Gerber & Gerber

[2009] FamCA 564

FAMILY COURT OF AUSTRALIA

GERBER & GERBER [2009] FamCA 564

FAMILY LAW – CHILDREN – With whom a child lives – Mother proposes that the current arrangements of nine nights a fortnight with her and five nights a fortnight with the father continue while the father proposes a week about arrangement – Orders made for the current arrangements to continue
FAMILY LAW – CHILDREN – Parental responsibility – Parties to have equal shared parental responsibility except in relation to education for which the mother shall have sole parental responsibility
FAMILY LAW – COSTS – Parties ordered to each pay one half of the Independent Children’s Lawyer’s costs

Family Law Act 1975 (Cth) ss 60CC(2), (3), (4), (4A), 65DAA , 117(2), Pt VII

Goode and Goode (2006) FLC 93-286
Poletti (1990) 15 FLR 794

APPLICANT: Ms Gerber

RESPONDENT: Mr Gerber

FILE NUMBER: (P)PAF 2087 of 2004

DATE DELIVERED: 20 March 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 16 & 17 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Champion Legal

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

1. Excluding orders made by consent on 17 March 2009 all prior parenting orders in respect of the children L born … July 1992 and J born … December 1995 are discharged.

2. That subject to Order 3 the parties have equal shared parental responsibility in respect of the child J born … December 1995.

3. That the mother have sole parental responsibility for making decisions in relation to which school or other educational institution J attends.

4. Other than as is provided for in other parenting orders made on 17 March 2009 and as set out below J shall live with the mother.

5. That J spend time with the father as follows:

   (a)during the school term, each alternate weekend from after school Friday to the commencement of school Monday;

   (b)during the school term, from after school Wednesday each week to the commencement of school the following Thursday;

   (c)from 5.00 pm on 23 December 2010 until 28 December 2010 and each alternate year thereafter;

   (d)each Father’s Day weekend from after school Friday to the commencement of school Monday;

   (e)       for a period of three hours on the child’s birthday;

   (f)for one half of all school holiday periods as agreed between the parties but failing agreement alternating between the first half in odd numbered years and the second half in even numbered years;

   (g)in the event that J’s time with the father falls adjacent to the public holiday then such weekend period is extended to include the public holiday.

6. That the father’s time with J is suspended:

   (a)       on each Mother’s Day weekend;

   (b)from 5.00 pm on 23 December 2009 until 5.00 pm on 28 December 2009 and each alternate year thereafter.

7. That each of the parties pay to the Legal Aid Commission of NSW a sum equal to one half of the costs of the Independent Children’s Lawyer in the amount of $3,766.

8. That the costs payable to the Legal Aid Commission of NSW pursuant to the above order are payable within 28 days of final orders being made in the parties’ property proceedings, whether by way of contested or consent orders, withdrawal or dismissal of the property proceedings.

9. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.

IT IS NOTED that publication of this judgment under the pseudonym Gerber & Gerber is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: (P)PAF2087 of 2004

MS GERBER

Applicant

And

MR GERBER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. For about six years Ms Gerber (now Ms B) (“the mother”) and Mr Gerber (“the father”) have battled about their children’s, L and J, living arrangements.  Initially their battle was waged privately.  It spilled into the courts in 2004 when the mother commenced these proceedings.  Although repeatedly advised of the distress and likely long term emotional and psychological harm their dispute caused their children, with energy and enthusiasm these parties refused to compromise.  Fortunately for L, who will shortly celebrate his seventeenth birthday, the parties agreed parenting orders about him were unnecessary as a consequence of which the focus of this hearing was upon thirteen year old J.

3. The mother was confident her insistence that during school term J spend five nights and no more each fortnight with the father had been and remained for him the only appropriate arrangement.  Similarly the father was confident his insistence that J’s time with him should be increased from five to seven nights each fortnight was the only appropriate arrangement.  While both parties claimed to be attuned to their son, each was deaf to his entreaty they end their dispute and this litigation. 

4. One of the few matters the parties agreed upon was that five years of litigation about whether J should have five or seven nights a fortnight during school term with the father had been a fight worth having.  Neither accepted that by continuing to contest this issue they had imposed a terrible burden on their children.  It is unlikely that anyone who sat through this hearing would agree with them.  Neither J nor L would.  Their position was aptly summarised by Family Consultant Mr G in his Family Report dated 4 December 2007 when he said:  “The parental battle over [L] and [J] disgusts these children”. 

5. I turn now to the relevant facts.

Facts

1. The father was born in June 1961.

2. The mother was born in August 1964.

3. The parties began living together in August 1986.

4. In June 1990 the parties married.  Neither party had previously married.

5. The parties’ first child, L, was born in July 1992.

6. In December 1995 the parties’ second child, J, was born.

7. Neither party has other children.

8. In anticipation of their imminent separation, on 12 December 2002 the father told the mother that upon separation the children’s time should be divided equally, their assets shared equally and offered to pay her $25,000 per annum child support.  This was a package deal with each component of the proposal conditional upon the mother’s acceptance of them all.  Neither the parenting or property proposals were acceptable to the mother. 

