GEORGE & PERKINS

[2012] FamCA 346

FAMILY COURT OF AUSTRALIA

GEORGE & PERKINS [2012] FamCA 346

FAMILY LAW - CHILDREN – Orders by Consent – Change of care children to live with mother – Father to relocate to the United Kingdom – Orders made setting out what time the father is to spend with the children when they are in the United Kingdom – Order made setting out what time the father will spend with the children when he is in Australia – Orders made that parents have joint parental responsibility for the children

FAMILY LAW - CHILDREN – Orders by Determination – Orders made setting out what time the children will spend in the United Kingdom at Christmas

FAMILY LAW - PROPERTY – Orders by Consent – Order by determination - Order that mother’s liability to pay spousal maintenance to the father will cease upon payment of lump sum property settlement or 31 July 2012, whichever is the latter

Family Law Act 1975 (Cth)

APPLICANT: Ms George

RESPONDENT: Mr Perkins

INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

FILE NUMBER: HBC 414 of 2011

DATE DELIVERED: 16 May 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 23, 24, 26 & 27 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tony FitzGerald

SOLICITOR FOR THE APPLICANT: FitzGerald & Browne

COUNSEL FOR THE RESPONDENT: Mr Dixon S C

SOLICITOR FOR THE RESPONDENT: Wallace Wilkinson & Webster

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

Children’s orders

1. BY CONSENT Mr Perkins (the husband) and Ms George (the wife) shall have joint parental responsibility for their children, S born April 2008 and G born January 2010 (“the children”).

2. BY CONSENT the children shall live with the wife.

3. BY CONSENT the children’s passports shall be forthwith released to the wife and the parties shall do all acts and sign all documents to give effect to this order.

4. The husband shall return the children to the wife on or before 5.00pm on Saturday 28 April 2012.

5. The children shall spend time with the husband as provided in these orders or such other and/or alternate times as are agreed by the parties in writing.

6. Pursuant to section 65L of the Family Law Act a Family Consultant is to give the parties assistance to comply with carrying out the parenting orders if requested by them or the Independent Children's Lawyer.

7. To give effect to these orders the husband will provide to the wife all comfort items, however so described, of the children which will assist them to resettle into their mother’s care.

8. From Saturday 5 May 2012 until the husband returns to the United Kingdom (but no later than 31 July 2012) the children shall spend time with the husband on a fortnightly basis as follows;

   a.           From 8.00am to 4.00pm Saturday;

   b.           From 8.00am Tuesday to 4.00pm Wednesday;

   c.           From 8.00am Saturday to 4.00pm Sunday;

   d.           From 8.00am Tuesday to 4.00pm Wednesday. 

9. The husband proposes to travel to Tasmania once per year to spend time with the children for a period between two weeks and three weeks in each such year. The husband shall spend time with the children as set out in these orders or as otherwise agreed in writing between the parties:-

   a.The husband shall give the wife at least six (6) weeks notice in writing of the itinerary including details of the flight arrivals and departures for such visits.  Such notice shall specify whether the visit is to be for fourteen (14) days or twenty one (21) days or a period of days in between.

   b.If the children or either of them are attending school the husband shall endeavour to visit in a school holiday period and if not or in part then the husband shall ensure that the children attend their regular school whilst in his care.

10. To facilitate time between the children and the husband, the wife will arrange for the children to visit the United Kingdom once each year from the date of these orders (in December/January), subject to the following:-

    a.The visit shall be for a period in the United Kingdom of at least eighteen (18) days;

    b.The wife shall give the husband at least six (6) weeks notice in writing of itinerary including details of the flight arrivals and departures for such visits.

    c.From 2012, and each alternate year thereafter, the visit shall include Christmas Day.

11. When the husband visits Tasmania in about September 2012 the children shall spend time with the husband from 8.00am to 5.00pm on both the day after his arrival in Tasmania and the day before his departure from Tasmania.  The children shall live with the wife on the day after that first day and the day before the last day with the husband.  For the period in between the end of the first two days after the husband’s arrival (whatever day of the week that happens to be) and the commencement of the last two days before the husband leaves Tasmania the children will spend time with the husband on a weekly basis as follows:-

    a.From 8.00am to 4.00pm Saturday;

    b.From 8.00am to 4.00pm Sunday

    c.From 8.00am Tuesday to 4.00pm Wednesday;

    d.From 8.00am to 4.00pm Friday.

