FRANKE & LONG
[2011] FamCA 185
•18 March 2011
FAMILY COURT OF AUSTRALIA
FRANKE & LONG [2011] FamCA 185
FAMILY LAW - CHILDREN- parental responsibility – best interests - with whom a child lives and spends time – whether equal time is appropriate – determined that an equal shared parenting arrangement to continue
Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (2), (3), (4), 61C, 61DA, 65DAA MRR v GR [2010] HCA 4
British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2
APPLICANT: Mr Frank
RESPONDENT: Ms Long
INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann
FILE NUMBER: CSC 703 of 2008
DATE DELIVERED: 18 March 2011
PLACE DELIVERED: Hobart
PLACE HEARD: Cairns
JUDGMENT OF: Benjamin J
HEARING DATE: 14, 15,16 & 17 February 2011 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Fellows
SOLICITOR FOR THE APPLICANT: Williams Graham Carman
COUNSEL FOR THE RESPONDNET: Ms Wilson
SOLICITOR FOR THE RESPONDENT:: O’Reilly Stevens Bovey Lawyers
COUNSEL FOR THE
INDEPENDENT CHILDREN’S LAWYER:
Mrs Benson
SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER:
Lehmann Featherston Lawyers Orders
All previous parenting orders in respect of C born November 2003 and J born June 2005 (“the children”) are discharged.
The mother and the father have equal shared parental responsibility for the children.
During the school term, the children spend equal time with each parent in that they will live with the parents on an alternate weekly basis in Town 1 with changeover to occur at the conclusion of school each Friday. If the children are with one parent for the school holiday week preceding the start of term, the children will be taken to school by that parent on the first day of term and shall live with the other parent for the remainder of that week. The week about arrangement shall commence on the first Friday of each term with the children to live with the parent with whom they spent the last week of the school holiday.
During the school holidays:-
a) The children live with the father for the first half and the mother for the second half of both the Queensland Easter/Term 1 and the remainder of the Christmas school holidays periods in 2011 (being the 2011 Christmas/ 2012 New Year holiday) and each alternate year thereafter.
b) The children live with the mother for the first half and the father for the second half of both the Queensland Easter/Term 1 and the remainder of the Christmas school holiday periods in 2012 (being the 2012 Christmas/ 2013 New Year holiday) and each alternate year thereafter.
c) In 2011 and each alternate year thereafter, the mother may elect to take the children for the whole of either the June/July or September/October school holidays, provided that the mother advises the father, in writing, by 2 April in each such year of her intention to have the children in the particular school holiday period and the children will spend the remaining mid-year school holiday period with the other parent. If the mother does not make an election by 2 April in each year then the children shall spend the June/July school holiday period with her and the September/October school holiday period with the father.
d) In 2012 and each alternate year thereafter the father may elect to take the children for the whole of either the June/July or September/October school holidays, provided that the father advises the mother, in writing, by 2 April in each such year of his intention to have the children the particular school holiday period and the children will spend the remaining mid year school holiday period with the other parent. If the father does not make an election by 2 April in each year then the children shall spend the June/July school holiday period with him and the September/October school holiday period with the mother.
e) The children will live with the father from the last day of school in December 2011 to 9.00am on 26 December 2011 and shall live with the mother from 9.00am on 26 December 2011 to 9.00am on 2 January 2012 and each alternate year thereafter.
f) The children will live with the mother from the last day of school in December 2012 to 9.00am on 26 December 2012 and shall live with the father from 9.00am on 26 December 2011 to 9.00am on 2 January 2013 and each alternate year thereafter.
g) Each parent is permitted to travel intrastate and interstate with the children during school holiday periods, including trips by the mother and children to enable the maternal grandparents to spend time with the children.
5.Notwithstanding these orders, if the children are not already in the father’s care then the children will also spend time with the father as follows:-
a)On the children’s birthdays if on a non-school day from 9.00am to 2.00pm and on a school day from after school until 6.00pm.
b)On the father’s birthday if on a non-school day from 9.00am to 9.00am the following day and if on a school day then from after school until 9.00am the following day.
c)On Father’s Day from 9.00am until 9.00am the following day.
6.Notwithstanding these orders, if the children are not already in the mother’s care then the children will also spend time with the mother as follows:-
a)On the children’s birthdays if on a non-school day from 9.00am to 2.00pm and on a school day from after school until 6.00pm.
b)On the mother’s birthday if on a non-school day from 9.00am to 9.00am the following day and if on a school day then from after school until 9.00am the following day.
c)On Mother’s Day from 9.00am until 9.00am the following day.
7.If changeovers are not able to be effected at the children’s school and/or day care then they will occur at Park 1 in Town 1 or such other place as is agreed between the parties in writing.
8.If either party is not available to effect changeover for the children then the mother is permitted to use her brother Mr G, her sister-in-law Ms V or her sister Ms A for this purpose and the father is permitted to use his sister Ms B, his brother-in-law Mr R or either or both of his parents Ms and Mr F to do so.
9.Each parent will ensure that the children speak to the other parent at least twice during the weeks that the children are with the other parent, with the parent with whom the children are living to cause the children to initiate the call and those calls shall be completed by each Wednesday of each week.
10.Both parties will continue to communicate in relation to the children by way of the communication book which will be supplemented by email and text messages. In the event that the parent receives an email message and/or text message about the children’s arrangements, the other parent will respond by email and/or text message.
11.Each party shall keep the other advised at all times of their current residential address and land line and mobile telephone numbers.
12.Both parents and/or either one of them may attend at the children’s school, day care and/or after school care within the guidelines of that institution and to attend parent/teacher events, parades, school and extracurricular activities regardless of whose care the children are in at that time.
13.Both parents and/or either one of them may obtain information and documents from each child’s school, day care and/or after school care, including newsletters, reports and education materials relevant to the children’s welfare.
14.Both parents and/or either one of them may attend upon and obtain information and reports from any treating doctor or health professional regarding the welfare of the children.
15.Neither party shall denigrate the other in the presence or hearing of the children.
16.The mother be restrained from enrolling the children in any extracurricular activity or out of hours school-based activity which will impact upon the father’s time with the children, without the written agreement of the father, and otherwise each parent will keep the other informed of any activities in which they enroll the children.
