FISK & BRASS
[2013] FCCA 1602
•14 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FISK & BRASS | [2013] FCCA 1602 |
| Catchwords: FAMILY LAW – Parenting – relocation sought by one parent with the children – consideration of parental responsibility – consideration of equal or substantial and significant time – whether such an arrangement was practicable and in the best interests of the children – specific consideration of each parent’s capacity and willingness to foster a relationship with the other parent particularly if there were a considerable geographic divide. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CA, 60CC(2) and (3), 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 Chappell & Chappell (2008) FLC 93-382 U v U (2002) 211 CLR 238 |
| Applicant: | MR FISK |
| Respondent: | MS BRASS |
| File Number: | TVC 324 of 2011 |
| Judgment of: | Judge Coker |
| Hearing dates: | 26 & 27 June 2013 |
| Date of Last Submission: | 15 July 2013 |
| Delivered at: | Townsville |
| Delivered on: | 14 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wilson |
| Solicitors for the Applicant: | Everett’s Family Law |
| Counsel for the Respondent: | Mr Betts |
| Solicitors for the Respondent: | The Law Office |
| Counsel for the Independent Children’s Lawyer: | Mr Moore |
| Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That all previous Orders and Parenting Plans be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children X born (omitted) 2004 and Y born (omitted) 2007 (“the children”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order (2):
(a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
(b)The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
IF THE PARENTS DO NOT LIVE IN THE SAME LOCALITY
That if the parents do not live in the same locality, the children live with the Father and spend time with the Mother at all reasonable times as may be agreed between the parents and failing agreement as follows:
(a)In the (omitted) area, on 2 weekends during each school term, subject to the Mother providing the Father with at least 10 days’ notice in writing of her intention to spend such time with the children and providing that the Mother ensures that the children participate in all school and extra-curricular activities as may fall during that weekend; and
(b)During the gazetted school holidays:
(i)For the whole of the Easter end of Term 1 gazetted school holiday period in each even numbered year;
(ii)For one half of the June/July end of Term 2 gazetted school holiday period in each year and, unless otherwise agreed, for the first half in odd numbered years and the second half in even numbered years;
(iii)For the whole of the September/October end of Term 3 gazetted school holiday period in each year;
(iv)For the first half of the Christmas end of Term 4 gazetted school holiday period in odd numbered years and for the second half of the Christmas end of Term 4 gazetted school holiday period in even numbered years.
IF THE PARENTS LIVE IN THE SAME LOCALITY
In the event that the parents live in the same locality, then the children live with each parent in an equal time arrangement with changeovers taking place on Friday afternoons at the children’s school at the conclusion of the school day.
That the week-about arrangements pursuant to Order (6) herein be suspended during the gazetted school holidays.
That for the purposes of the gazetted school holiday periods, the children shall spend time with each parent as follows:
(a)For one half of each gazetted school holiday period, with the Mother to spend the first half in odd numbered years and the second half in even numbered years and the Father to spend the first half in even numbered years and the second half in odd numbered years.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
(c)The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(d)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(e)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(f)The whole of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That the children shall spend time with and communicate with their parents on special occasions, provided the parents are in the same locality, as follows:
(a)For the purpose of the Christmas school holiday period:
(i)In even numbered years, with the Mother from 5.00pm on 24 December until 12.00 midday on 25 December and with the Father from 12.00midday on 25 December until 5.00pm on 26 December; and
(ii)In odd numbered years, with the Father from 5.00pm on 24 December until 12.00 midday on 25 December and with Mother from 12.00 midday on 25 December until 5.00pm on 26 December.
(b)With the Mother on the Mother’s Day weekend from after school on Friday until before school on Monday (regardless of whether that weekend would be usually spent with the Father pursuant to these orders);
(c)With the Father on the Father’s Day weekend from after school on Friday until before school on Monday (regardless of whether that weekend would be usually spent with the Mother pursuant to these orders).
(d)On each child’s birthday, Z’s birthday and a parent or step-parent’s birthday if the children are not otherwise in a parent’s care, then time with that parent, if it falls on a weekday from after school until school the following morning or 9.00am and if it falls on a weekend for a period of five (5) hours as agreed.
That in the event of the parents not being in the same locality on special days, then the children communicate with the parent with whom they are not living, by telephone or via Skype on:
(a)The birthday of the child between 6.30pm and 7.00pm;
(b)The birthday of that parent, step-parent or sibling, between 6.30pm and 7.00pm;
(c)Easter Sunday between 9.00am and 9.30am;
(d)Christmas Day between 9.00am and 9.30am (if the parents are not in the same locality);
(e)On Mother’s Day and Father’s Day between 9.00am and 9.30am.
That the children shall communicate with their parents on the telephone or via Skype at such times as the children reasonably request, and in particular on Sundays and Wednesdays between 6.30pm and 7.00pm and in relation to such communication, the parent with whom the children are living shall:
(a)Ensure that the children are available to receive the telephone call during this time;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the other parent misses the telephone call from the children or the children are unable to call; and
(c)Ensure that the children have privacy during the conversation.
That except as otherwise agreed in writing between the parents, changeovers will take place at the children’s school.
Changeovers occurring outside of the school term are to occur at the parents respective homes with the parent commencing time with the children collecting the children from the other parent’s home.
That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address, email address, landline (if any) and mobile telephone number and inform the other parent of any change to those details within twenty-four (24) hours of such change;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting 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 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, their partner or family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent, their partner or family in the hearing or presence of the children; and
(d)Not speak to the children about adult issues or speak about adult issues in the hearing or presence of the children.
That the parents use the “Our Children Australia” website to facilitate communication of issues in relation to the children and facilitate their joint parenting. Each parent is to bear their own costs of subscription to that service.
On the occasions stipulated below, the parties will attend at a Commonwealth Family Relationships Centre for the purposes of participating in mediation about the parenting of the children.
When the parties attend mediation or dispute resolution as required by Order 19:
(a)They shall attempt in good faith to reach agreement having regard to the best interests of the children with respect to the parenting arrangements for the children and the time that the children spend with each parent.
(b)Any agreement that the parties reach may alter the operation of these orders as they relate to parenting, provided that it is in writing signed by each party, stipulates that it operates to alter these orders and stipulates that it is intended to operate as a parenting plan within the meaning of Division 4 of Part VII of the Family Law Act 1975 or any statutory equivalent to that Division.
(c)If an agreement of the kind mentioned in paragraph 20(b) is not reached, then these orders will continue to operate.
The parties will attend mediation:
(a)At a mutually convenient date on which an appointment for mediation can be arranged at a Commonwealth Family Relationships Centre that is on, or within 30 days after, of each anniversary of this Order unless both parties agree in writing that such mediation is not necessary;
(b)Six (6) months prior to the children each commencing their secondary schooling if the parents cannot otherwise agree on the High School that the children will attend;
(c)On any additional occasions that the parties agreed in writing; or
(i)Where the parties are unable to resolve a conflict by normal discussion, they both agree to use the following conflict management step before using other means:
(ii)One party can elect to send the other a short written note which states “I believe that we have unresolved conflict over… Pursuant to our existing parenting orders I request that you return this letter, signed and dated within 7 days. I will then arrange for us to meet with a mediator or a counsellor at a mutually convenient time within the following 14 days with a view to defining the perceived problems and considering a range of possible solutions.”
(iii)If the other party does not return the signed and dated letter, either party is free to consider what other avenues are available to address the conflict.
The parties shall pay such mediation fees as are required of each of them by the Family Relationships Centre at which they attend mediation, but will otherwise bear their own expenses with respect to mediation.
Before an Application is made to a Court for a variation of these Orders to be taken into account, the changing needs and/or circumstances of the children or the parties, each party is to take steps referred to in paragraph 21 and 22.
That the Independent Children’s Lawyer by discharged.
IT IS NOTED that publication of this judgment under the pseudonym Fisk & Brass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 324 of 2011
| MR FISK |
Applicant
And
| MS BRASS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION AND APPLICATIONS
On 23 September 2011, Mr Fisk, whom I shall refer to as “the father” filed an application in this court seeking orders with regard to the parenting of the children, X, born on (omitted) 2004, and Y, born on (omitted) 2007. The respondent to the application, Ms Brass, whom I shall refer to her as “the mother”.
The orders that the parties sought in relation to parenting were quite detailed. The father’s orders were, however, amended prior to the matter coming before the court, when the father detailed his specific orders in the Amended Amended Initiating Application of 15 May 2012. The orders sought are annexed to these reasons and marked with the letter A.
The respondent filed a Response in relation to orders sought by the husband on 28 November 2011, however, on 28 December 2011 she further amended her response, detailing orders that were proposed and noting in particular, that there were two bases upon which the orders were made. The first and preferred position related to the mother being permitted to relocate her residence to the (omitted) and to have the children accompany her. The alternative or fall-back position was in the event of the mother not being allowed to relocate with the children, in which case she proposed that there should be time spent by the father each alternate weekend and also during the other week, such that the father would spend in total four nights per fortnight with the children.
