Kallias and Kallias

FAMILY COURT OF AUSTRALIA

KALLIAS & KALLIAS

[2016] FamCA 770

FAMILY LAW – CHILDREN – Parenting orders – where applications centre around the youngest of two children – where parties agree to have equal shared parental responsibility of both children – where parties agree that older child live with the parents on a week about basis – where there is dispute in relation to the living arrangements for the younger child– where father seeks a week about arrangement for both children – where mother seeks to maintain the status quo of the younger child spending five nights per fortnight with the father and nine nights per fortnight with the mother – where children enjoy a close sibling relationship – where younger child is immature – where little weight attributed to the younger child’s views – where family consultant supports mother’s proposals – best interests of the child – order made in accordance with mother’s proposal – status quo to remain.

FAMILY LAW – CHILDREN – Parenting orders – Where other parenting orders made by consent in relation to the children spending time with the parents on special occasions, save for the time the younger child is to spend with the parents on the child’s birthday – order made in relation to the younger child’s birthday.

FAMILY LAW – CHILDREN – Parenting orders – Where mother seeks an order which provides that in the event either parent is unable to personally care for the children during the children’s time with that parent, the other parent be given the first option to care for the children – where father opposes such an order – order made in accordance with mother’s proposal.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 65DAA(1), 65DAA(2)

APPLICANT:

Mr Kallias

RESPONDENT:

Ms Kallias

FILE NUMBER:

MLC

9443

2014

DATE DELIVERED:

8 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

27 & 28 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Davis

SOLICITOR FOR THE APPLICANT:

Robinson Gill

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC

SOLICITOR FOR THE RESPONDENT:

Barbayannis Lawyers

Orders

IT IS ORDERED BY CONSENT

That the parents have equal shared parental responsibility for the children of the marriage, B born … 1999 (“the older child”) and C born … 2003 (“the younger child”) (“the children”).
That the older child live with the father and the mother on a week about basis.

THE COURT ORDERS

That during the school term, the younger child live with the parents as follows:
(a)with the father each alternate week from the conclusion of school on Wednesday until the commencement of school on Monday, commencing 21 September 2016.
(b)with the mother at all other times.
That during all school term holidays (with the exception of the long summer vacation), the children spend equal time with each of their parents as follows:
(a)From 11.00 am on the first Monday of the holidays until 11.00 am on the middle day of such school term holiday period;
(b)In the event that the first Monday of the relevant school term holiday is the alternate Monday when the younger child would ordinarily return to the mother, with the mother for the first half of the school term holiday period and with the father for the second half;
(c)Otherwise, with the father for the first half of the school term holiday period and with the mother for the second half.

IT IS ORDERED BY CONSENT

That the younger child spend from 6.00 pm on the eve preceding Father’s Day until 6.00 pm on Father’s Day with the father and that the younger child spend from 6.00 pm on the eve preceding Mother’s Day until 6.00 pm on Mother’s Day with the mother.
That the children spend time with the father as follows:
(a)From 6.00 pm Christmas Day until 8.00 pm Boxing Day in 2016 and each alternate year thereafter; and
(b)From 6.00 pm Christmas Eve until 6.00 pm Christmas Day in 2017 and in each alternate year thereafter.
That the children spend time with the mother as follows:
(a)From 6.00 pm Christmas Eve until 6.00 pm Christmas Day in 2016 and each alternate year thereafter; and
(b)From 6.00 pm Christmas Day until 8.00 pm Boxing Day in 2017 and in each alternate year thereafter.
That the children spend half of each long summer vacation with each parent by agreement and failing agreement on a week about basis to accord with the usual arrangements for the older child as referred to in paragraph 2 hereof.
That for Orthodox Easter (irrespective of whether Orthodox Easter coincides with the non-Orthodox Easter, or falls during school term holidays), the younger child spend time with the father as follows:
(a)From 4.00 pm Orthodox Easter Sunday until the commencement of school the following day or 11.00 am if a non-school day in 2017 and in each alternate year thereafter; and
(b)From 12 noon Orthodox Easter Saturday until 4.00 pm Orthodox Easter Sunday in 2018 and in each alternate year thereafter.
That for Orthodox Easter (irrespective of whether Orthodox Easter coincides with the non-Orthodox Easter, or falls during school term holidays), the younger child spend time with the mother as follows:
(a)From 12 noon Orthodox Easter Saturday until 4.00 pm Orthodox Easter Sunday in 2017 and in each alternate year thereafter; and
(b)From 4.00 pm Orthodox Easter Sunday until the commencement of school the following day or 11.00 am is a non-school day in 2018 and in each alternate year thereafter.

