Grant and Terry
[2008] FMCAfam 694
•14 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRANT & TERRY | [2008] FMCAfam 694 |
| FAMILY LAW – Children aged 11 and 9 – final arrangements for care – presumption of equal shared parental responsibility – children have lived in predominant care of mother since 2002 – father previously living in [Y], Victoria – father now seeks shared care arrangement on his return from [Y] to Adelaide – father alleges mother negligent and lax parent – mother asserts father domineering and abusive bully – assessment of degree of insight of each into responsibilities of being a parent – family violence – assessment of section 60CC factors – whether shared care arrangement practical – assessment of parties’ ability to communicate effectively – best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Grant & Terry [2007] FMCAfam 1215 Goode & Goode (2006) FLC 92-286 In the Marriage of Patsalou (1994) 18 Fam LR 426 M & M (1988) FLC91-979 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MS GRANT |
| Respondent: | MR TERRY |
| File Number: | ADC 2789 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 16, 17 June & 1 July 2008 |
| Date of Last Submission: | 1 July 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 14 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Legal Services Commission |
| Counsel for the Respondent: | In Person |
ORDERS
The mother have sole responsibility for making decisions regarding the education (both current and future) and the health of the children of the relationship [B] born in 1997 and [C] born in 1999 (hereinafter referred to as “the children”).
The children live with the mother.
The children spend time with their father as follows:
(a)Liberal telephone communications;
(b)Whilst the father is living in a location greater than 100kms from the children’s usual place of residence
(i)in each of the three short term school holiday periods from 4.00pm on the Friday of the last school term until 4.00pm on the Friday immediately prior to the start of the next school term and
(ii) in the Christmas/January school holiday periods as follows:
A.in 2007/2008, from 4.00pm on 9th January 2008 until 4.00pm on 27th January 2008 and thereafter in the year 2009/2010 school holiday period and each alternate year thereafter for the last three weeks of the said school holiday period commencing on a date to be agreed between the parties for a period of at least three weeks concluding at 4.00pm on the Friday immediately prior to the commencement of the new school term; and
B.in the first half of the Christmas/January school holiday period in the years 2008/2009 and each alternate year commencing at 4.00pm on the Friday of the last day of the school term and concluding after a period of three weeks on the Friday at 4.00pm or at 4.00pm on the 6th January, whichever date is earlier.
(c)during times when the father is residing within 100km of the usual residential address of the children, then the father spend time with the children as follows:
(i)each alternate wekend from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday), commencing on the first weekend of each school term; and
(ii)that alternate weekend time as envisaged in sub-paragraph (c)(i) be suspended during each school holiday period and that the father have the children in his care for half of each school holiday period at times to be agreed between the parties in writing or failing agreement, from 4.00pm on the Friday of the last day of the school term until 4.00pm on the Saturday of the following weekend during each short term school holiday period and for the Christmas/January school holiday periods as set out in sub-paragraphs (b)(ii).
(iii)that the school holiday arrangements for the children herein be subject to the following:
A.that the children be in the care of the mother each alternate Christmas from 10.00am Christmas Eve until 11.00am Christmas Day in the year 2008 and each alternate year thereafter and in the intervening year from 11.00am Christmas Day until 12.00 noon on 26th December and that the children be in the care of the father each alternate Christmas from 11.00am Christmas Day until 12.00 noon on the 26th December in 2008 and each alternate year thereafter and in the intervening year from 10.00am Christmas Eve until 11.00am Christmas Day; and
B.that the children be in the care of the mother for the whole of each Easter weekend in each alternate year from at least 5.00pm on the Thursday of the Easter weekend until 5.00pm on Easter Monday in the year 2008 and each alternate year and in the care of the father for the same period of time in the intervening year unless otherwise agreed by the parties in writing
(d)At such other times as may be agreed between the parties in writing
The father collect and return the children in order for the children to spend time with him pursuant to order 3 hereof whenever possible at the children’s school but if the children are not attending school on any day when they are due to be collected from or returned to the mother the point of handover will be the mother’s home.
The mother and father keep each other advised of their current residential addresses and contact telephone numbers to be used for emergency contact numbers and for any telephone communications between the children and the other parent.
The father facilitate the children communicating with the mother by telephone on at least one occasion in each week during periods that they are in his care.
The mother and the father advise the other party as soon as possible in the event of any medical emergency or serious injury suffered by either child.
The order restraining the children from coming into contact with Mr C be discharged.
Each party has the right to attend at the children’s school for all events that parents are normally entitled to attend.
Each party shall have the right to obtain copies of the children’s school reports and any school photograph in respect of the children.
All other applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Grant & Terry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2789 of 2007
| MS GRANT |
Applicant
And
| MR TERRY |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Grant “the mother” and Mr Terry “the father” are the parents of [B] born in 1997 and [C] born in 1999. These proceedings are concerned with final parenting arrangements for the two children.
The parties met in 1993 and began to live together in 1994. They finally separated in January of 2002. In the more than six years since, the children have lived predominantly with their mother in Adelaide. Until August of 2007, no formal orders had ever been made, by the court, in respect of care arrangements for the children.
Mr Terry moved to [Y], Victoria, from Adelaide, in January 2005.
He wished to pursue an interest in training [animals], which he could not do in South Australia. He has married since the parties separated. His wife is Mrs T. The father and Mrs T have two children, [D] and [E], who are 6 and 3 respectively.
Very recently, the father and Mrs T have decided to move to live in Adelaide. They are living in a house at [F], which belongs to one of Mrs T’s relatives, who has recently entered a nursing home. Mr Terry can apparently train his [animals] at either [L] or [P].
Ms Grant and the children currently live in [M]. The children attend [G] School. Ms Grant has no plans to change her place of residence or the children’s school. It was only during the hearing in court, in June of 2008, that she learnt that Mr Terry planned to return to live in Adelaide permanently.
This state of affairs is indicative of the fact that the parties do not have an easy relationship with one another and find it difficult to communicate and exchange information about the children. Obviously it would have been better if something as potentially important to the children, as where their father proposed to live had not been announced to the mother by the father in the witness box, particularly as this was a prelude to him proposing a shared care arrangement for the children.
To say the parties’ relationship with one another is poor would be an understatement. At present, their relationship is categorised by mistrust and mutual dislike. As a result both parties, but particularly Mr Terry, find it practically impossible to say anything positive about the other’s parenting of the children.
Mr Terry characterises Ms Grant as a lax, negligent and selfish parent, who is more interested in pursuing her own interests than in providing for the children. He suggested that Ms Grant is more interested in having her nails done and buying shoes for herself than providing proper food and clothing for the children.
Ms Grant sees Mr Terry as a selfish bully, who has never properly provided for the children but is rather intent on manipulating them, against her, to serve his own emotional needs. It is her case that she finds it practically impossible to deal with Mr Terry.
However, despite these difficulties, she points to the fact that she has always ensured that [C] and [B] have spent time with their father, in school holidays, and this indicates that she is capable of encouraging the children to have a proper relationship with their father and demonstrates that she has a proper understanding of the responsibilities of being a parent. Something which is not reciprocated by Mr Terry.
Because of the dysfunctional nature of the parties’ parental relationship, Ms Grant believes that it would not be in the children’s best interests for her and Mr Terry to have equal shared parental responsibility for the two children [Family Law Act section 61DA].
Initially her proposals for the final care arrangements for the two children were predicated on the basis that Mr Terry would continue to live in [Y], Victoria. In these circumstances, she proposed that the children should spend regular periods of time with their father during school holidays.
However, she made some alternative proposals in the eventuality that Mr Terry should return to live within 100km of her home. In this eventuality, she proposed that the two children should continue to live with her and spend alternate weekends, with their father, from after school on Friday until 5:00pm Sunday.
Mr Terry has acted on his own behalf in these proceedings. Initially, in his response,[1] he proposed that the two children should live with him, presumably in [Y], Victoria and spend regular periods of time, with their mother, during school holidays. He also sought an order that he have sole parental responsibility for the children’s “day to day care, welfare and development.”
[1] See father’s response filed 14 March 2008
More recently, upon the crystallisation of his plans to return to live in Adelaide, it seems to be his case that he proposes that the parties should have equal shared parental responsibility for [C] and [B] and that they should live in a shared care arrangement, moving between their parents respective homes on a week about basis. In this eventuality, he proposes that the children should continue to attend [G] School, which is the school into which [D] has been enrolled.
Ms Grant believes that any such shared parenting arrangement is doomed to failure. She points to the fact that the children have been in her predominant care, for the vast majority of their lives and it would be contrary to their best interests to change this longstanding arrangement. In addition, from a practical point of view, she believes that such an arrangement would be unworkable, given where Mr Terry proposes living and working in Adelaide but particularly because of the parties’ poor relationship with one another, which she characterises as being extremely dysfunctional.
