Henley and Marple

FAMILY COURT OF AUSTRALIA

HENLEY & MARPLE

[2009] FamCA 948

FAMILY LAW – CHILDREN – equal shared parental responsibility – alienation of children from parent

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

APPLICANT:

Ms Henley

RESPONDENT:

Mr Marple

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYF

3467

2006

DATE DELIVERED:

2 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cohen J

HEARING DATE:

19, 20 and 21 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carr

SOLICITOR FOR THE APPLICANT:

Karp O’Neill

SOLICITOR FOR THE RESPONDENT:

Mr Brown of Brouns the Family Lawyers

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

That except as provided for in Order (2) the applicant wife and respondent husband are hereby granted equal shared parental responsibility for M born … March 1997, N born … March 1997 and T born … November 1998.
The applicant wife shall have sole parental responsibility for making and implementing decisions about:
(a) the school or schools the children or any of them are to attend;
(b)any behavioural or psychological counselling the children or any of them are to undertake.
In the event that the children or any of them undertake counselling referred to in Order (2)(b) the husband shall attend all counselling sessions for which the counsellor requests his attendance.
That the children shall live in alternate weekly periods with each parent during school term and during the Easter, winter and spring school vacations.
That the alternate weekly periods referred to in Order (4) are to end and begin on each Friday afternoon with changeovers to be implemented on Fridays during school term by the parent with whom the children are to live for the succeeding week to collect them or arrange for them to travel to his or her home at the conclusion of the school day and on Fridays during school vacations the parent with whom the children are due to live for the succeeding week to collect them from the other parent’s home at 6.00 pm.
That during each Christmas school vacation period the children shall reside with:
(a)the applicant wife for the first half of each such period commencing in an odd numbered year and the second half of each such period commencing in an even numbered year except as specifically provided for in Order (7) herein;
(b)the respondent husband for the first half of each such period commencing in an even numbered year and the second half of each such period commencing in an odd numbered year except as specifically provided for in Order (7) herein.
That when the said children are living with one parent during the first half of the Christmas school vacation period they shall spend time from 11.00 am on Christmas Day to 11.00 am on Boxing Day with the other parent.
That for the purposes of implementing Order (6) herein the first half of each Christmas holiday period shall end at 6.00 pm on the last day of the first half of that period.
That in the event that the children would otherwise live with the applicant wife on Father’s Day and/or the respondent husband on Mother’s Day the children are to live with the respondent husband from 9.00 am on Father’s Day until the commencement of school the next day and with the applicant wife from 9.00 am on Mother’s Day until the commencement of school the next day.
That changeovers pursuant to Orders (6), (7) and (9) are to be implemented by the parent with whom the children are to live in the succeeding period collecting them from the other parent’s home at the time set for changeover unless changeover occurs on a school day.
That the children shall have telephone contact with the respondent husband at the same times and for the same periods as the applicant wife has had telephone contact with the children in the immediately preceding week.
Costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3467 of 2006

