Jarvis & Jarvis

[2007] FamCA 3

[2007] FamCA 3

THE FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA  TVF4 of 2005

AT CAIRNS

BETWEEN:

JARVIS  (Respondent/father)

AND

JARVIS  (Applicant/mother)

CORAM:  The Honourable Justice M.J.M. Lawrie

Date of Hearing:      13, 14, 15 and 16 December 2005

Date of Judgment:   5 January 2007

JUDGMENT OF THE COURT

Appearances:

Mrs Pack of Counsel, instructed by Vandeleur & Todd, Solicitors & Notary Public, [35 Rankin Street, Innisfail  Qld  4860], appeared on behalf of the applicant/mother.

Ms Demack of Counsel, instructed by Wilson Ryan Grose, Lawyers, [Level One, 15 Sturt Street, Townsville  Qld  4810], appeared on behalf of the respondent/father.

CATCHWORDS:

FAMILY LAW - CHILDREN - With whom a child lives

FAMILY LAW - CHILDREN - With whom a child communicates

1. The applications in relation to children’s matters between Ms J and Mr J and Mr D and Ms M relate to a group of children whose four parents have re-partnered amongst themselves.

The original marriages

The D and M marriage

1. Mr D, a mechanic (born in November 1973) and Ms M (born in April 1975) married in October 1994 and have two children:  B born in August 1997 and J born in April 1999.  The children have lived at M near I.  The house is in an area of cane farms, near the husband’s parents and other extended family.  They attend local schools.  B is particularly engaged in dancing, for which she has a talent.  J is particularly close to his father.

2. The parties separated in July 2004 when the wife moved to a flat in nearby I.  The care of the children was shared.  The wife worked in paid employment.  The marriage was dissolved in November 2005.

3. Ms M has developed a relationship with, and has spent significant time with Mr J and her long term plans are to move to live with him if she is allowed to relocate the children to T.

4. She indicated that she would remain in I if she had the children living with her, but was not permitted to relocate with the children.  She admitted however that it would be likely there would be a further application in about a year to seek to move to T if she obtained orders for the children to live with her in I.

The J marriage

1. Ms J (born in July 1972) and Mr J who works with his parents’ pastoral company (born in July 1970) married in January 1998 and have three children:  A born in May 1995, S born in July 1998 and K born in June 2000.

2. At the date of separation in November 2004 they lived near T at “L Park” which was a property operated by the husband’s parents as a quarry and cattle property, which is about fifteen minutes away from the furthest outskirts of T.  They had moved to that property in April 2004.  The husband’s family had taken an option on the property and it was not altogether certain that the move would be permanent.

3. Prior to that time they had lived on a cattle station “JE Station” which was owned by the husband’s parents ([…] trading as “JE Station”), a larger and more remote property about 280 kilometres, or about three hours drive, northwest of T.  The husband’s sister and her children, close in age to the J children[1], another sister who has no children, and a “home schooling” governess Miss S also lived on JE Station.  For about three months after they first moved to L Park the children went back to JE Station from Monday morning to Thursday night each week to be schooled, but the mother enrolled them in a town school in July 2004 without informing the husband whom she correctly believed would be opposed to it.  The husband said he could not see any sense in moving the children down when they did not know if the place was secured[2].

   [1]  Described by the Governess as “three pairs of twins”

   [2]  transcript 63 of [Mr J’s] evidence

The post separation relationships

1. It is not in issue that the first of the new relationships amongst these four people which developed was that between Mr J and Ms M.  To see that fact as somehow a cause of everything that followed is a mistake.  Separations are the tips of emotional icebergs.  They are usually a symptom rather than a cause.  The end of a relationship is the culmination of many private matters which it is impossible for outsiders to evaluate.  New partners only hear one side of the story and even they cannot know the whole story.  It is particularly difficult for children, whether very young or adolescent to understand the dynamics of adult relationships and they are more likely to see things in black and white in terms of who “caused” breakups, or whose “fault” it was.  That is certainly the case with at least one of the children here.  As they mature and enter adult relationships themselves they may come to a more realistic appreciation of what is involved.

