French and Winter (No.2) - [2012] FMCAfam 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRENCH & WINTER (No.2)

[2012] FMCAfam 386

FAMILY LAW – Parenting – final orders – the willingness and ability of the mother to foster a relationship between the children and the father.

Family Law Act 1975, ss.60CC, 65DAA(5)

Applicant:

MR FRENCH

Respondent:

MS WINTER

File Number:

BRC 7013 of 2010

Judgment of:

Demack FM

Hearing date:

20 April 2012

Date of Last Submission:

20 April 2012

Delivered at:

Brisbane

Delivered on:

26 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

KL King & Associates

Solicitors for the Respondent:

Charles Cooper Lawyers

ORDERS BY CONSENT

That both parents have equal shared parental responsibility for the major long term decisions of the children X born (omitted) 2001 and Y (omitted) 2002 (“the children”).

ORDERS

That all previous Parenting Plans and Orders be discharged.
That the children live with the father.
That to effect the change of residence referred to in Order 3 hereof, changeover shall be at a time and place as agreed between the parents in writing and failing agreement at 12.00pm on Saturday 28 April 2012 at a public place at (omitted) as nominated by the father.
That the children spend time with and communicate with the mother at all reasonable times as agreed between the parents in writing and failing agreement, as follows:
(a)From after school Thursday (or 3.00pm in the event the children are not at school) through to before school Monday (or 9.00am in the event children are not at school) commencing Thursday 10 May 2012 and each alternate week thereafter and in the event Monday is a public holiday or pupil free day, such time is to conclude before school on Tuesday (or 9.00am in the event the children are not at school); and
(b)By telephone between 6.30pm and 7.30pm commencing Monday 21 May 2012 and each alternate Monday thereafter with the father to cause the children to initiate the call.
That the children spend time with each parent during school holidays at all times as agreed between the parents in writing and failing agreement, as follows:
(a)In even numbered years:
(i)For the first half with the mother and the second half with the father.
(b)In odd numbered years:
(i)For the first half with the father and the second half with the mother.
(c)That school holidays shall be calculated as follows:
(i)Where there is an even number of days in any school holiday period the handover is to occur at 9.00am on the morning of the first day of the second half of the holiday period;
(ii)Where there is an odd number of days in any school holiday period the handover is to occur at 9.00am on the morning of the middle day of that school holiday period;
(iii)For the purposes of calculating the number of days in a holiday period the first day after the break up of school is to be regarded as ‘day 1’ and the day before the day the youngest child recommences school is to be regarded as ‘the final day’;
(iv)2012 is to be regarded as an ‘even’ year, 2013 an ‘odd’ year and so on.
That the children spend time with each parent on all special occasions as agreed between the parents in writing and failing agreement, as follows:
(a)On Mother’s Day:
(i)That in the event the children are not otherwise spending time with the mother on that day, the children spend time with the mother from 9.00am to 6.00pm on Mother’s Day.
(b)On Father’s Day:
(i)That in the event the children are not otherwise spending time with the father on that day, the children spend time with the father from 9.00am to 6.00pm on Father’s Day.
(c)Children’s birthdays:
(i)That on the birthday of both children, the parent with whom the children are not presently with shall spend time with both children:
A.If a school day from after school to 6.00pm;
B.If a non school day from 1.00pm to 6.00pm.
(d)Parent’s birthdays:
(i)That on the birthday of a parent with whom the children are not presently spending time with shall spend time with both children :
A.If a school day from after school to 6.00pm; and
B.If a non school day from 1.00pm to 6.00pm.
That all changeovers that are not otherwise specified in these Orders shall occur at the children’s school/s and in the event it can not occur at the school/s, changeover is to occur at a public place as nominated by the father.
That on any occasion the parents are to collect the children, the children may be collected by any family member nominated by the other parent for that purpose, and neither parent shall have any right to enquire as to that nomination nor refuse to deliver the children to the nominated person.
That to avoid confusion the parents and/or any member of the parent’s extended family shall be entitled to attend any appropriate event at the children’s schools or extra-curricular activities including parents’ days, grandparents’ days and sport and special events.