9. On 28 March 2003 the parties separated.  Although separated they continued to reside with the children in the family home at P, New South Wales.

10. On 26 March 2004 the mother filed an application for final parenting orders in the Federal Magistrates Court.  At the same time she filed an application for interim parenting orders and sole occupation of the family home.  The mother’s interim application came before that court on 24 May 2004.  Excluding procedural matters that day, pending further order, the Court made the following interim orders:

    1.That “the children” [L] born […] July 1992 and [J] born […] December 1995 live with the applicant wife.

    2.That the children have contact with the respondent husband as follows:

    (a)from after school Friday until start of school Monday each alternate week;

    (b)each week from after school Wednesday to the start of school Thursday;

    (c)for the first half of all short school holidays with the exception of the 2004 school holiday;

    (d)in the June/July 2004 school holidays from the day after the children return from Fiji until 5.00 pm on the day before school resumes;

    (e)for the first half of the December/January school holidays in 2004/05;

    (f)of the weekend that includes Father’s Day;

    (g)for three hours on each child’s birthday;

    (h)by telephone at all reasonable times;

    (i)in the event that a contact weekend falls adjacent to a public holiday contact is extended to include the public holiday;

    (j)at such other times as the parties agree.

    3.Within four weeks the respondent husband shall vacate the former matrimonial home at [P] and the applicant wife shall thereafter have exclusive occupation of the said property.

    4.Upon vacating the former matrimonial home the respondent husband may remove his personal belongings and a selection of the household goods and furniture agreed between the parties.

    5.That the parties shall make arrangements to attend confidential counselling with an agreed agency which counselling shall include the children if the counsellor deems it appropriate.

11. In compliance with the interim orders the father vacated the family home on 21 June 2004.  Since then he spent time with J as provided for in the interim orders with additional periods particularly during school holidays.  In relation to additional time and variations to the school holiday arrangements these have been negotiated between the children and the parties.  That is to say the children have been the mediators.

12. In April 2006 the father commenced a de facto relationship with Ms N.  Ms N and her two children moved into a home the husband built on property the parties own at K.  It is common ground that J enjoys good relationships with Ms N and her son, O.

13. Although the date upon which L commenced living week about between the parties was unclear, it appears likely that this regime commenced in 2006 and ended late 2008.  Since then L has lived primarily with the mother and spent one or two weekends each month with the father. 

Credit

1. This is one of those cases where it is necessary to make credit findings.  It is unnecessary to recite all of the evidence which ultimately persuaded me that where the parties’ evidence is in conflict I generally preferred the mother’s. It is sufficient to record my observation that the father’s evidence concerning his financial circumstances was most unimpressive.  For example, he said he received $500 per week by way of a loan from his brother, in addition to $2,450 per week paid towards mortgages.  With no other disclosed source of income the father said he paid $981 average weekly expenses for the children plus his own weekly expenses of $442.  He failed to disclose his partner’s income and gave no credible explanation for his ability to fund the approximate $900 per week shortfall for even his average weekly expenses.  Cross examination revealed the father spent nothing like the amount claimed upon the children and his disconcerting lack of regard for his obligation to provide an honest account of his financial situation.

2. By comparison to his evidence the mother’s evidence was consistent and proffered in a manner which generally appeared designed to assist rather than hinder the fact finding process.  As a review of the transcript would reveal, the father’s evidence was often internally inconsistent and at times appeared designed to obfuscate rather than assist the Court’s task.

The mother’s circumstances

1. The mother lives in the family home at P.  The children live with her.  Other than a 19 year old international student named T who boards at the home, no other person lives there.  All members of the house have their own bedrooms.  L and J each have their own computer. 

2. L and J would prefer that the mother did not take in boarders.  The mother understands and agrees with the children’s position, however, she explained she took boarders out of financial necessity. 

3. The mother works part-time at two local community centres.  While her hours vary she generally works two or three evenings each week.  From this work on average the mother earns about $220 per week nett.  Her boarder pays $240 per week.  The mother has realised those assets within her control so as to meet her and the children’s expenses.  Until the outstanding s 79 proceedings are finalised she will continue to have difficulty meeting her and the children’s necessary expenses.  When those proceedings are finalised the mother intends to stop taking in boarders.  This may take some time and is dependant upon the mother receiving additional assets which she can then realise. 

4. I had no difficulty accepting the mother’s evidence that in circumstances where the father paid no child support she had taken in boarders so as to supplement her income as best she could.   

