Jewkes and Keitch - [2011] FMCAfam 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JEWKES & KEITCH

[2011] FMCAfam 311

FAMILY LAW – Parenting dispute – orders made in 2005 working well until 2010 – mother entering into friendship with another couple and starting an intimate relationship with husband – family of mother and other couple moving in together – father’s objections – considerations of best interests of children.

Family Law Act 1975, ss.60B, 60CC, 60CC(2), 61DA

Goode & Goode (2006) FamCA 1346

Applicant:

MR JEWKES

Respondent:

MS KEITCH

File Number:

MLC 7001 of 2010

Judgment of:

Burchardt FM

Hearing dates:

17, 18 & 24 February 2011

Date of Last Submission:

24 February 2011

Delivered at:

Melbourne

Delivered on:

20 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Kanarev

Solicitors for the Applicant:

Eales & Mackenzie

Counsel for the Respondent:

Mr Kiernan

Solicitors for the Respondent:

Thexton Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Ambrose

Solicitors for the Independent Children’s Lawyer:

McKean Park

ORDERS

The mother and the father have equal shared parental responsibility for the children [X] born in 1999 and [Y] born in 2002.
Without derogating from the preceding paragraph the mother and the father are required when making decisions about major long-term issues in relation to the children or either of them:
(a)To consult the other in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
IT IS NOTED that major long-term issues include:
(a)The children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for them to spend time with a parent.
The mother and the father forthwith enrol in and complete a parenting-after-separation course at Centacare or the Family Mediation Centre with a view to improving effective communication between them and to assist them to understand their parental relationship from the perspective of the children.
All extant applications be otherwise dismissed.
The Independent Children’s Lawyer be discharged.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7001 of 2010

MR JEWKES

Applicant

And

MS KEITCH

Respondent

REASONS FOR JUDGMENT

This case concerns the best interests of two young children, [X] born in 1999 and [Y] born in 2002. The children have lived primarily with their mother all their lives. Their father, the applicant, wishes that this arrangement change and that the children live predominantly with him. The Independent Children’s Lawyer does not support any changes to the current regime, whereby the children live primarily with their mother and spend time with their father.
For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer.

The facts

It should be noted that despite the fact that this case was heard over three days, or parts of days, the facts in this matter are not in a general way in significant dispute when looked at objectively. The facts are, however, somewhat unusual.
The applicant father, Mr Jewkes, was born in 1975 and the mother was born in 1974. They appear to have met at university, according to the mother’s unchallenged affidavit material.
The parents were in an intimate relationship as a de facto couple for a period of time. Whoever’s version of the precise dates of that relationship is correct, it was not long, lasting for a period in 1998 to 1999. Some attention was directed to the precise nature of the relationship at the time [X] was conceived, but in my view this is of no moment. She was plainly conceived very early on in the relationship.
On any view, the parties separated in 2009 and [Y] was conceived during a period that the parties were neither married nor in a de facto relationship.
Following the separation, the parties ultimately entered into orders by consent before Registrar Williams in the Family Court of Australia at Melbourne on 21 December 2005. Pursuant to those orders, the parents have joint parental responsibility for the children. They live with their mother and spend time with their father on a regular basis every alternate weekend, from 7 pm Friday till 5 pm Sunday, and there are arrangements for spending time with the children in school holidays and on special occasions.
On 6 February 2009 the father married Ms Jewkes. They have a child, [Z], born in 2009.
The father is a long-term [organisation omitted] employee, working as a [occupation omitted], and he and his family live in a house with three bedrooms with all the usual amenities. It is clear from the evidence as a whole, and indeed more particularly from the unchallenged affidavit of Ms Jewkes (who was not required for cross-examination), that Ms Jewkes has a good relationship with [X] and [Y], and that both of them have a good relationship with their little step-sibling [Z], particularly [X].
The mother had not, at least until 2009, repartnered. She gave unchallenged evidence that she had brought the children up as a single mother.
The mother’s lifestyle was, however, to a degree unsettled. She moved initially from [Suburb C] to [Suburb B], then subsequently to [Suburb D] and finally to [Suburb A]. The children changed school in accordance with these moves. [Y] was born when the mother was living in [Suburb B] and has attended, therefore, three schools, and [X] has attended four. [X] presently attends a [omitted] school near [Suburb A], and [Y] attends [omitted] Primary School.
Despite a number of criticisms made in the affidavits by each parent against the other in respect of parenting style and other related matters, it is quite clear that the 2005 orders were satisfactory until quite recently.
In paragraph 18 of his trial affidavit, filed 31 January 2011, the father, having referred to the mother’s alleged history of disregarding his parental responsibility, said:
“Until fairly recently, apart from the above issues, the parenting arrangements for the children worked comparatively well.”
He was not cross-examined on that assertion and it is entirely consistent with all the affidavit material filed by the father and mother, and in general terms with the report of Dr J, to which I shall return.
Putting the matter somewhat in the round, but I think in the circumstances not excessively so, the father’s complaints in his affidavits, so far as pre-2009 events are concerned, were predominantly about a failure alleged on the part of the mother properly to include him in the decision-making process involved with the children, in breach of the order for joint parental responsibility.
The mother’s complaints, by way of contrast, are mainly concerned with alleged inadequacies in the father’s parenting style and related dissatisfaction on the part of the children with spending time with him.
Notwithstanding the criticisms that the parties made in their affidavits, it seems clear to me that absent the events that occurred in 2009, the parties would have been able to continue to comply with the 2005 orders had things not materially changed.

