Grant and Grant

[2012] FamCA 98

FAMILY COURT OF AUSTRALIA

GRANT & GRANT [2012] FamCA 98

FAMILY LAW – CHILDREN – With whom a child lives and with whom a child spends time – Best interests of the child – Where applicant father seeks changes to existing parenting arrangements -  Where existing parenting arrangements were pursuant to Court orders made by consent – Where the applicant father asserts child expresses the wish to live with him –  Views of children assessed by Family Consultant - Where views expressed by the children have changed as assessed by Family Consultant

Family Law Act 1975 s 60B, s 60B(1)(a), s 60CA, s 60CC(2), s 60CC(3), s 60CC(3)(m), s62B, s 65DAA(5) and s 65DA(2)

Marsden and Winch (No. 3) [2007] FamCA 1364
Cowley v Mendoza [2010] FamCA 597
Goode and Goode (2006) FLC 93-286
MRR v GR [2010] HCA 4; (2010) FLC 93-425

APPLICANT: Mr Grant

RESPONDENT: Ms Grant

INDEPENDENT CHILDREN’S LAWYER: Ms K Hawdon

FILE NUMBER: BRC 5489 of 2007

DATE DELIVERED: 7 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 5 and 6 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grant in person

COUNSEL FOR THE RESPONDENT: Ms Grant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Selfridge
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Forest Glen Lawyers

Orders

1. That all existing parenting orders be discharged.

2. That the mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) in respect of the children, S born … April 1996 and M born … August 1998 (“the children”) save that the mother shall, prior to making the sole ultimate decision about any such issue:

   (a)Advise the father in writing of the decision intended to be made;

   (b)Seek the father’s written response in relation thereto;

   (c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;

   (d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.

3. That the children shall live with the mother.

4. That the children shall spend time with the father as follows:

   (a)for half of all their school holidays and, in particular, the first half of the school holidays that occur or commence in odd numbered years and the second half of the school holidays that occur or commence in even numbered years;

   (b)for one weekend per month during school term in Town A, Town B, Town C or Town D with the father to collect them from the mother’s residence at 5:00 pm on the Friday and to return them to the mother’s residence at 5:00 pm on the Sunday of such weekend with the father to give the mother at least two weeks notice in writing of his intention to spend time with the children in this way.

5. For the purposes of paragraph 4(a) hereof:

   (a)school holidays shall be determined as commencing at midnight at the end of the last day of school before the holidays commence and concluding at midnight at the start of the day on which school commences for the children; and

   (b)where relevant, depending upon which half of the holidays the children are spending with the father, the children shall transition between the parents at the McDonalds Family Restaurant in Town E:

   (i)at 12 midday on the first day of the school holidays; and/or

   (ii)at 12 midday on the day that the exact half way point of the holidays falls and if the exact half way point of the holidays is at midnight then the transition shall be at midday on the day leading up to that midnight hour not after it; and/or

   (iii)at 12 midday on the last day of the school holidays.

6. The children shall communicate with the father by:

   (a)skype and/or email if the children and the father have access to computers and have access to skype and email addresses; and

   (b)by telephone at any reasonable hour and at least once per week between 6:30 pm and 7:30 pm Eastern Standard time on a Wednesday or such other day as is mutually agreed between the mother and the father in writing, with the father to initiate the once weekly call to the girls at his expense and with the girls to be able to call the father otherwise at their discretion, the mother to facilitate at her end all such telephone communication and to ensure that the girls speak to the father with privacy.

7. The children shall communicate with the mother by telephone when they are with the father during school holidays at any reasonable hour and at least once per week between 6:30 pm and 7:30 pm Eastern Standard time on a Wednesday or such other day as is mutually agreed between the mother and the father in writing, with the mother to initiate the once weekly call to the girls at her expense and with the girls to be able to call the mother otherwise at their discretion, the father to facilitate at his end all such telephone communication and to ensure that the girls speak to the mother with privacy.

8. The parents shall communicate with each other by email if they each have access to computers and email addresses and, if not, then by telephone, but they shall limit their communication to parenting matters only and they shall refrain from abusing or denigrating each other to or within the hearing of the children.