MS HENLEY

Applicant

And

MR MARPLE

Respondent

REASONS FOR JUDGMENT

These proceedings are to finally determine the living arrangements for the parties’ three children. The children are 12 year old twins, M and N, born in March 1997 and their 10 year old brother, T whose birthday is in November 1998. All attend S Christian School and live with the parties in a week about arrangement.
The wife is the applicant. She seeks that the children live with her and that the parents have equally shared responsibility for their care, welfare and development with the exception of immediate decisions which ought to be made by the parent with whom they are staying at the time about day-to-day matters. She asks that they spend time with the respondent husband on each alternate weekend from Friday afternoon until Monday morning or Tuesday morning on long weekends and each other Monday afternoon until Tuesday morning during school term and for half of each of the major school holiday periods. She seeks to share Christmas equitably and to provide specifically for Fathers Day, Mothers Day and the parents’ birthdays. She wishes that the children have telephone contact with the husband each Wednesday at 7pm when they are with her. She asks for what are the usual orders for provision of educational information to both parents. However, there are some exceptional orders she seeks. One is that the children continue to be educated at the school they now attend. Another is that the husband take the children to “all activities, such as sport and children’s parties, and each Sunday to a local Evangelical Pentecostal Church of his choice” when the children are with him. Presumably, she refers to sporting and the like activities which have already been arranged rather than those which the husband might arrange in future. She asks that the husband pay half the children’s school fees and the like and medical and similar expenses. Such claims for payment are child support issues over which I do not have jurisdiction. I have not been informed of any appeal from a child support departure application.
The Independent Children’s Lawyer supports the wife on the issue of essential living arrangements except that she asks for telephone contact twice each week. She also supports equally shared parental responsibility with two exceptions. They are that the wife have sole responsibility for any counselling, or similar therapeutic interventions and for any additional tuition for the children. She does not support the wife’s claim for restrictions on the school the children attend or in relation to church and sporting attendance but does seek an order that the wife facilitate the children’s attendance at any counselling which may be recommended by any of the children’s school principals or school counsellors provided the wife regards that counselling as appropriate.
The orders the husband seeks are that the parents have equal shared parental responsibility, that the children live with him and spend time with the wife during school term in each alternate week from Thursday evening to Monday morning and on each other Friday evening and for half of each of the four school holiday periods. He, too, seeks an equitable division of Christmas and to make provision for parental birthdays as well as Mothers and Fathers Day. A significant but not major distinction between the orders each party seeks is that the husband would have all changeovers at his home with the wife undertaking all transport for that purpose. The wife would have changeovers at an impersonal intermediate point, namely H McDonalds. He does not ask for any orders imposing inflexible predetermination of schooling or about church attendance etc. Importantly in opening, his solicitor said that though his instructions were to seek custody, the husband does not oppose continuation of existing residential arrangements.
At the time of the hearing the wife lived at L and the husband in the former matrimonial home at P. They live a little less than 9km apart by road. McDonalds at H is, however, not on the way between the parents respective homes. It is quite close to the husband’s home. The parties are in dispute over the small amount of net property they possess, very nearly $470,000.00 net. The wife seeks sale of the home at P and division of the net proceeds of which she asks for 80%. The house is said by the parties in their financial statements to be worth either $684,000.00 or $720,000.00. For the sake of determining the chances that the home will have to be sold, I shall assume it is worth roughly $700,000.00 and the mortgage is $320,000.00. 20% of the balance would give the husband $76,000.00 in addition to his other assets which he says amount to $67,000.00 including superannuation of about $50,000.00. He has no debts other than the mortgage debt, but his assets are only convertible to cash to a very small degree, if his Statement of Financial Circumstances is accurate. In that event, there is a prospect which is significant that he will not be able to keep his home as he seeks to do in his property claim. It is more probable than not, in view of the length of cohabitation, that he will get significantly more than the 30% of net assets that the wife would have him receive if his business is, as he says, worth only $5000.00. The hearing before me is limited to children’s orders, but I shall consider the convenience issues in the light of the prospect that he will probably not retain the home but will live in the area near it.
The wife is employed in providing personal services. She was born in 1970, so is now about 39 years old. She has remarried and lives with her husband and his two children in a six bedroom home. Her husband, Mr Henley, is aged 51 years and is a self-employed builder. They married in November 2007. He has three children from a previous marriage.
The husband is about a year older than the wife. He and she married in April 1995 and separated in March 2006. There is a dispute over about two weeks on the actual date of separation. He is in a relationship with Ms D, who is about 49 years of age. She is a payroll office and company director who has two children from a former marriage; boys aged nearly 15 and about 16½ and lives at W. Ms D and the husband do not live together although they regard their relationship as permanent. Despite this, they are not confident enough about it to have formed any plans to marry. The husband and the three children stay at her home on average on about one night in the week when he has the children.
In view of the above, if there are to be changeovers at an intermediate place, McDonalds at H may not be appropriate. In any event, changeovers at such places for children of the ages of these are unnatural and send an inappropriate message to them when compared with delivery by a parent to the other parent’s home.
In her report dated 11 October 2007 the Family Consultant, Ms K, recommended that the then existing week about arrangement during school term be continued with changeovers after school on Fridays and that school holidays be shared equally. I shall discuss Ms K’s reasons and report after dealing with the facts which I regard as relevant and significant, as I shall the recommendations Ms K made about parenting and related matters other than living time arrangements.
When the twins were born the wife ceased paid employment and cared for the children full-time. She did most of the things necessary for their care, including breast feeding until they were 11 months old, until October 1998 when, although she was pregnant with T, she commenced working for her father as a clerk each Saturday. This job ended when T was born in mid November 1998, so it lasted for just a few days. The wife did not recommence it until June 1999. When the wife worked, her mother rather than the husband, took over the children’s care.
