Jarling and Anton

[2009] FamCA 1284

FAMILY COURT OF AUSTRALIA

JARLING & ANTON [2009] FamCA 1284

FAMILY LAW – CHILDREN – Parenting Orders – Interim arrangements

Family Law Act 1975 (Cth)

APPLICANT: Mr Jarling

RESPONDENT: Ms Anton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8341 of 2009

DATE DELIVERED: 21 DECEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 9 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ST JOHN SC

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MS GLAISTER

SOLICITOR FOR THE RESPONDENT: PEARSONS SOLICITORS PTY LTD

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR EIDELSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SCHETZER CONSTANTINOU

Orders

1. That until further order, the children S born … September 1997 and H born … April 2002 live with the father at all times other than as set out hereafter.

2. That the children live with mother on the nine consecutive days commencing on or about 18 January 2010 and concluding on the ninth day thereafter between the hours of 10.00am and 6.00pm on each consecutive day.

3. That the children have telephone communication with the mother on each alternate day at 7.30pm with the mother to call the children.

4. That the time between the mother and children referred to above be in the presence of one of the following adults:

   (a)      Ms A;

   (b)      Ms R;

   (c)      Mr C.

5. That if any of the adults referred to under these orders above are not available then the parties contemplate a substitute person and in the event of there being no agreement between the mother and the father, then with the assistance of and as determined by the Independent Children’s Lawyer.

6. That the handover of the children be in the absence of each party but at the M Centre.

7. That the interim application filed on 16 December 2009 and the response thereto filed 21 December 2009 be otherwise dismissed save that the application by the father for the withdrawal by the mother of the Notice of Risk of Child Abuse be struck out.

8. That all extant interim applications be adjourned to 10.00am on 5 February 2010 for an interim hearing AND IT IS REQUESTED that psychiatrist Dr E provide evidence as to his observation of the parties at the return date and if there is not sufficient time for him to prepare a written report, that subject to his availability, evidence be given by telephone.

9. That pursuant to s.65DA(2) and s.62B, 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.

10. That the disputed issue of jurisdiction relating to financial matters be listed at 10.00am on 22 February 2010 before me.

11. That the outstanding parenting issues be listed for final hearing before me as the first case in the list commencing at 10.00am on 6 April 2010 with an estimated duration of three days.

12. That the mother file and serve any affidavit material relating to parenting issues upon which she intends to rely by 4.00pm on 1 March 2010.

13. That the father file and serve any affidavit material relating to parenting issues upon which he intends to rely by 4.00pm on 22 March 2010.

14. That the Independent Children’s Lawyer file and serve any material relating to parenting issues upon which it intends to rely by 4.00pm on 29 March 2010.

15. That Family Consultant Mr N prepare a family report to address all issues in dispute to be released by 29 March 2010.

16. That the Family Consultant have access to all material filed by all parties and any material produced under subpoena.

17. That the parties attend upon and at the direction of the Family consultant for the purposes of the family report.

18. That the matter be listed for mention at 9.00am (by telephone if the practitioners agree) on 30 March 2010.

19. That unless otherwise impracticable, Registrars Sikiotis and Kaur be appointed as the docketed registrars responsible for the management of the case.

20. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 22 March 2010.

21. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)    If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

    (b)    refer the case to the trial judge for directions as to its future management; or

    (c)    if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

    (d)    return the case to the Registrar’s docket on a date to be fixed for further management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

22. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 1 April 2010 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

23. For the purposes of paragraph 10 of these orders, each party provide to my Associate electronically and to all other parties by 4.00pm on 19 February 2010, an outline of argument.

24. That all parties’ costs of the hearing on 21 December 2009 be reserved.

25. That pursuant to s.65DA(2) and s.62B, 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8341  of 2009

MR JARLING

Applicant

And

MS ANTON

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a parenting dispute concerning S born in September 1997 and H born in April 2002. 

2. The parents of the children are Mr Jarling and Ms Anton.  Both are intelligent and articulate people who are widely travelled and have professional qualifications. 

