GATENBY & CHISLER

[2017] FamCA 1109

FAMILY COURT OF AUSTRALIA

GATENBY & CHISLER [2017] FamCA 1109

FAMILY LAW – CHILDREN – PARENTING – whom a child lives with – where there is an application for equal time

FAMILY LAW – PROPERTY

APPLICANT: Ms Gatenby

RESPONDENT: Ms Chisler

FILE NUMBER: MLC 3057 of 2016

DATE DELIVERED: 17 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 – 17 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: Leanne Cain & Associates

Orders

Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 18 January 2018
(as underlined and annotated, including paragraph numbers 18 to 29 inclusive)

IT IS ORDERED THAT
Parental Responsibility

1.That the parties have equal shared parental responsibility for the children of the relationship:

(a)     B born … 2006;

(b)    C born … 2008; and

(c)    D born … 2008

(“the children”).

Living Arrangements

2.That the children live with each of the parties during school term times:-

(a)     For the remainder of the 2017 school year, in accordance with the provisions of subparagraph 3(a) of the orders of 28 April 2016; and

(b)    From the commencement of the 2018 school year:-

(i)with the Applicant from the conclusion of school (or 3.30pm if a non-school day) on each alternate Wednesday until the commencement of school on Monday and on each other Wednesday from the conclusion of school (or 3.30pm if a non-school day) until 7.30 pm; and

(ii)with the Respondent at all other times not specified in sub-paragraph (a).

(Amended 18 January 2018)

3.During school holiday periods the children live with the parties as follows:-

(a)     for one half of the Term school holidays as agreed and in default of agreement:-

(i)in even numbered years with the Respondent from the conclusion of the school term until 5pm on the mid-point day and with the Applicant from 5pm on the mid-point day until the commencement of the next school term; and

(ii)in odd numbered years with the Applicant from the conclusion of the school term until 5pm on the mid-point day and with the Respondent from 5pm on the mid-point day until the commencement of the next school term.

(b)    For the long summer vacation in 2017/2018 as follows:

(i)    with the Applicant

(A)from the conclusion of school on Friday 22 December 2017 until 1pm on 25 December 2017;

(B)from 1pm on 26 December 2017 until 1pm on 3 January 2018; and

(C)from 1pm on 13 January 2018 until 1pm on 22 January 2018

(ii)with the Respondent

(A)from 1pm on 25  December 2017 until 1pm on 26 December 2017;

(B)from 1pm on 3 January 2018 until 1pm on 13 January 2018; and

(C)from 1pm on 22 January 2018 until the commencement of school in the first term of 2018.

(Amended 18 January 2018)

(c)    for one half of the long summer vacations in 2018/2019 as agreed between the parties with the assistance of Ms E or such other professional as may be agreed between the parties (if required).

(d)    for the long summer vacation in 2019/2020 and each alternate year thereafter with the Applicant from the conclusion of school until 5pm on the mid-point day and with the Respondent from 5pm on the middle Saturday until the commencement of Term 1.

(e)    for the long summer vacation in 2020/2021 and each alternate year thereafter with the Respondent from the conclusion of school until 5pm on the mid-point day and with the Applicant from 5pm on the middle Saturday until the commencement of Term 1.

4.That for the purposes of the children’s time with the parties pursuant to Order 3(a) and Order 3(b) herein the party who has not spent time with the children in the last week of the school holidays will have the children in their care for the first weekend of term.

Communication

5.That the children be at liberty to telephone, FaceTime, text, email, Skype and/or communicate via any other form of electronic communication with the non-resident mother at all reasonable times as requested by the children, and the resident mother is to facilitate same.

6.Each party keep the other party promptly advised by text message or email if the children or any of them become sick or injured and the details of any proposed treatment for such illness or injury. 

7.Each party be and is hereby restrained from denigrating or permitting any other person to denigrate the other party in the presence or hearing of the children, or any of them.

Special Events

8.That in the event the children are not already spending at least two consecutive nights with the Applicant (pursuant to any other Order herein) during Hanukkah, the children’s time with the Respondent will be suspended for two consecutive nights from after school (or 5pm if a non-school day) until the commencement of school (or 5pm if a non-school day) with such days to be agreed between the parties and in default of agreement for the first and second nights of Hanukkah each year, with the Respondent to have make-up time as agreed in the week prior or the week after Hanukkah.

9.Notwithstanding any other provision of these Orders:

(a)     the children will spend time with the parties for Christmas as follows:

(i)in odd numbered years:

(A)with the Applicant from 1pm on 24 December until 1pm on 25 December; and

(B)with the Respondent from 1pm on 25 December until 1pm on 26 December.

(ii)in even numbered years:

(A)with the Respondent from 1pm on 24 December until 1pm on 25 December; and

(B)with the Applicant from 1pm on 25 December until 1pm on 26 December.

(b)    The children will spend time with each parent on the parent’s birthday (if they are not already in the care of that parent) from after school (or 10am if a non-school day) until the commencement of school the following day (or 10am if a non-school day).

(c)    On each child’s birthday that child will spend time with the non-resident parent from the conclusion of school (or 3.30pm if a non-school day) until 7.30pm that day.

Travel

10.Each party is at liberty to travel overseas with the children upon the provision of written notice to the other parent no less than 28 days prior to proposed travel with such notice to include destination, dates of travel and a copy of any airline tickets. Each party provide the other party with notice of travel before informing the children (or any of them) of the arrangement.

11.The party who has last travelled overseas with the children will hold the children’s passports and provide same to the other party pursuant to Order 12 (a).

12.For the purposes of paragraph 10 of this Order:

(a)     within 14 days of receiving notice of the other party’s intention to travel overseas with the children each parent will provide the children’s passports in their possession to the parent intending to travel.

(b)    that the parties’ be at liberty to suspend the other party’s school holiday time with the children for one week per calendar year for the purposes of overseas travel with the children on the provision that make-up time is offered to the other party as agreed and in default of agreement at a time to be elected by the other party.

13.The parties do all such acts and things and sign all documents required to enable the issuing of a new passport for the children within 7 days of a request from the other party in writing.

Miscellaneous

14.That the parties shall:

(a)     keep the other advised at all times of their respective residential addresses and landline and mobile telephone numbers;

(b)    advise the other of all sporting and extra-curricular activities in which the children, or any of them, are involved and permit the other to attend such functions;

(c)    authorise all schools at which the children may attend, from time to time, to:

(i)provide the other, at the expense of the other, with copies of all school reports, school notices and school photographs in relation to the children;

(ii)permit the other to attend all school functions to which parents are normally invited;

(iii)authorise any school which the children attend to forward to the other party, at that party’s expense, copies of all reports, notices, newsletters, photographs and alike.

15.That all previous orders be discharged.

Property Orders

16.That the Applicant pay or cause to be paid to the Respondent the sum of $1,085,333 (“the payment”) such sum to be paid within 60 days.

(Amended 18 January 2018 – NOTING THAT this period expired on 16 January 2018)

17.That contemporaneously with the payment:

(a)     the Respondent do all such acts and things and sign all necessary documents to:

(i)transfer to the Applicant all of her right, title and interest in the real property situate and known as F Street, Suburb G in the State of Victoria, more particularly described as Certificate of Title Volume … Folio … (“F Street”);

(ii)transfer to the Applicant all of her right, title and interest in the H Portfolio account number ..30;

(iii)deliver the Motor vehicle 1 to F Street;

(iv)discharge and/or re-finance the I Bank investment loan (account number …23) secured over F Street, registered number …2W (“the I Bank mortgage”) into her own name so as to remove F Street as security.

(b)    the Applicant do all such acts and things and sign all necessary documents to:

(i)discharge or re-finance the joint I Bank line of credit (account number …12) into her sole name;

(ii)withdraw the caveat (number …3K) secured over real property situate and known as J Street, Suburb G more particularly described as Certificate of Title Volume …97 Folio …24 (“J Street”).

collectively referred to as (“the transfers”).

18.That if called upon to do so the Respondent shall do all such acts and things and sign all necessary documents to facilitate the Applicant securing further borrowings against F Street in order to make the payment to the Respondent pursuant to paragraph 16 herein.

19.That the Applicant retain for her sole use and benefit to the exclusion of the Respondent her interest in the following:

(a)     her interest in the real property situate and known as K Street, City L, UK;

(b)    all bank accounts and investments in her name;

(c)    her Motor vehicle 2;

(d)    the Motor vehicle 1;

(e)    her interest in any artwork that she may receive from the estate of her late father, Mr Gatenby;

(f)     all furniture and chattels in her possession; and

(g)    her superannuation entitlements.

20.That the Respondent retain for her sole use and benefit to the exclusion of the Applicant her interest in the following:

(a)     her interest in J Street;

(b)    her Motor Cycle;

(c)    her Motor vehicle 4;

(d)    all bank accounts and investments in her name;

(e)    all furniture and chattels in her possession; and

(f)     her superannuation entitlements.

21.That the parties will each be solely responsible for and pay and indemnify the other with respect to all liabilities in their respective names.

22.That in the event the Applicant fails to make the Payment by the Date and the default continues for 14 days, the parties forthwith do all such acts and things and sign all such documents necessary to cause the sale of F Street upon the terms and conditions agreed by the parties and in default of agreement upon such terms and conditions as ordered by this Honourable Court and the proceeds thereof be applied as follows:

(a)     first, to pay all costs and commissions of sale;

(b)    second, to discharge any registered mortgage secured against F Street;

(c)    third, payment of necessary rate and land tax adjustments;

(d)    fourth,  to  pay such amount of the Payment as shall be owing to the Respondent save for a deduction in the sum of the outstanding balance of the I Bank mortgage as at the settlement date (“the default payment”);

(e) fifth, penalty interest as provided for in the Family Law Rules calculated on the default payment payable from the payment date; and

(f)     sixth, the balance to the Applicant.