5. Until the end of 2008 both children attended S School.  At the end of 2008, having learned that his anaphylactic condition disqualified him from a career as a pilot, L decided he wants to take up a trade.  With the parties consent, L changed schools and this year commenced Year 11 at a Technical College.  This school offers school based trade qualifications and as part of his Higher School Certificate, L is undertaking studies towards qualifying in a trade.  He will need to have a sponsor for his apprenticeship.  The father said his brother had agreed to sponsor L’s apprenticeship and presently paid L $300 per week wages.  The mother knew nothing of L’s alleged receipt of this income and I have real reservations that he does.

6. J is in Year 8 at S School which is where he has always attended school.  Twice the school had indicated its intention to refuse his re-enrolment because his school fees were in arrears.  Presently there are $14,051.67 in outstanding school fees.  As at 4 July 2007 the outstanding school fees exceeded $30,000.  The mother cashed in an investment fund and paid approximately $13,000 in August 2007.  On 21 December 2007 the father informed the Court that he would pay $15,000 towards those fees by 31 December 2007.  The father did not do so. The school recently lodged a proof of debt in the father’s  bankruptcy the effect of which is that the outstanding fees will now be paid.  Had the school not done so it is highly unlikely the father would have paid his portion of J’s outstanding school fees.  During closing addresses, the father said the parties had always been able to afford J’s school fees and that he was committed in the future to ensuring he paid at least one half of them.  Whilst I accept the first part of his submission, I do not accept the latter.

7. The extent of the father’s failure to contribute to J’s school fees as and when they fell due plus his child support arrears, combined with two years during which the father has paid no child support (which did not form part of the amount proved in his bankruptcy) revealed that unless in the future the mother pays all of J’s school fees it is highly unlikely J would be able to complete his education at S School.  Presently she does not appear to have the capacity to do so.  The effect of this is that J’s continued enrolment at S School is at best tenuous.  The father is unlikely to agree that J change schools and unless a formula is established by reference to which this decision would be made J is likely to again find himself at the centre of litigation. 

The father's circumstances

1. The father resides with his partner Ms N in a large home at K.  Ms N has two children, H who is about 18 years old and eight years old O.  H recently moved out of home and now lives in a rented apartment. O lives week about between his parents. This arrangement had existed for about 12 months and worked well.  No doubt this was because O’s parents were motivated to make it work. Unfortunately for J the same could not be said of these parties.

2. The father said he worked for his brother in various businesses without remuneration other than the loans earlier referred to. This involved the father quoting on domestic installations, performing warranty repair work and running a leisure sport venture. Whether he has J for five or seven nights a fortnight he is able to work around J’s time with him. The mother contended that without her consent or appropriate consideration the father transferred these businesses, which the parties previously owned, to his brother.  The full extent of the brother’s and the father's financial dealings will require further attention in the outstanding s 79 proceedings. 

3. The father does not have a driver's licence. 

4. In the mid 1990’s the father suffered a serious back injury from which he has an ongoing disability.  His disability does not affect his parenting capacity. 

5. The father shares J’s enthusiasm for rugby and other sports. J excels at sport.  Last year the father coached J’s school rugby team. The mother refuted the father’s claim he had again been appointed coach of J’s school rugby team.  Indeed it was difficult to see how he could fulfil this role if, as he said, the school refused to provide him with the coaching schedule. Although contentious, nothing turns on whether the father had been appointed to coach J’s rugby team in 2009.

6. The father was recently made bankrupt.

7. The Child Support Agency lodged a proof of debt in the father’s bankruptcy in which it claimed arrears of $25,373.77.  This is in addition to the proof lodged by S School for outstanding school fees.

8. The father said he had a cooperative relationship with J’s school and referred to his many discussions with its bursar.  These discussions involved the bursar chasing the father for outstanding school fees. As evidence of his cooperative relationship with the school, the father said the bursar informed him that he dealt with parents less cooperative than him. If that be the case one can only observe a bursar's lot is not a happy one.

9. The father complained the mother has routinely failed to give him school documents commonly provided to parents which included J’s school reports.  This latter complaint appeared to fall away when the father accepted the school issued two semester reports annually.  Once aware of this the father accepted he had received the child’s school reports.  The sense that I was left with from the father's evidence concerning his dealings with J’s school was that his relationship with the school was not as easy as he would have the Court accept.  It appeared clear that the father had a less than adequate working relationship with the school or knowledge of its involvement with his son.  This was a situation of his making. 

10. The father and Ms N between them have done all of the driving for J to spend time with the father during school term. This effort speaks well of their commitment to J and spending time with him.  It is unclear why responsibility for the many years of J’s travelling between the two homes has fallen so heavily upon the father with so little contribution by the mother.  Be that as it may, the simple point that follows is that the May 2004 orders have been implemented constructively and from J’s perspective the practical aspects appear to have worked well.