17.The parents shall ensure that the children attend Lifeline counseling or similar for the purpose of group counselling/therapy to help them cope with their parents’ relationship breakdown.
18.IT IS NOTED:
a)the children’s general practitioner in Town 1 is Dr C.
b)the father shall inform the mother of the name and contact details of the children’s general practitioner whilst the children are in the father’s care.
c)the children’s dentist in Town 1 is Dr R of Dental Practice 1.
d)the children’s dentist in District 1 is Dr B.
e)the children will attend W Primary school until the conclusion of Year Seven (7).
f)the children shall attend swimming at swimming school 1 and ballet at ballet school 1.
g)the father is not required to take the children to ballet school 1 on either Friday, Saturday or Sunday.
h)both parents will take all necessary steps to arrange for the children to attend ballet lessons mid-week during school term.
i)both parties will provide for the needs of the children in their own household such as uniforms, ballet shoes and costumes, swim wear and other goods.
j)both parents shall be financially responsible and pay an equal share concerning the children’s day-to-day living arrangements, including but not limited to school fees, day care, ballet, swimming lesson and all extracurricular activities.
19.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
20.If either parent seeks costs orders in respect of the parenting proceedings then such application must be made within 28 days of the date of these orders.
21.The appointment of the Independent Children’s Lawyer be terminated from 28 days after the date of these orders.
IT IS CERTIFIED
22.Pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel.
IN RESPECT OF THE OUTSTANDING PROPERTY PROCEEDINGS IT IS DIRECTED
23.The legal practitioner acting for each of the parents shall forward a copy of these orders by ordinary prepaid post, email or document exchange to the address for service of the second and third respondents within fourteen (14) days from the date of these orders.
24.These proceedings be listed before a Registrar for trial directions on 20 April 2011 at 2.00pm.
25.A copy of these orders be forwarded by the solicitor for the applicant mother to the second and third respondents.
26.For a period of six (6) weeks from the date of this order, leave be given for the parties, or any one of them, to file an application in a case for the purpose of any application to remove the matter from the docket of Benjamin J.
IT IS NOTED that publication of this judgment under the pseudonym Franke & Long is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT CAIRNS
FILE NUMBER: CSC 703 of 2008
Mr Franke Applicant
And
Ms Long Respondent
And
Independent Children’s Lawyer REASONS FOR JUDGMENT
INTRODUCTION
1.Mr Franke (“the father”) and Ms Long (“the mother”) have two children, C (aged seven at the time of the hearing) and J (aged 5 and a half at the time of the hearing). The mother and father have been unable to agree on the parenting arrangements for their children.
2.The parties commenced living together in about 1999 in District 1. They lived near Town 2 until they separated in about July 2007 (there were other issues in years that proceeded their separation but they are not relevant to this determination).
3.After separation the mother moved to Town 1 to live with the children.
4.In March 2009 the parents agreed to an arrangement where the children spend equal time with each of them and the children lived in Town 1 and attended W Primary School (which is the school the children have attended since they commenced school). These were interim orders.
5.The father wants the children to live in the Town 2 area. His preferred position is that the mother move back to the Town 2 area and the children spend equal time with each parent. His alternative preference if the mother remains living in the Town 1 area, is that the children live primarily with him and spend alternate weekends and half of the school holidays with the mother. Alternatively, he seeks orders that the mother live at either Town 3 or Town 4 and the parents continue caring for the children on an equal time basis.
6.The father’s concerns include the need for him to live in the Town 1 area and he says that if he is required to remain living mainly in Town 1, it could only continue for a year or two. After that time he would need to consider other arrangements.
7.The mother says that she wants the current parenting arrangements to continue. That is that the children live primarily in Town 1 for one half of the time with their father and the other half with the mother. She wants them to continue attending their same school in Town 1.
THE ISSUES
8.The issues are primarily where the children should live and any consequential orders. There is no issue about parental responsibility.
BACKGROUND
9.It is important to have some understanding of the geography and the circumstances of each of the parties to be aware of the context of this dispute. Town 1 is in far North Queensland at the base of the District 1 plateau. Town 3 is the first town at the top of the District 1 escarpment and is about thirty to forty minutes by car to Town 1 down a winding road. It is also about thirty to forty minute drive from Town 3 to Town 2.
10.The father lives at his parent’s property at Town 5, which is about eighteen kilometres North West of Town 2.
11.In terms of distance, it would take about an hour and a quarter to drive from the father’s home to the children’s school in Town 1. The return trip would, in normal circumstances, be two and a half hours and to do that trip twice a day would take about five hours of driving.
12.The father has spent most of his life working on his parents’ farm. Part of that was in a partnership with his parents growing crops. He is skilled as a farmer. The parties lived primarily at the farm or near the farm during the course of their relationship.
13.The father is presently aged 42 and is in good health.
14.The mother is presently aged 47 and suffers from health difficulties, which I will refer to later in these reasons.
15.The mother is a qualified medical professional. She commenced medical practice in Town 1 in1992 and has worked in several locations in the north of the state.
16.The mother currently lives in town 1. She has recently taken employment on a part-time basis. She shares a house with her sister who assists her in caring for the children.
17.In her affidavit filed the 17 December 2010 the mother raised issues of domestic violence from some time ago. That violence is denied by the father. Having regard to the approach adopted by both parents, that is that the other parent is a competent parent (albeit each allege the other has some drawbacks as a parent) and that the other parent is capable of the proper care of the children, the questions of past violence were not sought to be determined by either party. I make no finding one way or the other except to note the allegations and the denial.
18.It is uncontentious and I accept that the children have a close relationship with both parents and that the parents are committed to parenting the children. It is at many levels comforting to note that in their recent criticisms of each other, their complaints are muted and each displays some level of admiration of the parenting skills and personal characteristics of the other.
19.Communication between the parents is limited to communication books and other electronic means. However, these parents have shown a recent capacity to make sensible child-focused parenting decisions. As Cyclone Yasi was bearing down on the far North Queensland Coast in the weeks before the commencement of this hearing, the father emailed the mother suggesting that the children be evacuated and live with him in his parents’ home which would be safe from the cyclone. That home had gas cooking facilities and a generator. The mother, via her sister, almost immediately engaged in this process and arranged for the children to be picked up. Sensible steps were put in place. The parties engaged in sensible and child focused parenting. Both the action taken by the father and the reaction by the mother was impressive.