12. When the husband visits Tasmania in 2013 the children shall spend time with the husband from 8.00am to 5pm the day after his arrival in Tasmania.  The children shall live with the wife on the day after that first day the children spend with the husband.  For the period after the first two days (whatever day of the week that happens to be) and until the day before the husband leaves Tasmania the children will spend time with the husband on a weekly basis as follows:-

    a.From 8.00am Friday to 5pm Sunday;

    b.From 8.00am Tuesday to 5pm Wednesday;

13. When the husband visits Tasmania in 2014 the children shall spend time with the husband;

    a.From 8.00am to 5.00pm on the day after his arrival in Tasmania.  The children shall live with the wife on the day after that first day.

    b.Then from day three from 8.00am that day until 5.00pm the day before the husband is due to leave.  The husband shall return the children to overnight with the wife each fifth night over that period, from 3.00pm in the afternoon to 8.00am the following morning.  

14. When the husband visits Tasmania in 2015 the children shall spend time with the husband from 8.00am on the day after his arrival in Tasmania until 5.00pm the day before the husband is due to leave.  The husband shall return the children to overnight with the wife each sixth night over that period, from 3.00pm in the evening to 8.00am the following morning.  

15. When the husband visits Tasmania in 2016 and each year thereafter the children shall spend time with the husband from 8.00am on the day after his arrival in Tasmania until 5.00pm the day before the husband is due to leave.

16. When the wife and children visit the United Kingdom in about December 2012 the children shall spend time with the husband from 8.00am to 5.00pm on both the day after their arrival and the day before their departure from the United Kingdom.  The children shall live with the wife on the day after that first day. For the period in between the end of first two days after the children’s arrival (whatever day of the week that happens to be) and 5.00pm on the last day before the children leave the United Kingdom the children will spend time with the husband on a weekly basis as follows:-

    a.From 8.00am Saturday to 5.00pm Sunday;

    b.From 8.00am Tuesday to 5.00pm Thursday (except for the week of  Christmas when the children shall spend time with the husband from 3.00pm Monday 24 December 2012 until 5.00pm on Tuesday 25 December 2012 and shall return to live with the wife from 5.00pm on Christmas Day until 3.00pm on Wednesday 26 December 2012.  The children will then spend time with the husband from 3.00pm on Wednesday 26 December to 10.00am Friday 28 December 2012);

17. When the wife and children visit the United Kingdom in about November/December 2013 or January 2014:-

    a.The children shall spend time with the husband from 8.00am to 5.00pm on the day after their arrival in the United Kingdom.

    b.The children shall live with the wife on the day after that first day.

    c.For the period in between 9.00am on the third day after the children’s arrival (whatever day of the week that happens to be) and 5.00pm the day before their departure the children shall spend time with the husband, provided that the husband shall return the children to the wife each fifth night over that period, from 3.00pm in the afternoon to 5.00pm the following day;

    d.This period need not include Christmas Day.

18. When the wife and children visit the United Kingdom in about November/December 2014 or January 2015:-

    a.The children shall spend time with the husband from 8.00am on the day after their arrival until 5.00pm on the day before their departure;

    b.Provided that the husband shall return the children to the wife each seventh night over that period, from 3.00pm in the afternoon to 5.00pm the following day;

    c.The children shall spend Christmas Eve until 3.00pm on Christmas Day with the husband and from 3.00pm on Christmas Day to 5.00pm on 26 December 2014 with the wife.

19. When the wife and children visit the United Kingdom in about November/December 2015 and/or January 2016 and each year thereafter:-

    a.The children shall spend time with the husband from 8.00am on the day after their arrival until 5.00pm on the day before their departure;

    b.Provided that the children shall spend from 3.00pm on Christmas Eve until 3.00pm on Christmas Day with the husband and from 3.00pm on Christmas day to 3.00pm on 26 December 2016 and each alternate year thereafter, viz 2018, 2020, 2022 etc.

20. The travelling parent is to pay the cost of travelling including children’s airfares (if applicable).

21. All changeovers for the purpose of facilitating time shall be:-

    a.In Tasmania at McDonalds Town B; and

    b.In the United Kingdom, at the paternal grandparents’ place of residence at … , Wales or as otherwise agreed.