Ms Grant first commenced these proceedings in late May of 2007.
At that stage, the motivation for her application was that she sought fixed and enforceable arrangements in respect of the time the children spent with their father, in school holidays, in [Y], Victoria. It was her case that she was frustrated by the father’s inability to return the children to her care at the times which had ostensibly been agreed between the parties and she was concerned that this behaviour, on the father’s part, was detrimental to the children.
However, her application was overtaken by other serious events.
In early August of 2007, [B] fell seriously ill, with influenza and was admitted to the [X] Hospital in Adelaide. It was feared that he might not survive the illness. Mr Terry was advised and travelled from [Y], Victoria to Adelaide. He was highly critical of Ms Grant’s management of [B]’s illness and the arrangements she had put in place for [C] to be cared for.
There was an unpleasant incident, between the parties, at the hospital. This lead to Mr Terry removing [C] from the hospital and taking her back with him to [Y], Victoria, where he enrolled her at a local primary school. Orders were made requiring Mr Terry to return [C] to Ms Grant’s care and other interim orders were made in respect of Mr Terry spending time with the two children, during both school terms and school holidays.[2]
[2] See Grant & Terry [2007] FMCAfam 1215
Much of the hearing, which took place before me on 16 and 17 June and 1 July 2008, was taken up with the parties’ competing accounts of what happened at the [X] Hospital. The powerful emotions, which the event precipitated, continue to reverberate for the parties and colour their relationship with one another. Undoubtedly, the parties’ parenting relationship with one another, already poor, was rendered far worse by what occurred.
From the father’s point of view, [B]’s illness; the presentation of [C] to him in what he describes as an unkempt condition; his concerns about what he considered to be inappropriate arrangements for [C]’s care at the time, particularly that she had been left with “strangers” and was distressed about it; crystallised all his previously and long held concerns about the mother and her parenting of the children. Accordingly, he elected to act, so far as [C] was concerned and take her where he thought she would be safe.
From the mother’s point of view, the father’s behaviour was inexcusable and demonstrates both his contempt for her and lack of insight into the responsibilities of being a parent. It is her case that there was no proper justification for Mr Terry effectively abducting [C], particularly when her brother was so seriously ill and she
(Ms Grant) was preoccupied with his care.
Accordingly, the parties have very different views about the significance of what occurred at the [X] Hospital on 12 August 2007. Mr Terry believes his actions were justified and resulted in him bringing his current case, which is a catalogue of the mother’s past failings as a parent.
From Ms Grant’s point of view, the incident demonstrates Mr Terry for what he is – a bully, who is willing to use force to get his own way. She is also concerned that it demonstrates a tendency, on Mr Terry’s part, to take matters into his own hands and believe things the children say to him, rather than to think through these issues properly and discuss them rationally with her, the children’s primary carer.
Because of the significant issues raised by both parties in the case, it was ordered that a family report be prepared. The report was prepared by Ms Kerry Cavanagh, an experienced psychologist and court counsellor. Ms Cavanagh’s report was released to the parties in mid-December 2007.
Originally, the hearing of the parties’ competing applications had been fixed for February of 2008 but did not proceed because Mr Terry did not file his material on time. Ms Cavanagh was not aware of any proposal, on Mr Terry’s part, to return to live in Adelaide. Accordingly, she did not address the issue of a shared care arrangement in her report.
Ms Cavanagh did however report as follows:
There has been some difficulty in the past with the children, especially [C], not being returned to Ms Grant in time for the commencement of the school term. Mr Terry appears to be easily influenced by things [C] tells him and tends to overreact to them. It is possible that [C] is playing off one parent against the other.
Both children have very clearly been influenced by both parents who have talked to them far too much about what is an adult matter. This has made it difficult for the children to work out who is telling the truth, who is not telling the truth and what and who they should believe. Both parents have behaved badly to the point of being like children fighting over possessions. It is evident to me that the children have been very much affected by this especially by Ms Grant’s fear that Mr Terry will abduct both the children. [B] appeared to be particularly affected by the possibility of conflict between his parents when Mr Terry told him about delivering the presents.
It concerns me that both children are aware of Ms Grant’s emotional state especially when they are with their father. They stated that “she struggles because she misses them and rings them up a lot when they’re away”. This is an unnecessary burden for children of their age to have to bear.”[3]
[3] See family report at page 11
As a result of her interviews with each of the parties and her observations of the children, Ms Cavanagh recommended that [B] and [C] continue to live with Ms Grant and spend time with their father in school holidays.
She made suggestions as to where the children should be exchanged between the parties and indicated that they should be returned to
Ms Grant, regardless of what [C] said to Mr Terry. Ms Cavanagh also wished the court to underline to the parties that they should each desist from talking, in a derogatory way, to the children, about the other parent.
These proceedings are designed to resolve the various disputes between the parties and make final arrangements for the parenting of [B] and [C]. When parents, who no longer live together, ask the court to determine where and with whom their children should live, it is the best interests of the child concerned that are paramount.[4]
[4] See Family Law Act at section 60CA
The legal principles to be applied and the issues in the case
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [B] and [C]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including grandparents and half-siblings [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)]. In this case, neither party raises any issues to do with neglect, abuse or family violence.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[5]
[5] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In his evidence and affidavit material, the father has raised the following criticisms of the mother.
·The children have been presented to him in torn clothing; clothing which does not fit them; and wearing shoes with holes in them.
·When the children have spent time with him during the holidays, the mother has failed to provide them with adequate supplies of clothing.
·The children have been presented to him “riddled with headlice”.
·The mother has failed to provide and ensure [B] wears glasses. This is significant because [B] suffers from dyslexia and has issued to do with processing information. The mother has also failed to ensure [B] attends tutoring classes, which have been recommended for him.
·The mother has failed to protect [C] from bullying at school and has ignored [C]’s complaints in this regard.
·The mother left [C] in the care of strangers, in August of 2007, when [B] fell ill. At the time, she did not pay proper attention to [C]’s care, particularly matters to do with her personal hygiene. The mother ignored [C]’s emotional distress at the time.
·The mother was lax in attending to [B]’s illness and took too long to respond to it properly. She also misled him about the seriousness of [B]’s condition.
·This mother has failed to provide him with information about the children’s progress at school and provide him with information regarding [B]’s special needs.
·The mother has failed to supply [C] with glasses, in contravention of an optometrist’s advice.
·The mother does not feed the children properly. In particular, she does not provide them with sufficient meat and vegetables but rather relies on unhealthy processed foods.
·The mother has spoken of him, in a derogatory manner, to the children.
·The mother has failed to involve the children in appropriate extra curricular activities. In particular she has not been supportive of [B] learning the cello and attending the chess club at his school.
·The mother has exposed the children to violent and unsuitable video material.
·The children are not allowed to telephone him.
·The mother has allowed the children to be cared for by Mr C, who by reason of his previous sexual conduct, is an unsuitable person to care for children of the ages of [B] and [C].
·Further, the mother has caused the children psychological distress by directing them to lie to him about the involvement of Mr C in their care.
·The mother has enrolled the children in karate, which is an unsuitable activity for them.
·The mother does not display affection towards the children, particularly she does not hug and kiss them.
·The mother has not included his name and details on the children’s school enrolment forms.
·Ms Grant has involved herself in Mr Terry’s relationship with his mother and has attempted to alienate the two from each other.
As previously indicated, Mr Terry has nothing of a positive nature to say about Ms Grant’s parenting of the children, other than that somewhat begrudgingly he acknowledges that she loves the children “in her own way”. A theme of his case is that Ms Grant prefers to spend money on herself, particularly in regards to shoes and manicures, rather than on supplying the children’s proper needs.
For her part, the mother raises the following criticisms of the father:
·He has failed to provide proper financial support for the children and is unreliable so far as child support is concerned.
·He has consistently failed to return the children, on time, following holiday visits.
·He manipulates the children emotionally by allowing them to play their parents off against one another.
·The mother asserts that the father constantly questions the children, when they are in his care, about her household arrangements and this is emotionally undermining for the children, particularly as the thrust of the father’s questioning is negative, so far as her care of them is concerned.
·The father is dismissive and irrationally critical of her parenting without any proper basis.
·The father was violent towards her, in the presence of [C], at the [X] Hospital on 12 August 2007.
·The father is unstable and aggressive.
·The relationship between the father and Mrs T is at times a volatile and violent one, to which the children have been exposed.
·The father has not cared for the children, when they have ostensibly been in his care during school holidays. Rather, he leaves this responsibility to Mrs T, preferring to go about his [animal] training duties.
·The father does not allow the children to telephone her, when they are in his care.