RELEVANT LEGAL PRICINPALS TO BE APPLIED
20.In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
21.The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
22.The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
23.Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to section 61DA.
[1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
24.If the presumption is not rebutted and it is in the child’s best interests, a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.
25.The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
26.The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.
27.Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
28.The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:
Primary considerations
(2) The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
29.A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face-to-face time and communication.
30.In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[2].
[2] MRR v GR [2010] HCA 4.
31.The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.
I have endeavoured to apply these principles.
THE WITNESSES
Ms E
32.Read into evidence without objections was a report from the family consultant, Ms E, dated 18 March 2009. A family report was ordered by a Federal Magistrate in February 2009 and interviews were held in March 2009. During the preparation of the family report, the parents had an opportunity to discuss their issues and an agreement was made on a week about basis. Annexed to the report was that agreement. Ms E observed the following:-
19.Both parents separated under unhappy circumstances and have been unable to formulate a co-operative parenting relationship hitherto. However, during the assessment, both parents presented [as] child focused, intelligent and articulate. They both behaved appropriately and cooperatively when required. In my opinion, [the father] and [the mother] are more than capable of developing an equal and shared parenting arrangement.
20.[The father] and [the mother] are to be congratulated on achieving a peaceful settlement to their disagreement. In this they serve their children well. Now, they can both settle down into their future lives, and it is highly likely the children’s observed unruly behaviour or likely to settle down also.
33.The agreement had been operating for almost two years by the time of the hearing.
34.What was left to be determined was whether the parties and their children lived in Town 1, Town 2, Town 3 or Town 4. An order was made by a Federal Magistrate in terms of the parties’ agreement and a family report was prepared by Dr S, a family consultant who works with the Federal Magistrates Court.
Dr S
35.Dr S prepared a family report on the dynamics of this family on 4 December 2009. The report was read into evidence. There was no issue as to the reporter’s qualifications.
36.Dr S was to prepare an updated report for the hearing, however, that process was interrupted by Cyclone Yasi. Accordingly, she gave oral evidence at the commencement of the hearing. Dr S saw the parties and the children the Sunday before the hearing was to commence and is to be commended for her efforts in that regard.
37.At the time of providing her written report, Dr S observed that the children appear to have little knowledge of the conflict between their parents and if their parents are able to adequately negotiate and resolve their conflict in the short-term, then the negative impact on C and J will be moderated.
38.In terms of the current situation she said the children are now much more aware of the litigation and had become aware of the conflict through hearing discussions between their mother and their maternal aunt.
39.Dr S, both in her earlier report and in her updated evidence, confirmed that the children are content with both parents and both parents are capable of caring adequately for the children. She went on to say that equal shared parental responsibility would be appropriate, although she conceded that there had been conflict between the parents.
40.She observed that the location was the issue which impacted on the present and, in her view, satisfactory fifty-fifty arrangement. She observed that the father was unhappy with the circumstances at that time, that is, he lived on the farm near Town 2 for seven days (and did some work on that farm) and for the following seven days when he had the children he would spend the weekends at the farm and then five days in the property he rented in Town 1. She observed:-[3]
However, his circumstances have not changed substantially since originally coming to the decision, that this was an appropriate mechanism to see his children live with him.
[3] At page 14 paragraph 9.1 (c) of Dr S’s report dated 4 December 2010.
41.Dr S said one of the changes in the children was that they were upset with the conflict and now wanted their parents to get back together. C, in particular, was angry and upset. She reported that C was now somewhat fragile as a consequence of the ongoing conflict. Whilst these reasons and consequential orders will (hopefully) resolve the parenting issues and provide stability, the property proceedings are yet to be either settled or determined.
42.Both children are content with the two house arrangement and are quite easily able to changeover. It was Dr S’s view, bearing in mind at some level the fragility of C’s presentation that the matter had to be promptly resolved.
43.Dr S agreed with the diagnosis of Dr T (the mother’s psychiatrist) that the mother would be unlikely to be able to live in the Town 2 area bearing in mind the history of what happened there in the past. Dr S said the mother appeared more settled now that her sister was living with her (although this may not be for the very long-term and may only be for the short to medium term). She observed that the parties have had a poor history of conflict resolution but commented positively in respect of the parties’ approach to the care of the children in the face of the recent cyclone.
44.It is this expert’s view that once the proceedings are resolved, the conflict is likely to reduce and communication will improve.
45.If the current equal time arrangements cannot continue, it is this expert’s view that the children should live primarily with the father, as he is the more stable parent.
46.Dr S’s evidence was that if the children were to move to the Town 2 area and there was not equal time with each of the parents that they would suffer from some distress and they would need some face-to-face therapy.
47.As it is, she recommends that the children have group therapy such as that organised by Lifeline to help them cope with their parents’ relationship breakdown. Both parents said they would facilitate such counselling and as such I have made an order to that effect. That would enable, C in particular, to deal with (the) questions of anger and distress.
48.Dr S’s evidence was that the children are doing well in shared care despite some levels of conflict and poor communication between the parents.
49.She did suggest Town 3 as an alternative halfway place between Town 1 and Town 2. This was not particularly attractive to either parent except as a second best approach. It would involve changing the children’s school to Town 3 or to Town 2. Both parents are now significantly involved in the children’s day-to-day schooling activities in the weeks that the children are living with them. She observed that this may be a bit difficult for the mother as the mother takes anti-depressants, sees Dr T on a regular basis and has a good relationship with her general practitioner.
50.When Dr S was cross-examined on behalf of the father, she said that the mother was now making much stronger and positive decisions in relation to the care of the children including limiting her working time. She observed that in the mother’s home the children heard commentary of the Court case in terms of expenses of monies allegedly paid or not paid by the father. In assessing this evidence, I have had regard to that of the mother and her sister, and whilst I am satisfied that the children did hear some comment in that regard, it was limited and inadvertent.
51.Dr S’s evidence in respect of the children was that they preferred to stay at their current school and that they preferred the current arrangements to continue. I have given some weight to this evidence.
52.It was an agreed fact, of which Dr S was aware, that the children had been going to W Primary School since they both commenced school and that they were settled in their classes. They attended swimming and ballet lessons in the Town 1 area.
