Hamill and Hamill

[2009] FamCA 1324

FAMILY COURT OF AUSTRALIA

HAMILL & HAMILL [2009] FamCA 1324

FAMILY LAW – CHILDREN – Whether sole parental responsibility should be granted to the mother – Orders sought after the conclusion of a final hearing – Consideration of the principles in Rice & Asplund and Marsden & Winch – which school the children should attend

Family Law Act 1975 (Cth) ss 61DA(1), 61DA(4), 60CC(2), 60CC(3)

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund [1979] FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Hamill

RESPONDENT: Ms Hamill

FILE NUMBER: CAC 1524 of 2008

DATE DELIVERED: 25 November 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 24 – 25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nash SC

SOLICITOR FOR THE APPLICANT: Mr M. Eley, Watts McCray McGuinness Eley

COUNSEL FOR THE RESPONDENT: Ms Tonkin

SOLICITOR FOR THE RESPONDENT: Ms L. Strong, Strong Law Pty Ltd.

Orders

Order 1 made by me on 6 December 2007 is discharged, in lieu thereof the following orders are made:

1. The mother of the children, E, born on … July 2004, and L, born on … June 2006, will have sole parental responsibility for determining the school that they will attend.

2. Otherwise the parents will continue to share equally parental responsibility for the children.

3. The children’s mother be and is hereby restrained from relocating the children’s residence from the Australian Capital Territory/Canberra district without the prior written consent of the father.

4. The children will live with their mother and their father in accordance with the orders made by me in December 2007 seeing so far as those orders have not so far been implemented and in accordance with the program set out now relevantly in Orders 7 and 8 made on that day.

5. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders

6. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

7. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

8. I dismiss any other existing applications and remove this matter from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1524 of 2008

MR HAMILL

Applicant

And

MS HAMILL

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before the Court are, unfortunately, a revisiting of some of the issues that have existed between the parties since they separated.  I do not propose to repeat the history of the relationship between the parties before their separation as, to some extent, that is covered in the Judgment I delivered on 5 and 6 December 2007.

2. The consequence of that Judgment was that an arrangement was put in place whereby the children's mother was restrained from leaving the Australian Capital Territory (ACT)/Canberra, New South Wales (NSW) district and the children were to remain in her primary care and to spend time with their father on an increasing basis over a period culminating in July 2010 where they would start to spend approximately 50 per cent of their time with their mother and 50 per cent with their father, although that would be divided in what was agreed at the time of that decision into age-appropriate separation periods from each of their parents.  By that I mean that rather than the children spending seven days apart from one parent, the arrangements that were recommended by the family consultant, and modified and adjusted by the parents in conjunction with their counsel in a sensible way, provided for the children to spend some nights in one week with one parent and more nights with that parent in the following week, which had the effect of reducing the period of separation of the children from either parent.

3. At the time that the previous orders were put in place, the parents were in a state of high conflict and, sadly, it remains the case that there is still a measure of that conflict in existence between them.  I had hoped by the parental agreement at that point to attend what is described in my orders as the “ARCC Program”, which in fact was the ARCK Program, that they would be, having been through a Court process, able to move forward in a more cooperative way.  The proceedings before me now, I suppose the fact that they exist at all, are illustrative of the fact that cooperation has not been as forthcoming as one would have hoped. 

4. By the same token, the parents have, to a large extent, adjusted to the regime implemented by the orders that I made in December 2007.  The primary matter that brings them back before me is the question of what school and pre‑school E and L will attend in the year 2010 and following.  It could not be said that the parents have not tried to resolve this issue among themselves or between themselves, but they have been unsuccessful in doing so.

The nature of the proceedings

1. It is necessary to make some comment about the nature of the proceedings at the beginning of my judgment.  The proceedings were commenced by Mr Hamill seeking, as the children's father, for a determination by this Court of what would previously have been referred to as a specific issue, that is what school the children will attend, and it was part of his case (for fairly obvious reasons forensically and jurisprudentially) that it was unnecessary for the Court to intervene other than for that specific matter into the relationship between the parties. 

2. In this respect, he relied substantially upon the determination of the Full Court of the Family Court of Australia originally in the matter of Rice & Asplund,[1] and as it has been subsequently interpreted both by his Honour Warnick J in the decision of SPS & PLS,[2] which was substantially adopted and interpreted more recently by the Full Court of the Family Court of Australia in Marsden & Winch.[3]

   [1] Rice & Asplund [1979] FLC 90-725 (per Evatt CJ, Pawley SJ & Fogarty J).

   [2] SPS & PLS (2008) FLC 93-363.

   [3] Marsden & Winch [2009] FamCAFC 152 (per Bryant CJ, Finn and Cronin JJ).

3. The questions that were raised by those decisions gave rise to a preliminary hearing which was initially put on the basis that if the Rice & Asplund issue, so called, might be resolved it would prevent any further argument between the parties.  It became clear during the initial exchanges during a preliminary hearing, that there would still need to be a further hearing between the parties. Accordingly, that preliminary hearing was aborted in favour of the final hearing that has occurred over the last two days.

4. In this respect, it does not of course mean that the principles associated with the so called rule in Rice & Asplund and articulated more recently in Marsden & Winch do not apply.  It means simply that the principle that children should not be exposed to serial litigation and repeated litigation on the same issues is a factor that I am obliged properly to take into account in coming to my conclusions about what would be in their best interests.

5. I accept in considering this matter that I am obliged to interpret Part VII of the Family Law Act1975 (Cth) in accordance with the Objects and Principles set out in s 60B. Further, in accordance with s 60CA of the Family Law Act 1975 (Cth) I am to regard the best interests of the children as my paramount consideration in my determination about what by any measure are parenting orders.

The best interests of the children

1. In determining what are the best interests of the children I am guided by s 60CC, in which there are two primary considerations:  the benefit to the children in having a meaningful relationship with both of the children's parents;[4] and the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.[5]  There are a number of additional considerations that the Act expresses in s 60CC(3) as being important for the court to take into account and I will deal with those as I move through some of the issues between the parents.

   [4] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [5] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. The proceedings, although begun in the limited fashion as I have indicated above, were in fact expanded by the filing on the part of the children's mother of a response which sought - and I note that these changed in the final minutes sought by her in the course of the proceedings, but initially sought that she have sole parental responsibility for the girls, that they live with her, the previous orders about the time that they might spend with their father be vacated, and that the children essentially spend time with their father on the basis of initially from 9.30 am on Saturday until 4.30 pm on Sunday, and from 3.30 pm until 5.30 pm on each Wednesday, with that progressively moving forward until February 2010 when they would spend from 3.30 pm on Friday until 4.30 pm on Sunday in each alternate week and overnight on the Wednesday on the other week.

3. Those orders were amended, to some extent, in the beginning of these proceedings by the mother seeking that she have sole responsibility for the children, that they live with her, and that the children spend time with their father from conclusion of school and pre-school on Friday until the commencement of school and pre-school on Monday in each alternate week. 

4. That commencement of that operation was not defined in the orders sought, but was flagged as being something that ought to be postponed until it was appropriate for the children and they were ready to accept the additional time that they would spend with their father over the time that they currently spend with their father.  It was also proposed in the minutes of orders sought at the commencement of proceedings that the children should spend one half of school holiday periods with their father and there were special arrangements for special days. 

5. The mother also sought that the children would attend N Pre-School and thereafter N Primary School, unless otherwise agreed by the parents or by Court order;  and that the parties would keep each other informed of their telephone and residential numbers and addresses;  and that the mother would authorise the provision to the father of information about the children's schooling;  and she sought, interestingly in the context, that she be restrained from changing the children's residence from the northern ACT region without order of the Court or agreement by the father.

The question of sole parental responsibility

1. The matter might be resolved if I were to consider the mother's application first.  If she were to have sole parental responsibility for the children then in the ordinary course of events it would be she who would determine where the children attend school and would have responsibility for other matters relating to their development and welfare. 

2. On the other hand, if I am to apply the propositions that are set out in Marsden & Winch, and originally in Rice & Asplund, the first question I should reasonably ask myself is if in the circumstances of a concluded hearing of four days duration, should I now re-open those issues and begin again the process that had been undertaken previously? 

3. It is clearly not in the interests of children for there to be serial litigation about the major arrangements about their living.  If parties are to commence litigation virtually as soon as proceedings have been concluded then, apart from the emotional disability that each of them will suffer, they will suffer financial disability inevitably.  It does mean that the children will be exposed to an increasingly intemperate and difficult time between their parents. 

4. This is not such a case.  The parents have, as I said, tried to reach agreement about what school the children will attend but their attempts were, in my opinion, without being unreasonably critical of them, perfunctory and ultimately unsuccessful.