Given this synopsis of each of the parties cases, the following issues seem to arise regarding future arrangements for [B] and [C]’s care:
·Fundamentally, given the nature of the relationship between the parties in this case, is it likely to be in [B] and [C]’s best interests for their parents to have equal shared parental responsibility for them; [section 61DA(4)]
·If so, should the children live with their parents for equal periods of time or substantial and significant periods; [section 65DAA(1)(2) & (3)]
·
Given the recent development of Mr Terry’s plans to resume living in Adelaide; the likely distance between his home and
Ms Grant’s home and the children’s school; The uncertainty of where Mr Terry will be working in future; and the parties poor parenting relationship with one another; is either a shared care arrangement or a substantial and significant time arrangement reasonably practicable in all the circumstances of this case? [section 65DAA(5)]
·If it is found that a shared care arrangement or an equal time arrangement is impracticable, what is the best means of ensuring [B] and [C] have a meaningful relationship with each of their parents? [section 60CC(2)(a)]
·Have the children been exposed to neglect and abuse, in the mother’s care, as the father alleges? [section 60CC(2)(b)]
·Have the children been exposed to family violence, as a result of the father’s actions? [section 60CC(2)(b)]
·What are the views, if any, of the children regarding their future living arrangements? [section 60CC(3)(a)]
·What is the nature of the relationship each of the children has with their parents. In particular, what is the significance of the fact that the mother has provided the vast majority of the children’s care, in the considerable time since the parties separated.
·In this context, what are the likely consequences for the children if there is a dramatic change in arrangements for their care, at this stage; [section 60CC(3)(d)]
·Who of the parties is better placed to provide for the children’s emotional and intellectual needs? [section 60CC(3)(f)]
·Who of the parties is better placed to ensure that the children maintain an appropriate relationship with the other parent? [section 60CC(3)(c)]
·Who of the parties has shown a greater insight into the responsibilities of being a parent? [section 60CC(3)(i)]
·Is there any cogent evidence to suggest that the mother is the poor and neglectful parent, whom the father portrays?
·Finally and most importantly, what is the best outcome for [B] and [C]?
The documents relied upon
The wife relied upon the following documents:
i)two affidavits of herself filed on 29 January 2008 and 12 June 2008;
ii)an affidavit of her mother Mrs M filed 16 August 2007;
iii)an affidavit of Mrs C filed 17 January 2008;
iv)an affidavit of Mr C filed 17 January 2008;
v)an affidavit of Ms K filed 29 January 2008.
In the main, Mrs M and Ms K’s affidavits deal with what occurred at the [X] Hospital in August of 2007.
The father relied on the following documents:
i)two affidavits of himself filed 18 February and 14 March 2008;
ii)an affidavit of his wife, Mrs T filed 15 February 2008;
iii)an affidavit of his mother, Mrs T Senior filed 18 February 2008.
In addition, Mr Terry tendered an affidavit of himself sworn on the
16th June 2008, to which was attached many documents, which he had subpoenaed.All of the deponents referred to attended at court and each was cross-examined. As a result, I had an opportunity to observe each of them and form my own impression as to their veracity.
In addition, the family report writer, Ms Cavanagh was required to attend at court for cross-examination, in respect of her report, which was tendered into evidence.
Ms Cavanagh had a significant advantage over me, in this case.
She was able to see the children interacting with each of their parents and was able to hear each of them speaking with their own voices.
Accordingly, her opinion and evidence must be given a high level of regard by the court. Ms Cavanagh has been in private practice, as a psychologist for many years. A significant component of her practice concerns the preparation of family reports for this court and the Family Court.
In these reasons for judgment, findings of fact are made on the balance of probabilities, based on my observations of the parties, the witnesses concerned and a consideration of the overall evidence. In what follows, statements of fact constitute findings of fact.
The evidence
a) Salient findings of fact
The father was born in 1968. The mother was born in 1970. The parties met in late 1993
[B] was born in Queensland in 1997. [C] was born in South Australia in 1999. The parties first separated, in May 2001, when the father commenced a relationship with Mrs T. At the time, the parties were living in Adelaide.
After the parties first separated, the mother moved to Melbourne, with the children and lived with the father’s mother for a period of time. The mother says she was upset at the separation and had nowhere else to go.
The father remains preoccupied with the mother’s conduct at the time, particularly that she took the children to Melbourne, which he believes indicates her disdain for him and the importance to the children of their paternal relationship.
In July 2001, the parties reconciled, in Melbourne. In October of 2001, the parties returned to live in Adelaide. The parties finally separated in mid‑January 2002, when the mother discovered that Mrs T was pregnant. The children remained in the mother’s care and have done so ever since.
After the parties separated, the father lived in Melbourne for a time but returned to Adelaide in January 2003. In the intervening year, he did not see the children. He married Mrs T on 14 February 2004.
During 2003, the father began to spend time with the children on alternate weekends. He also took the children to Melbourne, for periods of up to a week at a time, to enable the children to spend time with their paternal grandparents.
In October 2003, after a “contact” weekend, the father refused to return the children to the mother. She was able to retrieve the children from him but was frightened and concerned by his behaviour, which she found threatening. As a result of the father’s behaviour, the mother sought legal advice. She was reluctant to provide the children to the father again, in the absence of specific orders.
In late January 2004, the mother was granted legal aid. The parties were directed to a legal aid conference and reached some agreement about future arrangements for the children’s care. As a result, consent orders were drawn up for ratification by the Family Court but the father failed to execute the document concerned, so no formal orders were made. However, nonetheless, the parties seem to have broadly followed their unratified agreement.
It is the mother’s case that, during 2004, there were problems with the father returning the children late to her care and him threatening to retain them. The father however did not institute any legal proceedings to ventilate any concerns, which he had about the mother’s care of the children. Similarly, the mother did not return to her solicitor because of her concerns about the father.
In early January of 2005, the father and Mrs T moved to live in [Y], Victoria. It is Mr Terry’s position that he was unable to be an [animal] trainer in South Australia but could in Victoria. Since this time, he has been a self‑employed trainer and owner of [animals].
It is the father’s case that the business breaks even. Certainly it has resulted in him being liable to pay only a minimal amount of child support. He and Mrs T own a property in [Y], Victoria, which is subject to a mortgage. In his evidence, he deposed that he spent between $150 and $200 per week in respect of the needs of his [animals].
Since the father moved to [Y], Victoria, the children have spent the majority of each school holiday with him in [Y], Victoria. The father concedes there has been not one occasion on which the mother has failed to allow the children to spend holiday time with him. In my view, this is highly significant.
I accept the mother’s evidence that the father consistently returned the children late to her, following these school holidays periods.
This, when coupled with the father's past threats to retain the children, has caused the mother to become anxious.
The father presents as resentful that he has had to do all the travelling between [Y], Victoria and Adelaide to facilitate the children spending time with him.
However, the fact remains that it was his decision to move to [Y], Victoria in the first place and the mother is not a person of strong financial means. Her main source of income has been social security payments, augmented by some part‑time work. As previously indicated, she receives little child support.
[B] suffers from dyslexia and a central processing disorder. These issues have resulted in him having learning difficulties, which require professional assistance at school. The mother arranged for [B] to see Ms O, an education consultant, in January of 2006 because she
[Ms Grant] was “deeply concerned about his [[B]’s] lack of progress at school”.[6] Ms Grant has arranged for [B] to see Ms O for tutoring sessions each week. The mother alone pays for the costs of [B]’s tutoring.
[6] See annexure A to the mother’s affidavit filed 29 January 2008
A letter dated 10 April 2008 indicates that [C] was taken for an eye examination on 6 September 2007. She was found to have a “mild short‑sighted prescription in both eyes” but no glasses were recommended as she was not having any problems with her vision. Otherwise her occular health was described as “good”.[7]
[7] See annexure D to the mother’s affidavit filed 12 June 2008
Between 1 December 2006 and 19 December 2007, Mr Terry provided the sum of $343.08 by way of child support for [B] and [C]. I have no reason to think that the father’s payment history was greatly different in the preceding years.
The mother has taken the children to a paediatrician, Dr M, for a general review. Dr M opines as follows:
“[B] is a healthy, tall for age, appropriately grown young man with a mild learning disability and with no evidence of physical abnormality on general review today. In addition, there does not appear to be any emotional maladjustment associated with the parental dysfunction.”
“[C] presents as a healthy normal nine‑year‑old. She is a bright outgoing child and she appears to be suffering no social maladjustment as a consequence of the parental dysfunction.”[8]
[8] See annexures B and C to the mother’s affidavit filed 12 June 2008
In January 2007, in her portion of the school holidays, the mother planned to take the children to Melbourne, to see their paternal grandparents. The father failed to return the children on time and, as a result, the mother lost money she had paid for airfares. She asserts that, at the time, the father had had an argument with his mother and accordingly wanted to scupper the time which had been allocated for the children to spend with Mrs T Senior.
