Grey and Lake

[2012] FamCA 982

FAMILY COURT OF AUSTRALIA

GREY & LAKE [2012] FamCA 982

FAMILY LAW – CHILDREN – PARENTING

Family Law Act 1975 (Cth)

APPLICANT: Ms Grey

RESPONDENT: Mr Lake

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11392 of 2011

DATE DELIVERED: 27 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Tolhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: David Tomkin & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean & Park

Orders

1. All previous parenting Orders are discharged as and from the commencement of the orders referred to in paragraphs 2 and 3 below.

2. The father spend time with the child B born … July 2011:

   (a)Each alternate Saturday from 12.00pm (or at the conclusion of B's extra-curricular activity) until 5.00pm commencing on the last Saturday in December 2012 for each alternate Saturday until the commencement of the 2013 school year;

   (b)Commencing on the first Saturday in February 2013, on alternate Saturdays from 9.00am until 7.00pm.

3. The father spend time with the child C born … October 2003 during school term on alternate weekends from after school Friday until the commencement of school Monday coinciding with the weekends spent with B pursuant to paragraph 2 hereof save that if the Monday is a gazetted public holiday in Victoria, the Monday is extended to the commencement of school on the Tuesday.

4. For the purposes of the children's time with the father during the school term holidays and long summer school holidays, the holidays will be deemed to commence on the first day after the end of the school term and to conclude on the last day before the commencement of the next school term and for that purpose, the handover time to the father will be 12 noon on the middle Saturday and shall conclude at 5 pm on the night before school for C resumes.

5. Commencing from July 2013, the parents do all such acts and things as are necessary to undertake counselling with Mr D, on a reportable basis, to discuss any extension of the father's time with B, and the cost of the counselling be borne equally between the parties.

BY CONSENT OF THE PARTIES:

1. Subject to paragraphs 7 and 8 hereof, the parents have equal shared parental responsibility for the children.

2. Subject to paragraph 8 hereof, the mother have sole parental responsibility for decisions relating to the health and education of the said children, including their enrolment in extra-curricular activities.

3. The Mother:

   (a)Apprise the father and keep him apprised in writing, of any decisions made in exercise of sole parental responsibility pursuant to paragraph 7 of these Orders, as soon as practicable after the making of such a decision AND the Father be entitled to communicate with the children's treating doctors, school staff or other professionals involved in the welfare of the children to receive information about the children's welfare and progress;

   (b)Immediately authorise and keep authorised any school in which the children are enrolled to provide to the Father, at his expense, copies of all school notices, reports, correspondence, photographs and other communications usually sent to parents.

4. The children live with the mother other than for the periods with the father set out in these orders.

5. The father spend time with B otherwise as follows:

   (a)       On B's birthday:

   (i)If on a school day, from after school until 6.30 pm; or

   (ii)If on a non-school day from 11.00 am until 2.00 pm;

   (b)       On the father's birthday:

   (i)If on a school day from after school until 6.30 pm; or

   (ii)If on a non- school day from 11.00 am until 2.00pm;

   (c)On Father's Day, if falling on a non-contact weekend from 10.00am until 5.00pm;

   (d)As otherwise agreed between the parties in writing between themselves or pursuant to paragraph 4 hereof.

6. The father spend time with C otherwise as follows:

   (a)       On Wednesdays from afterschool until 7.00pm on the proviso that if the father returns the child more than 15 minutes after the conclusion time provided for in these Orders or other conclusion time agreed between the parties, in writing, prior to the commencement of the visit, then the father's next scheduled visit with C on a Wednesday pursuant to these Orders will be suspended on that occasion.

   (b)       For the second half of the school term holidays;

   (c)       For one half of the long summer school holidays as follows:

   (i)The first half in each even numbered year;  and

   (ii)The second half in each odd numbered year.

   (d)       On C's Birthday:

   (i)If on a school day, from after school until 6.30 pm or

   (ii)If on a non-school day from 11.00 am until 2.00 pm;

   (e)       On the father's Birthday:

   (i)If on a school day from after school until 6.30pm; or

   (ii)If on a non-school day from 11.00 am to 2.00pm;

   (f)On Father's Day if falling on a non-contact weekend from 6.00 pm on the Saturday prior to Father's Day until the commencement of school on Monday;

   (g)From 11 am on Christmas Day until 11 am on Boxing Day in 2013 and each alternate year thereafter and from 11 am on Christmas Eve until 11 am on Christmas Day in 2012 and for a similar period in each alternate year thereafter;

   (h)By telephone on Tuesday evenings between 6.30pm and 7.00pm with the father to facilitate the communication by placing of the telephone call; and

   (i)        As otherwise agreed by the parties in writing.

7. Each parent facilitate either child’s wish to telephone the other parent at any reasonable time.

8. The father's time pursuant to these Orders be suspended as follows:

   (a)       On the mother's birthday:

   (i)If on a school day from after school until 6.30pm; or

   (ii)If on a non-school day from 11.00am until 2.00 pm;

   (b)       On the children's birthdays:

   (i)If on a school day from after school until 6.30pm; and

   (ii)If on a non-school day from 11.00am until 2.00pm;

   (c)In odd numbered years from 4.00pm Christmas Day until 4.00pm on Boxing Day; and

   (d)On Mother's Day from 6.00pm on the Saturday preceding Mother's Day.

9. The parents do all such acts and things necessary to continue B's therapy with psychiatrist, Dr E, including attending appointments with Dr E, ensuring B's attendance at his appointments and meeting any reasonable and lawful conditions set by Dr E for B's treatment.

10. The Independent Children's Lawyer be permitted to provide to Dr E and Mr D a copy of the family reports prepared by Dr G.

11. Each of the mother and the father, their servants and agents be and are hereby restrained by injunction from:

    (a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; or

    (b)       discussing the proceedings,

    with, to or in the presence of the said children and from permitting any other person to do so.

12. Each party advise and keep the other party advised of their residential address and contact details including but not limited to telephone landline and mobile numbers, email address and postal address.

13. Each parent immediately notify the other in the event of an emergency affecting either of the said children.

14. For the purposes of changeovers, the father collect and deliver the children to and from the street entrance to the mother’s home.

15. All applications be otherwise dismissed.

16. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the annexure hereto relating to Parenting Orders – obligations, consequences and who can help, the particulars of which are included in these Orders.

NOTED that publication of this judgment by this Court under the pseudonym Grey & Lake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11392  of 2011

Ms Grey

Applicant

And

Mr Lake

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This parenting dispute concerns B aged 11 and C aged 9.  Their parents Ms Grey (“the mother”) and Mr Lake (“the father”) have been embroiled in proceedings for a year.  During that year, there had been 13 court hearings about varying matters. 

2. The orders I propose to make supported by these reasons, must bring the matter to an end for the sake of these children.  Apart from anything else, time is now cutting savagely into their troubled childhood.

3. Clinical psychologist Dr G observed that the history of the parents’ relationship indicated that the conflict between them was unlikely to cease.  Notwithstanding the consensual nature of much of the orders here, the affidavit material of both parties is replete with complaints about the nature of the relationship between them and the parenting skills each has.

4. It is not all doom and gloom however because to their credit, the compromises in relation to significant issues were reached leaving only modest (but important) issues to be determined. 

5. Justifiably and sensibly or otherwise, the father has stepped back from his role as a parent, which, until recently, was six nights out of fourteen.  He expressed reservation about whether the mother would recognise his role in the future.  Time will tell.

