GIBBONS & GIBBONS

[2018] FCCA 822

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBBONS & GIBBONS [2018] FCCA 822

Catchwords:
FAMILY LAW – Interim parenting – intractable conflict – where continuation of equal shared care not in the best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA and 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS GIBBONS

Respondent: MR GIBBONS

File Number: WOC 759 of 2017

Judgment of: Judge Altobelli

Hearing date: 26 March 2018

Date of Last Submission: 26 March 2018

Delivered at: Wollongong

Delivered on: 2 May 2018

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: Marsden Solicitors

Counsel for the Respondent: Mr Milanovic

Solicitors for the Respondent:	Maatouks Law Group
Solicitors for the Independent Children's Lawyer:	Acorn Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Applicant Mother shall have sole parental responsibility for the children [X] born 2007 and [Y] born 2010 (the children) and the Mother will consult with the Respondent Father prior to making major decisions regarding the children’s education, health, and other general wellbeing and notify the Respondent Father in a timely manner following the making of such decisions.

2. The children live with the Applicant Mother.

3. The children spend time with the Respondent Father as follows:

   (a)Each alternate weekend from the conclusion of school on Friday to before school Monday; and

   (b)Such further times as the parties may agree, from time to time.

4. The Respondent Father be restrained by injunction from using the children as messengers.

5. The parties be restrained from discussing these proceedings with or in the presence or within the hearing of the children and from showing the children any documentation connected with these proceedings or any issue relating to the parenting dispute.

6. The parties refrain from making critical or derogatory remarks about each other or members of their family in the presence of or within the hearing of any of the children.

7. The parties shall do all things necessary to ensure that no other person makes any critical or derogatory remarks about each other in the presence of or within the hearing of any of the children.

8. The Respondent Father and associated third parties be restrained by injunction from denigrating the Applicant Mother or members of the Applicant Mother's family to the children or in the presence of the children or at all.

9. That the children have reasonable and liberal telephone communication with the parent with whom they are not spending time.

10. The matter be adjourned to 13 July 2018 at 9:30am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 759 of 2017

MS GIBBONS

Applicant

And

MR GIBBONS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about two children, [X], born 2007 who is 10 years old, and his younger brother, [Y], born 2010 who is seven years old.  The Court must decide where the children live and how much time they spend with the other parent. 

Background

1. It is quite clear to the Court, from the evidence before it, that [Y] and [X] have been caught up in the cross fire of the conflict between their parents for several years.  During the Child Inclusive Conference held on 18 October 2017, [X] was able to recall his parents having verbal arguments:

   including times when he has asked them to stop and has stood in the centre of their arguments to stop them.  He said that they continued to argue.

2. [X] expressed the wish that: 

   his parents .. be able to talk to each, so that they can work out the best arrangement for them without involving him in the decision.  He wants them to communicate more.

   The Child Inclusive Conference Memorandum, recording this Conference, became Exhibit “ICL1”. 

3. Other documents produced to the Court, and particularly documents produced by (name omitted) Child Therapies, demonstrate the emotional impact on [Y] of exposure to the conflict between his parents.

4. The Father in this case is 39 years old, the Mother is 41 years old.  They commenced cohabitation in 2002, married in 2003, and separated by about 2016.  [X] and [Y] are their only children.  Both were Police Officers during their relationship, and both retired from the Police Force.  The material before the Court leads it to conclude that, in the course of their duty, they were both exposed to difficult and traumatic situations which, combined with pre-existing factors, caused them to suffer mental health difficulties.  Neither appears to have current or ongoing mental health difficulties such as would affect their ability to parent [X] and [Y].

5. For most of the time since the parents separated in 2016, they have had in place an arrangement that approximates to an equal shared care arrangement.  The Mother unilaterally ceased this in December 2017.  The Court observes with interest that during the Child Inclusive Conference, both parents are recorded to have stated to the Family Consultant that they: 

   .. consider it likely that the children find it very difficult to live in a parenting arrangement (and an equal time one at that) with parents who are not communicating. 

   Thus, the parents themselves concede that their lack of communication is a reality, but which they have not addressed. 

6. The Memorandum, which the Court accepts at face value, suggests that at that time, they both believed equal time was difficult for the children. A reasonable inference to be drawn from the evidence of both parents is that they consider their relationship to each other to be a toxic one.

7. That the Father has perpetrated family violence on the Mother does not seem to be in dispute.  The Father was charged and convicted of three counts of common assault, and one count of stalk/intimidate with intent to fear physical harm, against the Mother.  Another charge of assault occasioning actual bodily harm was dismissed.  The Father was referred for an intensive corrections order, and is listed for sentence on 27 April 2018.  The Court notes with interest that the information about his conviction was plainly available to the Father, but was not disclosed in his affidavit sworn 23 February 2018, a month after his conviction.