11. When he was quite young the father's parents separated. From an apparently early age the father and the father’s brother lived week about between them.  The father reflected happily upon the way his parents managed their post separation parenting relationship. He was saddened that he and the mother had been unable to offer their children the conflict free childhood his parents gave him.  Based on his childhood experience the father said the only outcome acceptable to him was that J’s time during school term be divided evenly between the parties. He agreed that implicit in this approach was his acceptance that for the seven nights in 14 J lived with the mother she would adequately meet J’s needs.  I observed to the father that if the mother was able to meet J’s needs seven nights out of 14 it was difficult to accept that any credible complaint could be made about her capacity do so for nine nights.  Perhaps in response to this notion the focus of his final address was more on the likely benefits for J of routine and additional time with him.   

1. As I commented earlier the father is happy with the way Ms N and her former partner have implemented O’s week about living arrangements. By aligning O’s and J’s weeks in his home, the father said there would be a schedule which would work for the family and the children.  The children, who relate well to each other, could have uninterrupted time together and his family would function as a harmonious unit. All would be spared the logistical tedium of J coming in and out of the home with the frequency required by the current orders.  

The applicable law

1. The law in relation to the adjudication of parenting proceedings is well known and need only be referred to briefly.  See Goode and Goode (2006) FLC 93-286. The best interests of the child is the paramount consideration. The legislative framework is found in Part VII of the Family Law Act 1975.  There is set out the Objects of the Part and the Principles which underpin it.  The legislative framework requires that the various factors set out are considered to the extent each is relevant.  If equal shared parental responsibility is to apply I must proceed as required by s 65DAA.   

Section 60CC(2) primary considerations

1. The parties said that J should have the ongoing benefits derived from meaningful relationships with each of them.  This is notwithstanding the mother’s evidence that J was afraid of his father.  Neither party submitted that increasing the time J spends with the father with the commensurate reduction in time with the mother as the father proposed, compared to maintaining the existing arrangements, would change the nature of J’s relationship with either party.  Their point being that presently he has the benefits of meaningful relationships with both parties and irrespective of the outcome this is likely to continue.  With this approach I agree.  Indeed I am strongly satisfied that neither increasing nor reducing J’s time with either party would materially affect his relationships with his parents or the benefits he derives from them. 

2. There were no risk issues which required consideration.

Section 60CC(3) additional considerations

1. An important factor in this matter concerns J’s views.  Historically these are documented throughout the Family Reports[1].  To a considerable extent the observations made of the parties in these reports coincides with my own.  The reports warrant very considerable weight. 

   [1] Exhibits D, E, F, G,

2. The first report basically summarised the parties agreement to continue the existing arrangements, the children’s acceptance of this and happiness that the parental dispute had ended.  In the next two reports J’s views can be seen as in effect supporting an ongoing desire to maintain the existing arrangement; that is, five nights in 14 during school term, half of each school term holidays plus adjustments for special occasions.  It is clear from the first three reports that J regarded the orders as providing a routine to life which worked well. 

3. For example, in the Family Report dated 20 July 2005 J’s views were reported as follows:

   18.On June 22 2005 [J] [….12.95], a quietly spoken pupil in Year 4 at [S] School, told me that he likes Art, Reading and Writing.  He also likes his parents and wants to see his father in accordance with the present arrangement for contact.  He dislikes homework but, in accordance with the demands of his mother, he completes it on Monday night.  He rationalises his acceptance of this because ‘six hours at school is better than twelve hours of work’.  Nevertheless, he enjoys the company and care of each of his parents.

   19.On 23 June, after a night with his father, [J] referred to the arrangements for contact and residence and quietly said ‘I want to have a slight change, really slight.  Every Friday with dad, just one more night with dad, even when I’m with mum’.  He said that no one had influenced him and that he had not mentioned this wish to me on the previous day because ‘I didn’t think of it.  I knew I wasn’t really sure.  I should say it because that’s what I want’.

   20.Later that morning, after I had interviewed [L] as well as [the father] with [the mother], I again met with [J], a solemn [J].  At first he said that he wanted the present arrangement to remain and to see, if he chooses, his father on the other Friday night.  He explained that his parent’s conflict distressed him.  He next said that he wanted to see his father every Friday night and remain in his care until either 3.00 pm or 4.00 pm on the next Saturday.  After that period, he wants to return to his mother.  Next he said that, on the Friday night that he is due to be with his father, he wanted to remain in the care of his mother until 9.00 am on the Saturday.  After that time he would be with his father.  I asked him why he had again changed his mind.  He replied ‘because I want to see both of them as much as I can and be as fair as I can be’.  He added that he had worked on this idea whilst he had waited in the court’s reception area.

4. In the report dated 4 December 2007 J’s views were reported as follows:

   8.[J] [….12.95] is a pupil in Year 6 at [S School], initially and wearily on 24.10.07 said that he did not know why he was meeting with me.  When I reminded him that we were meeting for the third time, he told me that he wants to live with each of his parents but that they should live apart from each other ‘because they wouldn’t be happy’.  He added that he had never seen them interact happily.  Nonetheless, he had seen glimpses of parental happiness in family photos.  These displays of happiness surprise him.  He added that he would be happy if the present arrangement by which he interacts with his parents continues.