The husband was an employed tradesman when the twins were born. He says he was, due to work, away from home for 60 hours per week over six days including travelling time. Not long after the birth he became self-employed but worked 48 hours per week over six days. He says, and I accept, that up to 2003 he did some things in raising the children. These could not have amounted to much time with them compared to the amount of time the wife spent with the children. On separation, she needed to adjust her working hours to meet the requirements of caring for the children and did so.
During the period before separation, one of the issues between the parties from the wife’s point of view was that she parented them and in doing so made the decisions which were unpopular with them whereas the husband did not support her and allowed them to exceed or believe he would permit them to exceed the boundaries she had set. He also involved them in the parties’ conflict by getting them to support him.
On 16 January 2006 after an argument, the wife took the children to stay with her mother for the night. The husband moved out of the family home the next day so the wife and children returned. On 2 March the husband announced he was returning home. In front of the children, he asked the children to tell the wife they wanted him back. They were upset when the wife successfully resisted the return. On 3 March the husband returned to the home and stayed against the wishes of the wife. She says that while he was there he tried to gain the allegiance of the children and verbally abused and disparaged her and discussed unsuitable personal matters, including their conflict, in front of them. The wife left the former matrimonial home on 12 March without the children. The husband changed the locks the next day.
The wife found a suitable home for herself and the children on 5 April 2006. Until then she had seen the children frequently but the parties could not agree on a regime for the children. Despite this, on 10 May 2006, the husband unilaterally enquired about enrolling the children at a different school. They had been attending S Christian School since 2003 in the case of the twins, yet he spoke to P Public School with a view to enrolling them there. This confused the children, but they have continued to attend S Christian School. It must be said that, from the beginning of their schooling, the husband had wished them to attend the public school but the wife’s will had prevailed.
The wife alleges the husband’s abuse and disparagement of her and his involvement of the children continued. She also claims he continued to attempt to gain the children’s allegiance. The wife asserts that by mid May he had commenced to make abusive telephone calls to her, sometimes as many as 20 in a day.
The wife complains that because of the husband’s permissiveness with the children, M was not doing her homework diligently and was falling behind at school. The wife also says that, whereas when she had the children she has not neglected them but when the husband had them they were not fed and clothed properly and were regularly farmed out to friends and neighbours. One neighbour exposed the children to pornographic videos. The husband continued to use this neighbour as a babysitter despite learning of this. By late May the children showed signs of alienation according to the wife. She argues that this was due to the husband’s disparagement of her. The husband’s practices in feeding and clothing the children are an insignificant issue because the children are in good physical health. The need for babysitters is a fact of life for most parents of young children.
A series of incidents occurred in late May 2006 which are instructive. By this time the children must have been spending block time with each parent. On 27 May the husband failed to have M’s netball shirt ready when she needed it. The wife would not give him the one she had. She had been faced in the past with the husband’s refusal to allow her to have any of the children’s clothes, especially when she left the home. She had had to purchase new sets for them. The husband told her he would tell M that she would not let him have the shirt. When the children were delivered to her the next day, a Sunday, they presented her with notes to the effect that they wanted her to return to the husband. N and T told her they wanted to live with him and M remonstrated with her about not being provided with the netball shirt. On 29 May the wife found some of her spare house keys in N’s pocket.
On 30 May, the husband arrived at the wife’s home and demanded to see the children. According to the wife, he pushed the door open, put his foot in the door and attempted to enter the house. In doing so, he pushed her in the chest. This is in contrast to his attitude to the wife once she had left the former matrimonial home. He would not let her return to collect her things or any of the children’s things. He then stood at the door and rang the doorbell continuously. He frightened the wife who was relieved when he eventually left after M had requested to be permitted to kiss him goodnight so he would go away. The next day the wife discovered her diary was missing. M admitted giving it to the husband the night before when she kissed him.
As a result of the whole incident, the wife called the police who obtained an Interim Apprehended Domestic Violence Order. The proceedings were later settled by the wife accepting the husband’s undertaking not to harass her. The undertaking is not without prejudice or without admission and amounts to an admission that he had intimidated, stalked, assaulted, molested, harassed and threatened her and otherwise interfered with her enjoyment of life. In it he also bound himself not to go within 50 metres of the wife’s then home. It was made on 18 August 2006.The husband told the children, according to what the wife says the children told her, that she had had him arrested for attempting to see them.
The husband claims that the wife made false allegations against him in relation to this incident. He admits putting his foot in the door after the wife refused his request to come into the house to see the children. He says nothing about not pushing the wife, but admits that M gave him the diary when she came out to kiss him. He gave it back to the wife the next day after she asked for its return. The husband’s allegation that the wife had made false allegations about him is no more than that. It is quite non-specific.
Mr C gave evidence in support of the husband. He said he had been a neighbour at the former matrimonial home and know the husband and the wife and that the husband had told him when he arrived back from the wife’s home on 30 May that he had put his foot in the door. The next day he was told by the husband he had been arrested after the wife claimed he had assaulted her during the incident.
Mr C was asked by the husband to deliver some clothes to the wife on 30 July 2006. When he arrived the wife was upset because she was having difficulty controlling the children. He claims that he was so concerned about her that he spoke to the husband when he returned home and the husband gave him the wife’s telephone number. He telephoned her and swore that during this 30 minute conversation she told him that there was no violence during the marriage and, in addition, said something to this effect:
Wife - I was very scared the night [the husband] came to the door wanting to speak to the children.
Mr [C] - Why?
Wife – I thought he was going hit me.
Mr [C] – [Ms Henley] you told the police that he did hit you and got an AVO. So now you are saying he didn’t hit you?
Wife – I was scared he was going to so I said that so I could get the AVO.
Mr [C] – So it looks better for you in Court?
Wife – yes.
If this version is to be believed, at least it confirms the fact that the husband scared the wife sufficiently to make her fear he would hurt her, so she was entitled to an ADVO. The wife simply says she did not tell the police or Mr C that the husband had hit her. She says she did not lie to the police and told them the husband only pushed her.