9. The mother and the father shall keep each other informed at all times of their residential and postal addresses, landline and mobile telephone numbers (if any) and email addresses (if any) and each shall advise the other of the details of any changes to any of those within 72 hours of such change.

10. The mother shall inform the father and keep him informed as to the names, addresses and contact telephone numbers of any doctor or allied health professional attended upon by the children or either of them from time to time, including through the Royal Far West Children’s Health Scheme and these orders are sufficient authority for any such doctor or allied health professional or officer of the said Scheme to provide any information that he or she is lawfully permitted to provide to a parent of such child as either of the parents shall request.

11. The mother shall inform the father and keep him informed as to the names, addresses and contact telephone numbers of any school attended by the children or either of them from time to time and these orders are sufficient authority for any such school to provide any information that it is lawfully permitted to provide to a parent of such child as either of the parents shall request.

12. The mother and the father are both permitted to attend at any school function or event to which parents are ordinarily invited or at which parents are permitted to attend by the school or schools attended by the children or either of them from time to time.

13. The mother shall provide a book that goes with the children to the father each time they go to spend time with him in which she advises him in respect of any and all medication that the children or either of them are taking at the time and in respect of the prescribed dosage to be administered by the father during the time the children are with him and the father shall ensure that the book returns with the children to the mother with the children at the end of their time with him, along with any medication that is left over from any supplied by the mother at the commencement of that time.

14. The Independent Children’s Lawyer is discharged.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Grant 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 BRISBANE

FILE NUMBER: BRC 5849  of 2007

Mr Grant

Applicant

And

Ms Grant

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 17 July 2008, in previous proceedings in this Court, the mother and the father in these proceedings joined with the Independent Children’s Lawyer in asking Justice Bell to make parenting orders by consent. His Honour made those orders.

1. The orders included provision for the three children of the mother and father to live with the mother, for the mother to have sole parental responsibility for their care, welfare and development subject to consultation with the father before making decisions, and for the children to spend time with the father during half of their school holidays.

1. The three children who were the subject of those parenting orders were H born in September 1993, S born in April 1996 and M born in August, 1998.

1. At the end of the time that the three girls spent with their father in the July school holidays in 2010, the father returned H and M to their mother’s care but he did not return S. The mother subsequently obtained a Recovery Order in respect of S and, with police intervention, S was returned to the mother’s care. The father unsuccessfully appealed that Recovery Order and then commenced these proceedings in this Court by Application on 27 October, 2010, principally seeking orders that S live with him and also that M not be prevented from living with him, if that is what she wanted. He did not seek orders with respect to H, appropriately acknowledging that she was old enough to do as she wanted. H was 17 at the time. She is now 18 and no longer a child subject to this Court’s jurisdiction.

1. The father’s application came before me for hearing over two days on 5 and 6 May, 2011. The father appeared without legal representation. The mother appeared without legal representation. The ICL was represented by counsel.

1. The father presented his case well. It was essentially that S wanted to live with him, that she had good reasons for wanting to do so and that as she was 15 years old, she should be listened to. In addition, he presented a case that the girls were exposed to domestic violence and poor parenting choices in the home of their mother. I understood the purpose of his presentation of this part of his case was to provide support for his position that S was unhappy with aspects of life in the mother’s home and also for his position that it was, in S’s best interests, and probably M’s also, to be put into their father’s day to day care regardless of their wishes.

1. At the end of the two day hearing, counsel for the ICL handed up a minute of orders proposed by the ICL. Principally, those provided for the two girls to continue living with the mother and there to be little change in respect of the time the girls spend with the father. The mother agreed that should be the outcome of the hearing. 

1. I reserved my decision. I am acutely conscious that ten months has elapsed since I did. I regret that my sitting and judgment writing commitments have prevented me from delivering this decision before now. I am aware that the delay in delivering judgment would have caused anguish to all the parties. However, I have determined that I will not make orders that S live with her father as the father applied for. My orders will effect no significant changes in the lives of the two girls. I will order that the girls continue to live with their mother and spend holiday time and some other time as arranged with their father. There will be some other orders about related parenting matters that I will explain further in due course. These are my reasons. 

Background

1. The father is now aged 46. The mother is now aged almost 41. They began living together sometime in or around 1991, married in January 1994, separated in or around April 1999 and divorced in December 2000.

2. The mother had been previously married with two sons of that relationship, one of whom, Y, lived with her and the father during their relationship. The father had not been married before and had no other children.

3. Since their separation, the father had married again. His wife, Ms J, has two children from previous relationships and they have had no children together. Ms J’s two children were 18 and 15 years old respectively at the time of the trial.

4. After separation, the mother formed another relationship with Mr R and they had a child, W, who is now nearly 11 years old. He lives with the mother and the girls in Town A. The mother asserts that she is separated from Mr R and they live apart but remain friends. The father asserts that the mother and Mr R are still a couple and spend a lot of time together.

5. The girls have remained living with their mother in the small north-west New South Wales town of Town A since their parents’ separation. The parents have been in conflict about the parenting of the girls most of that time. The father has asserted over the years that the children are the subject of neglect and abuse from the mother. On at least two occasions before the consent orders made by Bell J in 2008, the father retained the children at the conclusion of holiday visits with him and the mother had to obtain Recovery Orders to have them returned into her care.

6. The father has also asserted that the mother’s eldest boy, Y, has, over the years, been violent to the girls.

7. In 2007, the father commenced proceedings in this Court for parenting orders that would move the girls to his care. He was living in Town F in south-west Queensland at the time, whilst the mother and the girls were still living in Town A, several hours drive to the south.

8. In November 2007, Mr I, a clinical psychologist, prepared a family report in the matter. It was in evidence before me. In that report, Mr I recommended that the children remain living with their mother in Town A and that they spend half of the holidays with their father. He also recommended that the mother have sole parental responsibility because of the historical conflict and poor parental communication and that the father have free access to information from the children’s doctors, schools and other institutions. Mr I observed that he was confident that if the eldest child, H, wished to have more time with her father or move to Queensland to live with her father that the mother would be supportive of this.

9. It appears that the father’s application filed in 2007 was listed for trial in front of Bell J on 17 July 2008.  The father was unrepresented on that occasion also.  The mother had legal representation, including counsel.  The ICL was represented on that occasion by counsel.  The mother gave an undertaking to the Court that day that her two sons of her previous marriage, Y and N, would not reside in the same residence or be left unattended with the three girls.  I have already set out the principal provisions of the order that was made with the consent of all three parties that day.

10. The father and his current wife subsequently moved from Town F to Town G, which is in the Town Z area, just north of Queensland’s Sunshine Coast.  The mother and the three girls and their younger brother, W, continued to live in Town A. 

11. The parents’ disagreements about their parenting of the three girls reached another point of crisis in July 2010.  The three girls were spending time in those school holidays with their father at his home in Town G.  There does not seem to be any serious dispute between the parties that during that holiday visit, S told her father that she wanted to live there with him.  The father asserted that S had been telling him this repeatedly over the years.  Indeed paragraph 2 of Justice Bell’s Order of July 2008 had included reference to the prospect of the children S and M requesting to live with their father at some time in the future, specifically stating:

    Such request be considered when either of them are of a mature age.

12. In fact, the father asserts that in 2009, in response to expressions of interest by S to live with him, he had arranged family dispute resolution counselling to discuss the matter with the mother.  The evidence shows that did happen but that no change in living arrangements was agreed upon between the parties as a consequence. 

13. The father asserts that during the July 2010 holidays, S repeated her expressed wish a number of times and, ultimately, in a telephone conversation she told her mother that she wanted to live with her father.  The father asserts that the mother was not receptive of S’s wish and insisted that she be returned home at the end of the holidays with the other two girls.  He asserts that notwithstanding that fact, S insisted that she was not going home and, consequently, he did not take her.

14. At the commencement of the third term in 2010, the father enrolled S in school at Town Z and she started there on Monday, 19 July.  On Friday 23 July 2010, Town Z Police informed the father that they had executed a Recovery Order that had been made on 20 July 2010, delivering S back into the mother’s care.

15. The father was aggrieved by the fact that the Recovery Order had been made without notice to him.  He considered it appropriate to appeal the order.  That was unsuccessful.

16. The father collected the three girls for the school holidays in October 2010 and they spent a week with him.  He said in his evidence that S was still saying to him during that holiday that she would like to come and live with him. This time however he returned all three girls at the end of the holiday.

17. In December 2010, the girls spent more time during the school holidays with their father.  The father’s evidence was that S was still telling him that she wanted to live with him during that holiday.

18. Interestingly, a Senior Family Consultant from this Court had interviewed the parents and three girls on 24 November 2010 and subsequently prepared a report dated 7 December 2010 that was before the Court in evidence.

19. The Family Consultant concluded her report with two recommendations.  The first was that S and M remain living with their mother and spend time with their father for half of the gazetted school holidays.  The second was that the orders be made as prescriptive as possible to prevent misunderstanding and further conflict. 

20. In respect of her interview with the child, S, the Family Consultant said this:

    [S] understood the purpose of the interview to be, “I know we are here because I said I wanted to live with my dad and then I changed my mind”. 

21. Later in the same part of the report the Family Consultant went on to say this:

    [S] was clear the message she wished the Court to hear was that “I don’t want to live with dad.  I don’t want dad to go to Court.  I don’t want to live with him.  If court made me live with him I would be upset”.  [S] was equally clear that her mother had placed no pressure on her to relinquish her preference.  [S] was offered an opportunity to discuss her views with her father, but she declined, “I prefer he read it as I don’t want to say it”.

22. In her affidavit that was filed on 25 February 2011, the mother pointed out that the girls had actually spent two extra weeks with the father in the 2010/2011 Christmas school holidays because of the flooding in Queensland.  She also said:

    The children always come back from spending time with [the father] happy and saying they had a good time. The children see [the father] as a sibling group and this arrangement is the best to ensure that all the children have a good relationship with [the father].

23. In her affidavit and oral evidence at the trial, there was no acceptance by the mother that S still maintained the view that she wanted to go and live with her father in Queensland. The mother’s position was that S had changed her mind and wanted to stay with her.

The Father’s Position at the Trial

1. In the lead up to the trial the ICL had caused a subpoena to issue out of the Court directed to the Commissioner of the New South Wales Police Service requiring the production of documents from the Police Service’s files in respect of the mother and father, the three girls and their brother W, Mr R and Ms J.  A large bundle of documents were produced.  They were admitted into evidence as Exhibit 4 in the proceedings. 

1. Under cross-examination by counsel for the ICL, the father effectively asserted that the contents of those Police Service documents cast significant doubt on the findings made by Mr I in his 2008 report and proved that the father’s concerns about his daughters being exposed to violence in their mother’s home were justified.

2. The father also asserted that the documents proved that there was active involvement of the New South Wales Department of Community Services in the lives of family members, thus further justifying his stated concerns for the wellbeing of his daughters.  Additionally, he stressed concerns that the mother and girls had moved their place of residence in the town of Town A about eight times in recent years.  He asserted that in itself was evidence that the girls lives were subject to instability and regular change such that was against their interests.

3. Under cross-examination the father was firm in his view that S still wanted to come and live with him.  He discounted the observations of the Family Consultant on the basis of an assertion that S had averted her gaze from the Family Consultant when discussing the subject of her preferred place of residence.  He also said that S had told him since the family report had been prepared that “she said that because she is scared of the repercussions when she gets home”.  The father asserted that S’s wishes as reported by the Family Consultant should not be accepted as a true expression of the views she actually holds.

New South Wales Police Service Documents

1. The records of the New South Wales Police Service evidence the family coming to the attention of the Police and the Department of Community Services on a number of occasions over the last decade.  Principally, they show that the mother’s son, Y, who is now an adult and no longer living with the mother, had a troubled childhood, allegedly suffered from Attention Deficit Hyperactivity Disorder to a significant extent and had a propensity to become seriously argumentative and even physically violent with his mother and his step-father, Mr R.  A number of alleged incidents of such violence are recorded.  The last of those appears to have been in August 2006.  The documents also record police intervention on an occasion in August 2001 when they were called to the mother’s home in Town A as a consequence of a telephone call being received from one of the mother’s sons complaining that the mother and Mr R were arguing.

2. The documents also record that in May 2007 the New South Wales Police were contacted by the father who reported that the child, S, had complained to him at that time that her brother, Y, had threatened her with a knife. There was no entry confirming that had actually happened. There were some entries recorded subsequent to the date upon which the consent orders were made by Bell J in 2008, but they related to complaints being made by the parents, one against the other, about abuse, neglect or failure to return the girls after spending time with the father.

3. I formed the impression that the father referred to these Police Service documents during the trial because he perceived them to justify the position that he took in respect of the commencement of his proceedings in 2007 that culminated in the consent order made by Bell J in 2008. In particular, he wanted to challenge Mr I with their contents. This seemed to be based on a perception that Mr I had determined that there was no violence in the mother’s household and that things might have turned out differently had Mr I known all of the facts.

4. In his 2007 report, Mr I had actually identified that Y was a bit of a problem in the mother’s home. About the allegations of violence, he had said :

   156.There was no evidence of family violence apart from isolated incidents of [Y] being physical to his younger siblings.

5. When the father cross-examined Mr I in the proceedings before me, he asked Mr I whether learning that there was actually domestic violence in the mother’s home at times prior to the preparation of his report would have changed any of the opinions he expressed.  Mr I indicated that he would need more information about the alleged domestic violence that had occurred. Not surprisingly, he conceded that had he had more information at the time that he prepared his report, depending on the nature of that information, it is likely it would have been something he would have taken into account.  However, there was no concession by Mr I that his opinions expressed in that report would have necessarily been different.  Quite sensibly, Mr I reflected that it would have depended entirely on the nature of the information. He did not concede that what he is now aware of would have caused him to have taken a contrary position in 2007.

6. Having considered the NSW Police records that were put into evidence, I am not satisfied that they prove anything much more serious than Mr I had actually considered and determined in any event. They confirm that the mother’s son, Y, was a problem and that he did, from time to time, become physically violent with his mother and Mr R. They do not prove that he was historically violent to his sisters. Importantly, they do not prove, as the father asserted during the trial, that Mr R was historically violent towards the mother. 

7. In any event, I do not consider that I need to determine what might have been in 2008 had either the father or Mr I had the New South Wales Police records at their disposal at that time.  The father consented to the orders that Bell J made in 2008.  The undertaking that was given by the mother to the Court at that time that she would not bring the girls into contact with either of her sons of her former marriage is, I consider, evidence that the father clearly had concerns about the impact of the presence of those two young men on the wellbeing of his daughters and that he was able to bring those concerns to bear upon the proceedings back then. Clearly, the mother and her legal representatives at that time were suitably satisfied that it was appropriate for the mother to give such an undertaking.

8. I am not satisfied on the evidence before me, even though I understand the father complains that it may have happened, that the mother has actually allowed the girls to come into contact with her two adult sons since she gave that undertaking in 2008.  The NSW Police records provide no evidence of that, save for the recording of a complaint from the father that the mother had done so on an occasion, but with no evidence of confirmation that it had happened. Accordingly, I just cannot be satisfied that there is an unacceptable risk of the girls being subjected to physical or emotional harm at the hands of one or both of their adult brothers whilst continuing to live with their mother such that would support moving any of them to live with their father.

Allegations of violence between Mr R and the Mother

1. During the trial, the father made it clear that he believed that there was violence in the relationship between the mother and Mr R. He also made it clear that he considered them still to be a couple despite the mother’s denial that they are.

2. The mother asserted in evidence that she and Mr R actually separated about four years ago, but that they remain friendly. Although I was left not totally convinced that the mother and Mr R have ended their relationship as a couple, the evidence did satisfy me that the mother and the three girls and the boy, W, live in a house in Town A with the mother’s parents and that Mr R lives in a house with his parents some three doors down the road. The father himself accepted that the mother and Mr R were not living in the same home. He was asked by counsel for the ICL whether he says Mr R is still living in the mother’s household and he answered “not at the moment.” The mother did herself accept that on occasions she and the girls and W have stayed overnight at Mr R’s home, but asserted that it was not a regular occurrence. She accepted there were disagreements and arguments between her and Mr R but denied that was a common feature of their relationship or that there was violence between them.

3. As I have noted, there was a reference in the NSW Police records to the mother’s son calling the police and reporting that his mother and Mr R were arguing that was dated as long ago as 2001. However, I am satisfied there was no other evidence before me supporting a finding that they have a violent relationship that the girls are inappropriately exposed to in a manner that presents an unacceptable risk of harm to them.

The Mother’s alleged instability

1. The NSW Police records did also provide evidence that the mother has had at least six different places of residence since 1999. However, all of the homes in which she and the children have lived have been in Town A. It is a very small rural community on the plains of north-west New South Wales. The mother’s evidence is that she has generally had to make the moves from house to house as she has only been able to afford to live in rental accommodation and the rental properties she was living in were sold from time to time, with the purchasers requiring vacant possession so that they could move in. They have remained, at all times, living within the same community. I accept the evidence that none of the moves necessitated a change of schools for any of the children. I do not accept that the moves, in these circumstances, evidence an unacceptable level of instability in the overall lives of these girls.

The wishes of the Children

1. As I perceived the father’s case, particularly in view of his consent to the orders made in 2008, the principal basis for his application and argument that S should live with him and his current wife in Town G is that S wants to.

2. I have referred to the report of the Senior Family Consultant, Ms DE, and its contents in respect of this matter.  It recorded that S acknowledged that she had told her father that she wanted to live with him, had explained her reasons for holding that view at the time she did, explained how things had changed since then and confirmed that she no longer wanted to go and live with him. Ms DE was cross-examined about this and confidently stated that she had no doubts that S’s wishes expressed to her were genuine. She conceded that S had averted eye contact at one point during their discussion about the matter, but attributed that simply to the fact that it was a difficult subject for S to talk about, rather than dishonesty about her wishes.

3. Ms DE also recorded that M spontaneously stated:

   I told dad I want to live with mum. I don’t want to live with dad. I told dad on Monday when he rang. He didn’t say anything.

4. Ms DE also recorded that M told her that S had said that she wanted to live with her dad but that she no longer wanted to. Ms DE also interviewed H and recorded that she appeared clear in her opinion that her mother does not place pressure on them to stay with her and that her mother regularly seeks their views about their opinions regarding where they would like to live. H told Ms DE that if this matter did involve her she would be saying that she wished to stay with her mother.

5. Ms DE noted that it is typical of adolescents to change the focus of what they perceive to be problematic issues and their responses to them. She opined that the father does not seem to view these things in this way though.

6. I am not satisfied that there is any basis for me to reject the opinions of Ms DE. Accordingly, I accept that S, whilst previously having told her father that she did want to live with him, had by the time she was interviewed by Ms DE changed her mind and was happy to continue living with her mother and her siblings. I do not accept the father’s assertion that S still truly wishes to live with him.

Other Issues

1. The father also raised some concerns, apparently based on reports from the girls, that their younger brother, W, was also violent and had tried to “choke” one of them. Ms DE canvassed this issue with the mother and with the girls. She reported that the mother acknowledged that the children have their “tiffs” and that W may give M a “clip around the ear” but she stated that M is equally responsible for their disagreements. Ms DE reported that H laughed at the allegation about W choking one of her sisters and indicated that he would not do that. She is reported to have said that W and his sisters have sibling fights but that they are readily settled and with apparently little consequence.

2. Sometime prior to the preparation of Mr I’s 2007 report, the mother reports that M was diagnosed with a learning disorder and she is recorded as having told Mr I then that M was attending the Far West Children’s Hospital in Sydney once every six months. The father complained in these proceedings that the mother is not providing him with the necessary information about M’s specific needs. As Ms DE noted, the mother argues otherwise.

3. Ms DE did express the view that the mother and the father have a clear inability to effectively communicate with each other. On the evidence I have read and heard I am satisfied that her view of the parents in this matter is correct. Further, I am satisfied that a failure on the mother’s part to provide relevant information to the father is probably a consequence of that conflict

4. Ms DE went on to express the opinion that it is unwise to burden one parent with the responsibility of distributing information that is obtained from treating professionals and schools to the other parent and that each parent needs to be responsible for obtaining their own information to limit the scope of further conflict. I accept that opinion has merit, at least as it applies to this particular case.  Ms DE, of course, recognised that such a general principle cannot apply when the source of information may be new. She recognised that the parent responsible for taking the child to that new source must firstly advise the other parent of the contact details of that new source of information for the other parent to be able to obtain his or her own information.

5. The father also raised at trial the fact that the location for the transition of the children’s care between the parents is in Town E which was agreed on as appropriate when he lived in Town F. He submitted that as he had moved to the Town Z area the transition location should be moved closer to the new half-way point between the parents’ homes, and he proposed the Town V Truck Stop. That was opposed by the mother and the ICL who submitted it should remain in Town E but be moved from the park to the McDonalds Family Restaurant because more people are likely to be around, thus reducing the prospect of open conflict occurring, as both parties currently complain of. I accept the merit of that submission.

The principles to be applied

1. Of course, the parenting orders that are to be made in this case are to be determined having regard to the best interests of the girls being the paramount consideration. (see s 60CA of the Family Law Act 1975 (“the Act”)) In determining what is in the best interests of the children in the case before the Court, consideration must be given to expressly listed “primary” and “additional” considerations. (see s 60CC) One of those “additional” considerations, namely s 60CC(3)(m), which lists “any other fact or circumstance that the Court thinks is relevant”, evidences that the enquiry is indeed a broad one. As broad as that makes the enquiry, it still has to be performed within the constraints of the statutory framework of Part VII of the Act.

2. Expressly listed as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests are two matters (see s 60CC (2)). They 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.

   In the Act, it is said that making these considerations the primary ones is consistent with the objects of Part VII – that is, at least those two objects set out in s 60B(1)(a) and (b) (see the Note to s 60CC(2)).

3. In any parenting case, the two “primary” considerations set out in s 60CC(2) are to “be accorded particular importance in determining what order will best promote the interests of the child” (Marsden and Winch (No.3)[2007] FamCA 1364 per Warnick and Thackray JJ at par 77). That they are separately listed and described as “primary considerations” demands as much. But as important as the two “primary” considerations are, all of the evidence in any case must also be considered and weighed in the light of the s 60CC(3) “additional” considerations and the s 60B objects and principles in order to determine what is in a child’s best interests.

4. Further, as Murphy J pointed out in Cowley v Mendoza [2010] Fam CA 597, all of those matters are required, by way of the specific statutory framework of Part VII, to be considered at more than one point in the process. His Honour, in that case, drew together the relevant legislation and the principles from the decision of the Full Court of this Court in Goode and Goode (2006) FLC 93-286 and the High Court’s decision in MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424 and then conveniently summarised the steps that are required to be taken in any parenting case in which the Court makes or contemplates making a parenting order. The Court must:

   ·apply the presumption of equal shared parental responsibility

   ·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

   ·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

   ·if the presumption applies:

   ·determine whether it is in the child’s best interests for there to be an order for equal time with each parent

   ·make findings as to the matters set out in s 65DAA(5) which are:

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

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

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

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

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

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

   ·       as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable

   ·       if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

   ·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

5. Clearly, if an order conferring equal shared parental responsibility on the parents is not considered in the best interests of the children, after determining how best to deal with parental responsibility between the parents, the Court then simply moves on to the determination of what other orders are in the children’s best interests.

The presumption of equal shared responsibility

1. The parties consented to orders in 2008 conferring sole parental responsibility upon the mother subject to prior consultation by her with the father. In these proceedings the father did not seek any orders with respect to parental responsibility. He merely sought more consultation than the mother was, on his case, engaging in.

1. The ICL submitted that sole parental responsibility should continue to rest with the mother and that orders should be made for the father to obtain information about the girls direct from relevant sources, independently of the mother. This approach was consistent with Ms DE’s recommendation.

2. I am satisfied in this case that the degree of conflict between the parties, evidenced to have been consistent over many years, is such that the presumption in favour of equal shared parental responsibility is rebutted. I do not find that it is in the best interests of the teenage girls in this case to now place their parents in a position where they are required to agree in respect of major long-term issues before any decision can be taken in respect of those matters. That, in my view, is a recipe for further conflict and I will not order it in this case. The mother will still be expected to consult the father prior to making any such decision but the father needs to understand that the orders will not mean that the mother must agree with his position or that the decision she makes is subject to his veto.

3. As I will not be making an order for equal shared parental responsibility I need simply go on to make parenting orders that I determine are in the best interests of the girls.

The parenting orders

1. In this case, I am simply not persuaded by the father that the best interests of the children are served by the orders that he seeks from the Court. S is nearly 16. The Court would not lightly disregard the views of a child of that age. No evidence or submission in this case persuades me that I should not accept that S had changed her mind about wanting to go to live with her father and was content to stay with her mother and her siblings.

2. There is no other evidence in the case that persuades me that S’s best interests require an order that she live with her father. I do not consider it in S’s best interests, M’s best interests or W’s best interests that S be separated from her other siblings and moved from Town A to Town Z at this stage in her life. Having considered all of the evidence, none of the other matters of concern raised by the father in his evidence or at the trial causes me to consider that in the best interests of these children. The submissions of the ICL included submissions that orders be made that the girls live with their mother and continue to visit their father in Queensland in their school holidays. Those are orders that I will be making. 

3. I will order that the girls spend half of their school holidays with the father and, by way of continuity of the sequence that Bell J’s orders provided for, it will be the first half of holidays in odd numbered years and the second half of holidays in even numbered years. I have not heard any reason why that sequence should be changed.

4. I will make orders that provide for the children to spend time with their father also on one weekend per month during school time that is additional to the school holiday time. Such time is to take place in Town A or any of the larger nearby towns of Town B, Town D or Town C. The father shall be responsible for collecting the girls from their mother and returning them there at the start and conclusion of such weekends. The father must give the mother written notice of his intention to spend such weekends with the girls and I consider two weeks minimum is a reasonable notice requirement.

5. The evidence satisfies me that the parents have been in conflict in respect of calculating half holidays and appropriate handover times. My orders will, as recommended by Ms DE, be sufficiently prescriptive to ensure both parties are able to calculate these matters without dispute.

6. I will order that transition of the children between the parents moves from the park in Town E to the McDonalds Restaurant in that town. That should reduce the prospect for conflict and family violence at transitions.

7. I am not persuaded that the transitions should move from Town E to Town V. The evidence is that the father moved from Town F to Town Z and thus made the travelling distance greater. The evidence is also that the father only pays the mother child support of approximately $100 per month. That is not very much considering what it would cost to support these two teenage girls. In the circumstances, I consider it in the girls’ best interests to continue to provide for transitions to take place at Town E for school holidays.

8. I will provide for reasonable communication by telephone, email and skype (if those media are available to the family) between the father and the girls when they are living with the mother and between the mother and the girls when they are with the father.

9. I will provide for the parents to communicate by email if possible but otherwise by telephone. I will order that they limit their communication to parenting matters and that they refrain from abusing or denigrating each other to or within hearing of the children. I shall order that they keep each other informed of their addresses and contact details. I shall make orders that require the mother to keep the father informed as to doctors and allied health professionals the children might see, and the schools the children attend as well as authorising the father to obtain any information he may lawfully obtain from those persons or schools about the children or either of them. My orders shall also permit the father and the mother to attend at the children’s school or schools as permitted by the school or schools. They shall also require the mother to provide a medication book to the father when the children go to spend time with him, advising him of medication they might be taking and as to the prescribed dosage he is to administer to the children whilst they are with him. I determine all of these orders that I propose to make to be in the best interests of these children having regard to the evidence I have heard, the concerns each parent has raised and the submissions that all parties have made.

10. I make the orders as set out at the commencement of these reasons.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 March 2012.

Associate: 

Date:  7 March 2012