   9.On 25.10.07 [J] said that his father believes that it is unfair ‘because I go with Mum more than I go with Dad.  When I’m thirteen or fourteen I want to go wherever I want’.  He next complained about, and simultaneously wished, that his parents would cease their conflict.  He added that ‘I can’t wait ‘til I’m my brother’s age so I can go where I want’.

5. In the fourth report, dated 10 March 2009, J’s views were set out at paragraphs 16 and 17.  These were as follows:

   16.[J] stated that his current living arrangement works ‘pretty well,’ but that it ‘would be fine’ if it changed to week about.  He said that he would be happy with either arrangement.  He saw that a week-about arrangement was fair, and anticipated that he would probably eventually change to such an arrangement if the present one continued for a while.  He saw the advantage of living with his mother, but the importance of being with his father, particularly for him as a male.  [J] avowed that he loves both his parents very much.  He repeated that he would be happy with either the current arrangement or a week-about arrangement, but wanted the security of having some orders in place.  [J] assessed that his mother would be more capable than his father of bearing the disappointment of not getting the orders sought.

   17.[J] perceived that [L] tried ‘to stick with me’ in spending time at their father’s, but confirmed that [L] spent most time at their mother’s.  [J] reported that [the father] had suggested the reason [L] does not spend as much time at his place was that [the mother] ‘has no one’.  Above all, [J] wanted his involvement in the court process to end.

6. From this report one sees that J leans towards a continuation of the existing arrangements until he decides he is ready for change.  He contemplates that he will desire a change to week about between his parents at some future time.  Within the context of the parties’ applications, whatever outcome the Court delivers would be acceptable to him.  It is noteworthy that J does not say he wants change now.  This is a factor which warrants significant weight. 

7. The family reporter in the most recent report commented favourably upon J’s maturity.  This was consistent with the parties’ evidence. 

8. There is no doubt that each of the parties had very extensively embroiled this child about their views concerning the correct outcome for these proceedings.   This was apparent from the Family Reports and the parties’ oral testimony. Sadly for this child it is apparent that he has, for years, been exposed if not always explicitly, at least indirectly to each of his parents' strongly held views that their outcome and only their outcome was the right outcome for him.  Against this background it came as no surprise that J was very distressed about the prospect of being interviewed for the most recent Family Report.  It must have been with acute misery that he realised he would once again be presented to the Court for discussion about his views.  The father refused to take him to the interviews.  The mother however tricked him into attending and she at least gave him a chance to be heard and complied with her obligations as a litigant.

9. I have been unable to determine whether J actually fainted following the Family Report.  Nothing turns upon this.  The fact that the father appreciated that the stress of being involved in the proceedings was likely to cause this child such stress he fainted ought to have caused the father to pause before he decided to oppose the mother's application. The fact that the mother appreciated that the child was so distressed she needed to warn Ms N in advance of the child's night of tears reveals that she ought to have thought before she decided that only five nights and not the seven was an outcome that could be provided for this boy. 

10. The father appeared to suggest that his decision to not take J to the Family Report interviews was child focussed. In my view he is as culpable as the mother for the fact that the Court was in the position of once again asking this child what it is he would like as an outcome from this litigation, as well as for the child’s ongoing distress about it.  J’s distress reveals how acutely he feels the conflict of loyalties his parents have imposed upon him.  In some circumstances when a child is caught in a conflict of loyalties between its parents this detracts from the Court’s willingness to place weight upon any views the child does express.  This is usually because the Court is concerned the views expressed are overly influenced by the more forceful parent and not genuinely held by the child.  However, in this case the child’s distress reinforces rather than detracts from my comfortable satisfaction he is a mature boy whose views were formed after considerable reflection and thus warrant significant weight.  His distress was evidence of both pressure but willingness to disclose his genuinely held views. 

11. There is considerable overlap between ss 60CC(3)(b) and (d) considerations and to an extent these factors will be considered together.  The former is an important factor.  It concerns the nature of J’s relationships with the parties, L, Ms N, O and H.  From paragraphs16 and 17 of the most recent Family Report it was apparent that J loves his mother and his father. His relationship with the mother has been formed against a background where she had unarguably been his primary carer. The point of distinction though in terms of the extent of her care compared to the father's is relatively minor.  It is beyond dispute that from the time of J’s birth the father had been very involved in his care.  I have no doubt that the child values his relationships with his parents.  The fact that for years he had moved easily and frequently between the parties’ homes speaks volumes for his regard and affection for them both.  Apropos the father this indicates that provided J is able to continue to spend at least the amount of time with the father during school term as he had during the past five years their loving relationship will be maintained.  Apropos the mother, given the strength of her relationship with J, even if the present nine nights a fortnight was reduced to seven, this would ensure the continuation of their loving relationship. These are findings which warrant considerable weight.