23.The parties do all acts and things and sign all documents as may be required to cause the funds standing to the Respondent’s credit in her name in the M Superannuation Fund to be rolled over to a compliant superannuation fund of the Respondent’s nomination.

24.That upon the rollover being completed the Respondent do all such act and things and sign all such documents necessary to resign her position as Trustee of the M Superannuation Fund and that the Respondent do all such acts and things and sign all necessary documents to facilitate the completion and lodgement of the taxation returns and financial statements for the Financial Years ending 30 June 2016 and or 2017 as may be required.

25.That unless specified in these Orders and except for the purposes of enforcing the payment of any monies due under these Orders:

(a)     Each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of this order, including but not limited to funds held in bank accounts, motor vehicles, real property, investments, furniture and chattels;

(b)    All insurance policies are to become the sole property of the owner named thereon;

(c)    Each party forego any claims they may have to superannuation benefits belonging to, earned by or accrued for the other;

(d)    Each party be solely liable for and indemnify the other with respect to liabilities in that party’s sole name, including but not limited to credit cards and personal loans; and

(e)    Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

IT IS DIRECTED:

26.That the minute of parenting orders as amended be marked Exhibit “M3” and remain on the Court file.

27.That the minute of property orders as amended be marked Exhibit “OM5” and remain on the Court file.

IT IS FURTHER ORDERED:

28.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

29.That otherwise all extant applications be dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

AND IT IS NOTED

A.That the Respondent’s intention is to continue to reside in the eastern suburbs of Melbourne.

B.It is the parties’ common intention that the children shall complete their primary education at N School.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gatenby & Chisler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3067 of 2016

Ms Gatenby

Applicant

And

Ms Chisler

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

Introduction

1. These proceedings concern the children B, who is 11 years old, and C and D, who are twins aged nearly nine years, and a final alteration of property interests.  I am required to decide the residential arrangements for the children during school term time, the assessment of proportions in which the legal and equitable interests in the property should be divided, and which of the mothers should retain the former matrimonial home.

2. The children currently reside in an equal shared parenting arrangement in a 14-day cycle, in which each seven days is divided into two/five, with a number of changeovers. The dispute is whether the children should reside week about during school terms, as the applicant Ms Gatenby proposes, or live with the respondent Ms Chisler and spend Friday through to Monday each alternate weekend and each Wednesday afternoon with the applicant, as the respondent proposes. 

3. The dispute about quantum of property represents 2.5 per cent of the assets owned by the parties or either of them. Which party should retain the former matrimonial home was hard fought. 

4. On all issues, neither mother was for turning.

5. I compliment senior counsel and counsel for the parties on the preparation of a series of tables about assets which facilitated an agreement about the asset pool.  It was helpful in all its iterations.  Furthermore, Counsel have prepared minutes of orders for everything that is agreed and I will rely on those documents in my composition of the final order.

The proceedings

1. There was no independent children’s lawyer.

2. These parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.

3. The principles for conducting child related proceedings, which I observed, are as follows:[1]

   [1] Family Law Act 1975 (Cth) s 69ZN.

   (a)The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   (b)The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.

   (c)The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.

   (d)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

   (e)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

4. After consultation with the senior counsel and counsel I have agreed to deliver these short reasons ex tempore. I will settle and augment then with a summary of legal principles in due course. Everyone’s preference was for the family to get a decision today supported by the fundamental reasoning behind the decision rather than wait.

Proof and Findings of Fact

1. Section 140 of the Evidence Act for the Commonwealth provides a relevant test for the Court’s assessment of evidence in this matter.  The facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities. 

2. A statement of fact is a finding of fact.  In this case, many of the facts were agreed before the proceedings commenced and, when the proceedings concluded, most of the facts were agreed.

History of relationship

1. Ms Gatenby is 54 years of age and Ms Chisler is 48 years of age.  The parties commenced residing in a de facto relationship in 2001.  They purchased the former matrimonial home in October 2004, and I will return to a history of the financial transactions which are relevant for these proceedings when I deal with property matters. 

2. The parties’ first child, B, was born in 2006. 

3. In October 2007, Ms O, who is Ms Chisler’s mother, purchased a residential property across the park from the former matrimonial home.  It is a property located in J Street, Suburb G.  The acquisition of the property was the subject of evidence because Ms Gatenby asserted that it had been agreed that she and Ms Chisler would assist Ms O with raising funds in return for which Ms Chisler’s equity in the property would increase by 1 per cent each year. Ultimately Ms Gatenby abandoned her contention and now accepts that the equitable interests in Ms O’s property correspond with the title.

1. In 2008, the parties’ twins were born, C and D. 

2. In June 2010, Ms Chisler received a redundancy payment of some $100,000.

3. In July 2014, Ms Chisler commenced her current employment with the public service.  Ms Gatenby is employed as an academic.

4. On 13 February 2016, the parties separated on a final basis.  Ms Chisler moved out of the former matrimonial home, taking the children with her, and went to live temporarily with her mother, Ms O, in the J Street flat across the park from the former matrimonial home.  Ms Gatenby continued to live in the former matrimonial home.  The separation was preceded by an unfortunate incident whilst the parties were out of Melbourne.  I am satisfied that the parties separated after a period of estrangement between the mothers.  This involved Ms Chisler sleeping out of the couples’ bedroom for a period of at least six months prior to separation.  She occupied a blow-up mattress on the floor of the study downstairs or, alternatively, slept on the coach in the lounge room.

5. On 11 March 2016, Ms Chisler moved into rental accommodation at Suburb W, which is in fairly close proximity to the former matrimonial home. 

6. By 18 March 2016, the parties agreed in mediation on shared care arrangements for the children, reputedly on a tentative trial basis.  Until then there had been a disruption in regular time between Ms Gatenby and the three children.  In fact, Ms Chisler did not permit Ms Gatenby to see the children on a regular basis or at all.

7. Orders were made for the parties to undergo a psychiatric assessment which in due course they did with Dr P releasing a report in June 2016.  On 17 June 2016, a report was released by Dr Q, a psychologist.  On 28 June 2016, orders were made, not by consent, continuing the shared care arrangements and for various matters ancillary to an alteration of property interests. 

8. The parties have had a number of interim hearings involving one in which travel to the United States by the applicant, Ms Gatenby, and the children needed to be authorised by order of the Court.  That occurred in March 2017.

9. Dr Q released a report of an updated assessment in August 2017.  The matter was listed for final hearing in this Court in September 2017, but unfortunately was not reached.  I took the matter commencing on 13 November 2017.

Evidence

1. The applicant, Ms Gatenby, relied on affidavits affirmed on 5 June 2017, 17 July 2017, 9 November 2017, and a statement of financial circumstances affirmed on 5 June 2017.  The applicant mother was a composed and firm witness who was not taxed by cross-examination which was minimal.  Out of the witness box her composure dropped at times during the five-day hearing to reveal sadness and upset at the possibility of the children residing with her for less than seven days a fortnight.  At one point, senior counsel for Ms Gatenby asked for time for Ms Gatenby to recover and we adjourned for the day.

2. The respondent mother, Ms Chisler, relied on affidavits of herself affirmed on 30 June 2017 and 6 September 2017, and her financial statement affirmed on 30 June 2017.  The respondent was less composed as a witness, was more emotive and was challenged by Mr Bartfeld’s cross-examination which was subtle and effective.

3. Witnesses remember events differently rather than mechanically. I hear evidence of what each perceives happened.  I am satisfied that in this case the parties were honest witnesses inasmuch as each gave evidence in accordance with her recollection and neither set out to mislead the Court.  However, perceptions are highly subjective and recollections are imperfect.

4. Ms Chisler relied on the evidence of her mother, Ms O, who affirmed an affidavit on 3 July 2017 and swore up to a proof of evidence dated 15 November 2017 (exhibit M2 in the proceedings).  Ms O is an educationalist.  I found Ms O to be a thoughtful and credible witness.  I thoughtlessly referred to Ms O as the “maternal grandmother” throughout the trial. This was adroitly pointed out to me by Mr Bartfeld in the course of his final submissions.  Of course, the children have two mothers and their mothers are both maternal grandmothers.  I meant no offence.  It is manageable in written reasons to refer to the applicant Ms Gatenby and the respondent Ms Chisler but during the hearing, it was too much of a mouthful.  Reference merely to ‘applicant’ and ‘respondent’ can be confusing. For shorthand I called Ms Chisler ‘the mother’ and Ms Gatenby ‘the other mother’. It was not necessary for me to refer to the applicant’s mother in the same vein, but had I done so I would have referred to her as the other grandmother in line with my reference to the applicant as the other mother.

5. Ms O is aligned with and supportive of her daughter, the respondent mother Ms Chisler, but that does not mean that her evidence is not fair and accurate.  I observed her carefully in the witness box.  She gave evidence authentically, although from her own perspective, and, as I’ve said, subject to it being her own recollection.  Ms O is an important part of the children’s lives and has been a significant carer of them and, as I have mentioned, lives just across the park from the former family home.

6. I accept Ms O’s evidence that she observes D and B to be sad at the prospect of leaving the respondent’s home when it’s time to go to the applicant, Ms Gatenby’s house.  This is not just reflected in what the children say to her, but how they act, particularly D.  I accept her evidence as in accordance with what she recollects and as being given genuinely.

7. Ms Gatenby relied on the evidence of four other witnesses.  There was the evidence of Mr R by his affidavit affirmed on 26 April 2016.  He was a nanny for the children employed in the household for a short period from October 2015 until approximately December 2015.  He worked two, maybe three, days a week in the afternoon when he would collect the children from school at about 3.30 pm and take them home for afternoon tea, their various activities, and eventually bathing them.  He left work at about 6.30 pm. He says that, for his purposes, his main point of reference was Ms Gatenby, whom he describes as coordinating “basically everything from meals to pick-up times and all the other children’s needs”.  He was not significantly challenged in cross-examination, although much of his evidence was contradicted by Ms O in her proof of evidence.  Again, I take these mainly as matters of perception and personal recollection.  What was obvious, though, in reading Ms O’s evidence with Mr R’s evidence, is that the perception of Ms O is that Ms Gatenby was more ancillary to the afternoon arrangements for the children than both Ms Gatenby and Mr R say. On this point, I am inclined to accept the evidence of Ms O. Mr R was only in the home for a few hours on any day he worked and concentrated on his own tasks whereas Ms O has a more extensive perspective on the running of the home.

8. The next witness was Mr S.  He swore or affirmed his affidavit on 9 April 2016.  His involvement in the proceedings was as a house sitter for Ms Gatenby. Following separation, Ms Gatenby remained in the former family home.  She took the children on a holiday to Queensland before she and Ms Chisler had divided all household chattels and personal belongings. Ms Gatenby was concerned about leaving the former family home unattended, lest the respondent Ms Chisler access the home and remove things therefrom otherwise than in accordance with arrangements which Ms Gatenby wanted to pursue after her return.  Ms Gatenby secured the attendance of Mr S at the former family home with some prescience.  By 31 March 2016 the respondent Ms Chisler did attend the home and attempted to gain entry.  Ultimately she did with the cooperation and oversight of Mr S. The affidavit of Mr S, was not the subject of any cross-examination and which I therefore accept as unchallenged evidence. He describes the respondent Ms Chisler as determined to enter the home on two occasions to remove therefrom items.  Some items had been stored and packed for her, others had not been.  I accept that as evidence.

9. The next witness relied upon by the applicant mother was Ms T whose affidavit was affirmed or sworn on 14 July 2017.  Ms T was required for cross-examination and attended Court for that purpose.  Much of her evidence was not the subject of challenge under cross-examination by Mr Mellas.  This included her description in paragraph 10 of the respondent becoming angry with the children, in particular B and C.  She deposed: -

   10.      [Ms Chisler] often became angry at the children and yelled at them, particularly [B] and [C]. This usually happened when she came home from work and the children would not go to bed and on the weekend if she wanted to be left alone. When [Ms Chisler] became angry and yelled, [D] became quite reserved and hid. He usually hid under his parent’s bed, beside the cupboard in his bedroom or outside in the garden. Quite often, [B, C and D] asked me “why does mummy get so angry?” [B] also asked me “why doesn’t mummy love me, she always yells at me”. I told her that her mummy loved her and that she did not mean it. I did not want to get involved. [Ms Chisler] can be quite intimidating.

   11.      In particular I recall one incident in 2004 when [Ms Chisler] and [Ms Gatenby] went out in the evening and I babysat the children. The children were overexcited and did not want to go to sleep. [Ms Chisler] and [Ms Gatenby] returned about 9pm (it was by now 1.5 hours past the children’s bed time). [Ms Chisler] appeared to be in a bad mood and began yelling at the children. She went into B’s room, slamming the door. I then heard [Ms Chisler] screaming at [B] calling her words to the effect of a “selfish little spoilt fucking bitch”. [C] and [D] were crying.

   12.      [B] ran out of the rom calling for “[AA]” and [Ms Chisler] ran after her. [C] cried to [Ms Chisler] asking her why she was screaming at [B]. [Ms Chisler] gathered the three children together and put them outside the back door and locked the door. It was winter and they were wearing pyjamas and had no socks or shoes on and they were all crying and pleading to come back inside. [Ms Gatenby] was distressed and was almost in tears.

10. Furthermore, Ms T deposed:-

    9.        From about 2014 I noticed that [Ms Chisler] often came home from work late and complained of being tired and having frequent migraines. On the weekends when asked to work, [Ms Gatenby] often asked me to stay with the children so she could go grocery shopping or run errands because [Ms Chisler] was napping.

    As I said, her evidence was not the subject of significant challenge in cross-examination and accordingly I accept it as being her genuine recollection.

11. The applicant also relied on the evidence of Ms S, who is the sister of Mr S.  Ms S was not required for cross-examination and accordingly I accept the evidence set out in her affidavit, which was sworn or affirmed on 14 July 2017.  Her affidavit in part dealt with an allegation by the respondent that, when clothes were returned to her by the applicant were unpacked she found some to have been intentionally cut and therefore destroyed, a matter which she considered to be extraordinarily malicious and hurtful.  I was not asked in these proceedings specifically to make a finding of who was responsible, but it is clear that the respondent considers that the applicant was responsible for the destruction of her clothing and the attempt to wound her.

12. The applicant Ms Gatenby denies any involvement in the destruction of the clothing.  She points out the chain of possession of the clothing from the time the respondent left the former family home and did not collect her clothing for some considerable time.  The evidence of Ms S is that she assisted the applicant with the packing of the respondent’s clothing and, in fact, it would appear with some prescience, recommended that photographs be taken.  Those photographs are relied upon by the applicant.  I am not in a position to make any finding about who was responsible for the destruction of the clothing.  It follows that I am certainly not finding that the applicant was.

13. Otherwise, Ms S’s evidence relates to her familiarity with the family and she deposes as follows: -

    8.        My daughter [U] attended [V School] in 2011 with [B]. Both my husband and I formed a friendship with [Ms Chisler] and [Ms Gatenby] and our daughters also became friends.

    9.        In the first term in 2011 [Ms Chisler] and [Ms Gatenby] both dropped off and picked up [B] from [V School]. [Ms Chisler] returned to work full –time that year. When [Ms Chisler] returned to work full-time, [Ms Gatenby] was the regular parent dropping off and collecting [B] and I rarely saw [Ms Chisler] at [V School].

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.

2. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ 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.

   These objects may be regarded as the core values of the legislation.

3. The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the 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).

4. Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child[2] to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws, so that laws and actions affecting children, put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.

   [2] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990).

5. I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.

6. Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting order as it thinks proper.

Determining the child’s best interests

1. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.

2. The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:

   (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

   with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[3]

   [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

3. This is a case which does not currently raise the issue of family violence.  It does not raise the issue of psychological harm directly although I have concerns for the psychological wellbeing of the children into the future given the high level of parental conflict. 

4. It is accepted by both mothers that it will be of the benefit of all of the children that the other mother has a meaningful relationship with all of the children.  My task is to make orders which allow the children to have that optimal relationship, that is, to make orders that ensure that all children have a meaningful relationship with each parent.

5. There are additional considerations to which I can have regard under section 60CC, subsection (3), of the Act, and I do so. It’s only necessary for me to consider those which are relevant to this case. I will have regard to the additional considerations in the context of evaluating how the children can have a meaningful relationship with each parent. Finally, section 60CC(3), subparagraph (m), of the Act requires me to take into account any other fact or circumstance which I think is relevant, and this ensures that an infinite variety of individual children’s circumstances can be addressed.

6. The Court is assisted by the expert evidence of Dr P and Dr Q. 

7. Dr P swore an affidavit on 27 June 2016 following an assessment of both mothers pursuant to an order made by Senior Registrar FitzGibbon on 28 April 2016.  He saw Ms Gatenby on 10 May 2016.  He summarises his impression as follows: -

   [Ms Gatenby] does not describe symptoms consistent with a psychiatric condition. She described in some aspects a difficult childhood. She never got on with her mother but was close to her father. There was an alignment between her mother and her sister and [Ms Gatenby] and her father. She was sent to boarding school for reasons which were not clear and made the most of this. She impressed as a woman of personable, positive demeanour and outlook. There was no pre-existing psychiatric history.

   On completion of her schooling she studied [for a degree] and worked in [the UK] and [the US] where she came to know herself as gay. She has generally worked [as a professional] ...

   The relationship between herself and [Ms Chisler] was initially a good one. Progressively the stress of workplace issues impacted on the relationship between [Ms Chisler] and [B]. The children were born via AI and IVF. [Ms Gatenby] acknowledged that [Ms Chisler] was the primary carer in the initial phases of the children’s lives but progressively over time, the pattern changed whereby [Ms Gatenby] became the primary caregiver and [Ms Chisler] the breadwinner. Issues between[B] and [Ms Chisler] continued to bubble away. [B] was assessed as normal, having attended a child psychologist and psychiatrist.

   It was [Ms Gatenby’s] view that the problems lay with [Ms Chisler’s] rigid demeanour and approach to people, anger management issues resulting in a change of positions and on-going stress. After a further argument with [B] on or about 20^th February 2016, [Ms Chisler] ended the relationship. [Ms Gatenby] does not describe symptoms of a psychiatric condition and remains committed to regular shared care contact with the children.

1. Dr P saw Ms Chisler for an assessment on 11 May 2016.  He summarises his evaluation of Ms Chisler as follows:: -

   [Ms Chisler] described a normal upbringing in [X Town]. She was initially close to her father and has always been close to her mother. She has a good relationship with her brother and felt loved and cared for. She is by nature a person of introverted temperament, always knew that she was gay, and performed reasonably well at school. On completing a Bachelor [degree] she worked [in academia] for ten years and is currently employed with the [public service].

   It was her account that her relationship with [Ms Gatenby] began well. They were free, travelled and enjoyed their respective careers.  Following the births of the children, their relationship slowly untangled on the basis of [Ms Chisler’s] belief that [Ms Gatenby], whilst promising much in the way of support, was more closely linked to her father than to her and the children.

   Her description of her chronic fatigue condition is likely to be one which is driven by stress. Apart from that and some workplace conflict, [Ms Chisler] did not describe symptoms of a psychiatric condition. There was no history of Postnatal Depression. There is no family history of psychiatric illness.

   Progressively [Ms Chisler] found herself in an increasingly empty and disconnected relationship with [Ms Gatenby] who she found to be controlling and career-focussed. Following the death of her father who had been a containing influence on [Ms Gatenby’s] controlling behaviours, the relationship became increasingly conflicted around issues involving [Ms Chisler’s] ability to make decisions in her own right. The ongoing conflict between herself and [B], resulting in an increasing sense of distance and finally the end came in February 2016 in circumstances detailed.

   It was [Ms Chisler’s] account that she was the primary carer, and her account was specific in that regard, detailed and compelling. She described the post-separation period as marked by [Ms Gatenby’s] rage and control of finances, locking her out of the family home, and cutting up her clothing. Whilst at times stressed by these matters, she now feels happier now that she has found some freedom and clarity, and believes that given the conflicted nature of the relationship now between them and inability to communicate, and given she is the primary carer of the children, the arrangements for further contact need to reflect that.

2. Dr P was not required for cross-examination and I accept his evidence as not being challenged.

3. The parties were seen twice by Dr Q, who is a psychologist.  The assessments are the subject of two affidavits, one affirmed on 23 June 2016 and the other on 8 September 2017.  Dr Q was required for cross-examination.

4. Dr Q first saw the family, comprising the mothers and the three children, on 19 May 2016, fairly close to when the parties separated.  His reports contain a psychological evaluation of the mothers using psychometric testing and interview.  He expresses an opinion about personality functioning.  He provides a cognitive evaluation.  He assesses each mother as being in the very superior or superior range of intellectual abilities.  He prepares a personality profile and he uses what appears to be an analytical tool devised by him called Family Strengths and Needs Assessment tool.  It is from this assessment that he speaks of “risks” which it is important to note do not represent risks in the usually used sense of the word but really features of behaviour. 

5. Reports by family consultants and social scientists in family law proceedings are important.  In family law matters children are the focus of the litigation, and as such, the primary focus of the family assessment is the child’s experience, needs, development, relationships and views to the extent the children are comfortable and developmentally able to express views as these children were, also the impact on the children of the parties’ proposals in the proceedings. 

6. The reports of family assessments are also systemic.  They should assess a child’s experience and needs, but in the context of understanding the children’s relationships primarily with each parent and also siblings, extended family and people in the wider environment.  The relationships between the adults and the impact of the co-parenting relationships on the children are also important.  The primary purpose of a forensic family assessment is to provide expert forensic advice which will assist the Court to make informed decisions in the best interests of the children.  A forensically based assessment may also assist the family to understand the child’s perspective however it is not the primary focus of the assessment. 

7. A forensic approach involves systemically collecting information, developing hypotheses, transparently evaluating competing hypotheses against the information obtained and the relevant professional evidence base, and providing an opinion about the various options and proposals in a manner which will assist judicial decision making.  Dr Q is frequently in this Court.  His work is research driven, evidence based.  He frequently mentions “data”.  His approach is unambiguously scientific. 

8. It is easy to see how the subject of an assessment by Dr Q might miss the family narrative.  He spent some four hours with each mother and two hours with each child over the two assessments as well as time observing the children interacting with adults.  An hour is a long time for a child of the age of these children to spend with a psychologist.  It is not perfectly clear to me what he talked about with the children.  It does not appear in the reports.  In the first report he described the evaluation of B as follows[4]:

   [4]Affidavit of Dr Q affirmed 23 June 2016

   36.      [B] is a nine-year-old girl who presented as bright and verbal. She presents with a sound relationship with both parents and no significant behavioural or emotional difficulties.

   37.      [B] spoke of her parents’ breakup in early 2016 and indicated that this was not positive with a lot of fighting and described that she also screamed and cried when these fights occurred. She described the fights would normally occur with [Ms Chisler], with both screaming and yelling and there being banging on walls. She reported that with [Ms Gatenby] there were not the same fights. She described the breakup and what the children were told.

   38.      [B] described some differences in her parents approaches, with [Ms Gatenby] having a more physically active approach and [Ms Chisler] being somewhat more focused on home activities and not wanting friends over as much as [Ms Gatenby].  She described high levels of emotional upset in the separation. She also described not seeing [Ms Gatenby] for several weeks and finding this emotionally difficult. She described the current arrangement of 5/2 days each week which she described as good and “more fair…more time with both…equal”. [B] described both homes very positively and [Ms Chisler’s] new home as “very nice”.

   39.      [B] reported that [C] has been somewhat unsettled. She described different activities with each parent. She spoke about having a high degree of responsibility at [Ms Chisler’s] home, doing jobs around the home. She reported that there is less shouting than there was when her parents were together. She reported no major difficulty with either parent. She does not get into trouble to any significant degree. It would appear the acquisition of a new dog in [Ms Gatenby’s] home has been positive for all parties.

   40.      The issue of time was dealt with directly. [B] spoke of wishing to have the same amount of time in each parent’s home. Nevertheless, she reported that currently she would like more time with [Ms Gatenby] because of their new dog and the fact that she believes the dog is missing her. However, the overall discussion appeared to go in the direction of having a sound relationship with both parents and her enjoying time with both and both homes being meaningful parts of her life. It is clear that she has been exposed to a conversation between her parents and others about the conflict between the parents. There appears to be no formal denigration of the parents. The presentation would suggest no psychological difficulties and she appears to be adapting to her new circumstances.

   In the second assessment he evaluated B as follows[5]:-

   30.      ]B] presented previously at age 10 years and is now 11 years. She spoke positively of her home environment with [Ms Gatenby], speaking of dogs and the home environment. She continues at [N School] in Grade 5, does Kumon and still finds maths hard, She spoke of having some friendships although it is uncertain how broad this is. Recently, the family returned from an [overseas] trip with [Ms Gatenby] and the boys. She spoke of it in positive terms.

   31.      [B] spoke of the home arrangement. It would appear that the arrangement has progressed relatively well for her although there is some indication of some complexity with after school activities etc.. she described four changes in every two weeks which she described as somewhat burdensome. She has a sleep over with her grandmother once per week without the boys. She spoke of being close to her grandmother. She is going overseas to [Asia] for three weeks with [Ms Chisler] and the boys. She spoke of calling [Ms Chisler] when she was staying at [Ms Gatenby’s] and she spoke about [Ms Chisler] sounding down and not happy. She spoke of her parents not getting along and that it affected her. She reported that [Ms Chisler], if she is unhappy, she does not want the children to go to spend time with [Ms Gatenby] and when asked how she knew whether [Ms Chisler] was in a good mood or not, she stated that she assumed. She stated that if she is going to the other parent, she knows that they are not happy with her going. She spoke of disagreements that they have had about her spending time with the other parent. She stated that both want her to spend time more than the other “they both love us so they want to spend every moment with us”. She spoke about it being hard “that they’re fighting over us”. She stated “I feel caught in the middle”. She described how she had to comfort the other parent. She clearly described being caught between her parents, and the parents and her taking on that role. She spoke of the feelings between them and she wanted the feelings between them to be nicer and more positive and she wants them to be positive to each other. B indicated that [C] takes it out on the others.

   32.      [B] indicated that at [Ms Chisler’s], they have rules whereas at [Ms Gatenby’s] they do what they want and that at [Ms Chisler’s], it is more structured. She described less structure at [Ms Gatenby’s]. [B] also spoke of life at [Ms Gatenby’s] being different, in that they see more friends whereas [B] described that she wants more time with just her and that it can be too rushed although I note that they have recently come back from a rushed overseas trip. She spoke about the boys sitting on their Ipads.

   33.      [B’s] statements about friends at [Ms Gatenby’s] sounded contrived and with adult language, that sounded like she was repeating the statements of adults. She described a somewhat unworkable arrangement of one week at [Ms Chisler’s] and half week at [Ms Gatenby’s] and had not considered the maths involved. She described a week about arrangement being too hard for the parents “mummy wants to see us more, it is the right thing to do”. She then made a series of statements which sounded clearly influenced “[Ms Gatenby] was not around a lot when I was a kid, grandma and mummy ([Ms Chisler]) were always there. I have more of a special bond with my grandmother and mummy”. She stated that “mummy ([Ms Chisler]) says it more, she misses us a lot and expresses her feelings”. She says “I am going to miss you a lot.” She indicated that [Ms Gatenby] does not say that and she does not know why. She reported that [Ms Chisler] is often feeling sad about them going, “mummy ([Ms Chisler]) cries over us leaving. With [Ms Gatenby], the dogs comfort her so that she doesn’t miss us that much”.

   34.      There were then subsequent multiple issues that “me and mummy are thinking about [Y School]” for secondary. [B] then made adult like statements about meeting family members in Sydney and wanting to live there. As indicated, she presented as a child who has been caught between her parents, influenced and whose statements appear affected by her parents and her mother’s ([Ms Chisler’s]) emotional outpourings prior to changeover, as well as specific statements regarding the arrangements.

   [5]Affidavit of Dr Q affirmed 8 September 2017

9. Dr Q’s assessment of the boys was rather more brief.  In the first report he assessed C in the following terms[6]:-

   41.      [C] is a seven year old boy who presented as bright and verbal. As with [B], [C] presented without having been formally coached or influenced with respect to the evaluation.

   42.      [C] spoke of his parents’ decision to separate because there were too many fights. He acknowledged that there were too many fights in 2015. He spoke of the current arrangement with spending two nights and then five nights with each parent across each fortnight. He reported that [B] in particular spent time fighting with [Ms Chisler] although he was uncertain why. There appears to have been a similar conflict between himself and [B].

   43.      [C’s] description of his parents would suggest that [Ms Gatenby] tends to have more active play-based time with the children and [Ms Chisler] somewhat less so, although clearly time between [C] and both parents is meaningful to him and any differences appear to be qualitative. He spoke positively of the current arrangement. He reported that he does not miss either parent in the time that he has on a regular fortnight or in the holidays. It would appear that he has some good friendships. His interactions with his parents are reported to be positive. His wishes were not particularly set.

   [6]Affidavit of Dr Q affirmed 23 June 2016

10. In the second assessment Dr Q provided the following two paragraphs[7]:-

    35.      [C] is an 8-year-old boy who presented similarly to previously. He was very verbal. He is somewhat overweight. He spoke of the trip to Disneyland and is focused on technology. He spoke of having melatonin, with him being caught between his parents and their opinions about melatonin. He spoke of other holidays. He spoke of school in very positive terms, being interested in coding and being involved in getaways.

    36.      [C] described the home circumstances and indicated that the arrangement is “working out great”. He spoke of no particular preference and indicated that he was happy with pets and being involved with them. He reported that time was enough. He appeared somewhat uncertain about his parents’ relationship and how they get along but believed that they are getting on ok. He described not wanting anything to change.

    [7]Affidavit of Dr Q affirmed 8 September 2017

11. In the first assessment Dr Q provided the following evaluation of D[8]:

    45.      With the separation, [D] reported that at this point everything is going “okay” and that both parents look after him. He indicated that he spends time with each although was a little uncertain about the arrangement and stated that “each spend five days with us”. He indicated that the new house was positive and they enjoyed playing in the pool and making things. Apart from school [D] spends time with [C], although he indicated that he also spends time playing with [C] at school. They have some arguments although his account is that there are no major ones.

    46.      With [Ms Gatenby] [D] indicated that they play with the new dog a lot, on the trampoline and they go on bike rides. He stated with [Ms Chisler] they tend to build things although named a series of other activities. He reported that there are no major fights.

    47.      [D] indicated that he wants to be able to see each parent more, stating that he wants a half day with each and then went onto say that he wants one day each so that he sees each parents more as he misses them. Nevertheless, he went on to say that if he does not see them he is still happy. He spoke of staying with [Ms Chisler] more in the past, “she’s keeping us there a long time”. He reported there was no denigration. He believes that [Ms Gatenby] misses [Ms Chisler] but not vice-versa.  He spoke of [Ms Gatenby’s] home being somewhat more fun and them having more time to do things and that [Ms Chisler] does a lot of work whereas [Ms Gatenby] does the work at other times and makes dinner before they are picked up. Nevertheless, he described a strong relationship with each parent.

    [8]Affidavit of Dr Q affirmed23 June 2016

12. In the second assessment dated 28 July 2017 Dr Q described D in the following two paragraphs[9]:

    37.      [D] at age 8 years, also described his recent trip away and enjoyed different parts of the trip. He spoke very positively about [N School]. He described on weekends, time with [Ms Gatenby] and the activities that they get involved in which would suggest that they do action type activities with [Ms Gatenby] but also do things such as cooking and watch movies and sometimes have school friends over. At [Ms Chisler]’s they relax with Ipads, tv’s etc.. and sometimes games and don’t go out much. He indicated that they are soon to go to [Asia] as they go there every year.

    38.      Concerning time, [D’s] account is that it is good and works well and he reported not being confused. He indicated that when he went to America he missed his mother and also his pets, as would be expected.

    [9]Affidavit of Dr Q affirmed 8 September 2017

13. The observations of the children in the context of the adults are brief in both reports.  It was a pity. Well written descriptions of parent child interaction frequently provide insights into family life that is not accessible from affidavits or evidence given by the parties.  In the second report the interaction between Ms Gatenby and the children is described in the following five dot points[10]:

    ·When [Ms Gatenby] went into the play room, [Ms Chisler] was sitting in the room and seemed not certain about leaving. She indicated she would return when [B] went in and she would take the two boys off with her before their interviews. This interaction and arrangement appeared related to the interactional assessment, related to issues of influence;

    ·In general, there was some conflict between the children. [Ms Gatenby] dealt with it well, considering. The children appeared anxious and possibly affected by the context;

    ·The children fought – they appeared tired;

    ·All the children were fighting with each other on a regular basis;

    ·The children appeared affected by the context. The mother also appeared anxious about the children fighting.

    [10]Affidavit of Dr Q affirmed8 September 2017, p 15 of updated family report.

14. Next, of the interaction between Ms Chisler and the children, Dr Q records the following five dot points[11]:

    ·There is positive contact over the day;

    ·The children play cooperatively;

    ·[B] is more positive than with [Ms Gatenby];

    ·There is development of a hysterical game;

    ·The interaction appeared somewhat contrived and affected by the context.

    [11]Affidavit of Dr Q affirmed8 September 2017, p 25 of updated family report.

15. Dr Q concludes at page 26 of his report as follows:

    53.      The [Gatenby] and [Chisler family] were re-evaluated in the context of family law proceedings. A single expert family report was undertaken which was a re-evaluation, following the original evaluation of 19 May 2016. The family were re-assessed on the 18 July 2017 with all parties evaluated including the parents, [Ms Gatenby] aged 53 years, [Ms Chisler] aged 48 years, [B] now aged 11 years. [C] aged 8 years and [D] aged 8 years.

    54.      The original evaluation assessed the children’s circumstances as related largely to parental conflict and lack of cooperation and to some degree, the parent’s emotional issues associated with resolving the relationship personally, with [Ms Chisler] having particular difficulty with resolution of the relationship. At that first evaluation, the children’s arrangement was considered appropriate and it was recommended that in 18 months to 2 years, following the May 2016 assessment, there should be a move to a week on, week off arrangement to simplify the children’s circumstances and also to reflect their age and maturity at that point.

    55.      The current evaluation revealed similar issues and themes as previously between the parents, with an ongoing lack of communication and some conflict, although this was somewhat undetermined. Despite the lack of consensus and cooperation between the parents, it would appear that [Ms Gatenby] and [Ms Chisler] continued to account for the parenting structure differently. [Ms Chisler’s] presentation of the parental issues was that there was significant levels of conflict, with [Ms Gatenby] arguing that there was a lack of communication but little conflict, and that the children were not necessarily exposed to the conflict.

    56.      There were markedly different accounts of the children’s circumstances based on the parents, with [Ms Chisler] presenting the children’s relationship with [Ms Gatenby] as secondary to her own relationship with them. [Ms Chisler] remained particularly negative regarding her ex-partner. In contrast, [Ms Gatenby] was markedly less negative regarding [Ms Chisler], despite the issues in question. It is possible that each parent presented the picture of parental conflict or lack of parental conflict based on their desire for week about, or more traditional family arrangements. [Ms Chisler’s] argument is that because of parental conflict and the children’s lack of a positive relationship with [Ms Gatenby], and that she argues she has been the primary parent, then the children should have a 3/11 arrangement each fortnight, with the majority of time spent with her (suggesting a traditional family separation of time). [Ms Gatenby’s] account is that the children are used to the arrangement, are functioning well and that [Ms Chisler] is manufacturing issues of conflict to support her proposal for the children having markedly less time with her on a regular basis.

    57.      As with the previous evaluation, it was difficult to interpret parental comments independent from the legal battle. Similarly, it is not possible to interpret the children’s comments without considering that they have been actively involved in the Court issues and so, their statements cannot be seen as independent accounts of their views or of their emotional positions.

    58.      Objectively and clinically, all three children are progressing relatively well. Both parents appear committed to the care of the children and are well functioning individuals in their own rights. Both parents have some ability to have flexibility in their work although this is more so for [Ms Gatenby] than [Ms Chisler] although again, claims of unlimited flexibility for individuals in positions of significant responsibility should be questioned.

    59.      In this matter, a series of issues have been raised including claims of primary attachment and primary parenting, which considering the age of the children and the fact that the children have sound attachment with both parents, is not particularly relevant. Quality of the parenting, while difficult to determine considering the legal context, cannot be markedly distinguished as the individual parents are quite different in their approaches, as reflects their personalities.

    and he makes the following recommendations:

    1.For the above reasons, the previous recommendations of the family report of 19 May 2016 are considered to remain appropriate.

    2.It is appropriate that the children, in early 2018, prior to the school year beginning, move to a half time arrangement with the changeover on a Friday pm and a half school holiday arrangement. The children should have 2 blocks of time in each fortnight, shared equally at each parent’s home.

    3.Overseas travel should be encouraged with each parent for periods of up to four weeks or beyond via prior negotiation. Telephone calls/video calls when the children are overseas should be every two to three days and during regular time in the other week, regular phone calls should occur such as every two days.

    4.Assistance via a psychologist involved in parenting coordination to reduce conflict and improve cooperation should occur. [Ms Z], Psychologist, phone: … could assist in this matter. If the children require assistance as assessed by [Ms Z], that could be arranged, however I do not consider it necessary at this point.

    5.As indicated in this report, it may be appropriate for the parents to at least attempt a less adversarial approach prior to or within Court, however their prospects of success in that method needs to also be assessed by legal practitioners.

    6.Individually, the parents may choose to seek out clinicians to assist them to deal with ongoing issues in their co-parenting.

1. There are general recommendations contained in both reports which interestingly have not made their way into orders crafted by counsel.

2. Dr Q’s opinion was that, essentially, there is nothing to choose between the mothers.  Both have faults, both have weaknesses and strengths, and the children stand to benefit from being exposed to them.  He could not differentiate to any significant degree and, therefore, he appears to recommend that the parents have equal time with the children so the parents have an equivalent opportunity to parent them.  His cross-examination by counsel and in response questions from me was useful, and I take it into account.  He opined that from his clinical experience in matters such as this, from the age of about eight years onwards children:

   …can tend to cope with half-time arrangements, whether or not that is a complete week arrangement or a separated arrangement.  But in my experience with children who are reasonably well-developed in terms of their own individual development, eight years onwards tends to a point that … equal time seems to be possible …

   HER HONOUR:   But even the concept indicates to me that this is not an easy – necessarily an easy life for the children.

   DR Q:   I think – I think it’s one of the issues here that I would point out, your Honour:  if that’s true for all shared parenting, the issue of half time versus in many other ways can be seen as an arbitrary distinction.  The sharing of – that sharing of time for children at any level may be difficult.[12]

   [12]Transcript of evidence of Dr Q, 15 November 2017, page 2, line 43 to page 3, line 8

3. He further said:

   But, for example, where people – where it’s not unusual, for example, for families to have a five, nine arrangement versus a half time arrangement, in many ways there are some similarities for children, in terms of what they have to deal with.[13]

   [13]Transcript of evidence of Dr Q, 15 November 2017, page 3, lines 25 - 28

4. Dr Q discussed the situations in which he would find equal shared care to be appropriate, and times when he would find what he referred to as a home-based model of time to be spent more appropriate.  In this discussion the proposal of the applicant Ms Gatenby is equal shared care and Ms Chisler’s arrangement of 3/11 is the home based model.

5. He opines that a home-based model, for him, is indicated as appropriate where there is a clear divide in his assessment of “parental risk”, which I would reframe as parental capacity, and where he finds one parent has significantly better skills or more experience with children, and where it is very clear that there are attachment differences or relationship differences in a very general sense, a home-based model might be – is in his view more appropriate if there are development issues in the children, be that attributable to age, or psychological, or education.

6. Or, for instance, “where there are issues of drugs or alcohol, there’s a difference between parents – where there are psychological disorders and there are differences between parents” that would also indicate that a home-based model of spending time is more appropriate than equal shared care.

7. Dr Q describes or characterises the proposal of Ms Chisler for a split of 3-11 nights predominantly in her care as a home-based model.  As to his characterisation of shared care, he says:

   It’s very difficult to distinguish between children’s experiences of, for example a 5-9 model or a half time model.[14]

   [14]Transcript of evidence of Dr Q, 15 November 2017, page 5, lines 32 to 34

8. I think that there is a distinction for children and parents between a five/nine parenting arrangement and week about. Both give extensive time in both households and a rich experience of each parent but nine consecutive nights in one household provides a sense of stability which is greater than with a week about regime.

9. Dr Q confirmed his view that both mothers were “very well-functioning parents”.  He says[15]:

   I’ve done a reasonable amount of testing with both parents, and while there’s an impression – whilst there’s impression management for both of them, I think what’s significant is that we can see very clearly that there is on-going interpersonal conflict between them and a struggle for each of them to be seen as the best parent.

   [15]Transcript of evidence of Dr Q, 15 November 2017, page 6, line 30

10. Dr Q could not, in accordance with his testing, determine or express a view as to which parent was more capable.  In fact, he said that they were equally capable. 

11. As to the ongoing conflict, his assumption is that once final court orders are in place, the parents will come to an acceptance of the final court order – the final arrangement ordered by the court, and that the power issue will reduce the conflict to a significant degree.

12. When questioned by me in terms of my perception that the inter-parental conflict was likely to continue, Dr Q said[16]: –

    But equally, your Honour, I think that if there are – if there are issues of conflict, I think that those issues of conflict will be relevant, whether it’s two nights and 12 nights or three and 11.  I think that that will affect the children in a variety of different ways, and there is an argument in – in – and certainly clinically I’ve not necessarily found that that issue of conflict is – in – in itself is a contraindicator.  The research about this goes back to those issues of there – there being conflict.  Conflict is a major concern for very young children spending overnight time.  I think we are going to in many ways have to consider that, if there is conflict, that this will affect these children no matter what, whether or not it’s seven nights or six and eight or whatever the arrangement is.

    He agreed that in this particular case, the conflict was not so much borne out by open hostility as what I would refer to as covert hostility, and that the children’s lives are going to be made harder by virtue of it.  His response was[17]:

    I think that’s the case in many families we see.

    [16]Transcript of evidence of Dr Q, 15 November 2017, page 8, line 2

    [17]Transcript of evidence of Dr Q, 15 November 2017, page 8, line 32

13. Dr Q expressed the view that[18]:

    What strikes me very clearly in reviewing this case over a period of about a year is that the children, if anything, have become more distressed.  In my view, that – that’s likely not anything to do with the parenting, but their reactivity to the whole fact that their conflict is still ongoing and they are at the middle of it and they know that they’re at the middle of it.  So, for example, the – re-reading the data from the children from point 1 to point 2, so from last year to this year, it was very clear that the children – all three children – were somewhat more disturbed and distressed this year than they were last year, and it was clear that they recognised and they truly were caught between the parents.   

    He finds that the broader issue of trying to tease out who is the most appropriate parent is “completely clouded” by parental conflict.

    [18]Transcript of evidence of Dr Q, 15 November 2017, page 10, line 3

14. He opines that it is not so much the parenting arrangement, which is the integral factor in the conflict:

    It’s an issue of an ongoing battle for control…

    Which he thinks is related to the Courts.  He identifies this as a dynamic present in a number of families:

    …who are in exactly the same boat, and where they get to is essentially parallel parenting, and the reality is that one of the advantages of any kind of parallel process is that, effectively, they simply have to parent and the children have to spend their time with the other parent separated from the ongoing life with the other parent but I think that happens almost irrespective of arrangements in families where they cannot resolve the conflict.

15. That, to me, seems a particularly dim and depressing view of the future that these children face.  I asked Dr Q if, given the apparent and admitted strengths of the parties, whether he has unnecessarily discarding the subtleties in the case.  His response was[19]:

    ….in this context, to interpret the data that we have before us, considering the fact that there is this – this battle – this battle for control is extraordinarily difficult, and I think that – that, despite the fact that, you know, look at lots of data in this matter, I think that this is one of these matters where the data and how to interpret is extremely difficult.  And so for us to take one piece of data and give that precedence and say that actually represents more of the truth than this is problematic.

    [19]Transcript of evidence of Dr Q, 15 November 2017, page 15, line 4

16. Dr Q expressed the view that week-about time provided the children with an opportunity to have their parents devote time to them with a possible ability to structure their work commitments.  He did so as follows[20]:

    The difficulty is, of course, that a – for example, a two/12 arrangement where one parent is working effectively full-time or at a very high level means that that parent isn’t necessarily parenting at their best the whole time.  I think that there – in this case, there are some advantages where both parents work and have significant responsibilities, that they are able – they would be able to manage, for example, a week about more effectively.  I think that it’s likely in these sort of cases that their parenting is of better quality.  We know that – for example, that your average parent who is caring for children all the time and juggling work and so on and so forth has whole periods of time where their – their parenting is not necessarily as good.  So I think in these matters where you’ve got both parents working equivalent amounts, equivalent levels of responsibility and so on, that – that half time allows – allows them to manage their work effectively – they can usually work more in one week and less in another, for example – and their parenting in that sense generally is better.  I think that that’s the case in this one.

    Mr Bartfeld relied on this passage in his submissions. 

    [20]         Transcript of evidence of Dr Q, 15 November 2017, page 15, line 26

17. Dr Q expressed the view that:

    I see these parents as absolutely complementary in their parenting styles, [Ms Gatenby] being much more the extroverted person, activity-based parent and so on, a bit like what often happens in some families when you get a complementary parenting style, whereas [Ms Chisler], much more the home-based parent, encouraging those kind of home-based activities.  I think that the advantage…and so the disadvantage with a home-based environment approach in this case is that it would emphasise more of one aspect of the parenting than the other and the children would experience much more of that parent than the other and I think, in that sense, miss out.  Certainly, I am not arguing that there would be some particularly negative effect.  I do not think it is relevant in this case –

    and he was asked by Mr Bartfeld, “So your evidence is that there is a positive benefit?” to which he responded, “Yes.”

18. When discussing the difference between equal time and a five/nine arrangement, Dr Q opined[21]:

    And I have – when children speak of them, particularly when it’s in a block – the only major difference from my point of view is that the 5/9 arrangements tend to include less of school – school time.  And so it’s less regular life.  I think that what – what is the difference in a theoretical sense is that when – when children experience half time in each home and their equivalent parenting, they have that experience of weekend time, fun time, etcetera, and school time in an equivalent amount and so their experience is much more that that they have two homes that are extremely similar.  Now, some children who – who have a 5/9 arrangement speak about their homes exactly in the same way, that they see it as equivalent and it makes no real difference.  I think – and so to some degree we’re probably splitting hairs when we talk about what’s the difference between 5/9, particularly in a block because children go over, let’s say, on a Wednesday and then go through to a Monday.  They have the experience of school and homework and all the normal things that happen in that time and they have experience of weekend time.  So I think that there are a lot of similarities.  It’s just the issue of how much and it’s hard to know for most families and most children whether that makes a difference, in my experience. 

    [21]Transcript of evidence of Dr Q, 15 November 2017, page 19, line36

19. I agree with Dr Q that the imminent and overwhelming danger for these children is the high level of parental conflict between the mothers.  However, Dr Q surmised that there is no psychopathology which is the basis for parental conflict and concludes therefore that it must be the proceedings which caused the conflict.  Mr Bartfeld describes correctly Dr Q’s view that the conflict will abate when the proceedings conclude and the family knows what the result is and the mothers are each relieved from having to construct a case and from parenting with one eye on how her actions or inactions will be viewed through the lens of Court proceedings.

20. I do not share Dr Q’s optimism (adopted by Mr Bartfeld) that parental conflict will reduce when these proceedings are concluded.  He does not give credence to the possibility that the disintegration of the mothers’ relationship and the fact that they both occupy and own the same role in the lives of the children, being that of mother, with equivalent zeal is most likely to lead to a continuation of parental conflict. 

21. I have listened carefully to Dr Q and take heed of Dr P.  I have looked at the personalities and the characters of the mothers in the witness box, as they sat in Court and, of course, through their affidavit material.

22. I assess Ms Gatenby as operating on a more executive level than Ms Chisler. I acknowledge that Ms Gatenby makes sound decisions.  I was referred by Mr Bartfeld to communications between the mothers which showed their level of interaction and Ms Gatenby’s forward thinking.  That appears as annexure PG2 to the affidavit of Ms Gatenby sworn on 17 July 2017.  It is an email dated 17 April 2015 (so well before separation) sent at 6.15 pm.  The message is:

    1.21 April – Can you be home by 6.45pm, so I can get to [a] Board Meeting?

    2.27 April – be home by 6.30pm – I have a dinner …

    3.28 April – can you pick the kids up from school (3.30pm)

    4.29 April – can you pick kids up from …?

    5.19 May – can you collect kids from school (3.30pm)m U have a … ceremony at 4pm.

    6.26 May – be home by 5pm: I fly to [Asia] at 8.15pm

    7.27 May – 3 June – you are a single parent as I will be in [Asia]!

    8.11 June collect kids from school: I fly to [Queensland] that afternoon

    9.12 June – school drop off and pick up

    That’s all until [Asia] – fly out at 9.15am on your birthday!!!

23. Ms Chisler has responded three days later at 11.13 am, “All done.”  The communication is emblematic of the fact that the mothers worked well together and complemented each other whilst the family was intact.  Both mothers are impressive, intelligent, warm and devoted mothers but neither are for turning or compromise. In my assessment, there will be no abatement of conflict between the mothers. Conflict is likely to continue until the protagonists re-partner or are distracted from it.  Resolution of these proceedings will not lead to acceptance of the result by whichever mother feels she has ‘lost’ and the other has ‘won’. 

24. In my view, these children will be increasingly involved in the conflict between their mothers.  It is most unfortunate that the children will be caught up in the conflict and as they grow older take ownership of it in order to problem-solve it. The task is this proceeding is to place the children in the safest place from which they can manage ongoing parental conflict and, hopefully, insulate themselves from it.

25. I take into account the relevant additional considerations, including the children’s views.  These are expressed by the children through the assessment reports of Dr Q and the evidence of the parties.  In the above extract of Dr Q’s reports at paragraphs 33 and 34 of the second report, there is evidence of his circumspection about B’s views being entirely her own.  In fact, he suggests that they are not.  When children such as these are caught in the crossfire of high parental conflict, the views expressed by the children must be taken with some circumspection and careful consideration.  Both parties acknowledge that children are likely to tell them and others what the children perceive the recipient wants to hear, and I have no reason to doubt that this is at least in part the case here.

26. I take into account the nature of the children’s relationships.  Both parties in these proceedings are mothers of the children.  The children have traditionally referred to Ms Chisler as mummy and Ms Gatenby as AA, AA being a name that Ms Gatenby chose.  The fact that Ms Chisler is the birth mother of the children was significant in these proceedings insofar as I looked at the care arrangements for the children very early on and also from a financial perspective in that Ms Chisler had time off work and I had assessed her role, in fact, indeed, both their roles, as homemaker and parents.

27. There is one disturbing aspect of the evidence which I find is unaddressed by Ms Chisler’s case.  Mr Bartfeld drew my attention again to paragraph 54 of Ms Gatenby’s affidavit in reply in which she deposes that B has told her that Ms Chisler refers to herself as her “DNA mummy” or words to that effect.  That was not denied by Ms Chisler, in her affidavit in response, at paragraph 156 of her affidavit sworn on 30 June 2017 or in oral evidence.

28. Mr Bartfeld’s submission, with which I agree, is that any suggestion of a discrepancy in parental roles by virtue of Ms Chisler having been the birth mother of the children in this relationship should be dealt “a short sharp blow”.  However, in the circumstances of the case, I don’t think that imposition of a parenting arrangement on the children of equal time is a short sharp blow or corrective. It might be a symbolic solution for parents but it fails to address the day to day reality of children caught in the midst of high parental conflict having to divide their time equally between two homes.  I recognise that a week about arrangement might be a consolation or salve for the applicant Ms Gatenby but my consideration lies first and foremost with the children’s experience because it is the children who are going to be most affected.

29. The involvement of Ms Gatenby in the children’s lives has obviously been vital and very important.  Ms Gatenby has spent significant time with the children. She took leave from her employment in relevant years as set out in detail in paragraph 15 of her affidavit sworn on 17 July 2017 and reads as follows:

    15.      As to paragraph 35, I admit that I have continued in full-time employment since my maternity leave in 2007. I refer to my trial Affidavit as to the flexibility of my employment and the periods of leave, including sabbatical leave, I have taken throughout the relationship. Specifically, I had leave for, 15 days in 2006, 78 days in 2007, 121 days in 2008, 60 days in 2009, 13 days in 2010, 13 days in 2011, 25 days in 2012, 192 days in 2013, 24 days in 2014, 11 days in 2015 and 56 days in 2016. This year I have had four weeks annual leave and six months sabbatical leave. In addition to this leave, the university closes down over the Christmas/New Year each year, so I also have a week off during this period every year.

    It is Dr Q’s view that the children display a relationship with her which indicates that her relationship with the children has been at least the equivalent of Ms Chisler.

1. I do not get the impression from Dr Q’s evidence that the children’s relationship with Ms Gatenby will suffer or be impeded if the children spend fewer than seven out of fourteen days in her household.  This is not a case where I find it necessary to make any comment about any failure of the parents to participate in making decisions for the children or in failing to meet their obligations financially to maintain the children.

2. The relationship with Ms Chisler’s mother, Ms O, is a significant relationship for the children and one which I understand will be ongoing. 

3. I take into account the likely effect of changes in the children’s circumstances.  There is obviously going to be a change no matter which proposal I accepted.  What is important is how the change is handled. 

4. Mr Bartfeld submitted that any order other than equal time would reinforce in the mind of the children that Ms Chisler has come to Court and the Court has made sure that she will not be upset, that is, the Court has pandered to her.  He says that it will validate a perception that Ms Chisler – a perception in the minds of the children that Ms Chisler is the winner and the preferred parent because she is the birth mother, and Ms Gatenby is the loser and not as important a mother as is Ms Chisler.  This is a parental perspective. To my mind, Mr Bartfeld’s analysis (obviously expressed on instructions) is not something that would occur to children, unless they are given that thought.  They would only be given that thought by one of their parents.

5. Mr Bartfeld submits that Ms Gatenby is best equipped to manage ongoing conflict and the impact of it on the children, because that is what she has been doing since separation.  If that is correct, she will be able to manage not only her own disappointment, which I am sure will occur as a result of my decision, but any sense of injustice or unfairness she and the children feel.  It is the responsibility of both parents going forward to ensure that the children continue to feel as loved and looked after by them both as they do now. It would be poor parenting to imbue the children with a sense of loss or victory. It is preferable to communicate that a decision has been made.

6. There isn’t, in my view, any practical difficulty or expense associated with time being spent upon which I need to comment. 

7. I do take into account and have regard to and much of the evidence has been directed to the capacity of the parents to meet the children’s needs and the attitude of the parents to the children and the responsibilities of parenthood.  Both mothers are responsible and are adequate if not very good caregivers.

8. As I have made abundantly clear, the greatest impediment that the mothers and children labour under is the conflict between the mothers.  This leads one to contradict the other, probably Ms Chisler more so than Ms Gatenby.  One issue where this occurs is on the point of education of the children.  Ms Gatenby says that the children are doing well at school and relied on the children’s school reports.  Ms Chisler says that the children are not progressing well.  My impression in this instance is that Ms Chisler was prepared to contradict Ms Gatenby for the sake of contradicting her rather than by reference to any evidence or objective view.  The school reports of the children are annexed to Ms Gatenby’s affidavit and were also exhibited as “OM4”.

9. The evidence of Ms O, the grandmother, impressed me somewhat.  She gave evidence that on the first day of the hearing before me she had gone to collect C at an appointed time and he ran into her arms after a particularly unhappy day.  She outlined a version of events and ultimately Ms Gatenby gave evidence in response to that.  What had occurred was that, in order to get to Court in sufficient time on the first day of the trial, Ms Gatenby had enlisted the help of someone known to and liked by the children.  This person had previously taken the children to school.  In fact, she had done so the previous Friday when Ms Gatenby’s attendance at Court had been required urgently and with little notice.  All went well on the proceeding Friday, but on the Monday, C, who the parties agree is most resistant to change, had somewhat of a meltdown and refused to go to school.  Ms Gatenby spoke to C and convinced him that his siblings needed to go to school and prevailed upon him to at least ride in the car with them.  When at the school, Ms Gatenby, with some ingenuity, had the assistant principal try to coax C out of the car, to not avail, and then had the friend – the mother of one of C’s friends try to coax him out of the car without success.  The lack of success on the part of the mother was not surprising, as the mother fairly heavy-handedly threatened C with not being able to come and play with his friend if he didn’t go to school and suggested that she would call the police if he continued to defy her request to go to school.  I’m satisfied that none of these threats were taken at Ms Gatenby’s suggestion or would have been made by her.

10. The upshot of the matter is that Ms Chisler was not told of C not going to school until later in the day. The most significant conclusion to be drawn from the day is that Ms Gatenby does not feel able to ask for assistance from Ms Chisler or Ms Chisler’s mother in the event she needs such assistance.  As I’ve indicated, she’s well organised and rarely does need assistance. However, her solution in looking forward to how she would manage in the future was merely to say that there was an instance coming up and described what help she would need. Clearly she had given her predicament some thought but not asked for help. When she did, she sought to delegate a function as an executive might.

11. Another aspect of Ms O’s evidence which resonates for me is the circumstances surrounding the purchase of her home unit, which is across the park from the former family home.  It was put to Ms O that she was critical of Ms Gatenby for facilitating the purchase of the unit and Ms O readily agreed.  In particular, she said that she could not afford the price that was paid and the relevant affidavit material indicates that she was not sure at the time that the auction concluded that she actually had bought the unit for the price that was bid by Ms Gatenby.  Ms Gatenby said that it would be sorted out, and indeed it was.  It is another instance of Ms Gatenby’s tendency, in my view, to make sound decisions for the family, but to not get on board those who are most affected by the decisions.

12. In the context of the capacity of the parents to meet the children’s needs, my impression is that Ms Gatenby operates in a in a more executive style than does Ms Chisler.  Together, that was a complementary combination; apart it is a source of conflict, unfortunately. 

13. I have earlier set out Dr Q’s views of the children’s maturity and backgrounds and their characteristics.

14. The mothers are attuned to all of the children.  They perceive B as being most impacted by the discord between them; C being adverse to change, but D also as being sensitive. 

15. There are no family violence aspects upon which I feel any need to comment, or which were the subject of any evidence in the case. 

16. I take into account whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. 

17. Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of the changes.  Litigation is costly in emotional and financial terms and has the effect of standing in the way of the parties parenting children effectively.  Parents and children are readily distracted by litigation, as this case amply demonstrates.  Ideally, Court should make parenting orders that minimise the prospect of future litigation.  However, in this case I find that further proceedings are likely to occur no matter how I decide the parenting arrangements.

18. There will be proceedings as long as there is conflict.  The children stand to be damaged in the course of further proceedings, and it’s a travesty given the intelligence and the devotion of their parents. 

19. Future proceedings are most likely to emerge if either mother is restrictive or embarks upon gatekeeping behaviours, by which I mean the sorts of behaviours which are restrictive of the other party’s involvement in the lives of the children, or which encourage the children to reject the other parent.

20. Mr Bartfeld submitted that this is already happening with Ms Chisler, and referred to the instance of the reference (unanswered) of herself as the “DNA mother”.  The hypothesis of Dr Q accepted by Ms Gatenby is that the proceedings will put an end to the conflict, and I would like to be wrong in that respect but I do not think that I am.  Ms Chisler should be in no doubt that the result is not a victory for her; it is purely a protective measure of the children.  There is a fine line between rewarding poor behaviour and protecting children, and another judge in others proceedings may well call the result on the other side of the line.

21. In summary, I conclude that the children require at this stage two residences, but to spend a few more days in one than in the other.  This is so that they have a primary place to which to retreat to, insulate and inoculate themselves from the conflict which is unfortunately present between their parents. This is in line with Dr Q’s opinion about shared care but contrary to his specific recommendation of week about care. I have listened to Dr Q’s analysis of risks and strengths and his evidence generally. I conclude that week is a parent focused solution rather than a child focused one. I have observed the parents for five days, heard their evidence, digested counsel’s submissions and I am satisfied that this outcome best meets the ongoing needs of the children and is in their best interests.

22. In relation to parental responsibility, the parties have agreed that there will be equal shared parental responsibility.  That requires me to consider equal or substantial and significant time with both parents, and in the forgoing reasons I have done so.  I am satisfied that the orders that will be set out at the beginning of these reasons are in the children’s best interests. 

Property

1. In relation to property, counsel has again helpfully, prepared minutes of orders.  The areas of dispute were proportions and who retains the home.

2. Ms Gatenby sought an adjustment which was the equivalent of 32.5 per cent of superannuation and non-superannuation assets to Ms Chisler, whereas Ms Chisler ultimately sought an adjustment of 35 per cent in her favour.  Inferentially and expressly, both parties accepted that an alteration of property interests was just and equitable.  It goes to what is appropriate in the context of 90SM.

3. When the parties commenced cohabitation the applicant, Ms Gatenby, owned a UK flat which she had purchased some 12 or 13 years earlier for £73,500.  It has now a current market value of $821,040.  She had approximately $70,000 in the bank, and interest in a United States prudential fund which now stands at $100,000 or thereabouts.  She had an entitled to – she had a superannuation in the United Kingdom, which in 2014 was transferred to Australia in the sum of $20,641.

4. The respondent had superannuation of approximately $21,000 and savings of about $30,000. 

5. As I have already indicated, the parties purchased the former family home at F Street in September 2004.  They were registered as joint proprietors.  The purchase price of the home was contributed to by the applicant’s father, who provided $70,000; by the applicant, who raised a mortgage of $225,000 on her UK flat; and mortgage finance for which the parties were equally responsible. 

6. During the relationship, the applicant Ms Gatenby received a further $220,000 from her father in approximately 2011, and those monies were applied in the reduction of the mortgage over the former family home. 

7. The applicant’s father passed away in 2012 and from his estate the applicant inherited the sum of $1,219,189 which was made in two payments, respectively June and August 2013, the first for in excess of a million dollars.  With $100,000 of those funds the applicant paid $50,000 into the superannuation accounts in the self-managed fund which is called M Super, and I will correct that later.  During the relationship the respondent received a redundancy from her employment of some $103,429 which came in as a lump sum.  The respondent did not work for some time whilst she was caring for the children, and these monies were applied to the household.

8. There is no contest that both mothers worked hard and diligently during the relationship.  The applicant mother through Mr Bartfeld asks me to assess contributions of all natures in the proportions of 25 per cent to 75 per cent whereas the respondent through Mr Mellas says that the contributions should be 25 to 30 per cent.  As to matters relevant under section 90SF, subsection (3), each party concedes there ought be some adjustment in favour of Ms Chisler.  Originally Mr Mellas for Ms Chisler put it on the basis of her ongoing responsibility to care for the children.  I find that that factor does not sound in this particular case.  Indeed, Ms Chisler is earning a greater income than Ms Gatenby at the moment and says both in her affidavit material and in her outline of case that each party is able to support themselves adequately.

9. The adjustment was ultimately sought by both counsel on the basis of the disparity in capital, and that is pursuant to section 90SF(3)(b).  The applicant conceded an adjustment of 7.25 per cent whereas the respondent sought an adjustment of 10 per cent.  In all the circumstances, I am satisfied that the contributions in all respects outlined by the legislation justify an alteration of property interests in the proportion of 25/75 in favour of the applicant and that there ought be an adjustment of a further 10 per cent which brings the entitlement of the respondent to 35 per cent.  Through process of exhibits and annexures, the relevant figure has been settled at $1,002,774.

10. Then there comes the issue of who retains the former family home. 

11. The former family home has an agreed value recently the subject of single expert evidence of $1,880,000.  Both parties want to retain the home. 

12. Initially, Ms Chisler put her claim for the home on the basis that she would have the children for the bulk of the time if the Court accepted her 11/3 parenting arrangement.  Clearly, I have not done so.  In any event, it does not seem to me to matter whether it is 11/3, 5/9 or equal care, both mothers are required to accommodate the children on a complete basis when they are in their care so each needs a fully functioning house in any event. 

13. Counsel for Ms Gatenby submitted that Ms Gatenby ought be entitled to retain the home, first, because Ms Chisler had left it.  I find that there is absolutely no merit in that suggestion.  Someone had to leave the home when the parties’ relationship failed, and Ms Chisler did so.  No one should do that under threat that they will not be able to reclaim the home on the basis of what is appropriate later on.  The more forceful argument, in my view, is the extent to which Ms Gatenby has, because of her superior financial position, financed the acquisition and the maintenance of the home.

14. The parties contributed their joint savings of some $100,000 in 2003 to the acquisition of the home, but it appears to be conceded that those savings were roughly 70 per cent attributable to the applicant.  There were direct payments and ultimately the applicant cleared most of the indebtedness over the former matrimonial home with the proceeds of her inheritance or monies from her father. 

15. The applicant has effected some renovations to the home at her own expense which have not been taken into account in the proceedings. There appear to be relatively minor renovations, and there is no evidence that they added to the value of the former matrimonial home, but similarly, they have been affected by her at her sole expense which is not otherwise sought to be taken into account. 

16. Pursuant to section 90SF(3)(r) Mr Bartfeld says that I can take into account as “any fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account”, the fact that the children will have to move hither and thither if I entitle Ms Chisler to move back into the former family home.

17. He also says to a lesser extent there will be the issue of relocating the pets.  Ms Chisler does not have pets but Ms Gatenby has a menagerie of two dogs, two guinea pigs and a rabbit.

18. It is a finely balanced call. I am satisfied that I ought to take into account the impact on the children.  Ms Chisler has recently – and for very good reason – entered into a 12-month lease in a property in BB Street, Suburb CC.  She is inferentially prepared to wear the loss of breaking that lease but the fact is that she does have an adequate home in which to accommodate the children in the rental market and that is something that she has put in place now.

19. If Ms Gatenby were not permitted to remain in the home, it would mean that the children would be moving into the rental property with Ms Chisler, then leaving it to go and live in the former family home and then spending their significant time each fortnight with Ms Gatenby in yet another home.  As I have said, it is a finely balanced point but I think that the most appropriate result is that Ms Gatenby exercise her five nights a fortnight in the family home and she can retain it, if she wishes to do so.

20. I did consider whether the mothers should bid for the home, either privately or by some other arrangement that they may agree on.  Ultimately, they conceded that the only alternative would be a public auction.  To my mind, it would be unfortunate and not appropriate for the parties to incur the expense of a public auction or the unsettling impact on the children of having their home put up for sale and inspected.  I have no doubt there would be disputes about presentation of the property, probably to absolutely no avail, and all of that would be unsettling for the children.

21. Accordingly, as to the last question that I am required to decide, I have decided it in favour of Ms Gatenby’s proposal.  I am satisfied that the property orders that are set out at the beginning of these reasons are appropriate within the meaning of the legislation and order accordingly.

Costs

1. Finally, any party who wants to make an application for costs may do so in accordance with the rules.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 November 2017.

Associate: 

Date:  22 December 2017