22. The parent with the care of the children shall facilitate electronic communications or, if not possible telephone communications, on each of the children’s birthdays, Father’s/Mother’s day, husband/wife’s birthday at times agreed, but failing agreement at 7:30am or 6:30pm (Tasmanian time) on the special day.

23. If the husband travels to Tasmania at Christmas then in each alternate year commencing December 2013 the children shall spend time with him from 1:00pm on Christmas Day until 1:00pm on Boxing Day.

24. When the children are with the husband in accordance with these orders the husband shall facilitate the wife’s telephone communications with the children as initiated by the wife at 6:00pm every second day or as otherwise  agreed.

25. The wife shall:-

    a.Provide each child with a suitcase and hand luggage of clothes and personal effects to suit the climate and activities as communicated by the husband thirty (30) days prior, and such items are to be returned to the wife in the same condition.

    b.Provide the husband by way of email or otherwise digital photos and/or digital recordings of the children each year.

    c.Post/scan/email to the husband any cards or letters that either of the children want to send to the husband.

    d.Provide and where necessary show the children any cards, letters, emails written by the husband to the children.

    e.Provide the school where the children are enrolled with the husband’s contact details and request and authorise that the children’s school reports be mailed or emailed to the husband’s address as provided.

26. Both parents provide a regular update to the other parent with respect to the children’s development, health and interests.

27. The wife and husband set up, facilitate and fund twice weekly electronic communications between the husband and the children as may be agreed but failing agreement, those communications be by way of Skype at 6:30pm Tasmanian time each Monday and Thursday or such days as agreed to be initiated by the wife within 2 weeks of the husband’s relocation to the United Kingdom. To this end the wife shall have available for the children to use a broadband internet connection suitable for Skype video communication before 31 July 2012.

28. Both parents keep the other parent advised of, within 48 hours any change to the children’s postal address, landline, telephone number, Skype and other relevant electronic addresses, mobile number and instant messenger.

29. The parties will, prior to the husband returning to the United Kingdom attend appropriate courses as requested and reasonably directed by the Independent Children’s Lawyer for the purposes of:-

    a.Developing strategies to deal with any disputes between them;

    b.Developing a parenting alliance for the care of the children;

    c.Developing strategies to deal with the significant change of circumstances for the children;

30. Pursuant to section 68L of the Family Act 1975 the parties will, as reasonably requested, attend upon a Family Consultant to assist in the compliance of these parenting orders.

31. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property Orders

1. By Determination as and from the date of payment of the lump sum property settlement pursuant to these orders or by 31 July 2012, whichever is the later,  the interim order for spousal maintenance made in the Federal Magistrates Court on 16 June 2011 be discharged.  

By Consent

1. On or before the 31 July 2012 the wife pay to the husband the sum of one hundred and sixty five thousand dollars ($165,000.00).

2. Contemporaneously upon the payment the husband transfer to the wife all his right title and interest in the former matrimonial home known as and situate at … C Street, M in Tasmania more particularly described in Certificate of Title … Folio … .

3. From the date of the orders the wife shall be solely responsible for all payments due under the mortgage to the Australia and New Zealand Bank Pty Ltd (“the mortgage”), all rates and premiums in respect of the house insurance and the wife shall indemnify the husband in respect of any claim, action, suit or demand which may arise in relation to such outgoings.

4. Contemporaneously with the transfer in accordance with these orders the wife shall secure a Discharge of mortgage releasing the husband from his obligations under the mortgage.

5. Within 14 days of the date of this Order the husband shall do all such acts and sign all such documents necessary to transfer to the wife all his right title and interest in the following:

   a.The net sale proceeds from the sale of the UK property “R” in the amount of $162,262 and accrued interest currently held in trust with Perpetual Trustees;

   b.The horse and  two ponies namely “D”, “E” and “F” currently registered in the wife’s name;

   c.Furniture and chattels currently in the possession of the wife;

   d.Jewellery and watches in the possession of the wife;

   e.All funds held in financial institutions, banks, savings accounts and investments and shares in the name of the wife;

   to the intent that the wife be the sole and absolute owner thereof.

6. Within 14 days of the date of this Order the wife do all such acts and sign all such documents as may be necessary to transfer to the husband all her right title and interest in the following:

   a.All funds held in financial institutions, banks, savings accounts and investments and shares in the name of the husband;

   b.All gardening power equipment in the husband’s possession;

   c.The hot-tub/Jacuzzi in the husband’s possession;

   d.All furniture and chattels currently in the husband’s possession save any items left at the C Street property upon the husband’s relocation to the UK in July 2012 with those items to then belong to the wife;

   e.The Mitsubishi … Registration Number … currently registered in the husband’s name;

   to the intent that the husband be the sole and absolute owner thereof.

7. Within 14 days of the date of this Order the husband do all such acts and sign all such documents as may be necessary to transfer to the wife the following:

   a.Mitsubishi …

   b.Husqvarna Tractor, save that the husband shall have the use of this tractor until he vacates the former matrimonial home;

   c.Victorian box car trailer registration number …

8. Within 14 days of the date of this Order the wife shall do all such acts and sign all such documents as may be necessary to transfer to the husband the Pedigree Dog Breed 1 and Dog Breed 2 dogs known as “H” (kennel name “…”), “J” (kennel name …), “K” (kennel name …) and L (kennel name …) such documents to include:

   a.Microchip registration;

   b.Ownership of Dogs/Pedigree Papers;

   c.Any export and veterinary documents.

9. The husband transfer to the wife all his right title and interest in the two Dog Breed 3 dogs known as “Z” and “N” currently registered in the wife’s name.

10. Prior to the exchange of property including the former matrimonial home and the transfer of funds and chattels, horses and dogs as above, the wife and/or her agent shall be entitled to inspect the same to ensure that the former matrimonial home and all fixtures and fittings are in working condition (if applicable) and in a substantially similar structural condition as in 2011 and that the horses and dogs to be retained by the wife are fit and healthy.

11. The wife retain the following UK Pension entitlements currently in her name:

    a.the National Health Service (“NHS”) Pension;

    b.the O Pension;

12. The husband retain the following UK Pension entitlements currently in his name:

    a.P Pension;

    b.Q Pension.

13. Pending the transfer of the property pursuant to paragraph 2 above the husband have the sole use and occupation of the former matrimonial home.

14. Each party indemnifies the other party against any debts or liabilities in that parties’ name as at the date of these orders.

15. Save as is otherwise set out in this Order each of the husband and the wife releases the other from all claims, actions, suits or demands either of them may have against the other for ownership or interest in or possession of any real or personal property presently registered in the name of or in the possession of the other party and for any debts, damages, sum or sums which may be due to such party by the other party.

16. Neither the husband nor the wife shall incur in the name of the other any account, debt or other liability and subject to the terms of this Order shall pay and discharge any accounts, debts and other liabilities incurred by either of them in the name of the other and shall at all times keep the other indemnified from all claims, actions, costs or expenses in relation thereto.

17. Each of the parties shall promptly do all such things and sign all such documents as are necessary to give effect to this Order.

18. All outstanding applications, except for costs, are dismissed.

19. This matter be removed from the list of cases requiring determination.

20. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

    IT IS NOTED

21. The property orders are intended to bind the heirs, executors, administrators, assigns and personal representatives of each party respectively.

1. It is the intention of the parties pursuant to Section 81 of the Family Law Act 1975 as amended that the property orders shall as far as is practical finally determine the division of property between the parties and avoid further proceedings between them.

   IT IS CERTIFIED

2. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC: 414 of 2011

Ms George

Applicant

And

Mr Perkins

Respondent

REASONS FOR JUDGMENT

INTODUCTION

1. These were unusual proceedings.  They relate to property, spouse maintenance and children’s issues.  They are unusual because in the context of defended final parenting hearings, it is unusual to have a circumstance where, as is this case, both children are well cared for and are securely attached.  I am safisfied that both parents are decent parents who have focused on the needs of these children.  They are, of course, parents and children who have in the last two years gone through extraordinary times.

2. This case also involved evidence of some profound reviews in relation to attachment and the evidence of the single expert in that regard, as the parties will hear, I generally accept, but in saying so, I am very conscious of this. The decision made in this case is a decision made by me, not by a single expert, and I am very conscious of s 22(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) which says that judges are appointed to this Court by reason of their training, experience and personality, are suitable persons to deal with matters of family law and that was matter to which Mr Dixon S.C. properly alluded to when he made his submissions.