12. L is 16 years old.  L and J are each other's only full siblings.  As my findings have made plain these boys have been through a great deal of unhappiness as a consequence of the parties’ separation.  Although not a great deal was made of it in the parties' evidence, from the Family Reports it is apparent that the siblings are strongly attached and hold each other in high esteem.  I am strongly satisfied that this sibling relationship is fundamentally important to J.  It has probably been the factor which has helped both children endure, without frank psychological damage, the awful parental dispute which has so marred their childhood.  Simply put their sibling relationship has stood these boys in good stead.  It is an important factor the continuing nurture of which warrants significant weight. 

13. So that it is clear, the fact that L is living substantially with the mother and is likely to do so at least until he finishes school, is a factor which weighs heavily in favour of the mother’s application. If L was continuing to live week between the parties this would have weighed heavily in the father's favour. In my view it is fundamentally important that J’s time with his brother is not reduced.  As J moves into adolescence and, as he already is, becomes more conscious of male role model issues, it is likely that reducing his time with a much loved older brother would be destabilising.  I have no doubt it would be contrary to J’s emotional well being and happiness.  These are findings to which I attach significant weight.   

14. As I have found, J enjoys O’s company.  Both L and J have a good relationship with H.  Their positive relationships with Ms N are very much to her credit. Somehow she seems to have managed to establish relationships with each of the boys protected from the difficulties involved with the parties’ poisonous parental relationship. Irrespective of which outcome is ordered these relationships are assured. 

15. The parties have been able to make the five/nine nights living arrangement work for five years.  This suggests they could as easily have made a seven by seven arrangement work.  The mother's position in relation to this was eloquently summarised during cross-examination when she said to the father that if she had her way she would change her name, change the children's names, move away and that the children would never see him again.  She told the father she regards him as being immoral.  The sense gained from this evidence was that J’s relationship with his father had flourished because of the father's commitment to it and the Court's insistence that the child had the amount of time with the father ordered in the May 2004 interim orders.  The mother spelled out as clearly as one could, that she would not cooperate with the father’s equal time proposal until forced to by order or J’s insistence. 

16. The mother had been aware, as had the father of the toll their litigation had been taking on the children.  In one of the earlier Family Reports the mother told Family Consultant Mr G she was prepared to concede an extra night of J’s time to the father provided the father compromised the property proceedings and agreed to pay outstanding child support arrears.  Plainly her stance was motivated by a desire to resolve matters other than by reference to the child’s best interests.  My point being she either agreed that an extra night was in J’s best interests but withheld her consent for the reasons given or she did not believe it was in his best interests but was prepared to compromise for the reasons given.  Neither option reflects well upon her willingness and ability to promote J’s relationship with the father or commitment to the child’s emotional and psychological well being.  

17. Since 2002 the father relentlessly pursued what he described as a fair outcome.  His constant reference to fairness was rarely interrupted by reference to the child’s best interests.  His notion of fairness seemed to derive from adult considerations.  Too often his rhetoric reflected notions of possessiveness and equality with too little reference to what was good for the boy.  I make similar findings concerning the father's focus on fairness to him and his lack of awareness of J’s emotional well being as I have about the mother's stance in failing to concede the additional night for the reasons she gave Family Consultant Mr G. 

18. I take little comfort from the parties making the nine by five nights living arrangement work when assessing their willingness to promote J’s relationship with the other party.  Basically the parties have done what they understood they had to do, either because of the obligations which arose from the interim orders or their children required of them.  It is my strong view that if the parties were genuinely willing to promote J’s relationship with the other party they would not have embroiled him in this dispute or exposed him to their hostile views of each other. 

19. The parties live reasonably close to each other as a consequence of which either proposal is logistically feasible.  Because the father’s proposal involves less frequent movements between the parties’ homes transport costs would be reduced somewhat. I agree with the father that his proposal would reduce the effort involved in moving the child between the parties. However the effort is not so great that issues of expense or effort will influence the outcome.   

20. To the extent that parenting capacity was at issue, the focus was upon the parties' capacity to meet J’s emotional, educational and psychological needs.  All are important factors.  First and foremost this child needs an end to this litigation.  Unfortunately as counsel for the Independent Children's Lawyer submitted the end to the parenting litigation is not a complete answer because the end of the property litigation remains some time away.  For so long as there is outstanding litigation this child is going to pay a price in terms of his emotional and psychological wellbeing.

21. Turning to consider J’s educational needs. His school reports were tendered by counsel for the Independent Children's Lawyer[2]. From these one sees that the child’s attendance at school is reported as being good which the figures suggest it was. He is a keen sportsman and had good results for sports and personal development. Unfortunately that is the extent of his academic success. Otherwise one sees results mainly in the C and D bandwidths. These are the two lowest bandwidths on the school's reporting system. C was a result which the school described as inconsistent commitment.  D was cause for concern and a result likely to galvanise most parents.  There was a recurring theme of homework not being completed.  The majority of J’s teachers commented that his level of achievement would improve by more sustained effort in class, with regular completion of homework and by bringing his equipment to school. The majority of his teachers disclosed that his behaviour in class was deteriorating.  The mother's evidence was that he was facing the risk of regular Monday detention.

    [2] Exhibit C

22. In relation to the child’s education the father said in the middle of last year J said he had difficulty hearing in class. The father spoke with the mother and asked her to arrange a hearing test.  This was the first she knew that there may have been a hearing difficulty.  Neither party did anything about having the child’s hearing tested.  The father suggested that as J lives primarily with the mother this was her responsibility.  I do not agree.  J is with the father after school three nights in 14 and for virtually the entire of the recent two school holidays.  Even if audiology testing was unavailable on weekends the father had ample opportunity to ensure, if the mother did nothing, that it occurred.  There was no good reason for either parties’ failure to take the child for a hearing test.

1. The father discussed with the school the idea that he may engage a tutor for J which, for a fee, the school would arrange. He had not done so and explained that he would only do it if the child had an extra two nights a fortnight with him.  This was a clear example of the father being willing to hold the child’s educational interests to ransom for his position in the proceedings.  I was left with no confidence whether J was with his father five nights or seven in 14 that he would engage a tutor.  The simple point being that if the father believed since the middle of last year that the child required a tutor he has had the time and opportunity to arrange it.

2. The mother had a similar opportunity to engage a tutor but had not done so.  It is feasible she lacked the necessary financial resources.  In any event her approach had been to be more conscious of whether or not J actually completed his homework.  Both parties agreed their son told them he had been completing his homework but neither was aware whether or not he did. As the school reports revealed in this respect J was untruthful with both of his parents. The mother appears to have taken a slightly more proactive role to the situation than the father in that she at least checked to see that the homework described in his workbook was done.  It would be useful if the father took a similar approach.

3. The effect of these findings is that presently the mother appears to have a slightly greater awareness of J’s educational needs and is somewhat more motivated, irrespective of the outcome of these proceedings, to genuinely assist the child.  At least from her perspective there is no nexus between providing J with what she perceives he needs educationally and the outcome of the proceedings. The father claimed that somehow there was a legitimate nexus between whether he has five or seven nights in 14 with the child as to the extent to which the father is willing to provide him with the educational support the father said he needs. With respect to the father his evidence on this point reflected poorly on his parenting capacity and attitude to the responsibilities of parenthood. 

4. The parties are equally able to meet the child’s physical needs.

5. The effect of my findings is that I am comfortably satisfied that to a considerable extent both parties have for years been willing to place their emotional needs ahead of J’s and that where their and his interests differed his have not had appropriate priority.  Where their and J’s interests have coincided there had been no difficulty and their focus had been on his best interests.  These are findings to which I attach considerable weight. 

6. The Independent Children's Lawyer submitted that the Court would make orders least likely to lead to further proceedings. Rarely does this subparagraph have prominence. I find myself in easy agreement with the Independent Children's Lawyer that finality of the parenting proceedings is desirable.  Hopefully this will relieve this child of some of the intolerable burden he has carried for the last five years.

7. The mother emphasised that before I would order equal time I would recall that the parties tried this arrangement for L but that the arrangement did not last.  I agree this is a factor which warrants some weight.  The mother's evidence was that at some stage, perhaps as soon as 2010, she believed that J may, she asserted, succumb to the father's pressure and decide to try living week about.  If he reached the point where she was satisfied that this was what he wanted the mother said she will enable it to happen in the same manner she did for L.  Thus the submission was made in effect that the mother could be trusted with orders which give effect to J’s present views and as those views change in favour of equal time she will give effect to them.   Hence on her approach further proceedings were unlikely.

8. The father left me with the sense that if I ordered equal time he believed the mother would cooperate and thus further proceedings were unlikely. I am not so confident.  I was left with considerable residual concern that if I failed to maintain the existing arrangement, if only on the guise that she would be supporting the child’s present views, the mother may not cooperate with an equal time arrangement. On this basis there is a slightly increased risk of litigation pending the child deciding to try living week about.

9. There are no additional s 60CC(3) factors which required consideration.

Section 60CC(4) and (4A) factors

1. There is considerable overlap between ss 60CC(2), (3), (4) and (4A).  There are no further matters under ss 60CC(4) and (4A) that require consideration.  I pause only to repeat my concern that the father's approach to J’s financial support has been manifestly inadequate.  The financial burden of supporting this child has fallen overwhelmingly on the mother.  Nothing in the evidence before me justifies the father’s stance.  This is a factor which weighed, although not heavily, nonetheless with some force in the mother's favour. 