2. There was evidence of conversations with the children or in situations where the children were able to overhear which have obviously led to them hearing their parents’ views on the events and the other adults involved.  In an ideal world the children would be insulated from that knowledge, but it is a counsel of perfection to expect people who are in a state of profound distress (as people going through family breakups are), not to “defend” themselves, as they see it, against accusations, particularly from the children, or to retort with insults if they or their partner are insulted in speech or text messages.  However the adults should be aware, if they are not already, that the research into the consequences of divorce for children over many years and many countries, identifies the fighting between the adults as the most harmful and destructive feature of divorce for the children.  The best hope the children have is if they can see that it is possible to move on without continuing fighting.  They are in the middle on the emotional battlefield, and if the adults keep lobbing missiles at each other it is the children who have the emotional shrapnel wounds.

3. Although there is still some aggravation between the parties it shows some signs of improving.  Ms J had withdrawn a DVA because “I didn’t see it was going to help as we still have to have communication with the children.  There was – it really wasn’t going to help us at all.”  With the benefit of hindsight when cross examined she said she would now express the situation to the children as “We have both chosen different paths and we’re all happy the way that we are now.”  The D’s have found that a communication book has assisted them in organising the children with less friction.  At the hearing Mr J was not using a communication book.  It would be likely to be of assistance if he did.  It would also be likely to help the children if the possibility of losing a parent was not ever made the subject of a joke, even if the parent thought it was amusing[3].  Children do not understand what is going on and can think there is a real possibility that they may lose the other parent.

   [3]  [Mr J] defended having said “How about we get rid of mummy and we’ll get another one”  (Transcript 49) as “an appropriate thing to say to the children in the context.”

4. The Family Law Act came about because people realised that many, many causal factors were involved in any separation, some quite impossible for people outside the couple to appreciate, and that “fault” being attributed to parties was unjust, so recording the sequence of events is just giving the history of the matter, not an apportioning of any blame. Not everyone chooses the perfect person to spend the rest of their life with when they marry, through no fault of their own. People can be incompatible, and it can cause them real suffering, but find happiness with a new more compatible partner. Certainly Ms M, for her part, whilst living with her then husband Mr D, was unhappy to the point of needing some medical help with depression. There is no evidence that this is currently a problem.

5. The relationship between Ms J and Mr D started after this situation which had developed between their respective partners.  At the time of the hearing Ms J had literally just moved to physically live with
   Mr D, having up to that time had her own accommodation in T, but spending much of her time with him, with her children as well.

6. There are certain common features between the two groups.  In both of them the husbands were the main breadwinners, and that involved them at times having to spend time away from the matrimonial home.  In both cases since the separation the husbands have been more involved with the children than they were beforehand.  Both of the husbands work in enterprises in which their family have been involved and which have been arranged in a fashion which yields benefits under the tax system and social security system[4] but has yielded apparently low incomes.  They have nonetheless, despite these historically very low incomes (in the case of Mr J for example, previously too low to generate any legal obligation for child support) been able to enjoy comfortable standards of living.

   It was not an appropriate thing to say to the children whatever the context.

7. Both couples (as they are now constituted) seek to have all the children living with them.  They all believe that the three hours needed to travel the distance between L Park and M make any shared arrangement unworkable.

Relevant law

1. The philosophy of the Family Law Act in respect of children is set out in various sections.

2. The most important of all the sections is Section 60CA which provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.  This makes it clear that tailoring the situation to best suit the children takes priority, rather than any consideration of matters such as equality of time for the parents for example.

3. What is meant by the best interests of the children?  The philosophy of the children’s provisions of the Act are set out in Subsection 60B(1) which sets out the features of a situation which is regarded as being in their best interests:

   “60B  ... (1)  The objects of this Part are to ensure that the best interests of the children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b)protecting children from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

4. Subsection 60B(2) provides:

   “(2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children;  and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

1. Subsection 60B(3) provides:

   “(3)  For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture;  and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views;  and

   (ii)to develop a positive appreciation of that culture.”

This is not significant in this case as the children have no aboriginal or Torres Strait heritage and so will not be referred to further.