That this Order shall act as an authority for both parents to obtain information about the children from the children’s school/s, doctors, tutors and any other persons whom the children attend upon to discuss the children’s progress or involvement with those persons/entities, and to provide copies or any documents including reports, progress notes, etc.
That either parent shall be permitted to travel overseas with the children on holidays during the periods of time that the children are living or spending time with that parent (or more by agreement in writing) subject to the following conditions:
(a)The parent wishing to travel shall provide advance written notice to the other parent of the intention to travel not less than twenty eight (28) days prior to the intended date of departure;
(b)Such notice shall contain a detailed itinerary in relation to the planned travel including details of departure and return dates and destinations, details of means of travel, accommodation address details and telephone contact details for the children during the travel;
(c)The parent wishing to travel shall provide to the other parent details of flight times and itinerary and a photocopy of the return tickets and/or a copy of the return flight/travel confirmation bookings no later than twenty eight (28) days prior to the intended date of departure;
(d)Any overseas travel shall not be taken during any school term except where expressly agreed to in writing by the parties (which should not be unreasonably withheld) or where the travel is for the educational and/or sporting benefit, general advancement or wellbeing of the children.
(e)Any overseas travel shall not be at times that impinges on the non travelling parent’s time with the children school holiday periods as set out in order 6 of these orders unless otherwise agreed between the parents in writing; and
(f)The parent travelling overseas with the children shall cause and facilitate the children to speak to the other parent by telephone at least every seven (7) days whilst the children are travelling overseas.
That the parent holding the children’s passports for any period of travel shall retain them until requested by the other parent to deliver for the purposes of travel provided for in these Orders.
That during the time the children are is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating, assaulting, harassing, threatening or intimidating each other or the other parent’s partner or any member of the other parent’s household or family in the presence or within the hearing of the children and that the mother and father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or the other’s partner or any member of the other’s household or family in the presence or within the hearing of the children.
That in the event that the parents are in dispute about these orders or if agreement needs to be reached regarding the care, welfare and development of the children, or if these orders require amendment or variation and the like which cannot be resolved by way of communication, negotiation and signed/dated/witnessed written agreement between the parents within 14 days, current arrangements will be maintained and the parents agree at first instance they will attend primary dispute resolution, such as mediation, legal aid conference or like service, in good faith, in an endeavour to exhaust the prospects of a consensual resolution of the dispute or grievance or perceived need to amend these orders. The aggrieved parent shall be responsible for arranging such primary dispute resolution, with the cost to be shared. Should the issue not be resolved, both parents are at liberty to make further application to the Court with the giving of fourteen (14) days written notice.
That the process to be used for resolving disputes about the terms or operation of these orders including any dispute in relation to major long term issues affecting the children as defined in Section 4 of the Family Law Act 1975 (“the Act”) shall be as follows:
(a)Both parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)Both parents shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;
(d)The father shall choose one of the listed practitioners within seven days of receipt of the list;
(e)If the father fails to choose the mother may choose, and
(f)The parties shall each follow all reasonable recommendations of the Family Dispute Resolution Practitioner, including completing all recommended courses and accepting referrals to other agencies.
That all outstanding applications be dismissed save as to costs.
That the father file and serve submissions with respect to costs by no later than 4.00pm on 24 May 2012.
That the mother file and serve written submissions in reply by no later than 4.00pm on 7 June 2012.
That in the event to mother seeks to file an updated financial statement, this is to be filed and served by no later than 4.00pm on 7 June 2012.

IT IS NOTED that publication of this judgment under the pseudonym French & Winter (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 7013 of 2010

