GREEN and GREEN

[2012] FCWA 25

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GREEN and GREEN [2012] FCWA 25

CORAM: MONCRIEFF J

HEARD: 18, 19 & 20 MAY 2011, 23, 24, 27, 28 & 29 FEBRUARY &

1 MARCH 2012

DELIVERED : 1 MARCH 2012

FILE NO/S: PTW 4561 of 2008

BETWEEN: GREEN

Applicant Wife

AND

GREEN
Respondent Husband

Catchwords:

CHILDREN - with whom a child lives - commencement of week-about - work obligations of parents

Legislation:

Family Law Act 1975 (Cth) s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Anderson

Respondent: Mr R Bannerman

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Solicitors:

Applicant: DCH Legal Group

Respondent: Bannerman Solicitors

Case(s) referred to in judgment(s):

Nil

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WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I indicated at the conclusion of evidence and addresses that I had reached a certain decision on the rather limited issues that remained outstanding between the parties following some nine days of litigation between them in proceedings that were commenced in 2009.

2The parties, [Elizabeth Green], who is 45 years old, and [James Green], who is 47 years old, are the parents of [Oliver], born [in] June 2001, and [Justine], born [in] November 2004. The children are presently aged 11 and 7.

3The parties commenced cohabitation upon marriage in March of 1996. They separated in late 2007. Their relationship endured for some 11 years. At the time of the parties' separation, Oliver was six and a half and Justine was three, or thereabouts, dependent upon which date is taken for the date of separation. There appears to be some discrepancy within the file, although it appears to be common ground that the parties separated, it would seem, shortly after Justine's third birthday.

4The parties have been able to resolve many issues between them and that is very much to their credit. In particular, they have been able to resolve financial matters, matters relating to the payment of school fees and the school which the children are to attend in due course for their higher school education. They have resolved many aspects relating to parenting. Notably, they have quite appropriately reached agreement about equal shared parental responsibility.

5The parties then have concluded that I am to determine only several peripheral matters and two core matters to the conclusion of this dispute.

6It is common ground that the children should now commence to reside with the parties on what I might describe as a 6:8 pattern; that is to say that they will reside with the father for six out of every 14 days during the school term. The parties have otherwise agreed the disposition of time during the school holidays.

7There is some dispute between the parties as to the pattern of the time which the children are to spend with the father, and that is an issue which I must decide; namely, whether or not that pattern includes Monday night spent with the father or with the mother. This issue has assumed a significant portion of the evidence over the last two days when the issues became narrowed.

8The second issue that I must determine is when the 8:6 arrangement moves to a 7:7 arrangement - in other words, equal time - between the father and the mother. The father and the mother have agreed that ultimately the children should reside with each of them equally in terms of the number of days.

9The parties also agree the pattern that is to be used for the purposes of the seven‑day time and when it is to commence, however that yet again the issue of the Monday night looms large. I am accordingly not required to determine the pattern of

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the living arrangement, just merely whether or not the pattern should include Monday night and when the 7:7 as opposed to the 8:6 period should start.

10I invited the parties to hear the orders that I was proposing to make in this case, without the benefit of my delivering reasons and left it to the parties to consider whether they wanted reasons.

11This is a matter that has a significant history. There have been numerous witness affidavits filed on behalf of the parties, and in the first part of the trial the mother's witnesses were cross‑examined by the father during a time when he was not represented by counsel. At that time it was agreed - in my view, very sensibly - by counsel on behalf of the mother, Ms Anderson, and Mr Green that the examination of the principal witnesses - namely, the father and the mother - would abide Mr Green's opportunity to be represented by counsel, as he now is in the form of Mr Bannerman.

12The reason why I offered the parties the opportunity to decline receiving reasons for my decision was based primarily on the fact that these parties will of course continue to be the parents of these children for the rest of their children's lives. One likes to hope that statistics are correct and that the children will outlive their parents, but for so long as they are alive, the parents will forever be connected by their children.

