GLADSTONE & GLADSTONE

[2013] FamCA 569

FAMILY COURT OF AUSTRALIA

GLADSTONE & GLADSTONE [2013] FamCA 569

FAMILY LAW – CHILDREN – Parental responsibility – Where equal shared parental responsibility is appropriate – Parental responsibility in relation to counselling, psychological or psychiatric treatment, consultation or intervention – Best interests – With whom a child lives – With whom a child spends time – Where the children should live with the mother and spend substantial and significant time with the father – At which school a child is to be enrolled – Where the elder child has Asperger’s tendencies and exhibited extreme school refusal – Where a change of school would not be in the best interests of the child.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT: Mr Gladstone

RESPONDENT: Ms Gladstone

INDEPENDENT CHILDREN’S LAWYER: Newnhams Solicitors

FILE NUMBER: PAC 2271 of 2012

DATE DELIVERED: 6 August 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 15, 16, 17 & 18 January and 1 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd, SC with Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Santone Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Newnhams Solicitors

Orders

1. That the following parenting orders are made in relation to the children M Gladstone born … 2000, W Gladstone born … 2002 and C Gladstone born … 2005.

2. That all previous orders be discharged.

Parental Responsibility

1. That the parents have equal shared parental responsibility for the children.

Live with

1. That the children live with the wife other than at times when they are living with the husband pursuant to these orders.

2. That the children live with the husband as follows:

   5.1.each alternate week (commencing 12 August 2013), being the week following the weekend the children live with the wife, from after school Monday until before school Tuesday with the husband to collect and return the children to and from school;

   5.2.each alternate weekend (commencing 22 August 2013), from after school Thursday to before school Monday each alternate weekend with the husband to collect and return the children to and from school;

   5.3.during one-half of all school holiday periods by agreement or failing agreement during the first half in even numbered years and the second half in odd numbered years;

   5.4.on Christmas Day by agreement or failing agreement from 4.00 pm Christmas Day to 4.00 pm Boxing Day in even numbered years and from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in odd numbered years;

   5.5.on Father’s Day if it is otherwise not a weekend that the children are to live with their father from 6.00 pm Saturday to 6.00 pm Sunday;

   5.6.on each child’s birthday by agreement or failing agreement:

   5.6.1.in the event the birthday falls on a non-school day, from 9.00 am to 2.00 pm in even numbered years and 2.00 pm to 7.00 pm in odd numbered years or

   5.6.2.in the event the birthday falls on a school day, from after school to 6.00 pm in even numbered years and from 6.00 pm to 8.30 pm in odd numbered years.

3. That orders 5.1 and 5.2 shall be suspended during school holidays.

4. That order 5.3 shall be suspended during the period from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in even numbered years and from 4.00 pm Christmas Day to 4.00 pm Boxing Day in odd numbered years.

5. That order 5.2 shall be suspended from 6.00 pm on the day preceding Mother’s Day to 6.00 pm on Mother’s Day.

6. That orders 5.1, 5.2 and 5.3 shall be suspended on each of the children’s birthdays:

   9.1.in the event the birthday falls on a non-school day, from 2.00 pm to 7.00 pm in even numbered years and from 9.00 am to 2.00 pm in odd numbered years or

   9.2.in the event the birthday falls on a school day, from 6.00 pm to 8.30 pm in the even numbered years and from after school to 6.00 pm in odd numbered years.

7. That in the event that a changeover is to occur otherwise than at school which is not dealt with above, changeover is to be effected by the parent into whose care the children are to come collecting the children from the residence of the other parent.

School

1. That both parents do all things and sign all documents necessary to ensure the continuing enrolment of the child M at X Secondary School or such other school as they agree in writing.

2. That both parents do all such things and sign all authorities necessary to authorise any school which the children attend to provide to each parent particulars of the children’s schooling, including but not limited to the provision of school reports, notices of school photographs, circulars sent out to parents, notices of school excursions and any other activities to which the children are participants.

3. That notwithstanding the above order, in the event that either parent receives notice of a school event to which parents are invited, that parent will notify the other of such event forthwith and provide to the other a copy of the invitation or notice, if any.

4. That neither parent enrol the children in any extra curricular activity without the consent of the other.

Courtesy

1. That both parents be restrained from doing or saying anything to the children or in their presence or hearing or encouraging or permitting anyone else from doing or saying anything to the children or in their presence or within their hearing which:

   15.1.denigrates the other party or is damaging or detrimental to the other party’s relationship with any of the children; and/or

   15.2.discloses any details of these proceedings to the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gladstone & Gladstone 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 PARRAMATTA

FILE NUMBER: PAC 2271 of 2012

Mr Gladstone

Applicant (Husband)

And

Ms Gladstone

Respondent (Wife)

REASONS FOR JUDGMENT

1. M Gladstone, W Gladstone and C Gladstone are 13 years, 11 years and seven years of age respectively.  Their parents are Mr Gladstone and Ms Gladstone.  For convenience I shall refer to them as “the husband” and “the wife” respectively. 

2. The parents have been unable to agree on final parenting arrangements for the children and have asked this Court to assist by determining these arrangements. 

3. The parents were also at issue in respect of final property settlement.  To their credit they were able to resolve their dispute on the first day of the trial and consent orders were made that day in respect of property.

Applications

1. The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:

   ·That the wife have sole responsibility for the children in relation to counselling, psychological or psychiatric treatment, consultation or intervention in relation to any or all of the children and that otherwise the parents have equal shared parental responsibility for the children.

   ·That the children live with their mother other than during periods of time that they are spending time with their father pursuant to these orders.

   ·That the children spend time with their father as follows:

   a)for a period to be specified by the court, each alternate week, being the week following the weekend the children live with their mother, from after school Monday until before school Tuesday with the husband to collect and return the children to and from school;

   b)for a period to be specified by the court, each alternate weekend, from after school Friday until before school Monday, with the husband to collect and return the children to and from the school;

   c)for a period to be specified by the court, each alternate weekend, from after school Thursday until before school Monday, husband to collect and return the children to and from school

   OR

   for a period specified by the Court, each alternate week, being the week following the weekend the children live with their mother, from after school Monday until before school Wednesday, the husband to collect and return the children to and from school.

   ·For half school holidays by agreement or failing agreement then, subject to orders for special days, as follows:

   a)during mid year term vacations for the first half in even numbered years and the second half in odd numbered years

   b)during the Christmas school vacation period for the first half when the vacation commences in even numbered years and for the second half when the vacation commences in odd numbered years.

   ·For specified times on specified special days.

   ·That in the event that change over is to occur other than at school and not dealt with above, such change over shall be effected by the parent in whose care the children are at the time delivering the children to the residence of the other parent.

   ·That the parents do all things to cause the child M to be enrolled at X School, or such other school as the parties may in writing agree, to commence year 7 in 2013 and to thereafter ensure his continued enrolment and attendance at the school or such other school as the parents might in writing agree.

   ·That the parents be restrained from doing or saying anything to the children or in their presence or hearing, or encouraging or permitting another person from doing or saying anything to the children or in their presence or in their hearing, whether they be separate from each other or together, which denigrates the other parent or is damaging or detrimental to the other parent’s relationship with any of the children and/or discloses any details of these proceedings to the children.

2. The husband seeks orders to the following effect:

   ·That both parents have equal shared parental responsibility for the children;

   ·That the children live with each parent on a week about basis with changeovers every Sunday at 5.00 pm;

   ·That in the event that the above order is not made, that the children live with their father for a single period each fortnight comprising as much time as the Court considers appropriate;

   ·That the children spend half school holidays and specified special times with each parent;

   ·That the child M be enrolled at the X Senior School for his secondary studies;

   ·That orders for certain injunctions be made including non-denigration orders; and

   ·That certain orders be made in respect of schooling.

3. On the other hand the wife seeks orders to the following effect:

   ·Subject to the wife providing to the husband complete details of any counselling, that she have the sole parental responsibility for the children in relation to the issues of counselling, psychological or psychiatric treatment or intervention in relation to any or all of the children.

   OR

   ·That the parents do all things and have regard to the suggestions/recommendations of the school counsellor touching upon the welfare of the children.

   ·That other than in relation to the above issues the parents have equal shared parental responsibility for the children.

   ·That the children live with their mother other than for the periods of time that they spend with their father pursuant to the orders.

   ·That the children spend time with their father:

   (a)each alternate week, being the week following the weekend the children live with their mother, from after school Monday until before school Tuesday

   (b)each alternate weekend from after school Friday until before school Monday;

   (c)for one half of each school holiday period as well as during Christmas/January holidays; and

   (d)at specified times on certain special days.

   ·That the parents be restrained from discussing the proceedings with the children and from denigrating the other.

   ·That each parent be permitted to travel overseas with the children during their holiday periods.

Credit

The husband

1. The husband was an impressive witness.  He was responsive in his answers and most cooperative in the process.  He made concessions and readily on most occasions.

2. I regard him as a truthful witness and considered his evidence to be reliable.  Where his evidence is inconsistent with that of other witnesses I prefer the husband’s evidence.

The wife 

1. The wife was less responsive in her answers to questions.  On many occasions she said that she did not recall specific matters which were put to her.  I had the view that on some occasions it was more probable than not that her failure to recall was accurate but I could not say this in respect of each time she answered a question in this way. 

2. I had the overall view that she was far less forthcoming than the husband and I did not have anywhere near the same degree of confidence in the reliability of her evidence as I did with that of the husband.

3. During the last couple of years of the marriage, the wife failed to inform the husband that she was having a romantic relationship with their mutual long-standing friend Mr T.

4. I regard the wife as much less convincing in her evidence than the husband.  Generally, where their evidence conflicts, I have no hesitation in preferring that of the husband.

Mrs Gladstone Snr

1. Mrs Gladstone Snr is the husband’s mother.  It was clear that Mrs Gladstone is most disappointed in her former daughter-in-law.

2. She was responsive in her answers to questions.

3. I regard her as a witness of the truth.

4. I am satisfied that Mrs Gladstone would be happy to make herself available to assist the husband with the children.

Mr T

1. Mr T is in a relationship with the wife.

2. Mr T was responsive in his answers to questions.

3. I regard him as a witness of the truth although I had a sense that he was not as forthcoming with information as perhaps he might have been able to be.

Ms G

1. Ms G is a friend of the wife having met when their children commenced kindergarten at the X School.

2. Ms G relied on her affidavit. She referred to overhearing part of a telephone conversation between the wife and the child W on 18 August 2012.  This related to an incident during the course of which M hit his father twice.  I shall refer to this in more detail below.  In the affidavit Ms G was critical of the husband in respect of this incident and supportive of the wife.

3. I thought that upon being tested Ms G was only able to give evidence in a very general way which was of little assistance in relation to matters in issue.

Ms V

1. Ms V is a mutual friend of the parties but gave evidence on behalf of the wife.  Ms V was responsive in her answers.  I regard her as a witness of the truth.

Ms Y

1. Ms Y is the twin sister of the wife.  Ms Y’s evidence was highly supportive of the wife.  In my view it lacked objectivity and I would be most cautious about attributing much weight to this material.

Mrs H

1. Mrs H is the learning support coordinator at X School.  She knows M well and has a very good understanding of his behavioural characteristics and his needs.

2. Mrs H was about to embark on a holiday outside Sydney when she was subpoenaed by the wife to give evidence in these proceedings.  Mrs Hgave her evidence in a responsive manner and I regard her as being a witness of the truth.

Background

1. The husband, 49 years of age and the wife, 42 years of age commenced cohabitation in late 1993 or early 1994.  They married in 1994.  They separated in December 2011 under the same roof.  The wife moved out of the former matrimonial home with the children on 2 May 2012. 

2. As indicated above, there are three children of the marriage.  M Gladstone was born in 2000 (13 years), W Gladstone was born in 2002 (11 years) and C Gladstone was born in 2005 (seven years).  The children currently live with the wife and spend each alternate weekend and one after school period in the intervening week with the husband.

3. The parties met in approximately 1986 or 1987. At the time the husband was employed at a bank. The wife was attending university.

4. In November 1999, a short time prior to the birth of the parties’ first child M, the wife’s mother and step-father had a fatal car accident (her stepfather passing instantly and her mother passing in February 2000 after being in a coma for months).  The wife ceased working.

5. When M was approximately three years of age the wife noticed that he was behaving differently from other children at playgroup.  He did not interact with the other children.  He was rigid and obsessional.  So the wife took him to Dr J, Paediatrician.  Dr J assessed M as being bright but thought there might be issues about his social interaction.

6. In early 2007, M was assessed by Mr L, Consultant Psychologist, who expressed the opinion that M had Asperger’s tendencies.

7. In approximately 2009, the parties were experiencing difficulties in their relationship.  The wife thought the husband was suffering from depression.  They both attended upon Mr L.

8. In approximately July 2009, the husband took the parties’ two sons to New Zealand for a holiday.

9. In early 2010, the husband began to observe the wife having difficulties managing the children.  At this time there was some discussion between the parties about separating.

10. In February 2010, the wife informed the husband that she wanted to separate.  The husband became very depressed and threatened to kill himself if she ended the relationship. The wife continued to live at the home.

11. In March 2010, the wife told the husband that M had punched her.

12. In approximately mid April 2010, the wife became distressed and informed the husband that she needed time away.  She subsequently stayed at a health retreat.

13. In approximately mid 2010 the husband was hospitalised.  The wife said that this was as a consequence of excessive drinking.

14. At approximately this time M’s behaviour deteriorated and he was at his first floor bedroom window talking about killing himself.

15. Also at this time the wife ceased consulting Mr L. I shall refer to this matter again below.

16. In July 2010, the husband took the parties’ two sons to Melbourne.

17. In August 2010, the wife began consulting psychologist Ms S.

18. In approximately September/October 2010, the wife worked a few casual shifts at a shop.

19. In January 2011, the parties went to a Pacific island on a family holiday.  I shall refer to this again below.

20. Between February and November 2011, the parties attended counselling with Family Relationships Australia.

21. From approximately July 2011, the wife commenced taking Cipramil as recommended by Ms S not for depression, but to assist her feeling less overwhelmed. 

22. In approximately July 2011, the husband took the parties’ two sons skiing and to Queensland.

23. As indicated above, in December 2011 the parties separated under the same roof.

24. In February 2012, the husband took all three children to the Central Coast.

25. On 6 February 2012, the wife took M to school in his pyjamas.  I shall refer to this again below.

26. In March 2012, the wife purchased a house for herself and the children at Suburb B.

27. In April 2012 the parties informed the children that they were separating.

28. In April 2012, the husband took M overseas for a holiday.  The wife took W and C to the Central Coast for a holiday.

29. In early May 2012, the wife and children moved out of the former matrimonial home and took up residence at the wife’s Suburb B home.

30. On 29 May 2012, the husband commenced these proceedings, filing an Application for Final Orders in the then Federal Magistrates Court.

31. On 19 June 2012, the wife filed a Response.

32. On 25 June 2012, Federal Magistrate Donald (as he then was) made directions, appointed an ICL and adjourned the matter for interim hearing on 20 July 2012.

1. In mid 2012, the wife took the children to Queensland for a holiday.

2. In mid-July 2012, the husband took the children to Melbourne.

3. On 9 July 2012, the husband filed an Amended Initiating Application.

4. On 16 July 2012, the wife filed an Amended Response.

5. On 20 July 2012, interim orders were made by consent in the then Federal Magistrates Court for the children to live with the wife and spend time with the husband each alternate week from after school Thursday to before school Monday and from after school to 8.00 pm on Wednesday in the intervening week, as well as for an 8 day period over the September/October school holidays. The wife was permitted to take the children overseas for a holiday.  Dr MM was appointed to prepare an expert report.  The matter was adjourned for further interim hearing on 10 October 2012 and set down for a final hearing on 27 May 2013.

6. On 18 August 2012 after speaking to the wife on the phone M became extremely agitated and did not want to spend the night with his father.  The husband took the phone from M who said “I’m going to hit you” to which the husband replied “Go on hit me”.  M punched the husband who then said “Do it again”.  M apologised to the husband that evening.  The husband regretted the way he handled this incident.

7. In early September 2012, the wife informed the husband that she was seeing Mr T, who had been a family friend for many years.

8. In late September 2012, the husband spent time with the children for a week taking them to Queensland.  The following week the wife took the children overseas for a holiday.

9. On 24 September 2012, a report was prepared by Dr MM as Court expert.

10. On 10 October 2012 there was a further interim hearing.  Further interim Orders were made by consent which had the effect of reducing the father’s time with the children to each alternate weekend, for the intervening Wednesday evenings and for periods over the Christmas school holidays.  Orders were also made for M to attend therapeutic counselling.  The proceedings were then transferred to this Court.

11. The matter was subsequently fixed for hearing commencing on 15 January 2013.

12. On 25 October 2012, Registrar Kimmorley made interim Consent Orders for Ms D to undertake therapeutic counselling with M.

13. On 26 October 2012, the parties attended upon W’s teacher for interview in relation to concerns about his schooling.

14. In November / December 2012, the parties again attended upon W’s teacher with the school counsellor.

15. On 26 June 2013 my Associate informed the solicitors for the parties that I proposed to publish the judgment and make orders the following day.  My Associate was informed that the wife wished to have opportunity to consider filing an application for leave to re-open her case.  Accordingly I refrained from publishing the judgment and making the orders I proposed and listed the proceedings for mention on 1 July 2013.  On that day all parties agreed that it might be helpful if I was to withhold the judgment and orders until 1 August 2013.  In these circumstances, I indicated that I would proceed on this basis.

Husband’s allegations about the wife finding it difficult to cope 

1. The husband said that the wife had been a good mother until approximately early 2010.  He said that from that time the wife’s conduct towards the children changed dramatically in that she appeared to be experiencing difficulty in coping with the children.  He set out in his affidavit numerous matters which led him to this view.  The wife denied this.  She said that she has not said that she could not cope and that her ability to cope with the children has increased.

2. Because this matter attracted considerable attention during the hearing I shall set out the majority of the allegations, followed by the wife’s responses.

3. The first was that on or around 6 February 2010 the wife was on the phone. M had been persistently saying “Get off the phone Mum.  The wife started to scream at M and said words to the effect of “Fuck off you little prick.  I can’t take this anymore.”  The husband said that she then threw the phone at M, ran out of the house screaming words to the effect of “I can’t cope, I can’t cope, I can’t cope”, got in her car and drove off.  He said that when the wife returned home she informed him that she was in the car sobbing and yelling and thought she was having a mental breakdown.

4. The wife said that this incident was shortly after she came to the realisation that the marriage was over.  The wife denied that she swore at M.  She said that none of the children were in the kitchen.  She said that she was talking to her sister on the telephone and became angry at something insignificant.  She finished the phone call and threw the phone on the floor.  The wife said that she needed to get out of there, left the house and drove to a park at Suburb B where she sat in the car and cried.  She denied that she said she could not cope, that she was sobbing and yelling and that she thought she was having a nervous breakdown

5. The husband’s other allegations included the following.

6. In mid-February 2010 the wife was again yelling and crying saying that she couldn’t cope.  She left the home and did not return until the following morning.

7. The wife said that the husband was confused and that this and the 6 February incident were the same occasion.

8. In March 2010 the wife informed him that she wanted him to leave the house with M for a few weeks so that she could sort her head out and that he and M were the problem.  She rang the husband and said that she was going to book herself into a hotel for the night.  She said that she felt like she was having a nervous breakdown.

9. The wife denied this.

10. On 14 March 2010 the family and the wife’s sister went out to dinner.  While they were waiting for the bill M became impatient and was behaving poorly.  The wife started yelling and crying and said words to the effect of “Fuck off you little shit.”.  Amongst other things the wife said she couldn’t cope with the children anymore.  The wife denied the statements attributed to her.

11. On 20 March 2010 the family were at a coffee shop after the children’s sport.  C was having a tantrum.  The wife said to the children “I wish you would all go away.”  The wife denied this.  That afternoon M and the wife were yelling at one another and the wife said to M words to the effect of “Fuck off” and that M was replying using similar language.  M was crying and was extremely distressed.  The wife denied this.

12. The following day the wife was preparing dinner and the children M and C commenced to fight.  The wife was cutting up carrots forcefully and the husband asked her to stop.  The wife stabbed the knife into the benchtop saying “I wish you would all fuck off.”.

13. On 9 April 2010 the wife telephoned the husband at work and asked him to come home because she could not cope anymore, which he did.  The next day the wife again said that she could not cope and that she had had suicidal thoughts when driving the car.  The wife denied that she has ever had negative or suicidal thoughts.  She said that because her parents died in a car accident it is offensive to suggest that she would contemplate injuring herself in a motor vehicle.

14. In late April 2010 following the wife’s return from a health retreat, the child W informed the wife that the husband had been a good cook to which the wife shouted at W words to the effect of “You’re an unappreciative shit.” and walked away crying.  The wife denied this.

15. The husband’s affidavit contained numerous assertions about similar intemperate behaviour accompanied by bad language during the remaining part of 2010 and 2011, much of which was directed at the children, particularly M.

16. The wife denied that she behaved as asserted by the husband although she said that she did behave emotionally around the husband during 2010 to 2012.  She said that the strain of remaining in an unhappy marriage was the predominant factor affecting her emotional well-being and that the impact on the children of ending the marriage weighed heavily on her for more than two years.  She said that the emotional strain she was experiencing did not affect her capacity to care for the children.

17. As indicated above, I have more confidence generally about the reliability of the husband’s evidence than that of the wife.  I prefer his account of these events to that of the wife.

18. The wife said that on 13 February 2010, following her having informed the husband a few days earlier that she wanted to separate, the husband came home early from work visibly upset.  She said that the husband was sobbing and said that if she left he would kill himself.  The wife said that she was shocked and scared by his behaviour.  The child C was present.  The wife said that in the circumstances she felt that she could not leave the marriage at that time.

19. In January 2011 the family went on a holiday to a Pacific island.  The parties had a number of arguments.  The husband said that one evening the wife became physically aggressive towards him, pushing him around and punching him in front of W.  The husband said that the wife informed the children that their father was leaving.  He said that the children looked bewildered and that M became distraught.  The wife denied most of this and said that she pushed the husband “weakly”.

20. On 1 June 2011 there was an argument between the parents concerning discipline of the child C.  The husband said that at one point the wife looked at C and then said words to the effect of “Fuck off.”.  He said as he left the room the wife started to punch him.  The wife conceded that she punched the husband on the side of his arm.  It was common ground that the wife then apologised.  But the husband said that the apology was accompanied by comments which, if true, struck me as being insulting and aggressive.

21. During cross-examination the wife denied that she had said “Fuck off” to the children on a number of occasions.  She conceded that she had said “fuck” in front of them.  It was suggested to the wife that during her sessions with Ms S she had informed Ms S that she swore like a trooper.  The wife agreed and said that they also discussed whether the fact that the children swear was a result of the wife’s swearing.

22. I do not consider the husband to be malicious.  I would be very surprised if he had made up any of the allegations or if he exaggerated what had occurred.

23. This leads me to the finding that it is more probable than not that what he has alleged is true.  The clear picture which emerges is of a mother who over the relevant period had difficulty parenting the children in the circumstances which were presenting at that time.

24. But in my view, to be fair to all parties and especially the children, on the wife’s evidence, 2010 and 2011 was a very bad time for her.  She had become very unhappy in the marriage.  She had informed the husband early in 2010 that she wanted to separate.  She said that he had become very depressed about this possibility and in such circumstances she felt unable to separate.  She said that she felt trapped.  M’s behaviour had been very challenging for each of his parents for some years. 

25. Bearing in mind these other stressors, one could understand why the wife might overreact from time to time out of a sense of real frustration.  And there was a further serious complication in her life.  This was the fact that throughout this period the wife was endeavouring to have a romantic relationship with Mr T, who had been a friend of the family for many years.  This must have been playing very heavily on the wife’s mind because she found herself unable to inform the husband about this relationship until just before Dr MM’s report was released.  The wife knew that the report would make reference to her relationship with Mr T.

26. I accept the husband’s evidence that these occurrences distressed the children particularly M.  But in my view, in the interests of the children, the Court should be careful to see this behaviour in the context in which it occurred.

27. As I have said, the husband said the wife was a good parent to the children until 2010.  The wife has now established herself in her own home.  She said that she had been more stressed during these last couple of years living with the husband and wanting to separate from him.  And the children now appear to be more settled.

Change of School

1. As indicated above, the wife sought an order to the effect that both parents do what is necessary to ensure that M is enrolled at and attends Z School.  Such an order was opposed by the husband who wanted M to undertake his high school education at X High School. As its name implies, this is the secondary arm of the school which the children have been attending.  The ICL did not support the wife’s application for the change sought.

2. At the hearing in January 2013 it became clear to me that an urgent decision needed to be made about this application because M would be commencing his high school years this year.  In these circumstances I informed all parties at the conclusion of submissions that I was not persuaded that it was in M’s interests to change from X School.  I indicated that I would include reasons in the judgment I proposed to prepare in relation to the other matters in dispute.  These are the reasons.

3. The wife’s case was as follows.

4. During 2011 the parents made an application for M to attend at Z School for his high school education.  After lodging the application, the parents and M made a visit to Z School in November 2011.  Shortly thereafter a position was offered for M to become enrolled at the school.  The wife said that the husband supported this at the time and congratulated M on his acceptance into the school. 

5. M tends not to cope well with change so that transition to any high school, even X School, might be difficult for him.  X School is conducted on a campus at Suburb E whereas M’s X Junior School had been at Suburb B, so this would involve change for him.  Initially, M was concerned about changing to a large school, apparently worrying that he might get lost in such a large school.  But the parents again visited Z School with M in July 2012 and met with the Year 7 coordinator.  They also visited many of the excellent and extended facilities at the school.  After this M informed his mother that he wanted to attend at Z School. 

6. M attended “a taster day” there at the end of August 2012.  After this he informed his mother that he definitely wanted to go to Z School and that if required to go to X School he said he just would not go. 

7. M and his mother attended the orientation day at Z School in December 2012 and the husband did not attend.  At the end of presentations on that occasion M informed his mother that he was excited.

8. Sport is compulsory at Z School and M has enjoyed playing basketball.  The wife raised with M the fact that he would be required to play sport every Saturday and that there would be two training sessions each week.  M said that was fine.

9. At X School, the students play sport mid-week and not on Saturdays.  Sport is not compulsory there.  If M was to attend X School, at least initially, his Saturday mornings would be spent watching his brother W play football.  M dislikes this intensely and experiences frustration from it.  So that he would probably end up sitting at his computer playing games rather than being outside playing sport if he was attending Z School.  The latter would be better for him.

10. Many of M’s friends will be attending a school different from X School in their high school years.  Accordingly, it cannot be assumed that they would assist in his transition to X School.  M’s closest friend and a couple of other friends, as well as some X School boys, will be attending Z School. 

11. Z School has approximately twice as many students in each year as does X School.  Therefore there would be better prospects for M to make friends.  The house system at Z School would provide M with a greater level of pastoral care particularly in Year 7.  Z School has a strong, consistent discipline policy and an anti-bullying policy. 

12. Z School emphasises academic excellence.  There are sanctions for failing to complete homework which would be likely to assist M who has had difficulty completing his homework. 

13. Z School offers facilities not available at X School such as large industrial technology rooms, a drama theatre, a new science wing under construction and a working farm.  There are far more staff and resources supporting a broad range of subject choices and such are not available at X School. 

14. The spaciousness and openness at Z School would keep M calmer whereas the grounds at X School are much more limited, are crowded and there is little space which has not been built on.

15. M’s younger brother W would be well suited to Z School because of his love of sport and his good social skills.  It would not serve the boys’ best interests to have them attending separate schools.

16. The extra travelling involved for M in attending Z School would not be too onerous for him. 

17. I note that the wife appears to have drawn some encouragement for her preference for M to attend Z School from discussing the issue with Mrs H, the learning support co-ordinator at X School.  Mrs H had informed the wife that Z School was a very good school that offers great facilities and a lot more playground space than X School.  In her evidence, Mrs H took particular care to emphasise that her view was that educational decisions were proper decisions for parents to make.  She said that she would not have said that the parents should enrol M at Z School. 

18. The submissions by learned senior counsel for the wife in favour of M attending Z School were as follows.

19. W would be likely to attend Z School.  Both W and M had an expectation that they would attend Z School.  The parents by their actions in attending at the school and discussing its attributes have encouraged the boys to understand that they would be attending Z School. 

20. M has expressed a clear view to both his parents that he would like to attend Z School and the husband confirmed this. 

21. Dr MM identified the potential for conflict between M and W should they attend different schools with the possible risk to M of thinking that he was not good enough to attend Z School and not as good as his brother. 

22. There was a suggestion in the evidence that M would be prepared to take on attendance at Z School notwithstanding some fears which he holds about this and, in these circumstances, to deny him such attendance might well be a disservice to him. 

23. On the other hand the husband’s case was as follows.

24. M has difficulty adjusting to new environments.

25. Z School has sporting achievement as one of its main focuses. 

26. When the family met the Year 7 Master at Z School in July 2012, the Master indicated that sport was compulsory and that M would be playing football.  The husband said that M was reluctant to play sport and particularly contact sport.  The husband is concerned that all students have to play football, that the teams are graded and that M would be likely to find himself in a lower graded team which would be poor for his self esteem.  The husband would be concerned about M’s ability to adjust to a school that focuses so much on sport.

27. X School is within walking distance of the husband’s home and a ten minute drive from the wife’s home.  To attend Z School, M would have to catch a bus from the homes of each of the parents at Suburb E and Suburb B. 

28. X School is an extension of X Primary School which M (and the other children) had attended for all their school years.  The adjustments for M of moving into its high school would be less than those he would need to make to adjust to Z School.

29. X School is a small school on a limited campus whereas Z School is a large school on a very large campus. 

30. Class sizes at X School are smaller than at Z School. 

31. M would be better suited to X School because of its “small town” feel.  A smaller co-educational school might be softer than a larger, all boys’ school.  More students with whom M is familiar would be attending X School from X Junior School than would be the case at Z School.  M also knows a senior staff member from X School who is a neighbour and some of the other teachers at the school.

1. M’s personality type is more prone to bullying.  The husband is concerned that at an all boys school with a sports focus, M would be more likely to be a bullying target. 

2. X School’s peer group is smaller than Z School’s which would be an advantage.  Both schools have an excellent academic record.

3. Learned counsel for the husband adopted the submissions by the ICL who supported the enrolment of M at X School. 

4. The question of M’s secondary school placement was given much consideration by Dr MM and it became the subject of keen cross-examination of him.

5. Dr MM said that M informed him that he wanted to go to Z School.  He said that M said that the facilities at Z School were better than at X School. 

6. Dr MM said in his Report that it was evident that both parents had given the issue of schooling considerable thought.  He said that the husband’s view was that M would fit better in his placement at X School.  This was supported by the husband’s positive experience of the school environment to date.  X School would offer continuity, a co-educational environment and was a placement that was more suited to M’s special needs and lack of sporting abilities.  It would also allow M to be within walking distance of his father’s home.  The husband noted that the wife had previously been distressed by the lack of respect accorded to her as the children’s mother when they had initially inspected Z School.  Dr MM said that M acknowledged having had a positive experience at X School.  He said that the child echoed the wife’s statement about going to Z School so that he would be able to join the lowest-ranking football team.  Dr MM said that this was indicative of M’s lack of maturity in considering the relative merits of the two educational placements.

7. Dr MM also said in his Report that there was no doubt that both schools would be likely to be associated with good educational outcomes.  He said that given M’s evident lack of sporting ability, potential targeting by bullies within a high testosterone environment, difficulty in coping with change given his Asperger’s tendencies, the benefits of being within walking distance of his father’s home and the potential benefits of a co-educational environment for a boy with difficulties in the development of social skills, on balance Dr MM would support M’s placement at X School as being in M’s best interests.  Dr M went on to say, however, that he wished to emphasise that a collaborative approach from both parents would be required with regard to M’s future education because it was predictable that there would be challenges in the future whichever school was chosen for him. 

8. At the commencement of his cross-examination, Dr MM indicated that since preparing his report he had been provided with significant additional material which he had read.  Dr MM indicated that he was concerned that the wife had identified persons who had described personal experiences with their children at X School which would probably tend to reinforce the wife’s concerns about the nature of the children’s experience should they remain at X School, particularly M. 

9. So Dr MM said that the position about choice of school was not as straightforward as he had considered it to be when he made his recommendation in his initial Report.  He now said that there were matters that would lend support to the wife’s view Z School would be a preferable placement for M.  Dr MM said that these were M’s strong and ongoing motivation to attend Z School, that he might have feelings that if he did not attend he was not good enough to attend, potential rivalry between M and W if the latter was to attend Z School and the possibility of M sitting around and playing on the computer or having to watch W’s game if W was playing football at Z School.

10. Dr MM referred to his expressed view in his Report that it would be important for the parents to take a collaborative approach and that the above matters would operate as challenges for the wife which might make it very difficult for her to participate in such a collaborative approach.

11. Dr MM agreed with Ms Christie’s suggestion that M will have vulnerabilities whichever school he might attend and that the wife might well interpret such vulnerabilities to have been caused by his attendance at X School.  Dr MM said that even though the wife had indicated that she would support whichever placement the Court was to order, he felt that for the above reasons the wife would experience difficulty in doing this. 

12. Dr MM indicated that although he did not complete a formal developmental assessment of M he had sufficient time during his assessment to adequately assess M’s mental state and to review his development.  Dr MM said that the view that he formed, that M has Asperger’s tendencies, was in the context of both the time he had spent with the child and also the significant additional information that he was provided with.  He said that this was sufficient to reach such a conclusion.  The report of Mr L was central to his conclusion in this regard.

13. Dr MM said that M would be assisted by the fact that X School is a co-educational school.  He said that this was because, as a part of general socialisation, it was important for children to have opportunity to liaise with, and interact with, both boys and girls to normalise their developmental experience of relationships.  He said that this was particularly important for children who have problems getting on with other children because the broader the experience the more beneficial that would be.  He said that in M’s case he has been anxious about aspects to do with sport, with being at a big school and about change.  He said that M has benefited from interactions with girls.  The wife highlighted that M has enjoyed interaction with family females and other females with whom he has had contact during holidays.  Experiences with boys and girls would be helpful, particularly where a child has a tendency to withdraw into computer games.  Accordingly, Dr MM thought that a co-educational setting would be beneficial now and into the future. 

14. Dr MM said that Z School has a reputation for being highly competitive in sport which was not necessarily a good fit for M.  Dr MM referred to the wife as having acknowledged experience in having been somewhat sidelined during the meeting at Z School which Dr MM said was consistent with some long-standing traditions in some GPS schools.  Dr MM acknowledged that having to watch the football each Saturday would not be something which would interest M.  He also acknowledged that M might resent W if W was to attend Z School and excel in sport.

15. Dr MM indicated that he did not agree with the wife’s suggestion that a larger number of peers would provide greater opportunity for M to find friends.  Dr MM thought that a difficulty with larger schools can be that it is harder for students to form individual relationships and harder for staff to have an awareness of the individual needs of a student.  He thought that in a smaller school it would be more likely that individual needs would be more consistently addressed.  He said that on balance he thought that it would be less overwhelming for M to be in a smaller school.  Dr MM thought it would be hard to know whether a larger campus would be more beneficial than a more contained campus.  Dr MM also thought the fact that M had been with his peers over a number of years would be a benefit to him.

16. It is troubling that the wife has some doubts that X School might not be able to provide adequately for M’s needs, at all stages of his development.  But Dr MM thought that the approach which X School had demonstrated over the years had been the sort of collaborative approach which he said would benefit M. 

17. There was a matter which attracted considerable attention during the hearing relevant to M’s school placement.  This was that the application form for M to be considered by Z School for enrolment, had been signed by both parents notwithstanding that it contained what would appear to have been an important omission.  There was a section of the form which invited parents to include comments about any special needs of the child.  M’s application form did not include any such comments.

18. The husband’s evidence was that he signed the form and gave it to the wife to complete and lodge.  The wife’s evidence was that she had discussed with Mrs H, the learning support co-ordinator at X School, whether she should fill in this part of the form.  The wife said that Mrs H suggested that she leave that part of the form blank.

19. There was considerable cross-examination about this matter.  What is clear is that Mrs H had informed the wife that she did not think it was necessary to complete the special needs part of the application form.  Mrs H said that this was because M did not have a diagnosis of Asperger’s (Syndrome) and only had characteristics of Asperger’s, and high level anxiety.  She said that M had not required any academic support and he only came to her attention because of his school refusal.  Mrs H thought that what Z School would really be seeking about special needs was whether M would require a support teacher and, in her view, he did not.

20. In any event, during the course of Dr MM being cross-examined about this matter, he indicated that he considered that it would be important for Z School to be provided with full relevant details of M’s specific needs and behavioural history including the fact that he was regarded by appropriate experts to have Asperger’s tendencies.

21. To the parents’ credit, they arranged for such material to be provided to Z School before the conclusion of the hearing.  Z School officials indicated that having considered such material, they would continue to offer M a placement at the School.

22. Dr MM, having been provided with additional material and having had further time to reconsider his original recommendation in favour of M attending X School, ultimately adhered to this view.

23. The submissions by the ICL were as follows.

24. The Court’s decision needs to best meet the needs of the individual child.  M’s characteristics include that he is academically gifted, but he has had problems with his peers, that he has exhibited violent behaviours to his siblings and to his parents.  He has also exhibited extreme school refusal as a Year 6 student by having been taken to school in his pyjamas.

25. Last year M was nervous about changing schools.  He finds even minor changes difficult.  His father has contended that M should attend the same school that he has attended since pre-school.  At X School he would remain in the cohort where he knows half the group and will know some of the children in the year above his year.

26. X School is much smaller than Z School and Dr MM has said a smaller school would be better for M.  X School has a corporate history of M and the teachers are aware of his vulnerabilities.  Dr MM thought that a co-educational school, which X School is, would be a particular advantage.

27. M is not a sportsman and the focus on sport at Z School, particularly having to watch the football team play each Saturday, would be very challenging for him and might lead M to feel that he does not fit in.  This could be destabilising for him.

28. The husband was bullied at school.  He is concerned that with M’s behavioural tendencies and his dislike of sport, M might be the target of bullying at Z School. 

29. It is difficult to identify what it is about Z School that would make it a suitable school for M.

30. It is uncontentious that M said he wanted to go to Z School but he also said that if the Court required him to go to X School he would get over it and get on with it.

31. The wife indicated that if the Court required M to attend X School, she would consider W also going there.

32. While going into the X secondary school would involve change for M, Z School would involve much more significant change and the evidence did not seem to support this.

33. I have set out in detail above, the considerations and submissions in favour of, and against, a change of school for M.  I have given careful consideration to them.  Suffice if to say that I prefer the position taken by the husband, Dr MM and the ICL about this matter for the reasons in their submissions which are based on the relevant evidence as referred to above. 

34. In my view, it would not be in M’s best interests for him to be required to try the experiment of enrolment at a different school for all the reasons referred to above.  In my view, based on the evidence, the balance in relation to which school would be more likely to fulfil M’s needs and be in his best interests, swings convincingly in favour of X School.  Accordingly, I am not persuaded to the wife’s application that he be enrolled at Z School.

Submissions

The Independent Child Lawyer

1. In relation to the balance of the applications, the submissions on behalf of the ICL were as follows.

2. In relation to the primary considerations, the children already have meaningful relationships with each of their parents.  Each parent brings different qualities and skills to their care of the children.  The wife has cared for the children as primary parent.  The husband has worked long hours and he described the best part of his day as having been when he was able to tuck the children into bed in the evening. 

3. In relation to the children’s’ views, the children wish to live predominantly with their mother and to spend time with their father.  It was submitted that the children’s views are relevant but not determinative.  The children should not be forced to spend time with their father for periods inconsistent with their expressed views. 

4. In terms of the children’s relationships with each of their parents Dr MM said that the children had a closer relationship with their mother.  Dr MM said the children are primarily attached to their mother and have a strong secondary attachment to their father.  He said that the wife is attuned to the children’s needs and that this is important to the children.

5. In relation to the ability of the parents to facilitate a relationship with the other, there is no issue about this.  The wife has some resistance to there being an increase in time between the children and their father.

6. In relation to the likely effect of any changes in the children’s circumstances including separation from either parent, Dr MM said that the children, especially M, would not cope with change very well.  He seemed to be saying that in particular they would miss their mother during times absent from her care.  Dr MM was critical of the wife as primary parent for not being able to achieve the children attending school as required.  So that a positive effect of change would be that the husband’s parenting style was more compatible with getting the children to school on time. 

7. The submission then referred to the capacity of each of the parents.  To some extent the wife’s parenting capacity has been compromised.  The wife did not necessarily deny some of the allegations that the husband made as referred to above.  It was clear that the children were present during some unpleasant incidents when the parents’ relationship was breaking down.  The husband also had his own vulnerabilities in 2010.  The wife spoke about feeling some jealousy when she observed the children having fun with their father at a time when she felt she was doing the hard work with the children.  She was criticised for attending the husband’s home at 4:30 am and for crying.  These matters do not impact on her ability to provide appropriate care for the children.  M is a child with particular needs and the wife has taken him to doctors and behavioural scientists as appropriate. 

The husband

1. The submissions on behalf of the husband were to the following effect.

2. The evidence of Dr MM ultimately came to the position that he would support the children’s primary residence being with the wife on the proviso that she was able to achieve their attendance at school.  He indicated he would expect a primary parent to do this.

3. There was no acceptance by the wife that she has a parenting deficit in respect of an adequate record so far as the children’s school attendance was concerned.  Clearly Dr MM regarded this as a parenting deficit.

4. In relation to the amount of time to be spent with each parent, the Full Court said in Goode & Goode (2006) FLC 93-286 at page 80,901 that 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. A primary consideration is for children to have a meaningful relationship with each of their parents. The proposal by the ICL would probably meet the requirements for substantial and significant time. But the wife’s proposal for the children to spend time with their father from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend and four hours after school each Wednesday (as originally proposed by the wife in her Amended Response filed 16 July 2012) would struggle to fulfil the requirements about meaningful relationship.

5. In relation to the children’s views, C at seven years is too young for her views to be given weight.  W and M at 10 years and 13 years respectively should have some weight given to their views.  But in considering these views the Court would note that Dr MM considered that the wife’s emotional behaviour and the children’s vulnerability would probably cause them to want to spend more time with their mother and would be likely to see the husband as the cause of their mother crying.  Accordingly, the Court would be cautious about placing any real weight on their views. 

6. So far as the children’s relationships are concerned, there is no doubt that the children have a closer relationship with their mother.  But Dr MM agreed that the mother / child relationship was likely to be an enmeshed one which would amplify the children’s clinginess, oppositional behaviour in the boys and internalising in C.  While the wife had difficulty getting the children to school it was only through other witnesses that the Court became aware of the extent of the oppositional behaviour.  While the husband’s relationships with the children were not as close as those of the wife, the relationships with him were still very close and did not carry with them the negative aspects of the wife’s relationships. 

7. In relation to the wife’s willingness and ability to facilitate and encourage the children’s relationships with their father, her capacity as a parent and her attitude to the children and to the responsibilities of parenthood, the wife conceded that she behaved emotionally between 2010 and 2012.  The Court would find broadly in accordance with the husband’s assertions about this behaviour and find that the wife’s parenting capacity had been diminished from 2010 rather than increased.  Dr MM said that the wife was not always able to separate her own needs from those of the children.  Learned counsel then addressed various of the husband’s allegations. 

8. In relation to the likely effect of any changes in the children’s circumstances, Dr MM was unable to say that a week about arrangement with each parent was contrary to the children’s best interests.  This suggests that the change would be manageable and that it would be reasonably practicable because the parents live relatively close to one another.  The husband conceded that the parties’ relationship was poor.  But it was also conceded by the wife that since mid-2012 the parties had been able to correspond by text messages about sporting activities and they had been able to coordinate a number of school activities.  With conclusion of the litigation, they would be likely to be able to be more cooperative about the children’s various needs.

9. A week about arrangement would be simpler than organising four or five nights.  If ultimately the Court was to order four, five or six nights per fortnight, the husband would prefer this in one block.

1. A significant defect in an order for the wife to be primary residence parent would be the wife’s demonstrated incapacity to achieve satisfactory school attendance. 

The wife

1. The submissions on behalf of the wife were as follows.  The wife would support the children spending time with their father each alternate weekend from Friday afternoon to before school Monday and in the intervening week from after school Monday to before school Tuesday. 

2. In relation to the children’s views, M informed Dr MM that he would rather stay at his father’s a bit less than Thursday to Monday each second week.  W told Dr MM that he wanted to stay with his mother more than with his father.  C indicated that she liked being with mum more than being with dad.  She told Dr MM that she found it OK to spend four nights but it would be better spending two nights with dad. 

3. So far as the children’s relationships were concerned, Dr MM reported that during his observation session while the husband engaged in discussion with the children, there was a lack of intimacy evident in these interactions.  W told Dr MM that he wanted more time with his mother because he loved his mother more.  Dr MM reported that the children were observed to have a primary attachment relationship with their mother who had been their primary caregiver.  Dr MM said that the wife was highly attuned to the children’s developmental needs and to their emotional states.  The children and their mother had a close rapport.  Dr MM said that this was in stark contrast to the more concrete approach to parenting taken by the husband.  He said that whilst there was no doubt that the husband was absolutely committed to the children’s welfare and loved them deeply, he lacked the degree of emotional attunement to, and awareness of, the children’s developmental needs. 

4. The wife wanted to ensure that the children have a relationship with their father.  She supported the children spending half their school holidays with their father although it might be sensible to put a two week limit on any period of school holiday time.

5. In relation to the husband’s application for the children to live with each parent week about, such an arrangement generally only works where the parents have a high level of cooperation.  The husband said that at present he and the wife were not getting on, they have differences of opinion about assistance from psychologists, the children would not be accepting of an equal time arrangement and that the matter did not appear to be one where the children’s best interests would be served by an equal time arrangement.

6. Dr MM said that if the school attendance deteriorated, consideration might have to be given to changing the arrangement.  Learned senior counsel submitted that before this would be appropriate there would have to be a chronic failure on the part of the wife. 

7. The difficulties for the children became exacerbated in approximately mid-2012 at the time the wife relocated to her new home.  The children had to accept that their family had become fractured.  It was obviously difficult for M to accept such a change.  There was unlikely to be a repetition of the absenteeism which in any event was not chronic.  Some absences were on account of illnesses.

8. Once the litigation was concluded the children could be expected to settle down. 

The Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”). 

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. The objects in this context are to ensure that the best interests of the children are met by:

   ·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

   ·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

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

   ·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

   ·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

   ·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·Parents should agree about the future parenting of their children; and

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

5. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

6. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

7. Section 61DA(1) of the Act provides that 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.

8. Section 61DA(2) of the Act provides in effect that 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 abuse of the child or another child member of the parent’s family or family violence.

9. Sub-section 61DA(4) provides to the effect that 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. 

10. 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

11. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. As indicated above, the parents agree that they will have equal shared parental responsibility for the children with one exception.  This is as follows:

Counselling and Psychological Intervention

1. As indicated above, the wife seeks an order to the effect that she have the sole parental responsibility for decisions about counselling, psychological or psychiatric treatment or intervention in relation to the children, subject to providing the husband with details.

2. In the alternative the wife seeks an order that she and the husband “do all things and have regard to the suggestions / recommendations of the school counsellor touching upon the welfare of the children.”

3. It is not clear to me what an order made in the latter terms would require apart from requiring the parents to have regard to suggestions or recommendations of the school counsellor about the children’s welfare.  In my view, such an order would be vague and unhelpful.

4. What the wife is really asking the Court to do is to remove from the husband that part of his equal shared parental responsibility for the children which would involve decision-making about counselling, or intervention or treatment by a psychologist or psychiatrist in relation to the children. 

5. The wife’s case in support of this application is as follows.

6. M has manifested difficulties in attending school, as has W.  M and W have required assistance of counsellors.  They have been seeing the school counsellor.

7. By the time M started school he was difficult to manage, was violent to W and towards his mother.  The wife contacted Mr L, consultant psychologist who assessed M to have Asperger’s tendencies in February 2007.  The wife said that the husband was reluctant to engage with Mr L.

8. In August 2010 the wife commenced consulting Ms S psychologist due to a decline in M’s behaviour.  Ms S assisted with strategies to assist in managing M’s behaviour.

9. In late 2010 the family’s involvement with Mr L ceased.  The wife holds the husband responsible for this.  I shall refer to this again below.

10. In 2011 M had a good year and his social skills improved.  He had a group of friends.  His self-esteem and interactions with others improved.

11. Unfortunately 2012 was a different story.  At the beginning of 2012 M was devastated when his best friend decided not to play with him.  He started to refuse to go to school.  A couple of weeks into first term M was refusing to go to school.  In a state of despair, the wife put him into the car in his pyjamas and drove him to school.  There she enlisted support from several teachers.  Eventually, when no students or others were around, the wife took M to the school office, then assisted him to change into his school uniform in the school bathroom.  M was very distressed.

12. X School referred the family to P Counselling Service in January 2012.  W had also been refusing to attend school.

13. The Principal at X School recommended in September 2012 that counselling be arranged for the boys and the husband rejected this.

14. It was submitted on behalf of the wife that the husband has a poor view of psychologists and counsellors and that he said that psychologists generally had a habit of seeing a person then wanting them to come back week after week.  It was further submitted that the husband thought that M did not really require assistance from a psychologist.

15. Finally, it was submitted that the husband’s evidence acknowledged that the wife would act responsibly in this regard.

16. The wife’s application for such an order was supported by the ICL.

17. On the other hand, the husband said that he had studied some psychology at university.  The husband accepted that M had some developmental vulnerability but said that he regarded this to be at a low level.  He also accepted that M had some Asperger’s tendencies but not a disorder.  The husband said that he did not think these tendencies were at a level which would require M to see a psychologist.

18. The husband acknowledged that Dr MM regarded it as unfortunate that the husband had viewed Mr L’s approach in seeing various members of the family at different times as being “a conflict of interest” and that Dr MM did not share this view.

19. Dr MM said that the husband had spoken pejoratively about the psychological interventions.  He said that the husband had referred to the psychologists as “Psych 1, 2 and 3”.  Dr MM said that the husband had mocked the wife’s approach to assertive intervention.

20. The husband said that initially he was pleased with the work Mr L was doing with M.  But he said he felt that increasingly the wife was becoming (somewhat dependent) on Mr L to help her make all sorts of family decisions.  He thought that confusion had developed about who the client was.  He said that the client was supposed to be M but Mr L appeared to him to have become the wife’s therapist.  He thought that this was in conflict with Mr L endeavouring to attend to the needs of M.

21. I note in this regard that Dr MM considered the husband’s discomfort associated with M’s care being provided by a therapist in alignment with the wife to be a normal response.  Accordingly, Dr MM recommended that an alternative child and family therapist with experience in the management of Autistic Spectrum Disorders, should be sought by the parents to provide support and guidance for M and both parents.

22. The husband said that he is not opposed to psychologists.  He said that there are good and poor in every profession.

23. He said that the family’s experience with psychologists to whom they had been referred had been mixed.  He said that one group of psychologists with whom they had engaged were very unhelpful and that both the wife and he had thought that the intervention by these psychologists had been “bizarre”.  He also said that he thought that the wife had engaged too many psychologists, having seen several herself.  He thought that there had been some over-servicing of the family by psychologists.

24. The requirements of the legislation about this matter are clear. Sub-section 61DA(1) of the Act provides a presumption in favour of equal shared parental responsibility. This can only be displaced in circumstances of abuse or where it would be inconsistent with a child’s best interests for it to be retained.

25. The husband is intelligent, highly committed to the best interests of his children and generally capable of good judgment in relation to them.  He has impressed me as having been a very good father.  It would appear that the parents occupy different positions on a scale of readiness to engage with psychologists, with the wife being very ready to do this and the husband less so.  If the husband had not been able to speak positively about Mr L’s assistance to M I would have been concerned about his capacity to make appropriate decisions about this area of parental responsibility and I would have been more inclined to accede to the wife’s application.  I do not have the view that the husband has an aversion or disrespect towards psychologists and counsellors, or that he would not be able to bring balance to a judgment about the appropriateness of engaging such professionals to assist the family.

26. In my view, it would not be in the children’s best interests to remove from the husband this important area of parental responsibility, especially bearing in mind that it might become likely that the psychological or counselling intervention for the children at some point might require involvement by the husband.

27. Having said this, in my view the husband would be well-advised to accept the recommendation by Dr MM that he and the children’s mother engage an appropriately qualified child and family therapist.

28. In all the circumstances I propose to make an order that the parents have unlimited equal shared parental responsibility for the children.

Section 60CC Considerations

1. How the Court is to go about determining what is in the children’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in s 60CC(2) of the Act. These are:

   ·The benefit to the children of having a meaningful relationship with both of the children’s parents; and

   ·The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Having noted these primary considerations at this point I shall return to discuss them below.

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-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. It is clear that the children have expressed a wish to be living with their mother for longer periods than those they would spend with their father.

2. M said to Dr MM when discussing staying with his father in “the old house” (Suburb E) from Thursday to Monday every second week, that he’d rather stay there a bit less and that it was “a bit boring”. 

3. Dr MM said that when he asked W about staying with his father W responded that he wanted “to stay with mum more”.  W said that he liked staying with his father but “not for a long time”.  In relation to spending Thursday to Mondays each second week and each second Wednesday evening with his father W stated “I don’t really like staying with him that long.  It’s kinda boring and I miss Mum”. 

4. C said to Dr MM that staying with her father Monday to Thursday was good but just Saturday to Sunday had been better because she liked being with mum more.  Nonetheless, she found it “OK to spend four nights, it is just better spending two nights”. 

5. It was suggested to Dr MM that care would need to be taken in attributing weight to the children’s expressed views because of their somewhat enmeshed relationships with their mother.  Dr MM said that to suggest that the children’s views were primarily a response to their mother being emotionally vulnerable would be inappropriate.  But he did accept that this was likely to have influenced their views.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

1. It is clear that the children have close, loving relationships with each of their parents as well as with the husband’s parents. 

2. The children’s relationship with their mother is quite complicated.  On the one hand Dr MM said that the three children were observed to have a primary attachment relationship with their mother.  He said that it was uncontested that she had been the children’s primary caregiver.  He said that this was an understandable consequence of the traditional roles whereby the children’s mother had been primarily attending to the children’s needs and domestic duties whilst the husband had attended to the traditional role of providing for the family.  He also said that the wife was highly attuned to their developmental needs. 

3. But on the other hand, Dr MM also said that the wife has emotional vulnerabilities.  Unfortunately, at times, this vulnerability has resulted in behaviour by the wife towards the children and also the husband which has been unhelpful for the children.  M told Dr MM that historically his mother had been angry towards his father.  M has been witness to many unfortunate outburst by his mother.  Dr MM said that for the children, living in the household during such difficult periods has had profound effects on them.  These effects include that their levels of anxiety have increased significantly.  For the boys, particularly M, they have tended to externalise their anxiety in oppositional and disruptive behaviours.  All three children have become more demanding of attention. 

4. Dr MM said that this behaviour by the wife is likely to have led to the children having an enmeshed relationship with her or, at least, to have amplified such enmeshment.  And the children have become somewhat clingy and interpret their mother’s distress as having been caused by their father.

1. Dr MM said that the children have an attachment relationship with their father.  But is a different sort of relationship than they have with their mother.  He said that during his observation session with the children, while the husband engaged in discussion with the children, there was a lack of intimacy evident in their interactions.  He said that the husband appeared perplexed in response to the boys’ disengagement.  He said that W eventually joined C and his father in the game.  M remained bored complaining that he wanted to spend time with his mother.  Dr MM said that the husband was able to engage with C in play. 

Sub-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 children’s parents has indicated that they are committed to supporting the children’s relationships with the other parent.

2. The husband complained that initially, after the wife left the former matrimonial home with the children, she determined what time the children would spend with him.  Initially this was alternate weekends and Wednesday evenings.  There were some difficulties. 

3. A few weeks after the parties’ physical separation C was supposed to stay overnight with her father.  But the wife had organised a play date for C and she was unable to spend time with her father. 

4. It appears that all three children, especially M, had difficulty settling into the arrangements of living with their parents separately.  This appears to have manifested itself in some strong resistant behaviour by the children against staying at their father’s home.

5. The wife said that after the orders of 20 July 2012 were made, that is alternate weekends Thursday to Monday and the intervening Wednesday after school, the children had a lot of difficulty settling into spending time with their father overnight. 

6. Having said this, things now appear to have largely settled down, with the children having been able to move between households without too much difficulty.

Sub-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 either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. Dr MM said that if the children were to spend more time with their father, they would miss their mother.

2. On the other hand, if the children did not spend more time with their father they would be more exposed to their mother’s emotional vulnerabilities and possibly be at risk of her not being able to ensure their attendance at school.

3. As was submitted by counsel for the ICL, a positive aspect of the children spending more time with their father would be that they would be more likely to attend school, and on time.

Sub-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. This is not a relevant consideration in this case.  Each parent lives in quite close proximity with the other, the husband at E in the former matrimonial home and the wife in her home at B. 

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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. In relation to the husband, Dr MM said that although he denied any history of mental illness, he acknowledged that during the Global Financial Crisis he had felt depressed and overwhelmed.  The husband described the challenging economic environment and the focus of the media on his company.  Dr MM said that during this period, on one occasion, the husband said that he drank too much.  He said that for several months, he had experienced symptoms of Adjustment Disorder with Depressed Mood.  He felt overwhelmed and depressed.  He felt that he had the “curse of Cassandra” upon him.  He experienced sleep disturbance and irritability.  The husband said that he had not been suicidal and had maintained his concentration, motivation and energy.  The husband had explored these issues with Mr L.  Dr MM said that the husband had recognised Asperger’s tendencies in himself as well as in M.  He shared with M a feeling of justice, with a focus on integrity and the truth.  He was insightful and reflective as he spoke of the environment at the bank where such personality traits were commonly “outside the bellcurve”. 

2. The wife told Dr MM that the husband had been relatively uninvolved in the children’s day to day care before separation due to his work commitments.  On the other hand, the husband told Dr MM that although the wife had been the children’s primary care giver he had always been hands on with them on weekends. 

3. The husband has involved himself closely with assisting the children at all stages of their education commencing with pre-school.  He has assisted them with assignments and projects, homework, excursions and sporting commitments.  Last year M played basketball and W played football.  The husband attended their games. 

4. But Dr MM said that although the husband had had such particular experiences he had not had the experience of the day to day primary parenting.  He said that the husband acknowledged to him that he had a limited understanding of how to run a house, the children’s nutrition, the children’s homework and the home environment. 

5. Dr MM also said that whilst the husband had been actively involved as a father, there was no doubt that he had prioritised his professional career.  Dr MM said that this had been associated with significant success. 

6. He said that the husband correctly identified that the wife at times struggled as the primary carer of the children.  Dr MM said that that difficulty was understandable in the context of M’s challenging behaviour and special needs.  Dr MM thought that the husband forming this criticism did not take sufficient account of the ongoing demands of that challenge.  Dr MM said that the husband’s recent experience of difficulty in managing M’s challenging behaviour, resulting in a physical altercation between them, highlighted the challenges of effective behaviour management and control of a child such as M. 

7. Dr MM said that M has identified as having a rigid cognitive set and a vulnerability to catastrophic reactions.  He said that M’s concrete interpretation of his father’s invitation to repeatedly hit him was consistent with the response of a child on the Autistic Spectrum.  Dr MM said that it was of concern that the husband did not recognise that such an approach to behavioural management was inappropriate and predictive of such an outcome, especially because the husband had read a relevant book about the management of Asperger’s tendencies.  Dr MM appeared to regard this as a serious parenting deficit.

8. On the other hand Dr MM said that the wife was highly attuned to the children’s developmental needs.  He said that she provided a detailed and thoughtful account of each of the children, thoughtful about their strengths and weaknesses in the various domains of their development.  He said that she was mindful of their developmental stages and individual personalities.  She seemed to be highly attuned to their emotional states.  Dr MM said that a close rapport was observed between each of the children and their mother.  He said that in this context the children’s wishes to reside primarily in their mother’s residence were understandable. 

9. Dr MM said that this was in stark contrast to the more concrete approach to parenting taken by the husband.  He said that whilst there was no doubt that the husband was absolutely committed to the children’s welfare and loved them deeply, he lacked the degree of emotional attunement and awareness of the children’s developmental needs.  Dr MM said that thus when asked to describe the children, the husband focussed on their physical characteristics in contrast to more subtle aspects of their nature and experience.

10. Dr MM did say, however, that there were clearly some benefits in the husband’s parenting style.  In the wife’s household, if the children were not getting out of bed on a school day, the wife would be inclined to ask them how they were feeling which might turn into a negotiation.  In the husband’s household, he would be more likely to tell them to get up and get in the car because they were going to school.

11. There were some criticisms of the wife’s behaviour.  For instance Dr MM said that the wife was not always able to place the children’s needs above her own.  As indicated above, he said that the wife had a level of emotional vulnerability and that this added to the level of emotional vulnerability experienced by the children.  Dr MM said that this vulnerability of the wife contributed to the children being less disciplined, less compliant with instructions such as to get up and go to school and that this would tend to make them more emotionally attached to her, and have a belief that their father was the cause of their mother’s distress. 

Sub-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. In February 2007 Mr L, consultant psychologist, assessed M and concluded that the child had Asperger’s tendencies.  Mr L reported that “[M] does not present with severe, consistent or regular symptoms to warrant a clinical diagnosis of an Autistic disorder or Asperger’s Syndrome.  However, [M] does present with some individual characteristics within this spectrum of disorders, perhaps more towards the higher functioning end of this Spectrum …”. 

2. Dr MM indicated that he agreed with Mr L’s opinion about this matter.

Section 60CC(3)(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;

1. This is not relevant.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. As indicated above, the husband said that until approximately 2010 the wife was a very good mother to the children but that at that time her behaviour took a dramatic downturn to the point where he had concerns for the children’s emotional wellbeing. 

2. I have referred above to the husband’s allegations about some of the wife’s behaviour and to her use of intemperate language.  But as indicated, this was in the context of the marriage having broken down from the wife’s perspective and her feeling a sense of enormous frustration that although she wanted to separate from the husband she felt unable to do this at that time. 

3. It is the case that the wife has struggled to achieve the children’s school attendance at all times.  From Dr MM’s report, it would appear that the reasons for this include the wife’s own emotional vulnerability and the children’s reactions to this.  Dr MM was of the strong view that it would be expected that a primary parent of children would be able to bring about their attendance at school.  Inferentially, he thought there was clearly a need for the wife to improve in this regard. 

4. Dr MM said that the husband impressed him as being upfront and honourable in his intentions.  Dr MM said that it was evident that the husband had struggled to maintain the marital relationship and family environment.  He said that by way of contrast, the wife had decided some time ago that the relationship was over.  He said that whilst married she had formed a new relationship of which the husband remained unaware. 

5. He said that the husband, however, had come to terms with the wife’s decision that the marriage was over.  Dr MM said that the husband’s resistance in the past had understandably been interpreted by the wife as a controlling response, which did not respect her choice.  He said that the wife’s decision to keep her new relationship separate from the children had been beneficial, restricting their exposure to what he thought would be a challenging new development within the family. 

6. In this latter regard, I note that both the wife and Mr T had indicated that they have no plans at the present time to cohabit.  The wife made it very clear that the children were her first priority and that she understood that things for the children could become only more complicated and confusing if Mr T became a more active person in their lives.  The wife has not yet informed the children of the exact nature of her relationship with Mr T who has been a family friend for more than 13 years. 

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. As indicated above, the husband referred to an incident when the wife punched him.  The husband has alleged other incidents involving some hitting.  He has also referred to verbal abuse.  Such occurrences are, of course, not condoned by the Court.  But upon viewing these matters in the context of the very difficult family situation which had developed over the years since 2010, I have the view that this is not a case where the Court would have a serious concern about family violence in the future. 

Sub-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. This is not relevant.

Sub-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. While the parties have been involved in litigation now over quite some time, I have some confidence that they would accept the decision of this Court.  For example, notwithstanding the very strong views which each of them held about the appropriate high school placement for M, they informed the Court that they would abide the Court’s decision about this matter.  I have no reason to think that this has not been the case.  During the course of the hearing, particularly in the latter part, each of the parents was able to compromise their respective positions, at least to some extent.

2. In the orders I propose, I have endeavoured to accommodate their various concerns as best I have been able, given the requirement that the orders must be in the best interests of the three children. 

3. In these circumstances, I am not aware that any particular order would be least likely to lead to the institution of further proceedings about the children.  Each of the parents has given me the impression that they understand that ongoing litigation would not be in the interests of their children. 

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. The husband has been very successful in his professional career and in my view he is a very good role model for the children. 

2. He is employed as the Chief Executive Officer for a successful financial services business and he is Chairman of the business. 

3. I accept his evidence that his priorities have changed following the breakdown of the marriage and the re-configuration of the children’s parenting arrangements involving them living in two different homes.  The husband remains concerned about the wife’s emotional state and capacity to parent the children adequately.  I accept that the children are his priority and that he very much wants to be able to parent them as much as reasonably can be undertaken consistent with their best interests. 

4. The husband has considerable flexibility in his working hours.  There was some suggestion that having worked long hours while the family was intact must raise questions about the likelihood that this would not continue.  However, I accept the husband’s expressed view that things for the children have changed dramatically and that he will do what is required in order to be available to the children.  During the last three years the husband has travelled overseas for work for two one-week periods each year.  This is likely to continue.  The husband undertakes infrequent interstate travel.  The husband would be available to deliver the children to school and collect them therefrom apart from the abovementioned very limited occasions.  He would then call on his parents who live in the same area and they would be available to assist in this responsibility. 

5. On a different note, Dr MM noted the fact that the wife had a new relationship.  Dr MM indicated that it should be recognised that, in the event that there was a significant change in the wife’s relationship status and domestic circumstances, such as co-habitation with her new partner, this might significantly impact upon the children’s view with regard to primary residence, particularly as they approached adolescence. 

Discussion and Conclusion

1. As indicated above, the Court is to consider the primary considerations.  It is clear that each of the children has a meaningful relationship with each of their parents.  Dr MM has indicated that each of the parenting arrangements sought by the parents would enable the children to maintain their meaningful relationships.  I accept this.

2. The second primary consideration is the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  Dr MM said that although each parent had experienced difficulty in managing M’s challenging behaviours, he did not form the opinion that M or his siblings were at risk of abuse, neglect or family violence.  I also accept this.

3. As indicated above, I propose to make an order that the parents have equal shared parental responsibility for the children. Because I propose making such an order, s 65DAA(1) of the Act requires consideration to be given to the matters therein.

4. The operation of s 65DAA(1) was considered in MRR v GR (above).  At page 535 (2010) 42 Fam LR the High Court said as follows:

   [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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as subs (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.  [Footnote omitted.]

5. Accordingly, consideration must first be given to whether it is in the best interests of the children to spend equal time with each of their parents.  Clearly the husband has sought such an order and the wife opposes such an order.

1. Would it be in the interests of the children to make an order for equal time?

2. These children have the good fortune of having parents each of whom is a capable parent.  And generally they are able to provide well for the children’s needs.

3. It is clear that the husband is highly intelligent and very capable, including as a parent.  He gives the impression that the loss of his intact family life has propelled him to an even greater commitment as parent to take every available opportunity to endeavour to prepare the children for life’s challenges and to advance them in life to the fullest extent of their abilities.

4. As indicated above, and also during the course of submissions, I accept that the husband will arrange his working hours to enable him to be available to care for the children.  He has made it clear that work is no longer a priority for him.  He said that he has made his money and been very successful in his career.  He said that while the children have always been his number one priority they are even more so now.

5. The husband has the view that the wife does not have the robustness, resilience and staying power to be able to parent the children almost full time.  As indicated above, he referred to many behaviours during the later years of the marriage which he asserted indicate that the wife was not coping with the demands of the children.  But, as also indicated above, while these behaviours are certainly not characteristic of good parenting, they should be viewed in the context of the marriage breaking down and the wife’s frustration at the time.

6. There is something to be said for the equal time arrangement which the husband is urging on the court because it would enable the husband to have a great deal of involvement with the children which, in my view, would be very good for them.

7. On the other hand, however, the children have expressed a wish to spend more of their time with their mother.  While I accept that some caution should be taken in relation to their views for the reasons indicated above, in my opinion some weight should be given to their views about this.

8. Dr MM has assessed their relationships as being closer to their mother than to their father and that their mother is more attuned to their emotional needs.  This is not surprising in circumstance where the wife has been the children’s primary parent.  The parents arranged their family responsibilities so that the husband would be the bread winner for the family and the wife would be the children’s primary parent.

9. Dr MM said that on balance, he would still favour as the arrangement which would best serve the interests of the children that in which the children live primarily with their mother but spend significant and substantial time with their father.  There were some caveats to this.  Firstly, Dr MM had the view that the wife had on occasions behaved in a way which demonstrated that she did not always prioritise the children’s needs above her own.  Secondly, Dr MM said that it would be fundamental for a primary parent to be able to ensure that the children attended school, and on time.  Clearly this has been a significant problem for the wife.

10. I have formed the view that although the husband is very impressive as a person and as a father, the evidence leads the Court to the conclusion that, at this time, the children’s best interests require that they spend more time with their mother as their primary parent than with their father.  As indicated above, Dr MM was not pressed on the likely effect of the change of the children’s circumstances as proposed by the husband.  But he did say that he thought that if the children did not spend most of their time with their mother then they would miss her very much and that therefore, they would have difficulty in an equal time arrangement.  He did not think this would be consistent with their best interests.

11. Having said this, in my view the children should be provided with opportunity to spend as much time as can reasonably be arranged in all the circumstances consistent with the desirability of not placing them into a situation where they would be missing their mother to a point that might affect their emotional development.

12. As indicated above, the legislation requires that if the Court decides not to make an order for the children to spend equal time with each of their parents then it must go on to consider whether the children spending substantial and significant time with each parent would be in their best interests, and be reasonably practicable (s 65DAA(2)).

13. The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:

    ·The time the children spend with the parent includes both:

    -days that fall on weekends and holidays;

    -days that do not fall on weekends or holidays; and

    ·The time the children spend with the parent allows the parent to be involved in:

    -the children’s daily routine; and

    -occasions and events that are of particular significance to the children; and

    ·The time the children spend with the parent allows the children to be involved in occasions and events that are of special significance to the parent.

14. There is no question, in my view, that it would be in the interests of these children to make an order for the children to spend substantial and significant time with their father.  As indicated above, the children have close and loving relationships with him.  I propose to express such an order in terms of the children living with their father rather than spending time with him because he is such a good and competent father and has such a focused commitment to the children.  And it will be practicable to make such an order because there will not be any physical or logistical hurdles to the children passing between households and because the husband will manage his employment demands to enable him to be available to the children.

15. The question then becomes how substantial can the periods be for the children to live with their father consistently with their best interests.

16. As I have said, on the one hand Dr MM thought that the children would have difficulty in being able to manage a week about arrangement in terms of their behaviour which would be related to their missing their mother.  On the other hand, Dr MM saw no difficulty for the children in being able to manage alternate weekends in their father’s care, including the intervening Monday evenings. 

17. Dr MM also said that he did not have any specific proposal which he would regard as ideal.  Dr MM also said that if the children were coping with such an arrangement there should be no difficulty adding a further night per fortnight to the children’s time with their father, as long as the husband could be available. 

18. As indicated above, the ICL submitted that a possibility would be for the weekend arrangement to transition over a period to include an additional night.  The ICL also submitted that if the Court thought it appropriate then the extra night could be added to the weekend without a transition period. 

19. In relation to the husband’s preference for the children’s time with him to be in one longer block rather than in broken periods, the ICL’s view was that the children would be likely to miss their mother and therefore the ICL would support the time to be in two blocks.  I accept this.

20. The view which I have arrived at is that it would be in the interests of the children to put in place an arrangement which is as clear and uncomplicated as possible. As I have said, the legislation requires that I consider an order for substantial and significant time. In my view, an order which would add Thursday nights to the alternate weekends during which the children would be in their father’s care, not forgetting the intervening Monday nights, would be an order which would fit the requirements of s 65DAA(2). I am not of the view that it is necessary to transition to such an arrangement. A transition would involve the possibility of some further uncertainty which in my view the children should be spared.

21. I have not forgotten the wife’s evidence that there were difficulties with the earlier orders when the arrangement included Thursday nights.  And the children made some criticisms to Dr MM about this.  But things have moved on since then.  The wife and children have become settled in Suburb B.  The children are older.  The husband has accepted the reality of the family’s changed circumstances and is most desirous of making time available for the children.  There is reason to be optimistic that much of the emotional parenting behaviour of the earlier time which had such an unsettling effect on the children will be a thing of the past.  With the completion of the litigation, the circumstances for the whole family should become even more settled.

22. I am hopeful that the parents will be able to accept the orders I propose and be able to settle the children into the changed parenting arrangements.

Overseas Travel

1. There were no submissions made in relation to these applications and, accordingly, I took the view that neither parent was pressing their application for orders in relation to overseas travel.

I certify that the preceding three hundred and thirteen (313) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 6 August 2013.

Associate: 

Date:  6 August 2013