THE COURT ORDERS

That on the occasion of the younger child’s birthday:
(a)In the event that the child is not living with the father, the younger child spend time from 10.00 am to 6.00 pm with the father.
(b)In the event that the child is not living with the mother, the younger child spend time from 10.00 am until 6.00 pm with the mother.

IT IS ORDERED BY CONSENT

That the children spend alternate New Year’s Eve/New Year’s Day with each parent being from 4.00 pm New Year’s Eve to 4.00 pm New Year’s Day with the children to spend time with the father from 4.00 pm 31 December 2016 to 4.00 pm 1 January 2017 and each alternate year thereafter and the younger child spend time with the mother from 4.00 pm 31 December 2017 until 4.00 pm 1 January 2018 and each alternate year thereafter.
That each party keep the other informed of their residential address and telephone number at all times and notify the other by text message or email within seven days of any change to either their address or telephone number.
That each party shall notify the other as soon as possible of any serious illness or injury suffered by the children and any medical, dental, hospital or like treatment received by the children which occurred whilst the children were in the care of that party and the other party shall be at liberty to contact the doctor, dentist, hospital or other medical professional or like person who treated the children to make inquiries about the health of the children.
That both parties be at liberty to approach the schools or educational institutions attended by the children to obtain copies of school reports, photographs, newsletters, notices, and the like and further each party shall be at liberty to attend parent teacher nights, school concerts, prize and special nights, sporting events and like school functions.
That each party be at liberty to attend all sporting and extra curricular activities in which the children may participate.
That in the event that either parent had a significant or special event such as a family gathering, christening, wedding, or other special event that parent shall give notice to the other parent of their desire for the children to spend that time with them and attend the event and the parents may agree in writing by text message to vary the time that the children are to live with each of them so as to permit the children to attend the event and where variation of these orders is required then the parents shall arrange for make up time.

THE COURT ORDERS

That in the event that either parent is unable to care for the children for a period of two or more days, or either of them, during any period that the children would ordinarily be with that parent, then the other parent be provided with the first option to care for the children.

IT IS ORDERED BY CONSENT

That in the event that either parent wishes to travel overseas with the younger child, he or she be permitted to do so for a period of up to four weeks in each year (and with appropriate consideration of school terms), subject to the following conditions having been satisfied:
(a)The non travelling parent be provided with 28 days written notice by the travelling party;
(b)The non travelling parent be provided no less than 14 days prior to the proposed travel, with a complete itinerary of the travel, including, but not limited to copy return airline tickets and confirmation of all accommodation including the relevant telephone numbers at all times whilst the child is overseas;
(c)The child have makeup time with the non travelling parent upon his return to Melbourne; and
(d)The travel to be during school holidays (either term or the long summer vacation), unless otherwise agreed in writing between the parents in consultation with the school.
Pursuant to s 65DA (2) and s 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kallias & Kallias has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9443 of 2014

Mr Kallias

Applicant

And

Ms Kallias

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of 12-year-old C (“the younger child”) are litigating about whether the current living arrangements should continue or whether he should live with the father and mother on a week about arrangement from the conclusion of school on Monday until the commencement of school on the following Monday in each alternate week. The child is currently living with the mother and spending time with the father on five nights each fortnight. The parents have been in a relationship and marriage for nearly 20 years.
The child C’s brother B (“the older child”) is aged 17 and will be 18 in January next year. The parents are mostly in agreement about his living arrangements. The older child lives with each parent on a week about basis with changeover occurring on a Monday.
The mother also seeks structured orders for school holidays and special occasions which the father opposes because he proposes that the week about arrangement for both children be maintained throughout the year.
Cross-examined about the mother’s specific proposals for these other times, with a couple of exceptions, the father agreed with most of them. The father did not agree to any order being made as proposed by the mother that in the event that either parent is unable to personally care for the children, or either of them, during any period that the children would ordinarily be with that parent, then the other parent be provided with the first option to care for the children. At the conclusion of the proceedings the father also proposed that on the occasion of the younger child’s birthday, that the child spend time with the parent with whom the child is not living from 6.00 pm on the eve of his birthday until 6.00 pm on his birthday. The mother had proposed from 10.00 am until 6.00 pm on the child’s birthday.
When the parents and children were first interviewed by the family consultant, the family had experienced a nearly two-year separation of the parents under one roof. The mother was about to move into a separate home. The parties told the family consultant that they had a verbal agreement in February 2015 for the future living arrangements for the children. At the time of the first interview those changes for the family had yet to be made.
Following the recommendations of the family consultant and in accordance with interim orders made by consent on 7 December 2015, the parents and children have engaged in non-reportable therapeutic counselling with psychologist Ms S and this has been of some assistance.
The mother argues that there are cogent and compelling reasons to continue the current arrangements which are supported by the recommendations of the family consultant in two reports from July 2015 and May 2016 and that the onus is on the father to demonstrate that the change he proposes is in the best interests of both children. She relies on the opinion of the family consultant amongst other things, that the younger child is immature for his age.
The father argues that the family consultant has disregarded the views of the children and has been unfair in the assessment of him. It is his case that there is a benefit to the siblings being together which should not be outweighed by an emphasis on the opinion that the younger child is immature, which he does not accept.
The parties proposed parenting orders by consent which provided for equal shared parental responsibility for the children. They also agreed that the older child should continue to live with each parent on a week about basis.
The parties also ultimately jointly proposed orders for special occasions (with the exception of the younger child’s birthday), the long summer vacation, Christmas, New Year and Orthodox Easter in addition to arrangements for the younger child to travel overseas with either parent.