1. The checklist of things that have to be looked at in working out what are in the children’s best interest are set out in Subsection 60CC which provides:

   “60CC  (1)  Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)  Additional considerations are:

   (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;

   (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);

   (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;

   (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;

   (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;

   (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;

   (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;

   (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;

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

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

   (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;

   (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;

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

1. This matter is also one of those parenting cases “where the proposal of one of the parties involves relocation”[5].  These have some special problems and the way to approach them suggested by the Full Court[6] and the High Court[7] are:

   [5] A v A: Relocation approach (2000) FLC ¶93-035

   [6] B and B (1997) FLC ¶92-755

   [7] AMS v AIF (1999) 109 CLR 160

   ·Section 65E remains the fundamental principle, but not the “sole” consideration[8]

   [8] Ibid Kirby J at 207, Hayne J at 330

   ·the competing proposals presented by the parties must be evaluated, and the advantages and disadvantages of each for the child’s best interests must be weighed up

   ·the issue of relocation is not a separate issue from that of residence

   ·the court must have regard to Section 68F[9] in making the evaluation

   ·the court’s considerations will be guided by the context provided by Section 60B.

   ·the factors referred to in Holmes[10] are still helpful:  is the application bona fide?;  will the custodial parent comply with orders designed to continue the relationship with the absent parent?;  what would be the general effect of the alternative proposals?

   ·further factors discussed in B and B include:  the degree and quality of the existing relationship between the children and the residence parent and the children and the contact parent;  the reason for relocating;  the distance and permanency of the proposed change;  the feasibility and costs of travel;  the age and wishes of the children;  alternate forms of contact[11].

   ·the relocating party does not have to demonstrate “compelling reasons”[12] for moving

   ·the interests of the parents may be relevant to the best interests of the child depending on the case[13]

   ·the court is not bound by the proposals of the parties but must give procedural fairness

   ·it must not be assumed that the other party cannot relocate[14].

   [9]  which at the relevant time covered the following matters:

   [10] In the Marriage of Holmes (1988) FLC ¶91-918

   [11]  B and B op cit, 84,221-222

   [12] AMS v AIF 199 CLR 160

   [13] Ibid p.232

   [14] U v U ( 2002) FLC ¶93-112 at 89,081

2. The Full Court suggested a three step approach:

   ·first, identify the relevant competing proposals for future care of the children

   ·second, explain the advantages and disadvantages of each proposals by examining the factors set out in Section 68F(2) in the context of Section 60B and look at the “reasons for relocation as they bear upon the child’s best interests”[15]

   ·third, explain why one proposal is to be preferred, having regard to the best interests of the child, with regard being had to the following – no party bears an onus, the reasons for how the matters have been balanced, the importance of a party’s right[16] to freedom of movement must be given regard.

   [15] Ibid 87,548

   [16] As provided for in Section 92 of the Constitution as to movement within Australia

3. Each of the alternate proposals is ultimately for all of the children to live in one household:  either with Mr D and Ms J in the home in the cane field community of M where the D family had been living for the whole of the marriage;  or with Mr J  and Ms M at L Park station near T where the Js had been living before the separation[17].

   [17]  I use these as geographical descriptions to differentiate the two areas, not as the name of the particular place where the children would actually be

4. There was discussion during the hearing of the differences of and relative merits of the two possible environments for individual children.  It was stressed that the J children were “bush children” having been brought up on a large cattle station with the lifestyle of home schooling and close interaction with the other members of the station “community”, particularly their cousins.  However, there had already been changes to that “bush” lifestyle as a result of investment decisions within the J family, with the children and their parents moving to the smaller station nearer to T.  Had that not occurred, it was in any event to be expected that there would be changes in the children’s lives that would take them from the property and both their parents once their primary studies were concluded, with the older children having to board for their continuing education.  The separation does not appear to have changed the strong bond between the children and their cousins.  Miss S, the governess who knew the two lots of cousins, the “three sets of twins” as she described them, was asked whether she had noticed “a difference in the quality of the relationship between these two sets of cousins, or three sets of twins as you’ve described them since they went to school?” and she answered “No.”[18]

   [18]  that is the [J] children

1. It is true that the cane field environment is different from the station, but so is the present, smaller property from the original large one, and the children will be spending significant periods in the other environment on holidays and weekends, whichever family they live with during the school week.

2. The D house block is of course significantly smaller, but is adjacent to
   Mr D’s Aunt G where the children are welcome, she having 30 acres where there are some cows, an orchard and a swimming pool, so it is not an area without room for the children to enjoy the outdoors.  The two environments are not at opposite ends of the spectrum.