The mother’s new relationship

Given its importance in the circumstances of this case, it is somewhat surprising that no party has enlightened me as to the precise dates upon which the mother developed a relationship with Mr Oakby. According to the report of Dr J, which he must have drawn from things said to him by the mother:
“Ms Keitch and Mr Oakby have been in a relationship since approximately September 2009.”
The father’s trial affidavit indicates that he became aware that the mother had formed a relationship with Mr Oakby in or about October 2009, and that in July 2010 the children told him that the mother had moved herself and the children into the household occupied by Mr Oakby and his wife, Ms Oakby.
The mother’s affidavit, filed on 8 February 2011, says that over a period of six months she and Mr Oakby became close and fell in love, and that they (paragraph 29):
“…spent a lot of time discussing the benefits of forming one big family and had a long period of trying it, with frequent sleepovers and nightly dinners at each other’s houses.”
She does not, however, depose in that affidavit as to when she moved in. Mr Oakbys affidavit says that he and his wife befriended the mother in early 2009 and that (paragraph 3):
“After many dinners, outings and time spent together we discussed the benefits of combining the two families.”
He likewise does not depose when she moved in, and the affidavit of Ms Oakby, despite confirming that she and Ms Keitch became close friends having met in early 2009, does not depose when she moved in.
The oral evidence given at trial did not refine the date of cohabitation on the part of Ms Keitch with Mr and Ms Oakby to any greater degree than that in their affidavit material. In all the circumstances, it seems more probable than otherwise that the period of lengthy meetings and discussions referred to in all three of the affidavits of the mother and the Oakbys continued well into 2010. In my opinion, it is more probable than otherwise that, albeit that the parties had had a lot of interaction by way of dinners, sleepovers and the like, the decision by Ms Keitch to move in with the Oakbys was only put into effect over time, either in or shortly before July 2010. It is in my opinion more probable than otherwise that the children would have mentioned such a momentous change in their lives to their father at a reasonably early opportunity and they were seeing him each alternate weekend.
The father deposes that he had already been concerned about the role played by Mr Oakby in the children’s lives. It is clear that upon becoming aware that Ms Keitch had moved in with Mr and Ms Oakby he moved with considerable speed to file his application in the Court seeking a reversal, in effect, of the children’s spend-time arrangements.
After Ms Keitch moved, together with her children, into the Oakby household, they appear to have intermingled their families quite successfully. In addition to [X] and [Y], the home also contains three boys: [U], who is 17, [V], 12, and [W], 10.
Initially, [X] did not have a room of her own and was somewhat unsettled, this being further compounded by exposure to a far more predominantly masculine household than had been the case before. She became somewhat attached to the house cat, [Q], but appears to have reconciled herself to the household to the extent over time, particularly when she got her own room. The evidence of Ms Oakby was that [Y] had found the new household extremely congenial, what she described as “boy heaven”, and it appears that he integrated very well from the start.
I will return to deal with the evidence of the witnesses in more detail, but it is sufficient to say that as I find, the children all get along very well together.
The arrangements in the joint co-mingled Oakby household are that [U] has his own bedroom, as does [X]; the other three boys share a room, and so do Mr and Ms Oakby and the mother.
The relationship between Mr Oakby and Ms Keitch was always fully known to Ms Oakby, and she acquiesced in it. I entirely accept the denials of both Ms Keitch and Ms Oakby that they are not in any sort of sexual relationship. Rather, Mr Oakby is in a sexual relationship with each of them.
It is readily apparent that this is a somewhat unconventional arrangement. It is equally clear that not all persons who are aware of it regard it favourably. The father regarded the arrangement as thoroughly immoral, and his evidence about the relationship was highly judgmental, notwithstanding that both his children with Ms Keitch were conceived out of wedlock, and one of them during a casual fling.
As I made clear to the parties, it is not the Court’s task to express judgment as to the morality of the parties’ conduct. Rather, it is a matter of seeing whether what has occurred either has been, or should be regarded as being likely to be in the future, in the best interests of the children.
The children have expressed the view, both to their mother and to the report writer, if to no-one else, that they regard the co-mingled household, more particularly the arrangements between the Oakbys and their mother, as “weird”. This is plainly not the norm and that description is understandable. Nonetheless, both children informed