Although some police reports were subpoenaed and are before the Court, nothing about this incident is; neither a report nor any formal statement by the wife to the police. It is the husband who is asserting the wife falsified her claims. In the face of her denials, he could have subpoenaed and tendered the police record of the incident but failed to do so. It is to be assumed that this otherwise inexplicable failure raises the inference that this evidence would not have assisted his case on the issue.
There is simply no direct evidence that the wife told the police the husband hit her. It is not the only aspect of the evidence on this issue which does not assist his case. Mr C put the words in her mouth about hitting. It does not surprise me. It was before the husband was due to go to court for the ADVO hearing. Mr C is a federal policeman. He was a most unimpressive witness. He gave me the strong impression that he is adept at lying on oath, possibly because he had had much practice in doing so. I accept the wife’s word about this incident where it conflicts with that of the husband and/or Mr C. The conversation between Mr C and the wife leaves me with the impression it was planned in advance by the husband and Mr C to verbal the wife. “Verbal” is defined in the Macquarie dictionary. One of its usages is: “9. (of the police) to insert into a prisoner’s statement admissions which he did not make, and present to a Court as evidence.” I shall not be influenced by what other police may have done to make the meaning of the word come into our language. I think this is what Mr C has probably done. In my assessment, the evidence the husband has attempted to rely on involving the pushing incident confirms the view of him as a devious and unreliable witness which I formed when he was in the witness box. Where his evidence conflicts with that of the wife, generally I prefer that of the wife.
The wife saw a marked shift in the children’s attitudes to the parties by August 2006. The children had commenced to make comments to the wife which are reflective of the husband’s case against her. Her birthday was in mid-August. The children telephoned her and told her they did not wish to see her but preferred to remain with the husband. This seems to be quite inconsistent with the importance children habitually place on birthdays. It is likely to be an example of his cynical preparedness to use the children against the wife. The next day the children exhibited another example of the problem. Both the husband and wife are church goers. The hypocrisy of the husband and his lack of concern for the children’s emotional health can be seen by what the children said to the wife while they were at her home. They continually said things like “This house is crap. Our real home is with Dad at [Y Street]. Real mums don’t leave their families. You didn’t have to leave Dad. He loves you and wouldn’t hurt you. Real Christians don’t leave their husband’s so you’re not a Christian”.
The children’s behaviour towards her became more difficult and they did not alter their attitudes. Her brother was told by the husband that he had told the children to give the wife “a hard time”, to run away from her and to “show her what it would be like to be a single parent”. The husband also admitted he had “…just had someone drive by her home regularly to report on her activities” when the wife’s brother asked him if he had been stalking her. The children frequently said they hated her. The husband told the wife’s brother that they hate her in front of them. M voluntarily agreed without the husband attempting to ameliorate her stated feelings. The children also made comments to the wife in the following months to the effect that she was trying to take the husband’s money and was taking him to court to “make him sell our real home”.
The family had been having counselling which had been recommended by their school. On 28 August the counsellor informed the wife that because the husband had told them so, they were convinced she had a boyfriend. The husband admits he told them this. It could only have been calculated to further harm the children’s relationship with the wife. It could not be regarded as an attempt to ensure the children were not misled or knew the truth. The husband does not suggest it was for these reasons.
The children’s behaviour worsened and their school progress was delayed over the following months. The husband’s behaviour towards her did not improve despite his undertakings to the Local Court. The husband continued to make abusive telephone calls to her. Once the wife inadvertently overheard the husband speaking to M by telephone when he said “I thought you were going to ring me from your mobile when you ran away”. At about the same time M searched for and found the wife’s diary and gave it to the husband again. When found out, she said the husband had told her to do it.
On 27 September 2006 M told the husband she had been locked in the boot of the wife’s car. The husband informed the police. The car had no boot and the police did not take any action despite urging by the husband. More significantly, M had used a telephone the husband had given her to hide at the wife’s home without the knowledge of the wife. When the police refused to act, the husband tried to take M out of school so she could make a statement to the police. M had already told the police when they attended the wife’s home without warning that while she was being driven by the wife she had had a tantrum during an argument and climbed into the luggage space between the rear seat backrest and the rear door and stayed there for a short time. She admitted having told the husband she had been stuck there. The wife had had no warning of the police visit and no opportunity to interfere with the story M told the police.
The wife then decided to change her approach with the children. She commenced to reward them for good behaviour and give them more independence and responsibility. It worked to extent that the children’s behaviour improved and they ceased abusing her and settled to the extent that they accepted more of the boundaries she set. The husband had caused discontinuance of the counselling which had been recommended by the children’s school. He had interfered with the children’s attitude to it and undermined the relationship they had had with the counsellor. The wife initiated different counselling for the children.
On 21 December 2006 the parties entered into interim consent orders to share the Christmas 2006/7 school holidays equally and thereafter for the children to live with each parent on a week about basis. Nevertheless, the husband continued to undermine the wife’s time with the children by organising attractive activities with him during it.
On 10 May 2007 M told her she did not wish to live with the husband because it was too confusing for her to live in two homes. The day before the children had told them that the husband’s girlfriend, Ms D, sometimes cared for them when the husband’s parents were not available and the husband was at work. I can discern nothing untoward or harmful to the children in such a normal arrangement in circumstances where the parties had agreed to equally share care in the period until final orders were made.
There were more adverse incidents after the consent orders were made. The husband persisted in making unwanted telephone calls to the wife and continued involving the children in the dispute. On 20 July, when the children were due to be returned to the wife, the husband failed to bring them to her and said he would not be returning them. He returned them two days later.
On 20 December 2006 the wife met her current husband. They married in November 2007. The wife has lived with Mr Henley since they married. The three children live with them on the basis which was agreed for the purpose of the interim orders which were made on 21 December 2006. The children are said by the wife to have a good relationship with Mr Henley and the two of his three children who live with him. Mr Henley is about 52 years old. His two children who live with him are a girl aged 24 and a boy aged 18. Before the marriage, according to the wife and Mr Henley, the parties’ three children were keen to live with the wife, Mr Henley and his children as one family.
The husband is hostile to Mr Henley and destructive of the children’s relationship with Mr Henley. He has remained difficult and abusive towards the wife after her marriage. He has the habit of being unreliable about the children’s return to the wife at the end of each period he has with the children. My assessment of Mr Henley is that he has no animosity toward the husband but does not approve of much of his behaviour. Mr Henley is a most suitable surrogate father for the children.
The husband’s behaviour towards the wife and his attempts to undermine the children’s image of her and to improperly involve them in his conflict with her and gain their support against her have continued. He still harasses the wife with unwanted telephone calls, calls the children whenever he pleases yet limits the wife’s calls to the children. It is disturbing that the husband, with the connivance of his parents, for a second time gave M another telephone with the intention that she conceal it from the wife. All three children were in on this and when discovered told the wife that the husband had instructed them not to tell her of it.
The children’s performance at school declined in 2006 and in 2007. The wife blames the husband for this, saying he does not make them do their homework, fails to instil any self-discipline into them and encourages their challenging and often inappropriate behaviour at school. It may be that she assumes that he is the cause of the problems because she, understandably, does not approve of his relevant behaviour and attitudes. Nevertheless, it may be the marital breakdown which is at the root of the problem for the children or is partly the cause and that the raising of conflict which appears to me to be principally caused by the husband simply exacerbates the children’s problems.
Ms D is divorced and has two children who live with her and spend alternate weekends with her and the husband. Her romantic relationship with the husband commenced in late 2006. She and the husband say she has a good relationship with the parties’ children. They stay at her home, on average, on one night during the week when the husband has the children and she often spends weekends at his home when her children are not with her. In my estimation, she is unexceptional and does not seem to bear any anger or resentment towards the wife and would make a good surrogate mother for the children.
The wife’s mother and her brother and the husband’s father gave evidence so I had the opportunity to judge them. I formed no adverse impression of them which could be relevant.
The most essential aspect of the father’s case is that he has changed and now realises that many of his actions have been inappropriate. He said he has had time to reflect, whereas he previously had not thought about the consequences of his behaviour. I do not believe him. As I have said, I did not have the impression he was a candid witness. I found him to be manipulative in his stance that he had changed, and generally deceitful. When being cross-examined, he told some blatant lies. The most obvious was when he was asked whether he was in the habit of going out on drinking binges and not returning home until the next day. He admitted to doing this once early in the parties’ marriage. He seemed to be attempting to give the impression he was, by admitting this, being quite frank. However, when it was pointed out to him that at 5.10am on 14 January 2007 he had been picked up by the police after being out all night drinking and was so drunk that he could not find his home, he was forced to admit he had not been telling the truth when he claimed this type of incident had occurred only once and that it had been early in the marriage. I regard his claims about reforming as tactical lies just as was his lie was about being out all night.
Another example of the husband’s lies of convenience is when he said in cross-examination that if the children are to live with him he would arrange for counselling for the children because the Family Consultant, Ms K, had recommended it. In what I regard as an extremely cynical and disingenuous tactical claim he said he would seek out Ms R, the counsellor the children attended soon after separation because the school had recommended counselling by her. This is the counsellor who had refused to continue counselling the children after about five sessions because the husband had told the children that she was a friend of the wife and had so destroyed the children’s trust in her that she felt she could not continue as their counsellor. The husband ought to have known when he gave evidence that she would probably refuse to provide further counselling because there was no reason to think the children had ceased to believe she was a friend of the wife and would favour her as against the husband. If he did not realise the inappropriateness of his nomination of her as the prospective counsellor, there is no reason to believe he has gained more insight and understanding than he had in the past. The alternative is less complementary to him. If he was simply being manipulative in nominating Ms R because he felt he would make the best impression on the Court by doing so without being genuine about counselling, the implication is that he did not care to do as Ms K advised would advance the children’s welfare. I regard his answer to have been motivated by elements of both of these thought processes.
Apart from claiming to have changed, the husband has criticised the wife’s case; in effect, arguing that it and the orders she seeks demonstrate the inappropriateness of those orders. It is said that whereas the wife’s case is a litany of criticism of the husband’s behaviour, he has made few criticisms of the wife yet it is said most of the complained of conduct he is accused of was before late 2006. The wife’s case, it is said, is an attempt to justify the orders she seeks which do not give the children a continuing opportunity to have a meaningful relationship with the husband. It is also submitted that the children wish to live with the husband and have a better relationship with him than the wife and therefore, he is better able to meet their emotional needs, whereas the parents’ capacities to meet their physical and intellectual needs are equal as is their willingness to foster close relationships between the children and the other parent. He also claims to be more child focussed than the wife. It is said that there was no family violence, but if there has been it is not an important issue because of its limited nature.
Originally, the husband opposed the children continuing at their current school. It became apparent that his real objection was based on a claimed inability to meet private school fees but that the wife intended to meet these fees and rely on this obligation as part of her case in the parties’ section 79 dispute or in a child support dispute. The husband withdrew his objection to the children continuing to attend their current school.
There may be confusion about the overall stance the husband ultimately took in the proceedings. During the hearing it was made clear that the husband, although claiming principal residency would be content to fall back to the residential regime which currently exists; equal time with each party on a week about basis and half of each school holidays. However, in his closing address, the husband’s solicitor said the husband does not oppose the orders sought by the Independent Children’s Lawyer. These orders are very similar to the orders sought by the wife, the only really significant difference being that the Independent Children’s Lawyer would have the children have an overnight stay with the husband instead of the evening visit which the wife would allow alternate in the week when there is no weekend contact and some differences in the areas of sole parental responsibility which would granted to the wife. The impression I gained from the husband’s solicitor is that he was really conceding that the husband will accept that the wife should be granted the sole parental responsibility in the areas which the Independent Children’s Lawyer requested.
The wife’s case is:
a)that the orders she seeks will allow the children to spend substantial and significant time with the husband given his significant input into the children’s lives and will allow the children to see their paternal grandparents frequently;
b)will best protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence because they will tend to isolate the children from the husband’s neglect, adverse influence, verbal abuse of the wife, assault on the wife and disparagement of the wife;
c)will, despite the children’s expressed wishes to live with the husband, tend to reduce his influence in creating this situation to meet his own needs rather than of the children. It is submitted that the children’s wishes should be given little weight because they have been influenced by the husband’s selfish actions;
d)the children have an appropriate relationship with the wife and get on well with her husband and his children;
e)the children’s alignment with the husband is inappropriate and unhealthy for them and will, if it continues, leads to problems for them in later life. The orders she seeks will tend to reduce the extent of their alignment;
f)the wife is supportive of the children having a good relationship with the husband and Ms D whereas he is not supportive her relationship with herself and her husband;
g)the husband demonstrates little insight into the adverse effect he has had on the children’s wellbeing; and,
h)the wife is better equipped to meet their emotional and intellectual needs and is a more responsible parent.
The wife also adopted the approach of the Independent Children’s Lawyer, Ms Karagiannis, in her closing address. She pointed out that a week about residential regime does not work on its own. Here there are factors which militate against such orders. They are:
a)different parenting styles;
b)lack of potential ability to communicate;
c)different parental values;
d)lack of mutual respect between the parents; and
e)no positive relationship fostering by the parents.
It was also submitted that the weight to be attached to the children’s wishes should be minimal because of the influence on them of the husband, the children’s awareness of and need to provide for the husband’s emotional needs and the failure to address their own essential needs and the lack of maturity of the children. It was asserted that the wife is the more able and effective parent who can support appropriate relationships between the children and significant family members whereas the husband is incapable of doing so.
The Independent Children’s Lawyer argued that the husband is a poor role model who is self-indulgent and lacks self-control and is without insight into the children’s emotional needs. She said that some of the children’s behaviour amounted to risk taking which was the result of the conflict between the parents which was largely caused by the husband. It was also said that the wife has been the more responsible parent whereas the husband’s actions have been driven by his own selfishness. The Independent Children’s Lawyer submitted that the wife was a much more credible witness than the husband.
Ms K gave oral evidence and provided a Family Report on 11 October 2007. Although she first interviewed the parents in September 2006, the most significant interviews were in September 2007. She has not interviewed any of the grandparents or Ms D. She did interview Mr Henley but not any of his children.

When Ms K interviewed the children she found M and T to be anxious and N to be “quiet and self-contained”. They tended to gravitate towards the husband rather than the wife, but they did so in a way which made the counsellor think that they were providing him with a protective shield; that is, parenting him rather than having him protecting and parenting them.
M seemed to be overly influenced by and aligned with the husband. The views she expressed seemed to reflect the husband’s views. She said she wished to live with the husband. She was negative towards Mr Henley and his children. Her attitudes were probably the result of the husband’s influence.
N seemed to feel loyalty to both parents and appeared to Ms K to have a positive relationship with both. He regretted not being able to telephone his mother when he is with his father. Ms K felt it was possible “even at this stage” that N felt closer to the wife than to the husband. She felt that this might be so because N regretted not being able to telephone the wife. This could just as easily have been a manifestation of being restricted by the husband in telephoning the wife while being less restricted by the wife in telephoning the husband. N held some views which reflected attitudes which the husband had probably influenced him to adopt. He, too, wanted to live with the husband but felt it would be acceptable if the week about arrangement were to be continued and also felt the same way about the proposal that he live principally with the wife. In each of the latter possibilities, acceptability was conditional on being able to telephone the other parent when he wished to.
T’s attitudes were similar to those of M. He is aligned to the husband and wants to live with him.
When the children were observed with the wife, the group was cohesive and relaxed, but the children competed for her attention. They reacted well to Mr Henley and his youngest child, a son. The children’s interaction with the husband was much the same as it has been with the wife.
Ms K formed the opinion that the children were aware of the husband’s negative views of the wife and her relationship with her husband and are aligned with the husband. She thought they “remain connected to their mother, albeit that this connection is being eroded by their father’s attitudes and views”, meaning they are becoming more alienated from the wife although the process is not complete. She said the children’s emotional development will be damaged if he continues to act as he has. She is of the view that the children need “therapeutic assistance and protection from the father’s negative view of the mother and the parental conflict”. Ms K found the wife to be insightful and understanding about the issues raised for the children as a result of the separation and is competent to deal with them successfully. She regards the husband as in need of counselling for his own emotional wellbeing. I accept Ms K’s opinions. I am of the view that the husband is quite unwilling to seek help for her problems and could not be forced to do so effectively.
Ms K was conscious the arguments against equally shared residence which arise from the facts of this case and which the Independent Children’s Lawyer emphasised. She was also concerned, in M’s case, that M should be provided with appropriate boundaries by the husband which ensure that events involving her in the wife’s home be dealt with by the wife and that the husband should not interfere.
Ms K was extremely concerned that if the children were made to live mainly with the wife the husband’s response would be such that it would have “such significant adverse effect on the children’s emotional stability” that it would create difficulties for the which, presumably, would cause their behaviour to deteriorate to the extent where the wife may not be able to deal with it. Ms K, very reluctantly, recommended a continuation of the current equally shared parenting on a week about basis because that situation is the least likely to further undermine the children’s emotional health.
She introduced a further element of caution in implementing such a regime by suggesting that it is vital for the children’s wellbeing that the husband gain a better understanding of the adverse impact on the children of his emotional disturbance. Ms K recommended that the husband have individual counselling for the purpose of dealing with his adverse response to the separation and to better understand the children’s needs. She also recommended that the children have counselling in order to help them adjust to the parental separation and that the parents take part in that counselling. She said that once the husband has attended sufficient individual counselling, both parents should receive counselling to help them to communicate.
In her oral evidence, Ms K said what later seemed apparent to me from observing the husband giving oral evidence. She did not believe the husband has been able to move on from his initial reaction to the marital breakdown. More importantly, he is not motivated to do so. I agree. I cannot accept that counselling will help him. He may be forced to attend. He cannot be forced to be receptive to it.
She also elaborated by what she meant of her reference to the children’s behaviour becoming such that the wife may not be able to deal with it. She said she thought the children would make life difficult in the wife’s household and that there would be ongoing conflict, presumably between the wife and children and the husband and wife, and such deterioration in their behaviour that the child welfare authorities would be likely to become involved. She said there would be constant undermining the wife’s role and the boundaries she sets as well as the routine of her household. She predicted that the children would “act out” their anger at the wife, would become more disrespectful at school, would fail academically, would be likely to be expelled from their current school and repeat that conduct at any new school. She said that they could become even more aligned with the husband.
These are indeed terrible consequences of what I accept is a degree of wilfulness, selfishness, self-indulgence and lack of insight which amounts to emotional disturbance in the husband. I have no confidence that he will change. The options which Ms K envisages will be either harmful or even more harmful to the children. Ms K said something when she was being cross-examined on behalf of the wife which offers some comfort to the Court, but not much. She offered the opinion that if the Court is satisfied things are settling down under the current residential regime, its continuation would not be as likely to cause problems for the children’s emotional well being. She simply dismissed the possibility that it might be best for the children to live principally with the husband and said that contact between the parents should be limited to avoid unseemly incidents. The situation has settled down by a significant extent.
The Family Law Act prescribes the approach the Court should take to determining children’s cases. Section 60B sets the tone and states the relevant objects of the Act and principles underlying them.
Section 60B(1) emphasises that the essential objects of Part VII, the relevant part of the Act. It provides, so far as is consistent with a child’s best interests, that children should have the benefit of a meaningful involvement in their lives by both parents, that they should be protected from harm, including psychological harm, caused by exposure to abuse, neglect and family violence. In this context “abuse” does not include psychological abuse. It is limited to sexual or physical abuse. This subsection also states that the parenting children may receive should be adequate and proper so they are encouraged to reach their full potential and that parents should fulfil their duties and responsibilities concerning a child’s care, welfare and development.
Section 60B(2) states the concepts which are behind the objects. These are that children have a right to know and be cared for by both parents, that children have a right to know and be in regular face-to-face and oral communication with both parents and with others of importance in their lives, that parents should share the duties and responsibilities in raising their children properly, that parents should make parenting decisions by agreement and that children have a right to know and enjoy their culture.
By s 61DA the Court must presume that it is in a child’s best interests for its parents to share the responsibility for undertaking the duties parents have to children and the authority and powers they share over them. This presumption is rebuttable to the extent in an individual case that the facts require it to be departed from to best advance the child’s welfare. This presumption does not extend to equal sharing of children’s residential or other time between parents.
Section 65DAA specifically deals with the manner in which the Court should decide how to divide a child’s time between its parents. As it is contemplated that parental responsibility orders may share it equally for the children in these proceedings, the Court must consider, pursuant to s 65DAA(1), whether the best interests of any of the children will be achieved by him or her spending equal time with each parent and whether equal time is practical. If the child’s best interests are advanced and equal time is reasonable and practicable, the Court must consider making, but is not required to make, an equal time order.
By s 65DAA(2), if the Court does not make an equal time order and an equal parental responsibility order is in force or contemplated, the Court must consider whether it should be in the best interests of each child and is reasonable and practicable to make an order that the child spend substantial and significant time with each parent. If it is both, the Court must consider making such an order but is not required to make it.
Section 60CA of the Act makes the child’s best interests the paramount, but not the only, consideration when it is considering what parenting order to make. One must, by s 60CC, follow the protocol there entrenched in deciding what is in a child’s best interest.
Section 65DAA(3) in effect defines the limits of what is “substantial and significant time”. Time only comes within this description if the time the child is to spend with a parent includes weekdays and days which fall on weekends and holidays and allows the parent to be involved in its daily routine and be involved in events of special significance to the child as well as allows the child to be involved in events of special significance to the parent.
Section 65DAA(5) of the Act determines the limits of reasonable practicability to be discerned by the Court. The Court must measure it by considering the distance apart of the parents’ homes, the parents’ capacity to implement an equal or substantial and significant time regime, their capacity to communicate and resolve difficulties in implementing those time arrangements, the impact that the arrangements are likely to have on the child and any other matters of relevance.
Here the critical problem, as can be seen from the facts and the evidence and recommendations of Ms K, is to decide where the children’s best interests lie. The children have already been involved in equal time share residential arrangements and do not seem to have been inconvenienced too much by them. The parties live reasonably close to one another and to the children’s school but the husband may move. Despite an incident when M told the wife she was confused by them, it is clear that the practical physical problems should not exclude equal time or substantial and significant time with each parent. Moreover, despite the parental conflict and the husband’s bad attitude, the parties have largely been able to implement an equal time regime so have the capacity to implement it. However, the parties cannot communicate adequately and are not likely to be able to do so in the future because of the husband’s emotional disturbance.
The issue of practicability involves the impact the possible arrangements are likely to have on the children is one which is at the heart of the difficulty in reaching a decision in these proceedings. It is not merely a matter of assessing the impact, it essentially involves assessing how the children’s best interests can be optimised.
Ms K’s evidence is really that any regime other than a continuation of that which is now in force or something very similar will have a devastatingly adverse impact on the children and that, while the current style of equally shared residence is quite undesirable, it is the best alternative because all are for one reason or other undesirable and will not eliminate adverse consequences for the children’s welfare. In that case, as the impact on the children of maintenance of the current residential regime is likely to be the least adverse, it is at least practicable and can be said to be reasonably practicable by comparison with the alternatives. Thus, the Court must consider an equal time residency regime.
If such a regime is rejected by the Court, it must consider a substantial and significant regime. At this stage, as equal time has not yet been rejected, it is sufficient to mention that in my assessment the regime proposed by the wife and Independent Children’s Lawyer do not permit such a regime because they do not permit sufficient weekday contact with the husband during school term to be regarded as permitting the husband to be involved in the children’s daily regime.
The protocol for deciding where the children’s best interests are requires the Court to regard two matters as being of primary importance. These are specified by s 60CC(2) as being the benefit of having a meaningful relationship with both parents and the need to protect the children from harm, either physical or psychological, caused by the children being subjected to or exposed to physical or sexual abuse, neglect or family violence.
In considering meaningful relationships, it tentatively seems to me that the most realistic alternative to equally shared residency would be to grant residency to the wife and refuse the husband all or virtually all contact with the children. Equally shared residency will best allow a meaningful relationship between the children and each parent despite the strong possibility that continuing this level of the husband’s involvement with the children will permit him to continue to align the children with himself and alienate them from the wife. The dilemma I have is that if the children are to spend more than equal time with the wife, because I accept Ms K’s oral evidence about the consequences, such a regime will undermine the children’s mental health and not be in their best interests because of the effect on the children of the husband’s reaction to such a regime.
The alternative would be to grant residence to the wife and give the children little or no contact with the husband. This will destroy their ability to have a meaningful relationship with him.
I am not satisfied that the children are likely to be exposed to much physical abuse in the future, irrespective of the orders which are made. There have only been two or three incidents in the past and all have been minor, although the wife found the incident when the husband put his foot in the door and pushed her frightening. Ms K predicts that if orders are made which cause a bad overreaction in the husband, such as anything more in favour of the wife than equally shared residency, the children could be exposed to family violence committed by the husband. I do not accept the claims by the husband that the wife has been physically violent to M by putting her in a car boot or that T has been thrown anywhere by Mr Henley and find that there is little likelihood that the children will be sexually or physically abused. I also do not fear that the children will be exposed to sexual abuse if cared for principally or equally by the husband. The incidents involving the O family are not likely to be repeated.
If there is equally shared residence and changeovers are at school, face-to-face contact between the parents will be minimised. This will reduce the likelihood of incidents involving abuse or family violence between the parents occurring in the children’s presence.
The additional considerations which, by s 60CC(3), the Court must entertain are best dealt with in the same order as the paragraphs of that subsection.

(a) The children’s expressed views

These clearly all favour the husband because the children have been unduly influenced by him. Occasional statements to the contrary to the wife are of little significance. What is significant is that the children’s views are clearly contrary to what is in their best interests and reflect the husband’s needs rather than their fundamental needs. These expressed views should be given little weight, especially because the children are still relatively young and probably immature for their ages.

(b) The children’s relationship with their parents and others of significance

The children have what is basically a good underlying relationship with the wife which has been damaged by the husband’s deliberate interference. If this interference continues there is a very significant chance that the children will become fully alienated from the wife. If this trend continues the only alternative the Court will have will be to grant residence to the wife and deny all contact between the husband and children.
Currently the relationship between the husband and children is close but not good. They feel responsible for him and promote what they feel to be his welfare in preference to their own. He parents them as though he is their child, caring for his needs in preference to theirs. This is a harmful and destructive situation for the children to be in. It should be changed. The problem is that change will probably be for the worse.
The children’s relationship with the parents’ partners and their children is at least satisfactory. I know little of the children’s relationships with their grandparents, although I do know that the husband’s parents, like the husband, do not seem to appreciate that it will harm the children to undermine their relationship with their mother. That this is the case is illustrated by the paternal grandparents’ involvement in the provision of the telephone which the children should not have had in late 2006 and was discovered by the wife on New Year’s Eve.

(c)Willingness of the parents to encourage close and continuing relationships between the children and the other parent

The wife is appropriately willing whereas the husband is quite unwilling.

(d)Likely effect of change

If, as otherwise seems to be an appropriate prospect, the children are to spend most of their time with the wife, the husband is likely to react so badly that it will have an adverse effect on the children’s welfare, as has already been explained. If there is no change in residential arrangements but the husband continues as he has in undermining the relationship between the children and the wife, there is a real prospect that his contact with the children will be ended by the Court, thereby emasculating the relationship between the children and the husband for the good of the children.
If orders are made which give the husband more time than he currently has with the children it is likely that he will destroy the relationship between the wife and the children by continuing to undermine her by the methods he has been constantly employing, to the children’s great disadvantage.

(e)Practical difficulties of contact

There should be none of substance which will be added to the current situation irrespective of the orders which are made. The inability of the parents to communicate will be a continuing practical problem unless contact between the children and one party ceases.

Another practical difficulty is the husband’s unwillingness to give the children free telephone contact with the wife while demanding such contact with the children for himself, as well as his tendency at times to defy orders of the Court.

(f)Capacity of the parents and others of relevance to provide for the children’s needs

The wife has a far superior capacity to provide for the children’s emotional and intellectual needs. She does not undermine the husband’s image in their minds and is doing her best in difficult circumstances to guard the children’s emotional health. She appreciates that to damage it will also lead to deterioration in the benefit the children gain from education and could ultimately lead to physical damage for them because they may become risk taking teenagers. She is conscious of the need to ensure they behave well at school and do their homework. The husband is grossly deficient in all of these areas when compared with the wife.

(g)Maturity and other relevant characteristics of the children

They are young and immature for their ages and quite vulnerable to the husband’s manipulation and self-indulgence. Their emotional health is at risk from the husband. The children have already become more distant from the wife and more aligned with the husband than they should be and are being conditioned by him to react to the needs and wishes of others in preference to meeting their own essential needs and wishes. The long-term effects of the situation are that the children will become easily led teenagers who will be subject to the well understood risks that such teenagers face.

(h)Not relevant

Attitudes of the parents to their parental responsibilities

The wife is a responsible parent, the husband is not.

(j)Family violence

I have already referred to the issue of family violence as it is raised by s 60B(1). I shall consider what I said in that context for the purpose of s 60CC(3)(j). However, the main violence issue in these proceedings is the non physical or verbal abuse the husband habitually directs toward the wife, often in front of the children. I regard this as emotional abuse of the wife and children. It will have to cease if the husband is to have continuing contact with the children.

(k)Family violence orders

These are none current. However, the husband made undertakings to a Local Court which he has not kept.

(l)Ending litigation over the children

It is usually preferable for the Court to make orders which achieve this. One would hope to be able to do so here. I am not confident that this can be done.

(m)Other relevant matters

I have referred to all matters which I regard as having the potential to affect the outcome of these proceedings. There are no other matters thrown up by the evidence which I regard and being capable on their own or in combination with matters I have mentioned and/or matters I have not mentioned which have sufficient weight to do so.
I have found it exceptionally difficult to come to a decision in this matter despite now believing that I have little choice in the orders I have decided to make. I conclude, after weighing all the matters referred to above, that the choice should be between only two possibilities if the best interests of the children are to be protected to the greatest extent the Court can provide. Either the current situation should be continued or the children should live with the wife and have no contact whatsoever with the husband. Anything in between is bound to fail and is highly likely to harm the children’s mental health because of the husband’s near certain adverse reaction to it. Currently, I regard continuation of the current arrangements as the lesser evil of the two risky regimes which are the remaining alternatives.
My major concern about making orders to continue the current regime is that they are highly likely to encourage the husband to maintain the course he has already embarked upon, in his mind, with relative success in the expectation that he will be able to punish the wife more by further alienating the children from her. I nevertheless conclude that the risk to the children’s welfare inherent in equal time orders is less than the risk inherent in ending the husband’s contact with the children. If the orders I make do encourage the husband to continue alienating the children from the wife or, for whatever reason, he continues to do so, the only realistic alternative for the Court is likely to be ending of contact between the children and the husband.
I shall make orders which create an equal time regime which will tend to keep the parties away from one another. Some contact between them must occur. It is better at the parties’ respective homes than in public places because that will be seen by the children as more normal.
For telephone contact, to encourage the husband to desist from obstructing such contact between the wife and children, I shall make an order which only permits the husband to have the amount of telephone contact the wife has had with the children in the prior week. This will have the added benefit for the children of allowing the wife to limit the telephone contact between the children and husband to what she regards as reasonable.
I shall grant the parties equally shared parental responsibility except for decisions about the school the children are to attend and counselling they are to attend. I shall not order counselling for them. I am confident the wife, who has qualification as a counsellor, will obtain appropriate counselling for the children as needed but shall order the husband to attend such counselling if the counsellor requires his attendance. I shall not order the husband to have counselling either in relation to his personal emotional health or in relation to his ability to cooperate with the wife in parenting the children. I do not accept that the husband is willing to participate in it in a productive way and if a counselling order is made I expect him to merely go through the motions of counselling without being committed to it so it cannot be said he did not obey the order for it. Attendance at the children’s counselling is different. His attendance will allow the counsellor to better understand the children’s problems and needs.
I shall not, as the wife asks, require the husband to take the children to church or activities the wife has arranged or is committed to. The wife has to appreciate and accept the husband has as much right to influence the children’s religious beliefs and decide their activities as she does. Both parties should appreciate that where they differ in fundamentals in relation to raising their children and both have attitudes and beliefs which are acceptable in the community, they should endeavour to compromise in order to avoid the children being torn between them. I shall not make orders about the children’s or the parents’ birthdays. The children’s birthdays involve too many practical difficulties. The parents’ birthdays can do so too, but more importantly, I hold the view that the parents need to learn to cooperate and their birthdays are a useful tool to get them to start learning. Unless they do, the celebration of their birthdays on the actual day should be left to the vicissitudes of the calendar. I should and shall made orders which reflect the above.

I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:

Date: 2 October 2009

[2009] FamCA 948

2 October 2009

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