53.I am satisfied on the evidence of Dr S and the evidence of Dr T that it is not a viable option for the mother to move to Town 2. I am satisfied that the mother is more likely to remain in Town 1 and spend more time with the children on alternate weekends having regard to the impact of moving to Town 2 and the mother’s health.
54.I am satisfied on the evidence and on the evidence of Ms Lehmann,[4] as the Independent Children’s Lawyer, that the children are settled in their school and that the children did not particularly like the idea of going to school at Town 2. I have had regard to their views in that respect in coming to this conclusion, although it is of some but not significant weight.
[4] Affidavit filed 21 December 2010.
55.I generally accept the evidence of Dr S.
The father
56.The father is a farmer. He relied upon his affidavits filed 16 December 2010 and 7 February 2011. He was an impressive witness. He has focused on parenting and has moved to Town 1 so that he can spend significant time with his children. He is engaged in their schooling in a constructive and effective way and is sensitive in his approach to the school.
57.He clearly misses not being involved in farming on a full-time basis and that is one of the underlying factors in his wish to have the children live in Town 2.
58.He continues to live on his parent’s farming property where he has a home. He is not charged rent, nor are there any charges for electricity. He is provided with some sustenance from the farm. At the present time he is in receipt of a Commonwealth benefit and receives additional income by working on his parent’s property and through his efforts of a co-operative.
59.His expenses slightly exceed his income. At present he lives a very modest life but is effective in parenting the children. He gave detailed descriptions of the children’s activities on the farm and I am satisfied that they enjoy their visits to and stays at the farm.
60.One of the father’s primary concerns is his sense that he lives part of his life on the farm at Town 2 and part of his life in Town 1. He says he feels at times like a ‘gypsy’ because of this.
61.The mother entered into the shared parenting agreement two years ago with it being an interim agreement to see how the children and parties coped with that arrangement. She anticipated that if it worked well (which it did and does) it would be a permanent arrangement. She was surprised that the father entered into the arrangement and she was pleased that it has worked so well. She believes that the father’s continuation of the parenting litigation is part of an incremental move on his part to have the children live primarily with him. She is suspicious of his motives. The father asserts that at all times he wanted the children to return and live in the Town 2 area and that the mother was aware of this view. I do not find any underhand moves or motives on the part of either parent. This is simply an example of the inadequate communication that exists between them.
62.The father says he has always wanted the children to return to Town 2 and he wants to get back to full-time farming on his parent’s property near Town 2.
63.There are some issues about the long-term viability of the farm property depending on the outcome of the property proceedings. I note that the father’s evidence is that his parents’ farm has been on the market since 2005.
64.The father was the subject of criticism by counsel for the mother in terms of him wanting to change the children’s ballet arrangements. His approach to ballet was quite sensible. He agreed to the children going to class and took them. However, the classes were on Saturday which restricted his ability to either take the children to the Town 2 area on weekends and for broader weekend activities. Accordingly, he sought a change so that the ballet was during the week. He was not trying to stop the activity, he was trying to re-organise it, which was a sensible and child-focused approach. With communication during the hearing, the respective concerns were made known and a sensible child-focused result achieved.
65.The father was criticised about telephone calls that the children made to the mother. I am satisfied that whilst it is not a priority for him, he does take steps to ensure that the children do telephone their mother when they are with him. Again, this was a communication problem not a conflict or hostility issue.
66.If the children live with him on a full-time basis, I am satisfied that he can manage his work on the farm and the care of the children.
67.The father has completed a parenting orders course and a focus on children course and seems a sensitive and thoughtful parent.
The mother
68.The mother gave evidence in accordance with her affidavits filed 17 December 2010 and 11 February 2011. Those affidavits were read into evidence.
69.The mother was cross-examined by counsel for the father and counsel for the Independent Children’s Lawyer.
70.She was highly anxious and tearful from time to time. At other times, she was somewhat aggressive and defensive.
71.This must be seen in the light of the fact that the mother has been diagnosed as having Depression disorder. This is complicated by Anxiety disorder. In addition, the mother’s depression and anxiety disorders have been complicated by Sleep disorder and Eating disorder.[5]
[5] The report Dr T dated 21 October 2009.
72.In giving evidence the mother’s illness was clearly on display. Exposing herself to cross-examination was highly stressful for her and the symptoms of her anxiety (as expressed by Dr T) were very clear. She was very concerned about cross-examination, endeavouring to understand the purpose of questioning, and was also very defensive. I do not see this as any endeavour to deceive the Court, but simply a characteristic of the mother. From the cross-examination the mother’s obsessional personality traits were evident.
73.At one time a few years ago, Dr T considered that the mother may have a Bi-polar Effective Disorder Type 2 or 3, but has now moved away from that diagnosis.
74.The mother was cross-examined in respect of whether she was compliant with her medication and use of the sleep machine. In response, the mother said that quiet often, prior to separation, she would not take her medication but generally since separation she takes her medication, although she may from time to time forget. Having regard to her evidence and that of Dr T, I am satisfied that the mother has been, since separation and continues to be, generally compliant with her medication.
75.In relation to the sleep machine, the mother says that she has almost always used it (an exception occurred shortly after the birth of the youngest child), however, that sometimes its effect is compromised by virtue of the nature of its operation. I accept that she is compliant with using the sleep machine.
76.Having observed the mother in the witness box and having listened to her give evidence in the most stressful of circumstances, I am satisfied that her view (supported by the experts) that as a consequence of her illness she would be unable to move from Town 1 to live in Town 2, Town 3 or Town 4 without profound detriment to her ability to work and generally function.
77.I am satisfied that she was initially diagnosed with her mental illness by her general practitioner and later by a psychiatrist in 2001/2002. Prior to that time, the mother’s illness was either asymptomatic or was undiagnosed. I accept the mother’s evidence that the stress of the relationship and the relationship breakdown, together with the birth of the two children, impacted upon her health. She blames the father, at least in part, for the onset of this illness.
