parent is kept informed of any change of address or telephone number within 24 hours of such change.
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