13This is a matter where a single expert has been involved and provided two reports and answers to questions. We have had the benefit also of some specialist medical evidence from Dr Andrew Barker. There has also been admitted into evidence correspondence received from Dr Caroline Zanetti and from Carol Smith, a psychologist, who has assisted Oliver in overcoming a problem he has with toileting.

14I do not propose to address Oliver's problem in detail, because it is not particularly relevant to these proceedings, as it is quite clear, in my assessment, that the parties are able to more than adequately manage the problem, although there have been some hiccups in that and there has certainly been some appalling miscommunication between the parties in terms of the management of the relationship with the children altogether.

15However, I do not wish to dwell on what has been in the past, because one would hope that the parties could go forward without needing to feel vindicated in terms of a position I have adopted or need to contemplate why it was that their position was not accepted. However, of course it is the right of every litigant to know the reasons for a decision. It is the right of every litigant to have available to them an avenue of appeal. I have been requested to give the reasons that I had for making the orders that I did.

The Law

16At the very outset I have regard to the fundamental principles enshrined in the Family Law Act 1975 (Cth) in dealing with parenting matters and as set out in s 60CC.

60CC How a court determines what is in a child’s best interests

Determining child’s best interests

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

Primary considerations

(2) The primary considerations are:

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

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

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

Additional considerations

(3) Additional considerations are:

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

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

(i)each of the child’s parents; and

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

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

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

(i)either of his or her parents; or

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

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the

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child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f)the capacity of:

(i)each of the child’s parents; and

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

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

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

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

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

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

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

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

(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

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

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

(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or

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failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Considerations

17The primary focus of the Court is directed towards making parenting orders that serve the best interests of the children. The primary considerations that the Court must have in determining what is in the best interests of the children are focused upon the children maintaining a meaningful relationship with each of their parents and the children not being exposed to family violence in its broad definition.

18As I observed in the course of this matter, this case is refreshingly unusual in that I have before me two highly intelligent, sophisticated, motivated parents, who undoubtedly love their children and who are undoubtedly loved by their children, who are not engaged in family violence and who do not abuse substances or their children. In some respects that makes decision‑making the more difficult because, had the parties not been able to agree as they have in this matter, there may not have been that much between them to choose as to who would be the more suitable parent.

19I have to have regard to the nature of the relationship that exists between the parents and the children, this is a factor that weighs somewhat heavily in this matter and, regrettably, reflects very poorly upon the mother. There are aspects about the mother's presentation in this matter that I find somewhat troubling and have caused me some concern about the position that she has adopted over the two issues in particular that I am left to resolve.

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20The wife would urge upon me that I delay the move from 8:6 to 7:7 until the end of 2014, which effectively, because of the orders that are made by agreement as to the school holidays, would make it the commencement of 2015.

21The mother's counsel submits on her behalf that the mother is in a superior position in terms of “steering the ship”, which was the analogy that she used, having had the greater and primary care of the children effectively since their birth.

22There is little doubt that immediately post-separation the mother was the primary carer. There is some dispute about the level of the father's involvement during the time that the parties were together, although I accept for the most part of Justine's life the parties have been in disharmony. To date she has experienced some five years of that disharmony and it is to her credit that she has been able to maintain a loving relationship with each of her parents and not be influenced against either of her parents.

23The mother places significant store on the fact that Justine in particular would be more attached to her, Dr Watts recognised in his evidence and in his report that that may well be the case. Of course, such an outcome was really quite inevitable when one has regard to the history of this matter.

24Dr Watts described the mother as "high on control". I agree entirely with Dr Watts' observations having seen her in the witness box. I also agree, and find, that the mother presents as someone who overinterprets the children's actions and who attempts to overprotect them. Although that is not a criticism it is an observation. But it of course is ultimately one of those issues that can cause some difficulty in the future.

25Dr Watts also indicated that the mother overpathologises. What he meant by that, as I understand it, was that being a medical practitioner the mother tends to look more for a pathologically forensic reason for the children's behaviour and may perhaps overinvolve the children in receiving treatment.