78.The mother struggled with the illness in the later part of the parties’ relationship and after separation. Fortunately for the mother, her sister came to live with her in Town 1. This was initially a temporary arrangement but is now semi-permanent. Her sister provides the mother with significant support and has enabled the mother to focus more on parenting and less on employment over the last few years. The mother has had significant financial pressures as a consequence of her illness, the relationship breakdown and these proceedings. Her sister has assisted in that regard. The broad and direct support of the mother by her sister would not be as available if the mother lived away from Town 1. Her sister pays half the rent, the electricity, gas and groceries. The mother is struggling to pay her half of the rent and other expenses including debts arising from the relationship.
79.I am satisfied that these proceedings have impacted significantly upon the mother, particularly in terms of the parenting proceedings and her concerns about the children being taken from her care. In giving evidence, she was unable to even countenance the thought of the children being removed from her care.
80.I am satisfied that it is not a viable option for the children to spend equal time with the parents, with the mother residing in either Town 2, Town 3 or Town 4 or any of the adjacent towns. Equal parenting can only occur if the mother resides primarily in Town 1.
81.There was some evidence that the mother has a dramatic and histrionic nature and has a pattern of catastrophising things. That was on display at some levels in her evidence and I have had regard to this nature in assessing her evidence. The mother frankly conceded at some levels that under pressure her memory failed and that she was guilty of ‘overstating her symptoms’ from time to time. She did not come across as an impressive witness, however, I evaluated such evidence having regard to the assessments of her undertaken by Dr M and Dr T. She was, to the best of her ability, endeavouring to be frank, but was clearly terrified at the thought of the children not being with her. That fear flavoured some aspects of her evidence.
82.The mother commenced seeing Dr T in mid 2006. I am satisfied the mother has a good relationship with this doctor and accepts his advice and guidance.
83.Notwithstanding her illness, the mother has adopted a child-focused parenting approach. She clearly does not like the father. Dr T observes:-[6]
[The mother] has generally perceived her husband to be controlling, invalidating and generally unsupportive during the marriage and afterward. She feels troubled by her deeper emotions of love for him, with this resulting in internal conflict and ambivalence.”
[6] At page 2, paragraph 4 of Dr T's report dated 29 January 2010.
84.I accept this evidence of Dr T and have had regard to it in evaluating the mother’s evidence.
85.The mother acknowledges that the existing arrangements are difficult on the father. The mother said the arrangements were effective and easy for her and good for the children.
86.The mother’s employment history since separation has been difficult. Initially, she worked with a practice in Town 1 but was not working between August 2008 and December 2008. In early 2009, the mother stopped working and in November 2009, she attempted to return to work as a consultant with Dr T. This ceased in early 2010. The mother was not in paid employment for the remainder of that year.
87.In consultation with Dr T, the mother commenced employment in January 2011 and seems settled in that employment, although this has been for a very short period if time. I accept her evidence in that regard which is supported by the evidence of her sister. The mother was hoping to work five days per week between 10.00am and 2.00pm when the children are with her and longer hours in the weeks when the children are not with her, if her proposals are accepted.
88.The mother was cross-examined in respect of her previous history of anxiety. She explained that she was anxious during her student years from time to time (not an unsurprising comment for students to make). She also has some time management issues.
89.The parties do not display the intensity of hatred and/or hostility which are often features of contested parenting cases. The mother has made concessions as to the difficulties of the father and his involvement with the children. Both parents were impressive in their insights as to the impact of the conflict upon each other.
90.The mother was cross-examined in relation to her explanations to the children about these proceedings. She gave an innocuous response. It was probably a little more than that, as I prefer the evidence of her sister, but I am not satisfied that there is evidence that the mother or sister would take any active steps to demean the father in front of the children or enmesh the children of these proceedings. The children will of course see the mother unhappy from time to time but I accept that she manages or endeavours to manage her emotions in the presence of the children.
91.The mother was criticised for not disclosing that her sister was living in the home between June 2009 and May 2010. I am not concerned about that circumstance. The mother’s sister came to Town 1 to assist her for a relatively short period of time as the sister had lost her legal job in the aftermath of the global financial crisis. The sister found a locum position and her stay in Town 1 was only converted to the medium to long term in mid 2010. The mother disclosed her sister’s presence in a questionnaire provided to the Independent Children’s Lawyer in May 2010.
92.There was much cross-examination of the mother in relation to events affecting her mother and her maternal grandmother, which apart from credit has little relevance to these proceedings. As to the issue of credit arising from this, I have dealt with it in the context of the broader remarks I have made about the quality of her evidence. The mother feels ashamed and humiliated by her illness and that colours her evidence.
93.It was submitted that the mother was rude, angry, belligerent and deeply distressed whilst giving evidence. That is a fair assessment of her evidence. It was a very powerful submission and it was a manifestation of her illness.
94.I have made comments about the quality of the mother’s evidence in these reasons, however, overall I am generally satisfied with the quality of it.
Dr M
95.The Independent Children’s Lawyer relied upon a report of Dr M, a single expert consultant psychiatrist.
96.Her affidavit filed 8 September 2010 was read into evidence.
97.Dr M concluded the following:-[7]
….. obviously shared care is desirable in this case and each parent appears to exhibit considerable strength. [The father] whilst exhibiting low mood at present in relation to marital breakdown and litigation essentially does not have a psychiatric disorder and is likely to improve when litigation ceases.
…. [The mother] exhibits major depressive disorder, generalised anxiety disorder and morbid obesity. Her problems appear to be life long and whilst she experiences fluctuation in her distress, she is likely to continue to experience considerable anxiety and self doubt. She also has considerable strength, in particular her intellectual functioning and her willingness to undergo treatment.
…. In the interests of their children it would appear that shared care is desirable. It is my view that the mother would be less likely to cope with adverse circumstances than the father.
[7] At page 8 of Dr M’s Report.
98.Dr M’s qualifications were not challenged and she was not required for cross-examination. There were some issues about the history provided by the mother, however, they are, in any event, not such as would impeach the assessment of Dr M or for that matter, the evidence of the mother.
Dr T
99.Dr T provided two affidavits, the first filed on 2 September 2009 and the second filed on 1 September 2010. That material was read into evidence.
100.Dr T has been treating the mother since about 2006 and he reviews her on a regular basis, for example, monthly, fortnightly or more regularly if needed. He generally agreed with the diagnosis of Dr M and says that this mixture of illnesses shows itself in panic attacks, agoraphobic features, social anxiety features and being overwhelmed or anxious.