Background

The parties were married in 1997 and separated under the one roof in April 2013 according to the father and in October 2013 according to the mother. The parties continued to live with the children separated under the one roof until the mother left the former matrimonial home in August 2015.
The parties have not yet resolved a dispute about the property of the marriage which has been on foot since the proceedings were initiated in the Federal Circuit Court.
The father initiated parenting and property proceedings in the Federal Circuit Court, filing an Initiating Application on 21 October 2014. On 13 January 2015, the mother filed a Response to Initiating Application and affidavit.
On 28 September 2015, Judge Bender ordered that the proceedings be transferred to this Court.

Evidence

The parties had filed material for property settlement proceedings and parenting proceedings in the trial but the property settlement proceedings could not proceed and were adjourned.
For the purposes of the parenting issues, the father relied upon a Further Further Amended Initiating Application filed 23 June 2016 and his affidavit filed 23 June 2016.
The mother relied upon a Further Amended Response to Initiating Application filed 27 June 2016, her affidavit filed 24 June 2016 and the reports of the family consultant Ms D filed 24 July 2015 and 26 May 2016.
The father, the mother and the family consultant were cross-examined. The expertise of the family consultant was not challenged.

Standard of Proof

When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities (Evidence Act 1995 (Cth), s 140). Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.

Evidence of the father

In his affidavit the father deposes that the younger child and the father have a close relationship. He deposes that the child has expressed a wish to live with him for the entire week when the older child lives with him and that the younger child has persistently maintained this view. He deposes that with the assistance of Ms S, the boys had become very clear in their wish to spend time with him, and that he was “constantly reminded” by the child that he awaited the arrangements that would permit him to spend equal time in the father’s care. The father says that the siblings are protective and fond of each other and that the older child is particularly loyal to and protective of the younger child, and has also expressed strong views that he and the younger child should be spending the same amount of time with the father. The father denies that the younger child is immature for his age, and says that the child has a good deal of insight into the separation and his ongoing wishes. The father says that the child has a good deal of maturity and responsibility in completing his studies, that the child is very organised and enthusiastic about attending school, and that he follows a set evening routine, described in the father’s affidavit, when staying in the father’s home. The father was of the view that the mother had a tendency to be overprotective of the younger child.
The father noted that if his proposals were implemented, the advantage for the child would be to travel to school with the older child on each day of the week; the father suggested that given this was the older child’s last year of school, it would be of benefit to the younger child to spend as much time as possible with the older child while they are at school together.
The father regarded the family report writer’s reporting of his comments as inaccurate with respect to a number of matters, including her assertions that he was ambivalent in relation to the living arrangements for the children or undecided about a living routine for the younger child. It was his view that the child would not positively respond to questions being put to him in a forceful manner, and it was his suspicion that Ms D had sought to “push” the child in a certain direction; thus, the father disagreed with her view regarding the child providing “no answer”.
The father considered the mother’s approach in terms of arrangements for the children somewhat inflexible and believed this created conflict (whereas the mother deposes that the father could be inflexible in relation to certain holiday times and that this had caused conflict).
The father deposes that he has made adjustments to his work commitments enabling him to properly care for the children.
The father deposes that as a result of his work with Ms S, he has been able to recognise and better confront issues relating to parenting and the breakdown of the marriage. The father says he has adhered to her advice and says his views about arrangements with the children have been informed by his time working with her.
In cross-examination, the father denied that he had any discussions with the children about the spend time arrangements but conceded that both of them were aware of his attitude and the difference between the parents’ proposals.
The father was not prepared to concede that the family report writer’s comments about the younger child’s presentation were concerning, other than in respect of the report that the child had not been forthcoming with the psychologist.
The father conceded that he had told the child that he did not want to visit the home of the mother in Suburb E because she might go to the police. When referred to the child’s comments to the family consultant about this attitude being a “stupid thing”, he did not accept that his comment was an inappropriate comment to make to his son. This was notwithstanding his concession that his comment had upset the child.
The father denied that the younger child is immature for his age, or that he is afraid of the dark. The father denied that the child cries as referred to in the family report and said that the child does not do that with him. He also stated that the child is not afraid of the dark when he stays with him. He conceded that the child had recently slept with him on the weekend at Town A but did not concede that this was because he was afraid of the dark. He stated that the older child had gone to bed later in a separate bedroom and that the third bedroom was not set up or appropriate for sleeping. He stated that both he and the younger child had gone to bed earlier so the child had slept with him that night.

