G & B (also known as Georgio & Brindisi)

[2007] FamCA 343

FAMILY COURT OF AUSTRALIA

G & B (ALSO KNOWN AS GEORGIO & BRINDISI) [2007] FamCA 343

FAMILY LAW - CHILDREN - Interim parenting orders - s 61DA presumption not applied in interim proceeding – s 60CC factors – Concern expressed about media interest and its impact upon children

APPLICANT: Mr Georgio

RESPONDENT: Ms Brindisi

FILE NUMBER: MLF 402 of 2006

DATE DELIVERED: 20 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5/04/2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms MacMillan

SOLICITOR FOR THE APPLICANT: Hall & Wilcox

COUNSEL FOR THE RESPONDENT: The Respondent appeared in person

Orders

UNTIL FURTHER ORDER:

1. Paragraphs 3 and 4 of the Orders made 10 August 2006 be discharged.

2. The children an elder daughter born in October 1997, a younger daughter born in June 1999 and a son born in April 2002 live with the husband and the wife on a week about basis from the conclusion of school on Friday until the conclusion of school on the following Friday.

3. The first week that the children live with the husband shall commence on the Friday 27 April 2007.

4. That the first week for the wife pursuant to paragraph 2 of these Orders shall commence on Friday 4 May 2007.

5. The foregoing paragraphs of these Orders continue during school holidays until further order.

6. The husband’s time spent with the children be suspended should it be scheduled for Mother’s Day or the wife’s birthday on which days the children shall be with the wife between 9.00am and 7.00pm.

7. The wife’s time spent with the children be suspended should it be scheduled for Father’s Day or the husband’s birthday on which days the children shall be with the husband between 9.00am and 7.00pm.

8. That 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 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.

9. The Reasons for Judgment be transcribed, placed on the file and made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 402  of 2006

Mr Georgio

Applicant

And

Ms Brindisi

Respondent

REASONS FOR JUDGMENT

1. The husband and wife separated in August 2005. Since then, they have been in this Court a number of times. I have indicated the need to bring matters to an end and have set in train a process that hopefully will achieve that. In addition to being in this Court, the family dispute continues under the watchful eye of a curious media because of the husband’s family’s apparent wealth. Those proceeding are continuing in the State Magistrates’ Court. Whilst there is every reason in this country to allow the media to fulfil its function, I have reminded everyone about the provisions of Section 121 of the Family Law Act.  I am, however, now more concerned about this apparent public interest having a severe and damaging impact on the three very young and vulnerable children.  The parties as well as the press need to take stock and consider what they are doing to these children.  I have been asked to determine a number of interim issues.  In these reasons, I am only intending to deal with the interim parenting orders.  Because of the intractable conflict and the concern I have about the probable impact of the publicity on the children, I have made an order for the appointment of an independent children’s lawyer.  I have explained that concept to the wife and she seemed to see it as a positive outcome.

2. Before me, the wife appeared without legal representation.  I invited her to speak to the duty lawyer.  She reported to me that she had now engaged a firm of lawyers and a barrister who would act for her in relation to all matters including the re-opening of the financial matters.  I endeavoured under some difficulty to explain how I propose to deal with the interim application.  I gave the wife the opportunity to respond to the submissions of the husband’s counsel but, in reality, the major contentious issues have all been set out in the affidavit material.  It is important to note that the wife’s responding material was structured in such a way as to answer the evidence of the husband. 

Background

1. There are three children in this case, an elder daughter born in October 1997 who is therefore aged 9 years, a younger daughter who was born in June 1999 and is therefore 7 years and a son who was born in April 2002 and who is therefore almost 5 years of age.

2. Both husband and wife are aged 38 years.  They married in 1996 and separated in August 2005. 

3. As I have pointed out, there have been a number of proceedings since separation.  In relation to parenting orders, Young J made orders on 10 August 2006 after a contested interim hearing.  His Honour ordered that the husband and wife have equal shared parental responsibility for the children but that the children live with the wife.  Notwithstanding that, his Honour made an order that the husband spend substantial and significant time with the children for a period of five consecutive days in each fourteen.  That period was to commence at 3.30pm on the Friday when the children’s schooling concluded and was to continue until the commencement of schooling on the following Wednesday morning. 