101.He said that the mother’s condition had improved over the years of his treatment and that her symptoms and their frequency are lessening. He said that significant surprise changes can be difficult for the mother, whereas if she knows about events, such as a cyclone coming towards Town 1, she is better able to manage.
102.Dr T is of the view that the mother is not ready for full-time work but could be ready for that work by the end of the year. He goes on to opine that her condition has been life-long and will continue to be life-long. However, with ongoing treatment, it will be well managed and she will be ‘well’.
103.He explained the mother’s denial of the history of the illness as a consequence of her feelings of shame and embarrassment and that she is a burden to her family. His evidence was that overall she is now managing reasonably well and although there were some difficulties in the past, she is now medicated and compliant in that regard.
104.He was of the view that shared care of the children would be good for her. He says she is a compassionate person who tries to meet the needs of others before herself.
105.I accept his evidence and his assessment of the mother.
Ms A
106.Ms A is the mother’s sister and she gave evidence in accordance with her affidavit filed 4 November 2010. She was an impressive witness and I find that her evidence is reliable. She has assisted the mother, her sister and her children. She has provided financial support, together with sensitive emotional and parenting support. I am satisfied she will remain living with the mother for at least the medium term and longer if necessary.
107.She remained in Town 1 to assist her sister because it suited her own circumstances and because her sister needed the assistance.
Discussion and evaluation
108.On the evidence, I am satisfied that both parents have displayed an effective capacity to care for the children. The mother has some difficulties in terms of her psychiatric disorder but she is now managing that illness adequately. She has in place sound social and support structures within Town 1, including the strong support of her sister.
109.The children are well settled and content at their school. Their educational needs are being well managed and addressed. Fortunately, both parents have engaged with the school and if the children continue at that school, I am satisfied the parents will likewise continue their regular involvement. That will of course vary from time to time as the parents respective job requirements vary.
110.If the children are moved to a school in either Town 2 or Town 3, I am satisfied they would manage such a change. The children are young and I accept that they would be adaptable in terms of that change.
111.There is inadequate communication and some levels of animosity between the parties as a consequence of their relationship breakdown and these proceedings. I accept the evidence of Dr S that this is likely to diminish once these proceedings are brought to a conclusion. I do not believe that it will altogether abate, but it is likely to improve.
112.The father complains that the mother has discussed their respective finances in front of the children which has engaged them in these proceedings. Whilst I am satisfied there is some level of anger and animosity which is displayed to the children about their father, I am satisfied that any such discussion was not intentional and that it was more likely to be inadvertent. I am satisfied that the father likewise does not overtly or intentionally bring the conflict between himself and the mother to the attention of the children.
113.Clearly, as the children grow and develop, they will become aware of the levels of conflict between their parents. This will no doubt present a challenge to the parents to see what they can do to manage this into the future. However, in terms of the level of conflict and animosity observed in this Court, these parents are in the area of slight to moderate rather than high conflict.
114.The mother’s psychiatric disorder has been discussed elsewhere in these reasons and I do not propose to repeat that detail. The mother is managing her illness well, is settled and is functional in the Town 1 area. As I indicated earlier, I am satisfied that it is not a viable option for her to move to Town 2. It is likely that such a move, if it occurred, would have a significant adverse effect on the mother’s health and consequently on her relationship with the children and inevitably their relationship with her. At some levels the mother is somewhat rigid in her approach and has not benefited from the courses she has undertaken so far. That rigidity may settle once these proceedings are at an end and the circumstances of the parties are relatively stable and the parenting proceedings are concluded.
115.There is a risk that the mother’s circumstances could deteriorate through a variety of influences including the length of time her sister remains living with her and the mother’s workload. I have had regard to that possibility in determining the outcome of the various applications.
116.The children have a strong bond and a strong relationship with the mother and the father. It is in their interests that these meaningful relationships continue.
117.The father’s ‘heart’ is as a farmer. To his credit he moved to Town 1 and adopted a ‘gypsy-type’ arrangement where he spends part of his fortnight in Town 1 and part at the property at Town 2. This is uncomfortable for him and he says it is not sustainable. Of that I am not so sure.
118.Both parents assert that the best arrangements for their children are for them to spend equal time with each parent. I accept that that is the case.
119.The mother says, and I accept, that the best place for her to live and work is in the Town 1 area. She has support at a variety of levels including work, health and family.
120.The father wants the primary place of residence of the children to be in Town 2 so that he can continue with his occupation as a farmer. I am satisfied that he could obtain work in the Town 1 area as an unskilled worker but that would not satisfy him in the broader sense. His description of farming and his approach to farming (which he treats as secondary to his care of and relationship with the children) was persuasive and acceptable.
121.Therefore, there is no simple or simplistic solution which can meet the needs of all of the parties. I am satisfied the children wish to remain in the Town 1 area but it is their view that they should continue with the same amount of time with each parent.
122.I have decided to allow the children to remain in the Town 1area. The father gave evidence of what he would do if the children were living with him in terms of his work. He described that when they were not with him that he worked from 7.00am to 5.00pm and sometimes to 6.00pm and when the children were with him that he would start work after they caught the bus to school and would finish work in time to collect them from the bus in the afternoon. That was from presumably 8.00am or thereabouts until 4.00pm or thereabouts.
123.If the children spend seven days a fortnight with the mother in Town 1 and seven days a fortnight with the father, with Friday, Saturday and Sunday nights in the Town 2 area on the family property and Monday, Tuesday, Wednesday and Thursday nights in Town 1, there is no reason why the father cannot continue working on the farm. It would mean that those days would be somewhat shorter in that he would be able to drop the children off at school at 8.30am and be on the farm by 10.00am and then leave the farm at 2.00pm to collect the children in the afternoon. This would be for five days a fortnight during the school term and full-time during the school holidays and on the weekends.
124.This is clearly not optimal for the father, but it is quite functional. The impact on the father would be the need to maintain premises in Town 1. This he has managed for the last few years, bearing in mind that he lives rent free on the family farm. It would mean that for the weeks the children are with him he would have short days on the farm or alternatively no days on the farm if he used those days to continue his involvement with the school.
125.Those are decisions which he would need to make in terms of the financial needs of the family and his needs in relation to his relationship with the children. These are decisions that parents generally make on a day to day basis.