26Yet there are some stark contrasts to that in terms of the mother's presentation insofar as Oliver's problem is concerned. The same became apparent when he was three and a half years old but he did not receive what would have appeared to have been appropriate medical intervention for some five and a half to six years, notwithstanding the mother's undoubted qualification as a medical practitioner. Whilst it is that she seeks to distance herself as a treating practitioner of the children, quite appropriately, it struck me as somewhat extraordinary that she would have allowed that period of time to elapse.

27In the meantime, Oliver was undergoing psychiatric assistance, although I accept the father's evidence that he was not fully aware of the circumstances of the involvement of Dr Zanetti. I also accept the father’s frustration when he approached Dr Zanetti and learnt of the way in which interviews were conducted and the significant level of involvement by the mother to the exclusion of the father.

28It strikes me as somewhat odd, I must observe, that Dr Zanetti would conduct herself in such a way, where she is dealing with issues relating to a child from a

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situation of an intact marriage to where the parties were separated, and to not seek involvement or any input from the other parent.

29I recently strongly criticised a medical practitioner for opining as to the desirability of one parent over the other where that medical practitioner had had no input whatsoever in a meaningful way as to the circumstances of the other parent. That case, however, involved significant allegations of entirely inappropriate behaviour and the consequences potentially were far more significant. However, in my view, the principle still stands.

30The other submission that is made on behalf of the mother is that she has a stronger bond with the children. The mother's reason for opining as to her stronger bond with the children appears to be based somewhat in an assumption related to the fact that she is a mother and proceeds almost along gender lines.

31It is unusual because, whilst her counsel is the first to adopt the father's acknowledgment of the mother's effort in terms of the maintaining of a relationship between the children and the father, no credit whatsoever was given to his input into the relationship with the children at any time in the mother's oral evidence or indeed in the presentation of the mother's case. The mother seeks to take, it would seem in my assessment of her, entire credit for this outcome.

32That is not to say that the father is without fault. Dr Watts, in his first report, opined that the father was a man with some narcissistic tendencies, he was a man who approached matters in a very analytical rather than emotional way and that he researched and held to his own views unless satisfied that they were wrong.

33Having regard to the letter that the father wrote to Dr Watts prior to his interview, one can understand why Dr Watts may have held that view. Although my impression of Dr Watts' evidence given yesterday was that in fact his view of the father was somewhat more tempered than that which he had expressed in his initial report. I would add the rider that, although Dr Watts may not have agreed with the assessments that the father made of the mother, particularly as to her depression and borderline personality disorder, he did extend that, from a lay point of view, they were conclusions that may be available to be drawn.

34One stark reality, however, exists in terms of the differences between the father and the mother. Whilst the mother holds herself out as being flexible, clearly she is not, whereas the father, in my finding, is and has been flexible on accommodating with arrangements, particularly insofar as Justine has been concerned. I accept that he has been sensitive to the fact that, for the most part of her life, she has lived in a regime where the parents were separated and the time that she has spent with the father has been dictated by some of the most restrictive orders.

35What is extraordinary about the position of the mother insofar as the promotion of the relationship between the children and the father is concerned is the position that was taken by her in her trial affidavit sworn in December 2010 and the position she took in terms of the orders that she sought, because in each case, until the commencement of this trial, the mother had sought to reduce the time that the children spent with the father.

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36In her affidavit at paragraph 517 she says:

I am concerned that Oliver will not make a recovery from his present troubling condition without some real change to the current living arrangements, if only for a period of some months when his condition can be monitored. During that time I propose that James see the children on Wednesday evenings but not overnight and for daytime on either Saturday after music or Sunday after mass and the children's sporting activities until 7 pm.

37The mother had sought to actively and significantly reduce the father's involvement with the children. She then goes on to say:

After Oliver's condition has settled, I'll propose the arrangement be set out as referred to above shown by the following schedule.