It was not in dispute that the children did not spend time with the mother on Orthodox Easter Sunday. In cross-examination the father conceded that he could not reach agreement with the mother regarding the spend time arrangements for the most recent Orthodox Easter period. He agreed that ultimately letters were exchanged between the parties’ solicitors.

Evidence of the mother

In her affidavit the mother deposes that she is and has been concerned about the father pressuring the children about their living arrangements and troubled by the father discussing the proceedings with them. The mother agrees with Ms D’s assessment of the younger child presenting as emotionally much younger than his age of twelve years. The mother deposes that the child is afraid of the dark, has a tendency to become tearful when any pressure is placed upon him and cries quite regularly, and that if the child has a problem he has difficulty expressing himself about it and will only speak when he feels ready to do so. The mother was of the view that the child lacked sufficient maturity to express a wish unaffected by the pressures placed upon him by the father, and that even if the child has expressed a wish to the father to change the arrangements, his alleged views should be seen in the context of his emotional immaturity and significant reliance on the mother as his primary carer.
She deposes that the younger child is primarily bonded with her and that her home is very near the children’s school, and that it is her view that the father is insufficiently focused on the children’s schoolwork, organisation and commitment to their studies. The mother deposes that often when the child is with the father, he fails to complete his Greek school homework and sometimes he also fails to complete his X School homework. She was of the view that the child was happy, comfortable and well settled with the present arrangements and any change would “disrupt him”.
The mother further deposed that she believed the father was not always responsible in his parenting post separation, that he had placed pressure on the children and that there had been disputes in relation to time spent on Christmas and Easter, that he had not always responded appropriately when, for example, the older child was injured while using his bicycle, and that he lacked a settled routine for the children. The mother did acknowledge that the father had been attempting to develop a better relationship with the children through counselling.
The mother deposes, in support of her proposal to have the first right of refusal if the other parent cannot personally care for either of the children, that:
The Husband has clearly evidenced that he is not always able to care for the boys whilst they are in his care. On a number of occasions, the Husband has taken the children during time that they are to be with him, and has left them with his sister. When the husband has had work and other commitments, and has left the children with his sister, they have been often unhappy about this. It is not that they do not love their Aunt, but the children have informed me that they do not simply wish to stay at their Aunt’s home when I am available to care for them. I have advised the Husband on these occasions that I am available to care for the boys, however he has simply refused my requests in this regard impressing upon me that he will care for the children as he sees fit whilst they are with him.[1]
[1] Mother’s affidavit filed 24 June 2016 at paragraph 16.
The mother deposes that while she had no difficulty with the children spending time with their aunt and adult cousins, she believes it is inappropriate for her not to have first option to care for the children when she is available and the children wish to be with her.
Cross-examined, the mother was prepared to concede that the younger child had told the family consultant that he wanted to spend more time with the father but she asserted that the child’s views are changeable. In answer to questions about her reason for refusing to implement the younger child’s wishes, she responded that there is a “certain level of manipulation of the child by his father.” She suggested that the child had “shut down” with the family consultant.
She was also prepared to concede that the older child is of the view that the younger child should spend time with the father on a week about basis coinciding with his own time with the father. The mother was not prepared to accept that this is a strong view but conceded that the older child had told her this.
When challenged about the younger child’s views remaining the same and about the possibility that he may feel that he is missing out because of the different arrangements between the siblings, the mother maintained her view that it is not in the best interests of the child to spend equal time living between the parents. She relied upon her role as primary carer and stated that the father could not provide for the child’s emotional needs at this age and that the child is not emotionally “stable enough to compete in the environment” that the father provides. She stated that the child has to compete with his father and the older child.
The mother maintained that the younger child had telephoned her crying when he was spending time with the father and asking to return home to her. She stated that the father had not permitted this and that she had raised this example with the child when he discussed the question of the spend time arrangements. The mother could not provide any explanation as to why this incident was not referred to in the family reports.
The mother’s responses in cross-examination revealed her attitude that it is her responsibility to parent the child rather than accepting the proposition implicit in the father’s case that the child should drive the parenting arrangements rather than the parent.

Evidence of the family consultant, Ms D

Two family reports dated 24 July 2015 and 26 May 2016 were prepared by psychologist Ms D. For her first report she interviewed both parents and each of the children separately and then observed the children with each parent.
At the time of the first report, both children attended the same school and the younger child was undertaking year six. The older child was completing year 11. The parties were separated under the one roof and living with the children in the matrimonial home at that time.
Overall the observations of the family consultant of the children with their parents were unremarkable. She noted that the older child’s relationship with his father seemed problematic and that there were a number of issues about which he strongly disagreed with the father.
The family consultant recommended that the older child live in a week about arrangement with changeover each Monday and that the younger child live with the mother and spend five nights per fortnight (each alternate Wednesday – Monday) with the father. She recommended that holidays be shared equally and that the routine be reviewed through counselling prior to the commencement of school in 2016 through mediation or family counselling.
By the time of the second report the older child was in his final year of school and the younger child was in year seven. The family consultant recommended that the parents have equal shared parental responsibility for the children and that there be no change to the children’s current living arrangements. She recommended that the older child live in a week about arrangement with each parent with a changeover each Monday. She continued to recommend that the younger child live with his mother and spend five nights of alternate Wednesdays to Mondays with his father. She also recommended that the children share holidays and other celebrations with each parent and spend additional time with the parents by agreement between the parents. She also recommended regular and flexible telephone/email communication between the children and each parent.
In her second report, the family consultant’s assessment of the mother at paragraph 88 was that the mother’s reasons in support of the younger child’s current 9/5 routine are:
…reasonable and valid. She considers [the child] not sufficiently emotionally mature to make decisions about his living arrangements. Her view that [the child] is ‘…not quite at the same level as some 12-year-olds; he needs a lot of emotional support’, is an accurate assessment of [the child’s] present emotional functioning. [The mother] demonstrates a solid knowledge and understanding of the children’s needs.
At paragraph 93 of her second report she notes that the younger child is:
…grieving over the separation, which is understandable, given the physical separation occurred only in August last year. Emotionally, [the child] is too young to make decisions about his living arrangements and should not feel pressured in either household to do so. Nor should he be involved in adult matters.
At paragraphs 84 – 86 of her second report the family consultant comments on the father’s approach to the parenting arrangements as follows:
With respect to future arrangements for the children, [the father] has vacillated in his proposals. While he has consistently claimed that the dispute is about a financial settlement, and has agreed to a 7/7 routine for [the older child] and a 9/5 routine for [the younger child] – reiterating this point by saying that he would not fight over the children – by the end of his interview [the father] put forward a proposal to trial a week-about arrangement for [the younger child] over the next 2 to 3 months.
It is not clear how [the father] anticipates, given the lack of cooperation between the parents, this would work. It is not clear whether he is naive, which he acknowledges he may be, or, limited in his emotional depth, or, deliberately manipulative, but he does seem somewhat disingenuous. If his view is, as it seems to be, that the bitterness and anger originates from [the mother], quite possibly the children received the message that it is not him, but their mother, who is oppositional and difficult. Clearly, [the father] mistrusts [the mother] and has done so for some years.
Yet, at the same time, [the father] genuinely praises [the mother] as a mother and seems truthful when saying that he will not fight in court for the children. Hopefully, [the father] will do what he says, and not as [the mother] claims: namely, that her husband says one thing and does another.
At paragraphs 75 – 76 of her second report the family consultant referred to the younger child’s views:
Asked to comment on his current living arrangements, [the child] reported that, ‘I don’t like it because I’m split up with [the older child] and I miss out on things.’ Asked what these ‘things’ might be, [the child] could not say. He understands his mother wants to keep the current routine, but that his father wants ‘50-50; he wants it to be equal’. [The child] reported that ‘I want to spend more time with dad; I don’t think it’s enough’; while acknowledging he is at school on the alternate Mondays and Tuesdays.
The psychologist [[Ms S]] asked [the younger child] if he thought he was old enough to make decisions about his living arrangements; to which the child responded, ‘I’m not sure.’ The psychologist asked [the child] to think of some reasons why he might be old enough; however, there was silence from [the child]. In response to some of the psychologist’s questions, [the child] simply pulled a face, indicating he had no answer.
In the second report the family consultant said, at paragraph 94:
[The younger child] requires guidance and support. The counselling commenced by the family earlier this year has, by all accounts, been helpful. It is highly recommended that the family continue with Ms [S].
In cross-examination, the family consultant did not resile from her opinion in both reports. She maintained her view that the current five night per fortnight arrangement for the younger child spending time with the father was in the best interests of the child.
She was cross-examined about the older child’s views that the younger child should share the same “week about” living arrangement with each parent which the older child had in place for about 10 months at the time of the second report. She conceded that this was the older child’s view but maintained that this was not in the best interests of the younger child.
The family consultant was clear in her opinion that she disagreed with the father’s proposal for the younger child to live with the parents in an equal shared care arrangement so that this would coincide with the time that his older sibling spends with the father. She did not agree that this was appropriate and reached this view because of the different emotional needs between the children and the difference in their ages. She ultimately stated that the younger child “will not cope with any conflict in the father’s household” and the father has significant limitations in providing for his needs.
In expanding on the younger child’s needs the family consultant stated that he is emotionally younger than 12 years, still sleeps with both parents and does not have the emotional strength to deal with the parental conflicts. She stated that he needs the support of his mother because he is very young. She did not agree that the difference in time spent with the father between the children would lead to problems between the siblings because the children have spent their lives together and are “close loyal siblings” and this will continue to be the case. She did not consider that there would be any difficulties in the younger child accepting the current spend time arrangements continuing into the future because he would accept the decision that his parents made if they had agreed, or that the Court imposes because “he is not an angry little boy”.
In weighing up the importance of the extra two nights per week, she stated that the younger child needs his mother and needs the stability of residing in one home because he is too young to manage a 7/7 arrangement. The family consultant did not agree that there were any considerations of convenience in both children having the same regime which would override the best interest considerations she had factored into her recommendation in support of the current 5/9 arrangement for the younger child.
Referring to the father’s proposal that there be a trial period implemented for the 7/7 arrangement, the family consultant was not shaken in her view that the father was inconsistent in his approach having regard to the fact that he was emphatic that he did not propose to litigate the parenting issues and his initial agreement to the 5/9 arrangement. She reiterated that she was of the opinion that the father was limited in his emotional depth because he did not understand the parental relationship. At paragraph 48 of her second report, the family consultant commented that the father did not consider it in any way inappropriate to present a document folder to the mother containing a joint application for a $300,000 loan, which the mother refused to sign, in the presence of the children during the family report interviews.
The mother was cross-examined by counsel for the father suggesting that she was the major cause of the younger child’s emotional difficulties. In response to a question posed by counsel for the mother on the basis of the conduct of the cross-examination of the mother, the family consultant stated that the mother was in tune with the child’s emotional needs and it was not at all correct that the mother was the major cause of the child’s difficulties.

Findings

I accept the expert opinion of the family consultant that the younger child is immature for his age and grieving over the separation of his parents. I accept her expert opinion that the child needs emotional support and that the mother is in tune with his emotional needs. I accept the expert opinion of the family consultant that the younger child is too young to make decisions about his living arrangements and that he has felt pressured being involved in adult matters. I accept her opinion that the child is too young to manage a week about living arrangement between the parents.
I accept the opinion of the family consultant that the mother demonstrates a solid knowledge and understanding of the children’s needs.
I accept the opinion of the family consultant that the father is limited in his emotional depth. This has been demonstrated in his evidence about the comments he made to the younger child which caused distress to the child.
I find that the father does not acknowledge the emotional needs of the younger child and does not accept the opinion of the family consultant or the mother.
I accept the firm opinion of the family consultant that the parties require structured orders for the younger child and that this would be advantageous and in the best interests of the child having regard to the history of disagreements and the most recent disagreements around special occasions.
The children did not spend any time with the mother on Orthodox Easter Sunday this year. The concession by the father about the difficulties negotiating the arrangements for the children to spend time with the mother for Orthodox Easter Sunday demonstrates that it is necessary and in the best interests of the children to provide specific orders in default of agreement between the parties so that the spend time arrangements are more settled and the parties are not required to resort to lawyers to resolve disputes about holiday arrangements and special events.
I accept the example given by the family consultant about the conduct of the father in presenting the mother with financial documents for her signature in the presence of the children when the parties attended for the interview with the family consultant as demonstrating the father’s lack of insight.
The surprising cross-examination of the mother by counsel for the father on the basis that she was responsible for the emotional immaturity of the younger child was rejected by the mother and the family consultant. The tone and conduct of this cross-examination did nothing to assist the cooperation between the parties into the future and was focused on blame. The father’s approach to the litigation has been illuminating. The father’s approach was unnecessarily combative. This is particularly so in circumstances where both parties agree that the therapeutic counselling they have engaged in has been promising and has improved the relationships within the family. It is intended that this therapeutic counselling continue with the family. The father’s approach to the case demonstrates the lack of perception which was identified by the family consultant in the report.
The negative attitude of the father is also highlighted by the inappropriate comments he made to the younger child about refusing to attend the mother’s house which the father conceded caused distress to the child. The father did not accept that this was an inappropriate comment to make to the child given the child’s immaturity.
On the evidence of the family consultant, I find that the younger child has expressed a wish to spend more time with his father at the same time as his older brother because he feels that he misses out on things. However I accept the expert opinion of the family consultant that it is in the best interests of the child to continue the current regime of spending time with the father five nights each fortnight during school terms.
I find that the siblings have a strong bond on the evidence of the family consultant which would not be adversely affected by the continuation of the current spend time arrangements for the younger child with the father.

The Relevant Law

These proceedings are brought under Part VII of the Act. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.

What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Section 60CC(2) Primary Considerations

The primary conditions 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.
In applying the primary considerations greater weight must be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[2] The evidence did not establish any need to protect the children from either parent.
[2] Section 60CC(2A) of the Act
There is no issue that the children will benefit from having a meaningful relationship with both parents. Each parent concedes that the other parent has a positive relationship with the children. The family consultant noted at paragraph 79 of her latest report that:
[Both children] continue to feel part of a family group comprising each parent and sibling, that they love and feel loved by. The children’s overall good emotional and physical presentation indicates [the children] are parented in a way conducive to their overall needs.

Section 60CC(3) Additional Considerations

The additional considerations are listed in section 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case.

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

How the views of the child are expressed for the manner in which the Court may inform itself of the views of the child in deciding whether to make a particular parenting order are set out in s 60CD. There is no Independent Children’s Lawyer in this case. Amongst other things, the Court may inform itself of views expressed by a child by having regard to anything contained in a report or by such other means as the Court thinks appropriate. In this case, I have had regard to the views of the younger child as expressed to the family consultant and conveyed in her report.
Because of the strong views of both parents in this litigation, I do not place any weight upon their evidence about the views that they each claim the child has expressed. Given the parental conflict, which is appreciated by the child, it is quite likely that the child would say different things to each parent.
I accept the opinion of the family consultant about the immaturity of the younger child. At paragraph 68 of her latest report she was of the view that the child presents as emotionally much younger than his 12 years. I accept her evidence that the parents and children reported that the family counselling has improved relationships.
Whilst I accept the evidence of the child’s 12 year old view that he wanted to spend more time with his father, his reason appears to relate to a sibling concern that he might “miss out” when his older brother is spending time with the father. The children already spend half the school holidays together with each parent and having regard to the younger child’s immaturity and vulnerability described by the family consultant I accept on balance that it is appropriate to place more weight on this factor during school term than on the child’s views expressed to the family consultant.

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

There is no issue that both children have a close relationship with each parent and their extended family. However I accept the evidence of the family consultant that the younger child needs the support of his mother and the stability of residing in one home during school term.

Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

The extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues and to spend time and communicate with the younger child was not in issue. Both parents have taken the opportunity to participating in making decisions about major long-term issues and to spend time and communicate with the child.

Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligation to maintain the child

The extent to which each of the parents has fulfilled, or failed to fulfil their obligation to maintain the children was not in issue. Both parents have fulfilled their obligations to maintain the younger child.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child, or other person (including any grandparent or other relative of the child), with whom he has been living

Central to the dispute between the parties is the additional consideration of the likely effect of any changes in the younger child’s circumstances including the likely effect on him of any separation from either of his parents or from his sibling. I accept the evidence of the family consultant outlined previously, that the brothers share a close relationship which would not be adversely affected by the implementation of the spend time proposals of the mother. As the family consultant pointed out, a regime of five nights for the younger child would mean a separation of the two children for two nights over the fortnight on Monday and Tuesday. I also accept the evidence of the family consultant in her first report that “[The younger child] is very young in his emotional presentation. He is struggling emotionally with the idea of change. He needs the comfort and nurturing provided by his mother.”[3] I accept the family consultant’s opinion that the child is too young to manage an equal shared care arrangement. The family consultant also noted that, against the mother’s better judgment, the mother was inclined to agree to a 9/5 routine for the child so that some of the time he spends with his father will coincide with that of his brother.
[3] Family Report of Ms D dated 24 July 2015 at paragraph 91.
The family consultant emphasised that the older child “is more resilient and more able to manage the weekly changes between homes.” As the family consultant pointed out, the older child is entering a significant stage of his development where he will be becoming more independent after completing his final school year. There is a significant difference in age between the siblings.

Section 60CC(3)(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

Implicit in the father’s case is that it would be a practical advantage for the younger child to spend time with him which coincided with the time the older child was scheduled to spend with the father. This is because the father anticipates that the older child will have his driver’s licence soon and he could assist with driving his brother between the two households. I have taken into account this aspect of the father’s proposal but do not consider that it outweighs the significance of the immaturity of the child such that it warrants greater weight in balancing the additional considerations previously outlined.

Section 60CC(3)(f): the capacity of each of the child’s parents and 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

The evidence of the family consultant about the emotional needs of the younger child previously outlined is significant. I have placed considerable weight on her opinion that the emotional needs of the child would best be met by the continuation of the current spend time arrangements.

Section 60CC(3)(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

The immaturity of the younger child outlined by the family consultant is another factor upon which I have placed considerable weight. These are characteristics of the child which are particularly relevant.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents

Having noted the mother’s concerns about the father’s parenting outlined in her evidence, I am nevertheless satisfied that both parents have demonstrated a responsible attitude to parenthood and this was not a matter significantly in dispute. The parents have different approaches to parenting.
There was no evidence and no submissions made about family violence relevant to the additional considerations under s 60CC(3)(j) and s60CC(3)(k) of the Act.

The time the younger child C should spend with the father

I am satisfied that it is appropriate to adopt the parties’ joint proposal and make an order for equal shared parental responsibility for the children. The spend time arrangements for the older child are not in dispute and he will be 18 early in 2017.
Where a parenting order provides for a child’s parents to have equal shared parental responsibility, s 65DAA(1) of the Act mandates that the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. The Court must also consider whether the child spending equal time with each parent is reasonably practicable.
The paramount consideration in making a parenting order is the best interests of the child under s 60CA of the Act. I accept that there are no practical impediments to the younger child spending equal time with each parent here during school term. However, I am not satisfied that the child spending equal time with each parent during school term is in the best interests of the child on all the evidence, but in particular, the evidence of the family consultant which I have accepted.
Where a parenting order provides for the parents to have equal shared parental responsibility and the Court does not make an order for the child to spend equal time with each of the parents the court is mandated to consider whether the child should spend substantial and significant time with each parent within the meaning of s 65DAA(2) of the Act.

Conclusion

The mother in her proposed orders sought that in the event that either parent is unable to personally care for the children, or either of them, during any period that the children would ordinarily be with that parent, then the other parent be provided with the first option to care for the children. The father was opposed to this proposal. The reasons for this opposition were not entirely clear. The older child will of course be 18 years of age early in 2017 so the issue largely relates to the younger child.
For the reasons outlined earlier in the evidence of the family consultant about the younger child’s immaturity and the fact that he is still adjusting to the physical separation of the parents, I am satisfied that it is in his best interests for each of the parents to have first option to care for him in the event that the other parent cannot care for him for a period of two or more days.
There was a further disagreement between the parents about the time that the child should spend with each parent on his birthday. The father proposed that the child spend from 6.00 pm on the eve of his birthday until 6.00 pm on the day of his birthday with the parent with whom he was not due to be living.
The mother proposed that the child spend from 10.00 am until 3.00 pm on his birthday with the parent with whom he was not due to be living.
For the reasons outlined earlier concerning the opinion of the family consultant about the mother’s understanding of the child’s immaturity and emotional needs, I prefer the mother’s proposal for the spend time arrangements for the child’s birthday and am satisfied that this would be in his best interests. There will no doubt be some flexibility around arrangements in the future for the child’s birthday which might be agreed in writing between the parents.
As previously outlined, concerning the living arrangements for the care of the younger child, I am satisfied that the proposals of the mother supported by the family consultant are in the best interests of the child. The children enjoy a close sibling relationship which will not be adversely affected by the younger child continuing to spend 5 nights per fortnight with the father and 9 nights per fortnight with the mother during school term. They will continue to have the opportunity of sharing time together with each parent equally during school holidays.
I am also satisfied in accordance with s 65DAA(1) of the Act that on all the evidence, having considered whether the younger child spending equal time with each parent would be in his best interests and whether it is reasonably practicable, that the proposals of the father are not in the best interests of the child. I am satisfied that the mother’s proposals allow for the child to spend substantial and significant time, within the meaning of s 65DAA(2) of the Act, with each parent.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 9 September 2016.

Associate:

Date: 9 September 2016

[2016] FamCA 770

8 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent