Juliet and Jones

FAMILY COURT OF AUSTRALIA

JULIET & JONES

[2010] FamCA 523

FAMILY LAW – CHILDREN - Equal shared parental responsibility – violence – intractable parental conflict – children endure ongoing conflict and litigation

Family Law Act 1975 (Cth) ss 60CC, 61C, 65DAA

Rice v Asplund (1979) FLC 90-725
Cook & Tracey [2008] FamCA 74
F & C [2004] FamCA 568
D & Y (1995) FLC 92-581
King v Finneran (2001) FLC 93-079
Bolitho and Cohen (2005) FLC 93-224
CDJ & VAJ (1998) 197 CLR 172; FLC 92-828
P & S(No. 2) [2007] FMCAfam 1039
H and H (2003) FLC 93-168
Lake & Karter [2009] FamCA 682

APPLICANT:

Mr Juliet

RESPONDENT:

Ms Jones

FILE NUMBER:

HBC

730

2007

DATE DELIVERED:

30 June 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

22, 23 & 26, 27 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gedes QC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

Mr Henderson

COUNSEL FOR THE RESPONDENT:

Mr John Munro

SOLICITOR FOR THE RESPONDENT:

Munro & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Tony Fitzgerald

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Fitzgerald & Browne

Orders

All previous parenting orders in relation to the children, H born … May 2002 and L born … February 2004 (“the children”) are vacated and discharged.
Mr Juliet (“the father”) and Ms Jones (“the mother”) shall have equal shared parental responsibility for the children subject to:-
a.the parties enrolling the children at S School and both parents shall, within fourteen (14) days of these orders, sign such documents and give such authorities as to place each of the children on the waiting list to commence school at S School at the commencement of the next available school year (that is February 2011, 2012, 2013 etc). This order is intended to enable the enrolment of the children at the commencement of a school year and it is not intended to enable the enrolment of the children during a school year.
b.neither party enrolling the children in further extra curricular activities without giving the other parent at least fourteen (14) days written notice in advance;
c.if either party wishes to enrol the children or either one of them in a different school (except the S School as is otherwise dealt with in this order), or if there is dispute as to which activities the children should be engaged in, or if there are issues in relation to overseas travel or operation of these orders, then the parties shall engage in mediation through Relationships Australia, Centrecare, a Family Relationships Centre or similar. Such process shall be a mediated process and the parties shall communicate with a facilitator and each other in such process/processes.
The children shall live with the mother except as provided in these orders or as otherwise agreed in writing between the parties.
The children shall live with the father as follows:-
(a)each alternate week during school term, commencing after school Thursday until the commencement of school the following Tuesday;
(b)such alternate weeks shall commence on the first Thursday of each school term if the children have been living primarily with the mother for the last week of the preceding school holiday period or the final part of the preceding Easter holiday period. Such time shall commence on the second Thursday after commencement of each school term if the children are living primarily with the father for the last week of the preceding school holiday period or the final part of the preceding Easter holiday period.
(c)for the Christmas/New Year period commencing December 2010 and each alternate year afterwards;
·   from 10am on 24 December to 12 noon on 25 December;
·From 5pm on 26 December to 10am on 30 December.
(d)for the Christmas/New Year period commencing December 2011 and each alternate year afterwards:-
·from 12noon on 25 December to 10am on 28 December;
·From 10am on 31 December to 10am on 1 January next.
(e)for a further "block" period equivalent to one half of the remainder of the long summer holidays each year (being the second half of such holidays in 2010 and for the same period each alternate year afterwards and for the first half of such holidays in 2011 and for the same period each alternate year afterwards) and for the purposes of calculating and understanding the reminder of such holidays:-
i.      the period from 10.00 a.m. 24 December to 10.00 a.m. on 1 January each year and the last 2 days of the holiday shall be excluded;
ii.      the last day of third term shall be excluded and the holidays shall be deemed to commence at 9.00 a.m. on the first day of such holidays;

iii. the last two days of the holidays shall be excluded;

iv. the children will be returned to the mother at 10.00 a.m. two (2) days before the commencement of school term.

(f)in 2011 and for the same period each alternate year afterwards, from 12 noon Holy Thursday to 12 noon on the Tuesday following Easter Sunday.
(g)in 2012 and for the same period each alternate year afterwards, from 12 noon on the Tuesday following Easter Sunday to the commencement of school after Easter.
(h)for the whole of the first mid term school holidays in 2010 and each alternate year afterwards; Such time commencing after school on the last day of the first school term and concluding on the first day of the next term (and to make it clear if that weekend was to be the weekend the children would otherwise have spent with the father during school term then the time shall commence on the Friday after school not the preceding Thursday after school).
(i)in 2011 the mother shall be entitled to take the children overseas for up to 4 weeks including the two week May/June school holiday (this being make up time for the additional time the father had the care of the children in the extended May/June holidays in 2010).
(j)for the whole of the second mid term school holidays in 2011 and each alternate year afterwards; Such time commencing after school on the last day of the second school term and concluding on the first day of the next term (and to make it clear if that weekend was to be the weekend the children would have spent with the father during school term then the time shall commence on the Friday after school not the Thursday after school).
(k)in the event the children are not otherwise living with the father on the night immediately preceding their birthdays, then both children shall live with the father from 10.00 a.m. to 2.00 p.m. on such birthdays if not a school day or if such birthdays fall on a school day, from 4.30 p.m. on their birthdays until the commencement of school the following day if that day is a school day or 9.00 a.m. if it is not.
(l)in the event the children are not otherwise living with the father on Father's Day, then both children shall spend time with the father from 10.00 a.m. on Father’s Day to the commencement of school the next day (if that Monday is not a school day or if it is a student free day then the children to be returned 5.00 p.m. on Father’s Day).
(m)changeover shall occur as follows;
·if the start or commencement date is during school term and during school hours then changeover shall be by collection or delivery at the children’s respective schools, otherwise;
·at the playground opposite the B Hotel, B at the times specified in these orders, unless otherwise mutually agreed in writing between the parties, until the father commences residence at X Street and provides the mother with seven (7) days written notice of his move;
·upon the father giving the mother notice in accordance with this order, changeovers which previously occurred at the playground shall occur at the corner of Z Street and X Street;

(n)such other and/or alternate times and arrangements as the parties agree in writing.

