HOLMAN-LLOYD & LLOYD
[2010] FamCA 840
•22 September 2010
FAMILY COURT OF AUSTRALIA
| HOLMAN-LLOYD & LLOYD | [2010] FamCA 840 |
| FAMILY LAW – CHILDREN – where parties establish week about equal time arrangement for three children – where parties agree equal time arrangement failed – where children desire a home base – where children placed under pressure to take sides – separation of siblings – where parties’ dispute has taken a heavy toll – where parties cannot communicate – sole parental responsibility ordered – children to live with one parent and have substantial and significant time with the other |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61C(1), 61DA, 61DB, 64A, 65AA, 65DAA, Pt VII Evidence Act 1995 (Cth) s 140 |
| Mazorski v Albright (2007) Fam LR 516 Goode and Goode (2006) FLC 93 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Holman-Lloyd |
| RESPONDENT: | Mr Lloyd |
| FILE NUMBER: | NCC | 856 | of | 2009 |
| DATE DELIVERED: | 22 September 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATES: | 23, 24, 25, 26 and 27 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wong |
| SOLICITOR FOR THE APPLICANT: | Bells Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bateman |
| SOLICITOR FOR THE RESPONDENT: | Stacks Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hartley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Attwaters Solicitors |
Orders
All prior parenting orders in relation to “the children” N born … June 2001 and H born … February 2003 are discharged.
That the mother have sole parental responsibility for the children.
Notwithstanding the provisions of Order (2) above the father is responsible for the day-to-day care, welfare and development of the children while they are with him.
Until the end of Term 3, 2010 the children will live week about with the parties in accordance with the notation to the orders dated 2 June 2009.
Commencing from the end of Term 3, 2010 the children shall live with the mother.
Commencing from the end of Term 3, 2010 the children spend time with the father as follows:
(a)during school term, from after school Friday until the commencement of school on Tuesday each alternate week;
(b)for the first half of each school holidays in odd numbered years and the second half in even numbered years;
(c)on V, N and H’s birthdays, from the completion of school on the day preceding their birthdays until the commencement of school the following day or 10.00 am if the following day is not a school day; and
(d)at such other times as the parties agree.
In the event Mother’s Day or Father’s Day falls on a weekend when the children are not with that parent, then the children spend time with that parent from 9.00 am until 6.00 pm.
That should the parent having the children in his or her care for the first half of the Christmas school holidays be in the same locality (that is, holidaying or resident within 50 kilometres of the other parent) the other parent shall spend time with the children from 3.00 pm Christmas Day until 3.00 pm Boxing Day.
The parties shall facilitate telephone contact between the children and the other parent each Wednesday and Saturday between 5.30 pm and 6.30 pm by having the children place a telephone call to the other parent. If the children are unavailable, the parent who has the children’s care shall have the children call again within 24 hours.
Changeover on a school day will take place at school. On non school days, it shall occur at Hungry Jacks at T.
The parties are restrained from denigrating the other party or their family members in the presence or hearing of the children or permitting any other person to do so.
The parties shall keep each other informed of changes to their residential address and telephone contact number.
The mother shall promptly notify the father of any major long term decisions she makes in relation to the children including but not limited to their:
(a)education;
(b)religion; and
(c)health.
Until the end of 2011, the mother is restrained from withdrawing the children from U Primary School.
That the parties ensure the mother and V attend counselling with Interlink at times and for so long as is recommended by the counsellor. The costs associated with this counselling shall be shared equally by the parties.
That the mother pay the Independent Children’s Lawyer’s costs of $2,128.50 within 7 days of receiving payment from the father of the funds payable to her pursuant to property settlement orders.
That the father pay the Independent Children’s Lawyer costs of $8,535.83 within 42 days.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Holman-Lloyd & Lloyd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC856 of 2009
| MS HOLMAN-LLOYD |
Applicant
And
| MR LLOYD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for property settlement and parenting orders. The parenting proceedings relate to the parties three children, V, H and N. During the hearing, the parties reached agreement about property and in relation to V. They agree V should continue to reside with the father[1]. V’s relationship with the mother is strong but conflicted and whether she will have significant contact with her in the future is uncertain. Presently, the two younger children live week about, which agreed arrangement commenced shortly after separation. Since then the parties’ ability to cooperate in relation to the children has been limited and by the time the hearing commenced, their ability to communicate was shattered. It is both parties’ evidence the younger children require a main base and during school term should live primarily with one of them. Thus on both parties’ cases the children’s circumstances would change.
[1] Exhibit ‘O’
Although the parties agreed on little, there was consensus theirs is now a poisonous relationship with little prospect of improvement. Although the language is strong it is appropriate to record the Court’s dismay that only three months ago, when for ten days the mother lay in a coma the children were embroiled in a dispute about how and when they could be with a beloved parent who they believed lay dying. So that is clear, it is not my intention to attribute to the hospital responsibility for the awful situation which developed.
One of the central issues became whether, in order for the younger children to have an ongoing relationship with the mother, it was necessary to limit the disdainful and demeaning views she said the father and his partner exposed them to. The father denied he was a poor parental role model or that the difficulties which permeate the mother and V’s relationship, were influenced by anything done by him. In his view, the mother needed to reflect more closely on her parental deficits and her mother’s intrusive behaviour to find the key to these difficulties. Another important issue was the effect on the sibling relationships if they were to live in different homes.
Between the parties, it was common ground that whomever the children lived with should have sole parental responsibility. Essentially the parties recognised they could not afford to continue to spend tens of thousands of dollars for lawyers to document every mishap, grievance or variation to the children’s arrangements, no matter how trivial. It is useful to note the lawyers were even instructed to debate the lifecycle of head lice. This was considered useful to determine in which house the children had contracted them. The correspondence is replete with arguments about with whom and where the children should receive medical assistance, which school they should attend, whether the younger children could play hockey in a team coached by the mother’s brother and the like. One only needed to review the reams of correspondence to appreciate equal shared parental responsibility and living arrangements, which would require anything more that merely superficial communication is not viable. The parties’ evidence, particularly their inability to communicate and cooperate with each other, powerfully reinforced this first impression. I observe the correspondence was of a style and volume, which experience suggests lawyers generally avoid. With respect to the difficult position in which these solicitors found themselves, the most battle hardened family lawyers would have found it difficult to maintain their enthusiasm for snide editorial comment that became the hallmark in this case. Perhaps, like the children, they have been worn down by the nastiness of much of what the parties and their partisan relatives wanted to say.
That said, it is interesting to note that these parties live orderly and unremarkable lives. Both are hard working and enjoy good relationships within their families. They have good social networks and are obviously liked by many and loved by their children. There was no evidence of mental health difficulties or any other factor which might have made it easy to understand how the dreadful situation has developed within this family. This conundrum becomes even stronger when it is appreciated that during cohabitation both parties were intimately involved in the children’s care. This was not a family in which one parent was overwhelmingly responsible for child rearing. Once the children adjusted to their parents’ separation, the parties should have been able to make the agreed week about living arrangement succeed. Between them, they owned a number of houses in the same locality. The parties’ work arrangements were amenable to such a living arrangement and there were sufficient funds to make it work. That it has failed so spectacularly has taken a heavy toll on their immediate and extended families.
Although this was a particularly difficult hearing, cross-examination required the parties and some important witnesses to reflect upon their actions. At one point, it appeared there might have been recognition that by adopting a mature approach the parties may have been able to lay the foundation for improved communication and cooperative parenting. N had suggested the notion the children live fortnight about. The matter was stood down for a time so that this and perhaps other permutations could be discussed. Consensus remained elusive. The sense I gained was the discussions were primarily motivated by each parties’ desire to snatch some form of victory from looming defeat.
At the end of the hearing, the parties remained at odds. There was no support for fortnight’s about as suggested by N or for the Independent Children’s Lawyer’s proposal to continue weeks about. The Family Consultant said the children had not coped with an equal time arrangement and the younger children in particular required a more settled approach than would be achieved through a continuation of the existing arrangements. It was her recommendation the Court would prioritise the children’s relationships with the mother over the younger siblings’ relationships with their sister.
The sad reality is that whatever momentum was gained towards a rapprochement when it came to closing addresses neither showed any signs of being willing to compromise for the children’s sake. Unfortunately and notwithstanding the Court’s view, the parties should have been able to make week about work for the three children, it is necessary to accept they lacked the will for it.
Short history
Unless I have stated differently throughout these reasons, the balance of probabilities will determine findings of fact. Section 140 Evidence Act 1995 (Cth).
Mr Lloyd (the father) was born in 1970. He is 39 years old.
Ms Holman-Lloyd (the mother) was born in 1974. She is 35 years old.
In about July 1996 the parties commenced cohabitation in a property owned by the father.
In 1996, the parties married.
V, who is the parties’ elder child and only daughter, was born in September 1997.
Their elder son, N, was born in June 2001.
The parties’ third and youngest child H was born in February 2003.
The parties separated on 28 April 2008. At separation, the father remained in the family home at T. The mother briefly resided with her sister then, in May 2008, moved into a home she rented in T.
On 4 May 2008, the parties implemented their agreement to divide the children’s time equally between them. This was done on a week about basis.
In June 2008, the father met his current partner, Ms C.
In late 2008, the parties arranged for V to commence counselling with Ms S. Because the mother was concerned that Ms S began to babysit the children while they were in the father’s care, she sought to end that arrangement and have the child counselled by a less involved person. Unfortunately for V, this resulted in her being counselled by two people simultaneously.
In early 2009, the mother moved to her parents’ home at U. The father dislikes his former mother in law with a vehemence that is uncommon even in this jurisdiction. From when the mother began to live with her parents, the parties’ relationship seriously deteriorated.
On 9 April 2009, the mother initiated parenting proceedings in this Court.
Between 26 April 2009 and 5 May 2009, the mother and her family took the children on a South Pacific cruise. Curiously, the father linked property settlement issues to his consent to the children having this holiday. Fortunately for the children and, notwithstanding the volume of communication about the issue, the holiday proceeded as planned.
By June 2009, the equal time arrangement insofar as it related to V spending time with the mother had broken down.