4. One would have thought that as the transition from one house to another was to occur at the school, there would be little, if any, opportunity for conflict to occur between the parents.  As I shall endeavour to point out in the recitation of some of the material put before me, nothing could be further from reality.

5. For completeness sake, it should be pointed out that in the proceedings before Young J, the husband sought a week-about arrangement. After the delivery of ex tempore Reasons for Judgment, the husband appealed against the decision of Young J.  I am told that as a result of a decision that the husband made to seek the full time care of the children, he could hardly pursue an appeal seeking a week-about arrangement and, as such, the appeal was withdrawn.  The husband now seeks that the children live with him because of what he describes as the behaviour of the wife.  In his words, the wife’s behaviour has continued to deteriorate to the point where he needs to protect the children. 

Change of circumstances

1. Although it was not specifically argued, I am content to say that since Young J made his order in August 2006 there has been a significant change of circumstances.  In this case, the orders of Young J were based on affidavits and submissions but also on a report from a psychologist.  His Honour at paragraph 54-55 of his Reasons said: 

   “I found the report provided a good insight into the family, the upbringing of the children, the wishes of [the elder daughter], including for her parents to be nice to each other, and the children’s relationship with each of the parents and the level of comfort they had with the parents and the extended family.

   Specifically, the report did highlight the skills and attributes of each parent in the terms of Section 60CC of the Act, and their attitude and capacity. The report also highlighted that which the parents chose to ignore, the necessity to resolve these matters out of court to bring about a civil and meaningful final resolution as is so required by the objects and principles of the Act set out in s 66B.”

2. Having been referred by counsel for the husband to the report of the psychologist, which I will deal with in some detail in a moment, I am comfortable in saying that the situation between the parents has deteriorated to such an extent that the orders need to be reviewed and adjusted.  The adjustment I propose is directed towards reducing the opportunity for conflict further notwithstanding my earlier observation that the conflict should be minimal because the children were changing households at the school.  I have not been specifically addressed about the ability of the parties and, in particular,  the husband to implement my orders but as the matter is to return to me on 30 April 2007, I feel that issues can be reviewed at that time if necessary.

The material

1. In this case I was directed by the parties to read:

   (a)The Application in a Case (Form 2) filed by the husband on 26 March 2007;

   (b)The Affidavit of the husband filed 26 March 2007;

   (c)The Affidavit of the wife filed 3 April 2007;

   (d)The report of Mr R dated 21 April 2006.

2. During the proceedings, I was also directed to parts of two affidavits filed by the husband on 1 February 2006 and 31 July 2006 respectively and various parts of a transcript of proceedings before Mushin J on 7 December 2006.

The facts

1. The husband alleged that the wife had been talking to the children about financial issues which upset them and, in particular, an assertion that the children would be withdrawn from private schools in circumstances where he has apparently been paying and has the obligation to pay those fees.  The wife responded by saying that she protected the children from all financial hardship that she and the children had “gone through” but that the children were very much aware of their drastic change in lifestyle.  She went on to say that she feared that a day would come when the husband would stop paying the private school fees to hurt her.  Even taking into account the fact that the wife was unrepresented and prepared the affidavit apparently without legal assistance, I have taken her response to be such that she did speak to the children in the way the husband alleges.

2. A rather bizarre incident occurred on 26 October 2006 in which the wife attacked the husband’s car doing damage to it and to property within it.  The husband asserts that she then struck him.  The wife’s response to this was that the incident was preceded by a serious accident in which she was involved and as a consequence of which she asked the husband to collect the children from school.  When they apparently met, she sought insurance details of the motor car from the husband and he refused to provide them as a result of which she was “angered” and did the damage that was asserted by the husband.  Whilst that particular incident was bad enough, the more concerning aspect was that each party’s view about what any of the children saw of the incident was disputed.  Obviously, I am not in a position to make any findings of fact but it is interesting to note that the husband said that one of the children saw what happened and the wife says that that is not so.  Having regard to the way the husband says the incident occurred and the wife’s admission that she was angry, it seems plausible that at least the children heard what was going on if they did not see it.

3. On 6 December 2006, the husband asserts that the wife went to his solicitors’ office with the children and made a remark to a receptionist at that firm presumably in front of the children.  The wife’s response was simply to say that she could not recall saying it.  When I raised that with the wife, she said that it did not happen.  Again, I am not in a position to make any finding of fact but the initial response of the wife, albeit in an affidavit prepared by her, seems almost to concede that such an incident did occur.  I am conscious also of the fact that the assertion in the husband’s affidavit was hearsay but in this interim proceeding, I have inferred that to the extent that the issue is in dispute, the husband intends to call the evidence to support the allegation in any contested hearing. 

4. On 24 January 2007, the husband asserts that a telephone conversation occurred between he and the wife.  I will not set out the full details of what is alleged to have been said but the clear inference to be drawn was that the wife was manipulating two of the three children.  The wife’s response was to deny what the husband said.  However, the husband then went on to say[1]:

   “After the telephone call was terminated by me I received a further telephone call from the wife.  She attempted to play a recording of a series of questions she had put to the children to elect a response to the effect that they did not want to come and live with me.”

   i)[1] Para 12 of the affidavit filed 26 March 2007

5. The wife’s response[2] was:

   “What was tapped (sic) by me without the children knowing was the children expressing fear towards their father and not wanting to spend time with him.”

   ii)[2] Para 12

6. There are a number of issues of serious concern to me in relation to that particular incident.  The first is the fact that the wife was taping the children at all.  Whether or not they were aware that they were being taped is not the point.  The motivation for taping the children’s conversation was not stated but I can only infer that it was for some evidentiary purpose.  If that is so, at a trial I would be very critical of that course of action.  The second concern is that the wife is asserting that this apparent taped conversation refers to the fact that the children fear their father.  There was no other evidence in the affidavit to support that and, furthermore, it is inconsistent with the psychologist’s report to which I shall refer in a moment. 

7. The husband then referred to an incident in which one of the children was to attend a significant medical appointment.  He asserted that the wife refused to provide the appointment details.  Rather than responding that she did so provide the details, the wife’s affidavit reads[3]:

   “The husband pays for the children’s medical bills.  He would have a record of all doctors seen by the children.  Alternatively he could ask me.”

   iii)[3] Para 14

8. I raised this issue with the wife and she was adamant that she had told the husband about the medical appointment.  I am left with a very confused situation having regard to the inconsistency of that answer in the courtroom with what she swore in the affidavit. It certainly appears to me to be consistent with the complete breakdown of any communication between the parties.  The wife concedes that she cannot speak to her husband in a civil way and I suggested that perhaps the communication should be through intermediaries.  On an issue as significant as a medical appointment, it is fundamental to parenting that both parents who have the best interests of their children at heart be involved.  If the relationship between the parties is as bad as it now appears to be, the wife could have asked the medical practitioner to advise the husband of the appointment.  No doubt this issue will be fleshed out in any full scale hearing.

9. In paragraphs 16-17 of the husband’s affidavit, he refers to the fact that the wife refused to provide him with part of one of the children’s school uniforms on two occasions, ultimately as a result of which he purchased a spare uniform.  In normal circumstances, this would be seen as a trivial issue and in a family where money does not seem to be an object, a complaint like this is rather puzzling.  However, it indicates the level to which the situation has deteriorated that there cannot even be agreement over simple issues like this.  The wife’s response to the husband’s assertion was simply that the school uniform was not necessary because the child could have worn anything.  As much as the husband’s position was rather odd, the wife’s was even more curious.

10. There was much material about issues such as head lice, press coverage and uncomplimentary text messaging.  I am not able to determine the truth of these allegations nor is it appropriate that I should.  The wife’s response to the head lice issue was that the children tell her that they catch the lice from their cousins all of the time.  I am not sure how that could possibly be correct having regard to the ages of the children but it is quite clear that there is no common approach to the parenting of these children.

11. The husband went on to say[4] that the wife has failed to return personal items as a result of which he had issued a contravention application which in turn, resulted in the Court issuing a warrant for the wife’s arrest because she failed to attend Court.  I am not entirely clear what the wife’s attitude is to this issue.  The media appear to have trivialised the situation by having a large headline referring to a “hammer” but then referring in the article to a number of other articles of a personal nature as well.  The wife in the proceedings before me made reference to a “meat cleaver”.  The impression that I was left with was that the wife saw all of these issues as trivial and that she was not concerned about them because the husband had plenty of money and could replace them.  As I tried to explain to her, trivial or not, there were orders of a Court in existence and they had to be obeyed. I am not convinced the wife understands the impact of that point.

    iv)[4] Para 20

12. The husband alleges also that the wife refused to allow him to speak to the children on the telephone.[5]  The wife denies that allegation saying that she had told her husband that she had lost her telephone.  She then added that she had been very frustrated about his refusal to allow her to speak to the children when they were in his care.  The husband for his part however, says that he always facilitates the children speaking to the wife when they are in his care.  That is an issue about which I can make no finding, and as I have already indicated, nor should I.

    v)[5] Para 23.