In the event the children are not otherwise living with the mother on the night immediately preceding the child’s birthdays, then both children will spend time with the mother from 10.00 a.m. to 2.00 p.m. on such birthdays if not a school day or if such birthdays fall on a school day, from 4.30 p.m. on their birthdays until the commencement of school the following day if that day is a school day or 10.00 a.m. if it is not.
In the event the children are not otherwise living with the mother on Mother's Day, then both children shall spend time with the mother from 10.00 a.m. on Mother’s Day to the commencement of school the next day (if that Monday is not a school day or if it is a student free day then the children are to be returned 5.00 p.m. on Mother’s Day).
Each party shall be permitted to communicate with the children twice per week by telephone when they are living in the other party's care, with such communications to be limited to a maximum of 30 minutes each day. For the purposes of such communication, the parent with whom the children are then living shall not remain in the presence or hearing range of the children whilst they are speaking with the other party.
During school holiday periods, the parties shall each ensure that the children communicate with the other parent by telephone at least twice per week and if the children are overseas, that party shall initiate such telephone communication at their expense.
The father and mother shall each be at liberty to travel overseas with the children and that the children be permitted to leave the Commonwealth of Australia for the purposes of such travel for periods of up to four (4) weeks with each parent in each calendar year subject to the following:-
(a)such travel shall be during school holidays (except in 2011 when the mother is permitted to take the children overseas for a periods of up to four (4) weeks during and around the May/June 2011 school holidays),
(b)such travel (other than with the mother in May/June 2011) may include some school time provided it is approved in writing by the other parent and each of the children’s school principals or teachers (except with regard to the time the children spend with the mother overseas in the May/June 2011 period referred to earlier, where consent is not required).
(c)the travelling parent shall provide the other with not less than two month's prior written notice of their intended travel and written particulars of the duration of such travel, the planned itinerary and the contact telephone number(s) for the children whilst they are overseas, with each party to provide the other with written particulars of any change in such details forthwith upon them becoming aware of same.
The parties shall do all things, sign all documents and give all necessary and proper instructions as maybe required to ensure that that children each have a current Australian passport, with at least six months time to expire on each such passport.
The children's passports shall at all times be held by the Registrar of the Family Court of Australia at Hobart and the parties shall each authorise the Registrar to release the passports of the children to the parent taking them overseas at least thirty (30) days prior to the scheduled departure date, with that parent to return the children's passports to the Registrar within seven (7) days of the children's return from overseas.
The parties each do all things, sign all documents and give all necessary instructions to the schools attended by the children to provide each parent with copies of the following:-
(a)notices of school or extra-curricular special events including but not limited to concerts, parent teacher interviews, excursions and camps and particulars of the address/addresses thereof and dates and times of attendance.
(b)in the event the schools cannot or will not provide copies of same to both parents, the party receiving such documents shall provide the other with copies thereof in a timely fashion so as to enable the other party to attend at such events.
That the parties each ensure that for the purposes of any medical treatment required by either of the children which is appropriate to be provided by a general medial practitioner, the children shall attend the N Clinic at N unless otherwise agreed in writing.
Each party shall as soon as practicable and at least within 24 hours inform the other by SMS text message of any medical, hospital or dental treatment required by the children or either of them and the name and location of the medical practitioner providing such treatment.
Subject to notation 28 herein, each party shall ensure that the children attend school in their appropriate school uniforms and that all such uniforms and any and all other clothes of the children purchased by the other party are returned to that party at the conclusion of any period the children have lived with that party, with each party to ensure that the children attend school after school term weekends wearing the same uniform as that worn by the children to school the previous Friday.
The parties each provide the other with not less than seven (7) days prior written notice and particulars of any change of residential address, mobile telephone number, residential landline number and/or email address.
In the event either party receives an invitation for either child or the children to attend a special occasion which falls at a time during which such child or the children are living with the other party, the party receiving such invitation shall provide the other with a copy thereof so as to permit the other party to respond to such invitation as they may choose in consultation with the relevant child.
The parties each be and are restrained from:-
(a)permitting either of the children to undergo any psychological or psychiatric treatment or assessment without the prior written consent of the other party or orders of a court exercising jurisdiction under the Family Law Act1975 (Cth);
(b)abusing, demeaning, belittling assaulting or denigrating the other party in the presence or hearing of the children or either of them or allowing or permitting any other person to do so;
(c)using or applying any physical punishment upon the children or either of them or allowing any other person to do so;
(d)consuming alcohol to excess immediately prior to or during any period in which the children are living in their respective care.
The parties shall each attend a further Parenting After Separation Course (and the father shall encourage Ms R to do likewise if she is willing) and enrol and complete that course within twelve (12) months of the date of these orders.
The parties shall communicate through text messages in relation to the children’s matters.
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.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
The appointment of the Independent Children’s Lawyer be discharged after twenty eight (28) days of the date of this order.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED BY CONSENT

The father will meet all costs in relation to the placing of the children on a waiting list for enrolment at S School, enrolling the children at S School and the payment of school fees and ancillary school charges in relation to the children’s attendance at S School.
This is an agreement reached between the parties that the father meet these expenses and that at the time the agreement was reached both parties were legally represented and this notation is intended to reflect that agreement.
The payment of the children’s school fees by the father shall not in any way be a factor to otherwise reduce any child support which he may otherwise be required to pay or receive child support in respect of the children or either of them.
The father shall meet the cost of the children’s first set of school uniforms at S School (if necessary one set for each of the two households) and as from that time each party shall be responsible for obtaining such school uniforms AND the school uniforms the children take from one parent to the other shall be returned with the children at changeover AND if there is an item forgotten it is to be posted, as soon as is practical, to the other parent at their home.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 730 of 2007

MR JULIET

Applicant

And

MS JONES

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Juliet and Ms Jones have two children, H (aged seven almost eight) and L (aged six). These parents have been in almost constant litigation about the parenting of their children since November 2004. The children have been forced to endure the conflict surrounding that litigation and the inevitable reports, enquiries and discussion for most of their lives. Added to this is the high level of conflict and animosity each parent has with the other. The unchallenged evidence of both the psychiatrist and psychologist is that this conflict has, is and will have adverse impacts on these children. Neither parent really takes responsibility[1] for this awful state of affairs. Each parent primarily blames the other. These are two otherwise intelligent human beings who are sacrificing their children on the altar of their personal animosity. Both parents should hang their heads in shame.
[1] In evidence the father accepts part responsibly, however in these reasons I find that such concession is rhetoric and at some levels, unreliable.
Consent orders were made on 12 April 2006 providing that the children live with their mother and father on a nine day/five day basis during school terms, allowing for the children to spend half school holidays with each parent, special occasions and for some overseas trips.
In March 2009 the father filed a fresh application seeking a change to those orders. That application has evolved and the father now seeks orders that the children live with him for eleven days during the school term and for three days with their mother. He is essentially seeking orders that the children live with him during school term except on each alternate weekend.
The father wants the children to live with him for half of the school holidays (as does the mother, however, each parent seeks different school holiday time).
The parties both seek special occasions with the children and there is an issue as to when the children will commence their education at S School (there is no issue that the children should attend S School at some time).
The mother’s primary application is that the father’s application be summarily discharged pursuant to the principle set out in Rice & Asplund (1979) FLC 90-725. The mother’s alternate position is that if there is to be a determination of the parenting time and communication then the time the father spends with the children during school term should be reduced. The mother seeks a number of other orders which I will address later in these reasons.
An Independent Children’s Lawyer was appointed and he actively participated in these proceedings. At the conclusion of the hearing he likewise lamented the conflict between these parents and submitted that the status quo should essentially remain in place. He submits that the consent orders made in 2006 basically remain in place, in that the children primarily live with the mother and spend time with the father during the school week.

The Independent Children’s lawyer recommends (and the parties concur) that some counselling be put in place to try and create a situation where the parties will mediate and learn to talk to each other. Having observed the parties over the course of the hearing, this final recommendation is admirable but may amount to an expression of hope over reality. However, having regard to the facts and findings in these reasons, I will give it a go, it can do no harm. Although, I lack confidence that it will succeed[2].
[2] From Wikipedia, - A flying pig is an adynaton, that is a figure of speech in the form of hyperbole taken to such extreme lengths as to suggest a complete impossibility.

ISSUES

There are a number of issues which I need to determine, these are:-
·Whether the proceedings ought to be summarily dismissed pursuant to the principle enunciated in Rice & Asplund (supra); and if not
·What time the children should live with either parent during school term.
·What telephone communication the children should have with each parent during the time that the children are in the other parent’s care.
·Whether the children ought to commence their education at the S School as they move into their high school years or whether they should commence their education at the S School in earlier years (albeit at the commencement of any such year).
·Whether the father should have parental responsibility in relation to determining the schools the children attend and the children’s participation and/or involvement in co-curricular and/or extra curricular activities during the time they are with him, noting that the parties have agreed that there ought to be equal shared parental responsibility.
·Whether the division of mid-term school holidays ought to be on the basis of the children spending the whole of that holiday with one parent or a division of each such holiday.
·Some other issues as to special times.
It is an agreed fact that the relationship between the parties can be described as one of high conflict. Each party blames the other for the conflict (although the father takes some responsibility for the conflict).
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context in respect of any such statement.

BACKGROUND

The father is aged 56 and is in fair health. In November 2008 he underwent open heart surgery and it has taken some time for him to fully recover from that surgery. He is now well and has returned to almost full strength. The mother is now aged 48 and enjoys good health and she is physically fit. H and L are in good physical health.
Both parents have children from previous relationships. The mother has a daughter, P, aged 20, who lives and studies in Sydney. P filed an affidavit late in these proceedings.
The father has two children of his previous marriage namely E aged 28 and H aged 27. He has grandchildren with whom he has a good relationship. He also has a good relationship with his children and with his former wife.
The father has re-partnered and lives with Ms R in N. Their home is situated about one and a half kilometres from the mother’s home. The father has been living with Ms R since about September 2008 and that relationship appears to be a stable and committed. Ms R gave evidence in these proceedings.
The mother has also formed a relationship with Mr W. Mr W lives primarily with his mother. There was raised an issue as to the nature of the relationship between the mother and Nr W, which really went to no issue except the credit of the mother. Mr W was reluctant to give evidence in these proceedings. In the context of the dispute and in the light of the father having expressed no serious concerns or complaints about Mr W, the lack of his evidence was neither here nor there.
The parties commenced their relationship and married in December 2001. The parties finally separated in August 2004 after a tumultuous two to three year relationship. Their marriage was dissolved in January 2007.
Following the end of their relationship the father commenced proceedings in November 2004. The issues between the parties related to both parenting and property. The proceedings were listed for final hearing in the first half of 2006. The parties settled and final parenting orders were made on 12 April 2006 and final property orders were made on 7 June 2006.
In June 2006 the mother alleged that the father had punched her in the face at a changeover. This alleged attack was reported to the Police and the father was charged with assault. In April 2007 after a defended hearing the father was convicted of assaulting the mother and was fined $400. The father appealed that conviction to the Supreme Court of Tasmania but the appeal was dismissed. The father continues to deny that he assaulted the mother. Having regard to the evidence of both parties and to the conviction, I am satisfied that in June 2006 (shortly after the parenting orders were made) the father assaulted the mother by punching her in the face.
In May 2007 the mother filed an application seeking a change to the changeover arrangements and other orders in relation to the children’s schooling. On 8 July 2008 I varied the earlier parenting orders to provide for some minor changes to birthday times, restraining the parties from abusing, demeaning, belittling or assaulting each other in the presence of the children, providing for SMS texting, noting that L will be attending T Public school at the commencement of her schooling. There were also various other orders including a consent order that neither party physically discipline the children and permission for a passport to be issued for the children. Those proceedings were then brought to an end, without the necessity of a full hearing.
In March 2009 the father filed a further application for interim and final parenting orders. He also filed a contravention application alleging a number of breaches of the parenting orders. I deal with these later.
In the second half of 2009 the final proceedings came to me as a Less Adversarial Trial. Having regard to the history of this matter, and the high conflict, I adopted a course of listing the matter for trial in April 2010. I informed the parties that the evidence given at the less adversarial event would not be part of the evidence at the final hearing unless a transcript was obtained by one or either party and tendered into evidence during the April 2010 hearing. No such material was put before me.
In these proceedings a single expert psychiatrist (Dr D) was appointed to undertake a psychiatric assessment of both the father and mother. In his report dated 21 April 2010 Dr D observed the following:-[3]
a)     Psychiatric assessment of both parties was such that neither suffered a DSM IV Axis 1 diagnosis.
b)     It was clear in the middle of this acrimony that there are bilateral problems [the mother] has Cluster Personality traits, particularly a past history of instability of affect. There is a tendency [for the mother] to be somewhat histrionic. On the other hand [the father] exhibited a degree of narcissism. He spent much of his time with me talking about himself.
c)     As far as psychiatric treatment goes, there is nothing to offer …
d)     Personality features generally have both benefits and negatives with respect to adaption of life, e.g. a fairly obsessional personality would be almost a pre-requisite to being an airline pilot but may be, overall, an impediment to an artist. As far as close relationships go, it is important that there is a complimentary of personality, i.e. that each person’s personality fits with the other – by no means necessarily the same, but that personality features compliment one another. It is my view that the problem here is that there is such a difference of personality to the point that I would suggest that [the mother] and [the father] bring out the worse in each other [emphasis added]. Unfortunately this is at the risk of the welfare of both children and further, it must affect both parties’ capacity to meet their ongoing responsibilities and duties as a parent.
[3] At page 5.
Dr D went on to note with some dismay that both parties claim that they have not had “any meaningful conversation for years”.[4] He then says that “for things to improve this should change”.[5] Further he said “that it seems to me that they [the parents] have trouble agreeing on anything”.[6]
[4] Ibid.
[5] Ibid.
[6] Ibid at page 6.
Dr D was not required for cross-examination by either and I accept his evidence.
A second single expert was appointed, Dr HS, who prepared a report dated 20 April 2010. Dr HS was required for cross-examination and I will deal with her evidence later in these reasons.

RELEVANT LEGAL PRINCIPLES TO BE APPLIED

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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 subjected 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.
The principles set out in s 60B(2) that underlie those objects are that, except when it 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).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[7] for the child, subject to subsections 61DA(2), (3), (4) and (5).
[7] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted, under 61DA(2) but a Court determines that it is in a child’s best interest for an order for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
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.
How a court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:
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);
(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.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider;
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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[8].
[8] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.

THE EVIDENCE
The father

In his application filed in early 2009, the father initially sought orders that the children live with him for one half of the time and with the mother one half of the time during school terms which would have meant an overall equal time arrangement. In his amended application filed 1 April 2010 the father significantly changed his approach and sought an arrangement that the children live primarily with him. It is an agreed fact that the father’s amended approach was circulated to the solicitor for the mother and the Independent Children’s Lawyer in early to mid February 2010.
The father’s primary evidence was set out in his affidavit filed 1 April 2010. In that affidavit he sets out his personal history, his relationship with Ms R, his perceptions of the history with the mother and their relationship. The father sets out a number of concerns he has in relation to the mother, namely that:-
·she has difficulty maintaining and preserving long term relationships.
·she caused her daughter P to move from the house.
·the mother and her mother, the maternal grandmother, denigrated P’s father.
·the mother demeaned and treated P’s father with distain.
·the mother would deliberately create mayhem, particularly at pick up points with regard to P’s father and made derogatory comments to P about her father.
·the mother hindered and prevented P from having a relationship with her father.
·the father complained that the mother does not have the organisational and parenting skills to manage the children’s needs and educational requirements. He says that the mother gets the children late to school and they often leave without a proper breakfast or lunch. He says this information comes from things the children, particularly H. This complaint is echoed in the report of Dr HS.

The father articulated a concern that the mother was delivering the children late to school in the mid to second half of 2009. While that is of some concern it has now been addressed by the mother. The father’s concerns are somewhat shallow when seen in the light of all the evidence.
The father wants to take the children out of school to travel overseas for two school weeks during the school term in 2010. He wants this to continue onwards (I digress at this point and confirm that in the light of all of the findings set out in these reasons, I will allow some overseas travel into the future, subject to the consent of both parents and the support of either the children’s class teachers or school principal, hopefully such order will enable a continuing focus on each child’s education). In May/June 2009 the father kept the children out of school for some days whilst he remained in Australia. His explanation was that he was afraid the mother would not allow the children to travel with him if she knew they were in Australia and accessible at school. On this evidence, I infer that at this time the father believes overseas travel with him is of greater importance than the children’s schooling.
The father complains that H is not achieving at school to his full potential and expresses those concerns arise from H’s school reports. The reports show a child who is doing well at school, however there are some areas for improvement. In the light of the parental conflict under which he lives and the concerns of the experts he is managing well. In any event the mother has agreed for the children to attend S School (at least at high school).
The primary risk to these children is not educational issues but the conflict which exists and continues to exist between these parties. It is on this basis that I will articulate in these reasons that both parents must shoulder the responsibility for that destructive and untenable predicament in which the children find themselves.
In his evidence the father shows a lack of insight into the impact of his actions in term of the mother. The June 2006 assault and the father’s denial of it, is one such example. Another is that the father has purchased a home for himself about three hundred metres by road from the mother’s home at N. He sees no negatives in that move, yet he is aware of the strength of his character and the antipathy that exists between he and the mother, and yet moves his home so very close to that of the mother. I acknowledge that this would be of value in a family with good communication, but in a family of such high conflict and with a past history of violence, the term ‘lack of insight’ gives the move its most benign explanation.
As to the father’s evidence of violence he initially denied there was any violence in the relationship prior to separation. In cross-examination he conceded some reactive violence, and later in his evidence conceded some active violence. The father has been convicted of a breach of the family violence order.
The father was given leave to give evidence in reply to P’s evidence (the mother’s eldest child). He denied much of what P asserted in her affidavit. He denied that he loudly yelled but conceded that the police came to the parties’ home on a number of occasions.
The evidence of the father about his violent and verbally abusive behaviour has been impeached (by both his later evidence, at some levels that of the mother and the credible evidence of P). His denials of verbal and physical violence during and after separation are unreliable.
The father is an angry man who is very forceful in his expressions. There is some evidence of yelling matches between Ms R and himself. The father seeks to explain this behaviour as “normal interaction”. That normal interaction has impacted upon his children and yet he still tries to normalise that behaviour. The father said that it has ceased since earlier this year. I have reservations about the accuracy of this evidence. The father has difficulties in managing his temper. This may be related to his narcissistic nature as observed by both Dr D and Dr HS.
The father complained that the mother delayed in giving him the children’s passports in June 2009. The father was given permission to take the children to Europe in May/June 2009, he blamed the mother in her delay in forwarding the children’s passports to him and interfering or delaying their proposed travel to Europe. The passports had been sent to the mother by the issuing authority in error. The passports arrived on the Friday and were made available to the father on the following Monday or Tuesday. There was no delay, the mother received the passports and the father was promptly notified via her solicitor, a weekend had intervened. The father took this as another example of the mother’s intransigence, which it was not. In any event the father had medical appointments which would have made it difficult for him to travel as he had intended.
In September 2009 the father consented to the mother travelling to the USA with the children. He then engaged in communication with the mother’s solicitor raising all sorts of concerns including the children having “second hand pizza”. He asserted the pizza had been purchased one day and was eaten cold the next. It is not unusual for families to eat reheated pizza, and the father’s characterisation of it as ‘second hand pizza’ has no small element of exaggeration and histrionics.
The father sought the mother’s consent to take the children to Sri Lanka in 2008 for a holiday. There was, at that time, a serious warning or travel advisory about travel to Sri Lanka by the Department of Foreign Affairs and Trading. The father blames the mother for the failure of this planned trip to that country and ignored or did not reflect upon that warning.
The father had informed the mother by letter from his then solicitor dated
[9] Exhibit M4.
28 November 2008[9] that he would not spend time with the children from the last day of school until 4.30pm Christmas Eve.
The father then forgot about that letter and commenced contravention proceedings against the mother in respect of an alleged breach of the order during that period. It was a silly application and reflects a degree of “bloody mindedness” in respect of the father.
The father was admitted to hospital on 11 November 2008 and underwent serious heart surgery on 13 November 2008. The children were to be with him at this time. The father did not inform the mother of this surgery or about his real concern that he may not survive the surgery. He left the children in the care of his daughter, H.
The mother found out that the father was undergoing or had undergone life threatening surgery and quite rightly in the circumstances took the children into her care. Once the facts became known to her she facilitated sensible arrangements for the children to see the father as he recuperated. The father’s failure to inform the mother was self centred and not child centred.
Perversely the father complained that on 17 November 2008 the mother did not make the children available and took contravention proceedings. He was still in hospital and he missed spending one night with the children.
The father says he cannot understand why the mother will not communicate with him. This kind of “tit for tat” and ill considered application may offer him an insight into it if he is able to understand that insight.
I am troubled that the children, particularly H, suggest that equal time would be a fair outcome. The father in his 2009 application sought equal time and this only changed in early February 2010. I am far from convinced that this is H’s independent view, it seems to be more of a matter of child parroting what is told to him by a parent rather than the views of the child himself. I note that at the time the child saw Dr HS the father was proposing the children live with him most of the time. However, even in the context of the father initially seeking equal time with the children I am troubled by the children’s views. Children are easily manipulated, particularly by those whom they love and with whom they are close. The child may well incorrectly believe it is his/her own view.
H complained to Dr HS that his mother ‘lies’. In particular with respect to smoking. He has looked in his mother’s handbag to see whether she has any cigarettes. There is no evidence that the father has encouraged the child to have this point of view. It is however, a concern that a child would be willing to so harshly deal with his mother about her smoking, particularly when she does not smoke in front of the child. Having regard to the father’s negative view of the mother the child’s partial adoption of that view must be seen in context and should not be ignored.
The father says, to the Court and to Dr HS, that he tells the children he loves the mother and he clearly does not. Irrespective of the father’s rhetoric and having regard to his evidence generally I am satisfied that either implicitly or explicitly the children are aware of the father’s true views and feelings about the mother.
The father tried to convince the Court that his relationship with Ms R is almost trouble free and idyllic. This is not the view which the children express and it is instructive to note in Dr HS’s report that:-[10]
[The child] said [Ms R] and his father argue. He said that, mostly, his father and [Ms R] fight about his father buying him and his sister things, such as Star Wars games for the Wii 2. He said that [Ms R] gets mad when his father spends too much money on them.
[10] Dr HS’s report page 15.
I do not accept the father’s evidence about this issue and as he has not been frank with the Court. I am troubled by his evidence generally.
The father seeks to diminish this evidence and I am concerned that he is using his economic strength in a way to either, explicitly or implicitly, improve his situation in the eyes of the children and diminish that of the mother.
On one occasion the father was unable, he says, to persuade his two and a half year old daughter to go to the mother. This reflects poorly on his ability to properly parent the child at that time.
Changeover has improved since orders were made in July 2008.
The father, at paragraph 75 of his affidavit, attempted to adduce hearsay evidence. Whilst the whole of the affidavit was admitted into evidence I give that paragraph no weight. The father says that H had told him that he had been bitten by a dog and he would produce the photograph. He did not do so.
In many ways the father’s evidence was problematic. He told Dr HS that he was not particularly concerned about his chattels which he says were retained by the mother and yet he complained to the Court, in non-responsive answers during cross-examination on at least two occasions, that the mother had retained his chattels. Many concerns raised by the father were those that were in place prior to the orders being made in 2006.
I treat the whole of the father’s evidence with caution. I am concerned that he fashions his evidence to suit the outcome he seeks. There are some indications of reconstruction in his evidence (such as the events in May/June 2009 and his medical treatment). There were others. He has a tendency to understate his involvement and overstate that of the mother. I am troubled by the statements he makes as to his rhetoric in terms of what he hopes to do in the future will lead to reality. I have concerns about his evidence as to his involvement with the children and whether he will be leaving much of the parenting, during the week, to Ms R.
The father is a self-obsessed controlling man who has used verbal and physical violence against the mother, in the past, to achieve his ends. He has limited insights into how his actions from time to time taunt the mother and show him to be exercising the power. An example of this is the issue about the peas and onions set out at page 7 of Dr HS’s report[11] and his persistence in some of the contravention applications which were meaningless.
[11] Dated 20 April 2010.
In terms of his approach he said to Dr HS’s that:-[12]
… He sought representation from Melbourne lawyers in an effort to protect his children. He then said he is a demanding person in business who has employed about 2,000 people and fired about 10% of them.
[12] Ibid at page 12.

Evidence of Ms R

Ms R gave evidence in accordance with her affidavit sworn 31 March 2010 and filed 1 April 2010. She is supportive of the father and her evidence needs to be seen in that context.
I accept that she is both willing and capable to form a sound working relationship with the mother. On one occasion she sent a letter to the mother in relation to the Cubs, this offer was rejected and the mother wanted to deal with this issue through solicitors or through the father. This is unfortunate because it was a sensible suggestion to try and break an impasse.
Sadly the mother has, up to this time rejected any realistic contact with Ms R. This is a safe form of communication and the mother is to be criticised for rejecting it. Ms R believes the mother has antipathy towards her although it is not clear from the mother’s affidavit that she does.
Ms R does not have children of her own but has had significant involvement with children in her employment and through her previous relationships. She is open to change and open to promote the best interests of the children.
I was concerned about part of Ms R’s evidence being that in relation to the father’s use of derogatory terms such as “mad woman” about the mother.
Ms R endeavoured to explain the “shouting”. I have concerns that her evidence in this area is not as reliable as her other evidence may be. Similarly in relation to her evidence about the father on the computers she prevaricated a little but did say that he had “made a concerted effort to stop”. I am satisfied that the father does not spend the time with the children that he asserts to the court and that the children’s complaints about that time as set out in Dr HS’s reports have some element of fact upon which they can be based.

The mother

The mother gave evidence in accordance with her affidavit filed 18 February 2010. She was cross-examined by senior counsel for the father and the Independent Children’s Lawyer.
Photographic evidence was provided about the injuries the mother suffered when she was assaulted by the father in June 2006.
The mother also provided evidence showing that she had credit available for her in the United States in August/September 2009 in times when it was asserted by the father that she had no money. I accept that evidence, it again shows the predisposition of the father to look to the most unfavourable view of the mother’s actions or behaviour rather than looking to benign explanations.
The mother was cross-examined about her views on the father and although she says she is still afraid of him I am satisfied that this fear has diminished considerably. In terms of this finding I am assisted by the evidence of Dr HS.
The mother denied that she used demeaning language of the father. I am satisfied that either expressly or implicitly the mother’s dislike of the father is clear to the children and in that regard I generally accept the evidence of Dr HS and Ms R (particularly in terms of paragraph 8(a) to (h) of her affidavit)
I am concerned that the mother has limited insight as to the impact of her negative feelings, about the father, on the children’s relationship with the father and the children’s anxiety (in particular H). The mother now says she is aware of her culpability. However, there remains an issue as to whether that acknowledgement is genuine or said in the harsh glare of these proceedings.
The mother has shown little inclination, since separation, to engage in a process to begin talking to the father. A letter was sent to the mother by Mr K, a psychologist. The mother has no recollection of receiving that letter, I am satisfied that she did receive the letter and has avoided taking meaningful steps to communicate with the father.
The mother was challenged in relation to the various statements made to Dr HS by the children. Whilst I am satisfied the children honestly expressed their feelings to Dr HS it was significant that they were living primarily with the father for the three weeks or so prior to that meeting and that the views of the father either explicitly or implicitly became known to the children.
The mother’s legal practitioner, Mr Munro, often took instructions from the mother at the mother’s home. This included taking instructions from P at the mother’s home during the course of the hearing. There is no impropriety in any way suggested, it simply reflects the long term professional relationship between the two and the mother’s determination to have someone between herself and the father during any communication.
In addition the children must have been aware that Mr Munro is a solicitor and that his visits to their house were part of the litigation process. It is a practice, which in this case should be brought to an end.
The father was critical of the mother in terms of taking the children late to school in 2010. Between the commencement of school and the appointment of Dr HS there were three days when the mother took the children late to school. Taking the children late to school reflected events from the previous year, in the second half of 2009. The mother did occasionally take the children to school late in the second half of 2009. This issue has since been addressed, and while it was a problem it was in part a factor of the father being hyper-vigilant, particularly with regard to H.
The mother did not concede that she was overwhelmed by parenting (as suggested by Dr HS), however she did say that sometimes she loses patience and is not as organised as she should be. I prefer the evidence of Dr HS, but find that part of the difficulties which the mother needed to address is the regular emotional pressure from the father.
Dr HS said the mother tended to misinterpret, exaggerate and distort interactions. I agree with that assessment. The mother holds the father in low esteem. Despite these aspects she tries hard. She is the soccer coach and is involved with the children in soccer. She appears to be overwhelmed by the strength of the father’s character and expressions. At one stage she said she would have to learn to listen to what he [the father] is saying rather than how he is saying it.
The mother prevaricated in terms of her evidence as to why she was no longer seeing Mr K, a psychologist. The answer is clear, Mr K disagreed with her and she wasn’t happy with his views.
The mother was not an impressive witness and her evidence needs to be carefully assessed. She prevaricated and was, from time to time, giving evidence which was not how she really felt. It was necessary for me on one occasion to raise that with her. As a consequence I treated her evidence with caution.

P (the mother’s eldest daughter) gave evidence in accordance with her affidavit sworn 22 April 2010. She was forthright in giving her evidence and frank when being cross-examined.
She said, and I accept, that there was significant violence, including violence to her mother by the father during the course of their relationship. She said that the father used cannabis during that time. There is no evidence that such drug use is continuing and I am satisfied that it is a thing of the past.
P said that she was present at some changeovers after separation and she had felt threatened by the father’s actions at those times. These included him staring and making faces.
P gave evidence of constant verbal and some physical violence by the father prior to separation and bullying and domineering behaviour at changeover subsequent to separation. I accept her evidence, she is an impressive witness.

Dr HS

Dr HS gave evidence in accordance with her report,[13] which was read into evidence. Her qualifications were not challenged.
[13] Dated the 20 April 2010.
Dr HS said that each of the parents has the capacity to make contributions to these children but the conflict was such that equal time, at this stage, could not be productive. Dr HS has read the report of Dr Jennifer McIntosh and Professor Richard Chisholm[14] in relation to shared parenting. She gave evidence in respect of the indicators and said she struggled as to which was the best way forward for these children. Later in these reasons I considered equal time, in the context of all of the evidence, the relevant s 60CC factors and having done so I agree with Dr HS’s assessment that equal time would not be in the children’s best interests.
[14] “Cautionary notes on the shared care of the children in conflicted parental separation”.
The question is whether the children should remain in the primary care of their mother or whether they move to the primary care of their father. Dr HS has concerns either way. The mother is emotionally available to them but is at times disorganised and overwhelmed (I am satisfied that part of this relates to the conflict and her inability to come to terms with this). The father provides security and is protective of the children, in addition he encourages them to extend themselves.
Dr HS said that the father has focused on his work, computer and games and from a statement made by H to Dr HS, the father sometimes applies significant funds to the children which causes concern with Ms R.
Dr HS is of the view that both parents are self-obsessed, although on the evidence of Dr HS, the father is more so than the mother. Both parents lack insight although the mother has a greater failing in that area than does the father.
Interestingly the children do not see their father as abusive and they do not see the mother as being frightened of the father. H is anxiety prone. Dr HS says this comes partly by temperament and partly as a consequence of the conflict. Dr HS made it clear that this conflict was adversely impacting on these children.
Dr HS said, and I accept, that there is a real question as to whether the mother was genuine in wanting to solve the issue of conflict. I likewise have real concerns about the mother’s willingness to resolve the conflict.
In her report Dr HS noted the father complained to her about the mother keeping his possessions and said that he was not concerned about it. Despite his denials the father was clearly agitated about this issue and is not frank in acknowledging it, which again raises issues about the father’s insightfulness.
In interviewing H it is clear, from Dr HS’s observations, that the mother has enmeshed H, at least in her financial circumstances. That is troubling. The mother shouts at the children and I also find that the father and Ms R shout at each other.
The Independent Children’s Lawyer made some initial submissions in relation to the proceedings. His submissions were that many of the issues raised by the father had existed before the parties settled in April 2006. At that time there was high conflict which has continued and was not resolved by the consent orders. All of the professionals are in agreement that the conflict needs to be fixed.
Through this subsequent hearing the father raised questions as to the mother’s mental health. That had been dealt with in 2005 but the father sought further psychiatric assessment. The father raised his concerns about the mother’s mental health with Dr HS. It was only in giving evidence the father said he was satisfied that the mother was not mentally ill. I have concerns about whether this was a genuine concession by the father or a performance for me.
The father raised the mother’s history of being sexually abused as a child in the 2006 proceedings and raised them again in these proceedings. This is not a new factor.
I have considered all of Dr HS’s report and her evidence and whilst I have not mentioned every part of it I generally accept her evidence. However, I have had a greater opportunity to view the parties and I am concerned that Dr HS’s assessment of the father is somewhat more benign in the way in which I observed him, and her assessment of the mother was somewhat sharper than my assessment of her.

Discussion

Dr D makes adverse comments of the parties in relation to the conflict. Dr HS says that the conflict between the parties is high including her concerns that the father holds the mother in low regard.
Dr D observes that throughout this history the father referred to the mother as “that woman” or “Ms [Jones]”. During the trial the father only rarely used the mother’s first name and often referred to her as “the client”. The father has on one occasion referred to the mother as “mad”. During his interview with Dr HS the father told Dr HS that:-
… The matters before the Family Court have been a long process. However, he said he has “stuck with it” because he feels responsible for the children’s wellbeing. He said he has to do this because he cannot let the children grow up with this “mad woman”.
As I have said elsewhere in these reasons, the father says that he no longer believes this. I do not accept his evidence in that respect.
The father complains about the physical discipline of the children which is a new complaint although the discipline complained of is of a minor nature and both parties now accept that there ought to be an order that there be no physical discipline. I will make that order. In terms of that discipline the father did not complain to any authorities nor did he seek medical assistance.
The father also complains that the mother is unable to take the children to school on time and then blames the children. There was communication between the parties in 2009 about the children, particularly H, arriving late to school. The father says, and H at some levels confirmed, that from time to time in 2009 the children are taken late to school. The evidence of the father was that he alerted the teacher to this and as such there were thirteen occasions between May 2009 and October 2009 when H had unauthorised late arrivals at school.
This has to bee seen in the context that there is probably some substance to the complaint but I am satisfied that the children will say to their parents what they want their parents to hear. It is significant that there is not a similar pattern in relation to L. The father approached the teacher and asked her to specifically make records in relation to any late arrival of H. This was of course during the time these proceedings were on foot.
I am satisfied that from time to time, but certainly not as constantly as asserted by the father, the children have arrived marginally late to school. I do not accept that this is at the level to which the father complains. The mother has taken steps to modify her behaviour in relation to this. She appears to have succeeded.
What is troubling is that the mother has, at times, blamed the children for being late when it is her responsibility. The mother had not organised the children in the morning as the children would have liked, and leaves it to them, at this very young age, to get their own breakfast from time to time. The mother blamed the children for being late for school in 2009 and this reflects poorly on her parenting, and is consistent with opinions of Dr HS.
The mother has not been frank with H in terms of her smoking and has misled him. The mother has limited insight as to the impact of this upon the child. This is a matter for which she ought to be and is criticised.
The father complains that the mother continues to use and abuse alcohol. There was no direct evidence of her abuse of alcohol in recent times with the exception of an incident on a recent Mother’s Day. The mother was late and the father said he could tell from looking at the mother’s face that she had an alcoholic appearance and relied upon his “expertise” as a retired hospitality worker. I do not accept that conclusion and I am satisfied that there is no evidence of any present abuse of alcohol by the mother while the children are in her care. In any event the parties have consented to an order addressing this issue.
The father complains that the mother breached parenting orders, however there are also a number of contravention applications made by him which ought not to be made.
Each of the parties asserts the other was guilty of violence during the relationship. I am satisfied that the parties engaged in overuse of alcohol and, at least, the father, used cannabis. During the course of their marriage it was a turbulent time and I am satisfied that each were violent to the other. I am satisfied that the level of violence by the father was far greater than he asserts but not to the extent claimed by the mother. In June 2006 the father assaulted the mother. I have made a positive finding in relation to that. There is no evidence of physical violence by the father to the mother since that time, and the children display no indication of being subjected to violence by observing it. The mother’s evidence in cross-examination was that there has been no physical violence since June 2006.
I am satisfied that the protection provided by the criminal justice system is such that at present the mother is no longer physically afraid of the father. She continues to feel unable to directly communicate with him through concern that his strength of language and personality will overbear her views. She is intimidated by his economic strength as compared to hers. This view of the mother, added to by her own histrionic personality type, is one of the factors in the communication failure which exists between these parties.
The mother is developing some skills to manage this conflict, but at a snails pace such as it may not achieve an effective result prior to the majority of the children. The mother has some capacity to learn but I accept the evidence of the experts that her insight is somewhat limited.
H is quite an introverted boy who has been significantly and detrimentally affected by the conflict between his parents. That impact upon him is likely to be greater as the years progress. In all of the circumstances he is doing quite well at school and is not suffering the concerns raised by the father.
L is also going well at school, she has some issues about sounds and letters but I am satisfied, in the circumstances that this is no more than the normal learning challenges which children have in their education from time to time.
The parents have been unable to agree on whether H goes to Cubs or dancing on Monday nights. The father wants Cubs and the mother wants dancing. This is indicative of the burden these children endure. When L commenced school one parent had her enrolled in one school and took her to that school and another parent had her enrolled in another school and took her to that school. For a short period she was attending both schools, presumably with different school uniforms and inevitably different teachers and peers. If it were not so appalling for the child it would be laughable that two ‘so called’ grown ups were behaving in a way which was more akin to the age and maturity of L. This is indicative of the parent’s entrenched conflict and the practical impact on these children.
I am satisfied that the mother both explicitly and implicitly expresses to the children her dislike of the father. I am satisfied that the father has, at least, implicitly involved the children in these proceedings including H’s statement to Dr HS that his father wants him to live with him for most of the time. I am satisfied the mother discusses the difference, between her finances and the father’s finances, in the presence of the children which has the capacity to show her dislike of the father.
There is evidence in respect of the mother’s relationship with Mr W. The mother sees it as a significant relationship in which she proposes to marry Mr W. She says that he does not wish to be involved in the proceedings and has stepped back from them. I have commented earlier on this relationship and its impact on these proceedings.
An example of the mother’s difficulties in terms of her negotiations with the father came up during the course of the hearing. The mother had written to the father requesting permission to take the children to Greece over the May school holidays. The mother had made no significant steps to arrange that holiday. After some pressing she conceded that it was unlikely to occur. The father had written to the mother setting out a clear schedule of what he wanted to do in terms of taking the children to France in May/June 2010. The mother was opposed to that trip. It was only after some cross-examination from the Independent Children’s Lawyer that she, reluctantly, agreed to the children going. It was a simple negotiation which the mother endeavoured to avoid.
The mother’s general practitioner is Dr V. Dr V gave evidence in the criminal proceedings against the father, following the assault in 2006 and on one occasion asked the father to leave her practice. This was at a time when there was a Family Violence Order in place. I am satisfied this is an example of the father’s confrontational approach.
In any event, as one would expect from these parents, the children see one doctor when they are with the father and another doctor when they are with the mother. The parties seem to be unable to arrange a single doctor for the treatment of the children. This is another example of adult focus and not child focus by these parents.
One of the orders I will need to make is which doctor the children see. I suspect that Dr V acted appropriately in giving evidence to a court reporting medical observations and requiring the father to be removed from her surgery when he may have been in breach of a Family Violence Order and there were allegations of family violence.
However, despite that it still leaves the children in a situation where their father cannot talk to the doctor. It may well be that the father is very much to blame for this. In any event I will be making the order sought by the parties.

Section 60CC Factors.

I am required to consider the factors under s 60CC in determining these parenting issues. In considering these factors I have had regard to all of the relevant evidence provided during the hearing and findings made by me.

Sec 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

Dr HS says it is her view that both parents ought to have a significant relationship with the children. Whichever way these proceedings turn out that will occur. The primary question is where the children should live during the school term.
The mother is reluctant to talk to the father and does not engage in meaningful negotiations with him. On the other hand the father is demanding and exercises power in a way which drive the parties away from each other. That can be seen through these proceedings and the unsuccessful contravention proceedings. Both parents have positives and negatives that they can provide to the children.
The parents have been unable to solve the underlying problem of the parental conflict. Each must equally bear the blame for that conflict and if it continues that conflict will cause irreparable psychological harm to these children.
There is a benefit to both children having and continuing their meaningful relationships with both parents. It is how that can be achieved in the shadow of the parental conflict which is the challenging issue.

Sec 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

I have earlier in these reasons made findings about the violence perpetrated by the father against the mother. The violent incident of June 2006 is the last act of physical violence. At this time there is not an unacceptable risk of physical violence being perpetrated on the children or in front of the children by or to either of the parents. Both parents shout and I infer they each have trouble controlling their respective tempers.
However, Dr HS says that neither of the children display indications of the violence that had existed between their parents.
Where these children are at risk of harm was identified by Dr HS and Dr D as a consequence of the parents’ ongoing conflict and antagonism. It predicates against equal time and has so far been immune from solution.

Section 60CC(3)(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;

H expressed a view for equal time. However, this has to be seen in the context that he has been with his father for most of the time prior to his interview with Dr HS and also his underlying desire to stop the conflict. Dr HS’s evidence was that whilst that was the view expressed by H it was expressed in such a way as to ameliorate or stop the high levels of confrontation with his parents.
L was satisfied with the current arrangements although with her age and maturity I do not give her views significant weight.
I have had some regard to the views expressed by the children.