3. Both of the households have good extended family networks to assist with the children.  Both would be able to provide appropriate physical accommodation, although at the hearing the D household seemed to be moving closer to achieving that than the J one.  Both of the households would be able to provide appropriate educational opportunities for the children.

4. There was some concern about B’s special ability in dance being able to be fostered as successfully as it has been in her existing setting.

5. There was some concern about the adjustment to school for S who had been home educated with the assistance of a private home teacher (Miss S).  He was somewhat behind the reading standard of his classmates when he started in a formal school.  S seemed to have been over the worst of the adjustment by the time of the hearing.  There is a greater support for reading in the D household than in the J one, where Mr J makes no bones about the fact that “I don’t like reading.”

6. The central issue in this case is which of the new reconstituted mixed families environment is likely to cope better with the relationships between all the members of a very large blended family and the tasks involved in the “management” of such a  group on a day to day “workaday” basis.

7. Mr D was himself the product of a blended family, and although this blended family will have important differences, the most important being that the other parents are to continue sharing in the children’s lives whereas his childhood family was the product of bereavement, I did think that he had a better insight into the difficulties that it would present.

8. Mr D has also shown more appreciation of the need for the support, particularly financial support for accommodation and for transport, for people connected through the children even after separation, showing this in the most practical way by continuing some support for his children’s mother which
   Mr J did not match.  Mr J had not paid child support for the children whilst they were with the mother (and had not paid any financial support for another daughter aged fifteen who lives with her mother in the United States and whom he has occasionally visited.)  The support which Mr D has provided must however also be seen in the context of Ms M’s entitlements as a partner of the husband in the company which had run their business, and the fact that the wider J family had arranged their finances in such a way that the present litigants had not accumulated property in their name.

9. Mr D has also a better track record in terms of the management of the children in terms of activities.  Although Mr J emphasised the flexibility of his arrangements he had not been able to ensure that the children always got to organised activities like Ozkick or swimming classes.

10. As well as the question of where the children should physically live there is also the question of how much should the parents be involved in the decision making in respect of the children?  This is what is referred to as parental responsibility.

11. The section covering this question of decision making and how it is to be shared is Section 61DA of the Act which provides:

    “ (1)  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.

    Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B.  It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

    (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family);  or

    (b)     family violence.

    (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4)  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.”

1. There is no order sought for any departure from the principle of shared parental responsibility.

2. As a result the court must consider whether it would be in the best interests of the children, and whether it would be reasonably practical, for the children to spend equal time with each of the parents.

3. Subsections 65DAA(1) and (2) provide:

   “  65DAA  (1)  [Equal time]  If a parenting order provides (or is to provide) 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.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (2)  Substantial and significant time  If:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;  and

   (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;  and

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child;  and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable;  and

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

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.”

1. In doing so the Court must have regard to the provisions of subsection 65DAA(5) which are:

   “  (5)  [Reasonable practicality]  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other;  and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;  and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;  and

   (d)the impact that an arrangement of that kind would have on the child;  and

   (e)such other matters as the court considers relevant.

   Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child.  Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child.  These include:

   (a)    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 (paragraph 60CC(3)(c));

   (b)    the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

   Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.”

1. As indicated earlier this is not a case where it is reasonably practicable for the children to spend equal time with each of their parents.  The two different households would be three hours apart.  All of the parties consider that it would be unworkable for there to be equal shared time, but workable for weekend contact to take place.

2. This is a matter where it would be appropriate for the children to each spend substantial and significant time with each of the parents.  This is important not only because of their relationship with their parents but also because they have attachments to extended family and familiar people who have been important in their upbringing.

3. There is no expert evidence about the impact it might have if the two different groups of children were being shared in different patterns, and how the two groups of children might “blend” if for example the D/M children were being shared week about but the J children were living with their mother during each school week at I and seeing their father on weekends and holidays.  In terms of logistics it would make a complex situation all the more complex.  The orders for the time sharing should therefore mirror each other.  It is then a question of which family will have the children during the school week, as all parties agree that the other family should have extensive time with the children outside of school time.

4. On the face of it Ms M’s proposal for her to live in I and have the children during the week, or for some other sort of shared care there, would not have such a geographical impediment.  It is the course which the expert favoured as allowing both parents to be involved in the day to day care of the D children.