3. I shall refer to Mr Jarling and Ms Anton as “the parties” but otherwise as “the father” and “the mother”.

4. On 9 December 2009, I heard an interim dispute.  I reserved judgment because of the volume of material I was asked to take into consideration.  The relationship between the parties was acrimonious and affecting the children to the extent that the family consultant expressed concern.  The lack of an opportunity to make urgent interim orders on 9 December 2009 no doubt exacerbated the problem between the parties but one might have expected some respite in the hostilities after the hearing.  That did not occur. 

5. I had prepared to deliver judgment in the week ending 18 December 2009 but the father made an application to reopen his case because of events subsequent to 9 December.  The mother opposed the matter being reopened.

6. I arranged for the case to be relisted on 21 December 2009.  The parties and the Independent Children’s Lawyer were again represented although the mother and Independent Children’s Lawyer by different counsel from 9 December 2009.

7. Based on the material filed by the father alone, I ruled it appropriate to reopen.  Primarily, the father had always maintained the mother’s mental health was a serious issue.  The mother in turn pointed to the father’s harassment of her.  The period after 9 December 2009 highlighted the dilemma.

8. As a result of the facts to which I shall refer below, I made orders on 21 December 2009.  The reasons which follow are a combination of the hearings of 9 December and 21 December 2009. 

9. The parties were not married but certainly lived in a relationship out of which has arisen a financial dispute.  A significant issue in that dispute relates to the jurisdiction of this Court to determine matters.  It is not just the property issue that is in dispute but also a claim by the mother for what is colloquially known as “spousal support”. 

10. The jurisdictional issue arises because there is a significant dispute as to when the relationship broke down and whether the recent amendments to the Family Law Act 1975 (Cth) (“the Act”) apply. If they do not, apart from any capacity in law for the mother to make an application for spousal support, it would seem that the jurisdiction of the state courts of Victoria otherwise govern the matters.

11. I have already referred to the fact that the breakdown of the relationship has been acrimonious and neither party has covered themselves in glory.  There is much conflicting evidence as to exactly what has occurred in this case but it would appear common ground that much of the unpleasant conflict occurred in the presence of the children who have been adversely affected by it.  Nothing was more apparent in that regard than the period after 9 December.  I am concerned S is particularly affected by it. 

12. The mother is a professional by training but has not practiced as such for over ten years.  During those years, she has been predominantly fulfilling the role of parent on a full-time basis. 

13. The father is also a professional but has been engaged since September 2002 as a researcher.  Although I do not have the precise details, the financial position of the parties could be described as comfortable and it is alleged by the mother that the father’s income is significant. 

14. The father’s profession requires him to travel overseas significantly.  The mother obtained details of his travel under subpoena and since 2007, I find that he has been away for significant absences.  That is not to say that when he has been at home in Australia, he has not had a significant role in the lives of the children.  As late as November 2009, the father was away overseas for some time and the children were cared for by the mother.  In addition, when he initiated proceedings relating to parenting orders, he sought a shared care arrangement.  That subsequently changed.

15. When the proceedings were before me in the Judicial Duty List on 2 November 2009, the mother was unrepresented and the father appeared by his counsel.  It would be fair to say that the mother’s position at that time was strident.  She was indicating that she was going to relocate with the children to Sydney and had already organised schooling for them in that city.  The relocation was strongly opposed by the father.  I made orders precluding the removal of the children on an interim basis but more importantly, specifically ordered that the mother not take the children to any school orientation program outside of the State of Victoria. 

16. I have no doubt in my mind and this is a significant criticism of the mother, she did take the children out of Victoria to a school and exposed them to the environment that she anticipated they would ultimately be attending in 2010.  She said she read the order as meaning she was only precluded from attending an orientation program.  I reject entirely that the intention of the orders was not clear.

17. The mother has moved to live in Sydney and has obtained rental accommodation at a cost of $1100 per week.  There is a significant dispute on the facts between the parties as to whether she “stripped” the house of all of the furniture and chattels or whether she simply took what was hers and what she needed to run the household in Sydney.  I am not in a position to determine that issue but I am satisfied that her action was unilateral.  What is more concerning is that the action of packing up and packing into a removal truck was done in the presence of the children.  It might be suggested that that was inappropriate and disturbing for the children.  However I was more concerned that it was presenting to the children a fait accompli in circumstances where the mother well knew that the issue before the Court as to where the children were to live in the future was disputed.

