Grail & Grail

FAMILY COURT OF AUSTRALIA

GRAIL & GRAIL

[2008] FamCA 1123

FAMILY LAW – CHILDREN – Rebuttal of equal shared parental responsibility considered – Whether in the children’s best interests for there to be orders reflecting equal time to be spent by the parties with the children

Family Law Act 1975 (Cth)

APPLICANT:

Mr Grail

RESPONDENT:

Ms Grail

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

PAF

2693

2003

DATE DELIVERED:

23 December 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

18, 19, 20, 22 August 2008;
9, 11 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	P Cook
SOLICITOR FOR THE APPLICANT:	Stuart Fowler & Partners

COUNSEL FOR THE RESPONDENT:	S Christie
SOLICITOR FOR THE RESPONDENT:	Fox O'Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

C Sperling

Orders

That, subject to these orders, the mother and the father have equal shared responsibility for the children B, born … July 1997 and C, born … September 2000 ("the children") in relation to their care, welfare and development of a long term nature, such responsibility to include, but not be limited to, issues about:
(i)The education of the children — both current and future;
(ii)The religion of the children;
(iii)The health of the children;
(iv)Changes in the living arrangements of the children that make it more difficult for the children to spend time with a parent.
That the Father have sole responsibility for making decisions about the children’s day to day care, welfare and development during times at which the children live with or spend time with the Father.
That the Mother have sole responsibility for making decisions about the children’s day to day care, welfare and development during times at which the children live with or spend time with the Mother.
That each parent be entitled to attend events involving the children including school functions and events that allow for parental attendance or participation, provided that the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children's transportation to and from the event unless otherwise agreed upon between the parents.
That the parent with whom the children are living or spending time:
(i)is to take the children to their respective sporting and other extra curricular activities or social activities as agreed between the parents (and the children shall be at liberty to each select one summer and one winter sport and the parents will facilitate registration, training and attendance at games PROVIDED FURTHER that the Mother and Father shall both agree about the said sport and if there is no agreement between the parents about which is to be the summer sport and which is to be the winter sport then the Mother shall select the summer sport and team and the Father shall select the winter sport and team.
(ii)is to do all acts and things and authorise such school as is attended by the children to immediately notify the other parent of the dates of parent/teacher functions, sports/swimming carnivals and details of the children's extra curricular activities and to supply or request the school to supply copies of correspondence including school reports and other reports on school progress and behavioural issues, all school notice and/or circulars and details of all functions, parent/teacher nights and other activities to which the parents are invited to the school.
That each parent notify the other of the residential address at which the children shall be living and any landline telephone numbers and shall at all times keep the other informed of any changes of address or telephone number(s) (excluding mobile) by giving notice to the other parent 14 days prior to any such change.
That in the event that either parent seeks to take the children on holidays outside New South Wales for a period in excess of seven days, that parent provide the other parent with the address and the telephone number of where the child will be staying.
That the children live with the Father as follows:
During School Terms
(a) during each school term the children live with their Father each alternate week from after school on Friday until before school on the following Friday and during the same times in each alternate week thereafter commencing, which shall commence with the first week of the school term.
(b) In the event that Thursday or Friday during school term is a non-school day (other than for pupil free days at the beginning and end of school terms) then at the end of the Father's time with the children the Father will deliver the children to the Mother at her residence at 9.00am on the relevant day and at the end of the Mother's time with the children the Mother will deliver the children to the Father at his residence at 9.00am on the relevant day.
(c) for one half of all school holidays alternating between the first half in even numbered years from after school Friday until 6.00pm on the day which is the mid point of the school holidays and the second half in odd numbered years from 6.00pm on the day which is the mid point of the school holidays until the commencement of school.
(d) For the purpose of these Orders:
(i)School holidays are calculated from the day after the last day of school until and include the day immediately before school resumes.
(ii)Pupil free days at the beginning or end of school term are deemed to be school holidays.
(iii)The second half of school holiday periods are from 7.30pm on the day that is midway through the said school period until 7.30pm on the day that is one day prior to the commencement of the following school term.
That the children live with the Mother as follows:
During School Terms
(a) during each school term the children live with their Mother each other alternate week from after school on Friday until before school on the following Friday and during the same times in each other alternate week thereafter commencing.