The mother confirmed those proposed orders in relation to the matter when she filed her trial affidavit in May of 2013. In that trial affidavit at paragraph 102 the mother proposed that there should still be four nights per fortnight, but rather than having a block of three nights and a further period of one night in the alternate week, the mother proposed that the time that the children should spend with the father should be from after school on the Friday of the second week until the commencement of school on the following Tuesday. The orders finally sought by the mother, including those alternative positions, are annexed hereto and marked with the letter B.
There were a number of issues of concern in relation to this matter, not the least of which related to the direct concerns with respect to effects upon the children of relocation, as well as other issues of a general nature that arose, such that an independent children’s lawyer was appointed in relation to the proceedings. The independent children’s lawyer also took the opportunity to put forward proposed orders in relation to arrangements with regard to the future parenting of X and Y, and those proposed orders, which can be summarised as the children spending equal time with each parent, are annexed hereto and marked with the letter C.
The major issue in relation to this particular matter, related to the mother’s desire to live with the children in her care at the (omitted). The trial was conducted upon the basis that both parents acknowledged that the other could care for and provide for the children. Further issues arose from the mother’s desire to move and, the effects upon her capacity to parent, if she were not allowed to move balanced against the effects upon the children and their relationship with the father if the move was to occur. Additionally, there were concerns in respect of the effects upon the mother, if the move was not able to be facilitated.
Considerable reliance was placed by the independent children’s lawyer and, to a slightly lesser degree, by the father upon the evidence of the report writer called to prepare a report, on behalf of the independent children’s lawyer. Significant criticism was made on behalf of the mother of the report, its recommendations and its methodology, and I will turn to a consideration of those various aspects of the matter a little later in these reasons.
THE EVIDENCE
Obviously, it is necessary to consider the evidence of the parties, primarily in relation to the determination. But before turning to the parties and their evidence consideration must also be given to the evidence of other witnesses called. Two other witnesses were required for cross-examination, they being the father’s new wife, Ms K, and the mother’s partner, Mr S. I shall turn to their evidence shortly, but first it should also be noted that two other witnesses provided affidavit evidence on behalf of the mother.
They were not required for cross-examination, but their evidence was still relied upon. In dealing with those witnesses I note that they were Mr J, the brother of the mother in these proceedings and Ms R, a close friend of the mother.
The evidence of Mr J related to his observations of the mother and her parenting of the children since separation. His unchallenged evidence was to the effect that the mother “was under severe distress”, and that she did not act in a manner, other than which he described as, “a selfless and constrained manner”. He indicated that he had lived with the mother and the children for a period of about three months following separation and that he had not seen the mother speak “despairingly”, though I am inclined to think that he perhaps means “disparagingly” of the father, in front of the children. He also noted that the mother ensured that no-one else spoke in a negative manner around the children
Mr J indicated that he had observed the mother acting cooperatively in relation to the children’s time to be spent with the father and that he had observed, on occasions, the mother’s partner, Mr S, interacting with others and at no time had he observed Mr S to speak negatively about the father in the presence of the children or in the presence of others.
Mr J was, understandably, supportive of the mother, of her relationship with Mr S and of the relationship that the mother has with Mr S’s children and that Mr S has with the children the subject of these proceedings.
He noted that there had been discussions between he and the mother regarding her desire to relocate to the (omitted) and confirmed his support for the mother, should the children be permitted to relocate. He indicated his beliefs in relation to the benefits that might flow to the children should they be allowed to relocate to the (omitted), and said that the mother and Mr S would seek to promote the relationship between the children and the applicant.
Interestingly, Mr J also noted the fact that both of the children had commented to him in the past that it would be their desire to live at the (omitted).
Mr J was not required for cross-examination and, to the extent that it is possible to do so, I accept his evidence given in relation to this matter. I note, however, that whilst the evidence was not challenged, that the observations given by Mr J spoke of the closeness of the relationship between the mother and Mr S, though Mr J did not have the opportunity to be present during evidence called in relation to the matter and, in particular, during certain indications given by Mr S as to the nature of the relationship with the mother. I shall, however, come to that particular aspect of the matter a little later.
The evidence of Ms R was similarly supportive of the mother. She indicated that she had spent considerable time with the mother and had had the opportunity to observe the mother with the children, both prior to and subsequent to the separation from the father. Ms R noted the mother’s precision in exchanges with the children with regard to any inquiry they might make about the father and her observation of the fact, that the mother was very precise in her discussion with the children generally, such that her language would not be seen to be manipulative, degrading or attacking the father.
Ms R notes that she has observed several of the mother’s telephone calls to the children, when they have been with the father. From the perspective of Ms R and, of course, I assume she has only been able to hear the mother’s side of the conversation, she has noted that the telephone calls have been appropriate and that the children have not been questioned about the father or the father’s household.
She indicates also that she has on occasion been present at collection and delivery of the children to and from the father and that she has not witnessed any negative commentary or interactions with the father. She notes that the mother has been polite when collecting the children and makes sure that she asks the children how their afternoon or weekend was.
Ms R notes that the mother, like all of us, on occasions feels the need to vent, and at paragraph 10 indicates that the mother will need on occasion to vent her frustrations about the continual and ongoing “disruption to her life”. Ms R in, I think, a proper attempt to note the appropriateness of her observations of the father’s relationship with the children and interaction with the mother also recognises at paragraph 11 of her affidavit the following:
I have observed that Mr Fisk readily takes phone calls from Ms Brass when he wants to speak to the children of an evening when they are not in her care. I am further aware that Mr Fisk loves his children.
Again, whilst obviously given from the perspective of supporting the mother, I am satisfied that the evidence, at least insofar as it can be considered in relation to assisting in the determination of this matter, is a fair and appropriate recitation of Ms R’s observations, in respect of the mother and the father.
More significant in relation to the determination of these proceedings are the father’s new wife, Ms K, and the mother’s new partner, Mr S. Both were required for cross-examination.
Insofar as Ms K was concerned, I should indicate that I was enormously impressed with her. She was, I thought, a genuinely caring woman and most supportive of the father and the children. The commencement of her relationship, or at least what became known of her relationship with the father during the period that the father was still married and living with the mother, was obviously difficult, and I gained the impression that she recognised the hurt that would have been caused to the mother, as a result of the mother’s discovery of the relationship between she and the father.
When asked about that and the effect upon the relationship or interaction between her and the mother, she was frank. She was asked whether the relationship with the mother had started on the worst possible note, and, without gilding the lily or seeking to explain or minimise hurt, she simply said, “I agree”.
Ms K obviously acknowledged the difficulties that were present in the relationship between she and the mother but also commented upon her observations of the interactions between the mother and the father. Ms K in her affidavit was generally, I thought, seeking to convey an impression that the mother was the greater instigator of difficulties in communication and exchange, between the two parents.
However, she did indicate that there were occasions, certainly where the father had not been as positive in his exchanges as could be the case. Whilst criticisms were made of the fact that Ms K had omitted such information from her affidavit, it would be remiss of me not to acknowledge that that is a common failing that occurs in relation to affidavits and evidence that are put before the courts. But the positive aspect of the matter was that when challenged in relation to such issues, she did not shirk acknowledging that there were occasions where there had been difficulties, perhaps exacerbated by the father’s behaviour, though she did note that she was not, to a significant degree, present at handovers but rather remained in a car.
Ms K was, I thought, very sensible and considered in the evidence that she gave with regard to the children. She was asked, for example, what would be the situation for the children if the mother were to move, though she does not, apparently, intend to do so without the children, and Ms K said that there would be significant issues for the children if that would be the case. She immediately indicated that the children would miss their mother terribly, but, understandably, also indicated that if they were to be relocated with the mother, then they would, similarly, miss their father to a significant, if not equal, degree.
Ms K impressed me as a caring and compassionate young woman. Her relationship with the father had commenced in secret and when discovered by the mother caused enormous hurt. She recognised that and accepted that circumstances could obviously have been better. But, notwithstanding that, she gave me the impression that she was continuing to act in an appropriate manner and attempting to be balanced in what she proposed in relation to parenting, and balanced in the support she provided for the father, particularly with respect to what he proposed, with regard to the children and their parenting.
In cross-examination by the independent children’s lawyer, Ms K indicated that there were occasions where the children wanted to stay longer with the father and her, and she became a little tearful. I thought that her tears were genuine. She gave me the impression of being a very caring woman and would not want the children to suffer for any reason, including as a result of the inability of the children to spend more time with the father, than was presently able to be facilitated.
Most significant, however, was Ms K’s assessment of the children, and in particular the older child, X. I gained the distinct impression that her insight into the effects upon this little girl of the dispute between her mother and her father was particularly astute. In paragraph 18 of her affidavit she makes comment about what she, at least, perceived to be negative actions by the mother toward her, but she felt that they were not, at least at present, noted by the children but that she had concerns that they may be noted in the future.
When asked to explain what she meant, she rather eloquently explained that, from her observation, X was a very intelligent child, savvy to what was going on, and Ms K’s concern was that if the dispute between the father and the mother and the difficulties that currently existed were to continue, then the effect upon X would be that she would grow up to become overly sensitive in relation to the parenting issues, before it was necessary to do so. She indicated, as she put it, “that the children feel the tension”.
Ms K became a little tearful also during cross-examination about her opportunity to care for the children. She indicated that she did have time on occasion for one-on-one interaction with the children but that if the father was not there, she was not able to have one-on-one time with the children, because the mother insisted upon the children being returned to her. She was asked how she felt about that when the mother insisted that the children be returned to her if the father was not present. Ms K said words to the effect, “I feel inadequate as a mother and as a stepmother, that I’m not good enough to care for them”.
Also in answer to a question as to whether her input into parenting was valued by the mother, she answered quite succinctly, “No”. The impression I gained was that Ms K was a caring and compassionate woman, well able to empathise with and interact with the children and a person with whom the children had a close relationship.
Unfortunately, I also gained the impression, both from the comments made by Ms K but also from my observations of the evidence given by the mother, that there was a lack of respect and certainly a lack of any value placed by the mother on the involvement and significance of Ms K, in the lives of the children.
Ms K impressed me as a caring and loving woman and one in particular, who would be able to provide in every respect for these children. I was confident in and comforted by Ms K and her role and significance in these proceedings.
I also had the opportunity to hear evidence from the mother’s partner, Mr S. Mr S is a (occupation omitted) at the (omitted), at the (omitted) that the mother has opportunities for future employment, if there is the opportunity to relocate with the children. Mr S gave me the distinct impression that he was an extremely competent man, one very confident in his own abilities and clearly, I would think, a most accomplished and well-qualified (occupation omitted).
However, I gained an overall impression that Mr S was also somewhat overbearing and domineering, and that was emphasised in the answers that he gave to questions relating to the possibility of his move to the (omitted) area, rather than the mother’s move to the (omitted), to continue their relationship.
Mr S noted in no particular order that he had thought of a transfer but that he was a “hands-on and active father” and that he did a lot of the drop-offs and was involved in many of his son’s sporting and training activities. He also noted that he was “head-hunted to go to one of the most prestigious (omitted) in Queensland”, and that that was something that obviously caused him considerable pride.
He indicated, however, that in those circumstances, where there were such significant matters for him to consider, that if the relationship with the mother was to continue, then it would be necessary for her to move to him. He was asked whether the pressure was, therefore, “all on Ms Brass”, and he indicated that it was not that simple.
However, I do necessarily agree that that was the case. It was quite clear that Mr S had an opportunity for interaction with his boys, which was very important to him. He spent time with them on a six/eight arrangement, in fact almost identical to that which was sought by the father in these proceedings. He indicated that such an arrangement worked, both as between he and his former partner and between he and the boys.
Mr S was determined to achieve both his own wishes but also to reinforce the mother’s position in relation to this matter. He seemed, I thought, to minimise the importance of the father in these proceedings in the life of the children. He emphasised repeatedly the importance of his relationship with his children and the effect upon them of any possible change in circumstances, as well as emphasising the relationship that he had with the children the subject of these proceedings and the importance of that relationship.
He was, I thought, rather grudgingly, willing to acknowledge that there were many factors which favoured the children remaining in the (omitted) area, including their continued attendance at the school they knew, continued residence in homes that were known to them and the continued opportunity for interaction with others, including family members, significant to the children’s lives.
However, I thought his response to the question of how the best interests of the children might then be served by making a radical change to arrangements to be rather callous and, again, self-centred. He said that if the move occurred, the children would have the opportunity for the same amount of love in two households, obviously the father and the mother’s, but if the children were not allowed to move, then they would be otherwise in a home with a single and unhappy mother.
It seemed quite clear that the position of Mr S in relation to this matter was that the mother’s happiness took absolute priority in relation to any determination and that her happiness could only be provided if she were to make the big decisions and the big call in relation to moving to him. There seemed to be little give by Mr S in relation to the matter, and it certainly troubled me that that was the position taken in respect of the matter.
Mr S denied categorically that he had made disparaging references to the father in relation to Ms K following the, I assume, rather heated discussions between Mr S and the mother about issues of bullying and concerns expressed by Y about being bullied by one of Mr S’s children. Mr S denied that there been any mention of Ms K in that exchange, however, where the evidence of the father and the evidence of Mr Fisk are considered in respect of that matter, I am more inclined to the view that the father’s evidence in relation to the matter is a more accurate reflection of the exchange.
The impression that I got of Mr S was that he was a man, as I say, confident in himself but perhaps, more particularly, determined to stress his own strengths and would not be averse to utilising any resource, including disparaging comments, for the purposes of achieving what he sought with regard to his relationship with the mother. The impression I gained was that Mr S would have made comments which were, no doubt, disparaging of Ms K, and, I would think, infuriating to the father.
Whilst I have no doubt as to Mr S’s support for the mother and his genuine love for the mother, I am concerned that there would be little real respect of the father and of the father’s role with regard to the children and that, whilst both the mother and Mr S spoke at length about the support that they could provide for the relationship, and the financial assistance that would be available in relation to transportation, for example, to spend weekends and other time with the father, there would be a real reluctance on the part of Mr S to follow through in that regard and, perhaps more particularly, an easy fall-back in relation to two children, particularly one already now nine years of age, when activities arose that included weekend requirements, that would impede, if not completely stifle, opportunities for time to be spent.
I should also note that I was a little concerned at the apparent reliance that was placed both by my mother and Mr S on the far better opportunities available in, it would appear, almost every respect, academic, cultural, sporting and the like at the (omitted), rather than in the (omitted) area. Such assessments could be at best, personal assessments, and were not supported, I thought, in any real way by evidence provided, in relation to this matter.
I turn then to the evidence of the mother and the father. Both the mother and the father impressed me very much. The father was, I thought, a man stranded in a most difficult situation. I did not at all gain the impression that his desire to seek orders in relation to these children and, perhaps by inference, to preclude the mother’s move, was designed to achieve anything other than the continued opportunity for a close and meaningful relationship between he and the children.
I did not in any way assess the father as being motivated by malice or an intent to hurt the mother. Rather, the impression that I gained was that he was trying to balance the relationship with the children, the opportunity to provide for he and his new wife and their child, as well as these two children and the mother, in a way that met both their financial and their emotional needs.
I make that particular comment in respect of the matter because it is important to note that the father was asked about his opportunities to move. He was the (occupation omitted) at his company. His qualifications related specifically to (omitted) in those areas relating to a (omitted). He had qualifications as a (omitted), but such qualifications would only provide him limited opportunities if he were to move outside the area of work at a (omitted), and that would have very significant consequences financially for he and his family, as well as for the children and the mother.
Quite simply, the father was caught, as no doubt was the mother, between “a rock and a hard place”. He indicated that he had well-remunerated and satisfying work in the (omitted) area. He had family in the area. He had roots that had been put down and which were genuinely required to be considered. As he put it, he had children and family in (omitted). He had a good job and a home, and, whilst he understood the mother’s genuine wish to move, he had assessed that, from his perspective at least, the best interests of the children in all respects was met by him remaining in the (omitted) area and the children remaining in the (omitted) area.
The father impressed me in a number of ways, though, as is almost invariably the case, there were occasions where anger or ill-considered actions had led to unnecessary difficulties, in relation to the interaction between he and the mother, and in one particular instance, certainly between he and Mr S. The father had reacted sarcastically and perhaps inappropriately in relation to interaction with Mr S.
There had been an email exchanged between them which had been of a sarcastic and unhelpful nature. The father acknowledged, I think quite properly, that the exchange had not been a good one and that certainly there had been unfortunate consequences of him refusing to shake Mr S’s hand. The father said that he thought the exchange that had passed previously was a sarcastic one, but he also indicated that he was intimidated by Mr S.
I would assess that, whilst the father was not to any real extent overborne, there would be a degree of intimidation in Mr S’s interaction with him, it being the case that Mr S is, as I have assessed, a determined man and one who would, no doubt, set out to achieve his own goals.
The father certainly expressed concern at a number of the situations that had arisen between he and the mother, particularly with regard to arrangements in relation to the children. There were instances of difficulty arising from a lack of information or exchange relating to X’s participation in the school cross country, the incident involving a dance concert and attendance and generally exchanges between the parents in relation to the school activities, parent-teacher meetings, provision of newsletters and the like.
Understandably, such difficulties do on occasion arise, but the father, I think, emphasised that there were occasions where the mother had the opportunity to provide more information to him, but that she had failed to do so or, in fact, had intentionally decided not to provide information, for example when certain activities went beyond the timeframes originally nominated, and that led to difficulties in their communications.
However, there were also obviously situations where the father had acted in a manner which showed a lack of communication, trust or respect, in relation to the mother. The prime example of that related to his sister’s wedding, such that there was confusion and, no doubt, difficulty for all concerned in relation to the children’s involvement in the wedding plans. There were also difficulties in relation to arrangements with the children’s participation in tennis classes as well as the cost of various activities.
Clearly both parents have experienced difficulties in relation to interacting with each other and making arrangements with regard to parenting. No doubt the father and, of course, the mother could on occasions have acted in a more responsible manner, particularly when the difficulties that arose related specifically to situations with regard to the children not being able to be involved in all aspects of both parents’ lives, because of the lack of communication and difficulties that existed.
Overall, however, the impression that I gained in relation to this matter was that, whilst there were occasions of difficulty in interaction between the mother and the father, they were generally able to work together and to ensure that the children’s best interests were to the fore.
The impression that I gained in relation to this matter was that the father loved his children very dearly, that he wanted greater opportunities for interaction with them and wanted the opportunity to be able to be completely and fully involved in the children’s lives.
It is perhaps understandable that the proceedings that have been brought in relation to this matter have led to some of these difficulties. What is troubling however, is that whilst the mother purports to support the relationship with the father, for a period of 18 months or more, from the commencement of the proceedings up to the date of hearing the father had been seeking greater opportunities for time, and whilst the mother has said that she would be fostering such greater opportunities, they had generally not occurred.
The father acted inappropriately on occasion. No doubt, in hindsight he would acknowledge that some of the actions taken by him, particularly with regard to some of the children’s sporting activities and some family activities, including of course, his sister’s wedding, have given rise to difficulties in the relationship between he and the mother. But I would also assess that the father’s position in relation to this matter was one where he genuinely believed with appropriate reason, that the best interests of the children were met by their remaining in a locality in which they were settled, in which they had stability and settled arrangements with regard to accommodation, with regard to school, with regard family and friend attachments and in which they had the opportunity to continue all that had been in place in their lives.
The father was, I thought, a genuinely caring and loving father. As I indicated, he was caught in a situation, perhaps beyond what he could ever have anticipated would be the circumstances that he would find himself in. He wished to have a relationship with his children. No doubt, he also sought to continue at least a cordial and civil exchange with the mother and found on occasions that that was not possible. The father wished to provide as best he could for all aspects of the children’s lives, including the involvement of a significant nature of both he and the mother and those others important in both of their lives.
I turn then to the mother and must say that I struggled in many respects, in assessing the mother and her position in relation to this matter. I say that because whilst the overall impression that I gained of the mother was of a woman who was, to a significant degree, worn down by the circumstances that she found herself in and in particular distressed, no doubt, by the events that led to the separation between she and the husband, there was also a degree of control and determination to achieve her own wishes in relation to this matter, notwithstanding an appreciation that would be properly and genuinely held of the importance to the children of maintaining close interaction with their father.
The mother is, no doubt, a highly qualified (occupation omitted). She appears to be easily having obtained opportunities with regard to the transfer of her employment from the (omitted) in (omitted) to a more, as Mr S described it, prestigious (omitted) at the (omitted). The mother was able to obtain a transfer to that (omitted) and, in fact, had sought that opportunity before the father brought proceedings, in relation to this matter.
Notwithstanding her knowledge certainly at the time, that proceedings were to be filed, and I would think well before that, to the effect that the father wanted more time with the children, the mother did not tell the father of her application for transfer or even advise him after being offered a transfer of the proposed move until she was in a position to do so. The mother said that she intended to advise the father at a mediation which was arranged for October of 2011. At that time, there were difficulties, the parties being unable to reach any agreement.
The mother then explained that she was willing to explore other opportunities for time to be spent by the father with the children but, notwithstanding the father’s desire for more time, refused to really negotiate any other arrangements for a period of 18 months. She, I thought rather flippantly, indicated that extended arrangements could be explored “at the trial”, but I gained the distinct impression that the mother was minded to limit, as much as possible, the father’s opportunity for time with the children, perhaps with some knowledge, that if there were limitations on the time to be spent by the father with the children, then it would be easier for her to seek the move that was detailed in her response, filed in relation to the application brought by the husband.
The mother, I thought rather gratuitously, indicated that she had offered, “bits of extra time”, but the fact was that, whilst there was time offered on occasions, they seemed almost entirely to fall on occasions when the mother would know from the father’s roster arrangements that he would not be available to spend with the children and then would insist that if the father were not present, that the children would be required to be returned to her.
I gained the impression, that the mother, even when being cross-examined, was still seeking to provide some control and limitation on the father’s time to be spent with the children. When she was specifically cross-examined about the extra time sought by the father and her failure to provide extra time, she indicated that if that was to occur, it would need to be explored. I thought that was a less than sincere answer.
The mother knew that the father had been, for a period of a year and a half, seeking more time. The mother knew that the hearing would be the determinant in relation to what time was to be spent by the father with the children and whether there would be increases and was quite comfortable to see there being limitations on time, arising from different actions by her.
It was interesting that he mother expressed a concern that extra time with the father would involve extra travel. As was emphasised by counsel for the father, that flew in the face of her determination, if the father for example, were away for business on occasions when the children were with him, then to require the children to travel on a Tuesday and a Thursday for a return to her. That was notwithstanding that the father’s wife was available to care for the children and it was clear that she was capable of providing care and she had a positive relationship with the children.
The mother’s answers in relation to trying to explain that were, I thought, disingenuous. The mother said that she had concerns about morning and after-school care arrangements and how they might be affected and then indicated that the children seemed okay with that travel but not with other travel that might have been suggested by the father with regard to time being spent by him with the children.
I, unfortunately, gained the impression that the mother was not as concerned with the children as concerned with her determination to achieve her own goals in relation to the ultimate outcome of these proceedings and, perhaps more specifically, to continue to exert control over the father’s time with the children and, in particular, the interaction that Ms K might have with the children, on occasions when the father was not present.
The matter before the court proceeded in June of 2013. It was nearly two years after the proceedings were brought by the father. The mother only at the hearing conceded that if she were to remain in the (omitted) area, a six-night/eight-night arrangement in relation to care would be probably appropriate. However, when pressed as to whether that could start immediately pending any determination in the matter, she indicated that she would be concerned that there would, “need to be a graduated plan”.
The fact was that the mother knew exactly what the father sought in relation to this matter. The mother knew that the father was capable, as was his wife, in providing in all respects for the children, but the mother also knew that if there were more time available for the father to spend with the children, that it would be perhaps more difficult for her to achieve her own goals, in relation to the matter.
I gained the distinct impression that the mother was obstructive for the sake of achieving those goals and did so without any consideration of the interests of the children and the furtherance of their meaningful relationship with the children. The mother would not even immediately consider some form of increase from four nights to five nights pending determination in relation to this matter, and the unfortunate and overriding impression I gained was that all of those decisions were specifically designed to facilitate the mother’s wish, in relation to a move.
The mother and the father, as I have indicated, both have on occasion acted inappropriately in relation to arrangements with regard to parenting. The mother, unfortunately, gave me, however, a more definite impression that she valued her relationship and interaction with the children far more significantly than she valued the father’s relationship with the children. The mother repeatedly indicated the importance to the children of their relationship with Mr S and his sons but only grudgingly acknowledged the importance of the father and his wife as well as the children’s young brother as significant to the children.
The mother was cross-examined about the complaints that she made. She detailed in her material concerns about the father not being able to attend all school events and dance concerts, though, of course, his mother, who was what was described as a “dance mum”, had been heavily involved in such activities and had been involved to the same extent prior to separation as post separation.
The mother was asked what was wrong with the father not being able to attend all activities because of his work, and she acknowledged that there was nothing wrong with that but then, I thought rather strangely, indicated that because he hadn’t attended some events in (omitted), there would be no difference in his non-attendance in activities if she were able to relocate with the children to the (omitted), because he would have the same opportunities to attend if he made the move to the (omitted) or was able to arrange attendance there.
Again, I thought the mother was insincere in such arrangements and proposals put by her and failed to take into consideration the enormously greater difficulties and expense in such arrangements being put into place.
The mother was cross-examined at length about the settled nature of the arrangements in (omitted). She acknowledged that Y had only ever lived in (omitted), that the children had only ever attended the one particular school that Y had in this year the same teacher as X had had in previous years, and that the children had associations with doctors and other professionals here that were not in place at the (omitted).
Finally, when all of those points were gone through the mother was asked to acknowledge that the children’s entire lives were in (omitted). She rather surprisingly indicated that she did not agree and went on to indicate that a significant part was the fact that “Mr S and his children formed a massive part of the children’s lives”. She was asked, however, to acknowledge, whether that was the case or not, that there were a lot of other people who loved the children and were involved with the children in all aspects of their lives in (omitted) and that if a move was to occur, then that interaction with the children would be lost to them. She would not acknowledge that that would be the case and simply indicated that there would be others at the (omitted) that would fill in those gaps.
The mother seemed determined to achieve her own goals. She would not acknowledge, even when the evidence was overwhelming, that there would be effects upon the children. The mother insisted that Mr S and his sons were similarly attached to X and Y to the same degree that their brother, Z, was attached. The mother insisted that the children had, as she put it, “a real life at the (omitted)” but when pressed acknowledged that they only had two-week holiday periods there since the relationship with Mr S had developed. The mother finally conceded at best, that they had “a meaningful life in both places”.
The mother was simply determined to achieve her own objectives in relation to a transfer to the (omitted) and to have the children transfer with her. Interestingly, she was able to enumerate at length what she said would be the advantages of a move to the (omitted) with the children. She emphasised that the children would be living with a mother who was content, that there were, as she put it, “great activities such as football, dance, and Nippers available at the (omitted)”.
When challenged that all such activities were also available in (omitted) she, grudgingly I thought, acknowledged that that was the case but then went on to emphasise that there were many other and different activities also available and that there would be financial advantages in having only one household rather than two, as was presently the case.
The mother indicated that her parents would be moving, but it was noted that that was stated in her first affidavit filed in support of these proceedings in November of 2011 and in June of 2013, over 18 months later, the move had not occurred.
The mother had many reasons for a move to occur, but was certainly not able or willing to provide reasons or indicators, of the advantages to the children of remaining in (omitted). She started the indication of advantages by saying, “I know they’ll be in a household where their mother is not happy. They will be physically close to their father, their step-mother and half-brother” and indicated that they would be able to remain at the same school that they had been at and would be able to see extended family in (omitted).
The disadvantages in (omitted) were emphasised by the mother as “a big disadvantage in that they would have an unhappy mother” and further that they would be unhappy in not being able to go to the (omitted).
As I have repeatedly said, the mother was determined to achieve her own goals, notwithstanding that there were clear difficulties associated with that occurring. The impression I gained was that the mother was looking for all of the reasons to satisfy herself as to why she should go and failed to appreciate in any way the significant effects upon the children of a move being facilitated.
The mother was quick to stress her own concerns, particularly with regard to her capacity to parent the children, if she were not granted leave to relocate and emphasised the emotional toll that would be placed upon her, if that were the case. The mother, however, when challenged in relation to some of the actions taken by her, seemed to be particularly opportunistic with regard to those concerns.
I say that in light of the fact that there was clear evidence of the mother being made aware of the listing of the hearing of these proceedings and very quickly, taking steps to approach her doctor with regard to the stress that she said she was experiencing. Whilst the mother said that there had been previous instances where she had sought assistance in relation to that stress, and I accept that that was the case, I unfortunately, did form the view that the mother saw attendances with medical professionals, including her psychologist, as a means of justifying or reinforcing the position that she took, in relation to the matter.
Similarly, the mother, to some extent, like the father, seemed to minimise her own involvement in any difficulties that had occurred between the parents and respective partners, as a result of the breakdown in the relationship, without any real consideration of the effect of her actions upon the children. The prime example of that is one that I touched upon previously and related to the mother’s insistence that the children be returned to her, in circumstances where the father was not present, though it was clear that Ms K was available to provide for the children.
Only when finally pressed about those issues, did the mother acknowledge, as she noted in cross-examination, that she did not have concerns about Ms K’s capacity to provide for and to care for the children, but rather, there were issues that arose from her having been “hurt and devastated”. I have no doubt whatsoever that that is exactly the feeling that the mother has in relation to this matter, but what is troubling is that whilst that hurt, no doubt, exists, the mother was not prepared, until pressed, to acknowledge that there was more than adequate competency and ability vesting in the father and Ms K, to provide for the children.
Rather, she saw it as her right to have the children in her care, on occasions when the father was not present, rather than to consider, perhaps, the bigger picture of the effects upon the children of being required to be driven to and from various homes at different times, in circumstances that could have only elicited in the children a concern, perhaps, that the father or, more particularly, their step-mother, was not capable, or appropriate, to provide care for them.
The mother and the father have both engaged in behaviours that give rise to concerns with regard to their capacity, in the future, to ensure that one or the other will be more fully involved in the relationship with the children. One of the prime considerations that arose in relation to this matter, was the capacity of each parent, dependent upon the circumstances that might finally occur, to foster and develop a relationship with the other parent, or, more particularly, with others significant in the life of the children, including, of course, both Ms K and Mr S.
The impression that I gained in that regard was, clearly, that the father and Ms K were certainly more willing, or aware of the importance of the children having the opportunity for interaction, in a non-confrontational way, with both parents and others significant in their lives, than was the case with either the mother or Mr S.
The mother, unfortunately, gave me the impression that she was quick to lay blame at failures on the part of the father, without recognising that many of the difficulties that she now complained of, were as a direct result of her decisions, perhaps, even, on occasion, unknowingly made by her, which led to difficulties for the children. Issues with regard to sporting and cultural participation for both of the children, but particularly X, are prime examples of such circumstances arising.
The mother was challenged, in particular, by counsel for the Independent Children’s Lawyer, to consider the effects upon the children of the changes that she proposed, with regard to their future parenting, including living at the (omitted), and only having limited opportunities for interaction with the father. The mother was, unfortunately I thought, evasive in attempting to provide answers to the questions about the possible changes, including, particularly, changes to school, home, and opportunities for interaction with the father, Ms K, and other family members, significant in relation to the proceedings.
Quite simply, the mother had determined what she considered to be most appropriate for her and by extension, she says, for the children, without considering, from the children’s perspective, what might be a more appropriate arrangement for their parenting. The mother, I find, lacked insight into the effects of her behaviours upon the children, and, certainly, failed to appreciate, or was not willing to appreciate the long term effects on the children of separation from their father.
Whilst I have no doubt as to the mother’s capacity to provide for these children, and to meet their day-to-day needs, I would indicate, here, that I do, unfortunately, have a particular concern with regard to the mother’s true appreciation of the children’s attachment to their father, and others significant to their lives in the (omitted) area, as well as any real confidence in the mother’s determination when circumstances call for her to do so, to foster the relationship between the father and the children, particularly if the mother were to relocate with the children from (omitted).
THE FAMILY REPORT
I turn, now, to the evidence of the report-writer, Mr H. Mr H prepared a report at the request of the Independent Children’s Lawyer, which report is dated 2 December 2011, and is annexed to the affidavit of Mr H of 9 December 2011. Mr H was asked, at the commencement of his evidence, whether he had had the opportunity to consider the further evidence relied upon by each of the parties for the hearing, and whether that further evidence had, in any way, affected the recommendations that he had made in his report.
Mr H indicated that he had had that opportunity, and that his recommendations remained the same. The recommendations were contained in paragraphs 61 through 63 of the report, and are in these terms:
61.I would therefore respectfully recommend that if Ms Brass does not relocate to the (omitted) that the time the children spend with their father should increase to an equal shared care arrangements.
62.I would also respectfully recommend that if Ms Brass does wish to relocate to the (omitted) that the children live with the father and spend time with the mother as she has proposed but in reverse, in other words they travel to the (omitted) on one weekend a month and there is a possibility that Ms Brass could travel to (omitted) also on a monthly basis which would result in the children spending time with their mother on a fortnightly basis.
63.I would also recommend that travel costs be shared regardless of the outcome.
Mr H was challenged by counsel for the mother about his methodology used in relation to the preparation of the report and, in particular, the suggestion, as it was put, that the children should remain in (omitted), because it was the mother who had determined that there would be a significant change, as a result of her wish to relocate with them to the (omitted).
Mr H denied that that was the case and, in answer to questions directed to him by counsel for the father, indicated specifically that his recommendations in relation to the children remaining in (omitted) was premised upon the basis of that being, what he considered to be in the best interests of the children. Mr H emphasised, in that regard, that he was of the view that both parents were able to adequately and properly parent the children, but noted, in particular, that on the current evidence, it was clear that the children were well-settled and flourishing in (omitted).
Mr H emphasised the fact that any changes, whatever they might be and however they might occur, would cause what he described as, “significant loss” for the children, and it was one of the reasons that he recommended against a move, it being the case that if there was a move there would be that significant loss. But if the children did not leave (omitted), even if the mother were to move, though it does not appear that that would be the case, if I understand her evidence correctly, then at least there would be less loss experienced by the children because there would be the consistency or stability available from remaining in (omitted) and surrounds.
Mr H certainly, in cross-examination on the part of the father, emphasised the importance of stability, and whilst he acknowledged that there could certainly be issues that arose as a result of change, he accepted that the children were well-adjusted and that in all likelihood they would be able to adjust to such changes, particularly given the particular abilities of both of the parents.
As I noted, a more direct challenge to the recommendations of Mr H and to the report generally came from the mother, and that is perhaps understandable, in light of the fact that it was the mother who sought the opportunity to move with the children, and that was recommended against by Mr H. Mr H, however, when challenged in relation to his methodology and his recommendations I thought remained staunch in his professional opinion and noted a number of matters which were, I thought, significant in relation to that issue.
In particular, it was emphasised that the difficulties in the relationship between the parents could be destructive from the perspective of the wellbeing of the children, and that in situations such as the mother emphasised, with there being very poor communication, that that would be damaging. Mr H, however, indicated that his assessment of the situation was not that the conflict was so entrenched as to cause harm to the children, and that his strong feeling was that communication could be improved, but that it was not something that was irretrievably broken.
Noteworthy too was the indication by Mr H that the father was certainly more than capable of caring for the children, and as he put it, “to involve himself directly in equal shared care”. Mr H indicated a concern that the mother’s failure, over a period of some 18 months or more to facilitate more time with the father approaching equal time, which was generally what the father was seeking, on an 8/6 basis, was an issue more extending from the mother’s refusal to facilitate such an arrangement, than from a concern genuinely held as to the father’s lack of capacity to provide for the children.
Mr H was aware of the conflicts that had arisen between the parties. He was aware of the unfortunate behaviours of both the mother and the father relating to issues, for example, with regard to dance and the exchange of equipment, with regard to the sister’s wedding and the limited information provided in relation to it and certainly the lateness of the provision of information. But it was clear that Mr H did not see any of those issues as being matters which would preclude the real improvements available for the children by both parents having a more complete involvement in their lives.
The overriding impression that I got from Mr H was that the parties could do better and would do better, particularly with time and certainty being available. More particularly, his indication was that there was a concern with regard to the mother’s reluctance or, in fact refusal, to really facilitate increases in time. In particular, Mr H appeared most concerned that the mother had been aware of the father’s desire for more time, and though offering additional snippets of time, had not really been willing to facilitate periodic improvements and increases in the available time provided to the father.
I was generally assisted by the evidence of Mr H in relation to this matter. There were certainly criticisms made, particularly on the part of the mother, that Mr H had not fully explored all areas of concern, particularly with regard to the possible effects upon the children of them not being able to relocate, and flowing from that, the mother remaining in the (omitted) area, in a situation where she was not comfortable and therefore was less than fully able to provide for the needs of the children, particularly in relation to their emotional wellbeing.
However, if a report writer were required in every assessment to explore every possible avenue in relation to issues that might or might not become significant in a trial, then every report would be hundreds of pages long, and every report would require there to be an exploration of issues which may be of significance to one party or the other, but are assessed by experts as only peripheral to the real assessment required to be made by social scientists, relating to issues in relation to the best interests and the welfare of a child or children.
In this instance I am satisfied that Mr H properly and fully explored issues in relation to the parenting of the children and addressed, in light of this family and its particular circumstances, matters which related to the best interest and welfare of the children.
THE LAW
I turn now to the law and to the application of the law to the circumstances of this case.
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Similarly, the costs associated with transportation during the school term and school holidays may not initially appear to preclude time being able to be arranged, but it is not difficult to assess that quickly other costs would arise in relation to both parents’ households which would continue to place pressure on the availability of funds to facilitate transportation.
Quite simply, the practical difficulties and expense associated with the children continuing to spend time with their father on a regular basis would be enormously increased in the event of a move being allowed in terms of that sought by the mother.
Having had the opportunity of observing the mother and Mr S, as well as the father and Ms K, I have no concerns whatsoever as to the capacity of each family group to provide for the needs of the children, intellectually, or to meet the various issues that might arise with regard to the progress of the children. However, I am concerned as to the mother and Mr S’s capacity to provide for the children’s emotional needs. As I indicated in my commentary with regard to the various witnesses, my over-riding impression of the mother and Mr S was that they were determined to achieve what they wanted for themselves in their relationship and that there was little, if any, appreciation of the children’s close attachment to their father and the need for that to be fostered and developed.
That issue also arises when one considers the mother and Mr S’s attitude to the children and to the responsibilities of parenthood. There could be no concern that the mother and Mr S would meet the day-to-day physical needs of the children and, to at least some degree, to provide for their emotional and psychological needs. However, as is clear from my reasons so far, the mother and Mr S’s insight into the effect upon the children of separation from their father, as well as their brother, step-mother and other significant persons, is limited, and I would find, to a significant degree blinkered by their determination to foster their relationship only upon their terms.
Finally, when consideration is given to making orders that would be “least likely to lead to the institution of further proceedings”, I am firmly of the view that orders which allowed the mother to relocate with the children would be quickly followed by applications to vary the orders in relation to time to be spent with the father because of commitments or circumstances that had arisen at the (omitted), or alternatively would be followed by contravention applications relating to the children not being made available pursuant to any orders.
Clearly, in my assessment, when one considers the objects and principles, as well as the various matters to be looked at in determining what is in a child’s best interests, the mother’s proposal to relocate with the children to the (omitted) is not appropriate in relation to ensuring the children’s right to a meaningful relationship with both parents is fostered and developed.
Having considered those issues, it is important then to turn to the matters detailed in section 65DAA. Would equal time or substantial and significant time with each parent be in the best interests of the children, would it be reasonably practicable, and could it be facilitated, particularly when considering those matters set out in section 65DAA(5).
In my assessment, equal time would be in the best interests of the children, if the parties were in the same locality. If not able to be facilitated because of geographic considerations, then the factors with regard to whom the children should primarily live weigh heavily in favour of the father. In my assessment, he far more suitably appreciates the need to foster the relationship with the mother and the children than is the case from the mother’s perspective. Unfortunately, I gained the real impression that the mother was prepared to talk the talk, but not walk the walk when it came to facilitating time with the father or even more particularly, with the children’s step-mother. Her attitude was one of a proprietal right to have the children in her care and to limit the father’s interaction with the children so as to maintain her primary carer role.
Whilst I readily recognise the hurt and shock that the mother must have experienced at the time of finding the relationship existing between the father and Ms K, she has thereafter maintained a determined position to limit the father’s time with the children and to preclude any development of that time. I find that that position was adopted by her determinedly and specifically to enable her to more easily obtain leave to relocate with the children.
I am particularly comforted in that view when it is clear that the mother, within a very short time after separation, sought a transfer to the (omitted), but did not even discuss that with the father until after proceedings were instituted. Her suggestion that she would have raised it at mediation in my view falls flat, particularly when she was aware of the father’s continued wish to spend more time with the children and her stance of passively avoiding any such real increase in time.
For the reasons that I have given, therefore, I am satisfied that the proper orders to be made in relation to this matter are for the children to live with the father in the event of the mother relocating, but if the parties remain in the same locality, and the mother says that that would be her intent, then that the appropriate arrangements would be for the parents to spend equal time with the children. The orders of the court will therefore be as shown at the commencement of these reasons.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 14 October 2013
ANNEXURE A
CHILDREN’S ORDERS
That the children X born (omitted) 2004 and Y born (omitted) 2007 live with the parents as follows:-
(a)With the father in each alternate week from after school Friday to the commencement of school on the following Thursday;
(b)With the mother in each alternate week from after school Thursday to the commencement of school the following Friday.
That the children spend time with the father as follows:-
(a)For the Easter school holiday period in 2013 and each alternate year;
(b)In 2012 and alternate years thereafter for the entire June/July school holidays;
(c)In 2013 and alternate years thereafter for the entire September/October school holidays;
(d)For one half of the Christmas school holidays;
(e)On Father’s Day in each year should the children not otherwise be in the father’s care from 5.00pm on the adjacent Saturday until the commencement school on the following Monday;
(f)On each child’s birthday and the father’s birthday if the children are not otherwise in the father’s care, if it falls on a weekday from 5.00pm to 8.00pm and if it falls on a weekend for a period of five (5) hours to be agreed;
That the children spend time with and communicate with the mother as follows:-
(a)For the Easter school holidays in 2012 and each alternate year;
(b)In 2012 and alternate years thereafter for the entire September/October school holiday period;
(c)In 2013 and alternate years thereafter for the entire June/July school holiday period;
(d)For one half of the Christmas school holidays in each year;
(e)On Mother’s Day in each year should the children not otherwise be in the mother’s care from 5.00pm on the adjacent Saturday until the commencement school on the following Monday;
(f)On each child’s birthday and the mother’s birthday if the children are not otherwise in the mother’s care, if it falls on a weekday from 5.00pm to 8.00pm and if it falls on a weekend for a period of five (5) hours to be agreed.
That the mother be restrained from permanently relocating the children outside of the (omitted) area.
In the event that the mother relocates to the (omitted) as follows:-
That the children X born (omitted) 2004 and Y born (omitted) 2007 live with the father.
That the children live with, spend time with and communicate with the mother at all such reasonable times as the parties may agree and failing agreement as follows:-
(a)On any weekend when the mother is in (omitted) from after school Friday to Sunday afternoon upon the mother providing the father with seven (7) days’ notice of her intention to spend time with the children, and provided that the mother facilitates the children attending any extracurricular activities in which the children are participating;
(b)By telephone or Skype at any reasonable time;
(c)For the entire Easter school holiday period in each year;
(d)For the first half of the June/July school holiday period in even numbered years and the second half of the June/July school holiday in odd numbered years;
(e)For the entire September/October school holiday period in each year;
(f)During the Christmas school holiday period as follows:-
(i)In even numbered years with the mother for the first four (4) weeks to include Christmas Day;
(ii)In odd numbered years with the mother for the last four (4) weeks not including Christmas Day.
That the children spend time with the father as follows:-
(a)For the second half of the June/July school holiday period in even numbered years and for the first half of the June/July school holiday period in odd numbered years;
(b)During the Christmas school holidays as follows:-
(i)In even numbered years for the last two (2) weeks of the school holiday period;
(ii)In odd numbered years for the first two (2) weeks of the school holiday period to include Christmas Day.
When the children are with the mother for any extended holiday period the father to have telephone contact and/or Skype contact with the children at any reasonable time.
ANNEXURE B
IN THE EVENT THAT THE CHILDREN ARE PERMITTED TO RELOCATE TO THE (omitted)
LIVE WITH
The Children X born (omitted) 2004 and Y born (omitted) 2007 live with the Mother.
PARENTAL RESPONSBILITY
The parents are to have equal shared parental responsibility for the Children.
Without limiting the parental responsibility of either parent, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parent issue affecting the Children. For the purposes of these Orders, “Significant Parenting Issues: are:-
(a)Any medical or health matters concerning the Children undergoing any medical intervention by a medical practitioner or being prescribed any medication by a practitioner, with any medical reports to be provided to the other parent;
(b)Any medical or health matters 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 choice of the school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the Children’s school other than in respect of routine or administrative matters;
(d)Disciplinary matters other than a trivial nature;
(e)Matters concerning the social development and sporting activities of the Children;
(f)Matters concerning the religion or faith of the Children;
(g)Any intended change in the surname by which the Children are commonly known from that which appears on the Children’s birth certificate;
(h)Any changes to the Children’s living arrangements that make it significantly more difficult for the Children to spend time with either parent; and
Generally any other matter regarding the Children in respect of which a parent should be informed or consulted with respect to having regards to the provisions of Part 7 of the Family Law Act 1975 (as amended).
When exercising their equal shared parental responsibility, the Mother and the Father are to:-
(a)Advise each other, in writing whenever possible, about any issue that arises or decision that needs to be made;
(b)Invite the other Parent for their opinion;
(c)The other Parent is to respond promptly, in writing if possible;
(d)In the event of disagreement, the Mother and the Father are to attend medication with a mediator or family dispute resolution practitioner as soon as possible; and
(e)The Mother and the Father agreed that the written exchanges between them (as referred to in Orders 4(a), 4(b) and 4(c) may be produced to the mediator or family dispute resolution practitioner and to a Court in the event that proceedings are issued.
The parent with whom the Children are living at any time is to have responsibility for the day-to-day decisions affecting the Children.
TELEPHONE COMMUNICATION
The Mother will utilise established SKYPE and/or Facetime accounts in order for the Children to communicate with the Father at any such time should a request be made by the Children or the Father to do so.
HOLIDAYS AND SPECIAL DAYS
That the Children spend time with and communicate with the Father at all such reasonable times as the parties may agree and in particular as follows:-
(a)On any weekend when the Father is in the (omitted) from after school Friday to the commencement of school on Tuesday, upon the Father giving the Mother seven (7) days’ notice in writing that he intends to spend time with the Children.
(b)The Mother will accompany the Children to (omitted) to facilitate the Children spending time with the Father and extended family at least once per month to include long weekends, the Father’s birthday, Father’s Day and any other such special occasions.
(c)For the entire Easter gazette school holiday period in each alternate year.
(d)For one half of the June/July gazette school holiday period in each year.
(e)For the entire September/October gazette school holiday period in each year.
(f)For the first half of the Christmas gazetted school holiday period in odd numbered years and the second half of the Christmas gazetted school holiday period in even numbered years.
(g)Where the parents are in the same locality during the Christmas period, the Children shall spend time with the parents as follows:-
(i)The Children shall spend time with the Father from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day in odd numbered years and from 12 noon on Christmas Day until 12 noon Boxing Day in even numbered years.
(ii)The Children shall spend time with the Mother from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day in odd numbered years and from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day in even numbered years.
MACHINERY PROVISIONS
The parents authorise, by these Orders, the schools or day care centres attend by the Children to give each parent any information about the Children’s educational progress and other school related activities they may each request, and supply them with copies of school reports, photographs, certificates and awards obtained by the Children at the cost of the requesting parent.
During the time the Children are spend time with either parent, that parent shall:-
(a)Respect the privacy of the other parent and not question the Children about the personal life of the other parent;
(b)Speak to the other parent respectfully
(c)Not denigrate or insult the other parent in the presence of the Children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the hearing or presence of the Children; and
(d)Not discuss with the Children adult issues or discuss in the presence or hearing of the Children such adult issues.
10. The Mother and Father shall keep each other informed at all times of their residential and email addresses and mobile telephone number and inform the other parent of any change to those details within twenty-four (24) hours.
NOTATION
As a means of facilitating clause 7y, the parents agreed that one half of the Child Support payment made by the Father to the Mother will be placed into a joint bank account to assist with the payment of the Children’s airfares to (omitted).
IN THE EVENT THAT THE CHILDREN ARE NOT PERMITTED TO RELOCATE AND THE MOTHER REMAINS LIVING IN (omitted)
LIVE WITH
The Children X born (omitted) 2004 and Y born (omitted) 2007 live with the parents as follows:-
(a)With the Mother each fortnight from after school Tuesday to the commencement of school on the Friday of the second week;
(b)With the Father each fortnight from after school Friday of the second week to the commencement of school on the following Tuesday.
PARENTAL RESPONSIBILITY
The parents are to have equal shared parental responsibility for the Children.
Without limiting the parental responsibility of either parent, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parent issue affecting the Children. For the purposes of these Orders, “Significant Parenting Issues: are:-
(a)Any medical or health matters concerning the Children undergoing any medical intervention by a medical practitioner or being prescribed any medication by a practitioner, with any medical reports to be provided to the other parent;
(b)Any medical or health matters 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 choice of the school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the Children’s school other than in respect of routine or administrative matters;
(d)Disciplinary matters other than a trivial nature;
(e)Matters concerning the social development and sporting activities of the Children;
(f)Matters concerning the religion or faith of the Children;
(g)Any intended change in the surname by which the Children are commonly known from that which appears on the Children’s birth certificate;
(h)Any changes to the Children’s living arrangements that make it significantly more difficult for the Children to spend time with either parent; and
Generally any other matter regarding the Children in respect of which a parent should be informed or consulted with respect to having regards to the provisions of Part 7 of the Family Law Act 1975 (as amended).
When exercising their equal shared parental responsibility, the Mother and the Father are to:-
(a)Advise each other, in writing whenever possible, about any issue that arises or decision that needs to be made;
(b)Invite the other Parent for their opinion;
(c)The other Parent is to respond promptly, in writing if possible;
(d)In the event of disagreement, the Mother and the Father are to attend medication with a mediator or family dispute resolution practitioner as soon as possible; and
(e)The Mother and the Father agreed that the written exchanges between them (as referred to in Orders 4(a), 4(b) and 4(c) may be produced to the mediator or family dispute resolution practitioner and to a Court in the event that proceedings are issued.
The parent with whom the Children are living at any time is to have responsibility for the day-to-day decisions affecting the Children.
HOLIDAYS AND SPECIAL DAYS
The Children will spend time with and communicate with the Parents as follows:-
(a)The Children will spend time with the Father for the first half of the Easter gazette school holidays in odd numbered years and for the second half of the Easter gazette school holidays in even numbered years.
(b)The Children will spend time with the Mother for the first half of the Easter gazette school holidays in even numbered years and for the second half of the Easter gazette school holidays in odd numbered years.
(c)The Children will spend time with the Father for the first half of the June/July gazette school holiday period in odd numbered years and for the second half of the June/July gazette school holiday period in even numbered years.
(d)The Children will spend time with the Mother for the first half of the June/July gazette school holiday period in even numbered years and for the second half of the June/July gazette school holiday period in odd numbered years.
(e)The Children will spend time with the Father for the first half of the September/October gazetted school holiday period in odd numbered years and for the second half of the September/October gazette school holiday period in even numbered years.
(f)The Children will spend time with the Mother for the first half of the September/October gazette school holiday period in even numbered years and for the second half of the September/October gazette school holiday period in odd numbered years.
(g)Where the parents are in the same locality during the Christmas period, the Children shall spend time with the parents as follows:-
(i)The Children shall spend time with the Father from 12.00 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years and from 12 noon on Christmas Day until 12 noon Boxing Day in even numbered years.
(ii)The Children shall spend time with the Mother from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day in odd numbered years and from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day in even numbered years.
(h)Should the Children not be in the care of the Father on Father’s Day, the Children shall spend time with the Father from 5pm the day prior to Father’s Day until the commencement of school after Father’s Day.
Should the Children not be in the care of the Mother on Mother’s Day, the Children shall spend time with the Mother from 5pm the day prior to Mother’s Day until the commencement of school after Mother’s Day.
(j)Should the Children not be in the care of the Father on the Father’s birthday, the Children shall spend time with the Father from close of school until the following morning if such birthday falls on a school day and if a non-school day, from 5pm the evening prior to the Father’s birthday until the morning after the Father’s birthday.
(k)Should the Children not be in the care of the Mother on the Mother’s birthday, the Children shall spend time with the Mother from close of school until the following morning if such birthday falls on a school day and if a non-school day, from 5pm the evening prior to the Mother’s birthday until the morning after the Mother’s birthday.
(l)Should the children not be in the care of the Father on either child’s birthday, the Children shall spend time with the Father for such time as is agreed between the parents and if no agreement can be reached, as follows:
(i)If a school day, between the hours of 3.00pm and 8.00pm;
(ii)If a non-school day, between the hours of 12 noon until the following morning.
(m)Should the Children not be in the care of the Mother on either child’s birthday, the Children shall spend time with the Mother for such time as is agreed between the parents and if no agreement can be reached, as follows:
(i)If a school day, between the hours of 3.00pm and 8.00pm;
(ii)If a non-school day, between the hours of 12 noon until the following morning.
MACHINERY PROVISIONS
The parents authorize, by these Orders, the schools or day care centres attended by the Children to give each party any information about the Children’s educational progress and other school related activities they may each request, and supply them with copies of school reports, photographs, certificates and awards obtained by the Children at the cost of the requesting parent.
During the time the Children are spending time with either parent, that parent shall:-
(a)Respect the privacy of the other parent and not question the Children about the personal life of the other parent;
(b)Speak to the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence of the Children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the hearing or presence of the Children; and
(d)Not discuss with the Children adult issues or discuss in the presence or hearing of the Children such adult issues.
That Mother and Father shall keep each other informed at all times of their residential and email addresses and mobile telephone number and inform the other parent of any change to those details within twenty-four (24) hours.
ANNEXURE C
That all previous Orders and Parenting Plans be discharged.
PARENTAL RESPONSIBILITY
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children X born (omitted) 2004 and Y born (omitted) 2007 (“the children”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
(b)The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
EXCHANGE OF INFORMATION
That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address, email address, landline (if any) and mobile telephone number and inform the other parent of any change to those details within twenty-four (24) hours of such change;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the children and authorize that practitioner to provide the other parent with information that they are lawfully able to provide about the children;
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorizes any treating medical practitioner to release the children’s medical information to the other parent.
That the parent authorize, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting 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 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, their partner or family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent, their partner or family in the hearing or presence of the children; and
(d)Not speak to the children about adult issues or speak about adult issues in the hearing or presence of the children.
That the parents use the “Our Children Australia” website to facilitate communication of issues in relation to the children and facilitate their joint parenting. Each parent is to bear their own costs of subscription to that service.
TIME WITH THE PARENTS
Time During School Term
That the children live with each parent in an equal time arrangement with changeovers taking place on Friday afternoons at the children’s school at the conclusion of the school day.
Time on School Holidays
10. That for the purposes of school holiday period the children shall live with their parents as follows:
i.For the first half of the Easter School holiday period in even numbered years with the Mother and in odd numbered years with the Father;
ii.The second half of the Easter school holiday period in odd numbered years with the Mother and in even numbered years with the Father;
iii.For the entire June/July school holidays in even numbered years with their Father and in odd numbered years with their Mother;
iv.For the entire September/October school holidays in odd numbered years with their father and in even numbered years with their Mother;
v.For the Christmas school holiday period as follows (save for the special occasions referred to in these orders):
A.In even numbered years, with the Father for the first half.
B.In odd numbered years with the Father for the first, third and fourth week and with the Mother for the second, fifth and sixth week.
(b) That unless otherwise specified, the school holiday time shall commence:
i.When a parent’s time falls in the first half of the holidays, from after school on the day the school terms finishes. Time with that parent shall conclude on the afternoon on the day calculated to be half of the holidays;
ii.When a parent’s time falls in the second half of the holidays, from the afternoon on the day calculated to represent half of the holidays. Time with that parent shall end on the morning of the day the school term commences;
iii.School holidays shall be deemed to commence from the evening on the day the children’s school term finishes and conclude on the morning the children return to school; and
iv.The number of nights in each school holiday period is to be used to calculate one half of the school holiday period. If there is an uneven number of nights the Mother shall retain the additional night in even numbered years and the Father in odd numbered years.
Time on Special Occasions
11. That the children shall spend time with and communicate with their parents on special occasions as follows:
(a)For the purpose of the Christmas school holiday period, provided the parents are in the same locality:
i.In even numbered years, with the Mother from 5.00pm on 24 December until 12.00 midday on 25 December and with the Father from 12.00midday on 25 December until 5.00pm on 26 December; and
ii.In odd numbered years, with the Father from 5.00pm on 24 December until 12.00 midday on 25 December and with Mother from 12.00 midday on 25 December until 5.00pm on 26 December.
(b)With the Mother on Mother’s Day weekend from after school on Friday until before school on Monday (regardless of whether that weekend would be usually spent with the Father pursuant to these orders);
(c)With the Father on Father’s Day weekend from after school on Friday until before school on Monday (regardless of whether that weekend would be usually spent with the Mother pursuant to these orders).
(d)On each child’s birthday, Z’s birthday and a parent or step-parent’s birthday if the children are not otherwise in a parent’s care, then time with that parent, if it falls on a weekday from after school until school the following morning or 9.00am and if it falls on a weekend for a period of five (5) hours as agreed.
COMMUNICATION BY TELEPHONE OR SKYPE
12. With the Parent whom the children are not living with on the day, by telephone or via Skype on:
(a)The birthday of the child between 6.30pm and 7.00pm;
(b)The birthday of that parent, step-parent or sibling, between 6.30pm and 7.00pm;
(c)Easter Sunday between 9.00am and 9.30am;
(d)Christmas Day between 9.00am and 9.30am (if the parents are not in the same locality).
13. That the children shall communicate with their parents on the telephone or via Skype at such times as the children reasonably request, but otherwise each evening between 5.00pm and 7.00pm and in relation to such communication, the parent with whom the children are living shall:
(a)Ensure that the children are available to receive the telephone call during this time;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the other parent misses the telephone call from the children or the children are unable to call; and
(c)Ensure that the children have privacy during the conversation.
COLLECTION AND DELIVERY
14. That except as otherwise agreed in writing between the parents, changeovers will take place at the children’s school.
15. Changeovers occurring outside of the school term are to occur at the parents respective homes with the parent commencing time with the children collecting the children from the other parent’s home.
FUTURE FAMILY DISPUTE RESOLUTION
16. On the occasions stipulated below, the parties will attend at a Commonwealth Family Relationships Centre for the purposes of participating in mediation about the parenting of the children.
17. When the parties attend mediation or dispute resolution as required by paragraph 16:
(a)They shall attempt in good faith to reach agreement having regard to the best interests of the children with respect to the parenting arrangements for the children and the time that the children spend with each parent.
(b)Any agreement that the parties reach may alter the operation of these orders as they relate to parenting, provided that it is in writing signed by each party, stipulates that it operates to alter these orders and stipulates that it is intended to operate as a parenting plan within the meaning of Division 4 of Part VII of the Family Law Act 1975 or any statutory equivalent to that Division.
(c)If an agreement of the kind mentioned in paragraph 17(b) is not reached, then these orders will continue to operate.
18. The parties will attend mediation:
(a)At a mutually convenient date on which an appointment for mediation can be arranged at a Commonwealth Family Relationships Centre that is on, or within 30 days after, of each anniversary of this Order unless both parties agree in writing that such mediation is not necessary;
(b)Six (6) months prior to the children each commencing their secondary schooling if the parents cannot otherwise agree on the High School that the children will attend;
(c)On any additional occasions that the parties agreed in writing; or
(d)Where the parties are unable to resolve a conflict by normal discussion, they both agree to use the following conflict management step before using other means:
i.One party can elect to send the other a short written note which states “I believe that we have unresolved conflict over… Pursuant to our existing parenting orders I request that you return this letter, signed and dated within 7 days. I will then arrange for us to meet with a mediator or a counsellor at a mutually convenient time within the following 14 days with a view to defining the perceived problems and considering a range of possible solutions.”
ii.If the other party does not return the signed and dated letter, either party is free to consider what other avenues are available to address the conflict.
(e)The parties shall pay such mediation fees as are required of each of them by the Family Relationships Centre at which they attend mediation, but will otherwise bear their own expenses with respect to mediation.
19. Before an Application is made to a Court for a variation of these Orders to be taken into account the changing needs and/or circumstances of the children or the parties, each party is to take steps referred to in paragraph 17 and 18.
DISCHARGE OF INDEPENDENT CHILDREN’S LAWYER
20. That the Independent Children’s Lawyer by discharged.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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