MR FRENCH

Applicant

And

MS WINTER

Respondent

REASONS FOR JUDGMENT

X was born in (omitted) 2001 and his sister Y was born in (omitted) 2002.
Their parents separated at the end of 2003.
Their parents have never successfully established a co-operative post-separation parenting relationship and notwithstanding formalised agreements, the children have not spent time with their father in a consistent manner from separation to trial.
The first formalised agreement was by way of a parenting plan agreed to on 15 March 2004 whereby the children were to spend time with their father every alternate weekend from Saturday morning until Sunday afternoon.
There was then a court order dated 13 December 2004 where the children were to
…have contact with the father at all reasonable times as may be agreed…every second Friday overnight from 5pm Friday returning them Saturday 11 am...
and
…On the off week father can take them for dinner Tuesday mother to drop them off.” At that time, X was over 3 ½ and Y was about 2 ¼.
By the time the father had commenced these proceedings in February 2011, he had not seen his daughter since 2007 and was not seeing his son as the Order provided notwithstanding his wish to see both children more frequently.
The father considered that the mother was acting capriciously with respect to X’s time with his father and that she was actively obstructing (omitted) relationship with him. The father’s application was and remains, that the children live with him and spend time with their mother.
The mother considered that the father had previously displayed little interest in the children and their lives and had not engaged with the children nor demonstrated an interest in exercising the decision making which comes with parental responsibility. She has been perplexed as to why Y was so resistant towards spending time with her father and considers that there must have been a basis for it which emanated from the father or his household. The mother considers that the fact that X continued to spend time with his father during the years that Y stayed away, can only mean that her own parenting was free from behaviours which adversely influenced the children.
The mother was of the view that on a final basis the children should live with her and spend alternate weekends with their father. However, initially on an interim basis, she was not able to particularise the time that either child should spend with their father.
An interim order was made on 3 May 2011 which provided for X to spend time his father from 5.00pm on a Friday until 5.00pm on a Saturday every second weekend. This increased X’s time with his father by six hours per fortnight. No order was made for Y to spend any time with the father.
A family report was ordered and a trial date given.
Mr M, social worker, prepared a report dated 5 July 2011. It was clear from Y’s interview with Mr M, that she had been strongly influenced in her negative thoughts and feelings about her father by her mother. A re-introduction of Y and her father was effected. It was a success and a positive step for Y. Y, though, told Mr M[1], that she didn’t think that her mother really wanted her to see her father and that that didn’t make her feel so good.
[1] Paragraph 63
Mr M formed the view on the information available to him at that time that the mother had been
… intently opposed to the children having an evenly balanced relationship with each of them, and her communication with [the father] has at times been provocative and hardly conducive to resolving the difficulties[2].
[2] Paragraph 67
Mr M considered that there was no reason for the children not to have a sound relationship with both parents although Y’s difficulties were “emotionally real” to her.[3] He queried the mother’s future facilitation of a relationship between Y and her father, and was concerned that the mother would either not facilitate it, or would “undermine it through the double messages which were so obvious during this assessment”. He considered that if that were to become the case, then there would be a basis for the children to live with their father.[4]
[3] Paragraph 70
[4] Paragraph 72
The trial proceeded on 12 August 2011. The father and his mother were required for cross-examination; the father’s fiancée (he re-partnered around 6 years ago) was not. The mother was required for cross-examination. Her then partner (who had not filed an affidavit until the date of trial) was also required for cross-examination. Mr M was also required.
The mother was a dreadful witness. Her contempt of the father was obvious. Her inability to reflect on her own attitudes and behaviours was obvious. She struggled to demonstrate any interest in Y spending any time of substance with her father.
I had no similar concerns about the father’s evidence.
It was clear from Mr M’s oral evidence[5] that structured time between Y and her father needed to be commenced immediately and quickly increased to include overnight time. He reinforced[6] his opinion that Y was “easily aware of the mother’s feelings”. And that the critical factor[7] was to ensure that Y went from her mother to her father to spend time with him.
[5] Transcript P-108, line 16.
[6] Transcript P-105 line 27.
[7] Transcript P-110, line 44
At the end of the trial, I invited the parties to reflect on the evidence, particularly Mr M’s. I urged them to consider agreeing on an outcome and adjourned the matter over the weekend to give them a little time. I advised the parties that I would make interim orders if requested.
Interim orders by consent where made a few days later on 18 August 2011 which provided for time for both of the children to spend with the father, with X spending longer periods and X’s time increasing to becoming overnight during a two week timeframe. Further, during the very next school holidays in September following the interim consent orders, the children were to spend the entire period with the father and thereafter on alternate Tuesdays and on alternate weekends from after school Friday to school on Tuesday.
The matter was then adjourned for mention on 24 November 2011.
At that time, it was the father’s position that although the children had spent time with him in accordance with the orders, the mother’s attitude to him and to Y, particularly, spending time with him had not changed. He listed in his affidavit filed 23 November 2011 a number of concerns about the mother’s lack of co-operation with him and examples of interactions with the children and with the mother to support his concerns. The father sought that the matter be listed for further interim hearing. Directions were made for the filing of documents and the matter was listed for interim hearing on 15 December 2011.
On that day, after a contested hearing, further interim orders were made (by me) setting out the school holiday time for the Christmas/New Year period with a return to court in early February. I declined to make an order that the children live with the father, at that juncture. I further ordered that the mother file and serve a fifteen hundred word essay on what she had learnt at the Parenting Orders Program and how she was incorporating such information into her everyday life. The mother later filed the essay.
On the next return date, I listed the matter for further final hearing on 20 April 2012. The matter proceeded on that day.
The witnesses had provided updating affidavits. Mr M had completed a short wishes report about the children after seeing them on 13 January 2012. The mother had changed her legal representation, and had prepared her new trial affidavit herself.
The father and his partner were required for cross-examination. The mother was required for cross-examination. Mr M was also required.
Again, the mother was a poor witness. She was frequently non-responsive and was, at times, wholly contradictory. She seemed surprised when her contradictions were pointed out to her and she was unable to explain them. Her attitude to the father continued to be wholly unsatisfactory and was not an improvement on her attitude in August 2011.
Again the father was an unremarkable witness. His partner (who had not been required during the first tranche of the final hearing) was an impressively pleasant woman.
I prefer the evidence of the father to the mother. Where the father has reported matters that the children have told him, I accept that he is accurately reflecting what was said by them.
Mr M’s evidence was thoughtful and useful: if the Court found that the mother’s attitude to the children’s relationship with the father had continued unabated, then the risk in leaving them living in their mother’s care was that they would not be able to have a meaningful relationship with their father. There was reciprocal risk if they were living with their father.
Written submissions were supplemented by oral submissions for both parties.

The Law

This is a parenting matter and the best interests of X and Y are my paramount consideration. The legislative pathway is set out in Part VII of the Family Law Act1975 (“the Act”). The starting point is the issue of parental responsibility. Both parents come to the court saying that they should hold equal shared parental responsibility. It seems to me that order can be made by consent.
The pathway then compels an examination of the best interest factors in section 60CC and the reasonable practicability factors in section 65DAA(5) of the Act, for the purposes of determining whether the children should live in an equal time arrangement or live with one parent and spend substantial and significant time with the other parent. Here neither parent seeks that the children live equal time between their parents. It seems to me that they are telling the court that equal time is neither in the children’s best interests nor reasonably practicable and that I should be turning my attention to deciding with whom the children should be living.
I turn then to the best interest factors and the reasonable practicability factors.

The benefit to the children in having a meaningful relationship with both of the child’s parents

Both the mother and the father present as parents with whom the children would benefit from having a meaningful relationship with. A significant factor in this decision is the mother’s attitude towards or acceptance of the benefit to X and Y in having a meaningful relationship with their father.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Past family violence has been raised as an issue by the mother and I discuss that under the requisite heading later in these reasons.
The real issue in this matter, it seems to me, is the harm to which the children will be exposed in not having a true relationship with their father into the future if they remain living with their mother and her prevailing attitude continues. Further, it seems to me that the mother has come, through the litigation process, to understand that the Court considers this to be a risk and that it is a real possibility that the outcome of the litigation is that the children will be living with the father pursuant to Court Order. The mother has attempted to modify her behaviour but her efforts have been unsuccessful. This may be because her beliefs are so strongly felt and held, they are unshakeable.

Any views expressed by the children 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