126.Much of the evidence surrounded the impact of a change in parenting upon each of the parents. That is a factor I need to be aware of and have regard to, however, my task is to consider what meets the best interests of the children.
127.The Independent Children’s Lawyer and father suggests that it would be better for the children to live with the father in the Town 2 area as he is more stable and it is more likely to be a long-term solution.
128.I do not accept those submissions. The children, albeit at some levels, are struggling with the consequence of their parents’ conflict, yet are generally doing well in the Town 1 area in the joint parenting arrangement.
129.As I have said elsewhere, the inevitable consequence of moving the children to Town 2 will be of significant detriment to the mother’s health and a consequential and profound impact upon her relationship with them.
130.Damaging the relationship of an otherwise good parent, one who puts the interest of others (including the children) before herself, would be a severe loss for these children.
131.The father can better manage the current arrangements and I am satisfied that the mother’s sister will remain as a support for her for at least the immediate future, more likely the mid-term future and perhaps even the longer-term future (albeit that it may be in a different house but in the same vicinity).
132.The children are settled at school and a change in school is against their wishes. Both parties have also engaged in the children’s school help and in their education program at their current schools.
133.It was submitted that the father is lacking insight as to the mother’s condition. As I have said, I accept the father’s evidence, however, he does seem to lack some insight into the mother’s medical condition.
134.In his submissions, counsel for the father acknowledged the need for the children to have a significant relationship with both parents. I am satisfied that the mother’s illness has been life long, although only formerly diagnosed in 2001/2002. The mother’s recovery is progressing well (I accept the evidence of Dr T in that regard) but she still has a distance to go.
Equal shared parental responsibilities
135.In this case both parties seek equal shared parental responsibilities. The Independent Children’s Lawyer initially had concerns about this approach, however, with the sensible approach adopted by the parties in the lead up to the arrival of Cyclone Yasi, they showed they could from time to time work together. Having regard to all of the evidence and the consent of both parties, I propose to make that order.
136.As a consequence of there being equal shared parental responsibility, I must consider both equal time and significant and substantial time and whether they are reasonably practicable.
137.Counsel for the mother asserted that the only real decision I had to determine in this matter was whether it was reasonably practicable for the arrangements proposed by the father, in respect of the children, to operate in Town 2.
138.It is reasonably practicable for the current arrangements to continue. Like any arrangements there is doubt into the future, however, they have operated well for the past few years (despite the children being effected by what I regard as the ongoing proceedings and ongoing conflict). I am not satisfied that it is reasonably practicable for the mother to spend equal time with the children in Town 2.
139.From the evidence of the mother, Dr T, Dr M and Dr S, it is clear that this would have a significant and adverse impact on the mother and the mother’s evidence is that she would not wish to move there. This also applies to the mid point of Town 3.
140.On the other hand, it is reasonably practical for the father to manage the current arrangements in Town 1. He is not under economic duress as he only needs to maintain one home given that he has free board, electricity, car and some food in the family property at Town 2, and in addition he earns income from his parents and from the locals.
141.In terms of his running of the farm, there is evidence that there is a trusted farm hand who can assist in that regard, albeit under supervision. The father is emotionally and psychologically robust enough to continue the current arrangements for the children.
142.This accords with the father’s evidence and that of Dr M. It will involve the father maintaining a home in Town 1 and some travel. The travel is not, in all of the circumstances, unreasonable. It is clear on the evidence of the experts that from the point of view of the parties, shared care is the best solution in this case and is in fact the fundamental application of both parties.
143.In addition, preserving the meaningful relationship between the children and each of their parents is a significant feature in this case. I am concerned that it is likely to be significantly damaged if the mother was either forced to move to Town 2 or District 1 out of the support of her family, her sister and the community in Town 1.
Section 60CC(2) Factors
(a) The benefit to the child of having a meaningful relationship with both of the child's parents;144.There is no doubt that both parties believe the children should have a meaningful relationship with both parents. There is benefit in this for both the children and for the parents.
145.The parties have had shared care of the children for about two years. The father seeks an order that this continue but in the Town 2 area. The mother seeks an order that this continue but in the Town 1 area.
146.In her initial family report, Ms E described both the parents as intelligent and child-focused. It was the view of Dr S that the best interests of the children would be served by the current arrangements for equal time remaining in place. I give significant weight to that opinion.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
147.The children are not at any risk of physical, psychological or emotional harm in the care of either of the parents.
148.The criticism of the mother was that there may have been a discussion which the children overheard and I have dealt with that elsewhere.
149.The children will need to understand their mother’s illness but that is neither here nor there. It is, after all, an illness. It may be that the children will see their mother displaying signs of her illness from time to time.
150.Irrespective of that, it is part of who their family is and I do not see that as an issue of emotional or psychological risk to the children.
Section 60CC(3) Factors
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
151.The children have expressed views in relation to their contentment with the current arrangement and their preferences for their parents to reconcile. The children wish to remain at their current school. I give those views some but not great weight.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);152.Both children are comfortable and safe with both parents. Both parents are focused on their children and there appears to be no significant issue about the children’s relationship with either parent.
153.The mother is supported by her sister in terms of managing her mental illness, which in the past has had some significance but now seems to be moderating. I accept the evidence of the mother and Dr T that the mother is a capable parent, absent her sister, should her sister move on in the future. I am satisfied the sister will remain at the mother’s home for the medium to long-term future.
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
154.There is still poor communication between the parties but they have managed co-parenting for two years and neither seeks to take the children away from the other. Each parent recognises the children would benefit best by an equal time arrangement. The parties have difficulties from time to time negotiating conflict but that appears to be ameliorating and I am satisfied, on the evidence, that it will lessen once these proceedings are at an end.
155.It was submitted by the Independent Children’s Lawyer that each of the parents, by the orders they sought, recognised the importance of the relationship between the children and the other parent and neither parent sought to remove the other parent from the children’s lives. She submitted that each parent recognised the benefit of an equal time arrangement whereby the children were able to spend as much time with each parent as possible.
156.The Independent Children’s Lawyer submitted that, although there are communication difficulties between the parties, the father had conceded in evidence that the communication book had become a workable method of communication and that the recent cyclone had allowed the parents to communicate via email “providing a more immediate communication method albeit, through the mother’s sister, [Ms A]”.