Dr J in effect that they were reasonably comfortable with the relationship.
In addition to the father’s negative response, both sets of grandparents have reacted very strongly against it. The parents of Mr Oakby no longer speak to him, and the parents of Ms Keitch no longer speak to her. Likewise, Ms S, an old friend of the parties, and mother of a little girl, [N], was not prepared to allow [N] to continue her friendship with [X] because of her concerns about the relationship.
Such responses cannot in the scheme of things cause surprise. Some people are more broadminded or tolerant in these matters than others.

The evidence of the parties in more detail

The father

The father’s evidence showed that his primary concerns were the relationship that the mother had entered into with Mr and Ms Oakby, and the manner in which historically the mother had excluded him from proper exercise of his share of joint parental responsibility. He confirmed that the orders made in 2005 had worked well until recently.
It was his belief that the mother’s new relationship was immoral, and arising from that and interrelated with it were his concerns as to the sexual practices of the household. He made reference to handcuffs and whips being found by [X], and it is fair to characterise his evidence as a whole in this regard as amounting to a concern that exposure to such an unusual household is likely to lead to ostracism of the children, bearing in mind that [Suburb A] is a small place with – he at least would infer – persons unaccepting of the relationship. He also had a number of concerns that in some way, as yet unascertainable, [X] in particular, but also [Y], might be at some sort of risk as a result of the sexual practices inferred to be likely to occur in the household.
Some of the father’s evidence about his endeavours to be involved in the children’s life, particularly in relation to their education, struck me as being somewhat thin. While it is quite clear that the mother disregards her obligations in respect to joint parental responsibility, the picture I got was that the father was reasonably content with the extent of his involvement until she formed her new relationship. It is, however, perhaps understandable that the father has been somewhat distracted in more recent times by his marriage and the birth of another child.
The father’s evidence was given with sincerity, and it is clear that he loves his children. Necessarily, he does not have any direct experience of the Oakby/Keitch household which forms the wellspring of his concerns.

The evidence of Ms Jewkes

Ms Jewkes’ evidence was essentially to the effect that the children get along well with [Z], in particular [X]. Her affidavit detailed a happy time spent by the children with the father’s household in the most recent Christmas holidays. She professed to being very happy at the prospect of the children living with her. She was not cross-examined and I accept her evidence.

The evidence of the mother, Ms Keitch.

The mother’s evidence was that she has been single for 11 ½ years and was, regrettably from her point of view, in the process of arranging to move out of the co-mingled household. Her evidence was that this arose from the stresses of this proceeding in large part.
The mother confirmed that the children had not been ostracised. Apart from Ms S and [N] (evidence paraphrased sufficiently at paragraph 33 above), the extent of it appears to be that a child called [M] was told not to come over to the Oakby house, but that [X] goes there for sleepovers. A friend called [O], who is the main friend at the moment, attends for sleepovers, as does another child called [P]. [Y], it appears, has plenty of friends and has sleepovers, and has a particular friend living close by whom he sees a lot.
The mother denied the allegation put to her by counsel for the father that she had left the children alone during the earlier stages of her relationship with Mr Oakby. She explained that while there was a riding crop in the house, that there were no handcuffs in her property. She did, however, spontaneously volunteer that [X], whom she described as “a snoop”, had found her vibrator.
She confirmed that [X] still has lots of friends, albeit that [X] is attached to the cat, [Q], and that she would have no objection to the cat going with [X] to her father when she visits him.
[X] was not initially happy because she had no room of her own at the Oakby household, but is now fine.
The mother has asserted that the relationship was not one that had given rise to any social difficulties, either for the adults or the children, and that all the children, while regarding the relationship as unusual, fully accepted it. She said words to the effect that there is no such thing as normal any more, and that she has never been conventional.
She said that she would rather stay with Mr and Ms Oakby but that losing the children was simply not an option for her. She confirmed, as is understandable in the circumstances, that she is angry with the father for his conduct in bringing this proceeding which has caused, as she sees it, the relationship with the Oakbys to break up.
I should add at this point that the mother confirmed there were no photographs of the father in her household, and that she would not encourage this. Although she had told the father of the address of the [omitted] school that [X] attends, she said words to the effect, “I make the decisions based on what I think is right. I consult, but if there is no agreement I choose. It is up to him to pursue his relationships with the children, not for me.”
These extracts, in my view, give a very clear indication of the mother’s view of the father, and of her view of the discharge of her responsibilities in relation to equal shared parental responsibility. She did, however, confirm that a child or children had teased [X] on the school bus, but that [X] had stood up to it.
The mother’s evidence, once again, was given with sincerity and conviction. Her volunteering of the information about the vibrator, not known to the father, and thus undiscoverable by him, does her credit. She was an entirely believable witness.

The evidence of Ms L

Ms L is a psychologist who has been seeing the children since October last year. Albeit that the father had no involvement in the process of her appointment and treatment, her evidence, like the evidence of all the witnesses in this proceeding, was given in a believable fashion. Her position in oral evidence was that while [X] had mentioned to her an incident on a bus early on in her mother’s new relationship, to which she had responded appropriately, there had been no issue since. Ms L confirmed that [X] has other children to the house, and that she seemed accepting of her mother’s relationship with the Oakbys. Noteworthily, [X] still sees adult relationships as essentially being between one man and one woman, notwithstanding her mother’s own arrangements.

Ms L confirmed that the children would miss their mother enormously if there were to be cause to change residence. It is also noteworthy that the children of their own volition excluded from

Ms L’s draft report a number of criticisms they had made of the father, which they regarded as being “too mean” for inclusion.

The evidence of Mr Oakby

Mr Oakby confirmed that there had been no problems in the co-mingled household, and that the children all got along well. Importantly for these purposes, however, he confirmed that the relationship was going to end.
He said his wife had ebbed and flowed about the relationship, and that in the ultimate, in order to keep his relationship with his wife, he would have to stop his relationship with the mother. He said also words to the effect that “Pressure from family will wear us down.”
Mr Oakby was an engaging and forthright witness whose evidence, once again, was entirely believable.

The evidence of Ms Oakby

Once again, it is sufficient to say that the evidence of Ms Oakby confirmed the picture given by the other two adults in the household. The children got along well and were accepting of the adults’ relationship. She conceded readily that she yells at the children from time to time, and said words to the effect, “I’m very loud.” Nothing in her evidence suggested that her behaviour was in any way outside acceptable norms.
She confirmed that the child [M] had been the only problem observed in relation to any ostracism of the children. She also confirmed that the adult relationship was not working and was coming to an end.
Like the other witnesses, Ms Oakby was entirely believable.

The evidence of Dr J

Dr J’s report had concluded that the children should live with their father. The primary basis for this was Dr J’s finding that the children either were, or would shortly be, completely ostracised because of the family situation they were in.
When it was put to him that that might no longer be thought to be the case, however, he did express the view that it would not be imperative to change residence if the children were not being ostracised. He retained a concern that ostracism might occur in the future. He further confirmed that the children would, in his view, adapt if residence was changed. He likewise stuck by his view that the mother had gone into this relationship for her own needs, and had considered the needs of the children only thereafter.
It should be noted that I have read Dr J’s report carefully and have had due regard to it. I do not set out his conclusions in greater detail because the above recitation of his oral evidence indicates, accurately enough in my view, the substance of his report. I do note, however, Dr J’s observation that it was “extraordinary” that the mother should regard it as necessary or appropriate to elevate Mr Oakby to the role of role model as a father for the children, given that they already have a father who properly fulfils that role. I accept the force of that observation.

Conclusions on the evidence

I repeat that all the witnesses in this case impressed me as being thoroughly decent and honest people. More particularly, I would emphasise that notwithstanding the unconventional relationship into which the mother and Mr and Ms Oakby entered for a time, they all impressed me as otherwise thoroughly ordinary and respectable individuals.
I am quite satisfied that, as indeed she herself says, the mother met and fell in love with Mr Oakby. From this, unusually but it is the way it occurred, her relationship extended to friendship with Mr Oakby’s wife and following a lengthy period of interaction between them all they decided to join their households together. They discussed the matter with the children, and thereafter the two households moved in together. Notwithstanding the discussions with the children, it is clear that it was the adults who made the decision. Children of the age of [X] and [Y] would scarcely be in a position to offer significant opposition to their mother’s clearly-expressed views.
In this regard I think Dr J is correct to say that the mother entered into the relationship for her own needs first, and thought of the children thereafter. I do not, however, regard this as being a matter of great criticism. Having been single for many years, if not all the last

11 ½ years, I do not regard it as entirely a matter for criticism that a woman who falls in love should only thereafter turn her mind to what was going to happen to her family’s circumstances.
Further, I am quite satisfied on the evidence that the two households interrelated very well and easily. The evidence given by all three adults in the Oakby household shows a pattern of very attractive interaction between [Y] and the two younger boys in particular, and between [X] and the whole of the household.
Nonetheless, it is clear that the relationship between the mother and

Mr and Ms Oakby is coming to an end. Even though the mother would wish to continue it, it is clear that Mr Oakby has formed the view that he cannot continue it because, as he put it, he has responsibilities to his wife which he cannot fulfil if he continues in the relationship with Ms Keitch.
The evidence suggests to me that while Ms Oakby remains good friends with the mother (who accompanied her on the last day of hearing when submissions were made), she was never really all that comfortable with the tripartite relationship. As Mr Oakby put it, she “ebbed and flowed”. Thus, while the Court action brought by the father has undoubtedly played a significant part in producing tensions that have caused the relationship to break up, I strongly suspect – although of course I will never know – that the relationship would not have been tenable in the longer term, in any event. It was submitted that relationships of this sort are inherently unstable, and although I cannot say this is a matter in respect of which there seems to me likely to be a lot of data, I suspect as a matter of ordinary human experience that that is correct.
Nonetheless, it should be made clear that I do not regard the relationship that the mother entered into with Mr and Ms Oakby as being damaging to the children, and I accept the submission of the Independent Children’s Lawyer that the Court should not order her to move out. It remains ultimately a matter for her, although it is clear that she is going to do so in any event.
Insofar as it was asserted that the children may be put at risk, either by living in a household of such an unusual sort, or because a household of this sort is likely to give rise to sexual risks of one sort or another,

I entirely reject those assertions.
[X] has told Ms L that she regards a normal relationship as being one man and one woman, notwithstanding her mother’s own circumstances. That is an eminently reassuring position, and one that gives every confidence that the children did indeed, as all three of the adults in the household asserted, come to terms with the relationship.
Insofar as it has been asserted as a matter of fact that the children either were ostracised or are likely to become so, once again, I entirely reject such an assertion. I accept the submission of the Independent Children’s Lawyer that the children saw Dr J at a point when this co-mingled household was of relatively recent duration. The fact is that as the evidence stands, the allegations of ostracism amount to very little. One teasing episode on a school bus, which [X] had no difficulty in dealing with. One friend who is not allowed to visit, but who [X] continues to visit. The absence of [N]. There is no evidence whatever that these children are suffering ostracism as a result of their mother’s personal circumstances. Nor do I think it likely that there would be, even if the relationship were to continue. Still less will this be the case on the assumption that it has ended.
Doubtless there are people who will not accept a relationship of this sort. Both Mr Oakby’s parents and the mother’s parents appear to fall into this category. Likewise, Ms S. Nonetheless, I fully accept the evidence of the mother and the Oakbys that they have plenty of friends and that they are not in any meaningful way marginalised or ostracised in their community.
In the light of these factual findings, Dr J’s report has to be approached with very significant caution. He himself conceded that his concerns about the children living with the mother would be very substantially diminished if the children were not in fact being ostracised. They are not. I will return to this matter under the matters required to be addressed under the statute, but it is sufficient at the moment to say that the evidence does not support the conclusions which Dr J reached. This is not in any possible sense a criticism of Dr J, nor does it involve any questioning of his undoubted professional expertise. Rather, the assumptions upon which his report was so clearly based have simply proved not to be made out in the march of events as revealed by the evidence.
Finally, at this stage I should make it clear that there is no doubt whatever that the mother does not fully or properly appreciate the nature of her responsibilities in relation to the Court’s previous orders as to joint parental responsibility. Everything she said makes it clear that she regards herself as having sole parental responsibility, with only a requirement to notify the father of relevant matters from time to time.

Legislation

In Goode & Goode (2006) FamCA 1346 at [65], the Full Court of the Family Court set out in summary form the effect of the amendments to Part 7 of the Family Law Act 1975 (“the Act”). I follow the pathway there indicated.

Joint parental responsibility

It is clear that this is a case where joint parental responsibility should be ordered. There is a presumption arising from s.61DA of the Act in favour of equal shared parental responsibility. This is not a case in which s.61DA(2) applies because there are no suggestions of abuse of the children or family violence. Furthermore, there is no evidence that would justify the rebuttal of the presumption as not being in the best interests of the children, pursuant to s.61DA(4). Nobody has for a moment suggested that it should be.

Equal time

When the presumption is applied, the first thing the Court must do is consider making an order consistent with the best interests of the children, and if it is reasonably practicable, for the children to spend equal time with each of the parents.
In this instance the Independent Children’s Lawyer submits that the distance between where the parties live ([Suburb E] and [Suburb A] respectively) is too great for equal time to be practicable. I entirely accept that submission. It was indeed the position of each of the parties.
The same considerations apply to the children spending substantial and significant time with each parent within the meaning of the Act. It is simply not practicable in the circumstances of how far they live apart.

Orders in the best interests of the children

The children’s best interests are ascertained by consideration of the objects and principles of s.60B and the primary and additional considerations in s.60CC of the Act. Here it is not necessary to dwell upon the objects at any length, as they are not the subject of controversy.
The primary considerations, as set out in s.60CC(2), are likewise not the subject of controversy. Both parents agree that it will be beneficial for the children to have a meaningful relationship with the other parent, and neither has raised any need to protect the children from physical or psychological harm, or abuse, neglect or family violence. In this latter regard it should be noted that such criticisms as were made of the father’s parenting style need to be considered in the face of the fact that the 2005 orders worked perfectly well until the recent controversy arose.
The father would appear to be well advised to take on board in a more sympathetic and insightful way the criticisms the children have expressed of him to both Dr J and to Ms L, but none of these matters in my view gives rise to concerns under s.60CC(2)(b).

Section 60CC(3)(a)

The children’s views have been clearly expressed. This has been the case both to Dr J and, more particularly to Ms L, whom they have seen rather more often. They wish to stay with their mother and see their father from time to time.

Section 60CC(3)(b)

The children clearly have a very close bond with their mother, who has been their primary carer all their lives. She is devoted to them, and would give up her lover for them were it to be required. They have also had, to the extent that it may be relevant on an ongoing basis, a good relationship with Mr and Ms Oakby and their children. One would hope that it is possible for those relationships to continue irrespective of what happens to the relationship between the mother and Mr and Ms Oakby.
The children clearly also have a generally good relationship with their father, and a good relationship with his wife and their half-sibling. The evidence about their relationship with extended families was not considerable, but it would appear they have good relationships with extended family members. It is not clear to what extent those relationships obtain, nor is it clear how frequently they have seen extended family members in the past.

Section 60CC(3)(c)

The father would, in my opinion, promote a relationship between the children and their mother were they to live with him. The mother’s attitude towards the father is more negative. She clearly will only do what she is required to do by Court order.

Section 60CC(3)(d)

The evidence of Ms L was that the children would miss their mother enormously if they were to be removed from her. It is clear that that is the case. They have always lived with her and they love her dearly. The removal of the children from the Oakby household is, in circumstances where it is going to happen in any event, difficult to evaluate. I would only say that I repeat that I would not have ordered the mother to leave the household for the reasons given earlier.
I note further that [X] has said that she loves her school, and that this is the first place she has made friends. This is a telling consideration.
While the orders sought by the Independent Children’s Lawyer would cause the children to continue not to live with their half-sibling [Z], the evidence is that the children like seeing her when they do. There is no evidence that they have suffered in any negative way through not seeing her more often.

Section 60CC(3)(e)

There are practical difficulties whatever the Court does in this case. Because the parents live so far apart, realistically alternate weekend time and half school holiday time is the only practical outcome. It is indeed what each side seeks.

Section 60CC(3)(f)

There is no doubt that the mother can look after the children, and there is no doubt that to the extent that they live or continue to live in the Oakby household that each of the Oakby’s are well capable of looking after them as well. Likewise, there are no concerns with the childrens’ care while they are in their father’s household.

Section 60CC(3)(g)

The children, particularly [X], are old enough as earlier indicated to have expressed views to which regard must be had. For the reasons earlier indicated, I do not think that the lifestyle of the mother in the Oakby household would be such as to require the removal of the children from that household, and still less their removal from their mother to live primarily with their father.

Section 60CC(h) is irrelevant

Section 60CC(3)(i)

Both of these parents love their children. Both have unobjectionable parenting styles, albeit that the father seems to be somewhat stricter than the mother. The one area in which the mother is open to criticism is her failure to understand the importance of the father in the children’s lives and to promote his relationship with them. I have already dealt with this matter above.

Section 60CC(3)(j) and (3)(k)

These are not relevant.

Section 60CC(3)(l)

The orders I propose to make are, in my opinion, least likely to lead to the institution of further proceedings. Indeed once, as is more likely than otherwise, the mother moves out of the Oakby household, it seems to me far more probable than otherwise that the father’s concerns will abate within a short period of time and the parties will revert to the post-2005 orders working in an unremarkable way.

Section 60CC(3)(m)

There are no other matters, in my opinion, which are relevant in these circumstances.

Conclusion

The Independent Children’s Lawyer does not support any change in the existing orders. Consideration of the matters I have set out above in my view point overwhelmingly to my making the orders the Independent Children’s Lawyer seeks.
The Independent Children’s Lawyer has forwarded to the parties and to the Court a minute of orders as to parental responsibility and counselling. Given the problems with the mother’s understanding and application of the obligations arising from the order for joint parental responsibility, it is entirely in the children’s best interests that those orders be made.
The order for counselling in an endeavour to improve effective communication between the parents is self-evidently in the children’s best interests in circumstances where it is clear communication and trust between them have been strained.
As the Independent Children’s Lawyer seeks, there will be an order dismissing all the extant applications, save that I will make the orders as to parental responsibility and counselling that the Independent Children’s Lawyer seeks.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 20 April 2011