Mr M saw the children for the first report at the end of May 2011. X[8] was enjoying his time with his father at that stage which was from Friday evening until Saturday evening on a fortnightly basis. He sometimes wanted to stay longer, or shorter, depending on what other activities were available to him at the time. Y[9] had not seen her father for years at the time of this first interview. She presented as nervous and with vague memories of her father and distinct ideas of her mother’s views about her father and about her spending time with him. Y was clear that her mother did not want her to see her father. Mr M skilfully effected the re-introduction which was a resounding success. The child, once so scared, was quickly comfortable and relaxed in her father’s presence. Y later told Mr M that seeing her father had felt good. What didn’t feel so good, though, was that she didn’t think that her mother really wanted her to see her father. The mother’s behaviour at the interview is also instructive. She interrupted Mr M’s interview with the children to ask how long the interview would be so that she could give them something to eat. It was nowhere near lunch time. While Y was with the father, the mother was in the toilet crying. The mother’s reaction to Mr M’s feedback about Y’s interaction with the father was “defensive”[10].
[8] Paragraphs 44-48
[9] Paragraphs 49-65
[10] Paragraph 64
At the second interview with Mr M in January 2012, the children were seen for the purposes of assessing their views. Mr M asked Y[11] about why she had cried at the prospect of seeing her father at the first interviews. She didn’t know and thought that it was to do with her not knowing him. There was nothing from the child to indicate that her reluctance to see her father arose from any issues of harm in his care – but rather it was limited to a lack of knowledge. She reported that she was more comfortable in her father’s care now. X likes spending time with both of his parents[12].
[11] Paragraphs 15 and 16
[12] Paragraph 9

The nature of the relationship of the children with each of their parents and other persons

The children have always lived with their mother and are clearly attached to her. Their little sister Z is in that household.
X has been spending regular time with his father, more so that his sister, for many years. He is clearly comfortable in his father’s care. Y is now comfortable in her father’s care.
The father repartnered around 6 years ago with Ms H. She does not have any children. It appears that the children have a sound relationship with Ms H who impresses as a kind and sensible woman.

The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

The mother’s attitude to the father is pivotal in understanding her willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father.
The mother decided that the children would attend (omitted) School without any reference to the father or discussion or information. The father’s details were not included on any school enrolment or information form.
The earlier court order had provided for international travel being able to be undertaken with the children upon the giving of 60 days notice. When the mother sought to take the children on an overseas holiday in September 2010 she failed to give the required notice and brought an application to the court to be able to have the holiday as planned. The mother did not conceal from the children the need for her to bring proceedings and it is plain that the children understood that the application and attendant stress on their mother was as a direct result of their father’s failure to agree that they go notwithstanding the shortness of notice.
Prior to the overseas holiday, X had been spending longer with his father than the orders had provided. After she returned from the holiday the mother reduced the hours back to the court-ordered amount in spiteful retribution for the father’s failure to agree to the overseas holiday.
The mother has had Y see a psychologist or counsellor without reference to the father. She has changed psychologist without reference to the father.
Until the interim order after day one of the trial, the mother had never provided a copy of either child’s school report cards to the father.
At times the father (who has dyslexia) has miss-typed words in emails to the mother. The mother has replied in a jeering manner, deliberately failing to respond to his questions by disingenuously pretending that she has not understood. She denied to Mr M in his first report that she was poking fun at the father and maintained that she was unable to understand the father’s meaning. In cross-examination on Day One she admitted the plain and always obvious truth.
The children were aware that the father had not paid child support as assessed on time. The mother would tell the children that the reason she could not afford things for them was because the child support was so far behind.
On the first day of trial the mother asserted that she had since learnt that saying things like that was not right. She said that it wouldn’t happen in the future as she now knew differently.
In October 2011, the mother failed to advise the father that dancing fees were due and payable on a day when he was taking Y to dance class. The mother turned up at the dance class when the father arrived with the child. The mother told the father that he would have to pay for the dance class. This was the first notice that the father had had that the fee were due that day and he had not brought his wallet with him. He and the mother had exchanged a number of emails during the day about the dance class and the mother had failed to mention the requirement for payment. The mother chose not to pay on that day although she could have. As payment was not made on that day, the child was unable to participate in the class. The mother made it plain to the child that her inability to dance that day was as a result of the father’s failure to pay.
The mother did not invite the father to the first day at a new school in 2011. The mother said[13] on the first day of trial that she did not invite the father as she was angry at him “for not paying for the school, that once again, I had to pay for everything; the wrong reason.”
[13] Transcript P-76, line 27
At the end of the school year, along with the school report cards, the school provided a portfolio of the children’s work. It is bundled together in some form and returned to the parents. It is the source documents of the child’s original pieces of work during the year. It is of a substantial size. It shows their pieces of assessment and other documents which form a basis for the information contained in the report card.
Last year (after the evidence in the earlier paragraph and after the interim consent orders were made at a time when the mother’s attitude was clearly under observation) the mother chose to not provide a simple mechanism for the father to see the children’s portfolios. On the day that they were to be provided, the father was to collect the children. During the day the mother attended at the school. She delivered refreshments for the children’s classes. She took the opportunity to take the portfolios home with herself. The mother did this because she considered that the father did not deserve to see these documents as he didn’t pay for the school fees. The mother only provided the documents to the father after I told her to at a subsequent court event.
The mother has asked Y directly whether she has said words to her father attributed to her by her father in his affidavits. She has reported[14] Y’s denials.
[14] Paragraphs 4.4 and 4.8 of the mother’s affidavit filed 5 April 2012
Notwithstanding that the orders provide for the father to pick the children up from school, the mother has told[15] the children that if their father is not at the school then they should catch the bus home. The father has not been unreliable in his collection of the children. On the first day of school in 2012 both children looked shocked to see the father when he arrived to take them home and both said that their mother had said they were to take the bus home.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents; or any other children or other person with whom he or she has been living

[15] Paragraph 19 of the mother’s affidavit filed 5 April 2012

The mother has another child to a subsequent relationship: Z, born (omitted) 2009. Z lives with her mother. Her parents are not in a relationship. Z has lived with X and Y for her entire life. For X and Y, Z is their little sister and save for when they are in their father’s care, they live with her. For all three children, it will be a different life to the one that they have so far experienced if X and Y live with their father and only see Z when they are spending time with their mother. If that happens, they will not have as shared a childhood experience as they would otherwise have if they all lived with the mother.
The children have been in their mother’s predominant care for their entire lives. Y was less than 18 months old when her parents separated and X was only a little over 2 ½ . It would be a significant change for them to live with their father and Ms H.

The practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

The parties all live in the same city, albeit in different parts of the Gold Coast. There has been no particularly difficult in terms of the distances which are necessarily travelled between the homes and the other places that the children attend, school and extra-curricular activities for example. The difficulties arise from the failure in communication and the failure to make arrangements for the exchange of clothing and uniforms and the like in a practical and timely way to minimise the amount of extra, or indeed unnecessary travel.
For example, the mother has consistently failed to provide Y’s dancing costume to the father via having Y carry it with her to school. That has meant that after picking Y up from school, on dancing lesson days, the father has had to drive to the mother’s place to collect the costume. That is done by the child going into the house and getting changed into it. She invariably returns to the car distressed or sad or quiet and emotionally flat. This seems an unnecessary journey and is plainly unhelpful for the child to have a short contact with her mother in the midst of her time with the father. The mother says that it is embarrassing for the child to have to carry her dancing costume with her to school. Surely there must be an answer to this simply practical task?

The capacity of each of parent and any other person to provide for the needs of the children, including emotional and intellectual needs

There is no reason to consider that either parent has any particular deficits in their capacity to provide for the children’s needs in a general sense. The father has dyslexia, as does X. X needs some assistance with this important issue and the parents have been unable to agree on suitable tutoring for him. The father considered that there was no demonstrable change or improvement in the child after two years of tutoring by the mother’s preferred tutor. The father sought to discuss alternatives. No useful discussion happened. The father changed the children’s tutor. The mother considered that the new tutor had not been properly informed, if at all, about the child’s dyslexia and that that was necessary information for successful tutoring.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristic of the children

These children are aged not yet 11, and 9 ½. Their parents have been separated for over 8 years. The children have experienced marked conflict between their parents for their entire lives.

If the children are Aboriginal or Torres Strait Islander, their right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

X and Y are not Aboriginal or Torres Strait Islander children.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each parent

The mother complains that the father has not demonstrated an interest in the children or in the responsibilities of parenthood in the past and she is sceptical as to his present interest. She complains that he has not been financially supportive in the past through the proper provision of child support or the extra payments for the children’s necessities like school fees and extra-curricular activities.
I do not accept the mother’s position on this issue. Her attitude towards the father has coloured her view about his attitude towards the children and parenting. I do not find the father to be or to have been disinterested in the children or the proper responsibilities of parenthood. Any deficit in the uptake by the father of responsibilities or time has arisen from the mother’s acts and omissions preventing his uptake.

Any family violence involving the children or a member of their family; Any Family Violence Order

The mother says that there was violence between the father and her during the relationship perpetrated by the father.
A Domestic Violence Order application was made by the police in around April 2004 following an altercation between the parents. This was in a period shortly after final separation at the end of 2003. The father consented to the Order without making any admissions. I am not aware of any breaches of this Order.
The mother complains that she has continued to be concerned that the father’s manner of interacting with her is intimidating and therefore violent. There is nothing in the mother’s manner of interacting with the father which causes me to consider that she is any way cowered in her interactions with the father. She presents as having always been in a position of control and determination when it comes to negotiating parenting arrangements with the father.
I do not consider that there are matters of family violence which are determinative or influential in deciding this matter.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

The mother has not been able to modify her behaviours and attitudes about the father. If the children remain living with her, their capacities to have a meaningful relationship with their father are unlikely to be realised. The potential for further proceedings seems real if the children remain living with the mother.

How far apart the parents live from each other

The parties live on the Gold Coast. The mother is in (omitted) at the (omitted) end of the Gold Coast and the father is in (omitted) at the (omitted) end (closer to (omitted)). The father has plans to move house and will remain in the area in which he is currently living.

The parents’ current and future capacity to implement an arrangement for the children spending equal time, or substantial and significant time, with each of their parents

There are no matters of feasibility applicable to these parent’s respective and competing positions.

The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind

There has been no sign of improvement since the first day of trial. Regardless of where the children live they will be spending substantial and significant time with the other parent. The mother has been mainly in control of information as she has been the parent with whom the children have been living. She has done a poor job at disseminating information to the father that was within her control and knowledge. Mr M’s view is that the father’s attitude towards the mother is wholly different to the mother’s attitude towards the father. He considers that the father will not experience the same difficulty in allowing the children to have a relationship with the mother. I agree. It seems to me that the willingness to communicate with the other parent is part of that willingness to facilitate a relationship between the children and the other parent. It follows that the parents will be better able to resolve difficulties arising while implementing a substantial and significant time with a parent if the children live with the father and spend time with the mother.

The impact that an arrangement of that kind would have on the child

The children are presently experiencing an arrangement where they have substantial and significant time with their father. This has only been the case since the interim orders by consent following the first day of trial. It is plain from Mr M’s interview with the children in January 2012 that this extra time with their father has been positive for the children’s relationship with their father.

Further, if the mother’s attitude towards the father continues unabated, then the children’s capacity to have a meaningful relationship with their father will be hampered if not destroyed. The mother’s attitude has continued unabated. Her attitude towards the father on Day Two of trial was not manifestly different to her attitude towards the father on Day One. This is despite her attendance at a post-separation parenting program, the trial process, the family report, my comments to her and her consent to an interim order. The court can have no confidence that will be any future positive change in the mother’s attitude towards the father.

Discussion

For the children to have the opportunity to have a meaningful relationship with both of their parents, they must live with their father. This will necessarily mean a significant change in their living arrangements. They will no longer be primarily parented by the parent with whom they have thus far lived. They will no longer spend the bulk of their time with their half-sister in their mother’s home.
The optimal outcome would have been for the mother to change her attitude towards the father and truly embrace the children’s relationship with him. She has not been able to do that.
Like Mr M, I consider that the father will be able to facilitate the children having a meaningful relationship with the mother. To that end, for the children to have the opportunity to have both of their parents in their lives, they will live with their father and spend time with their mother on alternate weekends form Thursdays until Mondays.
The move into the father’s care is to happen without delay. I have considered whether there needs to be a period of time to allow the children to adjust to their new arrangements unhampered by contact with their mother. I am mindful that the weekend which includes Mother’s Day is only a fortnight away. I consider that the children would be well aware of that special day and that it would be unnecessarily distressing for them to be kept away from their mother at that time. I will therefore have the weekend time commence to coincide with the Mother’s Day weekend. I will however have the telephone calls between the children and the mother not commence until after that weekend, to allow them and the father a little time for them to settle into his care.
The orders, then, are those set out at the commencement of these reasons.

I certify that the preceding eighty-one-one (81) paragraphs are a true copy of the reasons for judgment of Demack FM

Date: 26 April 2012