38Significantly, the schedule set out in paragraph 519 of her affidavit has the children spending each Monday night with the mother. It was indeed not until the commencement of the trial before me in May 2011, when the mother handed up in court an amended form 1, that the mother for the first time sought an arrangement where the children spent Monday with their father. I will return at a later point to a further consideration of the Monday issue.

39I am told by counsel for the mother that the orders of 12 January 2009 (which I set out earlier in these reasons) were consent orders when quite clearly they were not. The orders were made following a judgment of the Court delivered on 19 November 2008 and a minute sets out some orders that were by consent and others that were not.

40What is significant about those orders is the extraordinary disruption that arises in terms of the time the children spend with their father, in that the children are to be returned to their mother for music on Saturday mornings and for religious observance on Sunday. Even in May 2011 in her amended form 1 the mother sought a similar arrangement.

41The mother says that she did not realise that having multiple handovers would impact upon the children. Again I find that an extraordinary position or an extraordinary level of naivety for one such as mother, who is highly intelligent and having regard to her profession.

42I have concerns about the level to which the mother has promoted the relationship of the children and these concerns also impact in another area where I have to make a decision.

43It is very much, in my finding, to the credit of the father that he has maintained the relationship with the children that he has and with the degree of flexibility that he has, in recognition of the situation so far as Justine is concerned. Sadly, that has not been reciprocated. Frankly, when I consider the position that the mother took when Oliver was recently hospitalised and on three occasions requested to spend the weekend with his father, the refusal by the mother requiring “abiding by court orders” was nothing short of churlish and insensitive and, indeed, given that it was during the course of the trial, it is difficult to understand.

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44The other aspect of the mother's presentation in this regard that causes me concern involved representations that have been made to the Court on her behalf and also the fact that the mother who resists, interestingly enough, an order that requires her to communicate with the father in writing, neglected or chose not to tell the father that Oliver had been referred by his medical practitioner to Dr Ng, a psychiatrist, in response to some song lyrics that the child had written, the provenance of which is unclear.

45It was, on the one hand, suggested that they may have been copied out for a friend, although that was not an issue that was tested in evidence. Indeed, whilst the provenance is unclear, it is the reaction of the mother to those words that is troubling. Upon being presented with some song lyrics which involved concepts of death, the mother's response was to, firstly, speak to a teacher; secondly, to raise the matter with Dr Lau, the general practitioner; thirdly, to make contact with Dr Ng's rooms following Dr Ng providing a referral and then a week later to instruct her solicitors to write and tell the father. The correct order, of course, would have been the father first, referral last.

46Similarly, Dr Watts made recommendations that the mother should undergo some counselling in terms of difficulties he perceived in her parenting. The mother's response to that was to speak to some neighbours, some parents at school and some fellow parishioners. Dr Watts in his evidence considered that somebody of the ilk of Carol Smith would have been more appropriate, as do I. However, the mother chose not to follow that path and it's inexplicable as to why.

47There are further aspects of the mother's conduct, in terms of the involvement of other individuals in her concerns who cannot offer professional assistance, that are somewhat troubling, although of course I am not in a position, because there was no evidence about it, to assess the degree of involvement of other parties.

48After Dr Watts' first report was published, there was a recommendation that Oliver, who had ceased being seen by Dr Zanetti, be referred to Carol Smith. There is a suggestion that the father tore up a letter to that effect. On the state of the evidence, I am unable to find whether that is the case or not, although it appears to be acknowledged that at least on one occasion he did say to the mother by way of SMS that she “is the one who needs a psychologist”.

49What is troubling is that the mother's solicitors then wrote to the Principal Registrar on 10 September 2010 making what I consider to be exaggerated claims about the father's lack of involvement with the child. In particular, DCH Legal Group wrote on behalf of the mother, and, one assumes, on the mother's instructions:

We are instructed by our client that the child Oliver has not submitted homework for the past eight weeks. Our client has recently experienced serious illness, and this has impacted on Oliver, as well as his ongoing problems with his toileting. Our client's instructions are that she understands that the father is not giving Oliver his bowel preparation and has not done so for four months.