In November 2009, Ms C and her three children moved into the family home with the father. One of Ms C’s children now resides with that child’s father.
In January 2010, the mother moved into a villa she rents at P. P is 22 kilometres south of T.
On 13 April 2010, a divorce order issued on the mother’s application which became effective one month later.
On 17 June 2010, the mother became seriously ill with respiratory problems. While in hospital, she lapsed into a coma for ten days. While the mother was in hospital, the father took the boys and cared for them until she was discharged. By agreement upon her release, the mother had the younger children for an additional week. Although V visited the mother at hospital, she has not seen her since.
The witnesses and credit
Counsel for the mother submitted the Court would be concerned about the integrity of the father’s evidence. It was also submitted, the father’s behaviour during cross-examination was revealing, and that to a considerable extent his behaviour was corroborative of the mother’s evidence about his aggression and emotionally abusive treatment of her. In relation to both matters, there is considerable force to the submission.
Dealing first with the father’s evidence. Although many examples could be given about serious inconsistencies in the father’s evidence, it is sufficient to highlight a number and record that the transcript would demonstrate that the father’s evidence was replete with inconsistencies and repeatedly he appeared to be making his evidence up on the run. For example, the father gave evidence about a conversation he had with N in late April 2009 about Mr E, who was then dating the mother’s sister. According to the father, the child told him Mr E has threatened to kick him on the backside with steel cap boots if he did not behave and the same day, when the child was sitting on his lap, had cuddled and kissed him. As the correspondence disclosed, these matters were raised with the mother.
The father was questioned about a letter sent by his solicitors on 16 March 2009[2] in relation to the mother’s proposal the younger children join a hockey team. Having commented that the mother had raised this possibility with the children before she consulted the father about his ability to take the children to training, or Saturday games, the letter went on:
Our client understands that the couch (sic) of the team will be your client’s brother. If this is the case, then unfortunately our client is unable to give his consent. This decision would be inappropriate if it was to be made, given the general hostility of your client’s family towards our client. Our client agrees, however, as indicated above for the children to attend hockey and attend training and Saturday games, on the basis that they are enrolled in a team which is not coached by a member of your client’s family. Our client wishes to be assured that he will be able to attend the hockey games and the training times freely, and that there will be no interference or pressure directed towards our client at that times.
[2] Annexure 8 father’s affidavit
The father conceded the mother’s brother is an able hockey player and an amiable fellow. When questioned about this correspondence, he initially said his solicitors had misunderstood his instructions and the reference to the mother’s brother, should have been reference to Mr E. When questioned about why he was concerned about Mr E, the father said his concerns arose from the conversation referred to above, which he had with N. When reminded that conversation took place about four weeks after the letter was sent, the father said he had had other conversations with N about Mr E. The father filed an affidavit that was 565 paragraphs and 364 pages. These earlier discussions with N about Mr E were not there revealed and I do not believe they occurred. I do not accept that the reference to the mother’s brother in the correspondence was an error and am satisfied that the father, in his oral testimony, attempted to construct a scenario, which he thought, may have deflected the unfavourable submissions likely to flow from his attitude to the mother’s family revealed in the correspondence.
Although the property settlement proceedings resolved, cross-examination of the father revealed breathtaking inconsistencies in documents and representations made by him. For example, the father alleged in his affidavit the mother took $25,000 from a safe and a further $7,000 from a built-in wardrobe at separation. In addition, $150 was, he said, taken from his wallet. The mother denied these allegations. In a letter dated 28 May 2008,[3] he provided a 13 page summary of the parties’ financial history. In this letter, the father said the mother took “almost $3,500 from the family home at the time of separation, consisting of two separate amounts of cash that were kept in the home, one of which was previously discussed above”. The amount “discussed above” was $1,500 cash which the father said was taken from a drawer. The second amount was funds he agreed were earned by the mother. No mention was made of the mother removing money from his wallet. In the father’s financial questionnaire signed in December 2009, he contended the mother removed $1,500 from his wallet. Nor was there any mention in the May 2008 letter the mother had taken $32,000 from the safe and wardrobe.
[3] Pages 203-215 father’s affidavit
While there was no dispute the mother removed furniture and personalty at separation the values attributed to those items by the father increased incrementally. They grew from amounts, which were not asserted to warrant significant adjustment, to $50,000 and by the time the hearing occurred, were said to be worth $363,000. No mention was made in the May 2008 letter of the mother having taken rental income yet by December 2009, the father said she had retained three years rental income. By the time of the hearing, he claimed nine years rental income in relation to one property and five for another. The point being these were amounts the father said the mother retained and which should be notionally added into the asset pool. In relation to these matters, the father was unable to explain the numerous inconsistencies in his evidence which demonstrated his willingness to say, on oath, whatever he thought would be to his advantage. Although these latter matters relate to financial issues, it is nonetheless relevant to the court’s assessment of the father’s credit.
As soon as cross-examination of the father started, he responded with aggression. When counsel for the mother lent over to quietly clarify a point with his instructing solicitor, the father dressed counsel down. Again and again the father gave answers that were unresponsive and he seemed to take every opportunity he could to criticise the mother. Questions directed to him too often resulted in unresponsive allegations about the mother. Although the maternal grandmother was merely sitting in the back of the Court, the father requested she be removed because he felt intimated and scared. There was nothing done or said by the maternal grandmother, which warranted adverse comment, or justified the father’s claim to intimidation. Nor do I accept he was intimidated. This, to me, seemed to be an example by the father of him being willing to criticise and belittle the maternal grandmother. It was a demonstration of controlling behaviour.
Ms W has known the parties since about 2002 when she moved into her home about 300-400 metres from the former matrimonial home. After the parties separated, she remained friends with the mother and saw her irregularly. Because she lives nearby to the father, she sees him and the children more often.
Ms W was an impressive witness. She gave her evidence in a balanced manner and appeared to do her best to fulfil her obligations as a witness. Because of her involvement with the parties, Ms W was able to give evidence about events prior to and since separation. She corroborated the mother’s evidence: the father called the mother a, “Lazy, useless fat cow”. Ms W recalled finding the children outside their home in 2004, upset. H told her the father was, “Smacking mummy because she was naughty”. Two hours later when she saw the mother she observed her face was swollen. The mother told her the father had hit her. She spoke about other occasions when she came across the mother crying because of the way she said the father treated her.
After the parties separated, the father discussed the parties’ matrimonial issues with Ms W. Ms W’s evidence also touched upon her observations of the children, including N’s behaviour in kindergarten and year one where he was in the same class as her daughter. N’s behaviour, at the E Christian School, was observed by Ms W to be particularly hostile and violent towards girls in class and generally unacceptable. He called her daughter, “Ugly cow”, “bitch”, “fuck head”, “stupid bitch” to name a few. In early 2009 at a local children’s indoor play centre, after the mother tried to persuade the two boys to calm down, H pointed his finger in the mother’s face and said, “Keep your place. You’re only a woman.” N said, “Yer fat cow.” The mother replied, “Please don’t speak to mummy like that”, to which N said, “Daddy does”.
Towards the end of term 3 2009 and at Christmas 2009 Ms W observed V’s unprovoked verbal abuse of the mother. These incidents are set out in detail in paragraphs 23, 24 and 25 of Ms W’s affidavit.
The father appreciated Mrs W’s evidence was unhelpful to his case. After Ms W left the courtroom, she was recalled. She said that outside the courtroom the father stood in front of her with his hands on his hips and stared at her. Ms W asked Ms C to make him stop, which he did. She saw the father sit down along from her and say loudly enough for her to hear, “That’s just a witness they caught out lying in the Court”. His statement was untrue. Ms W said she felt intimidated by the father’s actions. The father said he had been giving advice to another litigant and denied Ms W’s accusations. There were numerous variables to what he recalled about Ms W speaking or not speaking with Ms C, so much so it was difficult to make sense of his evidence.
Mrs Holman, who is the maternal grandmother, also gave evidence about the father’s behaviour towards her. While he admitted they spoke, he denied he said to her, “How are you going, bitch”. Again, the maternal grandmother was a good witness who gave her evidence in an open and forthright manner. She made statements clearly favourable to the father. She spoke of his genuine endeavours to be a good father and in her affidavit spoke with real affection and sadness about the loss of a relationship with him, she having viewed him as another son.
The maternal grandmother agreed during cross-examination other words were spoken however, because she did not hear them clearly, she would not speculate what they may have been. In so doing she showed a degree of caution which added to the integrity of her evidence.
I am satisfied the father spoke to Ms W and the maternal grandmother outside the courtroom in the manner described by them. His actions were consistent with the aggression displayed by him that day in his evidence.
The mother was questioned at length in relation to property settlement matters. During the course of the parties’ relationship, they bought and sold real estate and dealt with assets owned by the father at cohabitation. An accountant retained by the father years before the parties met oversaw the parties’ financial affairs. During cross-examination, it became apparent the mother had little idea about the intricacies of many of the transactions undertaken in her name and was generally unable to answer questions in relation to representations made on her behalf in her taxation returns. There were long pauses during questioning and often she appeared confounded. Counsel for the father submitted the Court would be concerned the mother was less than frank in relation to these matters and would conclude there were deficiencies in the way she gave her evidence which would impugn her credit.
There was a discernible difference in the way the mother dealt with property settlement and parenting questions. With the latter, she was responsive and appropriate. There was no aggression from her nor did she make gratuitously offensive remarks about the father. Ultimately, I was not persuaded the criticisms made of her as a witness should be accepted. Her difficulties in relation to property settlement issues arose from her willingness to accept the parties’ accountants and father’s approach to their financial affairs without herself fully appreciating their significance. Indeed, both parties’ affidavits and oral testimony demonstrated that in relation to the intricacies of their taxation affairs they at best had a limited understanding of how or why it was their circumstances were represented to the Australian Taxation Office as they had been. So that it is clear, a situation that had become increasingly troublesome was addressed to the Court’s satisfaction by evidence called on short notice from the parties’ accountant.
The father’s partner, Ms C, gave evidence. She gave her evidence in a frank and forthright manner and genuinely appeared to be attempting to do her best as a witness. As will be discussed later, she failed to appreciate how intrusive and inappropriate her actions have been in terms of the children’s relationships with the mother and maternal relatives.
The father’s mother gave evidence. She too gave her evidence in a frank manner and did the best she could with recounting events over a span of many years. Unfortunately, she has never felt comfortable in the mother’s or maternal family’s presence and her perceptions and recollections of events seemed to have been coloured by long held antipathy. She said the maternal family had always made her feel inferior and she had overheard them speaking about her as “Hillbillies”. In her affidavit, the paternal grandmother said this had been a remark she heard used in relation to another relative. Although I appreciate it may have been difficult, her evidence would have benefited from a little more objectivity.
On balance, unless I state differently, I am satisfied that where the father’s uncorroborated evidence conflicts with that given by the mother, her mother and Ms W, theirs is to be preferred.
The Family Reports
Unusually, the Court involved the family consultant, Ms L, four times. Initially, Ms L saw the parties and children in July 2009 for a Children and Parents Issues Assessment. She identified the key issues were:
· the high level of conflict between the parents and the effect on the children;
· financial issues;
· mother’s allegations of family violence and alignment;
· the children’s special needs; and
· the different parenting approaches of the parents.
From her discussions with the children, it was apparent all three were struggling with the high conflict between their parents. The children felt under pressure to choose between their parents with V, in particular, feeling under intense pressure to make it clear whose side she supported. V described being “nagged at” by various family members, which she coped with by “blocking myself out”.
Both H and N were identified as requiring a safe and secure base with appropriate boundaries if their behavioural difficulties were to be addressed. The family consultant accepted the children’s view that the father had involved them in the conflict and, in relation to V, particularly also the property settlement issues.
Before proceeding further, it is appropriate to observe V was caught out in the father’s home eavesdropping and snooping around these issues. She was able to access the father’s computer and read emails passing between him and his solicitor. While this may go some way towards the Court’s acceptance of the father’s evidence that he did not discuss property settlement and litigation issues with V, the extremely partisan stance she took in relation to these matters indicates such information, as she had been exposed to, came via the father, both directly and indirectly. Either way, his was a cavalier approach to highly sensitive information.
The family consultant was concerned about the mother’s limited ability to appreciate the effect on the children of her lack of communication with the father and the way in which this had led to pressure being put on the children to manage this issue. Again, it is appropriate to observe that by July 2009 the mother all but refused to communicate with the father and, as far as possible, directed this to occur via the parties’ solicitors. This resulted in frustratingly frequent delays in important matters being transmitted and miscommunication about variations to parenting arrangements. Unless the parties were their lawyers’ only clients, the types of difficulties, which arose, must be anticipated when third parties are the conduits. Too often during this period, the mother used the children to relay information to the father. The family consultant was concerned that the father failed to appreciate her feedback about the very negative impact on the children if their mother was portrayed to them in a negative fashion and they were encouraged to support this view.
In terms of future directions, from the first meeting with the parties and children, the family consultant recommended:
· the conflict between the parents needs to stop to support the wellbeing and interests of the children. Some form of communication between the parties needs to be developed to remove any dependence on the children to fulfil this role.
· It may be useful for there to be an investigation of subpoenaed records from counsellors and the school, particularly regarding allegations of the children’s disrespectful behaviour towards teachers.
· A referral to Centacare Family and Counselling Service in [T] for the mother and [V] may well be of benefit.
· There are concerns that the current equal time arrangement is not in the children’s best interests but it is unclear which parent has the most appropriate skills to deal with the children and whether either parent is able to genuinely encourage a relationship with the other parent. The financial issues are a significant theme but appear linked to the parenting issue.
· It is suggested that consideration be given to this matter being given some priority due to concerns regarding [V’s] presentation.
It is not entirely clear why the family consultant’s recommendation in relation to counselling with Centacare failed. There was some suggestion there may have been a couple of sessions although, even in relation to this, the evidence was far from clear. In any event, the father decided Centacare would be biased in favour of the mother. Thus, arrangements were made for counselling to be undertaken at Interlink. Their records were produced under subpoena and formed part of the documents relied upon by the Independent Children’s Lawyer.[4] These showed the mother contacted Interlink and requested joint counselling for herself and V. In a letter dated 12 August 2009 Interlink advised:
We have had a call from [V’s] father, [Mr Lloyd], today to advise that he does not want [V] to attend counselling with her mother.
[4] Exhibit “Q”
The father said he merely intended to convey to Interlink that he did not believe the time was right for joint counselling between V and the mother. Irrespective of his personal views, his actions were inconsistent with the recommendations made by the family consultant and showed scant regard for the imperative expressed by her for therapeutic intervention between the child and the mother.
The Court then ordered a family report. The family consultant conducted the interviews for this report in October 2009. In this report, V made it clear she wanted to live with the father and regularly see the mother, probably overnight every weekend. She continued to be across the matrimonial financial issues, with her view about the justice of the situation similar to that adopted by the father and his mother. Erroneously, she believed her mother refused to attend counselling. She missed her brothers but said “sometimes I enjoy the peace and quiet”.
In the observation sessions the family consultant reported:
64. In observations between the child and the father, the child was observed to relate comfortably with him and his partner, demonstrating that there is a reasonable relationship between them all.
65.In observations between [V] and the mother, the child was observed to greet the mother warmly and relate to her in a familiar and comfortable way.
66.The child’s relationship with her maternal grandmother is reported as having been very close but is now somewhat strained. In observations between the child and the maternal grandmother, the child was observed to frequently hug her and talk excitedly to her about her horse and new puppy.
It was during this session the maternal grandmother challenged V about allegations the father said she made in relation to contact. The maternal grandmother became upset when the observation session was appropriately ended by the family consultant.
N was assessed as being under pressure to choose where he wanted to live and confused about his feelings on this issue. At one stage, he wanted to live with his mother which he said she had discussed with him. On another, he wanted to live three weeks with his father and four weeks with his mother. His confusion was apparent and the family consultant opined his views warranted little weight. In relation to the ultimate issue, I agree.
In the observation sessions, the family consultant reported: “… [N] was observed to relate warmly to both the mother and the father, demonstrating that he has a close relationship with both parents”. She also observed him with the maternal grandmother and Ms C in relation to whom she said he related comfortably and had a reasonable relationship.
H was six years and eight months when interviewed for the family report. It was of interest to the family consultant that H said he wanted the same living arrangement as V. She said he appeared confused but, like N, felt under pressure from his parents to express a preference. H missed V living with him and was reluctant about the father’s plans to have his partner and her children move in.
In the observation session, the family consultant said with both parents he “… was observed to relate in a familiar and warm manner” and “… demonstrating that he has a good relationship with them”.
In terms of recommendations, the family consultant said:
98. It is recommended that the parties not have shared parental responsibility for decisions regarding the subject children and the responsibility for this rest with the parent with whom they are living most of the time.
99.It is recommended that if the Court finds the mother has abrogated her responsibilities for the children to the maternal grandmother, not supported a relationship for the children with their father and exaggerated the claims of family violence then the children should live with the father and spend time with the mother on alternate weekends and half school holidays. The father should also have sole parental responsibility for the children.
100. If the Court finds the father has perpetrated family violence on the mother, has continued to denigrate her to the children and has sought to align the children to his position then [N] and [H] should live with the mother and see the father on alternate weekends and half school holidays. Orders should be made so that [V] spends regular and frequent time with the mother and her brothers. There would be great concerns about the father’s parenting capacity if he was unable to comply with an order that [V] spend time with her mother and brothers. The mother should also have sole parental responsibility for the children, [N] and [H].
101.Telephone contact should occur on a regular basis with the parent the children do not live with.
It is noteworthy, that before the next report was completed orders in November and December 2009 provided a carefully structured arrangement for V to spend time with the mother. Unfortunately, the child had little contact with the mother, with that which did occur replete with drama. Interestingly, V’s counselling notes reveal that when her father was not around or listening in she had been able to have good conversations with the mother. She was tearful in counselling and worried about the future and said she had promised her father she would not stay overnight with her mother for two months. She thought her father erroneously believed she was closer to Ms C than the mother was.
On 7 July 2010, the family consultant interviewed the father and V and saw the mother alone on 20 July 2010. The strength of V’s desire to live with the father and ambivalence about wanting to spend time with the mother was clear. To the family consultant it appeared V had not totally rejected her mother, “… but needs to re-establish a relationship with her at her own pace once the current strong emotions in the family have settled”.
The continuing poor relationship between the parents was manifest as was the damaging effect it continued to have within the family. It was during this session the father said that in the event he was unsuccessful he would move away and limit the contact the children could have with him. The family consultant described his remarks as dramatic and likely to cause the children to act out. In my view, the remarks have the flavour of emotional blackmail. While the evidence does not suggest the father relayed this information to the children, it resonates with the type of emotional pressure that the evidence demonstrated he has placed the children under since separation. It also shows his lack of appreciation of the harm his actions can cause the children and his immature response to his inability to have his own way.
From these final interviews, the family consultant made the following recommendations:-
72.That [V] live with the father and he have sole parental authority but be required to inform the mother of major decisions made in relation to her. [V] should spend time with the mother as negotiated between them.
73.If the Court determines that [N] and [H] should live with the father then they should spend time with the mother on alternate weekends Friday to Tuesday, half school holidays and on special occasions.
74.If the Court determines that [V] should live with the father and [N] and [H] should live with the mother then the boys should spend time with the father and [V] on alternate weekends Friday to Tuesday, half school holidays and on special occasions.
Relevant Orders
On 2 June 2009 the Court made the following orders:
1. By consent orders are made in terms of paragraphs 1, 3 except for 3.3(b), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 22 of the document titled “Draft Minute of Interim Parenting Orders marked Exhibit 2 and attached hereto AND the Court noted the matter at the conclusion of Exhibit 2.
2. By consent orders are made in terms of the interim orders sought by the mother in her Application filed 9 April 2009 at paragraph 4(m) as set out hereunder:
4(m)Each party may attend any school sporting or scouting function to which parents are invited, regardless of where the children are spending time pursuant to these orders and in the event that each party attends such a function, each is restrained by injunction as against the other from speaking to the other.
3. By consent the Court noted that nothing in the orders made today prevents the mother or the father from attending the school attended by the children for the purpose of assisting with school reading, canteen, craft and all relevant school based activities.
Exhibit 2
1. That each party has equal shared parental responsibility for [V] born […] September 1997, [N] born […] June 2001 and [H] born […] February 2003, (“ the children”), the children and each of them.
2. Order not made
3. That the children live with each parent as follows:
During school holidays
3.1Except for the Christmas school holidays, live with the Applicant father for one half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years;
3.2From 6.00 p.m. on Christmas Eve to 4.00 p.m. on Christmas Day in alternate years commencing in 2009 and from 4.00 p.m. on Christmas Day to 4.00 p.m. on Boxing Day in alternate years commencing in 2010.
3.3(a) Father’s Day (with the father) in each year from 5.00pm the day preceding until 5.00pm on that Sunday if it does not fall on a day that the children would otherwise be with the father pursuant to these orders.
(b)Orders not made
3.4Should a weekend during which the children would spend time with the father pursuant to these orders falls on Mother’s Day that weekend shall end at 5.00pm the day preceding Mother’s Day and the father shall then cause the children to be delivered to the mother.
3.5If a period during which the children are to spend time with the father or the mother occurs on a day adjacent to a public holiday, that period shall be extended to include the public holiday. If the public holiday is a Friday that period shall start at the usual time but on the Thursday and if it is a Monday shall conclude at the usual time but on the Monday.
3.6On each of the children’s birthdays commencing in 2009 the parent with whom he children are not living on that day shall spend time with the children between 5.00pm and 7.30 p.m.
3.7At times agreed between the parties on each parent’s birthday and failing agreement for a period of not less than 3 hours on that birthday for each of the children.
3.8In those years where the children wake up in the mother’s house on Christmas morning, they shall also spend time with the mother from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday, notwithstanding any other order.
3.9In those years where the children wake up in the father’s house on Christmas morning, they shall also spend time with the father from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday, notwithstanding any other order.
4. That unless the parties otherwise agree, the parties each do all acts necessary to facilitate the implementation of changeover of the children between the parties:
(a)during school terms by the children catching the appropriate school bus to either the Applicant Father’s house, or the Respondent Mother’s house, depending on the week that they are spending with each party and
(b)at other times by the parent with whom the children are living at the end of any such period causing the children to be appropriately transported to the McDonald’s Family Restaurant at [T] at the commencement of that parent’s period with the children.
(c)The mother to ensure that the maternal grandmother shall not attend at changeovers of the children, unless they otherwise agree.
5. That during Christmas school holidays, the children live with the Applicant Father for the first half of the Christmas school holiday period, in odd numbered years commencing in 2009, and each alternate year thereafter, such time to commence at the conclusion of school on the last day of the school term prior to the Christmas school holiday period, and to conclude at 5:00 p.m. on the day falling midway between the first and the last day of the Christmas school holiday period, and that the children live with the Applicant Father for the second half of the Christmas school holiday period in even numbered years commencing in 2010, and each alternate year thereafter, such time to commence at 5.00 pm the day falling midway between the first and last day of the Christmas school holiday period, and to conclude at 5.00 pm on the last Friday, prior to the commencement of the first day of the school term.
6. That the children live with the Respondent Mother for the first half of the Christmas school holiday period in even numbered years, commencing in 2010, and each alternate year thereafter, such time to commence at the conclusion of school on the last day of the school term prior to the Christmas school holiday period, and to conclude at 5.00 pm on the day falling midway between the first and last day of the Christmas school holiday period, and that the children live with the Respondent Mother for the second half of the Christmas school holiday period in odd numbered years commencing in 2009, and each alternate year thereafter, such time to commence at 5.00 pm the day falling midway between the first and last day of the Christmas school holiday period, and to conclude at 5.00 pm on the last Friday, prior to the commencement of the first day of the school term.
7. That the children be permitted to communicate with the Applicant Father and Respondent Mother, during times that they are with the other party by telephone, at least twice a week, between 7.00 pm and 7.15 pm, on Tuesdays and Thursdays, such communication to occur by the children contacting the other parent on their mobile phone number or home phone number.
8. That the Applicant Father and the Respondent Mother have joint responsibility for making decisions about the children’s long-term care, welfare and development and must consult with each other regarding any such decision.
9. That each parent has the responsibility for the day-to-day care, welfare and development of each of the children, whenever any of the children is in that parent’s care.
INJUNCTIONS FOR PARENTING ORDERS
10. That neither parent shall subject the children to any medical, dental or other professional treatment, including psychiatric or psychological treatment, without first advising the other parent and consulting with them in relation to the said treatment. Both parents shall immediately upon the receipt of any report or other information in relation to the health of the children, provide the other parent with a copy of that report or other information in relation to the health of the children within 48 hours of receipt of the said report or other information in relation to the health of the children by that parent.
11. That each parent shall immediately advise the other of any medical issues concerning any of the children, when medical treatment is required, whenever that children are in that parent’s care and shall keep the other parent informed about such treatment.
12. That each party shall notify the other of any change in that parties’ contact details or address, mobile telephone number or landline within 24 hours of any such changing taking place.
13. That neither parent may change any of the children’s residential address to any place more than 30 kms from the Post Office at [T] without giving to the other parent not less than 60 days’ unless the parties otherwise agree.
14. That each party shall:
(a)keep the other parent informed at all times of their residential address and landline and mobile contact telephone numbers;
(b)permit and facilitate the children communicating with the other parent at reasonable times, at the children’s request
15. That each parent is to ensure suitable sleeping arrangements for the said children whenever any of the children is spending time in his or her care.
16. That neither parent should commit any act of violence or convey any threat (or have any physical verbal abuse directed towards), against the other parent or any of the children by himself or herself, or permit any person to do so.
17. That the parents authorise, by this order, the school(s) attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
18. That during the time the children is with either parent, that parent must:
(a) respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
RESOLUTION OF DISPUTES
19. That unless there are some urgent circumstances, before an application is made to a Court for a variation of these orders, the parties must comply with Order 20.
20. That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows:
(a) The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.
(b) They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
(d) The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.
(e)If the Father fails to choose, then the Mother may choose.
21. Order not made
22. That pursuant to s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure "A" and these particulars are included in these.
Notation
That without prejudice or admissions the parties will continue the current equal shared parenting arrangement of week about.
On 16 November 2009 the Court made the following orders:
1. By consent and pending further order, orders are made in terms of the document titled “Terms of Settlement” marked Exhibit 1 and attached hereto.
2. That the costs of the Independent Children's Lawyer of today be reserved.
Exhibit 1
As to the Child, [V]
1. The child [V], born […] September 1997, live with the Respondent Father.
During School Terms
2. That the child [V] shall spend time with each parent as follows, subject to Order 5 below:
2.1.1 with the Applicant Mother each alternate weekend from after school Friday to before school Monday, commencing on the weekend immediately following the making of these orders, and each alternate weekend thereafter;
2.1.2 in the event that any weekend falls on a long weekend including a Monday then the time that the Applicant Mother spends with the child[ren] shall be extended to 6.00 p.m. on Monday; if it falls on a long weekend including Friday, then time shall commence on 6.00 p.m. Thursday;
2.1.3with the Applicant Mother on Wednesday nights, from after school Wednesday, until Thursday morning each alternate Wednesday commencing the Wednesday immediately after the making of these orders, and each alternate Wednesday thereafter provided that the mother ensure that the child attend such extra curricular activities that she is enrolled in including Scouts, horse riding, hockey, and martial arts.
2.1.4 the Applicant Mother shall not have the children on the weekend which include Father’s Day but in substitution the Applicant Mother will have the children with her on the following weekend at the same times as set out in 2.1.1 above;
2.1.5 the Respondent Father shall not have [V] spend time with him on the weekend which includes Mother's Day, but in substitution the Respondent Father will have [V] spend time with him on the following weekend at the same times as set out in 2.1.1 above;
2.1.6 such further times with the Respondent Mother as the parties may agree, from time to time.
2.1.7at all other times with the Respondent Father.
During school holidays
2.2The child [V];
2.2.1Except for the Christmas school holidays, live with the Respondent Father for one half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years and live with the Applicant Mother during the other half of the said school holiday period with changeover to occur on the first Friday of the school holiday period;
Special times
2.2.2With the Respondent Father on Father’s Day in each year from 5.00 pm the day preceding until 5.00 pm on that Sunday if it does not fall on a day that the children would otherwise be with the father pursuant to these orders;
2.2.3Should any weekend during which the children would spend time with the father pursuant to these orders fall on Mother’s Day that weekend shall end at 5.00 pm the day preceding Mother’s Day and the father shall then cause the children to be delivered to the mother;
2.2.4If a period during which the children are to spend time with the father occurs on a day adjacent to a public holiday, that period shall be extended to include the public holiday. If the public holiday is a Friday that period shall start at the usual time but on the Thursday and if it is a Monday shall conclude at the usual time but on the Monday;
2.2.5On each of the children’s birthdays in alternate years commencing in 2009 from 6.00 p.m. on the birthday to the start of school the next day should it fall on a school day, otherwise from the end of school until 8.00 p.m. that day.
2.2.6At all other times with the Respondent Father.
Implementation (c.f. Order 4 of 1 June 2009)
3. That unless the parties otherwise agree, the parties each do all acts necessary to facilitate the implementation of changeover of the children between the parties:
(a) during school terms by the children catching the appropriate school bus to either the Respondent Father’s house, or the Applicant Mother’s house, depending on the week that they are spending with each party, and nothing in this order prevents either the mother or the father from collecting the children from their school at the conclusion of the school day, in lieu of the children boarding the school bus to their respective homes.
Communication Book
4. Unless the parties otherwise agree in writing, the father and the mother must communicate with each other in relation to issues involving any of the children of the marriage by SMS text messages or by the communication book, which each party will sign prior to changeover, and which will be sent with the child [N] or [H] on the day of changeover to the other parent, and both parties be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent’s household) in such SMS text messages or in the communication book.
Therapeutic Counselling
5. That the Applicant Mother, the Respondent Father must –
5.1forthwith, and as soon as an appointment becomes available, consult with a therapeutic course provider at a facility nearby to their homes approved of by the Director of Child Dispute Services, Newcastle with a view to promoting a relationship between the child and the Applicant Mother;
5.2enrol in and attend a course recommended by the provider of therapeutic counselling;
5.3continue to attend upon and consult with the course provider throughout the course, and for such period as the Expert shall consider appropriate;
5.4comply with all directions given and requests made by the course provider throughout the Consultation Program;
5.5pay all costs associated with the Consultation Program as and when they shall full due in equal shares;
5.6cause such of their children to be brought to the course as may be required by the course coordinator.
6. Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
7. That both parties costs of this application be reserved.
On 21 December 2009 relevantly, the Court made the following orders:
THE COURT NOTES the List of Issues are as follows:
A. Parenting Matters:
1.Appropriateness of equal time when considered with the apparent poor co-parenting.
2.Wife’s allegations of family violence.
3.Husband’s allegations of family violence.
4.Who was the primary caregiver?
5.Whether either or both parties is/are aligning any of the children against the other parent.
6.Potential ongoing separation of the siblings for half of the time.
7.Wife’s ability to parent.
8.Whether wife is dependent upon children’s maternal grandmother to parent the children.
9.Whether equal time should be spent by the children or any of them.
10.Special needs of any of the children.
11.The relationship between [V] and the wife.
12.Whether there should be equal shared parental responsibility.
13.The husband’s parenting capacity, in particular whether he can encourage a relationship between the children and their mother.
14.Whether the husband is a suitable role model.
BY CONSENT IT IS ORDERED:
4. The parties agree that [V] may attend a Jamboree with the Scouts in Sydney from 2 January 2010 until 14 January 2010.
5. The parties also agree that [V] will spend time with the wife from 6.00 pm Tuesday 22 December 2009 and return to the husband on 24 December 2009, and then return to and remain with the wife from 26 December 2009 until 5.00 pm 1 January 2010.
On 26 August 2010, orders were made in relation to V. These orders are set out below.
BY CONSENT:
Parental Responsibility
(1)That the Father have sole parental responsibility for decisions relating to the long-term care, welfare and development of [V] born […] September 1997, (“the child”), subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health.
Day to Day Care
(2)Notwithstanding the provisions of order (1) herein:
(a)The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.
(b)The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.
Live With
(3)That the child live with the Father.
[V] Spend time with the Mother
(4)That the father encourage and support the child to spend time with the mother and the mother shall facilitate the time spent with the child.
Communication
(5)That the parent not having the child in their care communicate with the child by telephone at all reasonable times.
Other Matters
(6)That each parent shall immediately advise the other of any medical issues concerning the child, when medical treatment is required, whenever the child is in that parent’s care.
(7)That each party shall:
(a)keep the other parent informed at all times of their residential address and landline and mobile contact telephone numbers, and [V’s] mobile contact telephone number;
(b)permit and facilitate the child communicating with the other parent at reasonable times, at the child’s request.
(8)That the Father and Mother each provide each other with a list of the names and addresses of all treating medical practitioners, psychologists, dentist, and all other health professionals, consultants, education specialists, and any other professional person who provides treatment, counseling, or any other assistance to the child, over the past 12 months, and in the future.
(9)That the Mother surrender the passport in her control in the name of the child, [V], to the husband.
Resolution of Disputes
(10)That unless there are some urgent circumstances, the process that the parties shall use before filing any application for variation of these Orders shall be as follows:-
(a) The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.
(b) They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c) In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability.
(d) The Father shall choose one of the listed practitioners within seven days of receipt of the list.
(e) If the Father fails to choose, then the Mother may choose.
Obligations created by these Orders
(11)Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The mother’s circumstances
The mother resides alone in a rented three-bedroom villa at P. This is where she has lived since the start of 2010. When the parties began living together, the mother was at university. Not long after she graduated with teaching qualifications. Presently, the mother does not have paid employment and two days each week she attends TAFE where she is studying interior design. On those days, the mother and the boys leave home at about 7.30 am and she delivers them to her parents at U. U is about 20 minutes from P. U Primary School, which the younger children attend, is a short walk from the maternal grandparents’ home. Having delivered the children, the mother heads off to TAFE and her mother sees the children to school. The mother then returns at about 4.30 pm and, unless she decides to stay for dinner, she and the children return home by about 5.30 pm. Reasonably often the mother and the children remain for the evening meal and sometimes stay overnight. Weekends are spent between P and U.
The mother is one of four children from a close family. Amongst the siblings, there are nine children and hers is a family who regularly spends time together. Throughout the period of cohabitation, the parties and children had substantial contact with the maternal relatives, particularly grandparents. At least annually, the maternal grandparents cared for the children whilst the parties took a holiday. They regularly babysat the children and from 2003 until late July 2009, during the school week V spent two to three nights per week at the maternal grandmother’s home. Although the father now complains about the level of involvement the maternal family had whilst the marriage continued, this was an arrangement that suited the parties and enabled them to pursue careers whilst being sure the children were cared for appropriately.
The mother wants the boys to attend P School. This would have the obvious advantage of the children attending school in the area, which, if she is successful, they reside, and enable them to form friendships in their community. None of the children would appear to have many friends and, the boys in particular, have been so aggressive with other children, establishing a peer group at school has and will continue to be difficult. The issue of friendships has probably also been complicated by them moving house each week.
The mother has not re-partnered.
Presently, the mother sees a counsellor appointed through Victim Services. It is the mother’s evidence the father assaulted her on a number of occasions. According to her, she was regularly abused and belittled in relation to her weight, housekeeping skills and for being a woman. The types of unpleasant remarks the father made to her are now remarks the children make to her and, in relation to the boys, to other students.
Until closing addresses, it had been the father’s application that the Court makes an injunction to restrain the mother from bringing the children into contact with her parents for six months. According to him, this was the only way to achieve reconciliation for V with the mother. The mother opposed the father’s application. According to her, there was no proper foundation for such an order and, irrespective of V’s views, disrupting the boys’ strong and affectionate relationship with their maternal grandparents was unwarranted. During closing addresses, the father altered his stance so that there would be no impediment to the mother allowing the boys to continue to see her parents.
The father’s circumstances
The father resides with his partner, Ms C, her two children, A (aged 7 years) and R (aged 14 years), V and each alternate week, the two boys. He describes Ms C as his best friend and it is his expectation they will marry. Ms C’s elder daughter, M (aged 15 years), did not settle with them and earlier this year moved to live with her father. Ms C sees M away from the home.
Ms in early 2008 joined the Department of Human Services. … Ms C sees her role as to support the father’s care of the children, to be his witness and, it would appear, advisor in relation to “child protection” issues. Ms C’s daughter, A, also attends U Primary School.
The father continues to run his business from separate premises at the former matrimonial home. He has trade certificates as a boilermaker, welder, fitter and pressure vessel welder. He has experience and lesser qualifications as a motor mechanic and in hydraulics and pneumatics. In many respects, the father’s evidence in relation to his business operations was confusing. Doing the best I can, it would appear post separation he was unable to continue important contracts and his business income reduced. He continues to work from home and undertakes contract work that requires him to drive through U reasonably early in the morning, at least a few times each week. According to him, he drives through U early in the morning sufficiently often to assert he saw the mother’s car at her parent’s place at least two or three times per week. This provided the primary basis of his assertion that the mother did not live at P and actually resided with her parents. In any event, the father continues to work, something less than full time, but to an extent not readily ascertainable.
The father is close to his mother and sister. His mother lives on a property nearby and this is where V keeps her horse and rides. Horse riding is an activity introduced by the father after the parties separated which V loves. Not only does she enjoy it, it is something at which she excels. A recurrent theme in V’s various counsellors’ notes concerned her low self-esteem. Although hers is a strong personality, it is in many respects similar to the maternal grandmother’s. She has considerable intelligence and academic ability and yet, V is quite troubled. It is very much to her benefit that she has the opportunity to participate in activities that build her self-esteem.
The father is particularly keen for the boys to continue Tae-kwon-do and Scouts. He was a Scout and was actively involved in the Scouting movement until an interim Apprehended Violence Order was made in favour of the maternal grandmother against him. Not only was the father required to surrender his guns but also his involvement with Scouts ended. These matters have caused him genuine distress.
The father became distressed when he spoke about his parents’ separation. According to him, when his parents separated he lost his relationship with his father. This was a relationship, which has never been regained, and its loss is something the father feels profoundly. He sees himself as required to fight to retain his relationship with his children and the mother’s decision to end their relationship as a catastrophe. Repeatedly, when he was asked questions about how the children may have felt about an event or issue, the father responded with answers about how he felt. For example, when questions were addressed to N’s notion the children might live fortnight about he was asked about the boys and V not seeing each other during that time. The father responded by saying he could not cope without seeing the children for a fortnight. Although unresponsive, his answer was illustrative. It strongly suggested that perhaps because of his own childhood experience, the father is afraid the mother may terminate his relationship with the children. He spoke of having to fight her for week about after the parties separated. This bore no relationship to reality with that arrangement being implemented within days of separation. Thus, while the father may have benefited from the Positive Parenting Program he is currently enrolled in as well as the ‘Building Connections’ course completed shortly after the parties separated, it is likely he would benefit from counselling from an experienced practitioner to help him come to terms with his grief.
The father plans to continue to reside in the former matrimonial home and for the children to attend U Primary School. The parties agree that at U many of the extremely poor behaviours the boys showed at T Christian School have moderated. The father perceives the children are reasonably settled at U and, unlike the T Christian school, he says he has a good relationship with school staff.
The general law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where the Court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
i.to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
ii. to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations”, this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the child spending equal or substantial and significant time with its parents (s 65DAA) and if this is in the child’s best interests, whether these would be reasonably practicable (s 65DAA(5). In the context of s 65DAA ‘consider’ means a consideration tending to a result, or to consider positively the making of an order: Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome that promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
Section 60CC(2) considerations
Section 60CC(2) comprises the primary considerations, subject to subsection (5), in determining a child’s best interests. Section 60CC(2)(a) concerns the benefits to the child of having a meaningful relationship with both of the child’s parents. The words “meaningful relationship” are not defined in the subsection. In Mazorski v Albright (2007) FamLR 516 (per Brown J), her Honour described the word as meaning a “relationship or a meaningful involvement … which is important, significant and valuable to the child”. The Full Court in McCall & Clark (2009) FLC 93-405 accepted as appropriate these remarks. In McCall & Clark their Honours also said that the preferred approach to s 60CC(2)(a) is for the Court to consider the prospective benefit to the child of a meaningful or significant relationship.
As I said, the parties have a great deal to offer their children. Both are parents who have been actively involved in the children’s lives from the outset. Initially, the father was primarily responsible for V’s care with him for the first 18 months to two years of her life, being a stay at home parent and, as between the parties, primarily responsible for the child’s care. He competently fulfilled this role and established early on that he was one of the key figures in the child’s life. The mother was at university when V was born and was actively involved in the child’s care when classes and teaching commitments gave her the opportunity. She too was a competent parent and from the outset established herself as one of the key figures in V’s life. Although the roles were slightly reversed with the boys, there is no doubt that both parties were keenly involved with their sons from the outset. Notwithstanding V’s conflicted relationship with the mother, it is beyond doubt all three children value their relationships with their parents. According to the parties, each is motivated to ensure the children have the benefits of these ongoing meaningful relationships throughout their childhood.
It is also beyond dispute the parties have different parenting styles. The father is an outdoors person who enjoys working with his hands. With him, the children enjoy camping, motorbike riding, working along side him in his shed and the like. The mother is less of an outdoor person and with her the children read, talk, play and the like. While she supports their outdoor activities, she is less likely to participate in them than the father is.
The children spoke with love for both parents, which affection is undoubtedly returned. All children would experience real loss were their relationships with their parents denied them. I attach reasonable weight to these factors.
Section 60CC(2)(b) concerns the need to protect the children from physical or psychological harm and from being exposed to abuse, neglect or family violence. Post separation, the parties have each sought Apprehended Violence Orders again the other as has the maternal grandmother against the father. In addition, at his partner’s behest, the father has contacted police and alleged, in effect, the children were at risk in the mother’s care. Issues of family violence were of particular significance to the family consultant, not only in relation to role model and risk issues, but also in relation to the father’s assertion the mother had fabricated events and then sought to involve the children, particularly V, in her black view of him. The father asserts the mother was violent to him and, although I did not understand him to allege there was continuing risk of family violence, it was important that not only his but also the mother’s violent behaviour was examined.
Because the mother was the applicant, I will consider s 60CC(2)(b) issues as they relate to her first.
The father said the mother scratched him and dug her nails into his back. This was not an isolated occurrence. The mother denied the father’s allegations. There was no evidence, which corroborated the father on this issue. As the evidential onus sat with him, he failed to establish the mother behaved in the manner alleged.
The Interlink counselling notes show that agency provided a psychologist to work with V and the mother. Mr T was able to confer with the father and his notes suggest a neutral stance by him. He knows V, which would spare her from having to tell her story from scratch. Even if Mr T is unavailable there is considerable information within Interlink which should spare the child from having to revisit old ground. Previously the mother was willing to attend Interlink and in my view, she and V could establish a trusting and sound therapeutic relationship with that agency. An order will be made for them to attend counselling with that agency.
I agree with the family consultant that the boys have equally good relationships with their parents. Their unhappiness with the pressure, which they have been under to choose, shows how important and indistinguishable the boys view their relationships with the parties. If they felt they had a stronger relationship with one parent they would have found it easier to choose and been untroubled by being pressured to make a choice. Where the boys have made unkind remarks about the mother, these are the result of outside influences and do not reflect how they feel about her or the state of their relationships. For these boys their identity and self-esteem is intrinsically linked to their being able to maintain strong and affectionate relationships with each of their parents.
The three siblings enjoy each others company and strongly indentify as siblings. While it would have been preferable for them to reside together the parties ended this more than a year ago. All three children have adjusted to not living together full time. While they miss one another, they have been able to maintain their sibling connection and are not burdened by a sense of loss. Provided during school term the children are able to see each other reasonably regularly their relationships will remain strong and affectionate. Notwithstanding this finding, an important beneficial aspect of the father’s proposal would be that the siblings would be together more extensively than would be the case were the mother’s proposals implemented. This matter weighs in favour of the father’s primary proposal.
The children’s relationships with their maternal grandparents have been very strong and important to them. It is very disappointing the father is so determined to undermine these relationships. There is no doubt the enormous commitment the maternal grandparents made to the children from when they were born has greatly enriched the children’s lives. Were these relationships to be harmed, this would inevitably cause the children great sadness. Provided the children have substantial time with the mother these relationships should be able to withstand the father’s determination to undermine them.
The father’s mother had much less contact with the children whilst the parties cohabited than is now the case. The children love her and enjoy her company. She too is an important part of their lives. Although the mother is unhappy with how the paternal grandmother behaved when she saw V at her place, she does not seek to undermine the children’s relationships with her. Irrespective of which outcome is ordered, these relationships will continue intact.
The children enjoy Ms C’s company and get along well enough with her two children who live with the father.
By s 60CC(3)(c) I am required to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Both parties are willing to facilitate the children’s relationships with the other parent, however, the issue centres upon their ability to do so. In relation to V, it is telling that the father failed to cooperate with the child having counselling with her mother at Interlink. The counsellor was a psychologist well equipped to deal with the conflicts and issues that swirled around the child. Although it may have been difficult for the child, the psychologist had the necessary skill to manage the situation. By failing to cooperate, the father demonstrated in the clearest possible way his inability to work constructively to address the relationship difficulties to which he had contributed between the child and the mother. I do not intend to say the father is entirely responsible for the difficulties that have arisen between V and her mother, however, it is clearly the case his has been a heavy influence. I gained no sense during this hearing that the father had even limited insight to the contribution he has made to the difficulties.
Nor does the father have any appreciation of how damaging it is for the boys to hear his criticisms of the mother. Their offensive words to her almost certainly mimic what they hear him say. It is my strong view that if the boys live primarily with their father it would merely be a matter of time before history would repeat itself and like V, their time with the mother would be radically reduced. I attach considerable weight to this finding.
At this stage, the mother has not spoken with the boys about the father’s mistreatment of her as she had with V. She appeared slightly more insightful than the father did in terms of her appreciation about the effect her actions may have on the children. It is my assessment the mother is better able to support the children’s relationship with the father. Thus, the children would not be under the same intense pressure in her house to align himself against the father as in his, they are to align against her. The father’s ability to facilitate the boys’ relationship with the mother is further complicated by V’s attitude to her and Ms C’s desire to “validate” the children’s views when they are critical of the mother. For so long as those forces have such influence in the father’s home, the boys’ relationship with the mother needs to be buttressed by spending more time with her and thus, themselves, having the opportunity to form and hold their views and relationships with her influenced primarily by time spent in her care.
Section 60CC(3)(d) is another important factor. There is a strong connection between this and s 60CC(3)(f). This subsection concerns the likely effect of any change on the children’s circumstances, including separation from parents or any other person with whom the child had been living. On both parties’ primary applications, change was inevitable. Only the proposal by the Independent Children’s Lawyer would see the status quo continue. Although I appreciate the rationale for the Independent Children’s Lawyer’s proposal, as neither party supports it and, after two years of trying, the parties agree it has been a complete failure, forcing them to continue a situation, which both oppose meant it would almost certainly fail and further litigation would be inevitable.
The clear advantages of the father’s proposal are that most of the time the siblings would live together, the boys would have even more time with him and they would be able to continue extra-curricular activities such as Joeys, Scouts and Tae-kwon-do without interruption. It is relatively easy for the father to get the children to and from U School and he does not seek to change their schools. While the boys would be disappointed by the reduction in contact with the mother and her extended family which this would involve, provided they were able to have substantial and significant contact with her, they would adapt to this change in their living arrangements within a reasonably short period.
If the boys were to reside primarily with the mother, this would have the advantage of increasing their time with her and enabling her to maintain their strong links with the maternal grandparents and extended family. Just as they would if the changes sought by the father were made, the boys would be relieved by having a primary base. The boys would miss contact that is more extensive with their father and sister, but provided they continued to see them often and enjoy substantial time with them, this is an arrangement to which the boys would adapt within a relatively short period. A reduction of a few days a fortnight is unlikely to have an adverse impact on the sibling’s relationships. The boy’s relationship with Ms C and her children would not be adversely affected by an increase in the amount of time the children spend with the mother along the lines suggested by her, or if something similar to the structure suggested by the family consultant was adopted. By this, I mean the Friday – Tuesday dichotomy in favour of one parent with the children living with the other for the remainder of the period.
It is unlikely if the boys reside with the mother and she continues to live at P, that they would continue their attendance at Joeys, Scouts and Tae-kwon-do, the organisations where they are currently enrolled. The boys enjoy these activities and I agree with the father’s proposition, these active boys benefit from involvement in extra-curricular activities of this type. The mother’s decision to enrol the boys in hockey achieves the same outcome. In her care, the boys’ hockey activities would continue uninterrupted. At this stage of their lives, the boys are not so immersed in extra-curricular activities that a parent’s willingness and ability to facilitate a particular style of activity, or continue current enrolments, would influence the outcome of proceedings. This is a matter, which warrants little weight.
More significant, is the mother’s desire to change the boys’ school from U to P. Both boys were very poorly behaved at T Christian School with N, in particular, abusive and foul-mouthed towards other students, particularly girls. Numerous notes were sent home to the parents. It is agreed that N’s behaviour has improved at U School. While the frequency of notes home have reduced, the school records contain 13 discipline reports which commence 17 February 2010 with the last on 10 June 2010. These reports relate to N being insolent, disobedient, anti-social and bullying. The reports include him interrupting children with “comments, noises and gestures, which were rude and offensive”. On another occasion, he called two students “cunts”. He called another student a “fucking little cunt”. He is described as being blatantly defiant in the classroom with the sense being, as the mother suggested, the school adopted a tolerant stance in trying to settle a very poorly behaved student from another school. In other words, they did their best to give him a new start. While I agree with the parties the evidence supports a finding N’s behaviour has improved, it remains nonetheless very troubling. That this and the behaviour described below is categorised as “improved” for a child who has just turned nine shows that all is not well with N. There is no evidence the child acquired his knowledge of profane language in the mother’s home and I am satisfied he did not. It is the type of language he had heard from his father. In this regards the father has been a poor role model.
There was only one incident report in 2010 in relation to H. That concerned his refusal to remain seated on the school bus and distracting the driver with noise.
H’s end of semester 1 2010 report shows he was assessed by the school as having “made some progress both academically and socially” during the first part of the year. There is a theme of distractibility and a need for him to be more cooperative in the classroom. N’s end of semester 1 2010 report indicated he usually displayed a positive attitude towards school and learning. However, he vacillated between being a dedicated and eager student to avoidance if the set tasks were not within his area of interest, or he perceived them to be too difficult. At times, he refused to complete work and his behaviour was reported as being erratic and at times, inappropriate. He leaves his seat and occasionally the classroom at whim.
The boys started U School this year and if they were to change schools again, this would mean they attended three schools before the eldest boy completed year three. For H, it would mean he changed school every year from when he commenced kindergarten. The family consultant said she thought it would be unwise for the boys to change schools. I did not understand her evidence to mean the boys should not change schools for the remainder of their junior schooling, rather that change so soon after they were enrolled at U School and in the context of a change to their living arrangements, was contra-indicated. With this opinion, I agree. However, while I agree with the Independent Children’s Lawyer an embargo upon the boys being removed from U School is appropriate, this should not continue beyond the end of 2011. It does not appear the boys have been able to make close friends at either school or in their neighbourhoods. If the boys were able to attend school in close proximity to where they reside, it might be easier for them to establish friendships. Relationships established at school could be enjoyed and enriched after school. If these boys are to avoid the risk of being stigmatised as poorly behaved children with few friends, it may be appropriate, once their living circumstances are well settled, for them to leave U School for a school closer to where they reside. Thus, the mother’s notion that the boys would change school, provided it is carefully timed, does not weigh against her application the boys live primarily with her.
If the boy’s circumstances change so that they spend more time with the father, I am strongly satisfied their relationships with the mother would be under serious threat. I have already determined the father is not solely responsible for the difficulties that exist in V’s relationship with the mother. He has, however, sent V mixed messages and there is little reason to doubt her initial decision to stay with him was heavily influenced by his partner’s interpretation of innocuous remarks by the child as worthy of critical comment by her about the mother and paternal grandmother. The father and his partner “validated” negative views expressed by V, and it has only been after these negative views were so entrenched they could be sure the child would not live with the mother, that their comments to her became slightly more balanced about the mother. Thus, while there are now supportive remarks made to V by them about the mother and the notion that V and her mother attend counselling has their support, their actions show they only support V’s relationship with the mother to the extent this coincides with their determination she live primarily with them. It is noteworthy, that in V’s counselling notes she reported to the counsellor, that even though the father agreed she would have overnight visits with the mother, she understood from him she need not. While the father may not have specifically told V she had his support to defy orders, her counselling notes make it plain this is how she interpreted his remarks to her.
When the mother was hospitalised this year, the boys were in her care. Arrangements were made within her family to care for the boys. The father was unhappy about this and took steps to collect the boys. He wrote to the Principal at U Primary School and said:
…. [The mother’s] family are not allowed to pick up the boys from school due to [the mother] being in hospital. The boys will be able to return to [the mother’s] care when she is fit and able. I am concerned that [the mother’s] mother, …. considers herself to be the boy’s primary carer. The only way the boys are to leave the school is with me, [the mother] or on the Number 12 bus that takes them to my premises as per the court orders.
As appropriate arrangements were made for the boys, the father’s letter was provocative and provides further proof of his hostile attitude to the mother’s family. It would have been reasonable for the boys to be with the maternal family whilst the mother was in hospital and during the periods they would otherwise have been in her care. After the mother was discharged, the father offered she have the boys for an additional week as make-up time. This was appropriate and perhaps signalled a softening in his approach to her. However, after the mother accepted the father’s offer, at the end of the second week, without good reason, the father asked the police to conduct a welfare check on the boys. There was then dispute about whether the boys should spend the following week with the father or the mother. Although it was not entirely clear to me how this dispute resolved, as I understood the evidence the boys returned to the father. Unfortunately, the inappropriateness of the father’s actions in requesting police conduct a welfare check on the boys whilst with their mother significantly undermined the appropriateness of the make-up time he offered.
In a similar vein, while the mother was in hospital the father appropriately arranged for the children to visit. For a period, whether or not the mother would survive was uncertain. Unquestionably, the children needed information about the mother’s wellbeing and regular contact with her. Because the father’s relationship with the maternal relatives is so poor, inappropriately, they gave him virtually no information. Thus, and although he denied it, the father contacted the hospital and told them he was the mother’s next of kin. The social work notes record the father as, “Demanding to make decisions about the mother’s medical treatment. Intricate discussion about the complications of playing himself in that position – the father has now decided he only wants to make decisions where the children’s interaction with the mother is concerned”. The father told the social worker he would be keeping the boys. The social worker brokered an arrangement with the maternal grandmother whereby the children could spend time with the mother in her absence. The notes continue, however, as follows:
The children arrived at approximately 17:20 hours. They proceeded towards their mother eagerly. I witnessed all three children embracing their mother and assisting her to eat dinner. There was positive interaction between the children and Nan ([J]) and also between the children and their grandfather ([…]).
The hospital notes record an ugly verbal dispute between the maternal grandfather and father, in the presence of the children. This was initiated by the maternal grandfather and evidenced his distress at what he considered the father’s intrusion. While I appreciate why the mother’s parents would not want the father nearby, because of the stance he took in the exercise of his parental authority, this was the only way the children could see the mother. They ought not to have been exposed to such hostility.
The matters discussed above are illustrative of the father’s approach to the children’s relationship with the mother. In short, he sends very mixed messages to them and others about whether he supports it. While there are examples where he has been supportive of their relationships, his modus operandi has been to then neutralise his support by saying and doing things which gave a strong counter message.
Regrettably, it is necessary to observe I have no confidence the father and his partner would provide an appropriately supportive environment in relation to the boys being able to maintain good relationships with the mother and maternal relatives. The most likely scenario is if the boys resided primarily with him, the boy’s relationship with the mother and maternal grandmother would suffer the same fate as V. Should V try to align the boys to her view about the mother, the failure of the mother’s relationship with the boys is effectively guaranteed.
Similar issues require consideration if the boys reside during school term primarily with the mother. She has discussed her critical opinions about the father with V. Although it does not excuse the mother’s behaviour, upon her becoming aware the father had given V, either directly or indirectly, information about the family law negotiations and issues (including Apprehended Violence Orders), it would appear the mother tried to justify her position, at least in relation to Apprehended Violence Orders. That V felt under pressure to align with one or other of her parents is evident from her counselling notes. She would only have felt under pressure from the mother if the mother said things to her about the father which made her feel she was required to choose between her parents. The mother was also uncooperative in relation to compliance with the equal time parenting arrangements. For example, on H’s birthday, the children were due to go to the father’s for the week. Without discussing first with the father whether he would delay collection of the children, she arranged a birthday party for H after school. So that the father could not disrupt her arrangements, the children were collected early. On another occasion, the mother took the children to Queensland and failed to return them to the father at the appointed time. Again, she presented the father with a fait accompli. On another occasion, the mother asked the father if she could have the children for an extra day so that they could see an exchange student who had previously lived with the family. The father agreed, but then the mother decided she would keep the children for the entire weekend. The father was understandably infuriated by her actions, which were high-handed and disrespectful of the equal time arrangements. Had this type of behaviour continued after orders were made, it would have been even more troubling. However, it has not and there appeared to be a modicum of insight in the mother about the inappropriateness of her actions.
I have earlier commented upon the manner in which the parties gave evidence. The mother was far less volatile than the father was and she impressed as someone who is capable of a greater degree of introspection and consideration than the father is. She is more likely to think before she reacts, at least in relation to these matters. Thus, notwithstanding her antipathy towards the father, she impressed me as being more likely than him to reflect upon the evidence given by the family consultant. While I am not satisfied if the boys reside primarily with the mother she would be resolutely supportive of their relationship with him, she is unlikely to actively undermine their relationships. She is assessed as far more likely to comply with orders for the boys to spend time with the father, than if the situation was reversed.
The net effect of these findings in relation to the boy’s relationships with their parents is that if the boys reside with the mother, I am far more confident their relationship with the father, V and paternal relatives will endure in a real way than I am if the boys reside with the father, vis-à-vis the mother and her family. I attach significant weight to these findings.
Section 60CC(2)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent and whether this will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. As far as possible it is agreed changeovers should take place at school. The point being such an arrangement would minimise contact between the parents and other family members. This would minimise the prospects of overt hostile displays between adults in the children’s presence. Such an outcome can only be in the children’s interests. During the hearing, I attempted to explore with the parties whether mid-week arrangements could be made, for example, for the boys to spend an overnight with the parent with whom they do not reside, perhaps for a meal or other activity. The father was asked whether he would seek to be able to take the boys to Scouts, or Tae-kwon-do, for example. Neither party considered mid-week arrangements would be practical. Although there is about 20 to 25 kilometres or so distance between the parties’ homes, such an arrangement should have been possible. As neither party supported it and would thus be unlikely to do his or her best to make this type of arrangement succeed, I accept it would be impractical.
Section 60CC(3)(f) concerns the parties’ capacity to provide for the children’s needs, including their emotional and intellectual needs. The extraordinarily hostile parental relationship has taken a heavy toll on the children emotionally and is conduct, which qualifies the parties’ capacity to meet the children’s needs. Academically and educationally, the mother is better equipped to assist the children. The father was unable to read his affidavit and it was read to him. As I understood his evidence, while he is functionally literate, there are real limitations upon his written and higher level communication skills. Although the father is presently able to assist the boys with homework, long before they have finished school, they will need a level of support from him which he is unable to give. Because both boys struggle academically, this matter warrants some weight.
There is evidence before Ms C moved into the father’s home, in his care, a little too often the children attended school in unclean uniforms and their personal appearance was occasionally grubby. For a short time, similar issues arose in relation to V. While these matters troubled the mother, they did not result in comment from the children’s schools and it may be this was an issue of difference in approach by parents, with this being a matter of particular interest to the mother, but less so the father. In any event, these issues appear to have resolved, to even the mother’s satisfaction. The father was critical of the mother’s diet. While he complimented her as a cook, his point was that while the parties cohabitated it was her responsibility to prepare meals and, too often, the family ate takeaway. The boys are physically well and active. If their diet was neglected in either parent’s home, given their time is divided equally, it would be surprising for them to be able to maintain robust good health. Again, if ever this was an issue, during post separation this has resolved.
Both parents’ capacity to meet the children’s emotional needs is compromised. I have already made findings in relation to various aspects of this matter. There are two points of particular difference between them. The father is far less able than the mother to analyse the children’s emotional needs from their perspective. In effect, where his and the children’s needs coalesce, no issue arises. However, where the children’s emotional needs conflict with what he perceives he needs, the father has very little ability to analyse the situation from anything other than his own perspective. As I have earlier said, repeatedly during his cross-examination, questions to the father about the children produced responses about how he felt. Secondly, the father has far less ability to reflect upon information from people such as the family consultant about the children and parenting issues. For these children, these are two matters of particular significance. They weigh in favour of the mother having a greater role in the boys’ care than the father.
There are no further s 60CC(3)(g) factors which require consideration.
Aboriginal and Torres Strait Islander issues do not arise.
Section 60CC(3)(i) concerns the parent’s attitude to the children and parental responsibility. I have already made findings that touch upon this issue. During cohabitation, the parties implemented an arrangement whereby they jointly and effectively exercised their parental responsibilities. Since separation, both parties have to varying degrees, included family or friends in the children’s care to an appropriate extent and not in a manner which could be classified as an abrogation of their parental responsibilities. Where the parties have failed to fulfil their parental responsibilities, it is in being able to work together respectfully and appropriately as parents. Their parental relationship and ability to communicate has been shattered. That neither of them consider this situation would be likely to improve in the medium-long term is reflected by their agreement the father have sole parental responsibility for V.
Section 60CC(3)(j) and (k) concern family violence and whether there is a family violence order. There is no current family violence order. Otherwise, this issue has already been considered in my discussion of s 60CC(2)(b).
Section 60CC(3)(l) requires that the Court consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. The longevity of the parties’ dispute has taken a heavy toll on them and the children. Further litigation is likely to exacerbate the tensions which ebb and flow between the parties, their families and the children. The extraordinary quantity of correspondence, which has passed between lawyers in relation to parenting matters, tends to suggest future litigation, or at least the threat of it, is difficult to avoid. If the parties were to share parental responsibility, future litigation is effectively certain. Important decisions about where the boys attend school, extra-curricular activities, medical and dental matters have been fertile grounds for dispute, with many decisions taken unilaterally and contravention proceedings threatened. The risk of litigation if the parties share parental responsibility weighs heavily in favour of one having sole parental responsibility.
There is considerable overlap between ss 60CC(4) and (4A) with s 60CC(3). At various times, issues arose between the parties in relation to child support. These appear to have been resolved relatively easily by the Child Support Agency. While the father is unhappy the mother failed to pay school fees and the parties are now in litigation with the children’s school, this issue was not teased out in a way, which would enable me to determine the rights and wrongs of the issue. There was some criticism of the mother’s failure to facilitate telephone contact between the children and the father, and for her to make contact with the children while they were in his care. The effect of the mother’s evidence was that she found telephone contact by the father with the children, while they were with her, unsettling for the children. She too sought to limit telephone contact with the father and, to avoid calls, which she found unsettling and at times harassing, and thus, she did not facilitate telephone contact in accordance with the parties’ agreement. I agree boundaries around telephone contact are appropriate for the reasons she gave. The children are at an age where they are able to manage telephone contact without adult assistance. A structure could be established which enables the children to speak to the parent with whom they do not reside often enough to maintain easy contact, but not so often it would be destabilising.
The father was very critical about the mother making medical and dental appointments for the children without having consulted him. There has been a serious dispute between the parties about whether medical advice N has ADHD was correct. The mother accepted this diagnosis, but the father and his partner do not. Unfortunately, for the medical practitioners consulted by the parties in relation to the children, they too have been caught up in the parties’ dispute. Attached to the father’s affidavit is a letter he and his partner wrote to Dr Y on 4 July 2009. The letter is nit picking and even challenges, for no reason other than the sake of challenge, how Dr Y phrased the children’s time. It is to Dr Y’s credit that having received this correspondence, he has been willing to continue to see N. It would not have been surprising had the letter resulted in the child being removed from the specialist’s patient list. There was serious disputation about H being able to have his adenoids removed and dental work for N. The father was opposed to N having three baby teeth removed, which step the mother proceeded with nonetheless. Curiously, given the amount of correspondence sent by the father’s lawyer to the mother’s lawyer about this issue, when V told the father N had a cracked and decayed tooth, the father took him to the dentist without mentioning it to the mother. This was not an emergency. The tooth was cleaned and capped.
The evidence clearly established that both parties have made major decisions about the children post separation without consulting the other. This has resulted in real difficulties for the children, their teachers, medical advisors and the like. It is a situation that cannot continue, as it will almost certainly result in the children failing to receive consistent medical care, educational support and major decisions being delayed because of the parties’ inability to communicate and posturing for their preferred position without compromise.
Conclusion and structure of the orders
When making a parenting order the Court must apply a presumption that it is in a child’s best interest for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied application of the presumption would not be in the child’s best interest. Because of my findings in relation to family violence, the presumption does not apply. Even if the presumption applied, I am strongly satisfied an order for equal shared parental responsibility for the boys would not be in their interests and thus the presumption would be rebutted. In the years since their separation, the parties have been engaged in constant dispute about the children and have no capacity to communicate. There are no signs this situation would be likely to improve in the medium to long term. The parent with whom the boys primarily reside will thus have sole parental responsibility.
This has been a most difficult case. As I said in my opening remarks, the parties have a great deal that is positive to offer their children and it has been within their gift to provide the children with a joyful and prosperous childhood. Had they been able to focus on the children’s best interests, the parties could have made an equal time arrangement work smoothly. Unfortunately, they have not done this and the equal time arrangement has failed spectacularly.
I am more confident about the mother’s ability to promote the boy’s relationship with the father and their sister than if the reverse situation applies. For the reasons already given, I am strongly satisfied, if the boys live primarily with the father during school term, their relationship with the mother is likely to suffer the same fate V’s has. The family consultant said the boys’ relationship with the mother should be prioritised over being able to live most of the time with V. I agree. I accept if the boys live primarily with the mother they would still have ongoing and regular contact with their sister and, although the children would miss each other, because the amount of time the boys would be with her, the impact on the sibling relationship would be inconsequential.
The family consultant considered that during school term, the boys should live from Friday afternoon until Tuesday morning with one parent and the other for the remainder of each fortnight. This divides the boys’ time ten nights per fortnight with one parent and four with the other. Although this would see the boys continuing to move home each fortnight, there is a longer period each fortnight when they do not move. This provides the main base sought by them. The gap between contact with the other parent is not so long the boys would rail against it. To minimise disruption to the boys these changes will commence when Term 4 resumes in a few weeks time.
As would be apparent, I am satisfied during school term the boys should live more extensively with the mother than the father. Her approach that the boys would only have a two night weekend with the father would be an inadequate response to the strength of their relationship with him and the need for them to spend a proper amount of time with their sister. The ten day – four day structure was not supported by the Independent Children’s Lawyer. Nonetheless, and notwithstanding the rationale for maintenance of the status quo, continuation of an arrangement, which has been so fraught all but guarantees further dispute and litigation.
I have decided against the plethora of intricate orders proposed by the father. These would only create fertile ground for further dispute. However, the mother will be required to keep the father informed about major long-term decisions she makes and authorise any school the boys attend to provide him with school reports and the like.
There was no disagreement the boys would divide school holidays equally. I agree with the parties the children should be able to celebrate important occasions with each other and the relevant parent. In relation to Christmas Day, however, this will be shared equally but unless the parties are within reasonably close proximity not necessarily every year.
To avoid impromptu contact between the parties each will be required to facilitate regular telephone contact. If the children are unable or unwilling to place a call this is to be rectified as soon as possible. To make it clear the rhythm of the children’s lives is not to be constrained by having to give up activities to place a telephone call at a particular time.
Changeover was contentious and as far as possible, I have ordered this to take place at school. Otherwise, I have continued the current regime.
The parties agree to pay half each of the Independent Children’s Lawyer’s costs. Given their financial circumstances and the large amount each has spent on legal fees, this is appropriate. Because the mother was in receipt of legal aid for the later part of the proceedings, she is statutorily exempted by State legislation from being required to contribute during that period. Thus although she will pay less than the father will, he will not pay more than one-half of the total amount. The periods for payment must be reasonable and roughly coincide with the arrangements which the parties will put in place to comply with the property settlement orders.
I have not made orders for the mother to give V the items she said she wants her to hand over. Many were not solely V’s property. The mother agreed to make a number available and I accept she will be true to her word. As to the remainder of these items, this matter can be discussed in counselling.
For these reasons I am satisfied the orders identified at the beginning of this judgment are in the children’s best interests.
I certify that the preceding one hundred and seventy eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 September 2010.
Associate:
Date: 22 September 2010
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Procedural Fairness
-
Remedies
0