(b) In the event that Thursday or Friday during school term is a non-school day (other than for pupil free days at the beginning and end of school terms) then at the end of the Father's time with the children the Father will deliver the children to the Mother at her residence at 9.00am on the relevant day and at the end of the Mother's time with the children the Mother will deliver the children to the Father at his residence at 9.00am on the relevant day.
During School Holidays
(c) for one half of all school holidays alternating between the first half in odd numbered years from after school Friday until 6.00pm on the day which is the mid point of the school holidays and the second half in even numbered years from 6.00pm on the day which is the mid point of the school holidays until 6pm on the last day of such holiday period.
(d) For the purpose of these Orders:
(i)School holidays are calculated from the day after the last day of school until and include the day immediately before school resumes.
(ii)Pupil free days at the beginning or end of school term are deemed to be school holidays.
(iii)The second half of school holiday periods are from 7.30pm on the day that is midway through the said school period until 6pm on the day that is one day prior to the commencement of the following school term.
That the children shall spend additional time with the mother as follows:
(i)Upon such occasions as the parents agree;
(ii)If it is not otherwise a weekend with the mother from 10am to 7.30pm on Mother’s Day;
(iii)The mother’s birthday being … November;
(a)    If it is a school day from after school to 7.30pm;
(b)   If it is not a school day from noon to 5.00 pm;
(iv)The children's birthdays being … July and … September; the mother to have both the children:-
(a)    If it is a school day from after school to 7.30pm;
(b)   If it is not a school day from noon to 5.00 pm;
(v)From 10am Christmas Day 2008 to 10am Boxing day 2008 and for the same period in each even numbered year, and from 10am 24 December until 10 am 25 December 2009 and each alternate year thereafter.
(vi)The children to spend time with the mother from 5.00pm on 24 April each year to 5.00pm on 25 April.
(vii)The children to spend time with the mother on Easter Sunday for four hours from 9.00 am to 1.00 pm.
When the children are living with the mother in accordance with these Orders the father shall spend time with the children as follows:
(i)Upon such occasions as the parents agree;
(ii)From 10 am to 7.30 pm on Father's Day;
(iii)The father's birthday being … August,
(a)    If it is a school day from after school to 7.30pm;
(b)   If it is not a school day from noon to 5.00 pm;
(iv)from 10am 24 December 2008 until 10 am 25 December 2008 and for the same period in each even numbered year, and From 10am Christmas Day 2009 to 10am Boxing day 2009 and each alternate year thereafter.
(v)The children’s birthdays being … July and … September, the father to have both children:-
(a)    If it is a school day from after school to 7.30 pm;
(b)   If it is a school day from noon to 5.00 pm;
That each of the parents may spend such alternative or other periods of time living with or caring for the children as the parents may agree upon.
That for the purpose of all changeovers between the parents the parent with whom the children are to spend time/live is to collect the children from school (or if a non-school day the other parent's home) at the commencement of that parent's time and the other parent will collect the children from school (or if a non-school day the other parent's home) at the conclusion of that parent's time.
That the children have the following communication with their parents:
(i)By telephone once per week during periods when the child is spending holiday time with the other party.
(ii)Otherwise, twice per week at any reasonable hour between 5.00pm and 7.00pm.
(iii)At such alternative or other times as the parents may agree upon.
That for the purpose of communicating information between the parents, the father and the mother must communicate by:
(i)Letter or email; or
(ii)By telephone/text.
That each parent do all reasonable acts and things to encourage the children to communicate with the other parent by telephone or letter or email or telephone text.
That the parties shall ensure that the two children continue to be enrolled in and attend their current primary schools and in relation to their future secondary education that the parties consult with the principal of the primary school attended by each of the two children, follow his or her recommendations subject to agreement between the parties regarding an alternative school to be so attended.
That in the event of the two children or either of them suffering a serious injury whilst in the care of one of the parties then that party shall inform the other as soon as possible of the name address and telephone number of the relevant medical practitioner or hospital.
That in the event the parents cannot reach a joint decision about:
(i)a major long term issue involving the children; or
(ii)the interpretation of these Orders; or
(iii)the implementation of these Orders; or
(iv)the enforcement of these orders;
which involve the children, each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children, each of the parents is to take the following steps:
(i)The father and the mother shall each do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act;
(ii)The father and the mother shall each participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That the Mother and Father be restrained from denigrating the other party or any member of the other party's family (including their partners) to the children within their presence or within their hearing and that both the mother and father as far as possible do all acts and things necessary to prevent any other person or persons from denigrating the other party to, or in the presence or hearing of the children.
That pursuant to Section 13C of the Family Law Act 1975, the parties attend a Post Separation Parenting Program.
That the Post Separation Parenting Program be as nominated by the Independent Children's Lawyer in consultation with the Director of Court Mediation Family Court Sydney Registry.
That the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF2693 of 2003