5. After hearing the evidence of both Ms M and Mr J however I am satisfied that this would be only a stopgap proposal, with Ms M and
   Mr J pressing for orders for the children to move with their mother to T.  It would not be in the children’s best interests for there to be a further bout of litigation involving the two couples.  In cross examination Ms M said it was possible there would be another application;  Mr J said if she got the children in I he would expect an application in the next 12-18 months.  When asked if he had not put any indication of that expectation in his affidavit he said “No, of course not.”

6. This is a case where it is not in issue that it would be in the best interests of all of the children from both households having substantial and significant time with the parent they are not living with.  As indicated above in trying to come to the best arrangement the court must look at the practicalities whilst regarding the best interests of the children as the paramount consideration:

   “Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.”

1. The parties do have some difficulties in communicating, but not to the point where they have been unable to make arrangements for the children to move between one household and another.  The D have found the communication book helpful;  Mr J has declined to make use of one.  All the children have good relationships with their mothers and fathers and would benefit from as much time as possible with both their parents.

2. The court had the benefit of two reports from a Psychologist, Mr W who saw the families and the children.

3. In terms of the relationships amongst the two groups of children, the two boys get on very well together, and the two older girls get on reasonably well together.  There are no problems with K.  The expert report writer was very complimentary about the parenting that all the children must have received to make them so well adjusted in the circumstances.

4. The most significant individual difficulties in adapting were with the two boys.  S has been struggling with his schooling, and J is particularly close to his father and has had some problems separating from him.

5. There is also a stronger positive relationship between B and her “stepmother”, but a poor relationship between A and her “stepmother”.  In the interview for the first report of Mr W, A, who was described as “quite mature and knowledgeable about the issues relevant to things going on in her life” said that the week about regime was unsatisfactory for her because:

   ‘“it’s really hard when I have to leave my Mum.”[19]  She said “this is just too hard on Mum and it is also too hard on us.”  When asked how hard it was to leave her Dad she said “not as hard as leaving Mum”.

   She indicated she got on much better with her “stepfather” than her “stepmother.”  Mr W said:

   ‘She feels that she can trust [Mr D] and finds it very difficult to trust [Ms M].  … “I just don’t know if she is lying to me or not”.  She then added “I can’t really say I like her a lot.”

   [A] felt that she felt safer with her mother and she is a little bit afraid of her father.  She admits that she [h]as never seen him hit anyone and her mother has never told her that he has hit her but she is aware that her mother is afraid of her father.  When asked why she said “it’s because he is such a big guy and he tends to stand over me.”  At this point she became a little bit emotional and the subject was changed.’

   She was not enthusiastic about leaving where she was but said “If I had to, I would go to I.”

   [19]  [Mr W’s] first report 23 August 2005 p 4.

6. Mr W summarised his observations of the two family groups as follows[20]:

   [20]  The order follows that of the report and is not significant

   “During the course of my evaluation I had ample opportunity to observe the interaction of the children both with [Ms M] and [Mr J], as well as with the [J] children.

   I found that the level of interaction between all individuals appeared to be easy, relaxed and indicative of an ease of being in each other’s company.

   Communication appeared to occur spontaneously and both [Ms M] and [Mr J] attended appropriately at all times to the children and interacted with them in a caring, nurturant and positive manner.

   The children all played with one another, at times boisterously, but at all times seemed to be genuinely enjoying themselves and interacting readily with each other.  No real difficulties were observed during the evaluation period and no difficulties are to be reported.”[21]

   and:

   “…  At all times [Mr D] and [Ms J] interacted with all of the children in a close, affectionate and happy manner.

   With so many children engaged in so many things, at times things were a bit boisterous but both of these people managed the situations well and the children clearly responded in an appropriate manner.

   The [D] children as in [T] interacted with and played with the [J] children in an easy relaxed and most familiar manner.”[22]

   [21]  page 6, [Mr W’s] report of 9 December, exhibit “N”

   [22]  page 8 ibid

1. In his observations for the preparation of the first report Mr W noted during the course of his observation of the household of Mr D and Ms J:

   “The relationship between [Ms J] and her children appears to be very warm, maternal, caring and protective and they clearly seek her out as a mother figure and value this very highly.

   I was most impressed with the relationship that all the children appeared to have with [Mr D].  They were constantly in physical contact with him and he with them.  They were holding his hand, engaging him in play, touching and involving him quite intrinsically in every aspect of what they were doing.