18. In preparation for the hearing, the parties attended upon family consultant Mr N. Mr N prepared an issues assessment report.  Although it was variously referred to by counsel as a comprehensive report or setting out matters that were disturbing, it must be understood that its purpose was to define the issues between the parties and give some indication as to the way the proceedings were impacting upon the children.  It is clear in this case that a comprehensive report needs to be undertaken having regard to the fact that the mother proposes to have an entirely different lifestyle for herself and the children to that which she is currently living.  To compound matters, it is clear on the evidence before me that the subject of the relocation to Sydney was not something that took the father by surprise.  He conceded that it was something that he would have supported and would have been able to move there himself and work effectively out of Sydney.  However having regard to what he described as the behaviour of the mother, he changed his mind and opposed the concept.

19. In his issues assessment report, Mr N set out briefly some of his observations of not only the parties but of the children.  I highlight only some of those matters. 

20. Mr N interviewed 12 year old S who described herself as managing “fine” but then commented that her mother was “very stressed”. That was an understatement.

21. S spoke of her father in complimentary terms as a parent but the underlying theme was that there was significant conflict between the parents that S had witnessed.  S observed that she did not want to be in a position where she simply spent alternate weekends with one parent and that what she desired was that there be something akin to a week-about arrangement.  Clearly, that is currently impracticable with the mother in Sydney and the father in Melbourne.  The matter is also compounded by the father’s work requirements.  To that extent, the father provided an affidavit by his employer in which it is said that his travel will be reduced because they are aware of his parenting obligations but in any event, there is a clear acknowledgement that he will still have travel both internally and externally to Australia in 2010. 

22. Mr N referred to the fact that S reported what could only be described as a horrible incident in a motor car on the very day that all of the parties came into the Court to see him.  I do not propose to set out the details of the incident save that it was clearly traumatic for the children as well as for the adults but it gave rise to Mr N being very concerned about the mother who presented as irate, shaking and extremely angry at the father because of what she saw as his inappropriate behaviour.  Mr N said that in this state, the mother produced a box of Valium tablets and said that she needed one.  Mr N counselled the mother to such an extent that she became calm but then somewhat confusingly, she offered Mr N a tablet either in jest or for some other reason.

23. Mr N said that the mother described the father as a bully and a person who needed a psychiatric assessment.

24. As it is, the parties have agreed to undergo a psychiatric assessment which will be held at the end of January 2010. 

25. Mr N also interviewed H.  He is 7 years of age and presented with apparent difficulties.  He was described as having a clear lisp and a very limited attention span.  He has also been affected by the conflict between his parents describing it as making him unhappy and hurting his ears because of the loud shouting.  He was able to distinguish between one parent over the other being more prominent in the shouting but it seems to me that it is rather irrelevant to the whole exercise.

26. Mr N interviewed the father.  He expressed the concern to Mr N about the mother’s excessive alcohol consumption and questioned her mental health status.  The issue of alcohol consumption is of concern.  According to Mr Williams of counsel for the mother, it is being addressed.  However, the mother told Mr N that she was consuming at least a bottle of wine per night and S described her mother as consuming alcohol during various times.  From S’s 12 year old eyes, her mother did not seem to be an incompetent parent.  Despite that, it seems to me that alcohol at that level could be said to be dangerous.

27. The father also said that in addition to the alcohol concerns, the mother was obtaining psychiatric treatment from Professor B and was being treated with medication. 

28. To a large extent, the mental health status of the mother remains unclear and worrying.  It appears that on a referral from the paternal grandfather, the mother attended upon Professor B as early as 2007.  In an affidavit filed on behalf of the mother on 7 December 2009 Professor B indicated that he had not only been seeing the mother but he had also been seeing both parties.  It would appear that that was in some form of counselling.