8. The Mother makes other allegations about the Father’s family violence.  There is sufficient material before the Court for it to conclude that, in all likelihood, the Father did perpetrate family violence against the Mother, and the children were exposed to this, in its different manifestations. 

The Competing Proposals

1. By way of her Application in a Case filed on 22 January 2018, the Mother seeks an order for sole parental responsibility, that the children live with her and spend time with the Father each alternate weekend from the conclusion of school on Friday to 5pm the following Sunday.  The Father’s proposal contained in his Response to an Application in a Case filed 23 March 2018 is that the children live with him, and spend time with the Mother each alternate weekend from Friday after school to Sunday. 

2. During the course of submissions, the Father’s Counsel submitted that in the alternative, the Father sought the resumption of the equal shared care arrangement that had existed till 2017, or alternatively, and with much reluctance, such order as this Court might make for him to spend time with his children.

3. [X] and [Y] were represented by a very experienced Independent Children's Lawyer who proposed, on their behalf, that the boys continue to live with their Mother and spend each alternate weekend with their father.

4. After the conclusion of submissions at the interim hearing, the Court, fearful of a delay in deliberating on the matter and formulating orders and reasons, made an order pending judgment that provided for the children to live with their mother, and spend each alternate weekend with their father. 

The Evidence Before the Court

1. The Applicant relied on the following material:

   a)Initiating Application filed 14 July 2017;

   b)Affidavit of Ms Gibbons filed 14 July 2017;

   c)Notice of Risk filed 14 July 2017;

   d)Child Inclusive Conference Memorandum dated 18 October 2017;

   e)Application in a Case filed by Ms Gibbons on 22 January 2018; and

   f)Affidavit of Ms Gibbons filed 22 January 2018.

2. The Respondent relied on the following material:

   a)Response to Initiating Application filed on 11 September 2017;

   b)Response to Application in a Case filed on 23 February 2018;         

   c)Affidavit of Mr Gibbons affirmed on 11 September 2017;

d)Affidavit of Mr Gibbons affirmed on 2 February 2018; and

e)Financial Statement filed 11 September 2017.

1. The following documents were tendered:

Exhibit No.	Description of Exhibit/MFI
A1	Tender bundle
ICL1	CIC Memo

1. In the tender bundle, the following documents were tendered:

   a)(name omitted) Child Therapies;

   b)(name omitted) Medical Centre;

   c)ODPP Prosecution of Mr Gibbons dated 22 March 2018; and

   d)Final Apprehended Domestic Violence Order.

The Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (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).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

   (b)  the nature of the relationship of the child with:

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

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

   (c)  the extent to which each of the child's parents 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;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

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

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

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

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

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

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

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

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

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child

Meaningful Relationship

1. The aggregated material before the Court at the interim hearing leads it to be comfortably satisfied that the boys have a meaningful relationship with their Father.  They clearly love him, and want to spend time with him, but inferentially also want him to stop being an active participant in the parental conflict.  [X] wants to stop thinking of his parents as enemies.  On any proposal before the Court, the children would have a meaningful relationship with both of their parents.  This is not a determinative consideration in the present matter.

Protecting the Children from Harm

1. The Independent Children's Lawyer submitted, and the Court readily accepts, that the greatest present danger that these children experience is exposure to the toxic conflict between their parents.  [Y] has been attending therapy to deal with some of his emotions, consequent upon his parents’ acrimonious separation.  In therapy, he described his Father as “the angry mad man”.  Indeed, the reference to his Father’s anger occurs several times in the therapy records.  The Father’s Counsel submitted that minimal weight should be placed on these records because of the suggestion that either the Mother was present during [Y]’s therapy sessions and/or the Mother has placed these ideas in [Y]’s mind.

2. There are obvious problems with this submission and, with respect, it suggests a lack of insight on the Father’s part not just as to the reality of his own behaviour, but of its adverse impacts on his children.  [Y]’s description of his Father is consistent with [X]’s graphic description of literally standing between his parents, asking them to stop, but having them carry on in any event.  The fact of the Father’s violence towards the Mother has been established beyond reasonable doubt in the Local Court.  It is more likely than not, even at an interim level, that there is substance to [Y]’s concerns about his Father’s anger. 

3. Is this a risk for [Y] and [X]?  It is not suggested, nor would the Court accept this if it had been so suggested, that the Father presents a physical risk to the children because of inability (for example) to manage his emotions.  The risk, the Court perceives, is an emotional one to the children and specifically the emotional harm that will result if the children are continually exposed to expressions of parental anger, emotion, or conflict.

4. It was contended in the Father’s case that the children are at risk of harm in the Mother’s care, because of her psychological difficulties.  The Mother certainly has experienced psychological issues in the past, mainly post-traumatic stress disorder, but there is no indication to suggest that her mental health condition is not adequately managed.  Indeed, the Father’s own proposal for the children to spend time with the Mother, which does not require supervision, is inconsistent with the stated concern.