Section 60CC(3)(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);

Each parent has a close relationship with the children, which is reflected by close relationship between each of the children and the parents.
The mother has been the primary carer of these children since their respective births. The mother is not as organised as the father and is sometimes overwhelmed by the surrounding circumstances. Despite this she manages as a parent.
Whilst they spend significant and substantial time with the father the mother has been the constant.
Dr HS says of the father:-
The day to day practicalities of parenting must, at times, challenge him. The children spoke of [the father] promising them time and attention that does not eventuate because of his focus on personal activities such as playing computer games.
The children love their father. They respond to him as a person who offers them a sense of security and this is beneficial for them. They report he is affectionate even if he is not always available to listen to them.
In relation to the mother, Dr HS says:
The day to day practicalities of parenting and the children seem to overwhelm [the mother]. The children [sic] dissatisfaction with the mother’s parenting relate to a low energy level and their need to fend for themselves at times. They presented as cautious about waking the mother to assist them in preparing for school and indicated that they have had to settle for less than they wanted because they were not allowed to wake the mother.
[H] reported dissatisfaction that his mother would blame the late arrival at school because the lateness was attributed to them not waking the mother in time.
Nevertheless, the children love their mother. They respond to her as a parent that is warm and affectionate. They are aware that their mother needs them.
The father is sometimes distracted as a parent and is from time to time distracted by other interests. He uses his superior economic circumstances to partly sustain his relationship with the children. This is clear from his overseas travel and some concerns expressed by Ms R.
The father is interested in the children and is anxious to provide them with every possible opportunity. There is no doubt the children love the father and the mother. The father is a positive influence in the children’s lives.
Both parties contribute to the conflict and the mother makes clear her dislike of the father. The mother shares her negative feelings about the father with the children. The father also engages the children in the conflict albeit to a much lesser extent. An example of that is the evidence of H that his father wants him to live with him most of the time.

The principle set out in s 69ZN(3) imposes an obligation on courts to look at the impact that the proceedings may have on a child. The principle must also apply to the serious question of rehearing children’s cases with the consequent impact on the child or children.
Since the orders were made in 2006 there have been significant changes to the children’s age bearing in mind their respective ages at that time.
In addition the father’s employment has changed and he is far less involved in day to day working. Both parties are now in new relationships, and sadly the conflict between the parties has intensified. Whilst I am reluctant to go through the process of a further hearing, in this case, bearing in mind the level of antipathy and antagonism between the parties it is necessary for me to do so.
Since the orders were made in 2006 there has been one act of physical violence against the mother but continuing high levels of conflict between the parties. The children have faced situations where there is concern, at least with H in terms of both parents turning up at the same event, and concerns about them both being enrolled at different schools at the same time in terms of L.
In this case I am satisfied that there has been a material change in circumstances and determine that the father’s application should be heard.

Equal shared parental responsibility

Having determined that the matter should be determined according to law the next determination is that of parental responsibility.
The parties and the Independent Children’s Lawyer all seek an order for and recommend equal shared parental responsibility. This has not worked in the past and it is problematic in terms of its future viability.
If I provide that each party has separate parental responsibility, such as that provided under s 61C of the Act, then the situation will arise as it has in the past in terms of the children being enrolled in two different schools, having two different doctors, attending Cubs and dancing on the same night.
Given the concerns I have about the parties and their bona fides if I give parental responsibility to one and not the other then I am concerned it will be used as another method by which these parties can misinterpret and abuse the exercise of power in respect of the other.
I am then left with equal shared parental responsibility, the best of the poor choices which are available to me. However, I will make an order requiring the parties to negotiate (face to face), any difficulties they have in respect of parenting the children, at a Family Relationships Centre or at Centrecare or the like. Hopefully, the nonsense that these parties do not talk to each other will then be brought to an end. That process will not start for three months and it will give the mother, if she chooses, an opportunity to have counselling or treatment in relation to her inability to speak to the father face to face through a mediator.
As there is to be an order for equal shared parental responsibility I am bound to positively consider those matters required by s 65DAA.
In the light of the findings of fact and the s 60CC considerations I have considered whether the children should spend equal time or significant and substantial time with each of the parents. Similarly I have considered whether the children spending equal time or significant or substantial time with each of the parents is reasonably practicable. Both equal time and significant and substantial time are reasonable practicable.

Equal time

The parties each, in their own cases, seek orders for significant or substantial time. If I determine one way or the other, except equal time, it will mean I have considered significant or substantial time.
As to equal time, Federal Magistrate Ryan (as she then was) in the decision of H and H (2003) FLC 93-168 gave consideration to the factors that the Court should take into account in parenting applications where orders for equal time are sought. Her Honour, at paragraphs 47 and 48:-
47.Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
• The parties’ capacity to communicate on matters relevant to the child's welfare.
• The physical proximity of the two households.
• Are the homes sufficiently proximate that the child can maintain their friendships in both homes
• The prior history of caring for the child.
• Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
• Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
• Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
• Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
• Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
• Whether or not the parties respect the other party as a parent.
• The child's wishes and the factors that influence those wishes.
• Where siblings live.
• The child’s age.
48.This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2). Each factor fits comfortably within s.68F(2). Based on other courts experience these factors have be useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.
Section 68F(2), which her Honour was referring to has been repealed and the matters which were set out in that section have been incorporated and expanded upon in s 60CC of the Act. In order to determine whether equal time is in the best interest of these children I must consider the matters set out in s 60CC.
As I said in a recent decision of Lake & Karter [2009] FamCA 682:-
89.The concept of equal time is often raised by parents as being a ‘fair’ solution. No doubt from some parent’s point of view equal time is ‘fair’. But is it fair to that parent or the child? Often children are taught that it is fair that this occur and those words are reproduced to family consultants. I do not know and make no such finding in this case.
90.Children are being committed to childhoods moving from one home to another without a primary place to regard as theirs, a week here a week there. I often wonder how parents would cope with moving home week about.
91.Children are not loaves of bread to be divided and sliced to meet adult concepts of what is or is not fair. Courts are constantly being asked to make equal time orders despite high conflict and continuing animosity. Courts exercising jurisdiction under the Family law Act 1975 (Cth) have the difficult task of putting in place arrangements when parents are unable or unwilling to do so. The task of a court in those circumstances is to put in place arrangements which are in the best interests of a child and not necessarily the parents. Children need and are entitled to stability and certainty in their lives. Success in parenting after separation is not a measure of time it is determined by the absence of conflict between parents and the effective use of the time children have with each parent and other members of their families.
These parties have little or no capacity to communicate on matters relevant to the children's welfare.
The homes of the parties will soon be very close and the children can maintain their friendships in both homes.
Both of these parties have prior history of caring for the children albeit with different skill levels, as discussed earlier.
The parties have clearly demonstrated that they cannot seriously implement a 50/50 living arrangement without undermining the children's adjustment.
The parties have been unable to agree on matters relevant to the children's day to day life. These reasons are littered with example of where the parties have failed in this regard. Furthermore the parties have shown little ability to reach agreement when there is an impasse.
They both have great ambition for the children but they are not similar, for example cubs and dancing. In addition they are unlikely to be able to jointly address, on a continuing basis, the practical considerations that arise when children lives in two homes. To make matters worse neither party respects the other party as a parent.
H has expressed a wish for equal time, and to that end I note my earlier concerns in that respect. The children are relatively young.
Having considered all of the facts and findings I am satisfied that equal time in this case would not meet the best interests of the children.
It is clearly reasonably practicable for the children to spend equal time with each parent. However, having regard to the facts and findings, it is not in the children’s best interest for that to occur.

Primary place of residence

Having determined that equal time is not in the children’s best interests I must consider with whom should the children live primarily during school term. Senior counsel for the father said a change to the children’s living arrangements so that they live with the father is the only realistic solution. The Independent Children’s Lawyer submitted that the status quo is in the children’s best interests. The mother submits that less time with the father is the better child focused outcome.
Senior counsel for the father submitted that Dr HS said that the children were being adversely affected by the continuing hostility and that the situation was deteriorating. That is correct, but I am not convinced that a change of primary residence will ameliorate the hostility, it could have the consequence of inflaming it.
Senior counsel for the father also submitted there were issues about the mother being genuine in wanting to end the conflict. I agree with that assessment of the mother, but added to it is the hostility and aggression of the father.
I accept, as I have said earlier, that the mother enmeshes the children in these proceedings and is at some levels emotionally dependent on the children as they are on her.
Dr HS says the father is more child focused than the mother. Having seen and heard the father’s evidence I do not accept that this is the case and if it is, the difference is marginal. I accept that the mother involves the children in her views about the economic differences and complains that the father does not provide support in circumstances where he is paying child support and where there is no assessment in place. The mother misinterprets, exaggerates and distorts, as does the father, from time to time, for example his complaint about delivery of the passports in June 2009. In that instance, the passport was posted on the Thursday, the soonest the mother would have received the notice to collect the passport was the Friday, the passport was sent to the father on the following Tuesday, there was no delay, except in the mind of the father.
Both parties hold each other in low regard. Senior counsel for the father submits that the father does not pass this onto the children. The father says he does not do so overtly and the children express that the father loves the mother. I am not entirely convinced that the children do not see and/or feel the animosity and dislike the father has for the mother and I am not sure that they are unaware of the father’s low regard of the mother.
The father has a narcissistic personality. He is aggressive and determined to win. I take this from all of the evidence including that of Dr HS about the father’s approach to litigation. He has some insights into the impact on the children but not at high levels.
On the other hand the mother provides obstacles in answer to many problems. She also has narcissistic tendencies although not to the extent of the father. She has actively encouraged the conflict. The father would say that this is an essential difference, but his recent approach belies such assertion. For example, his decision not to tell the mother about his heart surgery and the contravention applications which were doomed to fail.
Having regard to all of the factors, facts and findings I determine that the children should live primarily with the mother during school term but spend significant time with the father, being from Thursday to Tuesday each fortnight, which is five nights out of a possible fourteen nights.
Time in this case is not a panacea to the conflict. A meaningful solution rests entirely with the parties.

Changeover at B

There was an issue about whether the changeover should be at the play centre at B or at a point adjacent to the two houses. Both places are in public, the one suggested by the father is closer to the home of both parties. The mother objects to the change (which is a distance of about 150 to 200 metres) because she says there are car parks at both ends of the centre.
Senior counsel for the father says when the mother is presented with an issue she looks for obstructions rather than solutions. In this regard he is right.
The proposed place of changeover suggested by the father is adjacent to both homes and enables the children and the parties to walk to and from that place. It makes sense and I will make an order putting that arrangement into place.
This of all matters should have been easily dealt with by the parties.

Mediation

The last issue is just one of a series of disputes which the parties should have been able to resolve without court intervention. The mother does not talk to the father, that situation must end. If it does not these parties will inevitably be back to court. Having regard to these and other findings I am satisfied that face to face mediation is appropriate and necessary to facilitate future communication. I also encourage the mother to develop a working relationship with Ms R as an alternative avenue of communication. I have considered the history of violence, particularly in the light of the evidence of Dr HS. In the circumstances of this case and having regard to the desperate need of these children for their parents to directly communicate, I am satisfied this is an appropriate step. There will be a mediator present who presumably will have the skills and training to manage the father’s behaviour (there is no reason a copy of these reasons cannot be made available to such mediator/s).
I will make orders that the parties mediate such issues face to face rather than bring them back to court at enormous expense to the parties, not to mention imposition upon the public purse or most importantly the impact of further proceedings upon the children.

Overseas travel

There was an issue as to whether the children should travel overseas for three or four weeks in May or June of each year. The parents agreed to overseas travel in 2006, however, it is the amount of travel that is in issue. I see no reason why the children cannot travel overseas with one or other of their parents. This will mean that the children will have the whole of a school holiday with one parent or the other. This has the added bonus of, hopefully, easing the conflict that exists between the parents. It was an agreed fact that at least one of the school holiday periods was to be a three week holiday break at S School. Having regard to the distance involved in overseas travel and the benefit to the children, there seems to be no reason why the children cannot travel overseas for four weeks periods around and including a two to three week school holiday period. This will need to be subject to the approval of and consultation with the children’s teachers and the other parent.

Medical treatment

One of the issues I will address is that the children will attend the N Clinic at N as sought by the father. I have made earlier comments in relation to Dr V. If the parties are to have joint parental responsibility they both need to be able to liaise with the children’s Doctor. Unfortunately, the father has created an intolerable situation with regard to Dr V. I must address the needs of the children. In the circumstances of this case the use of N Medical Surgery is the least intrusive on the children.

Parents’ birthdays

I had considered making provision for the children to spend time with their respective parents on the parents’ birthdays. However, I have determined, in the light of the conflict that exists between the parents, that that would merely add to the anxiety that the children endure at changeover. The mother will have the children on her birthday each second year and on the occasions she does not have the children on her birthday there is no reason it cannot be celebrated two or three days earlier. The father’s birthday is about the time when the children commence school. They do not need further anxiety or disruption. The children are likely to be with their father on most occasions within two or three days of his birthday. He can make arrangements to celebrate his birthday with the children when they are otherwise with him.

Special Activities

The father sought an order that the parties not enrol or commit the children to any activities without the consent of the other. I decline to make that order as it would mean, bearing in mind the conflict between these parties, that the children would not be involved in any activity or it would lead to further litigation.
The parties will be able to have the children participate in extracurricular activities but must notify the other parent. This will hopefully avoid sclerosis of decision making in terms of the children’s broader interests.

Non Denigration and physical discipline

I have made an order that neither party denigrate each other having regard to the history of conflict between the parties and that both parties seek that order. There have been issues about physical discipline of the children. I am satisfied that the mother in the past has from time to time smacked the children. I am not satisfied that it amounts to abuse as asserted by the father. However, in this high conflict environment it seems to me that it would be safer for the children if there was an order that neither party physically discipline the children.

Start at S School

The parties agree that the children should attend the S School. The mother says this should happen at the start of High School. The father says, and I accept, that places are limited. The father has agreed to pay school fees and the payment of these will not impact upon the level of child support. I determine that the children should start at S School as soon as there is a place for them. The only limitation I put in place is that it must be at the commencement of a school year.

Mother’s Day and Father’s Day

The parties both sought orders which provided for the children to spend time with their mother and father on Mother’s Day and Father’s Day respectively. If the children were to be with the other parent, they would be spending from 10.00 a.m. to 5.00 p.m. with the mother on Mother’s Day and with the father on Father’s Day. This would involve two changeovers on that day. Having regard to the high levels of conflict between the parties it seems to me that return to school (if the next Monday is a school day) would avoid an unnecessary changeover for the children.

Use of Alcohol

The parties sought an order that each parent be retrained from consuming alcohol to excess at times the children were in that parents care. As a precautionary measure, and with the consent of both parties, I made that order. However, I decline to make the broader order that the parents be restrained from permitting the children to remain in the presence of a person consuming alcohol to excess, as in a contemporary Western Society such an order would be draconian and for these parties such an order would amount to an almost irresistible temptation to litigate.

Telephone Communication

The father seeks an order that there be telephone communication each day with the children. Having regard to the high levels of conflict between the parties such an order would invite further contravention applications and set the parties up for failure.
Having regard to all of the findings and consideration in these reasons, I will put in place orders for telephone time which can be readily met and which may, with some sensible communication be changed.

Finally

At the commencement of these reasons I made scathing comments about the parents of these children. After reflecting on the evidence, I do not resile from those comments nor from being so blunt.
I place a rhetorical mirror in the face of both of these parents in the hope that they will:-
·Reflect on what I have said;
·See the damage they are inflicting on their children, and
·Change their destructive behaviour.
Each of these parents professes undying love for their children, yet the conflict persists. The time for a ceasefire is well passed and these children are entitled to respite from their parent’s war.

I certify that the preceding two hundred and thirty nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 30 June 2010

[2010] FamCA 523

30 June 2010

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Family Law

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Jurisdiction

Natural Justice

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