6. In opening remarks, the father’s counsel said that his client wanted an opportunity to attend upon the health professionals of the children and in particular the forensic psychologist Mr D, to decide whether an application should be made to the Court to vary the compromises now to be embodied in the orders that I make.  Indeed, one of the issues to be determined is when the parties ought to recommence their attendances upon the forensic psychologist.  All of that, as I observed in the courtroom, smacks of the point that Dr G was making to which I have just referred.  I expressed then and now repeat, I was not prepared to treat these as interim orders whether this is a compromise or not.  These children deserve better than that.  They deserve the opportunity to be free of the anxiety arising from their parents’ dispute.

7. The four issues for determination were:

   (a)should the time of B with his father be on Saturday or Sunday;

   (b)should the contact time be extended to a Tuesday if the Monday is a long weekend;

   (c)how should the father’s time during the school holidays be defined to avoid conflict; and

   (d)should the parties go back to Mr D in May 2013 or July 2013?

8. The material relied upon by all parties was their respective trial affidavits as well as the affidavit of Dr G who was the witness of the Independent Children’s Lawyer.  My determination in this case is based upon that evidence.

9. Each counsel agreed that I should determine the defined issues on submission without cross-examination of witnesses.  It is important therefore that I endeavour to avoid findings of fact on controversial evidence.  Each counsel succinctly put the case for my consideration in respect of those issues above.  The reasons that follow are my determination.

10. The background of the matter is that the father is self-employed and aged 36 years.  He is now living with his partner and there are no children of that relationship. 

11. The mother is engaged in home duties and has remarried.  Together, they have a child F who is now almost three years of age.

12. The parties’ relationship commenced in the middle of 1999 and they started living together in June 2001 shortly before B was born.

13. The mother asserted that the relationship was conflictual.  Separation occurred in October 2005 after the mother had a miscarriage and spent three weeks in the H Hospital.  The children were then four and two years respectively.

14. The parties lumbered through six years without court proceedings.  During that time they consulted with Mr D and made agreements about their parenting arrangements.  In 2011, they consulted Mr D again because there were rising tensions between them and the children were involved in the assessment.  The mother has had a history of depression and panic attacks and the connection of that to what has happened to the children in this proceeding is unclear to me.

15. A disturbing incident occurred in late 2011 involving then ten year old B who suffered something like a psychiatric breakdown in which he threatened self-harm.  That led to a referral to CAMHS who in turn referred B to a psychiatrist upon whom he still attends.  The parents are also involved in these appointments to help B.  The psychiatrist was not called as a witness and no evidence was provided about his views.  However, it is apparent that he works in conjunction with Mr D.

16. What followed from the breakdown by B were significant problems because the parents did not agree about the issue itself of the health of B nor about the needs of their children.  It is abundantly clear on the evidence that not only do the parents not trust one another but they were parenting the children differently.

17. The mother claimed that the father caused B’s psychiatric breakdown with his over-zealous parenting which led to anxiety and the refusal by B to attend school.  B did not attend school in term 4 of 2011.  In turn, that led to a dispute about which school B was to attend.  The parents initially did not agree on that and it required a court attendance to resolve the problem.

18. The mother said to Dr G whom both parties and the children saw in March 2012, that not only were B and C intimidated and harassed by the father but she could have no communication with the father about parenting arrangements.  For his part, the father said to Dr G that there were no problems in his relationship with the children but the mother was influencing them to behave the way they were.  The father thought that the mother had poor emotional functioning which led to the children complaining about their extra-curricular activities.

19. By March 2012, C was spending alternate weekends with his father who was only seeing B after sporting events every second Saturday.

20. These children are very active.  They have been involved in the I Choir, hockey, football, cello, orchestra group and chess club.

21. In March 2012, B was sullen and had flattened effect when he saw Dr G.  He was wary of Dr G assessing him but then again he had been interviewed by a number of professionals including Mr D.  He conveyed a great wariness and felt overloaded.  B complained about his father getting angry with him and making him do things that he did not want to do.  He said he could not talk to his father.  His position was that he wanted to continue with limited time with his father.

22. C presented to Dr G as distracted and having poor concentration.  He struggled for words.  He told Dr G he did not feel comfortable going to see his father without B present.  He missed B but he did not seem sure why his significant time with his father had indeed stopped at that point. 

23. Despite the expressed reluctance of B and C to be with their father in the interview with Dr G, the observation by her of the father and the children was unremarkable and indeed quite positive. 

24. Dr G opined that the parents had a deep and abiding incompatibility in their parenting styles and personalities.  It is one thing to have distinctly different personalities but it is a worrying fact when parenting styles arise that cannot be compromised amid conflicting disputes.  Dr G thought that both parents maintained the appearance of reasonableness and civility but she felt that the acrimony ran deep.  The affidavit material of the parties prepared for this trial makes that abundantly clear. 

25. Dr G opined that the boys were “very troubled”.

26. Dr G’s assessment was that there were a variety of factors involved including each parent’s apparently immutable belief that the problem was caused by the other.  She also added that both children seemed to have a genetic and temperamental disposition to anxiety.

27. Even in March 2012 it ought to have been evident to both parents that their dispute was creating anxiety regardless of who (if anyone) was at fault. 

28. Dr G emphasised in March that B was then still recovering from “a serious emotional crisis” and that he was vulnerable and at risk of a relapse if a very cautious approach was not taken.  That comment was directed to a suggestion that B should live with his father.  Dr G said that any change was likely to be stressful.

29. Dr G also acknowledged that if the children remained with their mother to the exclusion of their father, he would feel disenfranchised and that this would increase B’s feelings of grief.

30. Despite those dire warnings, the parties continued to litigate.

31. Pursuant to an order that I made, the parties saw Dr G again and a further opinion was obtained.  She saw the parties and children again in September 2012.  Because of the determination I have to make, it is more important that I focus on her opinion about the children than any detail about the parents.  Nothing I have read would suggest that there is any change about the parental approach nor is it likely to be the case in the future.

32. Dr G observed of B that he was again diffident and somewhat guarded and impressed as a very vulnerable child.  I have carefully contemplated those last few words because they underpin what I propose to do.

33. Dr G then said that B was balanced in his approach to discussions about his father acknowledging that mostly he had a very good time with him.  He felt that sometimes he could not argue with his father and that left him frustrated.  He did however describe the time with his father as fun and they enjoyed doing things together.  B volunteered that he knew about what his father wanted but said that he was happy to spend every second Saturday afternoon with him extending the time but not by much.  He was adamant that he did not wish to stay at night with his father.  He expressed concern about his father becoming angry and perceived his father’s mood as variable and unpredictable.

34. Of C, Dr G said that the child liked to go with his father and play sport with him but the child said that it was better if B was also present because they had more fun. 

35. The evaluation of Dr G is an important foundation for my determination.  She said that the psychological assessment of C suggested he was a boy troubled by the conflictual problems within the family.  He pretended they did not exist.  He had a sense of hopelessness and despair.  Dr G said that both children expressed a strong preference for the current arrangement to stay in place and although B wanted more time, he was not prepared to spend overnight.  Dr G thought the children gave reasoned and thoughtful explanations and their wishes and preferences seemed valid.  She did not detect any signs or symptoms that they had been influenced, coached or manipulated by their mother.  That too is important because of the view that the father held in March 2012 replicated in his trial affidavit that it was the mother who was at fault.

36. Finally, Dr G said that B remained a very vulnerable boy.

37. Those observations led to the curious position where Dr G said that the mother had considered that B could spend both Saturday and Sunday of each alternate weekend with his father and that overnights could be introduced in 2013.  She qualified that by saying that the father had to build the trust of B.  Dr G opined that it was important that if B was to have increased time and that it was to occur soon, B had to consider it for the purposes of adjusting to it.  That was conditional upon negotiations about that time being done through the child’s psychiatrist to ensure that the child’s mental health was protected.  The mother’s position as articulated to Dr G gave rise to counsel for the father complaining that she had resiled from her position and even though there was consensus about major things, there was little prospect about agreement in the future concerning overnight time or extension of time.  Having regard to the conditional approach adopted by Dr G, even if the mother was offering that compromise, Dr G was ambivalent about it pending the outcome of any consideration by the psychiatrist.  In any event, it would appear that the father has reluctantly accepted the position to which he has consented leaving only the issues before me for determination as outlined above.

1. I have not dealt with the evidence of the parties in detail and having regard to the issues that I am required to determine, it is not necessary for me to do so.

2. The submissions of the parties were concise.

3. The Independent Children’s Lawyer submitted that the arrangement that had been in place for most of this year should remain and that I should not contemplate altering the Saturday to the Sunday because 11 year old B was in a delicate position.  By that I inferred that he was referring to the vulnerability to which Dr G referred above.

4. Counsel for the Independent Children’s Lawyer acknowledged that Saturday morning sport for B would have an impact on his time with his father but significantly, B felt comfortable with that time.  He submitted that what the child needed was some “downtime” before he went back to school on the Monday and that the Sunday was the appropriate time for that to occur.  To spend time with his father on the Sunday was not appropriate.

5. Counsel pointed to the fact that both children wished to stay with the current arrangement and there was validity in that issue having regard to the strength with which the children made their points.  He submitted that it was important to acknowledge that the new regime otherwise consented to by both parties was to commence in five weeks time and to change the structure significantly was not appropriate for these children having regard to the observations of Dr G.

6. Counsel for the mother adopted the position of the Independent Children’s Lawyer.  She referred to the problems of B in term 4 of 2011 and submitted that these followed contact periods giving rise to B having trouble sleeping.  If the contact occurred on a Sunday, there would be problems at school on the Monday.  Her argument was that there was now consistency and B had been content to go and it was unwise to change.

7. She submitted that there were activities as well on the Sunday including indoor hockey and C undertaking football in the winter but that B would be with him to watch.

8. The attendance of the father at the sporting events of C if they occurred on a Sunday would leave B alone with his father.  Counsel for the mother submitted that Dr G had referred to the fact that B lacked trust in his father and was “on guard” around him.  It would therefore not be appropriate to make an order where B was with his father alone.  Counsel for the mother submitted that the appropriate order was for things to remain as they were and that the time should be on the Saturday.

9. Counsel for the father started by submitting that all the father wanted was for B to get better and stay well.  This was the same sentiment echoed by counsel for the mother but the parties obviously have a different view about all of that.

10. The father’s position was that the time on Saturday with B could only commence upon the conclusion of his extra-curricular activities.  These events during the winter and summer would commence early and if B decided that extra-curricular activities were to occur on a Saturday morning, because the husband would have C, he would have little or no time with B.  The best solution according to the father was for the time to occur on the Sunday.

11. The second issue of the four addressed by the parties was really about the limited problem of a long weekend.  Counsel for the Independent Children’s Lawyer submitted that it was clear that C wanted more time with his brother but was not happy unless B was there.  The position therefore of the Independent Children’s Lawyer was that there should be no extension into the Tuesday after a long weekend.

12. Counsel for the mother adopted the same position as the Independent Children’s Lawyer.

13. Counsel for the father simply put that it was a rare event in any year and it was common for people to have these arrangements.

14. The third issue related to the question of defining the conclusion rather than the mid-point of the holidays.  The commencement point should be certain for these parties.  The Independent Children’s Lawyer submitted that this was really only about C and that the Independent Children’s Lawyer thought both children should be together during the night prior to the returning of school they having not seen each other for some weeks over the January holidays in particular and therefore it would be sensible for them to have the holiday period with the father conclude on the night prior to school resuming.  It was common ground that orders should provide that the mid-point be on the Saturday in the middle of the school holidays and I propose to make that order.  Counsel for the mother submitted that this was really about the father counting nights rather than focussing on the children.  She submitted that her client had compromised on the basis that the mid-point of the holidays was fine providing C returned to her at 5.00pm the night before school.