29. Although Professor B’s report was criticised by senior counsel for the father as lacking in substance, I am able to conclude that Professors B was not entirely concerned about the mother’s mental health status.  He said that when he saw the parties together, he thought they would be able to resolve their difficulties.  He said the mother felt “trapped” and that she had been “lured back to Melbourne falsely”.  He pointed to the fact that the mother was representing herself in the legal proceedings and he advised her to get proper representation.  Importantly he said: “There is good evidence that [the mother] has been a good caring mother”.  However that may be, the recent events are inconsistent with good parenting.

30. Professor B went on then to say that the mother had obviously been very anxious, at times stressed, somewhat depressed and perhaps at times, a little elevated in her mood but had not required intensive pharmacological treatment.  The facts below relating to the period after 9 December would indicate more than just an elevated mood.

31. With the parties having formally separated and more particularly the mother being in Sydney, some of the stress and anxiety associated with the relationship should have evaporated.  Mr N saw the problem as escalating.  To that extent, the foreshadowed psychiatric evaluations may provide some insight.  However, I am also conscious that Professor B who obviously knows not only the mother but also the father, did not express serious concerns about her behaviour.  Whilst he may have had some concerns about the stress levels of the mother, he expressed clearly that he thought she was a competent parent.

32. The father’s position on 9 December was that the mother spend time with the children as follows:

    (a)      for five consecutive days (but not over night);

    (b)after 13 December 2009, for two one week periods the first of which should be in Melbourne and the second in Sydney; and

    (c)once school resumes for alternate weekends on a cyclical basis in which the first alternate weekend was in Melbourne and the second in Sydney.

    The father resiled from that position on 21 December.

33. The father proposed and it was not opposed by the mother that there be regular telephone communication between each parent and the children via mobile telephone.  That becomes important when I consider the events after 9 December.

1. In respect of the travelling to Sydney, whilst the mother sought that each pay one half, the father’s position was that it was the responsibility of the mother to sort those matters out as she had moved to Sydney, rented accommodation at $1100 per week and given no indication of her financial circumstances. 

2. The mother’s position was that orders should be made:

   (a)that the children live with each parent equally and during the long summer school holidays, specific periods from 11 December to 23 December with the mother and from 30 December to 12 January with the mother and otherwise with the father; and

   (b)once school commenced in 2010, on a week-about basis commencing from the Friday afternoon.

3. It was proposed by the mother that for the school holiday periods, the parents share equally the travelling expenses to and from Sydney.

4. On 9 December, Mr Ham on behalf of the Independent Children’s Lawyer supported the mother’s position.  He said that the mother had had a significant role of caring for the children and the father had left the children in her care when he recently went overseas.  He said that whilst there was some concern about where the children would live in 2010, one presumed that because of the background of the parties, neither would permit the children to be living in inappropriate circumstances.  It was my expectation on 9 December that despite the concern of Mr N, the parties might settle into a shared parenting regime and the conflict cease.  Nothing could be further from reality.

5. On 10 December 2009, the parties went to the Melbourne Magistrates Court.  The father said the mother’s behaviour towards him at the court hearing was abusive and that she left the court before the case was heard to collect the children.  The mother’s position in relation to leaving the court when her own application was still to be heard was that she went because she wanted to collect the children as she was not certain that they would be made available for her.  I find that very odd.  The whole issue of what was to happen with the children depended on my determination. 

6. In her evidence, the mother said that she and the father agreed the mother said that when the children commence school in 2010 they would spend a “week-about time” in each party’s care.  There was never any suggestion put to me on 9 December by the father that there should be a week-about arrangement.  Quite the contrary, he was proposing alternate weekends.

7. I have therefore concluded that what the mother asserts was an agreement and her expectation was certainly not the consensus albeit it may have been a position adopted by the Independent Children’s Lawyer.

8. As a consequence of the mother leaving the Melbourne Magistrates’ Court, the Magistrate apparently dismissed her application.

9. It transpires that on 10 December 2009, the children were at the home of people known to both parties.  The mother asserts that this was all part of a game being played by the father.  I reject that.  There is no evidence to suggest that the children were there other than for the purpose of being properly cared for whilst their warring parents were in court. 

10. The father’s evidence was that the children were being cared for by people known to both parents.  The mother went from the court to that house and S informed the husband that the mother told the carer’s children that it was necessary to take away their keys and lock everyone in the house because she was concerned about abductors.

11. On the afternoon of 10 December 2009 there was an altercation between the mother and the father of the other children.  The mother in turn accused that gentleman of abusing her.

12. That same day, S told the husband that whilst being driven to the father’s home by her mother, she had become scared of her mother’s behaviour.  S told him that her mother had said that S had “broken her heart” and that as a result she may commit suicide.  In her affidavit in reply, the mother said that she told S she was upset that S did not wish to remain with her and that she could not understand what had changed within the week. She told S she was heartbroken.  The significance of those comments make it more likely than not that what S told her father was accurate but more concerning is that S not only is involved in the parental conflict but that she now has reservations about being with her mother.  That certainly was inconsistent with the indications to the family consultant in early December.

13. The father said that after the Melbourne Magistrates’ Court, agreement was reached that the children were to be separated for holiday purposes.  The mother complained that the father was dictating to her requiring her to sign an agreement.  I note in fact she did sign the agreement.  All of this was in the context of the mother’s view that the proposals she had put to me through her counsel on 9 December were going to be put into the form of an order. 

14. On 12 December 2009, the parties had a dispute about the telephone contact between the father and H.  The mother complained that the father was spending too much time effectively monitoring what was happening with H as a result of which she took his telephone away.  I find this rather odd also having regard to the fact as I have earlier mentioned that both parties had indicated to me on 9 December 2009 that the children were to speak to the father whilst in the mother’s care on a regular basis.

15. On 13 December 2009, there was an altercation between the mother and S because she sent the father a text message indicating that she was bringing S back.  The mother’s view was that S insisted on being returned.  She then said that it was the father and his family who had denigrated her to S and that that was the reason for S wanting to leave her care.  Whilst that may be so, it again highlights the problem that S has in dealing with the conflict.  It may very well be that S is indicating her desire to be with her father more so than her mother. 

16. The father then indicated that upon returning S to his house, the mother was in a wild rage and screamed abuse at him in front of all of the children.  This was as a result of S expressing a desire to return home.  There is a dispute between the parties as to whether the children were present during all of this unseemly behaviour but I am satisfied on what I have read because of the depth of the statements that it is more probable than not that the father’s version is right.  Even on the mother’s version, she concedes that the children were present at some point in the conflict.

17. Later that same day, the mother had an altercation with Ms M.  Ms M filed an affidavit indicating that what the father said was correct.  The abuse to Ms M for being present in the home which the mother had left as I have indicated earlier is perplexing.  What the mother said was that:

    The father has occupation of the property, is providing me with no financial support during this time and he continues to denigrate me to the children.  I also attended the property to find a person in attendance who he is aware I have had a dislike to for some time and did not consider someone the children should be in contact with.  I was in my view understandably upset.

18. I find that statement is inconsistent with the responsible parenting that I would have expected from a mother who is struggling to come to grips with the fact that her daughter is desiring to be with her father.  Diplomacy on any view would have indicated that it would have been more sensible for the mother not to have attacked Ms M the way she did.

19. All of that sort of behaviour is consistent with the family consultant’s expression about the problems in the conflict escalating. 

20. On that same evening, the mother contacted the father and said that she and H were in a safe house and that it was the father who needed urgent psychiatric assessment.  Her conduct at that stage was odd.  She would not allow him to speak to H.  She said that she would not allow the father to see H until a psychiatric examination and extensive therapy had been completed.  It must be kept in mind at this stage that S was with the father.

21. The parties had a further conflict on 14 December 2009 when H had an appointment to see his paediatrician.  As H was still with his mother, the father went to the rooms of the paediatrician with S.  They had an altercation there which resulted in the attendance of the police.  H and S left with the father.

22. There are a number of matters in the affidavit of the mother which do not respond to the explicit allegations made by the father.  The mother’s evidence is very general and statements as to the father harassing her or denigrating her are unhelpful without particulars.  I certainly have no explanation as to why she was in the safe house. 