5. On balance, there probably is a risk of harm to the children if they were to spend extended periods of time with the Father.  His own actions, as well as the reports of the children and the Mother, do suggest an inability to regulate his emotions, from time to time.  The Court has no doubt that the Father’s life experiences, together with these acrimonious proceedings, have placed considerable emotional pressure on the Father.  Nonetheless, the children need to be protected.  The Father’s proposals are completely inconsistent with the existence of the harm that the Court believes exists.  The Mother’s proposal is a proportionate response to the issue.

The Children’s Views

1. Both children want to spend time with their Father.  The Mother’s proposal adequately deals with this. 

The Nature of Relationships

1. The boys appear to enjoy a good relationship with their Father, despite the dysfunctional relationship between their parents.  This will continue, on any proposal before the Court. 

The Likely Effect of Change

1. The Court accepts that the boys had been used to living in a shared care arrangement for quite some time since separation.  If the Court were concerned that a permanent departure from this arrangement would be adverse to their interests, it would be much more reluctant to do so.  However, the evidence in this case demonstrates quite clearly that the existing shared care arrangement merely created opportunities for the children to be exposed to even more of the acrimonious parental conflict.

2. The Mother was quite correct in making the decision to terminate this arrangement late in 2017.  There will be a change to the children, if the Mother’s proposal is accepted.  However, the Court believes that it will be beneficial change.  There is no basis, on the evidence before the Court, for making the drastic change proposed by the Father, ie, that the children live with him. 

Issues of Practical Difficulty and Expense

1. There appeared to be no evidence on this issue.

Parental Capacity, and Parental Attitudes

1. There is much that could be said against both parents in terms of their capacity, and attitudes.  The Mother’s actions in the past appear to have been manipulative.  There is already a strong flavour in the evidence to suggest that at a final hearing a Court might reasonably conclude that the Mother has sought to influence, and thereby manipulate the children’s views, eg, in relation to the risk supposedly posed by the Paternal Grandfather.

2. The acrimonious parental conflict that exists between the parents reflects very poorly both on their capacity to meet the emotional needs of the children, and to their attitudes towards the children, and their own responsibilities as parents.  The Father’s struggle to deal with his emotions, particularly anger, in the presence of the children, reflects poorly on him. 

3. The Court is also concerned about an attitude of the Father which the Court finds difficult to understand.  When the matter first came before me on 1 February 2018, in circumstances where the Father had not been spending time with the children since December 2017, he was actively encouraged by the Court to accept, on or without prejudice basis, the Mother’s proposal for him to spend weekend time with the children, at least pending the interim hearing that had been set down for 7 March 2018.  It is hard to understand why he did not do so.  Moreover, during submissions at the interim hearing on 26 March 2018, the Court detected a distinct reluctance on his part to accept any outcome that involved him spending less time with the children than equal time.

4. Again, it was the Court that was actively encouraging him to restart his relationship with the children.  The distinct impression was formed that the Mother believed that the Father might not, in fact, take advantage of any order for him to spend time with the children if that order does not reflect his personal preferences.  For the Court’s part, and speaking on behalf of the children, they love their Father and want to spend time with him, but they do not want to continue to be caught up in the cross fire of the parental conflict.  It would be a strange attitude in the Father, indeed, if he were to cut himself off from the children simply because he did not get it his way. 

Parental Responsibility

1. The Mother sought sole parental responsibility.  The Father did not seek any order in relation to the same and the Independent Children's Lawyer agreed with the Mother.  The Court agrees with the Independent Children's Lawyer.  The inability of the parents to communicate, their seemingly intractable conflict, and the toxic relationship that exists between them, warrants the imposition of sole parental responsibility.

Order in the Best Interests of the Children

1. The Father’s proposal for the children to live with him, or otherwise to revert to the equal shared care arrangement, is plainly not in the children’s best interests and it is surprising, the Court records, that the Father would press this given the evidence.

2. The Mother’s proposal for each alternate weekend seems appropriate, but the Court could not understand why the children would need to be returned on Sunday evenings, when they might just as easily be returned by the Father to their school on Monday morning.  That is the order that the Court prefers, for the time being.  Unless the parents otherwise agree, this arrangement should continue through the school holidays.

3. There were a number of matters that appeared not in contention, and which are otherwise beneficial for the children. 

4. The Independent Children's Lawyer pointed out the obvious benefit to the children of mutual non-denigration orders, and orders that the parents not discuss the proceedings with the children, or otherwise involve them.  Indeed, there is disturbing evidence that both have, advertently or inadvertently, done so. 

5. There is no reason why the children should not have reasonable and liberal telephone contact with the parent with whom they are not staying.

6. The orders, subject to the Court’s ruling above, will be as proposed by the Independent Children's Lawyer at section 10 of his case outline. 

7. There are outstanding property issues to be dealt with.  There was also discussion about expediting the preparation of a privately funded family report. 

8. The Court will bring the matter back in eight weeks, so that these matters may be considered further.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 2 May 2018