   As well, [Mr D] quite unsolicitously would involve himself in the minor child management issues as they occurred from time to time and did so in a thoughtful, consistent and effective manner.  Clearly the children are very comfortable with this couple and in the home.”[23]

   [23]  page 7 first report

1. He said:

   “The relationship between the children and the respective partners of these two people are different.  I formed the opinion that the relationship that the children have with [Mr D] is very close, affectionate and loving and this is indicative of their seeking him out, engaging him in conversation, including him in their activities and seeking physical contact with him proper.  This is a clearly reciprocal relationship and is very strong.

   On the other hand, the relationship I observed between the children and [Ms M] was far less interactive with little, if any, of the emotional and physical contact that was observed between the children and
   [Mr D].[24]

   …

   I formed the opinion that the relationship [Ms J] has with
   [Mr D] is a very strong and positive influence on the children and should be afforded every opportunity to remain so.

   The relationship between [Mr J], [Ms M] and the children is less positive, less emotionally influential and there are significant issues there, I believe, of trust and anger directed against [Ms M].  In many ways it would appear that particularly for [A], she does not particularly trust [Ms M] and [Ms M] will have to work at earning this trust.”

   [24]  page 8 ibid

1. In the event of Ms M relocating to T, Mr W said:

   “If [Ms M] decides to relocate to [T], I believe that the residence of the children should be vested in [Mr D] and that alternate weekend contacts as envisaged by [Mr D] be put into place.  I would also suggest if this were to occur, that the liberal holiday contacts between the children and their mother also be put into place.”

1. The family reporter said of the I children:

   “From my observations of these children with their respective parents it is clear that the relationship they have with each of them is a strong, bonded, relationship of vital importance to each of them and one full of positives and strengths.  As well, I found the children have a very strong relationship with each of the partners of their respective parents.”

1. Of the T children he said:

   “… the relationships observed between the children and their mother and father specifically are close loving and affectionate with clear parent-child bonding apparent between them.  I believe the relationships between these children and their respective parents are strong, secure and vitally important to each of these three children.”

1. Mr W did however notice that the relationship:

   “between the children and their respective partners of these two people are different.  I formed the opinion that the relationship that the children have with [Mr D] is very close, affectionate and loving and this is indicative of their seeking him out, engaging him in conversation, including him in their activities and seeking physical contact with him proper.  This is a clearly reciprocal relationship and is very strong.

   On the other hand, the relationship I observed between the children and [Ms M] was far less interactive with little, if any, of the emotional and physical contact that was observed between the children and
   [Mr D].”

1. From the evidence given by the parties during the hearing, and the other witnesses, there was nothing which led me to disagree with the observations of the expert.

2. The other question which remains is what time the children should spend with each of the parents, and as indicated above this requires looking at the list of matters in Subsections 60CC(2) (the primary considerations) and (3) (the additional considerations).

3. In this matter fortunately there is no question of abuse or neglect of the children.

4. Different people have different capacities for domestic life as much as they have for other activities.  Any of these parents would be able to provide adequately for the children’s needs if necessary.  The question is which household will have the greatest capacity to provide for those needs of what is going to be a large blended family.

5. Both of the fathers have had to be away from the home for income earning reasons, but the T father has been a less “hands on” parent than the I husband when he has been at home.  In particular he has shown a much greater capacity for encouraging educational activities.

6. In both households there would be assistance from extended family and close friends who have shown themselves able to offer competent assistance.

7. The I mother was criticised for leaving T for I.  I do not see her actions as demonstrating poor parenting capacity.  Although she was aware that it might be a “tactical advantage” for the other side she was more concerned to settle where she believed their future lay.  It is often psychologically very distressing to be in an area where there are many painful memories, and I accept that she sincerely believed that it was not possible for her to provide the best parenting for the children in T, and that this was not a question of putting her own interests ahead of the children’s.

8. In this matter the I household contains the two parents who have shown a greater inclination for domestic life.  It is going to be a difficult task for whichever household has all the children.  The I father has had the experience of growing up in a blended family although one which was the product of bereavement not divorce.  The situation which he would face if all the children were to be living in the household with him and his partner, with the requirements of ensuring the children all have contact with all their parents, but I thought he had the greater insight into the task that he was proposing to undertake.

9. Subsection 60CC(4) provides:

   “4)  Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)has taken, or failed to take, the opportunity:

   (i)    to participate in making decisions about major long-term issues in relation to the child;  and

   (ii)   to spend time with the child;  and

   (iii)  to communicate with the child;  and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)    participating in making decisions about major long-term issues in relation to the child;  and

   (ii)   spending time with the child;  and

   (iii)  communicating with the child;  and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   (4A)  If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”

1. As indicated in the discussion above, the I family has been better at communicating, and maintaining the children, and being able to spend the time to get the children to their activities.

2. In all of  the circumstances I am satisfied that it would be in their best interests for all of the children to be based at M during the term time, but with significant time with their other parent, both on weekends and during holidays.

3. The orders of the court in relation to the child matters will therefore be:

   1.That the children of the marriage A born in May 1995, S born in July 1998 and K born in June 2000 live with the wife.

   2.That the parties have equal shared parental responsibility and each party have sole responsibility for making decisions about the children’s day to day welfare, care and development whilst the children are with that party.

   3.That the husband spend time and communicate with the children at all reasonable times agreed upon between the parties including but not limited to:

   a.     every second weekend from 5.00 pm on Friday afternoon until 5.00 pm on Sunday afternoon

   b.     for the whole of the Easter School holidays in even numbered years

   c.     for the whole of the June/July school holidays and the September/October school holidays in each year

   d.     for the first half of the Christmas School holidays in even numbered years and the second half in odd numbered years

   e.     for the purpose of these orders the Christmas school holidays will be divided into two parts:

   i.the first to start at 3.30 pm on the last day of school and end at 3.30 pm on the day in the middle of the holidays,

   ii.the second from the end of the first until 3.30 pm on that date which is two week days before the children are required to go to school,

   and the middle day of the holidays shall be calculated by deeming the holidays to finish on the same day that is two week days before the children are required to go to school, so as to allow time for the residential parent to prepare the children for return to school

   f.      in the event of any dispute as to the times of school holidays a letter signed by the principal of the school the children are going to setting out the dates of the holidays will be conclusive evidence of the relevant dates

   g.     notwithstanding the other provisions of these orders if the parties are actually within 350 kilometres of each other on Christmas Eve then the parent without the children at that time will be entitled to collect the children from the other parent and spend time with them from 2.30 pm on Christmas Day until 10.30 am on Boxing Day

   h.     on a child’s birthday if it is not a school day from 1.00 pm to 5.00 pm and if a school day from 3.30 pm to 5.30 pm

   i.      by telephone at all reasonable times

   j.       on every Father’s Day weekend if it is not a normal time that the children will be with him but not on any Mother’s Day weekend even if it is a normal time that the children will be with him.

   4.Unless otherwise agreed the parties shall share equally the costs of travel by each travelling to the changeover point to deliver and collect the children at the start and finish of their time with each parent.

   5.Each party shall keep the other informed of their current address and telephone number at all times.

   6.Noted that as the parents have shared parental responsibility they are equally entitled to school reports and newsletters and to attend parent teacher interviews and otherwise participate in any school based activities of the children.

   7.Pursuant to Section 65DA(2) and Section 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.

____________

I certify that this document is a true copy of the judgment handed down by
Justice M.J.M Lawrie dated
5 January 2007.

Associate to Lawrie J

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Jarvis & Jarvis

[4]  The [J’s] accumulated nothing after all their hard work, but were eligible for the maximum family tax benefits because of the way things were arranged.  The [D’s] rented their “home” from their company, no doubt with tax deductability for their mortgage, and for the plasma television which is said to be a business expense because the laptop could be plugged into it to provide a bigger screen.(a)  any wishes 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 wishes;

(b)the nature of the relationship of the child with each of the child’s parents and with other persons;

(c)  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, with whom he or she has been living;
(d)  the practical difficulty and expense of a child having contact 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;
(e)  the capacity of each parent, or of any other person, to provide for the needs of the child including emotional and intellectual needs;
(f)  the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)  the need to protect the child from physical or psychological harm caused, or that may be caused, by:  (i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour;  or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i)  any family violence involving the child or a member of the child’s family;
(j)  any family violence order that applies to the child or a member of the child’s family;
(k)  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;
(l)  any other fact or circumstance that the court thinks is relevant