3. Ms George (“the mother”) and Mr Perkins’ (“the father”) primary dispute relates to the parenting of their children, S, aged four and G, aged 2.  The property proceedings were settled during the course of the hearing, although the question of what date a spouse maintenance order should expire remained an issue to be determined by me. 

4. The financial circumstances of both parties have been disclosed and the mother had been cross-examined. Each of the parties were represented by counsel and I am satisfied in the circumstances that the consent orders which I intend to make, in respect of property, amount to a proper exercise of my discretion under the provisions of the Act.

5. The nature of the children’s proceedings changed considerably throughout the course of the proceedings and slightly during the course of the hearing. 

6. The mother announced that she wished to separate in March 2011 and the parties separated in May 2011, in the most difficult of circumstances.  The children went into the care of the father and on 16 June 2011, orders were made that the children live with him and spend time with the mother (but not including overnight time). 

7. At the same time, an order was made appointing an Independent Children’s Lawyer.  Each of the parties had made, at that time and until recently, significant allegations against the other, including allegations of violence. 

8. A single expert report[1] was ordered and a psychologist Mr S interviewed the parties in October 2011 and his report was released to the parties in early November 2011.

   [1] Exhibit ICL 6.

9. The father’s position at that time was that he wanted the children to reside with him and wanted to relocate to the United Kingdom with the children. 

10. The mother sought orders that the children live with her and there be no relocation of the children back to the United Kingdom.  The mother also sought orders for the sole parental responsibility of the children. 

11. The parties, and particularly the father, and I particularly acknowledge this, obviously reflected on the material contained in Mr S’s report and with the benefit of a conference with the Independent Children’s Lawyer, in early 2012 determined that he wished to return to the United Kingdom but, putting the interests of the children as his primary concern, agreed that the children should remain primarily in the care of the mother.  I say this, in that the father did not altogether agree with the report, but adopted that course in any event.

12. The parties commenced some negotiation and by the time that the matter was ready to commence for hearing, they had agreed that the children should live with the mother and spend time with the father.  They also agreed that there ought to be equal shared parental responsibility for the children.  Having regard to the positions and the approaches adopted by both parents since that time, it seems to me that that is an entirely appropriate and proper order for this Court to make.

13. In addition the parties agreed that the mother would travel to England at least each year in November, December or January to spend time with the children and the father would travel to Australia at least once per year to spend time with the children.  It is the father’s clear intention that he wants to see the children and for the children to see him once every six months. 

THE ISSUES

1. The issues, whilst remaining, were narrow but quite complex.  There were issues as to:

   (a)whether the mother ought to be ordered to have Skype connected to her home;

   (b)the use of car seats; 

   (c)the method of transition of the children from the father to the mother; 

   (d)the time the children spend with the father, between the date of this hearing and mid July; 

   (e)the time the children spend with the father when he travels from England to Australia in September of this year, and each year thereafter; 

   (f)the time the children should spend with the father when the mother travels to England, including whether there ought to be 14 days or 23 days, and I note that the mother’s position changed in submissions to that being 18 days; and

   (g)whether the children should be in England each year for Christmas and whether they should spend part of the day with the father and part of the day with the mother.

2. The children are safe in the care of each of their parents.  There is no evidence that the parents have been violent or abusive to either of their children. 

3. Each of the parents have made significant complaints against the other and the nature of the other party through the prism of their own subjective views at a time at, and following separation. 

4. Each of the parties assures me, and I accept, that the children and each of the parties are not now at risk of harm, abuse and neglect as a consequence of the present behaviour of the other parties.

BACKGROUND

1. The mother is aged 38 and is professionally employed, having practiced for about 12 or 13 years.  She is in good health. 

2. The father is aged 39 and is in good health.  He has university qualifications, but has been a house husband, as it were, for most of the lives of the children, since a short time after the birth of S.  The father has skills in animal husbandry. 

3. Both parents were born in the United Kingdom and commenced cohabitation in about 2006, and they married in 2007.  The two children were born in the United Kingdom and shortly after the birth of the younger child, the parties moved from the United Kingdom to Tasmania.

4. I am satisfied that the mother drove the move to Australia to find a different lifestyle.  In fairness, the father had come to Australia on a 10 day trip, before they moved, to understand the nature of the move. 

5. The parties purchased a home and in March 2011, about five or six months after the parties arrived, the mother told the father that she wanted to separate from him.  The parties lived together in the same house, until the events in late May 2011. 

6. The parties had jointly in their own ways, parented the children up until the time of physical separation.  There was an issue between the parties, which I did not need to determine as to whether the mother had urged the father to return to full time employment or not.

7. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-

   (1) The objects of this Part are to ensure that the best interests of 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.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.

3. There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.  

4. If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

5. However, this is a case where the parties have agreed that there ought to be equal shared parental responsibility and that order will, as I have said earlier, be made.

THE EVIDENCE

The mother

1. The mother gave evidence in accordance with her affidavit,[2] which was prepared perhaps in the light of a more difficult conflict.  When giving oral evidence, she made concessions against her interest and has, from her subjective point of view, endeavoured to make child focused decisions, and this is reflected in the views also of the single expert, Mr S.  There was some criticism of the mother, in terms of her changing her approach from time to time, and I see this as having flexibility in regard to the particular needs of the children.

   [2] Filed the 15 March 2012.

The father

1. The father gave evidence in accordance with his affidavits including that filed on 17 April 2012.  The father had a slightly different approach in giving evidence and was sometimes non-responsive in his answers.  I do not criticise him for this.  He is a different personality and was very anxious to provide a fulsome answer.  Again, from his own subjective prism, he endeavoured to give answers as frankly and as honestly as he could.  The father was impressive in the way he treated the report from Mr S, to which I have referred earlier.

2. Clearly, looking at the faces of each of the parties as their ex-spouse was giving evidence; there were times when they disagreed with what was said.  However, I am satisfied that each of them tried to give as frank and credible evidence as they could, given the circumstances that they find themselves. 

The family consultant

1. A family consultant, Ms T, prepared a report which was read into evidence without controversy.[3] 

   [3] Exhibit ICL 4.

The single expert

1. Mr S is a qualified psychologist, who prepared an expert report and provided a letter in October 2011[4] and two letters in April 2012.[5]  Mr S raised concerns about the attachment of the children, particularly in paragraphs 57 and 58.  Mr S went on to observe, in relation to any change the following:-

   61.The children would find separation from either parent distressing and confusing in the short term.   The existence of a stable and secure home base with one primary attachment figure is very protective and would shield them from long term adverse effects associated with this.  When separated from either parent, [G’s] attachment to the parent she does not live with would probably disintegrate and, without frequent interaction, she would not be able to maintain representation of that person in her mind and would forget that person.  Long term memory is considered to become possible at the age of four years.  [S] would retain a limited memory of a parent she is separated from at this stage.  Her attachment to the separated parent would probably survive extended separation.

   [4] Exhibit ICL 6.

   [5] Exhibit ICL 1.

2. Mr S concluded that in his view, the mother would be better able to meet the children’s parenting needs, having regard to a number of factors to which he alluded in his evidence.

3. He went on quite properly to opine that the parties would need to create an effective parenting alliance.  Mr S was cross-examined by the Independent Children’s Lawyer, counsel for the mother and senior counsel for the father.  His view was that a changeover should not be on a transitional approach adopted by the father as the younger child would find it difficult to understand that.   She needed a secure base.  This is in light of the children transferring easily from one parent to the other which reflects the children having sound attachment to each of the parents.

4. His view is that the change should occur and the children, particularly G, should remain in the mother’s care for a period of five to seven days.  He said that would enhance the future relationship between the younger child and the father.  I accept that evidence and will adopt that approach.

5. Mr S also said that a cautioned approach in terms of time between the father and the children ought to be put in place so that their attachment remains secure.  I accept that evidence although it has to be seen in the light that despite the differences between these parents they have both focused on the needs of the children as is shown in Mr S’s observations of them passing easily from one parent to another and which is also supported by the reports from the U Contact Centre.

6. I generally accept the evidence of Mr S.

7. A number of the orders that I intend to make will address that particular issue.  The first order I will be making in relation to the time the children spend with the father, is that it ought to be as agreed, or as arranged between the parents.  I will go on and make other orders, but it seems to me that it is important that these parents get back to how they parented these children prior to separation, that is to have a sensible and effective parenting alliance.  I will however, be making orders so that there are clear parameters in which the parties can operate until that alliance bears fruit.