I am unable to determine the truth or otherwise of this allegation. It is the father’s case that he did not return the children on time because [C] had disclosed to him that she and [B] had been left overnight, in the care of a Mr and Mrs C, persons whom he believes are unsuitable to provide care for children, particularly Mr C. In addition, a day before the children were due to return, [C] disclosed to him that she had been bullied at school and wanted to stay in [Y], Victoria.
The children were eight days late in being returned to their mother’s care. The father’s position was that he did not want to force [C] to return to Adelaide, against her will and feel that he “did not care about her and love her ...”. It was his position that the mother should come to [Y], Victoria in an attempt to negotiate with [C] regarding her return to Adelaide.[9]
[9] See father’s affidavit filed 14 March 2008 at paragraph 74-75
The incident of January 2007 was the last straw, so far as Ms Grant was concerned. She instituted proceedings in this court on 28 May 2007, proposing fixed periods for the children to spend time with their father during school holidays. She proposed that the father have the children for the majority of the short school holidays and for half of the Christmas/January school holidays in each year. Ms Grant also had proposals, for the father to spend time with the children, in the event that he moved to within 100 kilometres of Adelaide.
Notwithstanding the mother’s concerns, she agreed to the children spending time with their father in the April 2007 school holidays.
On this occasion, the children were returned to her care a number of days late. It was the father’s position that he had car trouble and he wanted the mother to meet him at a halfway point between [Y], Victoria and Adelaide.
The mother’s application was given a return date of 2 July 2007.
For reasons unclear to me, the documents had not been served upon
Mr Terry. The proceedings were accordingly adjourned, in his absence, to 20 August 2007. Mr Terry takes umbrage at this.
Again, notwithstanding her concerns, Ms Grant agreed for the children to spend between 6 July and 20 July 2007, in [Y], Victoria, with the father. About 10 minutes after the time the children were due to be returned to her, the father telephoned the mother and informed her that he had not as yet left [Y], Victoria, due to car trouble.
He proposed therefore that the mother travel to [Y], Victoria to collect the children. Eventually, it was agreed that the parties would meet at [V] to exchange the children. Obviously, once again, the children were returned late to the mother’s care.
Up until this stage, the father himself had made no application to the court nor formally raised any concerns he had about the mother’s level of care for either of the children. It was Ms Grant, who initiated proceedings because of her concerns about what she prescribed to be the father’s manipulative behaviour. In my view, the mother was entitled to have such concerns.
b) The parties themselves
Mr Terry was at a significant disadvantage in the hearing before me. He had to prepare and present his own case. My impression however is that he relished the opportunity, particularly because it gave him an opportunity to lay out publicly his long‑held grievances about
Ms Grant and hector her about them.
My impression of Mr Terry is that he fancies himself as a bush lawyer. I found him to be an opinionated bully, who is incapable of any self‑criticism or self‑analysis because of his conviction that he is always right. As such, he is intolerant and dismissive of anyone who does not share his views.
Mr Terry accepts that he has an assertive personality. The implication being that this was merely a quirk of his temperament, soon accepted by people, as they came to know him better. He described himself as “harmless”. I did not find him so in respect of his presentation towards Ms Grant and later to Ms Cavanagh.
His presentation to each of them was at times one of barely repressed fury. I accept Ms Grant’s assertion that she finds Mr Terry practically impossible to deal with. Certainly, he has not even the barest vestige of any empathy for Ms Grant, who has raised the two children concerned for the majority of their lives. Rather, Mr Terry has an openly expressed contempt for Ms Grant both as a person and a parent.
Mr Terry was capable of reducing Ms Grant to tears, on a number of occasions, during his cross‑examination of her, particularly in respect of what happened at the hospital in August of 2001. In answer to a question as to why she had brought these proceedings in the first place, Ms Grant deposed as follows: “I’m sick of you ... of you bullying me ... that’s why I want orders ... it’s about you not returning them [the children] on time ...”
In my view, in spite of ample grounds to do so, Ms Grant was not wholly dismissive of Mr Terry’s parenting of the children. Ms Grant said, again in cross‑examination, that she had “no problem with your [Mr Terry’s] parenting ... I know you [Mr Terry] love the kids ... it’s about structure.”
In my assessment, Ms Grant was genuine in these sentiments, which were not a result of any lawyerly or professional prompting. In addition, I thought Ms Grant was sincere, when she expressed the difficulty she had experienced in dealing with Mr Terry and her concerns, for the children, about his attitude towards her.
Ms Grant deposed that she found it difficult to deal with Mr Terry and that her every interaction with him was “like a fight”. In her evidence, Ms Grant pleaded with Mr Terry to focus on the children. In answer to one of his questions, she said to him, “It’s not about us.” Of the two parties, I thought Ms Grant more likely to have to have a superior level of insight in the needs of these children and the consequences for them of the extreme dysfunction between their parents.
It was Ms Grant’s perception that Mr Terry constantly manipulates the children, something which she found “very hard and upsetting”. In her words, she believed Mr Terry “questioned the children constantly about [her] and slandered [her] constantly to them”. I accept that this evidence is likely to be true.
On the other hand, I did not disbelieve Ms Grant’s assertion that she “never says a bad word to the children about their father”.
My impression of Ms Grant is that she is a gentle person, who deeply loves the children. She has shied away from any confrontation with
Mr Terry because she does not relish conflict, particularly with
Mr Terry.
I did not find Mr Terry to be either a credible or impressive witness. Certainly I found his largely self‑created hysteria, about Ms Grant and her poor parenting, to be singularly uncompelling, particularly because of the lack of any formal action, on his part, up to this stage, about it.
The fact remains that it was Ms Grant, who commenced these proceedings, largely because she found Mr Terry’s increasingly domineering and manipulative attitude towards her impossible to deal with, although she would have preferred to avoid court proceedings, if at all possible.
As is obvious from these remarks, I find that Ms Grant has a gentler, less assertive personality than Mr Terry. No doubt Mr Terry perceives Ms Grant to have a passive aggressive personality, which is impossible for him to deal with. Whether this is so is difficult to assess, other than to say that the parties struck me as being markedly unsuitable emotionally for one another.
Ms Grant feels she is constantly being dictated to by a person who is totally unsympathetic towards her and the difficulties she faces in life. Mr Terry feels that Ms Grant evades his legitimate and pressing concerns about the children. Sadly, the parties are incapable of finding common ground. They are chalk and cheese or perhaps, from their respective impressions of one another - a bulldozer and a sand dune. One always pushing, the other disappearing.
Ms Grant, no doubt, has many failings as a parent. Who is perfect? Perhaps the children’s diet is not always of the first order. Perhaps
Ms Grant has not always pursued every opportunity available for the children. But, in my view, if these be omissions on her part, they largely flow from the economic circumstances in which Ms Grant finds herself, which Mr Terry has done little to alleviate by his irregular and inadequate provision of child support.
Needless to say, of the two parents, I found Ms Grant to be the better historian in regard to prior arrangements for the care of the children. In my view, Mr Terry has provided no compelling evidence, which indicates that either child has been subjected to systematic neglect by their mother.
In particular, I can find no evidence that the mother has negligently ignored [B]’s learning difficulties or [C]’s optical needs. The letters from Ms O and Mr T, the optician demonstrate otherwise. Apart from the father’s assertion of these purported areas of neglect, there is no cogent evidence to support his claims.
Mr Terry and his mother are critical of Ms Grant for the type of diet provided to the two children concerned and their respective level of physical activity. In this day and age, these are common parenting concerns. Government campaigns and some media sources warn the general public of the dangers of “junk food” and physical inactivity, which can lead to obesity and ill health.
It may be that Mr Terry is more scrupulous than Ms Grant in respect of what he provides [B] and [C] to eat. However, there is no evidence that the health of either child has suffered, as a result of the diet which they receive in the mother’s household. Certainly Dr M did not consider it so. Again, I consider these easy complaints to make, particularly in the context of vitriolic parenting proceedings such as these. Neither Mr Terry nor his mother can be considered an objective and dispassionate witness.
Ms Grant concedes that both children have had headlice in the past.
It is her case that she has treated this condition appropriately and it is not indicative of a wholesale neglect, on her part, of the children’s hygiene. It is I think widely known that headlice are very common in school‑aged children and are highly contagious. Lice find clean hair as attractive as dirty hair. Of themselves, lice are not proof of neglect. Again, I think, I must be cautious about this complaint and making findings regarding its veracity.
It is also, I think, a common parental experience that children are frequently enthusiastic about a particular extracurricular activity, such as the playing of a musical instrument or participation in a sport, but later lose interest in that activity. As such, I do not think there is any great weight which can be attached to the father’s concerns about [B] ceasing to play the cello or attend the chess club. I do not consider that karate is an unacceptable activity for children. Nor do I find that the mother has attempted to prevent [C] playing netball.
c) Mrs T Senior
I did not find Mrs T Senior to be a helpful witness. I do not doubt her love for her grandchildren. My impression is that she has an axe to grind in these proceedings, depending on her perception of who of the parties she thinks will be more helpful to her in regards to spending time with [B] and [C] in future.