MR GRAIL

Applicant

And

MS GRAIL

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings parenting orders are sought by each of the parties in relation to their two children B who is 11 years of age having been born in July 1997 (“[B]”) and C who is 8 years of age having been born in September 2000 (“[C]”) (who for convenience I shall refer to as “the two children”).
The principal issues relate to with whom the two children shall live and the periods of time that they should spend with one party or the other. Other issues are raised which include but are not limited to the health of the two children and the school which they should attend.
Neither party had sought to rebut the presumption of equal shared parental responsibility in accordance with the provisions of section 61DA. However, upon completion of the evidence, the father’s case changed. He sought an order that he be granted sole parental responsibility relying upon section 61DA(4).
The father, who is the applicant in these proceedings, had sought orders in accordance with his Amended Application filed 1 May 2008. Subsequently, the father’s application was amended in accordance with the minute of orders sought by him being Exhibit 30.
The substantive parenting orders sought by the father are that the two children live with each of the parties for alternate weeks during school terms and for half of school holiday periods.
The mother, who is the respondent in these proceedings, had sought parenting orders in accordance with her Response filed 11 July 2006. Subsequently, that document was amended in accordance with the minute of order which is Exhibit 1. The substance of the principal orders so sought by the mother is that the two children spend time with the father during school terms for each alternate weekend commencing from after school Friday to before school on the following Monday or Tuesday, if Monday is a public holiday, and during the other week on Wednesday from after school until the commencement of school the following day. In addition, the mother seeks an order that the two children live with each of the parties for half of the school holiday periods.
During the course of submissions the independent children’s lawyer sought orders in accordance with Exhibit 29.
The parties cohabited for a period of approximately 10 years which commenced in 1993.
The parties married in March 1996 and separated on 13 February 2003. The parties have lived separate and apart from each other continuously since that time.
The marriage was dissolved by decree nisi made 30 April 2004 which became absolute on 31 May 2004.
The father is 36 years of age. He is self-employed in financial services.
The mother is 34 years of age. The mother is employed as a part-time assistant.
The two children live with each of the parties during alternate weeks in school term in accordance with current interim orders.

Historical Background

The following are orders previously made in both concluded and current parenting proceedings between the parties.
On 31 July 2003 final parenting orders were made by consent. Those orders provided for the two children to live with the mother and to have “contact” for alternate weekends in each four week period and overnight from Wednesday until the following morning in each week. In addition, provision was made for the father to spend various periods with the two children during school holidays.
On 28 June 2006 the independent children’s lawyer was appointed.
On 11 July 2006 Dr W, consultant child psychiatrist was appointed as the single expert for the purpose of provision of an expert’s report. In addition, an order was made that the parties continue medication for C as prescribed by Dr L, paediatrician.
On 27 September 2006 orders were made by consent appointing Dr R the treating psychiatrist for C. Dr K, psychologist was appointed as the children’s treating psychologist.
On 26 October 2006 orders were made by consent providing for the two children to live with each of the parties during alternate weeks in school term.
On 12 February 2007 orders were made suspending the then current order for the two children to live with or spend time with the mother. An updated report of Dr W was ordered.
On 7 March 2007 orders were made by consent that the two children live with each of the parties for alternate weeks during school term.
On 7 November 2007 the orders last made in relation to the two children living with each of the parties for alternate weeks were continued on the basis that so far as the mother was concerned an undertaking was given by her that she live with the two children at the home of the maternal grandparents.
On 12 December 2007 the mother gave an undertaking to the Court that the two children would not be brought into contact with Mr PW
On 7 March 2008 directions were made by way of case management.
On 14 April 2008 further directions were made.
On 2 May 2008 the substantive proceedings were fixed for hearing. Directions were made.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. (emphasis added)
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.

It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” (emphasis added).
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[1]
[1] B and B
Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[2] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[2] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[3]
[3] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Matters that arise pursuant to section 60CC(3)

I make the following findings in relation to relevant provisions pursuant to section 60CC(3).

Views of the two children and relevant factors

Each of the parties gave evidence which either directly or indirectly suggests that each of the two children has expressed views consistent with a preference to live with the father or the mother as the case may be.
Dr W the single child expert, provided three reports dated 21 September 2006, 5 March 2007 and 22 February 2008 which were received and marked Exhibits 2, 3 and 4 respectively. He supplemented those reports with oral evidence.
I am satisfied that having regard to Dr W evidence which I accept that the views expressed by B, are that he prefers to live with the father and spend periods of time with the mother, provided that she exercises firmer control over the behaviour of C, as B perceives it. It must be remembered that B is still a young child and has suffered from significant emotional issues in terms of his feeling of lack of appropriate focus by the mother upon him compared to C, and difficulties in coping with the mother’s more volatile personality compared to that of the father. B has felt more comfortable in the parenting style which has been adopted by the father. No doubt, there are reasons to explain those feelings of B from an adult perspective. The mother has been hurt by his expressions of rejection of her and poor behaviour towards her at times.
A significant issue that has arisen, in relation to the views of B, is that of the father’s alienation of B from the mother. There is evidence, which I accept, of the father having involved B in the proceedings due to him giving B his version of part of the evidence, not to mention the disturbing aspect of B’s hand written notes which are Exhibit 24. It is an adverse reflection on the father’s ability to demonstrate insight and sensitivity towards the child that he not only encouraged or failed to dissuade B from writing those notes, but he obviously gave instructions to seek to have those notes tendered. I am satisfied that those notes came into being and were utilised in the court proceedings not in a child focussed way, but rather to meet the personal goals of the father, although his evidence suggests to the contrary.
As a result, I find that B has been influenced, to some extent, by the father’s enmeshment of the child in the litigation as well as the mother’s lack of full appreciation of the factors in her household that have impacted adversely on B.
C has had serious behavioural problems. He has been diagnosed by Dr W as having oppositional issues. That is a diagnosis accepted by the parties. Whilst it appears that he has settled down more and made progress since he has been spending substantially more time living with the father and is comfortable living with B in the father’s household, there is evidence to suggest that his views are to live with each of the parties. I do not attribute any weight to C’s views having regard to his very young age and the difficult behaviour that he has demonstrated, whether in the care of one party or the other and in the past, at school.

The nature of the relationship of the two children with each of the parties and others

There is no controversy that the two children have a loving relationship with each of the parties albeit, attended with complexities in that relationship, especially as between B and the mother.
B’s relationship with the mother in recent times has been marked with resentment of her lack of attention and empathy with him as he perceives it (rightly or wrongly), defiant and insolent behaviour towards her and at times despondency arising out of that relationship.
From the mother’s perspective she has been overborne at times by the pressures of dealing with C’s very difficult emotional issues, the conflicted parental relationship which has continued for a long time, poor communication between the parties, difficulties in making arrangements in relation to activities of the children and lengthy disputes concerning payment by the father of the amount of child support assessments. It is clear that all of those matters have placed great pressure upon the mother. It is not surprising that she has not been able, at times, to provide a relaxing household for the two children or, that much of her emotional resources have been directed to dealing with C’s difficulties both at school and in the home.
Accordingly, the relationship between the mother and C has been marked with the difficulties referred in the last paragraph.
The father has had a more relaxed relationship with B than the mother. He has also had difficulties in the relationship between himself and C due to the child’s behavioural problems related to the diagnosis to which earlier reference has been made. Prior to the interim orders which provided for each of the parties to have the care of the two children for alternate weeks in school term, the mother was the primary carer. Consequently, the pressures that were upon her in caring for and managing the two children, especially C, were greater than those with which the father had to contend.
There is no issue that the two children have a fond relationship with the maternal grandparents, Ms P who is the father’s partner and the father’s friends who have been regularly engaged in care of the two children from time to time.

The health of the two children and the capacity of each of the parties and any other person persons to provide for the needs of the two children including emotional and intellectual needs

It is convenient to deal with these two matters together as they are intertwined.
The evidence of Dr. W is principally concerned with these matters. That is against the background of B’s emotional distancing from the mother in particular, issues in their relationship and the relationship between the two children. In addition C has had serious behavioural problems to which I have referred. That has impacted upon his relationship with each of the parties and B, as well as his own progress at school.
In Exhibit 2 Dr W provided diagnosis of C contrary to a previous provisional diagnosis provided by Dr. L that C may have bipolar disorder. Dr. W’s diagnosis was that C has Oppositional Defiant Disorder. He did not consider that C had Attention Deficit Hyperactivity Disorder. Dr W made recommendations regarding appropriate medication. In relation to B, Dr. W concluded that he had become “quite demoralised and depressed”. That appeared to have been brought on largely by lack of attention from the parties, whose energies from his perspective appeared to have been directed towards C rather than him, as well as difficulties in his relationship with C. Dr. W recommended that B have counselling provided by Dr. K. He also considered that there be a variation to the then current “contact” orders to enable B to have extra time with the mother alone away from C. He suggested that the two children are bright young boys, and that it would assist them so far as their education is concerned for the parties to obtain an educational assessment from Ms K so that the parties would have a better appreciation of the educational abilities of the two children.
So far as the capacity of the parties to meet the emotional needs of the two children was concerned, Dr. W formed the view that the father was “one of the most consistent, verbally firm and effective parents I have ever observed.” There was a more complicated aspect to his capacity in that Dr. W also expressed the view that the father “is capable of being extremely uncompromising in some areas such as behaviour, whereas in other areas he is very engaged and active with his children.”
So far as the mother is concerned, he considered that she as “a more empathic understanding of their natures and needs”.
In Exhibit 3, Dr. W noted that C’s behaviour at school appeared to have improved very significantly. But he had also achieved excellent results. The observations of the relationship between B and his mother led Dr. W to note that B did not want to spend time with the mother. He had fears in relation to her or her friend Mr PW, punishing him for disclosing what had happened in relation to what clearly was a disturbing episode for the mother and the two boys when they stayed with Mr PW and his brother and members of his family at a holiday house in January 2007.
Amongst Dr W’s conclusions were that he was concerned in relation to the parenting abilities of each of the parties. He concluded that so far as the mother was concerned, “she is capable of quite sound, empathic and responsive parenting”. However, “she can be quite inconsistent about this, depending on her own emotional state.” He considered that when the mother is under stress due to behaviour of the two children her parenting probably deteriorates. He considered it a matter of regret that the professional assistance provided by Ms K had ceased.
Dr. E also expressed concern in relation to the father’s parenting approach. He concluded that “he is very effective at being consistent, but my concern about him is that often apparent lack of emotionality. Parenting is a balance between care and control.” The father needed to approach the matter of control with other alternatives to corporal punishment of C and that the father should receive assistance in that regard from Dr. K.
Dr. W was of the view that B did not quite seem as unhappy as previously and that C’s behaviour has improved. He concluded that C’s “oppositional behaviour does not have a substantial constitutional basis and that medications are inappropriate.
Dr. W emphasised the need for the parents to reduce the animosity between them as the children have become entangled in it.
In Exhibit 4 B continued to express his antipathy to living with the mother in preference to living with the father. He continued to make good progress at school, although possibly not fulfilling his ability.
C continued to make progress at school. He expressed his dislike of Mr PW. Dr. W re-confirmed his previous diagnosis of C having Oppositional Defiant Disorder rather than Bipolar Disorder. Dr. W was pleased that C was no longer taking medication.
Dr. W re-affirmed his opinion that Dr. K would be in a position to provide the mother with appropriate advice.
He concluded in relation to B that he did not think that he was presently depressed, but was concerned in relation to his negative attitude to the mother. He was of the view that had adverse implications for his relationship with the father as well as with others. He also expressed a concern that the father “has little or no recognition of this and that he the father would find it very difficult to support the counselling that [B] would require.”
Dr. W was clearly alarmed that B appeared to becoming alienated from the mother and “that he so emotionally needy and eager to align himself with his father that he fails to recognise the medium and long term adverse effects of a breakdown in his relationship with his mother at present.”
Dr. W concluded that in general, his view was that both parents are capable of adequately meeting the children’s material, emotional and intellectual needs. He qualified that opinion in relation to the mother’s capacity to manage C’s behaviour. In relation to the father, he continued to express concern in relation to the limitations of the father’s capacity to provide for the emotional needs for the two children and in particular failing to recognise that B “is a very emotionally needy boy” and “that at the present time [B’s] antagonism towards his mother is among other things, an effective device for attracting his father’s positive attention.” Dr. W did note that father “showed himself to be rather more emotionally expressive and informed than I have seen previously.”
Dr. W during the course of his oral evidence did not depart from the essential aspects of his observations, conclusions and recommendations in his three reports, particularly Exhibit 4, being the most recent report which is dated 22 February 2008.
His further evidence was that the two children in themselves “are quite troubled children”. At the same time, he noticed progress particularly so far as C’s behaviour and improvement at school. Dr. W’s view that B was angry or resentful about the lack of attention from the mother and his perception, about her lack of control of C, compared to the situation in the fathers household. Dr. W expressed the opinion that C has a volatile relationship with the mother, but at the same time is quite attached to her, loves her in a clear and unambiguous way. B was a less happy child than C.
In relation to B, his view was that he was more “indignant than depressed”. He considered that he did not have “good self-esteem in relation to family life.” One way to overcome that from B’s viewpoint, was his alignment with the father. A caution was expressed by Dr. W in that regard should B live primarily with the father. Dr. W emphasised that stability was a very important issue although not the only issue. It was an important consideration as to whether ultimately it was in the children’s best interests for there to be periods of time on a ten days four days basis with the father or, the alternative of week-about periods with each of the parties. He recognised the advantages and disadvantages of each of those alternatives.
Dr. W emphasised that a critical factor which impacts upon the relationship that the two children have with each of the parties and implicitly with each other, is poor parental communication represented by the “inability to work together and deep distrust.” Whilst at the same time the parties have positive attributes to offer the children, he considered that the mother was more volatile at times, but a more emotional person. Dr. W modified his earlier view of the father in that he later recognised that the father was “not just a doctrinaire disciplinarian.” Yet, the children in the care of the father will not have the same exposure to the mother’s empathy.

Parental attitude of each of the parties

There is no issue that each of the parties loves the two children. They have different parenting styles and positive aspects of being a parent in different areas to each other.
The real qualification to the parental attitudes is either their inability to recognise the harmful effects upon the emotional development of the two children arising out of their poor parental communication or, alternatively an absence of willingness to take positive steps to overcome those problems in the future.

Family violence

This is an issue that arises principally in the context of the exposure of the two children to the alleged violent conduct of Mr PW.
This issue arises in relation to the alleged violent conduct of the mother’s friend Mr PW during the course of the following incidents.
It is common ground that the two children accompanied the mother and Mr PW to his brother’s holiday house where they stayed over the period 20^th and 21^st January 2007.
The father makes allegations based on information given to him by each of the two children and in particular B. It is alleged that during the night of 21^st January 2007, Mr PW and his brother had a physical altercation after each of them had become intoxicated following the consumption of beer earlier in the evening. It is further alleged that Mr PW engaged in inappropriate sexualised behaviour with B by touching or grabbing one of his legs and trying to pull down his pants or pyjamas whilst he was in bed.
The mother’s evidence is that she did not observe the altercation between Mr PW and his brother. However, her impression on hearing them is that they were arguing and that there was some pushing and shoving between them. At that time the mother was in the enclosed veranda room in bed with the two children. The mother denies any inappropriate behaviour by Mr PW to B. Her evidence is that when he did enter the room it was dark and nothing untoward happened. There had been a previous arrangement that when he would return to the room during the night she would take the two children into the lounge room to sleep.
Evidence was also given by Mr PW. He admits there was a heated conversation between himself and his brother. They did push each other. In addition he says that when he did enter the enclosed veranda room in which the mother and the two boys were lying in bed, that room was dark and he could not see. He did feel B’s leg in those circumstances. He denies any inappropriate conduct on his behalf.
An arrangement had been made by the mother with Mr PW’s brother for him to take her and the two children back to her home after the conclusion of the holiday period, given the work commitments that Mr PW otherwise had. The mother preferred that arrangement, as opposed to returning by train with the two children and their luggage.
During the night of 21^st January 2007 and following the argument between Mr PW and his brother and the altercation between them, Mr PW’s brother told the mother that she would have to leave with him immediately if she still wanted to leave as he was leaving with his wife and children. The mother opted to do so. Accordingly she left with the two children in the company of Mr PW’s brother and his family.
I accept the evidence of the mother and Mr PW. I find that Mr PW and his brother did argue leading to an altercation between them, fuelled by their consumption of alcohol. I further find that it must have been a situation of some concern for the mother in order to leave during the night with the two children in the company of Mr PW’s brother, as it appears on the evidence that the previous arrangement was not to leave during the night but during the day. The confrontation that took place between Mr PW and his brother was a disturbing situation given that children were in the house included the two children of the parties. Indeed, I note from the evidence of Dr. W that the mother disapproved of the behaviour of Mr PW and his brother that night.

It is also alleged that in October 2007, Mr PW assaulted C by throwing him against the wall in the mother’s home.
Having reviewed the evidence of the parties and Mr PW, I find that on the relevant occasion in October 2007 Mr PW was in the mother’s home. The two children were present. Mr PW had a sunburned back. C in the course of playing with him became more boisterous and started hitting him on the back. I find that Mr PW angrily pushed him away. I do not accept his evidence that he simply held up his hand and C bounced off it. However, I do not accept the allegations that the child was thrown against the wall.
There is evidence of substance that B in particular does not like Mr PW. The evidence of C’s relationship with him is ambivalent.
I accept the evidence of Mr PW that he does not intend in future to spend time with the mother whilst the two children or either of them are in her company. There are currently undertakings to the Court given at the time of the interim consent orders made on 12 December 2007. An undertaking was given by the mother that pending further order and whilst the two children are in her care she will not permit them to be brought into the company of Mr PW. He also gave an undertaking to the Court at that time that pending further order he would not “come into contact with either of the said children.”

The maturity, sex and relevant factors of the two children

The two children appear to be bright young boys with difficulties being experienced in their maturity due to the emotional distress that B feels for the reasons to which previous reference has been made and C’s behaviour issues described in some detail in not only the evidence of the parties, but the observations and conclusions of Dr. W to which earlier reference has been made.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the two children and the other parties

I find that each of the parties has limited willingness and ability to facilitate the relationship the subject of this particular consideration. The principal reason is their conflicted relationship of long standing marked by distrust and the absence of goodwill. I am not convinced on the evidence before me that there is likely to be a marked improvement in that relationship and the attitude of both or either of the parties in the immediate future.

The likely effect of any changes in the children’s circumstances including separation from the party with whom they have been living

The two children appeared to have generally settled into the routine of living with each party on a week about basis notwithstanding the continued marked differences between the parties in relation to both parenting style and their own personal limitations the subject of the written and oral evidence the subject of Dr. W to which I have made earlier reference.
In the event of B living predominantly with the father, there is the real risk in accordance with Dr. W’s evidence, of him becoming more alienated from the mother partly due to the fathers involvement of the child in terms of knowledge of issues that have arisen in the current proceedings, the negative attitude and views expressed by the father concerning the mother and the alignment of B with the father for the reasons expressed by Dr. W. However, in the event of B having to live predominantly with the mother, he may become even more resentful of her due to his perceived past lack of attention from her, compared to the attention given to C and B’s complaints of the mother’s lack of control of C’s behaviour.
Fortunately C seems to have made substantial progress with his behaviour related issues and as a consequence significant improvement in all aspects of his school life. He has settled well in the care of the father. He is also very much attached to the mother and implicitly has a need to spend substantial periods of time with her. Orders which may not capture all of those matters may impact negatively on C.

Practical difficulty and expense of the two children spending time with and communicating with a party

This is not an issue of real significance in the proceedings.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the two children

This is a difficult if not impossible consideration to take into account. The reason is the underlying and pervasive effect of the poor parental communication with ongoing antagonism between the parties.
I have concluded that regardless of the parenting orders that may be made, it is not possible to be reasonably confident that one set of orders is least likely to lead to the institution of further parenting proceedings than other alternative orders so sought by the parties or which are in the best interests of the two children.

Conclusion

The mother seeks to maintain the presumption of equal shared parental responsibility pursuant to the provisions of section 61DA. The father seeks an order which would reflect a rebuttal of the presumption in that he be granted sole parental responsibility for the two children. He relies upon section 61DA(4). The Independent Children’s Lawyer submits that the presumption has not been rebutted.
The substance of the submissions made on behalf of the father in relation to this issue is as follows. It is submitted that the mother’s attitude to Mr PW is not child focused and indeed represents a “blind spot” due to her lack of concern in relation to his past conviction for assault on a former girlfriend, as well as previous convictions and/or a tendency to use a prohibited substances.
In addition it is submitted that the mother has inappropriately sought to involve the principal of the school attended by the children in issues involving them beyond the principal’s expertise or outside educational boundaries.
I do not accept those submissions, although at the same time recognising that they have substance. The mother made it clear to Dr. W that she did not support the behaviour of Mr PW in the company of his brother at the holiday house in January 2007 and took immediate steps to remove herself with the two children from that place during the night, which was implicitly in recognition that it was in the children’s interests to do so.
The mother gave an undertaking to the Court to which I have earlier referred as did Mr PW. It is arguable that that undertaking by the mother was breached. However, I am satisfied that the mother is acutely aware of the need to comply with that undertaking and to recognise that there are relationship difficulties between the two children and Mr PW, especially B.
The mother has also been criticized in relation to seeking and following the advice of Dr. L. I accept her evidence that she was very concerned in relation to C’s behaviour at school and desperate to obtain medical advice to assist the child. It was understandable and appropriate that she discuss that matter with the school principal who was aware of the serious behavioural issues that C then had. That is against the background of the parties themselves lacking child focused communication in view of the deep conflict that existed between them. Given that neither the mother or the father are medically qualified, it is understandable that the mother preferred to follow the advice that Dr. L subsequently gave, notwithstanding the misgivings and later opposition to it that the father voiced. Quite clearly, the mother did mislead Dr. L in relation to informing him that she had sole parental responsibility. I am satisfied that her actions in that regard were motivated by the need, as she saw it, to engage and act upon specialist medical advice to assist the child whose behaviour both at school and in the mother’s home was becoming rapidly out of control.
With the benefit of hindsight and especially the subsequent opinions expressed by Dr. W, the provisional diagnosis of Dr. L was incorrect and the father was astute in opposing certain medication to be given to the child.
Notwithstanding the father’s more effecting parenting skills so far as C is concerned, I have concluded that that is more relevant to the consideration of periods of time to be spent by the two children with one parent or the other, as distinct from whether the best interests of the two children required the presumption of equal shared parental responsibility to be rebutted.
I have concluded that the ground pursuant to section 61DA(4) has not been established. Whilst the parties undoubtedly have poor communication in relation to matters affecting the two children, the fault in that regard does not exclusively lie with one party as opposed to the other. An order which reflects the presumption of equal shared parental responsibility will hopefully focus the parties’ attention on the need to consult and make joint decisions on major issues affecting the two children, rather than being given sole power to do so. So far as the father is concerned, he is unlikely to engage the mother in any meaningful consultation having regard to the history of their conflict and deep distrust since they separated.
A crucial aspect in the evidence in relation to meeting the paramount consideration of the best interests of the two children in terms of the periods of time that they should live with one party or the other, is the evidence of the child expert Dr. W. Exhibit 4 is the most recent of the three reports that he furnished, it being dated 22 February 2008. I have attached more weight to that report on this particular matter, than the two earlier ones given that Exhibits 2 and 3 are dated 21 September 2006 and 5 March 2007 respectively and the changes that have occurred in relation to the two children, particularly C, referred to in Exhibit 4 and Dr. W’s subsequent oral evidence.
In Exhibit 4, Dr W expressed the view that from his viewpoint, the best interests of the two children are likely to be served by them substantially living with the father and spending less time with the mother than the then current arrangements of week-about periods of time. He considered that the arrangement whereby they spend a four night block with the mother each fortnight in addition to half school holidays would provide the two children with the stability that they required. In addition, Dr. W observed in Exhibit 4 that the equal time situation was not sustainable in the long term given the lack of ability between the parents to communicate with each other and resolve difficulties that inevitably will arise with such arrangements.
Dr. W also sounded a note of caution when he stated that the week about arrangements whilst indicating that the father can effectively manage C, has also exposed the father’s lack of willingness or implicitly ability “to demonstrate sufficient objectivity to support the boys’ relationship with their mother.”
During the course of his oral evidence, Dr W reflected again upon the opinion given by him in Exhibit 4 to which I have referred. He also considered possible orders that the two children spend ten days of every fortnight with the father and the remaining 4 days with the mother.
In relation to the equal time arrangement, Dr. W’s view was that such an arrangement “could become unstuck” unless there has been an “abatement of hostility” between the parties. Whilst he considered that that was also a relevant factor which could destabilise the ten day four day arrangement, that was less likely as the father would then have a settled situation. He recognised that there are advantages and disadvantages to each of the proposals and that in relation to the possibility of the father having the care of the two children in terms of them living with him for ten days out of fourteen, B may become more self-centred and entitled and more opinionated, with implicitly an increase in the difficulties in his relationship with the mother. Ten days spent with the father in one block may increase the child’s alienation from the mother. In addition, the promotion of the sense in the two children that their parents respect each other and that one party is not perceived to have been successful over the other, would be potentially undermined in the event of orders being made that provided for the two children to live with the father for a block of ten days out of fourteen.
To those advantages and disadvantages of either proposal, must also be added the factor of stability in terms of the two children regarding their primary home as being that of the father.
A further matter to consider is that should the two children predominantly live with the father, then they will not have the same exposure to the mother’s empathy which implicitly in both the short and long term should be to their advantage.
The father will be more reliant on Ms P and/or any of his friends for taking the two children to school and collecting them from after-school care which at times has been proved to be haphazard. The mother is able to provide consistency in that regard compared to the father.
A further proposal is, of course, that the children predominantly live with the mother. There would then be greater exposure to her empathy and the positive attributes of her parenting. The disadvantages include the finding that I have made that C in particular has been more settled in the lifestyle and parenting afforded by the father, compared to the mother and B has reacted more positively to the father’s approach than that provided by the mother. There has also been the complicating factor of the mother’s relationship with Mr PW and the prospect of it continuing albeit, not necessarily when the two children or either of them are in the care of the mother.
I have concluded that it is in the best interests of the two children that the current arrangement of them spending alternate weeks with one parent or the other during school term be continued. The consideration of each of the parties proposals and those of the Independent Children’s Lawyer especially against the background of Dr. W’s evidence with I accept as having been given in an appropriately professional and sensitive way, demonstrates that there are attractive aspects to each of the proposals, counterbalanced by significant disadvantages. It became apparent from Dr. W’s evidence considered as a whole, that he was no longer as clear in his recommendation as had been set forth in Exhibit 4.
One of the two primary considerations that I must undertake is the benefit to the two children of having a meaningful relationship with both of the parties. Under the current week about arrangements that have continued for some time during school term, C has made marked improvement in his overall behaviour and as a consequence progress in all aspects of his school life including relationship with teachers and other children, and of course the parties. That appears to be brought about to a large extent by being settled in the environment that has existed reflected in that week-about arrangement. To that extent, it has provided the stability that Dr. W has emphasised is in the interests of the two children.
Whilst B has continued to react negatively to the mother, that has been brought about in part by the father’s adverse influence upon him due to the father’s negative attitude to the mother which he has displayed in one form or another, perhaps at times other than on a pre-meditated basis. The conclusion of the litigation should enable him to minimise that conduct.
Each of the parties has much to offer the two children. Their positive parenting and effect of it on the emotional development of the two children has been eroded at times due to the continuing conflicted parental relationship that they have and their mutual deep distrust. Those factors are likely to continue, regardless of the arrangement for periods of time that the children live with one party or another, unless each of the parties brings a more child-focused and sensitive approach to the continued care of the two children to enhance their emotional development, rather than hindering it.
It will be a matter for them to demonstrate that they are capable of doing this in a responsible and constructive way. I will make orders for their engagement in appropriate parental programs and to take part in further counselling, rather than the rush to litigation and further heightening of disputes which may have given them personal satisfaction in the past, but which have impacted badly on the two children who each need the benefit of emotional and other support that only the parties can give.
An issue had arisen in relation to whether it is in the best interests of the two children for them to change from their current schools to the school proposed by the father. In this regard, I will make orders as sought by the mother. I accept the submissions made on her behalf that the children continuing at their current schools is in their best interests having regard to their positive progress at school, their contentment in that school environment, the friendships they have formed and the involvement of family in the school community. It will also enhance stability for them, being a matter upon which much emphasis was placed by Dr. W whose evidence in that regard I have accepted and given weight bearing in mind other relevant factors. There has been a change of principal which removes one of the father’s objections to the school.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Rose

Associate:

Date: 23 December 2008

[2008] FamCA 1123

23 December 2008

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Family Law

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