Section 65DAA factors

1. I was invited by both parties to make an order for equal shared parental responsibility.  This was subject to the qualification that concerning the child’s education the Independent Children's Lawyer proposed an order for the mother to have sole parental responsibility.  I agree with the Independent Children's Lawyer’s submission and will make the order sought. 

2. I was not addressed upon the effect of a qualified equal shared parental responsibility order as a trigger for the application of s 65DAA(1) considerations compared to an unqualified order.  It seems to me that where there is to be an  order for equal shared parental responsibility on virtually every, but not all,  aspects of parental responsibility this is sufficient to trigger the requirement that the Court consider that the parties share the child's time equally. 

3. As must be plain by now at this point in time I am not satisfied that an equal time arrangement would be in J’s best interests during school term. I particularly emphasise the difficult parental attitudes demonstrated throughout this hearing, reduction in the child’s time with L and that presently the equal time arrangement does not accord with J’s views.

4. I must then consider whether he should have significant and substantial time with, in this case, the father.  The mother, Independent Children's Lawyer and Family Consultant said he should.  I agree with them.  The existing orders enable the father to spend time with the child every week and regularly at weekends. The father will be able to be involved in the child's school, sports and every other aspect of the child's life.  This is an arrangement that accords presently with J’s views and which the mother will support.  It is as a consequence the arrangement most likely to be implemented without further undue pressure being placed upon the child.  In the context of the other parenting orders which will ensure the child continues to spend no less than half school holidays with the father plus on other significant occasions, I am satisfied that the parenting orders I will make are in the child’s best interests.

Costs

1. I was asked by the Independent Children's Lawyer to make an order for costs in favour of the Legal Aid Commission.  The quantum of costs is approximately $7500.  Although neither party embraced the notion that they should contribute to the Independent Children's Lawyer's costs no submissions were made about the quantum claimed.   Having regard to the history of the parenting litigation the quantum sought is indeed modest.

2. Before making an order for costs the Court must be satisfied that there are circumstances by reason of which it is appropriate to do so. In considering the costs application I take into account the draft balance sheet[3] tendered by the mother at the commencement of the proceedings and which is incorporated into these reasons. 

   [3] Exhibit I

3. On the mother's case there will be an excess of assets over liabilities of approximately $2 million.  She says there is a sufficiently sizeable asset pool that the Court could properly make a $250,000 Poletti (1990) 15 FLR 794 order in her favour. The father has incurred significant costs the full extent of which are unknown to me. The volume of material contained in the file and the nature and extent of appearances to date evidences that these parties have been prepared to spend large sums on legal fees. I also take into account the evidence contained in the earlier Family Reports that the parties were willing to reach an agreement but in the end did not. These are all factors by reason of which I am satisfied I should depart from the general rule that parties bear their own costs.

4. I turn then to consider the relevant s 117(2)(A) factors. 

5. Subparagraph (a) concerns the parties' financial circumstances. The mother's financial circumstances are set out in her Financial Statement filed on 16 February 2009.  The father said his financial circumstances are set out in his Financial Statement filed on 9 March 2009.  On these documents the mother has an income of approximately $624 per week and the father, by way of loans and rent, approximately $3220 per week, the vast majority of which is tied up in mortgage repayments.  The evidence does not enable me to make precise finding concerning the parties' financial circumstances.  I can do no more than note that the mother alleges there will be approximately $2 million net available for distribution between the parties and the father denies this, I attach greater weight to the mother’s evidence.  The application of the subsection is moot.

6. Subsection (b) is concerned with whether any party to the proceedings is in receipt of legal aid.  The Independent Children's Lawyer was in receipt of a grant of legal aid.  It appears that the grant was subject to the usual conditional that the Independent Children's Lawyer would apply for her costs.  Neither of the parties was in receipt of legal aid.  The application of the subsection is moot.

7. In relation to subsection (e), the mother submitted that she has been wholly successful in the parenting component of the proceedings.  I agree and the application of the subsection favours her. 

8. In relation to subsection (g), I take into account not only as a factor justifying departure from the general rule that the parties have engaged in prolonged litigation concerning parenting matters.  It appears to me that at various points of time each had unreasonably withheld consent to the other parties’ position.  This is plain from the material contained in the Family Reports. 

9. The parties have been willing to incur very considerable legal expenses.  In a case with a property pool the size this one appears to have and where parenting litigation that continued for as long as has in this case, it is proper to virtually treat the costs of the Independent Children's Lawyer almost as a shared disbursement.  There is no reason in the facts of this case that the public purse should carry the costs of providing the child with legal representation.

10. The Independent Children's Lawyer has been of assistance to the Court.  Taking all matters into account I am satisfied that the parties should each pay one half of the Independent Children's Lawyer's costs.

11. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  1 July 2009.