8. One of the most contentious issues in this matter was the recommendation by Mr S that there be an immediate transfer of the children to the care of the mother and that there be a period of time that they do not see the father.  Mr S gave cogent reasons why that ought to occur.  The father equally gave cogent reasons why it ought not to occur.  The father said that he knows the children and how they will behave.  I accept the evidence of Mr S and I will be adopting the course suggested by him with some changes.  Mr S conceded that either way, there was going to be a burden on the children.  It was his view, which I accept, that this burden would be ameliorated by taking the steps that he suggested.  I accept his expertise and I generally accept his approach.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

1. There is no doubt, in this case, that there is a benefit to the children having a meaningful relationship with both of their parents and that it is intended that that meaningful relationship will continue and will blossom, in respect of both parents, into the future.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. I have indicated earlier that there are no issues here with regard to protecting the children from abuse, neglect or family violence as it is not a risk to which the children are exposed in their present circumstances. 

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The children’s ages and maturity make their views such that they ought not to be taken into account if they were before me.  The children have a close and loving relationship with both of their parents.

Section 60CC(3)(b) The nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

1. There was an argument as to which is the primary attachment figures.  I accept the evidence of Mr S that the children are attached to both parents.  I do not make a finding as to which parent was the better parent, that would be unfair to the children and frankly to the parents, who have each in their own way done the best they could in the circumstances in which they find themselves, although I am satisfied that in the last 12 months at least, the primary role of parenting has been left to the father, or taken by the father, depending on how the evidence ought to have been read.

Section 60CC(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. Each of the parents have struggled over the last twelve months, but I am satisfied that they are both willing and able to facilitate and encourage a relationship between the children and the other parent.  Each of them have caused me some concern, such as the mothers’ perhaps reluctance to acknowledge the need for Skype, and I intended to make an order to that end, and to some of the matters to which Mr S alluded to in his report in terms of the father.

Section 60CC(3)(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. There are two significant changes which will impact on these children.  The first is the change from the full time care of the father to the full time care of the mother.

2. Both parents have supported this change and having regard to the reports of Mr S I am satisfied that it is in the best interests of the children.  The second change is the change of the father moving back to the United Kingdom.   This is, as I have said above, an understandable determination by the father.  Through regular travel between Australia and the United Kingdom, by both parties by Skype and other orders, I am satisfied that the parties and more importantly the children will manage this circumstance.

3. For G she will live primarily with the mother and although not spending frequent time with her father she will have frequent interaction with him.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. There are practical difficulties in terms of the geographic distance of the parties.  The parties, to their credit, have resolved most of these and needed the Court to make orders around the framework which they have put in place.

2. It is clear that those orders will operate for the short to medium term and that the parties, having completed a parenting after separation course and being out of the spotlight and the Court proceedings, are likely to develop parenting alliances and put in place changes to those arrangements so as to meet the needs of the children.

Section 60CC(3)(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. Both the parents have demonstrated they have the capacity to provide for the needs of their children including emotional and intellectual needs.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. Not relevant.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Both parents have displayed strong and impressive attitudes in relation to their respective responsibilities.  

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. As I have said earlier in these reasons, family violence is no longer an issue.  Family violence must be treated seriously and has been treated seriously.  In the circumstances of these parties, if there was violence it was violence arising in the context of the relationship break-up and is not a current feature to which the Court ought to have regard.

2. I say this in terms of the evidence of the parties and submissions by the Independent Children’s Lawyer and counsel, including senior counsel for each of the parties.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child's family, if:

(i)       the order is a final order; or

(ii)       the making of the order was contested by a person;

1. There were mutual Police and Family Violence orders made against the mother and father, in May 2011.  Each of the parties accepts they are not a risk to the other party. 

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. These orders will be final orders.  I have set in place a graduated arrangement over the next few years (albeit not as long as sought by the Independent Children’s Lawyer) but to meet the needs of the children who are currently two and four and will cover the period up to about 2015/2016.

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)    has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child; and

(b)    has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)    spending time with the child; and

(iii)   communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

Section 60CC(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred

1. In determining these proceedings I have had regard to the matters set out in s 60CC(4) and (4A). The parties have had difficulty co-parenting since the time of separation and earlier 2012. The arrangements now put in place for the children are indicative of a significant change in that approach.

2. They are now adopting and have adopted, at least in more general terms, a joint approach in respect of the care of the children which is a significant change from where they found themselves in May of 2011.

3. I have had regard to the significance and profoundly difficult events at and around separation.  

4. The first and easiest question, to which I have to address, is the provision of a baby seat when the father travels to Tasmania.  If he hires a car a baby seat can also be hired and will be made available.  If the parents organise a parenting alliance and a baby seat is not available, I assume and acknowledge that the mother will make a baby seat available to protect these children.  It would seem to me that there are some areas where this Court ought not to make orders and addressing the issue raised by the father about getting out of the cage of litigation; I will let the parties address that issue.

5. The second issue is a question of Skype.  Bearing in mind the nature of the orders, there is no reason why I ought not to order that the mother provide Skype communication forthwith upon the father leaving for the United Kingdom.  It is important, in my view, that the children not only speak to their father but they are able to see each other.  The mother will be moving back to the former matrimonial home and I am told that there are Skype facilities there.

6. Christmas is a vexed time and it is probably a bad new word to use in terms of Christmas.  The father wants an order that the children spend each Christmas in the United Kingdom, and I can understand that.  The evidence is that he takes great care and great detail in respect of Christmas Day.  The practicalities, the real practicalities of that would mean that every Christmas the mother would be isolated from her family and those whom she cares about and care about her and the children.  In the circumstance of this matter, I do not intend to order that the mother go each Christmas, but I intend to order that they go each second Christmas, noting that the children will be in the United Kingdom in late December and/or January in that off year anyway, and I have no doubt that the father will put in place arrangements perhaps to change Christmas Day to another day of the year.

7. There was an issue about the time each of the parties spend in the United Kingdom.  The father sought 23 days, the mother initially 14 and then that changed to 18 and I noticed an expression of surprise on the face of at least one of the legal practitioners for the father when that submission was made.

8. The mother has six weeks holidays per year.  She is intending to apply three weeks of those to travel to enable the children to have a relationship with their father in the United Kingdom, or preserve that relationship.  It seems to me that if I make an order that she is in the United Kingdom for 18 days it will enable the eighteen days to occur.

9. I intend to put in place a cascading and increasing time in terms of the time that the father spends with the children in the September or mid year breaks and in the end of year breaks.  It will be going a little further than was anticipated by Mr S and the mother, but it’s designed to ensure that that relationship between these children and the father is more than preserved but it is encouraged. 

10. I will also put in place significant time between the father and the children, between Saturday week and when the father departs for the United Kingdom sometime in July.  I am conscious that this change will impact on the children and I hope that the orders that are put in place can be managed by both the parents.  The father and the Independent Children’s Lawyer sought that there be some meeting just before the father went to the United Kingdom and I worried as to what purpose that would achieve.  If things were not going well, then the parties are hardly likely to rush back to court in a matter of two or three weeks and I suspect the last place either of these parties will ever want to appear again is in a family court.  So, I do not intend to make that notation. 

11. However, I will make the order that the parties attend those courses reasonably required of them, by the Independent Children’s Lawyer, in terms of the parenting alliance.  To that end, I note that the father’s time will be perhaps not as busy as it has been in the past, and I accept the evidence of the mother that she will not be in paid employment for the next month at least.

PROPERTY – SPOUSAL MAINTENANCE

1. The final issue to which I have to address is the question of spousal maintenance.  The mother was ordered to pay spousal maintenance of about $500 per week in June of last year.  The mother seeks orders that this maintenance order be discharged as and from the date of the property settlement.

2. The father seeks orders that that maintenance continue until he is paid the property settlement or until his departure to the United Kingdom, whichever is the earliest.

3. The mother has a strong income, although her evidence is that her expenses exceed her income.  She will not have a child support liability and her rent will soon cease. I am satisfied that her income is such that she can meet the spousal maintenance liability for this short period of time.  The orders that I am going to make today will be such that the mother’s liability to pay child support to the father will come to an end as and from tomorrow afternoon. 

4. The father has a very modest income, of less than $100 per week.  He needs income to survive.  I am satisfied that the mother has the capacity and the income to meet that expense and that the father has the need for that and I intend to extend that order until either the payment of the property settlement or 31 July, whichever first applies.  Therefore, if the mother pays the father sooner rather than later, the $500 per week will diminish sooner rather than later.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 May 2012.

Associate:     

Date:              16 May 2012