13. As I have already mentioned, this case has attracted considerable interest.  The wife has expressed the view that by keeping it in the media spotlight she feels safe from the husband’s family.  I declined to deal with the media issues sought by the husband because I felt that it was more important to deal with the children’s issues but that matter will be addressed by me on 30 April. 

14. On 15 March 2007, the husband says that a friend of his, Mr D,  received a telephone call from the wife asking that he relay a message indicating that “this”, whatever that means, was “just the beginning and that there was more trouble coming soon”.  The husband did not elaborate as to what the precise words of the message were, nor was Mr D required to provide an affidavit.  The wife responded by saying that Mr D had told her that the husband’s family were very powerful and that she should take care.  The precise details of the conversation remain a mystery but what is abundantly clear is that the wife does not deny that the telephone call took place.  I make no findings about this and again, nor should I, but this will no doubt be an issue of considerable importance at trial.  The very fact that the telephone call took place however, without explanation from the wife as to the reasoning behind it, leaves me with some disquiet.

15. That is heightened by the fact that in paragraph 37 of the husband’s affidavit, he refers to the telephone conversation in which the wife is reputed to have said “You are all going to pay”.  The wife’s affidavit in reply refers more to the other issues in the paragraph about head lice but either misses or avoids the questions of the various threats that are referred to by the husband.

16. The dialogue between the parties continued on 21 March 2007 when the husband says that he received a series of telephone calls from the wife commencing in the morning.  He then says:

    “She told me she had just tried to get through to the [PR office of the husband’s employer] and that the media officer had hung up in her ear. She asked that I pass a message on to the media officer saying that she should be aware that she, […], has a tape recording of a conversation reportedly between my father and her from some six months ago ….. She went on to say she would hate the tape to be stolen or fall into the hands of the media.”

1. The wife’s only response to this paragraph was that she had a recording of the husband’s father threatening her. Whatever was the logic behind the telephone call, combined with the anger that has been conceded and the aggressive reactions that I witnessed in the courtroom, I have a very uncomfortable feeling about that particular incident. I do not believe that I am in a position to make any finding of fact but even allowing for the absence of legal representation and the drafting of the affidavit, it seems clear that the wife has some specific issue with the husband’s family and is using that in the way described by the husband for a purpose that I cannot understand. I will shortly come to the questions that I am required to consider under s 60CC of the Family Law Act and I express a troubled view about the wife’s parenting capacity if she intends to denigrate the husband or promote her own agenda against the husband’s family through the media. This, as I have already pointed out, must have a severely adverse impact upon these three young children. If in fact there is some evidence of a criminal nature in the possession of the wife, it behoves her to hand the matter to the appropriate authorities.

2. This last incident again highlights the dilemma for these children.  According to the husband, the wife said that if the children returned with head lice again she had an intention to put a personal advertisement in the newspaper asking him to refrain from so doing.  That, combined with what I have just referred to in the earlier paragraphs of these reasons, indicates either very poor parenting or that some form of a game is being played which if it became public property in the media, could disadvantage the children.

3. The husband’s affidavit is a chronology of events involving issues other than those directly affecting the children and accordingly I shall not repeat them for the purposes of these reasons.  However, the following passages from the parties’ respective affidavits epitomises the problem.  The husband said[6]:

   “I received a call from the wife.  It only lasted 40 seconds.  She said, “You fucking maggot, I warned you”.  I asked her to explain and she told me that she had to keep [the elder daughter] home from school today because she was covered with head lice.  I explained to her that I treated all three children on Tuesday evening for head lice.  She said, “I warned you”. 

   vi)[6] Para 42.

4. The wife by way of response[7] said:

   “Obviously frustrated at the head lice”.

   vii)[7] Para 42.

5. I highlight this particular paragraph because it indicates the startling admissions that the wife is prepared to make to what are very serious matters going to the question of parenting capacity.  It is because of issues such as that that I feel that it is appropriate to find that there has been a significant change of circumstances since the Orders of Young J.

6. The wife in her affidavit but without paragraphs being numbered, went on to say that the children were finding it hard to cope with the five day separation that they had from her.  She reported that their youngest child is very emotional on a Friday because he knows that he will not see the wife that night.  I have taken this into account along with the matters to which I shall refer from the psychologist’s report in April 2006 as the basis to say that there should be some change but not the significant one that the husband seeks.

7. The wife’s affidavit goes on to set out a series of complaints about what happens when the children are with the husband and whilst they are issues of concern, for the same reason that I have set out earlier, I am not in a position to make any finding of fact about them.  However, they are not as significant as the issue of parenting capacity which, for reasons that I will refer to in a moment, become very important.

8. The wife’s affidavit goes on to say that the husband “cannot be bothered” to do the things with the children that she obviously does.  I noted in the psychologist’s report his comment about the view that the wife has that she is primarily responsible for the emotional and physical wellbeing of the children which is a theme that the wife has made very clear in the courtroom before me. 

9. The wife’s affidavit ends with the following quote:

   “Instead of having team [the husband’s family] devise methods of trying to break me, he should sit back and realise that by trying to hurt me it hurt the children.”

10. That quote concerns me as again failing to recognise the significant importance that each parent has in the raising of these children.  That no doubt will become a point of contention in the forthcoming trial and, for that reason, I found the report of the psychologist of some significance. 

The psychologist’s report

1. Mr R is a counselling psychologist with considerable experience who prepared a report dated 21 April 2006 as a result of a Court order.   This was the report to which I have referred that was used in the proceedings culminating in the orders of Young J in August 2006. 

2. Apart from the fact that the husband wanted to rely upon the report and the wife claimed that she did not want Mr R involved in any further assessment, it is interesting to reflect on his observations 12 months after they were made.  Mr R opined about the fact that:

   (a)The wife held the view:

   ·That the children are the way they are because she had raised them (a view she repeated loudly and strongly before me as I have indicated above)

   ·That the husband was a great, patient father and that the children liked being with him.

   ·That the children were exposed to the husband’s family (rather than specifically the husband) making derogatory remarks about her.

   (b)The husband held the view:

   ·The wife’s views about his family denigrating and demeaning her were unfounded but more a reflection on her own character.

   ·That he had been active in the children’s lives.

   (c)[The elder daughter] loved both parents and did not want to hurt either.

   (d)[The younger daughter] was sad about her parents break up but noted they did not fight.

3. Mr R’s observations of the various interactions between parents and children included:

   (a)the wife was “ supportive, child-focussed and warm”;

   (b)the father appeared as “warm, gentle, attentive, child-focussed, engaging and confident and caring in his parenting”.

4. Mr R’s conclusions were very much predicated on assumptions about the truth of issues between the parents, particularly issues of conflict.  He said he could not determine the truth of the disputed issues.  Having said that, Mr R said[8]:

   “It is concerning that they (the children) all appeared as being affected by the separation of their parents, the experiences they have had both during the marriage and post separation and by their need for the parents to engage in a conflict-free manner.  The concern here is that if there is a continuation of conflict and acrimony between the parties regardless of who is responsible for it the children are at risk of suffering and experiencing damage.  This could result in them withdrawing, becoming sad or depressed, and forming inappropriate alliances against a parent, being confused and even becoming aggressive.”

   viii)[8] Page 15.

5. Notwithstanding his reservation about the disputed evidence, there was then a piece of advice for the wife.  Mr R said:

   “It may be useful for [the wife] to reflect on her own feelings and how they may affect the children as well as [the father] about his family and situation.”

6. Mr R then suggested that the husband “adequately” address the denigration issue “should there be” such an issue. 

7. A very strong message from Mr R appears at page 17:

   “It is essential that the children are always protected from conflict, inappropriate behaviours and comments and from being exposed to adult business, concerns and issues of this dispute.  …  As noted above the essential intervention required is that there will not be any continue (sic) exposure of the children to any inappropriate issues that are better kept for the adults to resolve.  The children need to be allowed to be children and enjoy their childhood without further stressful trauma.”

8. On the question of what parental proposal was appropriate and what suited the needs and interests of the children, Mr R’s view was (Footnote page 18):

   “(The wife) is presently the primary resident parent and it is untested as to how they would react to being away from her for any length of time.”

9. Mr R then went on to say:

   “It is not as clear as to the level of affect (sic) the two younger children would experience being away from their mother for a week at a time.”

10. Of the children’s needs, Mr R said[9]:

    They appear to love and need both their parents as well as have significant attachments with both parents and this is a good indicator for a shared care arrangement to work.  Share (sic) care arrangements also require cooperation and good communication.”

    ix)[9] Page 20.

11. I raised the question with counsel for the husband about what impact the behaviour of the wife was having on the children, if I accepted that it was in fact occurring, having regard to the views of the report of Mr R.  Ms MacMillan pointed to some of the observations I have referred to above but particularly to those comments of Mr R on page 15 of his report.

12. On the basis of those concerns, I make the observation that any amount of time that the wife spends with the children could be spent adversely affecting their interests. I have to balance that against the unknown answer to the question about the impact on the children of spending less time with and being away from their mother. Ultimately I have to make a decision on limited but in fact largely unchallenged evidence. That subjective decision, guided by the factors in s 60CC, must be one that I am satisfied is in the best interests of all three children.

13. Because of this unknown answer, I am not prepared to remove the children from the wife nor significantly reduce the time she spends with them.  I stress, however, that I am doing that on the basis of the evidence before me.  I express a serious worry that what Mr R said had to stop seems to have now escalated.  Whatever justification the wife may have for her expressed concerns, the evidence before me reflects more adversely on the wife than it does upon the husband.  In saying that, I have taken into account that not only has the wife appeared before me and in earlier courts unrepresented but also her statement to me that her affidavit was done hastily.  The serious issues for me, therefore, are that:

    (a)The wife concedes some of the incidents did occur but brushes off her behaviour as understandable because she was reacting to what the husband was doing to her.  I do not accept that justification; and

    (b)The wife’s anger which she says was justifiable now spills over into the courtroom with outbursts of loud and serious accusations against her former lawyers, her husband, the husband’s family and the husband’s “team” of lawyers.  Whatever basis she may have for those views, her behaviour and demeanour supports the view that there is a serious conflictual situation between the parents and that she is exacerbating it.

14. In respect of this latter issue, I make the observation that the wife could not contain herself when submissions were put by counsel for the husband, accusing counsel of lying.  The wife, albeit unrepresented, has had very experienced lawyers acting for her in the past, has participated in courtroom proceedings and is described by Mr R as having tertiary qualifications in economics.  In respect of the latter, she was asked to undertake an honours program but declined.  In my courtroom, she appeared to be intelligent and articulate.  When asked to comment about something, she said that she was “just a mother”.  I do not accept that.

15. Accordingly, were it not for the fact that I have insufficient evidence and, in particular, objective independent expert evidence, I may have taken a different course to that which I have now taken. 

16. I am conscious of what the Full Court said in Goode & Goode[10].  I have identified the competing proposals of the parties.  They could not be further apart.  The issues in dispute are also quite clear.  I have endeavoured to identify the relevant facts and made comments about those upon which I have been able to make a finding and those upon which I have not and should not.

    x)[10] [2006] FamCa 1346 15 December 2006.

17. In respect of the factors set out in s 60CC, I shall turn to those matters in a moment.

18. In respect of the presumption in s 61DA of the Family Law Act, the orders of Young J already provided the parties have equal shared parental responsibility but his Honour was not then prepared to move to the next step of making an order that the parties spend equal time. Insofar as the presumption is concerned in this hearing, I rely on s 61DA(3) and say that notwithstanding there is already an order in existence and a finding that equal shared parental responsibility should apply, I do not think that it is a matter in which I should apply the presumption for the purposes of determining whether there should be equal shared time or even as Young J found, substantial and significant time. I am therefore content to say that in this case I will not be applying the presumption. That does not mean that I do not have to, however, make a decision which is in the best interests of the children. As I have already pointed out, I have taken the view that there is a need to extend the time that the husband has with the children and reduce that of the wife for the purposes of endeavouring to reduce the conflict. In the circumstances, I say that it would not be in the best interests of the children to simply apply the presumption notwithstanding that the end result of the orders that I make will have the same effect.

Section 60CA

1. Section 60CA deals with the best interests of the child and provides that:

   “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.”