In the past, she has been supportive of the mother. Now, she is closely aligned with her son. I suspect some ulterior motive for her change of loyalties. As a result, I did not consider her to be a dispassionate or objective witness in respect of Ms Grant and her character.
As a result, I give little credence to Mrs T Senior’s allegations of poor parenting, on Ms Grant’s part, arising from the fairly brief periods, when Ms Grant and the children have been holidaying in Mrs T Senior’s home. Otherwise, Mrs T Senior has spent little time in the mother’s home and, as a result, has no extensive experience of how the mother parents the children directly.
I do not think the evidence in this case discloses any previous indication that the mother has been unwilling to allow the children to spend time with their paternal family in Melbourne. To the contrary, it seems that the mother has been highly supportive of these relationships, although she is now being criticised for taking advantage of Mrs T Senior’s kindness. I am concerned that Mrs T Senior’s hyper‑critical evidence, in respect of Ms Grant, has done great harm to the relationship between her and the mother.
d) What happened at the hospital
[B] fell ill on the evening of 6 August 2007, complaining of stomach ache and diarrhoea. The mother took him to her GP on the morning of 9 August. He prescribed antibiotics and bed rest. Ms Grant was advised to take [B] to hospital, if his condition worsened and to check him regularly for rashes.
Clearly, Ms Grant cannot be criticised because [B] fell ill. Nor, in my view, is it open to either Mr Terry or his mother to criticise Ms Grant for delaying in taking [B] to see her general practitioner. They are not in a position to assess now the mother’s response to [B]’s illness over this period. In any event, it is my impression that they both have a tendency to be wise after the event, particularly in the context of the current bitter dispute about arrangements for the care of [B] and [C].
The mother was concerned about [B]’s worsening condition.
She telephoned Mrs T Senior, who is a registered nurse, for advice and no doubt reassurance. Mrs T Senior is now critical of the mother for not proceeding straight to hospital with [B].
Again, I think this is probably being wise after the event. I can understand why Ms Grant would want to talk to someone, in whom she felt she could confide, about [B]. I have no reason to think that
Ms Grant was being dismissive about [B]’s illness or was in some way lackadaisical about it.
In any event, Ms Grant presented [B], to the casualty department, at the [Z] Medical Centre on Thursday evening, after speaking with Mrs T Senior. She also informed Mr Terry of [B]’s illness at this stage.
Mr Terry is critical of her for what he perceived to be a delay in this regard. I do not think that the delay was unacceptable, particularly given Mr Terry’s propensity to overreaction.
On Friday morning, [B] was moved to the intensive care unit at the [Z] Medical Centre. No specific diagnosis was able to be made and grave concerns were held for his wellbeing. As a result, he was transferred to the intensive care unit at the [X] Hospital. On Sunday evening, a diagnosis was made that [B] was suffering from influenza A, a strain of which had recently resulted in the deaths of several other children in Australia.
It is the father’s case that the mother misled him about the seriousness of [B]’s condition. I do not accept that this is the case. Rather, I find that the mother kept all members of [B]’s family fully informed about his progress in hospital.
I reach this conclusion because Mrs T Senior made arrangements to fly from Melbourne to Adelaide on Friday afternoon and Mrs M, the children’s maternal grandmother flew to Adelaide from Darwin. In these circumstances, given the urgency of Mrs T Senior and Mrs M’s response, there seems some substance to the mother’s allegation that the father preferred to attend a [animal training] meeting in [Y], Victoria scheduled for that Friday evening, rather than come immediately to Adelaide.
The father arrived in Adelaide on Saturday evening. By this time, the mother had made arrangements for [C] to be cared for by one of her friends. I do not think there is anything unacceptable about such an arrangement, given the crisis surrounding [B].
It is the mother’s case that Mr Terry was aggressive, in his attitude towards her, when he arrived at the hospital. Given his presentation towards her in court, I think it likely that the mother is telling the truth in this regard. The only explanation for the father’s behaviour was that he was overwrought and worried about [B]’s condition. However, I do not think this explanation necessarily excuses his behaviour.
It is the mother’s case that she had never seen the father so agitated.
It is also her case that he was extremely threatening towards her, to such an extent that he said that he would put her “six feet under and give [her] a bullet”. The father also demanded that [C] be brought to him.
I accept the mother’s evidence in this regard. Although the father was entitled to be worried about [B], I do not think his behaviour towards Ms Grant can be totally excused by the extreme urgency of the situation. Notwithstanding her understandable concerns about the father’s behaviour, the mother arranged for [C] to come to the hospital the next day.
It is the father’s evidence that he believed that Ms Grant was planning to go out socially, with a group of friends, on the Saturday evening.
He also asserts that the mother was more interested in having breakfast at McDonalds than staying close to [B]’s bedside. In my view, these are scurrilous attacks on the mother’s character and have no basis in fact.
The father’s behaviour at the hospital, on Saturday evening, was so extreme that the hospital security were called. Hospital security called the police, who directed the father to leave the hospital and not return until the next morning. In spite of the father’s aggression towards her, Ms Grant arranged for a telephone call to take place between [C] and her father that evening. The next morning, she arranged for [C] to be at the hospital.
The mother’s account of what occurred at the hospital on Saturday evening is supported by Ms K. She was required to attend at court for cross‑examination by Mr Terry. I found Ms K to be an impressive witness, who although aligned with the mother did not seem to me to be lacking in credibility. I accept Ms K’s evidence, particularly in regard to the father’s level of aggression, at the hospital, on the evening in question. I accept her evidence that Ms Grant left the hospital that night only to get “a good night’s sleep”, not to attend any social occasion.
Mr Terry returned to the hospital on early Sunday morning 12 August. As had been prearranged, the mother had organised for [C] to be brought to the hospital. It is the father’s evidence that he was displeased at [C]’s condition, particularly that her hair was unkempt and it appeared that she had not brushed her teeth because her breath was bad.
Mr Terry also complains about how [C] was dressed. I approach this aspect of his evidence, with some caution, for two reasons. Firstly, I am concerned that Mr Terry raises it to justify his subsequent conduct. Secondly, given the extreme state of his emotions at the time, precipitated by his expulsion from the hospital the previous evening, I am concerned at the possibility of his recollections being faulty.
In my view, the mother and Mrs M are likely to be far more reliable witnesses regarding what actually happened at the hospital that morning. Again, I accept that Mr Terry behaved in an aggressive and abusive manner towards both the mother and Mrs M.
In particular, the father was extremely aggressive about his perception that someone else was being given preference, over him, in respect of providing [C]’s care. I accept the mother’s evidence that the father grabbed [C] and carried her out of the hospital ward. I accept that this action distressed [C], who asked to be put down. Again, security staff were called, who in turn once again called the police.
The police apparently did not feel that they had any authority to prevent the father removing [C] from the hospital. In spite of requests from the mother and Mrs M to desist, the father was intent on removing the child.
I am concerned that the father had planned this removal of [C] the previous evening, as he had a friend waiting in a car outside the hospital. The removal of the child caused great distress, to all concerned, including [C].
In my view, the father demonstrated that he had no regard for anyone else’s feelings, other than his own at this time. I also find that the father verbally threatened the mother and Mrs M and pushed Mrs M out of the way. All in all, it was a distasteful incident, particularly whilst [B] was so seriously ill.
Thereafter, the father refused to tell the mother where [C] was. It is
Mr Terry’s position that [C] had told him that she was distressed at where she was staying, with the mother’s friends and he was only acting to secure her best interests. I do not accept that this was so.
In any event, it would have been both courteous and in accordance with the child’s best interests, if Mr Terry had discussed arrangements for [C]’s care directly with Ms Grant, before taking things into his own hands. By acting in the way he did, in my view, Mr Terry demonstrated both his contempt for the mother and a lack of insight into the responsibilities of being a parent, one of which is to discuss care arrangements for a child with the other parent concerned.
Thereafter, Mr Terry returned to [Y], Victoria with [C]. He enrolled her at the [M] Primary School, which is close to his home, on the following Monday morning. Needless to say, he did not consult with the mother about this enrolment.
The mother was compelled to institute urgent proceedings, in this court, on 16 August 2007 to secure the return of [C] to her care.
An order to this effect was made by me on 20 August 2007. It was ordered that [C] be returned to Ms Grant by 4 pm on 21 August 2007.[10]
[10] See Grant & Terry (supra)
During the proceedings of 20 August 2007, I authorised arrangements for the father to spend time with [B], prior to the return of [C] to
Ms Grant’s care. At the time, I was conscious that Mr Terry had not seen [B] and no doubt was worried about he had recovered from his serious illness.
