Jankovic & Jankovic

[2009] FamCA 392

FAMILY COURT OF AUSTRALIA

JANKOVIC & JANKOVIC [2009] FamCA 392

FAMILY LAW – CHILDREN – four children – long history of parental conflict – suffering and distress experienced by the children as a result of the lack of a child-focussed approach – father says conflict between the mother and father has reduced and their relationship has improved recently – children express uniform wish for the conflict between the parents to end – evidence of steps taken to reduce the conflict – family consultant says the parents relationship does not support an equal time shared care arrangement – recent agreement not yet persuasive to change Family Consultant’s evaluation – existing arrangements to continue until the parents demonstrate an ability to co-operate, communicate and support each other’s relationship with the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Jankovic

RESPONDENT: Ms Jankovic

FILE NUMBER: NCC 1123 of 2007

DATE DELIVERED: 9 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 12-13 February 2009

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Austin

Order

1. All prior orders in relation to the children, G born … March 1995, J born … December 1997, M born … February 2000 and A born … September 2001, after this referred to as “the children”, be discharged.

2. The mother and father have equal shared parental responsibility for decisions about the long term care, welfare and development of the children.

3. The children live with the mother.

BY CONSENT IT IS ORDERED

1. The children shall spend time with the father:

   (a)During the school holiday periods as identified for New South Wales Government Schools for Term 1, Term 2 and Term 3 holidays as may be agreed and failing an agreement:

   (i)in even numbered years for the first half of such holiday periods to commence on the first morning of the holidays and concluding at 5.00 pm on the day at the midway point of the holidays.

   (ii)in odd numbered years for the second half of such holiday periods to commence on the midway point of the holidays and concluding at 5.00 pm on the day prior to the commencement of school.

   (b)During the Christmas school holiday periods as identified for New South Wales Government Schools in an even numbered year for a period of fourteen days from Boxing Day commencing at 9.00 am and concluding fourteen days thereafter at 5.00 pm.

   (c)During the Christmas school holiday periods as identified for New South Wales Government Schools in an odd numbered year for a period of fourteen days prior to the conclusion of the school holiday period from 9.00 am on the fourteenth day prior to the conclusion of the holidays and concluding fourteen days thereafter at 5.00 pm.

   (d)Should Fathers Day fall on a weekend when the children are spending time with the mother then the father shall spend time with the children from 9.00 am until 5.00 pm on Fathers Day.

   (e)Should Mothers Day fall on a weekend when the children are spending time with the father then the mother shall spend time with the children from 9.00 am until 5.00 pm on Mothers Day.

   (f)On the children’s respective birthdays the children will spend time for a period of two hours with the parent with whom they are not residing from 5.30 pm until 7.30 pm should their birthdays fall on a school weekday and between 11.00 am and 1.00 pm should their birthdays fall on a weekend period.

   (g)At other times as may be agreed between the parties.

2. Each parent will encourage the children to communicate by telephone with the other parent during any period the children live or spend time with that parent.

3. Each parent notify the other party of any change in the address of their residence or land line telephone number within 48 hours of such change being effected.

4. Each parent give immediate notification to the other party of any major health issues concerning the children which come to the attention of that parent.  In the event that any of the children require emergency medical treatment then the parent in whose care the child is at that time shall notify the other parent of the situation (and if not contactable, then either of that party’s parents or partners) as soon as practicable.

5. Neither parent is to denigrate the other in the presence or hearing or the children or allow the children to remain in the presence or hearing of any other person doing so.

6. The mother ensure that she gives written authority to any school attended by the children to provide to the father a copy of all notices issued by the school in relation to sporting events, parent/teacher nights, performances or other special ceremonies or social activities in respect of which the father has a right to attend and to supply a copy of all weekly notes to parents and a copy of all school reports in relation to the attendance or academic progress of the children.

7. Each of the parties is entitled to attend at any school function or sporting function or cultural activity in which the child or the children is or are involved, notwithstanding that that event occurs during a period when the children are not living with a parent, and each of the parents is restrained from raising any objection to the other parent’s attendance at such functions.

8. The father be entitled to communicate freely with any school or healthcare professional which any of the four children attend.

9. The parties will consult each other on such matters as dental treatment, medical treatment for the children.

10. Each party shall encourage, supervise and facilitate homework, home study and practice during periods when the children are with that parent.

11. The parties keep a book termed “Communication Diary” in which, in writing, they advise the other party of any notification of forthcoming events involving the children, any medical treatment of the children or any other matter pertaining to the child’s or children’s welfare and that book will be handed to the other parent at the conclusion of the children’s period of living with a parent, or will be placed in the eldest child’s bag on the last day of the children’s living with a parent.

12. Each of the parents be and hereby is restrained from writing anything in the “Communication Diary” other than for the purpose specified in paragraph 13 above.

13. The mother be permitted to have the children enrolled in a school of her choice closer to her residence and that the father consent to such transfer and execute all documents necessary to effect such transfer.

IT IS ORDERED THAT:

1. The children spend time with the father during school term periods each two weeks from the conclusion of school on Thursday until the commencement of school on Monday, Tuesday if the weekend is a long weekend.

2. Upon the father moving to B the father shall collect the children at the mother’s place of residence at the commencement of the time they spend with him and return the children to the mother’s place of residence at the conclusion of that time.

3. The parties shall:

   (a)Within seven (7) days of the making of these orders, contact Unifam Newcastle and take all steps necessary to complete the intake procedure for the “Keeping Contact” program

   (b)Comply with all necessary directions given by Unifam or such other course convenor to attend individual or joint therapeutic consultations, including attending upon appointed consultation dates.

4. Pursuant to Section 65L of the Family Law Act 1975 compliance with these parenting orders is to be supervised for a period of eighteen months by a Family Consultant nominated by the Manager, Child Dispute Services of the Newcastle Registry of the Court and the supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1123  of 2007

MR JANKOVIC

Applicant

And

MS JANKOVIC

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court were proceedings for alteration of property interests and for parenting orders.

2. The parties brought with them to Court a long history of parental conflict which is reflected in their evidence and the evidence of the Family Consultant and the proceedings between and about them.  Proceedings for an Apprehended Violence Order had been initiated either by them or on their behalf.

3. There was, on any view, a history of disagreement and dispute between the parties and the evidence was that the product of this dispute was continuing suffering and distress amongst the children.

4. In issue on the pleadings, apart from the alteration of property interests, was who should have parental responsibility for the children, with whom they might live, the place at which they might be educated and the time they might spend with each parent given the parents’ respective places of residence.  There were other subsidiary issues.

5. Yet against this background on the first day of hearing it was announced that the father and the mother had agreed on the school at which the children should be educated.

6. Following the father’s opening address the parties sought and were granted an adjournment so that discussion might take place between them.  The parties agreed as to an alteration of their property interests, and orders were made by consent disposing of those issues.

7. The father in evidence agreed with many of the orders sought by the mother.  Those orders are made in this judgment by consent of the parties.  At the end of the father’s evidence the remaining issues in dispute were as set out below.

8. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact. 

9. It seems that both parties have agreed that attendance at a communication course such as “Keeping Contact” would be of assistance as would the practice recently initiated by the father of keeping and passing between himself and the mother a “communication book”.

10. The father assures the Court that it is his intention to move to the same area at B as the mother resides so that the communication with and movement of the children between the parents’ respective residences is facilitated.  He tells the Court that he has organised rented accommodation in the area.

11. The father says that his attitude has changed and that he has reduced the conflict between himself and the mother.  The father says he sees real possibilities of the mother and he being able to communicate and co-operate in relation to the care of the children.  It is asserted by the father that his change of attitude has been created by a number of factors, including his reaction to the Family Report and his response to the evidence and actions of the mother.

12. It is submitted by the mother’s counsel, Mr Austin, that the recent changes in the father’s behaviour and attitude have the form of conversion but at present it is too early to be sure that they have the substance.

13. Mr Austin suspects it appears that forensic and other fiscal imperatives might have driven the change in the father’s behaviour but that it is not yet capable of being perceived as a Damascus Road conversion but rather at best as some halting steps in the right direction toward an appropriate co-operative relationship.

14. It is Mr Austin’s submission that one must have regard to the history of limited or non existent insight into the welfare of the children and the suffering they have endured by reason of a conflict between those they loved.  It is too soon, he suggests, to make what has happened in the past month or so the basis for assumptions that so long a history and lack of insight has been overcome.  He submits, and I accept the submission, that false assumption to this effect constitutes, on the history of this relationship and this matter hitherto, the adoption of an unacceptable risk of a continuation of the misery and suffering that has been experienced by these children.

15. In particular, he refers to the following examples from the evidence, which I accept:

    a)The father has been demeaning to the mother, accusing her of being psychologically impaired when there is no evidence to support that assertion;

    b)His communications to the mother have degenerated into yelling, which has taken place in circumstances where the children were aware of what was happening;

    c)He has consulted police as a resource to bolster his arguments from time to time in circumstances where doing so was unnecessary;

    d)He has sought approbation for his conduct and condemnation of the mother from others in order that he may take pleasure in such process;

    e)Although disavowed by him before me as being his current priority, it seemed from the evidence that he placed the achievement of the eldest child, G, in sport above his academic achievement and failed to take advantage of consultation with the school concerning his son’s academic problems, leaving that to the mother;  and

    f)In proceedings before me the father was concerned to “count days” in the care of each parent rather than concentrate upon the real needs of the children.

Background Facts

1. The father was born in November 1968, and is 40 years of age.

2. The mother was born in November 1968, and is 40 years of age.

3. The father and the mother were married in October 1992.

4. There are four children of the marriage, namely:

   a)B born in March 1995, and aged 13 years

   b)J born in December 1997, and aged 11 years

   c)M born in February 2000, and aged 9 years

   d)A born in September 2001, and aged 7 years.

5. The parties separated on 2 January 2007 and at that time the children remained living with the mother in the former matrimonial home.

6. Thereafter the parties consensually made arrangements for the care of the children on the basis that they would live with the mother and spend time with the father.  The father asserts that on at least one such occasion his consent to that arrangement was forthcoming because he did not see that he had an alternative but to consent.  The children spent some time with their father during the period from the date of separation until March 2007.

7. From March 2007 the children spent time with the father each alternate weekend from Friday to Sunday.

8. In May 2007 interim consent orders were made which provided for the children to spend time with their father from Thursday until Monday and for half of the school holidays.

The Issues for trial

1. Should the parties share parental responsibility or should the mother have sole parental responsibility.

2. Should the children during school term time live with their mother for 10 of 14 days on a fortnightly cycle or alternatively should they reside with the father for 10 days of each 14 day period.

3. The father subsequently gave evidence that he proposed, in the alternative, that the parties share the time each fortnight and proposed that the children live with him in alternate weeks.

4. The mother had sought an order having the effect of reducing the father’s time with the children by one day from the arrangements which had been in place.  However, towards the end of the case she instead sought an order that the status quo be maintained.

5. The father proposed that he pick the children up from the mother’s place of residence at the commencement of the time that they would live with him and the mother would pick the children up from the father’s place of residence at the conclusion of the period.

6. The mother proposed that both pick up and delivery of the children should occur from her place of residence.

7. Even these issues were further narrowed by agreement and the parties agreed and jointly sought an order that the parental responsibility for the children should be shared.  It was suggested properly by Mr Austin for the mother that such agreement was problematic having regard to the long history of disagreement between the parties and I agree with that submission.  However, for reasons hereafter set out, I am prepared to give some substance to the parties’ expression of hope in, but from the mother’s point of view not necessarily certainty of, a different future represented by her concession on this issue.

The Evidence

1. Evidence was given by each of the parties orally and by affidavit.  The father’s mother also gave evidence and was cross examined.  The Family Consultant gave evidence and was also cross examined.  A number of documents were tendered.

2. The thrust of the father’s evidence was that the hostility which had existed between himself and the mother was a product of failings on both their parts and that he, having read the reports and accepted the concessions made by the mother had, in the immediately past month come to a realisation that the continuation of the conflict was not good for the children.

3. For this reason he said that he had taken a number of steps to reduce that conflict.  He had agreed with the mother’s proposal concerning the school at which the children should be educated late last year.  It seems on the evidence however that it was not a difficult decision to make since the private school the children previously attended was not able to be paid its fees.

4. The father said that having regard to the fact that he was now on Worker’s Compensation and only working 10 hours a week he was more available than the mother, who was working 20 hours per week, to care for the children and that in the circumstances their care should be at least shared.  He asserted that the mother working more hours would be better for the children.  It is noted however that the father indicated a desire and hopefully a capability of matching the mother’s working hours shortly.

5. The father addressed the Court on the calculation of the number of days that the children spent with himself and with the mother during the year.  In so doing he left the impression that his concern was for the creation of justice by numerical balance, rather than the contributions he could make to the children’s welfare.

6. In that latter regard it is noted that the child, G, has some above average skill as a football player and has been encouraged by the father to pursue his talents there.  The mother, whilst not opposing the child playing football, thinks that it is his attempted adherence to the father’s ambition for him that has caused the child’s grades to slip given that the level at which he is playing requires training three nights per week at a location somewhat remote from his home.

7. The father denies this and says it is a question of the child’s happiness and that if he is happy he will play soccer well and achieve at school.  The father noted that the child’s soccer performance had also been of lower quality in recent times.  I have no doubt that the father, who was a soccer player, has a strong desire to see his son achieve in this sport at a very high level.  For my own part it seems to me that the pursuit of that level of accomplishment probably had an attendant cost as the mother suggests.  The father did say in evidence that there was no doubt in his mind that the child succeeding academically was more important.  These priorities did not seem on the evidence to have been previously evident in the father.

8. The Family Consultant reported an evaluation of the situation at the time of his Family Report, namely October of last year and in that Report gave the following evidence:

   “Since their final separation in January 2007, [the father] and [the mother] have been engaged in protracted and bitter conflict.  The conflict has involved both children’s matters and financial matters and one of the few things that the parents appear to agree on is that the likelihood of the parents reaching any agreement on either matter in the near future is very low.”

1. As events have shown much has been agreed between these parties in the very recent past.  It was suggested in submissions on behalf of the mother that the agreements had a forensic taint about them and that while the change in the father’s attitude and conduct had the appearance of change it lacked the substance and the certainty of longevity.  In the event although I have to concede that there is a risk that that assertion is correct I am loath to not provide the children with the benefits which could flow to them by giving to the father the opportunity to prove the submission wrong.

2. Having said that, for the reasons set out below, caution and the history of this conflict dictates that there is a time to go before one could be confident that the father’s claimed capacity for insight is permanent and that he is able to give long term effect to a child focussed approach to his dealings with the mother and the children.

3. The Family Consultant goes on to say:

   “The children have clearly suffered enormously and are continuing to suffer.  There is clear evidence that the children are not coping well and unless there is substantial change to the way the parents interact with each other, it is highly likely the negative impact on the children will continue throughout their childhood and into their adult lives.”

4. Notwithstanding this assertion, the Family Consultant reports:

   “The children clearly enjoy the love of both of their parents and the children are generally happy spending time with each parent. The overwhelming and unanimous view expressed by all four children is that they want their parents to stop fighting and they want their parents to communicate and co-operate with each other and to work together as parents.  The children do not want to be in the middle of a battle and they are currently embarrassed and saddened by their parents’ actions.”

5. In oral evidence the parties agreed with the assertion that the children loved each of them and enjoyed the company of each of them.

6. The Family Consultant, speaking of the present and proposed arrangements for the care of the children, says:

   “It is extremely clear that the current relationship between the parents does not support an equal time shared care arrangement such as that being proposed by [the father].  Indeed the current interim arrangements are already under significant stress as a result of the inability to be child focussed in their communication and decision making.

   It appears appropriate that the children should live predominantly with one parent and spend significant and substantial time with the other parent.  It does not appear to be appropriate to substantially change the current Interim arrangements.  In addition, it appears as though [the father] may be having more difficulty than [the mother] in adopting a child focussed approach to co-parenting and in promoting the children’s relationship with the other parent.”

7. The Family Consultant was cross examined by the father who put before the Consultant the steps that he had taken in reducing the conflict and improving the relationship between himself and the mother.  The steps included; agreeing on schools, instituting a communication book, settling the property matters and proposing to move his residence to a residence nearer to the mother so that the children might more readily pass between them.  The father asked, whether having regard to those matters and conduct he had demonstrated and the changes that he had instituted, the Family Consultant would revise his evaluation.

8. The Family Consultant gave evidence in response that he was unable on that information alone to revise his view since he did not know the dynamics of or setting for the making of those changes.  He said that certainly they were steps in the right direction but that that alone could not at this time be persuasive of a change in his evaluation.

Credit

1. The father represented himself.  This may well be a requirement of his financial position.  It is of course a task which is difficult for a lay person and this litigant was no exception.  It is also a task which has the disadvantage to a litigant in person of providing a stage on which to display underlying character traits and attitudes that would not be so displayed had the litigant been legally represented.  Whilst I have no doubt that the father is trying hard to change, some of the questions that he asked meant that he did not, in my view, have a clear understanding of the issues involved.  He seemed anxious to place blame.  It was not until he was asked on a number of occasions how the answers to his questions assisted the Court that he started concentrating on seeking to show the benefit to the children of his proposals.

2. I think that the father is an intelligent man who has read the writing on the wall and gained some insight into the needs of his children for a different approach and a different life than the one which the constant battle with his mother has afforded them.  I do not, however, having regard to all the matters referred to above and the fact that the constant battle has all the hallmarks of a habitual practice know how far I can be assured that it is at an end.

3. It is in the best interests of these children that there not be any significant change in the arrangements for them unless a Court is satisfied that there has been a continuation of deeds and not only words for some period of time. For the reasons already referred to and to follow, I am not satisfied that this has yet occurred.

4. The mother gave her evidence clearly.  She has a new partner and is proceeding with cautious happiness in the development of her relationship with him.  He enjoys the company of the children.  She was generally positive in relation to the father’s new wife.  There were concessions she made, as did the father, which added to the verisimilitude of the evidence of each of them.  I make no general finding on credit in this matter.  To the extent that evidence is referred to my findings on disputed fact indicate the evidence that I prefer.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that:

   “…  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

   Subsection (4) provides as follows:

   “The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

6. Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is desirable that these children who love each of their parents should have a meaningful relationship with each of them.  I believe on the evidence that will be possible providing that the parties continue on their progress toward conflict reduction, proper communication and agreement and finding in the event that they are unable to agree, an early dispute resolution aid preferably of a non curial type.  It is for this reason that I propose that the orders that I make be supervised.  I do not in this case see those orders as being static.  Each of the parties recognises that the needs, perceptions and attachments of children can change and develop over time and hopefully the parties will be able to adjust their lives and these orders in a way which meets those changing needs to the children’s benefit.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

2. The children of this marriage have had enough of the conflict.  The distress which has occurred by reason of the conflict between two people they love is extraordinary and it is for this reason that I propose that until such time as the new relationship between these parents develops there should be no further destabilising influence for the children in a change in the present arrangements for them, as is recommended by the Family Consultant.  This will give the children a stable and known platform from which to enjoy what hopefully will be a new experience, namely a life without them being the focus of dispute.  It will also provide a safety net if, notwithstanding the protestations of change, there is a continuation of conflict.  In my view until the new relationship is firmly established and the conflict consigned to the dustbin of history, there is risk in the father’s proposal of an expansion of what is tantamount to rubbing an open wound with a curry brush.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Family Consultant reported that these children have uniformly expressed the wish that the fighting between their parents end. G, the eldest, was clearly lacking in desire to express support for either parents’ proposals, he just wanted peace.  J was positive about each of her parents’ new partners.  She was acutely aware of the conflict and careful not to express preference other perhaps than that it end.  M gave an account of the distress the conflict causes his mother.  He, like the other children, spoke positively of his parents’ new partners.  He avoided comment on preferences where on the subject matter he knew of conflict between his parents.  A also was acutely aware of the conflict between her parents and she also wanted it to end and thought that the best way to do this would be if her parents lived together.  The views of the two elder children are given weight.  The perception of all of them that they want an end to dispute and conflict is I think also worthy of weight being accorded to it not only by the Court but the parties to this dispute.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. The evidence is clear that the children love each of their parents and have respect and affection for their parents’ partners.  They have a relationship with their maternal grandparents and their paternal grandmother.  Each of the maternal grandfather and the paternal grandmother gave evidence and it was clear that this conflict had affected them and their relationships with the children as well.  If there is to be a productive new beginning in these children’s lives I would like to think that it will be without any name calling not only between the parents but also the grandparents.  The injunctive orders I have made will, I hope, assist the parties to so order their behaviour that this end will be achieved.

   (c)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

3. There is a declared willingness on the part of both the parties to encourage a close and continuing relationship between the child and the other parent.  What now has to happen is that the substantive actions meet the rhetoric.  I believe that there has been the genesis of change in the relationship.  Its causes may be forensic but even if that is its origin these children deserve the opportunity of it growing and becoming more than mere words.

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

4. The orders I propose to make will continue arrangements which have been in existence for some time.  Given the constant turmoil in these children’s lives occasioned by the dispute over them, I think it is too early to make changes to the present arrangements.  To do so would be to assume a risk of further exposure to harm, a risk which on the history of this matter is real.  I hope the history of this matter will not be the children’s destiny and that these children will be able to develop in a climate in which the parties are each contributing to their ability to reach their potential in life.

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

5. There has hitherto been some difficulty by reason of geography in the maintenance of contact.  The Court is, however, assured by the father that he intends to take up residence in the B area and that will eliminate this problem.  I think the father is to be commended for his decision to elevate the importance of his relationship with his children to the point where he will change his place of residence in order to foster it.

   (f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

6. I believe that each of the child’s parents has the capacity to provide for their needs, given insight.  I have formed the view on the evidence that that insight has been lacking, particularly in the father who for a time subsumed the needs of his children for co-operative parenting to the pursuit of his own ends in the fight.  He tells me he has changed and that he is more child focussed.  He certainly has made a number of decisions, as previously discussed, which betoken that change.  A longer period of time will have to pass for it to be able to said with confidence that the swallow of his efforts has indeed a summer made.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

7. I do not think that this is relevant except to the extent that I have already indicated, namely that a willingness to put personal enmity before the benefit of children does not in either of these parents denote particular maturity of thought and action.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

8. This is not a relevant consideration in this case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

9. The matters of concern here have already been adumbrated in this judgment.  In particular, I refer to my comments earlier made in relation to the significant stress and suffering experienced by the children as a result of the parents’ inability to maintain a child focussed approach in their communication and decision making, as part of the responsibilities of parenthood and to insulate the children from protracted conflict.  The father strongly suggests that things will change and points to a number of positive changes in the relationship between the parties which he says point to more of a willingness by them to cooperate, including the establishment of a communication book and the relocation of the father to a residence closer to that of the mother, having the effect of reducing the travel time for the children between the parent’s respective homes.  Each parent has indicated a willingness to attend a “Keeping Contact” course.

   (j)any family violence involving the child or a member of the child’s family

10. There had been state proceedings between the parties.  The father’s assertion that they had been, so far as he was concerned, “thrown out of court” was a bit disingenuous in circumstances where it appeared that they were withdrawn following the mother seeking such withdrawal.  Generally it appears that physical violence is not a problem between the parties at present and to the extent that it has existed most recently it has been the violence of verbal abuse and intimidation.  Given the protestations of a new beginning, I have a reasonable hope that that will be a habit equally consigned to the dustbins of history.

    (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

11. There are presently no final orders nor as I understand it any current proceedings. Proceedings previously commenced did not proceed.

    (l)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 child

12. It would in this case be preferable to make such an order, other things being equal, given the long history of conflict.  Other things however are not equal.  The children are growing and the father gives assurances as to his future conduct, place of residence and attitude.  As I have said earlier, the needs perceptions and attachments of these children will develop particularly in the climate of change said to be going to surround them.  Each of the parties will need to be responsive to those developments and adjust their lives and obligations accordingly.  I do not foresee therefore that the orders I make will finally end changes in the children’s lives necessary to meet their best interests in hopefully changing and improving relationships between the parents and their developing needs.  I do express the hope that they will afford to the parties the capacity to make the changes the children’s interests demand of them as they develop, without the necessity for the institution of further proceedings.

    (m)any other fact or circumstance that the court thinks is relevant

13. The father’s conduct of his case in the witnesses he called and the questions he asked seemed to demonstrate that, notwithstanding his good conduct already referred to, he has a difficulty in putting the past behind him.  He for example called his mother to give evidence of a contretemps she had with the wife’s mother, a matter of marginal if any relevance to the issues.  The evidence of the children given to the Family Consultant as to the nature of their father and the dispute leads me to the conclusion that of the parties the father has more to do in convincing both the children and the mother that his new insight is more than forensic and superficial, but rather represents a sincere change in him.  In the circumstances it seems to me that his new approach could best be signalled to the children by him calling at the mothers home to pick up the children and re-delivering them there when they move from one party to the other.  This will enable him to demonstrate that he is happy to see them come with him and happy for them to return home.  I accordingly propose to adopt the mothers proposed method of changeover.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.  

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

5. In this case there is no reason for the presumption not to apply and neither parent seeks that.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.

2. For the reasons to which I have referred in a climate of conflict where although there is change for the better it is change whose longevity has yet to be established.  In these circumstances the existing arrangements should continue until at least there has been demonstration over 18 months of an ability to support each others relationship with the children and an ability to co-operate, communicate and provide a stress free environment for the children

The Orders to be made

1. I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  9 March 2009