5. What seems to me to be appropriate, and I say this about the means in which orders are made in these things, is that Courts are singularly ill-equipped to make determinations about where children should attend school.  Inevitably, it may come to a conclusion about these matters if parents are unable to do so, and, indeed, Mr Nash SC has urged upon me that it should be this Court's responsibility to answer his client's application.  I do not entirely agree.  A Court is not here simply to resolve any issue the parents might not otherwise be able to resolve. 

6. There are factors associated with a number of matters relating to children which are not properly capable of being resolved by Courts making orders such as what school the children will attend.  To some extent it is appropriate, in my opinion, that there should be a determination about which of the parents will make that decision and the determination of which of the parents should make that decision ought to be based not just on tossing a coin or making some decision generally about it, but rather upon the thoughtful investigations each of them have made about the way in which the matter should proceed.

7. This is not a case in which neither parent has turned his or her mind seriously to the issue about what schooling the children will attend.  The father has set out in a schedule to his Affidavit a careful comparison of some factors relating to the children's education. Ultimately, however, as Mr Nash SC properly conceded in the course of his addresses, the schools are, as one would expect in a town such as Canberra, of relatively equivalent standard so far as education is concerned, class sizes and other activities involved and even, as the father has established, the demography of parents of the children attending the school.

8. Mr Nash SC, on behalf of the father, has identified and conceded, quite properly, that in the end, it is really a question of practicalities from his client's point of view about where the children should attend school.  In large measure I think he is probably correct in this assessment. 

9. So far as the mother is concerned, there is no doubt that she had again thoughtfully investigated the sort of school the children will attend.  She also had concentrated in part upon practicalities as she saw them but she interpreted that in a way that said it was much easier for the children and ultimately for her if the children were closer to her than they were to the father.  The father from his point of view had ultimately concluded that it was better that the children should be halfway between so that in some respects the proximity issue and the travel issue could be shared between the parents in a more equal way.

10. There is nothing, in my opinion, in the way in which either parent has approached this matter which would lead me to conclude they have not conducted a reasonable investigation into what sort of schools the children should attend and how they should do it. 

11. It appeared for a while that there may have been a dispute relating to the question of the religious education of the children.  This comes about because the school that the father wants the children to attend is a Catholic school, in conformity with his own upbringing, if not his own professed religion of being a person of Coptic Orthodox adherence.

12. The mother, having been brought up a Catholic, is not opposed to the children receiving what Mr Nash SC described in his cross-examination of her as “Christian Catholic principles and standards”, but she professes not to practise her religion nor to wish to educate the children in any particular form of religion.  She did concede, however, that she would not object to the father providing them with his insights into religious education and as to the principles of Catholicism at the very least. 

13. She expressed, and for reasons which she articulated with precision, her objection to his educating his daughters in the Coptic Orthodox faith because she maintained that that faith expressed an inappropriate approach to the way in which women should be dealt with (or should be regarded, perhaps more accurately). 

14. I make no finding whatsoever about the tenets of Coptic Orthodox religion;  I have no information about it.  There is no evidence, apart from the mother's opinion about these matters, and in the end the father was not asked any questions about these issues or what his attitude to women might be or how he might properly educate his daughters about such matters.

15. It suffices to say, in my opinion, that what appeared to be an issue is not an issue in that the mother will continue not, and it's quite clear that she will not, provide to the daughters any specific education in religion.  She has expressed in broad terms her adherence to principles of Catholicism but not to the practice in a formal way.  She has expressed no objection to the father educating the children in Catholic principles and morality or to their attending church with him when they are with him on a Sunday or at other times.

16. In such matters, it seems to me there is no point in making an issue out of that which is not an issue and the parents will continue to proceed as they would indeed have done if they had been living together and that is each professing a different approach which in this day and age is not all that unusual.

17. I specifically make no finding in this matter, about whether the parties have previously agreed that the children should be brought up as Catholics.  There is no evidence that I would find reliable upon this matter that I could effectively make a determination.  In my opinion, it is irrelevant, in any event, and it is unnecessary for me to make such a finding.

18. I turn then to other matters relating to the question of parental responsibility, both in the broad sense and in the very specific sense.  I wish in my Judgment to make a distinction between the issue of whether or not there should be a general sole parental responsibility order for one parent in circumstances where there is conflict between the parties and where there is specific conflict over a specific matter.  In this case, the conflict is the question of education generally.

19. The Family Law Act 1975 (Cth) provides a presumption that it is in the best interests of children that parents will share equally parental responsibility.[6]  Presumptions, of course, are established for the purposes of providing a primary position and are not conclusive.[7]  It may, however, be reasonable to suggest that where there is a presumption of equal shared parental responsibility that if that is to be displaced it ought to be displaced in a way which will do minimum damage to the broader concept that the parents should work together for the benefit of their children.

    [6] Family Law Act 1975 (Cth) s 61DA(1).

    [7] See Family Law Act 1975 (Cth) s 61DA(4).

20. That would suggest that if there is to be one parent given parental responsibility about a matter then that matter should be as reasonably narrowly confined as is possible to permit the resolution of the dispute.  In this case, that would be possible in circumstances if I were to give either father or mother sole parental responsibility about the determination of the school that the children will attend, both now and in the future.  I propose to follow that course of action, notwithstanding a very firm submission to the contrary from Ms Tonkin on behalf of the mother.

1. In this case, I am satisfied that each of the parents is capable of making a decision about what would be best for the children in this area. 

2. I am, however, persuaded that given the close relationship between the children and their mother and, in particular, the fact that the children have already commenced their education at the N school, a fact over which of course the children's father had no control whatsoever. Accepting as I do that moving them at this stage is probably easier to do than moving at a latter stage, it seems to me that it would be appropriate, given my findings on the previous occasion and my conclusion from the parties on this occasion, that the mother should have sole parental responsibility to determine which school the children will attend.

3. I deliberately, however, do not conclude that the mother should have sole responsibility in relation to the education of the children which should remain a matter of shared and equal parental responsibility.  This means that issues that will arise during the course of their education should be, as the mother indeed seeks, the subject of input from both parents. 

4. I say "as she does indeed seek" because otherwise order 12, as she sought it, would be to some extent irrelevant.  It seems to me that the only factor missing from the order that she seeks in relation to these things in a different context is the fact that the parties will from time to time confer about and consult in relation to the children's education.  That is an obligation which I believe both parents must continue to share and must continue to exercise to the extent that they are able to do so. 

5. Their opportunity to live in separate ways ceased to exist when they had the two children and they now must accept the responsibilities that flow there from.

6. In other respects, however, it seems to me that there is no demonstration, notwithstanding the thoughtful and articulate submissions from Ms Tonkin, that this is a matter in which inevitably the mother should have sole parental responsibility about other things.  In particular, I do not find that the children's medical situation is such that there is a need for some sole arbiter of what is to happen should a complication arise. 

7. I am not unmindful of the matters raised in the mother's Affidavit about allergies.  I am mindful of the fact that this was not the subject of cross‑examination of the father.  I have no reason in the circumstances to accept that he would not proceed otherwise than in accordance with their best interests.  I am not satisfied in this case that the father is in any way likely to intentionally do any harm to the children and in this regard I listened carefully to the evidence of the mother about the incident in which E had suffered a spiral fracture of her ankle. 

8. The mother, in the course of her evidence, which was forthright at least, had expressed a view that it was the father's fault, and then went on to say and volunteer this, without being pressed by either Ms Tonkin or by me or by Mr Nash SC, that she did not believe that the father had intended to use as much force as he did.  She expressed a view that she thought he was very rough with the children, but this appeared to be based more upon an expression of prejudice on her part rather than from any specific incidents that she could otherwise identify.

9. There are no other issues between the parents apart from the fact that it's inconvenient for them to live as far apart as they do, which in other cities' terms is but a blink of an eyelid, which would suggest that it is important that they should not share responsibility for matters relating to the children.  This, however, leads to the interrelationship between the matters set out in s 60CC and also the questions about responsibility. 

10. To some extent it is necessary to consider the matters that relate to the children's best interests to indeed conclude, as one is obliged to do, that it will be in the best interests of the children that their parents share responsibility in some way.  As a statement of principle it could be said that sharing parental responsibility is a primary obligation of parents and therefore should only in some cases be displaced.  There are cases before me on a daily basis where it is and should be displaced.

11. However, looking at the other questions relating to the children's best interests let me say that they do not, in my opinion - on the basis of matters that I have expressed in this Judgment, and to some extent expressed in my preliminary comments to counsel during the course of their submissions, there are no matters which, in my opinion, would mean that, in the children's best interests, their parents should not be involved cooperatively or at least in a parallel way in their development and best interests.

12. I expressed the view in my Judgment on the previous occasion, on the advice of the family consultant after hearing the evidence over four days - although not all of that related to the children - and having listened carefully to submissions of counsel, that this is a matter in which the children should spend time with each of their parents on a significant and substantial basis. That is reflected in the orders I made, which are still unwinding towards a conclusion, in July of next year.

13. The problems for the children in moving from one household to another are problems that are now encountered by many children and, if I were to be asked whether it was desirable that children should move from one household to another with the consequent disruption associated with such movement, I would unquestionably, in line with I think almost every school teacher in Australia, say that that is inappropriate.  Nevertheless, that is to some extent the consequence of the separation of parents and the establishment of new relationships and the problems that flow therefrom.

Additional considerations for the best interests of the children

1. In this regard, I do not have the advantage in this matter today of evidence about the views of the children, except expressed through their parents, and to some extent I discount those views as expressed by each of the parents as reflecting more the emotional commitment of the parent than the mature and understanding approach to the matter by the children. 

2. I accept that the children have a proper relationship with each of their parents and, in particular, that their relationship with their mother is on her part a devoted and concerned one and on the part of the children with their mother a loving one.  I accept that the children with their father have enjoyed the time they spend with him, that they are close to him, and have an age appropriate relationship with him. 

3. I am unsatisfied that either parent is fully and finally committed to facilitating and encouraging a close and continuing relationship between the children and the other parent and in this regard I specifically find that the mother has difficulty in pursuing that objective as set out in s 60CC(3)(c) of the Family Law Act1975 (Cth).

4. I do not suggest in coming to that conclusion that the mother sets out deliberately to sabotage or to be difficult or malicious in her relationship with the children and their father.  I do accept, however, that for reasons that are not entirely clear to me on the evidence at this point it is difficult, if not impossible, for her to facilitate and encourage their relationship with their father at this point. 

5. This leads me to conclude, I should say, that it is very important that the children should continue to have an extended period of time with their father and to enjoy the possibility of developing a relationship with him, notwithstanding the failure on the part of the mother to encourage and develop that relationship in her own right.

6. In saying so I accept, to some extent, the submission made to me by Ms Tonkin that the father in his appearance before the Court has been, to use her words, on his best behaviour and I am satisfied that there is a measure in his relationship with the mother and his relationship with the children which could be the subject of improvement, although I do not have the optimism that either he or the mother are likely to effect that improvement in the foreseeable future.

7. I think it is entirely inappropriate that the children should have been subjected to three visitations in effect from the police at different times in relation to what appear to be either difficult or recalcitrant actions on the part of the children's mother about arrangements for the children to spend time with their father.  It is sad for the children that the parents cannot find a way in which they can love them more than they hate each other, but nevertheless that is possibly what is going to happen.

8. The proposed changes brought about by the mother's application and the children's circumstances are drastic indeed because, while they do not change the circumstances particularly of the children at present, they would unquestionably bring about a difference in the sort of relationship they will have with their father in the future. 

9. In such circumstances, without any evidence to support the proposition that this must necessarily be in their best interests, I am not prepared to accede to the proposition that the children should revert to spending only weekend time with their father in the future whether that be, as would appear to be from her application, now or possibly in July 2010, possibly at the end of 2009 or possibly at the end of 2010;  none of these things is entirely clear.

10. There are other people with whom the children are now associated and these form part of the father's application, or foreshadowed application, that there should be some coincidence between the time the children spend with their father and the time that the father’s new partner's son spends with her.  That is complicated, as appears from the father's affidavit, by the relationship of this young person's mother with a further person who has children who spend time with him and with their mother from some point.

11. In this situation my concern, as I expressed to Mr Nash SC on behalf of the father, is to concentrate on the best interests of these children who are the children the subject of these proceedings before me.  While I concede that it is desirable that there should be an enhancement of the relationship of the children with their potential step‑brother, it is a matter that must be practically resolved in a way which takes account of their best interests not simply the best interests of an expanded family group.

12. I do not propose to make any order specifically about the coinciding of the time that the children spend with their father with the time that the father’s new partner’s son would spend with his father.  I have expressed the view to the parents, and I do so in the strongest possible terms, that there is a very practical solution to this problem which would involve minimal surrender of rights or privileges on behalf of either parent, minimal disruption to the children, and which would ensure that the situation that is contended for by the father could be accomplished. 

13. I hope that the parents will take advantage of the situation to put the children's interests ahead of their own.  However, again I make no order about such a matter.

14. The children, notwithstanding the conflict between their parents, appear to be able to communicate reasonably freely each with the other parent when they're not with them and certainly no complaint is made about that specifically in these proceedings.  I am satisfied that each of the parents has the capacity to look after the children appropriately and for the reasons that have been previously dealt with in the decision of this matter in December 2007 it seems to me that this is best effected by the parents having substantial and significant time with the children.

15. I have made comments previously about the attitude of each of the parents to the children and to their responsibilities of parenthood and I do not propose to amplify those comments any further. 

16. I am satisfied, notwithstanding the worries that the mother has about violence on the part of the father, that this is not a situation in which that is a factor which ought properly to influence my order. In any event, I note that it is not suggested by the mother that the father should not spend time with the children, only that he should spend less time with the children. While that undoubtedly would decrease the risk as a matter of physical measurement I cannot see that it is a rational position for a parent to take in opposing the time the children would otherwise spend with their father.

17. I am not confident, notwithstanding that I'm obliged under s 60CC(3)(l) to make orders which will limit litigation between the parties in the future.  I suspect that the parties will be coming back to this Court on other occasions, which I find sad, but which nevertheless I find is possibly inevitable until they are able to reach a position where they can put their children's interests ahead of their own concerns.

18. In saying that I do not regard either of the parents as selfish people.  I think they both intend to do what's best for their children.  It is sad that they are unable to do so in circumstances where they can take account of the fact that the children have two parents and not just one. 

19. Finally, if I can indicate that, in my opinion, one of the factors that bears upon my decision is that this was the subject of a contested hearing a relatively short time ago and, in my opinion, it is not in the children's best interests that this matter should be further expanded to take account of a whole range of issues which would essentially mean the re‑litigation of the whole process.  The parties have, in my opinion, appropriately confined the nature of the evidence before me as result of the directions I gave previously. 

20. I accept that that has limited to some extent the ability, particularly on the part of the mother, to put some things before the Court that she might otherwise have sought to do if the proceedings were being completely redone in a further fully contested hearing.  Nevertheless, it seems to me that I have had a sufficient flavour of the evidence and a sufficient opportunity to examine the parties again in the witness box and to look at their demeanour and to form conclusions about the decisions they have taken about the children to reach the point that I can make the decisions that I propose to make.

21. I will briefly indicate the nature of the decisions I make and then give my reasons for that in light of the conclusions I have reached previously in this my Judgment.  I propose to make an order that varies the existing orders, to provide that the children's mother will have sole responsibility for determining the schools that they will attend in the future. 

22. I have given consideration to the proposition contended for by Mr Nash SC that in the interests of avoiding litigation the children should attend a high school that feeds from the primary school that they are attending.  I do not believe it is appropriate to make that order, notwithstanding its attraction, because who knows what will happen in another seven years and I cannot say with any degree of certainty that neither party will be obliged, for whatever reason, to move from their present arrangements before that time. 

Conclusion

1. Accordingly, it seems to me that the issue about the determination of the school the children attend will remain, subject to any further order of this Court in the future, with the children's mother. 

2. I propose otherwise to reimpose the order that I made previously that the parents share equal parental responsibility for the children.  I propose to continue the restraining order which the mother, indeed, accepts as being appropriate in the minutes of orders that she seeks.  I propose to reiterate that the program that was established by orders 4 to 8 of the orders I made in December 2007 will be instituted in accordance with that program in the future. 

3. It would have been of some interest to me if either of the parents had expressed any interest in trying to undertake some course which may help them with their parenting.  Neither did.  I accept that it is probably unlikely that they will and if they do it is unlikely that they will successfully complete the course.  Hence I will make no such order.

4. I decline to make any order, for the reasons I have otherwise stated, as to the coordination of the time that the children spend with their father so that it is the same time as the father's step‑son spends with him. 

5. I specifically indicate, as I did to Mr Nash SC, that there is no evidence before me which would establish satisfactorily that there is any advantage in my making any determination about a movement towards a seven/seven arrangement in the future.  That is something which the parents could properly consider at the time depending upon the way in which the children are developing at that point.

6. I make orders in accordance with my Judgment.  The matter is removed from the pending cases list.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate:

Date:  2 February 2010