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50I point out that the latter proposition was not put to the father in his cross‑examination. Insofar as Oliver's homework is concerned, it is plain, when one considers the orders of 12 January 2009, as set out below, that Oliver was spending but one school night during the week with his father and otherwise his time was limited.

1.By consent, the child Justine spend time with the father for periods that the child Oliver spends with him, as set out in Annexure "A" to the affidavit of the husband filed 13 November 2008 as set out as follows:

(a)that the husband spend time with the child Oliver during school term each Wednesday from the conclusion of school at 3:00pm until the commencement of school at 8:15am each Thursday; and

(b)that the husband spend time with the child Oliver on a four week cycle on weeks as follows:-

(i)weekend one, no time except in telephone contact;

(ii)weekend two, from 2:00pm Saturday until 8:30am Sunday and from 1:00pm Sunday until the commencement of school on Monday at 8:15am;

(iii)weekend three, as per weekend two; and

(iv)weekend four, from the conclusion of school Friday at 3:00pm to the commencement of school Monday at 8:15am and that the wife have no contact save for telephone contact

save time on Sundays conclude at 8.00am in paragraph 1(b) and it is agreed each parent shall have telephone contact with the children when in the care of the other parent.

2.Time to be spent by the father with the child Justine be staged in as follows:

(c)each Wednesday overnight from 19 November 2008 and daytime on weekends two and three only commencing 22 November 2008;

(d)overnight time commence in addition on 27 December 2008;

(e)from the weekend of 17 January 2009 (being weekend two in the cycle);

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(f)thereafter in accordance with arrangements for Oliver;

(g)pick up occur at school or day care where practicable provided that (not by consent) should the child display distress (beyond normal transition anxiety) time will not be taken.

3. By consent:

(a)the husband's time as provided for above, be suspended and the wife's annual holidays be taken from 15 December 2008 to 22 December 2008 and 14 January 2008 to 28 January 2009;

(b)the husband do have time with Oliver and not by consent and the child Justine for his holiday period from 26 December 2008 to 1 January 2009; and

(c)the husband's time with Justine be suspended on the weekend of 3 January 2008.

4.By consent the husband do have holiday time with Oliver for ten days before or by August 2009, the husband to advise the wife as soon as practicable as to when the period is to be taken.

5. By consent:

(a)the husband's time with Oliver and Justine referred to in paragraph 1, be suspended on Christmas Eve 24 December 2008 until 10.00am Christmas Day and the husband do have time from 10.00am until4.00pm Christmas Day; and

(b)in 2009, the husband have time with the children from 4.00pm Christmas Eve until 10.00am Christmas Day and from 4.00pm Christmas Day until 10.00am Boxing Day and the wife do have the children from 10.00am until 4.00pm Christmas Day 2009 and this pattern do alternate each year thereafter.

6.By consent each parent do advise the other in the event a child is ill and the parent who does not have the care of the child be permitted to visit the child.

7.By consent each parent do advise the other should they leave the metropolitan area and provide a contact phone number to the other parent.

8.The proceedings otherwise stand adjourned generally, provided that should neither party seek re-listing of the matter within a period of 12 months from the date of these orders, the proceedings will otherwise be dismissed and should the parties wish to institute proceedings (that are not a subject of exemption) assistance from a

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Family Dispute Resolution Practitioner in mediation services will be required to be sought.

51The father, during the course of his cross‑examination on more than one occasion, and perhaps inappropriately, sought to lay the blame for some of the dispute between the parties at the foot of the mother's solicitors. As I said, one assumes that this letter was written on the mother's instructions, but indeed, when reading correspondence of that nature, it would seem that the natural inference from the words used was that the father was to blame.

52It is disappointing. It is disappointing because, as I mentioned at the commencement of these reasons, these parties have properly accepted the responsibility of sharing equally the parental responsibility for these children. They need to find a basis for communication between them. They need to learn to respect each other and each other's talents.

53Sadly, I do not think that point has fully arrived, but I would say that, although the mother seeks to present as doing so, she does not to the same degree as the father. She is far less likely to recognise positive qualities in the father than he is in her, notwithstanding his rather broad suggestions about concerns to do with her psychiatric health. Happily, the basis for those was not explored in the limited issues that needed to be considered, but I do have regard to Dr Watts' observations about the father's lay diagnoses.

54How do these findings then translate into the decision that I must make about when the children move to equal time with their parents? Dr Watts was of the view that, if the equal time was set up on a 5:2, 2:5 arrangement, then Justine would be in a position of being able to cope probably towards the end of this year. For her, of course, it is a big transition from what she has experienced in the last period of time since the parties have separated. However, the transition to equal time from 8:6, given the arrangements that I have indicated I will order, is a relatively small one and one that slots easily into the arrangement as it will be under the 8:6.

55The other concern that I have will be the mother's resistance to that change, notwithstanding the fact that has the dimension effectively of one day a week. My view is that the change should occur after a period of 18 months. That gives the parties and the children the opportunity to settle down in an environment that is post‑litigation. As I have already observed, the greater part of Justine's life has been involved in litigation between her parents, or at least a post‑separation situation.

56The aspect then of course that needs to be considered which has a knock‑on effect in terms of the arrangements is the Monday night. The mother, until 18 May 2011, had sought that the children spend every Monday night with her. The mother undertakes surgical assisting on a Monday and her evidence was that she can be home quite late in the evening - as late as 11.30 pm, or indeed later on some occasions, as a result of this.

57It has been her case in the past that she has been assisted by her family. Indeed her brother gave evidence of his willingness to assist and of assistance that he has given in the past. There was no suggestion on behalf of the mother that that assistance

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would not continue and indeed it was her evidence that she would continue to have the support of her family in the care of the children.

58I appreciate, particularly given the mother's recent health problems, that maintaining her surgical assisting is vitally important to her on several levels: financially, professionally and no doubt from the point of view of her own self‑respect given her profession.

59The father is employed as an analyst. His background is in economics. He has been so employed since 2006. The father's employment centres around two particular events. One is the production of a newsletter which is produced each Wednesday. The other is a meeting that precedes the publication of that newsletter on a Wednesday morning. Given that the parties reside in [Western Australia] and the Australian Stock Exchange works on eastern time, either daylight or standard, the meeting, which must precede the market opening on a Wednesday morning, occurs at either 7 am [WA] time in winter or 6 am [WA] time in summer. The father has to meet his deadlines in terms of the preparation of his report and his newsletter.

60He quite properly points out that the market conditions, that is sharemarket conditions, can change almost instantaneously as a result of world economic events and catastrophic events, such as the recent Japanese tsunami. I have no doubt, having seen the father, that he takes his work very seriously and that he holds himself to a very high standard in his analysis not only of the market but all things.

61It is remarkable, more remarkable given the submission made by the mother's counsel that the father is in a high‑stress industry with people being laid off that the mother would seek to create a situation that may be disruptive to the father's employment but more so disruptive to the children.

62The mother's position is, as advanced by her counsel in cross‑examination and in submissions, that the father could make arrangements for the children through perhaps community daycare so that he could attend work on Monday, Tuesday and Wednesday. This would effectively mean on Wednesday mornings during the summer the children would be presumably being put into family daycare sometime around 5 am in the morning and getting up at 4.30 am. On the other hand, the mother's position is that the children be looked after by her family for one evening.

63Given the mother's attitude to the father and given the mother's attitude generally towards her children and the necessity of the mothering aspect of that relationship and the bond with parents, I find it extraordinary that the mother's proposition is based on a premise of the children being placed with a stranger for, in all probability, after school Monday, potentially before school Tuesday and after school Tuesday and from the wee small hours of Wednesday morning.