157.I accept and adopt these submissions in the evaluation process.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
158.If the children remain in the Town 1 area, it will impact on the father’s desire to return to working, effectively full-time, in the Town 2 area. He still proposes that the children live with the mother for half the time, although the reality is, having regard to other findings I have made in these reasons that the mother is unable to live in the Town 2 area.
159.If the children move to Town 2, the mother will not be able to move to be with the children and as such her health will deteriorate significantly as a result of the children being removed from her care, which in turn will impact adversely on the relationship between the mother and the children. If the mother does move to Town 2, it is likely that she will lose significant support and her health will deteriorate and as a consequence, the time the children will spend with her will be reduced. There are significant adverse features in terms of the mother and her relationship with the children if there is an order made that she live in Town 2.
160.If the mother lives in Town 1 and the current arrangements remain in place then it is likely the mother’s health will continue to improve and that her ability to continue in paid employment will likewise continue and improve.
161.For the father, it will mean that he has to continue his ‘gypsy’ lifestyle. However, for the reasons set out elsewhere, there is no reason why the father cannot manage that far better than the mother can. Further, there is no reason why he cannot return to the Town 2 area after the children are dropped to school and return to pick them up after school that week.
162.The Independent Children’s Lawyer submitted that, although the father contended that he had financial difficulties maintaining two residences, his evidence was that he would not abandon his children if orders were made that they remain living in the Town 1 area. However, the Independent Children’s Lawyer submitted that it was not in the children’s best interests that they live with a father who was unable to work by “the mere fact of his location”. She said there was no evidence about what work he could do and the evidence was that he has not worked, other than on his parents farm or as a Director of a farming company, since separation. She submitted that living in Town 1 would mean that the father would be unable to pursue his career as a farmer, in which he has skill and experience. I am satisfied that the father can, if he wishes, go back to working on the land.
163.The mother has managed, albeit with difficulties, as a significant carer of these children since birth. The Independent Children’s Lawyer submits that if the children remain in Town 1 the arrangement would only be stable for one or two years. I do not agree. The parties have managed in Town 1 for two years and I am confident that the father is capable of continuing some of these arrangements including continuing some work as a farmer notwithstanding him having to reside in Town 1 five days per fortnight during the school term. I do not accept the submission by the Independent Children’s Lawyer that the change is inevitable. I believe it is not.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
164.If the children are moved to Town 2 it will, in the short to medium term and perhaps even the longer term, destroy their relationship with the mother. That would not be in their best interests.
165.If the children remain in Town 1, the strong relationship they have with both parents will continue. It will hopefully enable C to deal with the issues with which she has had to struggle, namely her feeling of sadness and anger about her parents break-up. The Independent Children’s Lawyer has said that the father is unable to pursue his career as a farmer if the children are in Town 1. As I have said elsewhere, I disagree with that.
(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
166.Both parents have demonstrated a capacity to care for the children.
167.The mother’s mental illness has made it difficult for her from time to time, however, she has managed to care for the children. No care of children is ever perfect. I accept the evidence of Dr T that the mother would be able to manage the care of the children in the absence of her sister. It would be challenging for her.
168.The Independent Children’s Lawyer submitted that there has not been any significant improvement in the mother’s mental health. That is not the evidence of Dr T and I accept his evidence that she has improved significantly both in terms of the nature of the depression and anxiety and the frequency of it.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
169.The children are struggling with the conflict that exists between their parents. I am concerned that if the children were to move to Town 2, it may increase the conflict and impact on the mother’s health which could add another dimension to it.
170.These proceedings have been stressful on both parents, in particular the mother. Once the proceedings are resolved, the parties can get on with the role of caring for these children in the joint manner they have been, but for their conflict, but in all other respects, well since at least 2009.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
171.Both parents have appropriate attitudes towards the children and have adopted sensible and child-focused parenting. Both of them are endeavouring to do what they think is best in terms of the children. The father was impressive and this was acknowledged by the mother in moving his home five days per fortnight during the school term to Town 1.
172.Both parties have struggled financially since the separation.
(j) any family violence involving the child or a member of the child’s family;
173.The mother alleged there was some violence during the course of the relationship. It was not argued at the hearing, nor was it a feature of the trial. It is not a factor in the issues I need to determine and for which I need to have any regard. The children are not at risk of violence in the care of either parent and I need not make any findings in that respect.
174.The mother, at some levels, blames the father for her mental health issues, although she sees it as part of a series of events. The mother lacks some insight into her mental health history, which is consistent with the view adopted by Dr T.
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
175.There is no family violence order in place.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
176.The Independent Children’s Lawyer submits that the move to Town 2 is likely to end the litigation. It is my view that the opposite is likely to occur. If the children move to Town 2 and the mother’s health deteriorates, it is likely that there will need to be further proceedings and the time the children spend with the mother is likely to significantly diminish.
(m)any other fact or circumstance that the court thinks is relevant.
177.I have had regard to all of the evidence filed in court and the events both before and after separation.
Section 60CC(4) factors
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
178.Communication has been difficult between the parties, particularly in relation to extracurricular activities. The father at times seems determined, whereas the mother is reluctant to engage with him.
179.However, the approach adopted by the father in respect to ballet recently and both parents in respect of the lead up to Cyclone Yasi shows some progress in that regard.
180.Having regard to all of the evidence and having evaluated it against the relevant factors, I as satisfied that the current arrangement should remain in place. This will mean the children spend equal time with both parents and continue to live in the Town 1 area.
181.Prior to the commencement of this hearing, I had dismissed an application by the second and third respondents in the property proceedings for security for costs. I had also split the hearings so that the parenting hearing would be held separate to the property hearings. I have made various findings of credit and assessments of witnesses in terms of this application. That may or may not be the basis for an application that I disqualify myself having regard to the comments made by the High Court in the British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2.
182.If an application is to be made in that regard, it ought to be made within a relatively short period of time from the date of delivery of these orders. It will be directed that a copy of these orders be served upon the second and third respondents. That direction should not be treated as an indication as to what determination I would make in respect of such application if and when it comes before me.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 March 2011.
Associate:
Date: 18 March 2011.
Key Legal Topics
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Family Law
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