Innes & Rankin
[2023] FedCFamC1F 244
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Innes & Rankin [2023] FedCFamC1F 244
File number(s): BRC 5047 of 2019 Judgment of: JARRETT J Date of judgment: 7 February 2023 Catchwords: FAMILY LAW – PARENTING – Intractable conflict between parents – Where the respondent’s partner is alleged to have physically harmed one of the subject children – Respondent’s partner did not give evidence – Expressed wishes of the children to live with the applicant – Weight to be accorded to those wishes – Change of residence ordered Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA(2), 69ZT Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 7 February 2023 Place: Brisbane Counsel for the Applicant: Mr Galloway Solicitors for the Applicant: AMG Law Firm Counsel for the Respondent: Mr Todman Solicitors for the Respondent: Jindalee Lawyers Pty Ltd Counsel for the Independent Children’s Lawyer Ms Cousen Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 5047 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR INNES
Applicant
AND: MS RANKIN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JARRETT J
DATE OF ORDER:
7 FEBRUARY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders and parenting plans are discharged.
2.Save for the issue of which school the children shall attend, in which respect the applicant shall have sole parental responsibility, the applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born 2009 and Y born 2011.
3.The children shall live with the applicant.
4.For the purpose of paragraph 3:
(a)the respondent deliver the children to the Court in the presence of the independent children’s lawyer at 2.00pm on 7 February, 2023;
(b)the independent children’s lawyer explain the orders to the children in the absence of the both the applicant and the respondent; and
(c)the children depart with the applicant.
5.The children shall spend time with the respondent as agreed between the parties in writing, and failing agreement:
(a)each alternate weekend (commencing on the second weekend after the making of these orders) from after school Friday until 5:00pm Sunday, or 5:00pm Monday if Monday is a public holiday;
(b)the second half of school holidays in odd-numbered years; and
(c)the first half of school holidays in even-numbered years.
6.School holidays shall be calculated as follows:
(a)school holidays are the children’s school holidays;
(b)school holidays commence after school on the last day of each school term;
(c)school holidays conclude at 5:00pm on the day before school resumes for the new school term, where pupil-free days adjacent to any holiday are taken to be part of that holiday;
(d)half school holidays shall be calculated by counting the number of nights between the start time in paragraph 6(b) and the end time in paragraph 6(c) and dividing that number by two;
(e)if the number calculated pursuant to paragraph 6(d) is not an even number, in odd-numbered years the applicant shall have the additional night and in even-numbered years the respondent shall have the additional night;
(f)changeover shall occur at midday on the date calculated to be the beginning of the second half of school holidays;
(g)in relation to weekend time that the children spend with the respondent, paragraph 5(a) shall recommence after the end of the school holiday as follows:
(i)if the children spend the first half of the school holidays with the respondent, paragraph 5(a) shall recommence on the Friday immediately after the end of the school holidays; and
(ii)if the children spend the second half of the school holidays with the respondent, paragraph 5(a) shall recommence on the second Friday after the end of school holidays.
7.Notwithstanding paragraph 5 of these orders, the children shall spend time and communicate with the applicant at all times as the parties agree in writing and failing agreement as follows:
(a)on the weekend of Father’s Day and if that weekend is a weekend over which the children were otherwise to live with the respondent, then that time is suspended and shall be substituted by time for the following weekend;
(b)during the school holiday period the children are spending time with the respondent, via Facetime each Wednesday between 6:45pm and 7:00pm with the applicant to initiate the call.
8.Notwithstanding paragraph 5 of these orders, the children shall spend time and communicate with the respondent at all times as the parties agree in writing and failing agreement as follows:
(a)on the weekend of Mother’s Day (from after school Friday until 5:00pm Sunday, or 5:00pm Monday if Monday is a public holiday);
(b)during the period the children are spending time with the applicant, via Facetime each Wednesday between 6:45pm and 7:00pm with the respondent to initiate the call.
9.To ensure compliance with paragraphs 7(b) and 8(b), Facetime shall be conducted as follows:
(a)the parent initiating the call shall:
(i)ensure the technology is on or charged ready for the Facetime call to be initiated;
(ii)not hang up the call before it has rung out unanswered;
(iii)ensure the visual component (video) is operable and enabled; and
(b)the parent with whom the children are spending time shall:
(i)ensure the technology is on or charged ready for the Facetime call to be received;
(ii)ensure the visual component (video) is operable and enabled;
(iii)not hold the technology;
(iv)ensure the children hold the technology themselves;
(v)not terminate the call under any circumstances, allowing the children to terminate themselves; and
(vi)ensure that the children are afforded privacy and that the phone is not on loudspeaker.
10.Unless otherwise stated in these orders or as agreed between the parties in writing, changeover for the periods that the children spend with the respondent shall be:
(a)if the children are at school, then from and to the school;
(b)if the children are attending sport or extra-curricular activities, then from the venue of such activity; or
(c)if the children are not otherwise, then from the Petrol Station situated on B Street, Suburb C.
11.The parties shall notify each other by text message as soon as practicable, but in any event within 24 hours of any serious accident or medical emergency involving the children requiring medical treatment by a hospital or medical practitioner whilst the children are in his or her care, including the name of the treating doctor and hospital and, if known, the relevant contact number.
12.The parties shall continue to use the parenting communication application “Talking Parents” for all parental communications in relation to the welfare of the children in a respectful and cooperative manner, and not share or discuss adult communications directly with the children or in their presence.
13.The parties shall keep each other informed by the parenting communication application of all medical and other professional appointments made for the children and any referrals of the children from professionals including general practitioners and/or specialist and the parties shall ensure all relevant documentation regarding the children is provided to the other parent as soon as it is available, but in any event, within two days of receipt of the documentation by them.
14.These orders shall act as an authority to any school or other educational facility that the children may attend and all health professionals consulted by the children to provide to the parties at their request and expense such information, reports, circulars, notices, photographs and the like as the parent may reasonably request from time to time and the parties be at liberty to contact any medical practitioner and/or school as they see fit.
15.By virtue of these orders, the parties are authorised to:
(a)discuss matters concerning the education and scholastic welfare of the children directly with the school principal and teachers;
(b)receive directly from the school principal and teachers any information as to the children’s academic, social and behavioural progress; and
(c)attend at the school or elsewhere for parent teacher interviews, open days, concerts, sporting carnivals, special events and any other occasions at which the attendance of a parent is usual.
16.The parties shall share, via the “Talking Parents” application, any relevant information regarding the children, for example activity notices and report cards and exchange that information regularly with the other party.
17.Each party shall provide to the other party the contact telephone numbers, addresses and all other information in relation to the children’s extracurricular activities within 7 days of either of them registering or enrolling the children in any such activity.
18.In the event that either child is required to attend any medical appointment (including any speech therapy), extra-curricular activity or sporting fixture or any other event relating to their schooling or extra-curricular activity (including trophy or speech event) the parent with whom the child is then spending time shall ensure the child’s attendance.
19.The parties are not to denigrate the other party or members of the other party’s family to or in the presence of the children and shall use their best endeavours to ensure that no other person denigrates the other party or members of the other party’s family to or in the presence of the children.
20.The parties are not to discuss these proceedings with the children nor expose them to parental communications via text, email, or parenting application.
21.Each party shall advise the other via the parenting application of any change to the children’s residential address, or any change to either party’s mobile telephone number or email address no less than 14 days prior to any change.
22.The parties shall, 24 hours prior to removing the children from the State of Queensland further than 100km from the border, provide to the other parent, by parenting application message, the following:
(a)the dates that they intend to remove the children from the State of Queensland including the date they are leaving and the date they are returning to Queensland;
(b)the address and contact details of where the children shall be staying whilst outside the State of Queensland.
23.The parents will ensure that the children are not engaged in more than three extra-curricular activities each at any given time.
24.The parties shall execute all necessary documents and lodge the executed Passport Applications or renewal of such passports for the children, with the applicant to pay the costs of obtaining or renewing the passports.
25.Upon receipt of the new or renewed passports, the applicant shall advise the respondent by parenting application message of receipt within 48 hours and hold the children’s Australian passports and not withhold the children’s passports from the respondent upon her complying with the provisions of the following paragraph and the respondent shall return the passports to the applicant upon returning to Australia with the children at the changeover at the conclusion of the respondent’s time with the children.
26.The parties be permitted to take the children overseas provided that:
(a)they give the other party two calendar months’ notice in writing of their intention to travel overseas with the children including the primary destination’
(b)they give the other party written confirmation at the time they provide the notice in accordance with paragraph 26(a) that any travel overseas shall be limited to countries with are parties to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trade;
(c)at least 14 days prior to departure, they give to the other party:
(i)copies of electronic return tickets for the children;
(ii)a detailed itinerary including addresses and phone numbers for the accommodation in which the children will be staying;
(iii)a list of all the countries the children will be visiting (including transit destinations).
27.All times referred to in these orders are expressed in Australian Eastern Standard Time.
28.The process to be used for resolving future contraventions or disputes about the children or the terms or operations of these orders shall be as follows:
(a)the parents shall consult with a Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to any contravention, the children, or reaching agreement about changes to be made to the parenting arrangements for the children;
(b)the parties shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)in the event that the parties are unable to, for any reason, have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, on party shall nominate three practitioners and advise in writing details of their fees, experience and availability;
(d)the other party shall choose one of the listed practitioners within seven days of receipt of the list;
(e)if the other party fails to choose, the first party may choose.
29.Only after completing the procedure in paragraph 28 above shall either or both parties be at liberty to file any application for contravention.
30.The parties shall ensure that the children attend appointments with their counsellor Dr D, fortnightly dependent upon availability and for so long as is therapeutically indicated.
31.The parties shall enrol in and complete a Parenting Orders Program with Relationships Australia or other provider within 6 months of the date of these orders and provide a copy of the certificate of completion to the other party
32.The independent children’s lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for parenting orders in respect of two children. The older is 13, the younger is 11. They have been the subject of proceedings in this court for some 10 years now. The parent’s conflict rages unabated. I have had some evidence this morning from the family report writer, Ms E, about the long-term consequences for these children as a result of being exposed to their parent’s conflict. Neither parent is alive to them. Both parents equally lack insight about those consequences, that’s the view to which I have come. Although, having said that, the evidence persuades me that it is the mother who is the more serious of the protagonists. Her conduct, in part, is nothing short of breathtaking.
These parties commenced their relationship in 2008. X was born, and then Y 18 months or so later. The parties married in 2012. They separated not very long after that.
So vehement is the conflict that exists between these parties, exacerbated by the mother, that I read in her affidavit complaints about the father when the parties were in City F, as long ago as 2012. How that has got any relevance to these proceedings is not explained, but its presence in the mother’s evidence demonstrates the depth of her animosity towards the father. I will come to say more about that shortly.
An exercise in making parenting orders is not about punishing bad parents or rewarding good ones; the only order that I am authorised to make under the Family Law Act 1975 (Cth) is an order that I consider, on the evidence before me, is in the best interests of these children. Their welfare, their best interests, is the paramount – although not the only – consideration.
That brings me to make some remarks about the evidence. This case, like so many others that come to this court, does not seem to rely on evidence. The mother’s case consists of her affidavit of evidence-in-chief – I use that term lightly – and an affidavit of evidence-in-chief by her father. I think Mr Galloway’s observations are correct; these are documents that have been prepared, not by lawyers, but by laypeople and having been prepared by people who have no understanding of the distinction between allegations and evidence that proves the allegations. One can understand why then, perhaps, there is very little focus in those documents, on evidence, strictly described, as opposed to submission, argument, speculation and conclusion. Those things are unhelpful; submission, argument, conclusion, speculation, and opinion have their place, but not usually in an affidavit of evidence-in-chief.
Sometimes, evidence put in that form is saved because the witness, after stating a general proposition, goes on to give some evidence to form the basis upon which the opinion, speculation or the conclusion has been formed. But the mother’s evidence here as a general rule does none of that. There are generalised statements about what the children have said what she has seen and what she has experienced but there is very little particularity or evidence. That’s concerning because one does not know in fact what happened on any particular occasion that is the subject of such generalised assertion. It seems clear from the material before me that many of the exchanges between the parents have been video-recorded or tape recorded or in some way recorded and it might have helped the veracity of the mother’s evidence to provide some of that, even by way of transcript.
One could of course over-egg that sort of pudding. The last thing a judge wants to do is to sit and watch an endless stream of videos which all show the same thing. But the point is that with that sort of material available a decision-maker is entitled to expect particularity and it is missing here.
Contrast that with the evidence from the father. It is a little better and one can see when looking at his evidence that he has taken the trouble to provide the court with the words – or the effect of the words – used by the children when they have made their various reports to him.
Section 69ZT of the Family Law Act 1975 (Cth) provides for there to be concession about the admissibility of evidence. It provides that certain parts of the Evidence Act 1995 (Cth) do not apply in this court in these types of proceedings. But it says nothing about the probity of evidence, other than that it is a matter for the court hearing the case. But the rules of admissibility of evidence are all about reliability – about providing to the court the most reliable evidence of a particular fact. Reliability and probity of evidence are closely connected. In this court the concessions provided by s 69ZT seem to have been taken to mean that if somebody asserts something in an affidavit, irrespective of its form or provenance, it must be accepted at face value as evidence of the facts underpinning the assertion. That is simply not right.
I found the mother to be disingenuous in cross-examination. I do not accept much of her evidence. It is by and large nothing more than mere assertion, speculation, conclusion and argument. For example, one need go no further than the very first opening paragraphs of her affidavit of evidence-in-chief. In paragraph 11, the mother is categorical in her assertion that “[Mr Innes] has told me that he does not believe this diagnosis.” but yet in cross-examination she accepted that the father did accept the diagnosis after he told her he wanted a second opinion and obtained it. There was a distinct contrast between the evidence in her affidavit of evidence-in-chief and her evidence given orally. There are many examples of inconsistencies and difficulties with the mother’s evidence and it seemed to me that, at times at least, she would say simply anything that came to her if she thought it might assist her case.
One example concerns the evidence she gave about her plans to deal with an order that Mr G, her present partner and father of her youngest child, was to have no contact with X and Y. Her evidence about the apparent conflict that would then exist was both illuminating and worrying. I accept the submissions by counsel for the independent children’s lawyer that the mother has simply not undertaken any forward planning and this issue was a good example of that.
I found the father as a witness, more reliable. He too, was combative, but I suspect the anxiety he exhibited in the witness box was more to do with the frustration that he feels in these circumstances. That frustration is borne out of a long history of difficulty in spending time with his children. I will say immediately that whilst this is not a case about him or the mother spending time with their children, it nonetheless provides context for his apparent frustration and anxiety.
Both parties couched their written evidence in terms of the case being about “[Mr Innes’s] time”. It is not about Mr Innes’s time. On only one occasion in the evidence and it was an occasion when the mother gave an answer in cross-examination did she refer to the children’s time with their father. That is significant. That is significant because it tells me that each of these parents are focused on themselves. Focused on what it is that they think they are entitled to or what it is that they think they have to give to the other party; “[Mr Innes’s] time”. More than that, the expression used by the mother to describe the children’s time with their father: “visitation” is offensive. If she thinks they are merely “visiting” him rather than engaging with him as a parent and enjoying the fruits of their relationship with him then that is a terrible thing. Visitation indeed.
Section 60B of the Family Law Act 1975 (Cth) sets out the principles and objects of Part VII of the Family Law Act 1975 (Cth). I have regard to those but only as guideposts. The Full Court has spoken about the role that s 60B plays in a parenting determination and I bear those authorities in mind.
Section 60CC sets out a range of matters that I need to take into account to the extent that they are relevant in determining what is in the best interests of children. The s 60CC exercise informs the two major areas in respect of which a court usually makes orders for children, namely parental responsibility and where children will live and with whom they will spend their time.
As to the first matter, whilst the children’s welfare is the paramount consideration, the court is required to presume that it is in the best interests of children for their parents to have equal shared parental responsibility for them. The presumption does not apply where the court is satisfied that there has been family violence as that phrase is defined in the Act between the parents or directed by one of the parents to a child or alternatively it is rebutted where the court concludes that it is not in the best interests of the children to apply it. In that way the best interests consideration to use the words of counsel for the husband, “trump” the presumption.
I do not think the presumption applies here because there has been family violence between these parties. Given the broad definition of family violence in s 4AB of the Act and having regard to the messages that have been exchanged between these parties I think that the definition is satisfied and s 61DA(2) is engaged such that the presumption does not apply.
That does not mean that I cannot make an order for equal shared parental responsibility. But if I do, it must be because I consider that on the evidence the welfare of these children demands it.
So to the best interests’ determination then. No party here suggests that these children will not benefit from a meaningful relationship with each of their parents. According to the proposals of each of the parties and the independent children’s lawyer, these children should be spending time and living with one or other of their parents. That they will benefit from a meaningful relationship with each of their parents must underscore those proposals.
Neither party seems to suggest that there is a need to protect these children from an unacceptable risk of physical or psychological harm by reason of being exposed to abuse neglect or family violence. That they have been exposed to family violence I think is beyond dispute; there is a need to protect them from it. In that respect, their parents’ conflict represents, in my view, the single biggest risk factor for these children. It represents a bigger risk than that that might be posed by Mr G. Their parents’ conflict has a real potential to bring long-term difficulties for these children – difficulties that I do not think are appreciated by these parents at the moment.
The making of orders – whatever orders it is that I make – will not cure the conflict. It was said by Mr Galloway in submissions that the orders of Judge Vasta did not fix the conflict. But that is hardly surprising. It is not the job of court orders to quell interpersonal conflict between parents. In the current context, the only thing court orders can do is to quell disputes about parenting arrangements for children. There is a difference. For example, where will a child live? How much time and in what circumstances will a child spend with a person? Who will have the incidence of parental responsibility? Will it be shared? These questions can all be answered by court orders. But a quelling of the conflict that rages between parents cannot be quelled unless the parents want it to be quelled. Here at least one or maybe both parents have not wanted it to be quelled and so it is of no surprise to find that we are here again.
The views of the children in this case loom large. I am required to take them into account and I am required to consider any factors that might affect the weight that is to be given to them.
Ms Cousen, for the independent children’s lawyer, helpfully catalogued the things that might be useful in this case in determining what weight might be given to the children’s views. I agree with her submissions and accept them. The children’s age suggests that their views ought to be given some weight. The circumstances in which they have been expressed also suggests that they should be given some weight. It is at this point, however, I diverge from the submissions that were advanced on behalf of the mother. I do not consider that these children have been put upon by their father to say things for the purposes of creating a case for their change in residence.
The impression I have formed from the evidence is that the experiences reported by these children are real and genuine to them and their views are informed by those experiences. It was telling I think to hear Ms E accept and confirm according to her observations that these children loved both of their parents. Not just their father but both of their parents. It was important to understand her evidence that these children have a good warm and secure relationship with each of their parents. Against that background and in that context then, it is not surprising to see that these children will be sharing with their father – their other parent and the parent with whom they do not ordinarily live – sharing matters with him. Such is the strength of their relationship. That they have a relationship with him of such strength is a credit not just to him but also to the mother because despite all that I read in the father’s affidavit about the difficulties in securing orders for time with the children in the first place and then the difficulties with them being carried out, particularly in respect of Y, these children still have a good relationship with him – perhaps despite the mother’s view. The children’s views deserve considerable weight.
In the course of the submissions of counsel for the mother, I took up the cross-examination of the father and counsel’s suggestion that there were “protective factors” in place. In context, the cross-examination concerned the protective factors that were in place for the children in the mother’s household – the suggestion being that they might need protection from Mr G. Counsel suggested a number of “protective factors” in place for the children. Indeed that there are protective mechanisms and factors in place cannot be cavilled with. However, the point that seemed to be lost was that the children had “activated” some of those protective mechanisms – such as reporting their concerns or worries about Mr G to their mother yet ironically, the mother did not wish to hear them. The conversations between the children and the father set out in the father’s affidavit – there are a great many of them over the 2022 year – bespeak the children’s disquiet in their mother’s household and the lack of response they received from her.
More than that, they speak of the mother’s attempt to downplay or minimise what seems to have been the seminal incident between Mr G and Y. I accept that the emails that are appended to the father’s affidavit from the children were sent by them to him. I do not accept that they are some form of contrivance. I accept that they are genuine. They are replete with references to Mr G and his presence. I reject the mother’s assertion that Mr G has not been present with these children in breach of the court orders except for one occasion. I find that on each of the occasions that the children have sent an email to the father suggesting that Mr G was present, it is likely that he was. See for example annexure MI 58 to the father’s affidavit:
Dad [Mr G] is here right now and he is staying the night.
Again, the children’s views attract significant weight in this case because it seems to me that they are formed on the basis of their lived experience.
I have already remarked on the nature and extent of the children’s relationships with each of their parents. These children are beyond the age where labels such as “primary carer” are important. I hear the evidence of Ms E and I accept that if there was to be a change in residence in this case there would be some effect on these children of that. They have after all, lived since separation in their mother’s care primarily, but it was not suggested by Ms E, the only person here who has any expertise to express an opinion on the point, that to move them from their mother’s residence to their father’s would be to cause them such injury that they would never recover. It is a consideration and I give it consideration.
These children have half-siblings in each household: H in the mother’s household and twin sisters in the father’s household. No doubt if they live in one or the other of the households in contention their relationship with those siblings will be promoted.
As a general proposition neither parent complains about the parenting, on a day-to-day basis, of these children by the other. It seems that they are well cared for. They have their health needs attended to although there may be disagreements from time to time about that. They have their educational needs met. The evidence is that they are doing well despite all that is happening around them.
Those things are to the credit of both of these parents and lest it be unclear I have no doubt that these two boys are at the centre of the worlds of each of these parents. Just as these children love their parents I have no doubt that each of their parents love their children dearly.
There was really no other matter that was pointed to in the list of factors that need to be considered in s 60CC as important in this case save for the risk that might be represented by Mr G. There is some curiosities about all of this. The first is that at the commencement of the hearing I was asked to stand the trial down while the parties looked at the 93A interviews. They have not been led in evidence so I do not really know what the children told the police except for what the father reports in his affidavit.
It was not suggested to him in cross-examination that what he records in his affidavit about what the police told him that Y said was inaccurate, so I accept it to be so. There are the father’s reports of what the children told him about the altercation between Y and Mr G and there is other evidence about Y’s reports about that incident. The mother’s version of the incident which she claims to have witnessed is different to that reported by Y and there is a message from Y to the father to the effect that the mother is telling other people that Mr G simply grabbed him by the shoulders rather than the incident occurring as Y suggested it did.
I am satisfied that there was an incident between Y and Mr G which ultimately led to the father retaining the children in his care in March, 2022 and that that incident is as set out in the father’s affidavit being a record of what it was that Y told him.
There are some other incidents too. See the family report of Ms E that records the other incidents about which Y spoke. The record set out in the addendum family report of April, 2022 and in particular that part of the addendum report that records what it is that the children told Ms E sets out in my view their lived experience. It sets out genuinely what it is that these children experienced. I accept that that part of the addendum family report sets out what happened to Y.
I am satisfied that there is a risk that is presented by Mr G to these children having regard to those matters. It is a risk from which they should be protected. One of the difficulties with it all, of course, is that Mr G did not give evidence. Whilst it might be said that the refusal of the mother’s application late on the first day of the trial for leave to call Mr G operated against her and denied her procedural fairness, there are greater questions of procedural fairness at large. It is not just procedural fairness to one party but it is procedural fairness to all parties. There were trial directions made which required the filing of affidavits of evidence-in-chief. Honoured more in the breach than the rule, it turned out that notwithstanding the mother’s contention in cross-examination that there was an affidavit by this person that simply was not filed because the time had passed, there was no affidavit by him that was complete – it having only been started it seems over the weekend immediately preceding the trial. In those circumstances, whilst I ultimately gave leave to lead evidence from him, that the witness could not be produced at the point in the trial when it was time for him to give his evidence meant that the mother did not call him.
I do not draw any inferences from the fact that he was not called ultimately because frankly I do not think I need to. For the reasons I have already explained, I accept what it is reported that these children have said to others about their interactions with Mr G. I accept all of those things. To have Mr G come along and deny those matters or give a version which would be just like that of the mother’s perhaps, I expect would not have assisted me. Why would these children lie about it? There is no good answer to that question.
The children’s best interests demand an ongoing involvement by each of their parents in their lives. No party here is suggesting the contrary. They will continue to derive a benefit from a meaningful relationship with each of their parents.
That fact alone I think demands that there be an order for equal shared parental responsibility. There is on the evidence in my view no good reason to deprive these children of the opportunity to have both of their parents involved in significant decision-making for them. I accept immediately that the parents are engaged in intractable conflict and that they have difficulty communicating. But there is some reason to be optimistic. The father’s evidence that the Talking Parents app works reasonably well provides reason for optimism. It might be that having heard Ms E’s evidence this morning, these parents do decide that enough is enough. If they do it would be best for these children. In fact it would be critical for these children for them to know that each of their parents are still vitally interested in decision-making for them in the long-term. I have concluded that it is in the best interests of these children for there to be an order for equal shared parental responsibility.
These parents live geographically distant from each other – one in Brisbane and one in City K. Presently the children go to school in Brisbane. The mother’s primary proposal would see no change to the current arrangements. They would continue to live with her and spend alternate weekends with their father. The evidence satisfies me that that is a practical outcome. It has been able to be managed until now. The evidence seems to be that since the difficulties that were encountered last year and then for the balance of what has occurred this year those orders have been observed, by and large.
The mother’s alternative proposal of an equal time arrangement needs to be considered not simply because she proposes it but because ss 65DAA(1) of the Act requires me to do so. Subsection 65DAA(1) requires the court to consider making an order for equal time if it considers that such an order is both practicable and otherwise in the best interests of the children.
The question of practicability looms large. The mother’s evidence in the witness box was that in terms of travel time for these children if they were to live with her in Suburb J and go to the schools that they attend now it would only be 20 minutes more if they lived in City K every second week and travelled by train from there to the schools that they attend now. I do not know whether that is true or not. I suspect it is something of an exaggeration because it would be consistent with the rest of the mother’s affidavit that it would be hyperbole and exaggeration. I do not accept it.
Apart from that I have a difficulty with the proposition that children should spend one week in every two in City K yet go to school in Brisbane. That is not to say there are not children out there who do that. There probably are. But the practicalities of that arrangement would mean that they would require some form of public transport; trains or the like and given the evidence about the sporting nature of these children and their interest in extracurricular activities it would be difficult to envisage those things being managed in an equal time arrangement with one party in City K and one in Brisbane. I find that an equal time arrangement would not be practicable.
I pass from considering s 65DAA(1) to s 65DAA(2). It is necessary to consider the children spending substantial and significant time with the parent with whom they will not ordinarily live.
Here the tyranny of distance suggests that if the children were to live in one household rather than the other, a changeover after school on Friday and before school on Monday or Tuesday if it was an extended time for example and a consequent trip back to school – to and from school on a Monday would be problematical. I immediately recognise that I have already recorded that so far this year the orders do not seem to have been difficult for the father and he has been able to accommodate that sort of travel. The mother on the other hand gave evidence that she may not be able to do so. She did not think that her work would be as flexible as might be required to accommodate such an arrangement if the children lived in City K and she spent that time with them.
Again I am not particularly persuaded by the mother’s evidence for the reasons I have already given about her evidence generally. I formed the impression that while she was being cross-examined about those things what was being created were more problems than solutions by her answers. But ultimately I think she returned to the proposition that she could make such an arrangement work – she would just simply make it work – Friday afternoon to before school Monday. And indeed she might. But that says nothing about the amount of travel that it will mean for these children. A return to school on a Monday morning from City K to Brisbane is not something which is attractive. For that reason the father says a return of the children to him if they are to live with him on a Sunday afternoon is more appropriate.
I think the distance between the parties militates against providing these children with more time in the non-residential party’s care than alternate weekends and half of the school holidays. Often it is the case that sometimes there is time between children and parents in what is described as the “off week”. Here neither parent suggests in their evidence or their proposals that they are willing to travel either to Brisbane in the case of the father or City K in the case of the mother in the off week to spend time with the children after school or whatever. So I pass from that. It does not seem to be a case where substantial and significant time as that phrase is defined in section 65DAA(3) of the Act is practicable.
These children have endured conflict for such a long time. It is about time their views are heard. The mother has acted on their views in the past. It seems extraordinary that she does not wish to act on them now. I consider that the children should live with their father. It is what they want and their wishes are informed by their life experiences. Life experiences that have a real potential to cause them harm. Life experiences that have been minimised in my view by the mother and which have not been given the attention by her that they deserve.
There will be an order that these children live with their father. That is in their best interests. They will spend each alternate weekend with their mother from after school on a Friday until 5 pm on a Sunday afternoon or such other time as the parties might agree.
In the past that order has caused concern and I here refer to the difficulties with Y and the ongoing and never-ending stream of parenting plans that have been insisted upon by the mother. That will not occur again. There are orders in place and they need to be complied with. Half of the school holidays is appropriate. Having regard to the orders proposed by the independent children’s lawyer it seems to me that the balance of those orders are appropriate. But I have not heard any submissions on the minutiae of the orders. I will do so now.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 5 April 2023
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