Unfortunately, these arrangements did not go well because of the emotional displays of each of the parties and those associated with them. When Mr Terry, Mrs T and [C] arrived at the [W] shops, where it had been arranged the children would be exchanged, for obvious reasons, Ms Grant was anxious to see [C]. Mrs T locked the doors on her car to prevent Ms Grant’s access to her. Thus, there was another unseemly display, involving all three adults, in the presence of both [B] and [C].
Ms Cavanagh commented on the consequences of this incident for particularly [B], in her family report dated 9 December 2007 and in her evidence before the court on 1 July 2008.
e) The family report and the evidence of Ms Cavanagh
Ms Cavanagh presented as a gentle and intelligent witness, who was well aware of the care, incumbent on a court‑appointed expert, not to pass unnecessary or gratuitous judgment on any of the parents concerned in the case upon which she was asked to comment. Nonetheless, it was my impression that she was taken aback by the vehemence of Mr Terry’s cross‑examination of her and his obvious disdain for Ms Grant.
It was Ms Cavanagh’s frank conclusion that any shared parenting arrangement for [B] and [C] was untenable and likely to be highly detrimental to the children concerned, who were already exhibiting signs of emotional stress and maladjustment, as a result of an unacceptable level of parental conflict. I have no reason to disregard this conclusion, which I hold myself. Ms Cavanagh went as far as to say it would be “disastrous” for the children to be parented in a shared care arrangement.
Prior to becoming a psychologist - a profession she has followed for 13 years - Ms Cavanagh was a teacher. As a result, she has experience of working with children, who have been neglected in a variety of ways: hygienically, emotionally and in terms of their diet and other physical needs.
Accordingly, I accept that Ms Cavanagh has some expertise in determining whether children have been neglected or not. As such, I value Ms Cavanagh’s impressions of the children, formed during her assessment of them. I accept however that, for obvious reasons, both parties would want to present a good impression to Ms Cavanagh, whose involvement with the family was comparatively brief.
Ms Cavanagh’s impression was that [B] and [C] presented as very healthy, very clean children, who were obviously loved and well‑cared for. As such, she had no concern that their immediate physical and emotional needs were not being properly catered for, whilst they were in the care of their mother.
Although Ms Cavanagh’s impression must be regarded as a “snapshot”, I have no reason to discount it, particularly as in my view there is no other cogent independent professional evidence to indicate any neglect of these children.
It was Ms Cavanagh’s view that the parties had a highly conflictual relationship and great difficulty in communicating with one another effectively. She was also concerned that [B] was demonstrating signs of anxiety about the level of conflict between his parents.
Ms Cavanagh reported that Mr Terry had complained to her about the children’s physical condition, when they came to visit him, particularly the state of their clothes and shoes and the fact that they had headlice. Accordingly, Ms Cavanagh was well aware that Mr Terry alleged
Ms Grant was a poor parent.
It was Ms Cavanagh’s evidence that these were common complaints, in cases where there was a high level of conflict between the parties concerned. In such circumstances, she was concerned that these complaints may have been “blown out of proportion” by the father. She did not dismiss Mr Terry’s concerns about headlice but noted that this condition was “rampant” in school‑aged children.
In regard to Mr Terry’s complaints of ill‑fitting and old clothes being sent with the children on contact visits, Ms Cavanagh sagely observed that this too was a common phenomenon, particularly where one parent felt aggrieved that the other parent was not pulling his or her weight financially, regarding providing clothing for the children or was concerned that clothing would not be returned, after contact visits.
It was Ms Cavanagh’s opinion, after having observed the children with him, that [B] and [C] have a good relationship with Mr Terry and “clearly enjoyed seeing him and spending time with him”.[11] Similarly, Ms Cavanagh was of the view that the children have a close and loving relationship with their mother.
[11] See Family Report at page 10
As previously indicated, Ms Cavanagh was not aware, when she finished her report in December of 2007, that Mr Terry proposed returning to live in Adelaide and seeking a shared care arrangement in respect of the children. As a result of this change of circumstances, much of her oral evidence before the court was concerned with the following considerations: the viability of a shared care arrangement; the potential consequences of such an arrangement for the children; and the likely views of the children in respect of it.
Like Ms Cavanagh, I accept that individually both parents are committed to the best interests of both [B] and [C] and both provide a satisfactory level of care, for the children, when they are in each of their respective cares. Undoubtedly, both Mr Terry and Ms Grant love both children.
The central issue, in this case, is what are the consequences for the children of the parties’ disastrous and conflicted relationship with one another, which at this point seems irreparably dysfunctional. Can the relationship ever be impoved?
Mr Terry asked Ms Cavanagh if she believed that any form of parental counselling would ameliorate the current state of the parties’ relationship, the implication of his question being that he was willing to undergo such a course of counselling, whereas he doubted Ms Grant would be.
Ms Cavanagh vociferously stated her view that such counselling would be “a waste of time”. She said she was “sceptical” that there could be any change in the parties’ relationship with one another because neither was likely to change their attitude towards the other, particularly
Mr Terry in regards to Ms Grant.
I share Ms Cavanagh’s doubts about the bona fides of Mr Terry’s apparent willingness to attend parental counselling with Ms Grant, given the vehemence of his disdain for her. Overall, it was Ms Cavanagh’s opinion that both parties were significantly involved in the conflict between them, but it was being driven more by Mr Terry than Ms Grant.
In her report, Ms Cavanagh was somewhat critical of Ms Grant for exhibiting her anxiety to the children, regarding her fear that Mr Terry might not return the children to her, at the conclusion of each period of time they spent with their father. Given the circumstances of this case, Ms Cavanagh acknowledged that there was some objective basis for the mother’s fears in this regard, which could not be regarded as irrational.
Given these circumstances and the high level of dispute between the parties, Ms Cavanagh indicated that Ms Grant had “done well” in being able to encourage the children to have a good relationship with their father, as manifested by the fact that they had spent nearly every school holiday with their father. I agree with both these assessments.
It was Ms Cavanagh’s view that shared care arrangements most often were successful when the parents concerned formed an “alliance” with one another. In such circumstances, it was her experience that the children concerned usually did much better.
In this case, it was Ms Cavanagh’s view that Mr Terry and Ms Grant had diametrically opposing views about many things, if not most, to do with their children. In such circumstances, she believed it was highly unlikely that they would be able to form such an alliance with one another. I agree with this assessment.
The children indicated to Ms Cavanagh that they rarely saw their father, during their school holiday visits, because of his work commitments. They also informed Ms Cavanagh that the father and Mrs T have “really big fights”, one of these fights purportedly involving a knife. Ms Cavanagh did not think these disclosures were as a result of any adult prompting, given that they were issues raised spontaneously by the children.
Ms Cavanagh thought that the incident involving the knife, if it were true, was a very serious issue, particularly as [C] had said she had had to block her little brother’s eyes, so that he could not see what was happening. Ms Cavanagh did not think it was appropriate for children to be exposed to such levels of violence.
[B] also raised with Ms Cavanagh what had happened at the [W] shopping centre, when he was delivered to spend time with Mr Terry and [C] following the court orders of 20 August 2007. He reported that Mrs T had tried to lock the car doors, so that Ms Grant could not hug [C]. Later in the interview, [B] exhibited some anxiety about the possibility of his father coming into contact with his mother.
Ms Cavanagh thought this was unusual. It suggested to her that [B] was very aware of the conflict between his parents, which affected him personally. Overall she regarded [B] as a sensitive and emotionally‑mature child, who was somewhat traumatised.
This trauma and sensitivity was exhibited by him being worried about his mother, particularly the impact upon her of possible conflict with Mr Terry. Ms Cavanagh considered that there was a possibility that [B] was attempting to assume the role of the “man of the household” and adopt the role of protector of his mother. She thought this was an unnecessarily emotionally burdensome role for [B], given his tender years.
Ms Cavanagh was also concerned that the parties had not adopted a common approach to the issue of [C]’s alleged bullying at school. She was also concerned that [C] might be manipulating her father to secure outcomes which she preferred, particularly in regard to short‑term arrangements.
Ms Cavanagh thought it inappropriate for a child of between eight and ten years to determine what her care arrangements should be, particularly when she should be returned to one or other of her parents. She was critical of Mr Terry for suggesting that it was appropriate for there to be some sort of negotiation between [C] and her parents in respect of such an issue.
Certainly, Ms Cavanagh saw no evidence of low self‑esteem in [C] and no problems with the interaction of either child with their mother. Given the high level of conflict between the parties, Ms Cavanagh considered that exchanging the children at their school, in future, might be the best way of the children moving between their parents’ respective households.
The children were not asked, by Ms Cavanagh, what were their views regarding a shared care arrangement. However, [B] stated that he did not want to live with Mr Terry preferring to stay with him in school holidays, whilst [C] stated that she was happy with the current arrangements.[12]
[12] See Family Report at page 7
Later, the children said they would prefer to see their father on alternate weekends. It was Ms Cavanagh’s apprehension that the children wanted certainty and predictability in their arrangements to spend time with their father. Certainly she did not apprehend that the children wanted to spend significantly longer periods of time with their father.
As previously indicated, it was Ms Cavanagh’s opinion that a shared care arrangement for the children concerned was neither practicable, in this case, given the nature of the parties’ parenting relationship with one another nor likely to be in the best interests of either [B] or [C].
I accept Ms Cavanagh’s evidence in this regard.
f) Family violence
It is clear from the structure of the Family Law Act that the court must closely examine allegations of family violence, bearing in mind the serious consequences exposure to such violence may have for any children concerned.
Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” [section 4].
Accordingly, it is not necessary to demonstrate an actual injury on the part of a person complaining of family violence. Behaviour which causes fear or apprehension to a member of a person’s family is sufficient to constituted family violence.
Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force, on the other of a child’s parents, are not appropriate psychological role models for children. For obvious reasons, it is also potentially psychologically damaging for a child to be exposed to violence, involving his or her parents.[13]
[13] See In the Marriage of Patsalou (1994) 18 Fam LR 426
Both Mr Terry and Mrs T vigorously refute any suggestion that their relationship is one marked by family violence. Apart from what the children have told Ms Cavanagh and their mother, there is no evidence to refute what the father and Mrs T say about their relationship, which both assert is a happy and well‑adjusted one. In such circumstances, in my view, it would be imprudent of me to make any specific findings in this regard.
However, I am concerned that [B], in particular, is anxious about any possibility of his parents coming into direct contact with one another. It is also my finding that the father behaved in an inappropriate and violent way at the [X] Hospital and exposed the mother and children to family violence within the definition provided by the applicable legislation.
g) Mr and Mrs C
There was an atmosphere of tension between Mr C, on the one hand, and Mr Terry on the other, when the former came to give his evidence. Mr C has nothing good to say about Mr Terry, essentially asserting that he is a fraudster. Mr Terry suggest that Mr C is a child molester.
Mr C concedes that it in 2000 he was charged with five counts of rape. The charges seem to have related to a minor. Mr C was acquitted at trial. He vigorously asserts his innocence in respect of any wrong doing.
I am not in a position to make my own independent assessment of his guilt or otherwise. Rather, my function is to assess the degree of risk, if any, Mr C constitutes to either [C] or [B] and make orders commensurate with that assessment of risk.[14] At the interim stage, on the instigation of Mr Terry, I made an injunction restraining the mother from bringing the children into contact with Mr C. The mother wishes this injunction to be discharged. The father contends otherwise.
[14] See M & M (1988) FLC91-979
Mrs C deposes that she has been a close friend of the mother for many years. She is strongly supportive of Ms Grant’s parenting of [B] and [C]. She and Ms Grant wish there to be no impediment to them continuing their friendship with one another.
Ms Grant deposed that she had never allowed the children to stay overnight at Mr and Mrs C’s home. She said that occasionally, in the past, Mrs C had minded the children, at her (the mother’s) home, whilst she had been away. Ms Grant said that she had never placed the children directly into Mr C’s care.
In my assessment, the mother would not willingly expose either [B] or [C] to any potential risk of harm or abuse. Certainly, in my view, there is no compelling evidence to suggest that Mr C is a predatory person or more importantly that the mother consistently places the children in his direct care. Mr C’s presence in the children’s lives is incidental to the relationship of friendship between Mrs C and the mother.
In my view, I believe that I must be careful about invoking the injunction sought by Mr Terry, without a proper evidentiary basis to do so. The basis must relate to the degree of risk which Mr C constitute to the children and whether that risk is so great that it would be unacceptable for the court to countenance it. In this case, I do no think that the risk constituted by Mr C is of that magnitude.
Certainly, I do not think there is any proper basis on which I could conclude that Ms Grant is likely to willingly expose either of the children to harm or be negligent or lax in protecting them from any potential source of harm. For those reasons, I do not propose continuing the injunction which was earlier made.
Determining the children’s best interests - section 60CC
a) Primary considerations
The applicable legislation places two considerations in a position of pre-eminence – the need to protect the children concerned from harm, as a result of exposure to abuse and family violence; and the benefits of the children having a meaningful relationship with both their parents.
I am satisfied that the children have a meaningful relationship with both their parents. Certainly both [C] and [B] know each of their parents well and are comfortable spending time with them. The children have spent extended periods of time, with their father, during school holidays.
The mother’s proposal envisages the children continuing to spend time with their father during school holidays with the addition of alternate weekend periods, during term time. I am satisfied that such an arrangement will ensure that the children continue to have a meaningful relationship with both their parents. In this case, a more important consideration is how the children should best be protected from suffering psychological harm, as a result of the poor and dysfunctional relationship between their parents.
I am satisfied that the children have been exposed to an unacceptably high level of conflict between their parents. This conflict has been driven more by Mr Terry than Ms Grant and at times has involved family violence. As Ms Cavanagh puts it, both parties, so far as [B] and [C] are concerned, have been “like children fighting over possessions”.
In this case, I am concerned that Mr Terry’s preoccupation with a shared care arrangement is more reflective of his own emotional needs and a desire to secure an advantage over Ms Grant than any reflection, on his part, of what is likely to be best for [B] and [C].
I do not think that there is any cogent evidence currently available to the court to indicate that Ms Grant has either consciously or unconsciously subjected either of the children to abuse or neglect. These concerns have been ventilated by Mr Terry in the context of a vitriolic contest between him and Ms Grant for the “possession” of the children.
I consider Ms Cavanagh is likely to be the most reliable source of information about the physical and emotional wellbeing of these two children. She regarded them as being healthy, well‑cared for and well‑clothed children. Accordingly, I do not accept Mr Terry’s portrayal of the mother as a poor and neglectful parent.
Additional considerations
a) The children’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[15]
[15] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[16]
[16] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[17]
[17] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
Ms Cavanagh described both children as “highly articulate”, who had no trouble talking to her. [B] in particular was described as being emotionally mature. I am satisfied that the children are not in favour of any shared parenting regime. Rather, it would be their preference that arrangements are made which will minimise the possibility of parental conflict occurring in future. They would also prefer that arrangements for their care are predictable and certain, well in advance.
(b) The nature of the children’s relationship with each of their parents and significant others
I accept that the children have a close and loving relationship with each of their parents. However, undoubtedly, up to this stage, Ms Grant has done more of the day‑to‑day parenting of the two children concerned. It seems to me that the children have developed appropriately in her care.
I also accept that the children have a close relationship with their more extended family. It is to Ms Grant’s credit that the children have maintained relationships with their extended paternal family in Melbourne.
Mrs T is also a significant person in the children’s lives. Both children have expressed some reservations about her.[18] I also accept that the children are likely to benefit if they extend their relationship with their half‑siblings [D] and [E]. However, important as these relationships may be, I do not think they justify the shared care arrangement, which Mr Terry seeks.
(c) The willingness and ability of the parties to encourage a close and continuing relationship between the children and the other parent
[18] See family report at page 8 paragraph 5
This is a very important consideration in this case. I agree with Ms Cavanagh that it is greatly to Ms Grant’s credit that the two children concerned have maintained such a significant relationship with their father. In spite of the father’s failure to return the children on time and his manipulative attitude towards Ms Grant, she has ensured that the children have regularly visited [Y], Victoria to see the father.
Given the father’s essentially negative view about the mother, both as a parent and a person, I do not think that the children would have maintained such a strong relationship with their mother, if the shoe had been on the other foot and the children had been living predominantly with him.
The father sprang his proposal to return to live in Adelaide and for there to be a shared care arrangement for the children, upon the mother, at the last possible moment. In these circumstances, she has proposed that the children spend more rather than less time with their father, including time on an extended alternate weekend. In my view, this is to her credit.
(d) The likely effect of any change in the children’s circumstances, including the likely effect of being separated from one of their parents
The father’s proposal envisages a great degree of change for the children, who have predominantly been cared for by their mother since the time of the parties’ separation in 2002. Ms Cavanagh was of the view that it would be difficult for the children to assimilate a change of the magnitude proposed by Mr Terry, particularly given the extent of the parental conflict between the parties and the lack of any parenting alliance between them.
In my view, the matters which fall for consideration under this heading significantly favour the court adopting the mother’s proposals for future care arrangements for [B] and [C] and militate against any adoption of the father’s preferred outcome for shared care. It is simply too great a change for the children, particularly as they are not in favour of it.
(e) The practical difficulties and expense of the children spending time and communicating with each of their parents
The children currently live with their mother in [M] and attend school in [G]. The father proposes continuing to live at [F]. He is likely to have commitments in respect of the training of the [animals] in his care. He may have to travel regularly to [L].
In my view, practical issues will not significantly impact upon the mother’s proposals for the children to continue to live with her and spend time with their father on weekends and during school holidays. However, if the children live weekabout, with each of their parents, as Mr Terry proposes, it may well be difficult for him to get the children to school on time, given the distance between [F] and [G] and his possible work commitments.
(f) The capacity of the parties to provide for the children’s emotional and intellectual needs
(g) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties
These criteria are so closely linked that it is convenient to consider them together. In my view, in spite of the trenchant criticisms the father has made of her, Ms Grant has demonstrated herself as being able to provide for the children’s emotional and intellectual needs. Ms Cavanagh describes them both as being happy children. I accept that they are so. This must be largely due to Ms Grant’s parenting of them, as she has been primarily responsible for their care for the vast majority of their lives to date.
In addition, I do not accept that there is any cogent evidence to suggest that Ms Grant has neglected the children’s educational needs. [B] does have special needs, so far as his education is concerned. It was
Ms Grant who arranged for [B] to have extra tutoring, and it was she who bore its expense and agitated the Education Department to assist her in this regard.
Ms Grant is not well off financially. She has been criticised by
Mr Terry in respect of the quality of the food, which she provides for the children, as well as many other aspects of her parenting. However, over very many years, Mr Terry has provided her with the most limited of financial support.
In addition, in my assessment, there is evidence from which I can conclude that Mr Terry places his own emotional needs before those of the children. Of the two parties, I consider that Ms Grant has a better level of insight into the responsibilities of being a parent, particularly in terms of supplying their emotional needs.
The father’s currently extremely negative view of the mother and her capacities as a parent is unlikely to change in future. In my view, this view is artificially created and hysterical in tone. In practical terms, it acts as a significant impediment to there being any successful implementation of a shared parenting regime.
Mr Terry now seeks to assume the high moral ground over Ms Grant. He accuses her of profligacy in having her nails and hair done and the number of pairs of shoes she owns. However, at the same time, he has been content to offer her the most limited financial support, in respect of the children, preferring to pursue self-employment in the [animal training] industry. This has resulted in the bare minimum of child support being payable by him for [B] and [C].
So called “junk foods”, whilst also being the easiest foods to prepare are also cheaper than some fruits and vegetables. It is highly likely that, if the children do not have the optimal diet, it is as much a result of financial factors, in the mother’s household, as the mother’s alleged laxity in this regard. Such “junk foods” are also attractive to children. It is notoriously difficult for parents to resist the manipulations and fads of their children in respect of what they will and will not eat.
As such, I take, with a grain of salt, Mrs T Senior’s criticisms of the children’s diets, whilst they were on holiday, at her home in Melbourne.
One of the most important responsibilities of being a parent is to provide financially for one’s children. In my view, Mr Terry, whilst happy to criticise the mother, for what she lacks materially in her household, has been unwilling to provide her with any direct and reliable financial support to remedy these alleged failings. I am concerned that he manipulates his income to avoid child support. I found the evidence that he spends between $150.00 and $200.00 per week on his [animals] telling in this regard.
(h) The children’s maturity, sex, lifestyle and background
(i) Aboriginality
I do not think that I need to direct particular attention to any of the matters which fall for consideration under these headings.
(j) Family violence
(k) Any family violence order
For the reasons already provided, I consider that the father’s behaviour towards the mother has, in the past, amounted to family violence and this violence has occurred in the presence of the children, who have been detrimentally affected by it, particularly [B].
The father downplays this behaviour as being merely the outward sign of a forceful personality. I do not see it as such. Rather, I view it as the actions of a bully, who is determined to get his own way. This was most clearly manifested by his removal of [C] from the [X] Hospital, in the face of the mother and Mrs M’s obvious objections.
A person who behaves in such a way is not an appropriate role model for children, particularly in respect of how disputes are resolved. Ms Cavanagh believes that [B] may feel that he must protect his mother from this sort of behaviour, as he is the de facto male head of her household. This is likely to be potentially harmful for [B], particularly given Mr Terry’s dismissive attitude towards Ms Grant.
In my view, these dangers and the potential pressures on [B] will be exacerbated by a shared care arrangement. These are significant factors which militate against the court imposing such an arrangement on the parties and the children in this case.
(l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive, in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.
Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed. This can only lead to an escalation in the level of tension between the parties, which is already unacceptably high. These are not happy indicators, so far as the likelihood of there being further proceedings between the parties.
One of the ironies in this case is that, in spite of his considerable criticisms of Ms Grant, Mr Terry has not previously sought to bring proceedings between the parties. In addition, from Ms Grant’s point of view, it seems that she has been reluctant to come to court, in the past, in spite of her concerns that the parties needed arrangements for the care of the children to be made concrete between them.
It is possible that, now the parties are living in the same location, there will be more rather than less conflict between them. I do not know. The mother is somewhat dubious as to why the father has chosen to move back to Adelaide. She asserts that the father has had trouble in [Y], Victoria and has had to leave the town at short notice. The father denies that this is the case. This is yet another issue, which I cannot definitively resolve.
Notwithstanding the lack of previous litigation between the parties, the current level of tension between them is not a happy indicator, so far as the prospect of future litigation is concerned. However, at the end of the day, the factors which fall for consideration under this heading are not likely to be the pre‑eminent ones, so far as the best interests of [B] and [C] are concerned.
Conclusions
I do not think that it would be in the best interests of either [B] or [C] that their parents have equal shared parental responsibility for them. Firstly, I believe, on what I consider to be reasonable grounds, that the father engaged in family violence, against the mother, at the [X] Hospital on 12 August 2007.
Secondly, and more importantly, I do not think that such an outcome would be in the best interests of the children. The parties’ parenting relationship is so poor and acrimonious that they are simply incapable of reaching any joint decision about arrangements for the care of their two children.
Sadly, I have come to the conclusion that one parent alone should have authority to make major long‑term decisions in respect of the two children. Given the previous care arrangements for the two children, in my view, that parent should be Ms Grant, who has discharged the vast majority of the parenting responsibility for these two children over very many years.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
In this case, it seems inevitable that Mr Terry and Ms Grant will disagree about issues to do with their children’s education. They are unable to agree about the merits of something as comparatively trivial as to whether or not the children should do karate.
When there was a life‑threatening crisis involving [B], rather than focusing on his medical care, a vitriolic dispute arose: who should care for [C]? The father solved this issue by taking things into his own hands. This is the type of case, where one parent should have sole parental responsibility, for these types of issues, to avoid such conflict in future.
Accordingly, I propose to make an order that Ms Grant be responsible for making decisions about the children’s education and health needs. The father is fearful that the mother has plans to move with the children to Queensland, something she vigorously refutes. I do not propose to place in the mother the power to relocate the children, away from Adelaide, without the father’s consent or, if appropriate, an adjudication of a court.
Neither of the parties has raised any specific issues to do with the children’s religious or cultural orientation. The children have borne the surname Terry for all of their lives to date. The mother has no proposals to change this arrangement and nor should it be suggested that the order for parental responsibility, which is being made, entails such authority.
Pursuant to section 65DAE, parents do not have to consult on issues that are not major long‑term issues, particularly in the context of a child spending time with one of his or her parents. Accordingly,
Mr Terry will have authority to make day‑to‑day decisions for the children, during the many occasions when they will be in his care. Rather, to avoid the children being affected by unnecessary conflict, I have reached the decision that Ms Grant should be responsible for making health and educational decisions in respect of the children.
Notwithstanding the rebuttal of the presumption of equal shared parental responsibility in this case, I am still required to consider an outcome that would see the children spending either equal periods of time or substantial and significant periods of time with their father, given the overall structure of the Family Law Act. However, in this case, I do not think that either such outcome would be either in the children’s best interests or reasonably practicable.
As Ms Cavanagh has opined, the best chance for a shared care arrangement being successful is in circumstances where the parties are able to form an alliance with one another to parent their children cooperatively. In my view, there is absolutely no possibility of these parents forming such an alliance with one another. There are already signs that the children are bearing the emotional consequences of the high level of conflict between their parents.
Currently, the parties have no facility to communicate with one another and their capacity to resolve difficulties arising from the parenting of the children is nil. This situation is unlikely to change in the foreseeable future.
Accordingly, I have come to the view that the proposals made by Ms Grant are likely to be those best calculated to secure the interests of [B] and [C]. I reach this decision given my analysis of the evidence and the applicable factors which arise under section 60CC.
Certainly, they will ensure that the children continue to maintain a meaningful relationship with their father and indeed with their half‑siblings [D] and [E]. In my view, they are also the arrangements most calculated to protect the children from being unnecessarily exposed to further parental conflict.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 14 July 2008
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