2. In determining what is in the child’s best interests, s 60CC provides that the court must consider the following matters in determining what is in the best interests:

   “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); and

   (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.

   (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.

   (4A)     If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

3. Importantly, s 60CC(4A) provides:

   “If the child’s parents have separated, the court must, in applying subsection (4) have regard, in particular, to events that had happened, and circumstances that have existed, since the separation occurred.”

4. In respect of that last provision, I am very concerned about what has happened since separation and, more importantly, since August 2006. 

5. In relation to the primary considerations, it is my view that the children will benefit from having a meaningful relationship with both of their parents providing each of them focuses on the needs of the children rather than what appears to be the war that is being waged over issues that are hard to clarify and determine.  I am satisfied, however, that on the material I have read, the children do seem to have a meaningful relationship with both of their parents.  Notwithstanding the assertion by the wife that the children fear the husband, that appears to be inconsistent with everything that I have read and as I am not able to make any finding in respect of that assertion, I am not prepared to give it any weight. 

6. The second of the two primary considerations is the one that troubles me most.  It is fundamental that the children be protected from physical and psychological harm of being subjected to or exposed to, abuse, neglect or family violence.  The definition of abuse is limited whilst family violence is not.  Just what is happening in this family is hard to know but it seems clear that the children are on the periphery of a lot of the events that are happening between their parents.  Those events have already been amplified by the media coverage and as I have already expressed the view, the children need to be protected from what is otherwise a public brawl between their parents. 

1. For the purposes of the additional considerations, I am satisfied that on the material that I have read including the report that is now twelve months old, the children do wish to have a relationship with both parents.  I am also satisfied that they have a very close relationship with both parents. 

2. I express concern as I have already done in relation to the willingness and ability of the wife to facilitate and encourage a close and continuing relationship between the children and the husband. I am not at all confident about what I have been told that that is happening.

3. I do not know what impact a further two days away from the wife would have on the children but having regard to the fact that they seem to have spent considerable time during holidays with each parent and the final hearing of this matter is to be expedited, I do not see any immediate problem with the extension of time that I propose.

4. I have also expressed concern about the capacity, particularly of the wife, to provide for the needs of the children.  Although she clearly has the capacity to provide for their physical needs and attends all of the functions and activities in which the children are involved, I have some concerns about their emotional needs, particularly if they are aware of the war that is going on between the parties.  I appreciate that I have had a very limited snapshot of what is going on and that the evidence is untested but it certainly reflects badly on the wife if much of what the husband says is true. 

5. That same concern is expressed in respect of the attitude of the wife towards the children and her attitude to the responsibilities of parenthood.  I have not any evidence to indicate that the husband has been similarly irresponsible and to all intents and purposes, I can only draw the conclusion that his desire is to remove the children from the media spotlight and from whatever it is that is going on between him and his wife, particularly in relation to his family.

6. I make no specific findings in relation to questions of family violence notwithstanding that the evidence would reflect badly on the wife insofar as she conceded that she damaged the husband’s car and his allegation that she then struck him was not responded to in her affidavit.  However, that issue will no doubt come out in the fullness of time. 

7. I am also conscious that the wife has sought an intervention order in the local Magistrates’ Court but at this stage, the magistrate apparently has declined to make an interim order and there is a contested hearing coming up. Section 60CC(3)(k) refers to a final order in circumstances where it was contested. I do not therefore propose to take the local proceedings into account.

8. Section 60CC(4) reiterates the Parliament’s desire that a court take into consideration the extent to which various parents have either facilitated or failed to facilitate or taken or failed to take the opportunity to participate in not only decision making but also spending time with and communicating with the children. All of the matters to which I have referred above and about which I have found reflect badly on the wife in respect of this particular provision. The husband appears always to have desired to have a significant role in the lives of these children and I have no evidence other than what he does has been successful. The warning of psychologist Mr R from twelve months ago does not however appear to have been heeded by the wife.

9. I have already pointed out that s 60CC(4A) requires that a court must take into account the circumstances that have occurred since separation and I have done so in that I have expressed concern that the issues flagged by Mr R that required attention and which would presumably have resolved a lot of the emotional and psychological problems for the children have not been heeded and, unless the court intervenes, may not be heeded in the future.

10. For those reasons, I propose to alter the orders of Young J to direct that the children live with the husband during one week and with the wife the next.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:              20 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as G & B