15. The father’s position was that he wanted to be with C and take him to school on the first day of the term because he wanted to be there when all the parents and teachers were there.  In response to a question I asked, counsel for the father said that his client could not otherwise attend the opening day because of the poor relationship with the mother.  He pointed to one particular incident within the evidence that would justify me concluding that that was probably right.

16. The fourth issue related to the question of when the parties should go to Mr D to resume some form of counselling and mediation about the needs of the children.  The mother’s position was that it should be July 2013 which was supported by the Independent Children’s Lawyer but the father wanted May 2013.  The Independent Children’s Lawyer submitted that this was about giving the children time to settle into the arrangement before the litigious program commenced again and that was a position adopted by the mother.  In her view, the longer the better but she had compromised.  Counsel pointed to the fact that the father had made it clear that the resumption of litigation was inevitable.  From the father’s perspective, this was nothing about the counting of nights but about endeavouring to assist the children overcome the problems and Mr D was the conduit between the parents and the psychiatrist Dr E and as Dr E would have an ongoing role, it was important for Mr D to be involved quickly.

17. It will be evident from what I have set out above that this case exudes acrimony.  The sad fact is that B in particular is extremely vulnerable and change is not welcomed by him.  I am very concerned about the fact that the existing arrangement seems to be working and B is compliant.  C is reticent for increased time without the presence of B.  It is also clear that the arrangement that is now being put in place involves the forthcoming summer holidays and there will be little time quantitatively to determine how it is progressing if the parties return to Mr D in May.  Indeed, I suggested it should be the whole of 2013 but the mother had already adopted the July position supported by the Independent Children’s Lawyer as a compromise.  With reservation about that, I have accepted that position notwithstanding I indicated to the parties that I was not bound by any of their proposals.  In my view, May is far too early and July is not much better.  It is clear from the objective evidence of Dr G that the conflict between the parties is contributing significantly to the dilemma and there is no sign of that abating.  I conceive that there will be significant problems whichever order is made.

The legal issues

1. This is a parenting order albeit the issues are modest.  As a parenting order, the Court is obliged to apply the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility.  That is a rebuttable presumption in circumstances where it is not in the best interests of the children for that presumption to be applied.  It is not necessary for me to go further in this case because the parties have agreed to orders which provide for the mother to have sole parental responsibility in respect of the two main issues associated with the futures of the children.  I can conclude therefore that they have agreed that it is not in the best interests of the children for the parents to have equal shared parental responsibility.

2. Needless to say however, any parenting order can only be made by the Court if it is satisfied that it is in the best interests of the children that it should be so made.  The best interests of the children is the paramount (but not the only) consideration.  (s 60CA).

3. In determining what is in the best interests of the children, s 60CC provides that the Court must take into account the matters set out in that provision. 

4. The primary considerations require little description.  It is important for the children that the Court consider the benefit that they may obtain from having a meaningful relationship with both parents.  It is important therefore for the Court but also for the parents to encourage the children to have a relationship which satisfies all of the criteria set out in the objects and principles in s 60B of the Act.  It is clear in this case that the children have a limited relationship with the father and to his credit, I agree with his counsel, he has stepped back from the confrontation and compromised such that these orders may enable the children to get well and stay healthy.  That submission may have a hollow ring about it if, after seeing Mr D again, the war conducted through the Court is to continue thereafter.  I specifically rejected a suggested approach that orders be made that might not face a future Rice and Asplund argument.  However, there was no indication from either party that these orders would satisfy the children’s long-term needs and for that reason as I earlier pointed out, I expressed reservations not only about the desire for the orders to be treated as interim orders but also for the return to Mr D as early as May.  The father’s evidence makes clear that he cannot negotiate with the mother and that he sees litigation as the only resolution.  Even if that is right, it does not benefit the children for that acrimony to continue.  Dr G made clear that B in particular is a very vulnerable and troubled child.  It must also be kept in mind that Dr G had the benefit of observing change between March and September and the situation had only altered marginally.

5. I am satisfied however that the proposed orders will enable the father to continue to have a relationship with the children from which both B and C will have some benefit.  In the fullness of time, the trust may return.

6. Section 60CC also requires the Court to have a look at a number of factors and in this case, I have considered them.  Notwithstanding I do not mention them all or in any detail, I am well aware of and conscious of my obligation in Part VII of the Act and indeed s 60CC.  I have considered those matters.

7. One of the issues is the views of the children.  Whilst both children are still young, Dr G’s expert evidence was that the Court should respect their views and restrict the time that they spend with their father.  This is not a case where the children seem to me to be simply determining their own future based on a childish whim.  This is a case where their views are well thought out and not affected by the mother’s influence.  Whilst the father may not accept that, that is the view taken by Dr G and I see no reason why I should not accept it.

8. Section 60CC requires the Court to not only look at parenting responsibility but also parenting capacity.  In many ways in this case, they are linked.  The parents’ capacity to think about their children and resolve the matter is one thing but to otherwise bring their children up with two very distinctive styles which have been the cause of the problems for the children is a poor reflection on both parents.  The important fact here however is that the mother is the dominant parent who has the greater amount of responsibility for the children and with whom both them seem the most comfortable.  On that basis, I should be very cautious about accepting the father’s view that he will be excluded from the lives of the children by the actions of the mother.  Quite the contrary, she is the solid psychological support for the children into the foreseeable future. 

9. There are a number of other matters in s 60CC which in my view do not assist me by making findings about but I have carefully contemplated each of them. 

10. This is clearly a discretionary judgment in which I have to think about the children.  In my view, the husband’s argument about attending on the first day of school is more about him than the children.  The children will be excited about returning to school and they will have been separated during at least some of the holidays for a considerable period of time.  As much as the father may be unhappy about the situation, it seems to me that the logical conclusion is both of the children should be together on the night before they return.

11. In respect of the Saturday or Sunday time, it is quite clear that much more can be done between the father and the children on the Sunday than it can on the Saturday.  Again however both children have expressed reservations about altering the structure and I am not at all convinced that it is wise to alter the existing regime at this stage.  It may very well be that the children want more time and no doubt in 2013, as the parties will be returning to Mr D, those issues can be canvassed. 

12. In my view, it would not be wise or in the best interests of the children to simply change the existing structure even if the father is cynical about the mother’s motivation.  There was nothing in the evidence that I saw from Dr G indicating that there was a problem there and whilst I appreciate that the father will not be able to do many of the things that he might want to do, he must also remember that his children are participating in activities which to them will be important simply by his mere presence.  The father has an active role in the sports of the children.  Whilst his time may be limited, his emotional support will ultimately hopefully be recognised by the children.  To the extent that the father may think that the mother intends to manipulate the situation, the evidence does not support such a conclusion.

13. Accordingly, the arrangement should be for both children maintained on the Saturday.

14. I have made my views clear about the return to Mr D.  Were it not for the mother’s compromise, I would not have ordered the return in July.  It seems to me however that it is logical that I should make that order and certainly not May.  Both parties had differing reasons for wanting that particular timeframe.  One suggestion was that it was at the end of the school term.  My concern however is that there have been so few periods of time during that year to see how things go and for the children to settle that little may be gained.  Nothing I could see on the evidence would support a justification for a May resumption of that counselling.  In my view, it is in the best interests of the children that they be given the opportunity to settle into this regime first.  Accordingly I will make an order in respect of July.

15. That just leaves the question of the long weekends.  That too has some complications but occurs so infrequently during the year that I could not imagine that it would have any real impact particularly as it really only affects C.  I could not see any reason why any damage would be done by the extra day.  Accordingly it seems logical that the Monday should be extended to the Tuesday in the event of a long weekend. 

16. I propose to make orders accordingly.

I certify that the preceding Seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 November 2012.

Associate:

Date:  27 November 2012