23. There was a further incident in which the mother attended at the home of some mutual acquaintances who reported to the father that she had consumed alcohol.  Alcohol, as I have previously indicated, is a serious problem in this case.  The mother in response to that allegation made no denial as to the consumption of alcohol.

24. Thus, what I am dealing with is a highly conflictual family in circumstances where the sort of separation I had anticipated, would seem to make very little difference.  I am very concerned about the fact that S is being placed in the conflict and expressing a desire not to be with her mother.

25. Having regard to the relatively short time until the matter can be examined by Dr E, I think the inconvenience to the mother is a small price to pay for the continuation of the relationship between her and the children.  It will give her an opportunity to bridge the gap with S and ensure both children are together during the school holiday period.

26. The mother initially said that she desired that the father move out of the home during the daytime period but did not press for that.  In my view that was a sensible course of action.

27. Part VII of the Act provides that in determining what is in the best interests of children, even on an interim basis, the Court must look to the matters set out in s 60CC of the Act.

28. It is also clear however that I cannot make decisions on contentious facts.  I propose not to do so.  There are many unexplained behavioural issues.  I also have evidence of their behavioural aspects from Mr N in an issues assessment which will be expanded and examined in more details in a family report.

29. Section 60CC divides considerations into primary and additional matters. The primary considerations are the benefit to the children of having a meaningful relationship with each of their parents but also to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. With the conflict in this case even on the disputed facts, it is clear that those two principles are very much in focus if not in conflict.

30. Additional considerations in this case are also important.  Although I do not have any evidence as to the level of maturity of S, it is clear that she is an articulate child.  I am not sure what S’s current views are.

31. Although the father indicated that he desired orders of a restrictive nature, he made clear through his counsel that it was important that the relationship between the mother and the children be not only continued but be fostered.  I was impressed by his candour in conceding that there were problems and that he may very well have contributed to them. 

32. I have taken into account the parenting capacity of each of the parents.  Each of them has shown the capacity to provide for the needs of the children.  It is their incapacity to see the damage that they are doing by the ongoing conflict that troubles me.  That evidence needs to be heard and tested.  It will show the attitude of the parents and their responsibilities towards parenthood and that will have a significant impact on the outcome of this case.

33. There are assertions of family violence in this case and the events at the Melbourne Magistrates Court are not only disconcerting, they establish that the state court was sufficiently concerned to dismiss the mother’s application for an intervention order.

34. It seems to me therefore that it is in the best interests of the children that they have significant but supervised time with their mother.

35. Section 60CC(4) requires me to consider the extent to which the parties have fulfilled or failed to fulfil their various obligations in facilitating the relationship each with the other parent. I am not at all clear from the evidence just exactly what each parent’s view is about the other.

36. There is a dispute between the parties about decision making for the children.  It is the father’s ultimate application as I understand it that he have sole responsibility for decisions about the children but his counsel conceded that on an interim basis, I did not have to address that issue.  It is the mother’s position (to her credit) that there should be equal shared parental responsibility.  To make an order of that nature would mean that the parties have the responsibilities to make decisions together.  Those decisions relate to the long term welfare of the children.  On the current state of the relationship between the parties that would seem to be almost impossible.  At this stage however, neither party has sought that I make such orders. 

37. Section 65DAA(1) provides that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must:

    (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

38. The parties have therefore asked me at this stage to leave in place their legal status of each having equal shared parental responsibility noting that the issue may very well become an issue at trial. 

39. Part VII of the Act also deals with the presumption of equal shared parental responsibility. In this case, it is not an issue because the parties have asked that I treat them as having equal shared parental responsibility undisturbed until the question is resolved at the final hearing.

40. The parties also raised the question of the financial matters.  I propose to give them a day upon which they can call the necessary evidence to deal with the jurisdictional issues and to have a comprehensive final hearing in respect of the parenting matters as set out in the orders.

41. As I have also indicated, telephone communication needs to be considered.  In my view, the appropriate order is that the children be able to contact either parent at any time but that each parent otherwise not contact the children whilst they are in the other parent’s care other than on every alternate night.

I certify that the preceding Seventy Four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 December 2009