64The mother, in my finding, is placing her interests and her convenience above the interests of the children and it is in stark contrast with the balance of the presentation of her case.

65The other point is that not only of course do parents seek to have quantity of time with their children but they seek to have quality of time with their children. Of that there is no doubt. There is no doubt also, as indeed asked by Ms Anderson, that

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the father's position when preparing a newsletter and for his meeting would be high stressed, as she observed is the nature of his job. It would be high stress, in my finding, that would run over the two days in question leading up to the Wednesday morning.

66I have no doubt that the father's commitment, although it is suggested that he could do it while the children were there, to the preparation of his report must impact upon his qualitative availability to the children during the time that they are with him. The father's time therefore - but, more importantly, the children's time with their father - is effectively reduced by two and a half days out of six. Whereas if the mother is to have the children on a Monday evening it will maintain an arrangement with which the children have been entirely comfortable.

67There is no reason, in my finding, that serves the interests of the children to warrant a change in that arrangement, given the parties' respective occupations and given the history thereof.

68As I said, I find that the position adopted by the mother is purely to serve her convenience, not the welfare of the children, and it is for that reason that I have made the order that I have.

69The balance of the matters that I have to consider under s 60CC are really encompassed in the remarks that I have made, because many of the considerations that may otherwise apply to the balancing of what are the interests of the children fall away in this case because of the nature of the parents.

70What troubles me, however, in my final remarks in this matter, is the way in which the mother conducted her case. It was conducted on an entirely negative premise. Indeed, when one has regard to some of the cross‑examination of the father and some of the material that was said to be relevant in the course of these proceedings, an observer could have formed the view that it was the mother's case that the children should not spend any time with their father. Yet, in contrast, we have a situation where the starting point of the conclusion of these proceedings is that the mother consents to the children spending six days with him, with an alternative movement to equal time. It is an extraordinary juxtaposition and a disappointing one.

71I express the hope that the parties can move on positively from this point. I regret that it has been necessary for me to deliver the reasons that I have. I offer no criticism of the mother's request for reasons. She is perfectly entitled to them, and indeed it may well be that an appellate court finds that I have fallen into error, if that is the line she wishes to pursue. But there have been factors about this matter that have troubled me, particularly in her presentation before me as a witness.

72There is one other aspect that I feel I should mention, and that is the issue of communication between the parties. The mother seeks the opportunity to communicate by telephone. The father wishes communication to be in writing. The father is perhaps far more clinical in his approach to things and a little more pedantic than the mother, although only to a small degree in the ultimate.

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73But my concern is that I have grave reservations about the effectiveness of any verbal communication between the parties in resolving matters between them other than in an emergency situation.

74I had the opportunity of observing the mother during her cross‑examination at some length. What was abundantly clear to me was that, if the mother had a proposition that she wished to advance, she ceased listening to what was being said to her. There were many occasions when Mr Bannerman, counsel for the husband, asked the mother a question which was not a difficult or a complex question, but it was quite clear that the mother was in fact seeking to answer something completely different which she perceived would advance her position.

75I appreciate that a court situation is an artificial one. However, in dialogue between the parties in attempting to resolve matters such a posture would be extremely annoying and frustrating and would be likely to lead to disagreement.

76Of course the parties can change the arrangements between them by consent. However, I consider it appropriate that there be an exchange between them in writing so that there is no misunderstanding about what propositions are being put and about what propositions are being responded to.

77I have some suspicions that I may have touched upon one of the problems that existed between the parties during the course of the marriage, because it is abundantly clear that communication between them is not effective. It is for that reason that I consider that it is more likely to produce a harmonious and predictable outcome if the parties are to communicate in writing rather than by telephone.

78The balance of the orders that are made by consent are very much to the parties' credit and reflect ultimately a recognition on behalf of the parties as to the value of the other parent. It is a great shame that that value was not a little bit more apparent during the course of the history of this litigation and in the presentation of the mother's case.

79I note counsel will prepare a minute accordingly.

I certify that the preceding [79] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate