Kendling and Kendling (No. 4)

FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING (NO. 4)

[2007] FamCA 1530

FAMILY LAW – CHILDREN – Sole responsibility – Consultation on major issues – Orders for time spent with other parent

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

MR KENDLING

RESPONDENT:

MRS KENDLING

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

2903

2003

DATE DELIVERED:

21 December 2007

PLACE DELIVERED:

MELBOURNE

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

16, 17, 18, 19 & 20 JULY 2007; 26, 29, 30 & 31 OCTOBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS PYKE SC WITH MR KEARNEY during July
MR GIVNEY during October

SOLICITOR FOR THE APPLICANT:

DORROUGH SMART

COUNSEL FOR THE RESPONDENT:

MR RICHARDSON SC

SOLICITOR FOR THE RESPONDENT:

MICHAEL CONLEY LAWYERS

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

MR HARPER during July and MR SPERLING during October

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

LEGAL AID, NEW SOUTH WALES

Orders

That save for each of the orders made on 5 December 2007, all extant parenting orders are forthwith discharged.
That save for the matters set out in paragraph 3 hereof, the husband and the wife have equal shared parental responsibility for making decisions about major long term issues in relation to the children DAVID KENDLING born … September 1996 and MARC KENDLING born … January 1999.
That the wife have sole responsibility for making decisions in relation to the children concerning:
(a) Education; and
(b) Health.
Notwithstanding paragraph (3) hereof before any long term decision is made in respect of the education of the children:
(a)The wife shall advise the husband by email transmission (to an electronic address nominated by the husband) of her proposal relating to the children; and
(b)If the husband wishes to comment on the wife’s proposal, he shall, within seven (7) days after the date on the wife’s email transmission, advise the wife by email transmission (to the address from which the wife sent her communication) of his views;
(c)Upon receipt of any comment or proposal by the husband, the wife shall give consideration to his views; and
(d)After the wife has considered the husband’s comments, she shall make a decision and electronically advise the husband of the outcome immediately after making that decision.
For the purposes of paragraph (4) hereof, if the husband does not electronically respond as provided by paragraph (4)(b), the wife shall be entitled to presume that the husband does not wish to be involved and she may decide the issue accordingly.
Notwithstanding paragraphs (3) and (4) hereof, each party be and is hereby restrained from removing or taking any steps that may lead to the removal of the said children from I School or from the O College waiting list without the prior written consent of the other parent.
Each party be and is hereby restrained from removing the children’s permanent residential address from within the G Shire.
That the husband may attend all school and extra-curricular activities of the children at which parents would normally attend.
That each of the husband and the wife have liberty to disclose the details of these orders to all principals and teachers of schools that the children attend together with all hospital, medical, dental and other health professionals attended by the children.
That in respect of paragraph (3)(b) hereof, other than in an emergency, before any appointment is made for the children to attend any medical practitioner, dental practitioner or other health professional, other than for everyday childhood illness:
(a) The wife shall advise the husband by email transmission of:
(i)Her proposal concerning the medical, dental or other health professional treatment;
(ii)The name of the proposed treater; and
(iii)What professional information or advice she has received;
(b)If the husband wishes to comment on the wife’s proposal, he shall within seven (7) days after the date of the wife’s email transmission, advise the wife by email transmission (to the address from which the wife sent her communication) of his view;
(c)Upon receipt of any comment or proposal by the husband, the wife shall give consideration to his views; and
(d)After the wife has considered the husband’s comments, she shall make a decision and immediately advise the husband of the outcome.
For the purposes of paragraph (9) hereof, if the husband does not electronically respond as provided by these orders, the wife shall be entitled to presume that he does not wish to be involved in the decision-making process and she may decide the issue accordingly.
Notwithstanding anything that may be construed to the contrary in paragraph (9) hereof, the wife shall communicate to the husband by email transmission:
(a)Advice as to hospital, medical, dental or health professional appointments for the children;
(b)Any advice as to medication being administered to either child,
and the husband may attend any appointment with any hospital, medical practitioner, dental health practitioner or other health professional relating to the children.
For the avoidance of doubt, decisions relating to education and health referred to in paragraph (3) hereof are those that affect the long term health and well-being of the children.
Pursuant to s 65DAC(2) of the Family Law Act 1975, all decisions other than those referred to above relating to major long term issues about the children shall be made jointly between the parents.
That the children spend time with the husband as follows:
(a)On each alternate weekend from Thursday upon conclusion of school until the following Monday morning at the commencement of school commencing on the first Thursday of the 2008 school year;
(b)On each alternate Wednesday from the conclusion of school until 8.00pm commencing on the second Wednesday of the 2008 school year;
(c)For the first half of all school term holidays that commence in even-numbered years and for the second half of all school term holidays that commence in odd-numbered years;
(d)For one half of all long summer holidays being the first half in all odd-numbered years and the second half in all even-numbered years;
(e)On Father’s Day in each year from the Saturday evening at 6.00pm of that weekend until the commencement of school on the following Monday morning;
(f)On each child’s birthday and the husband’s birthday from the conclusion of school until 6.00pm if it is a school day or from 8.00pm until 1.00pm on a weekend which is not the husband’s weekend with the children.
For the purposes of paragraph (15)(a) hereof, the husband shall ensure that the children attend all Saturday morning sporting activities in which they have been enrolled either by consent, or in the absence of a consent where the wife in consultation with the children’s school principal and sports master has enrolled the children in a sporting activity of which the husband has been notified by the wife by email transmission.
Should the husband fail to comply with paragraph (16) hereof for two consecutive weekends, paragraph (15)(a) hereof is suspended until the husband advises the wife by email transmission that he will so comply and in the event that paragraph (15)(a) is so suspended, the husband shall spend time with the children on the alternate weekends from 1.00pm on Saturday until the commencement of school on the following Monday morning in lieu thereof.
For the purposes of paragraph (15)(a) hereof, notwithstanding that the husband is to deliver the children to the school on Monday morning, he shall ensure that the children sleep in the R area on Sunday evening.
That during all school holiday periods, the provisions of paragraph (15)(a) and (b) of these orders are suspended and they shall resume immediately after school resumes as if they had not been so suspended.
That for the purposes of paragraph (15)(b) hereof, the husband shall collect the children from their school and return them to the residence of the wife.
That should these orders not otherwise provide for the exchange of the children, the husband shall collect them from the wife outside of her residence and return them outside of her residence upon the conclusion of any period under these orders.
The husband’s time with the children under these orders is suspended during the following:
(a)On Mother’s Day from Saturday evening at 6.00pm of that weekend until the commencement of school on the following Monday morning; and
(b)On each child’s birthday, the birthday of the children’s sister Vivian and the wife’s birthday from 6.00pm if a school day until the commencement of school on the following morning or from 1.00pm until 6.00pm if on a weekend which is not the wife’s weekend with the children.
That the husband communicate with the children by telephone and the wife facilitate such telephone calls as follows;
(a)On each Tuesday and Thursday afternoons between 6.00pm and 7.00pm; and
(b)At such other times as the children or either of them may respectively desire at their own initiative.
That when the children are living with the husband pursuant to these orders, the children communicate with the wife and the husband facilitate such communication in the following manner:
(a)By telephone on each Tuesday and Thursday afternoons between 6.00pm and 7.00pm; and
(b)At such other times as the children or either of them may respectively desire at their own initiative.
That the Independent Children’s Lawyer as soon as practicable explain the details of these orders to the children.
That each party keep the other informed at all times of their telephone number and residential address.
That the husband and the wife be and are hereby restrained from removing the children David Kendling born … September 1996 and Marc Kendling born … January 1999 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police do all things necessary to implement these orders.
That the Australian Federal Police forthwith place the names of the said children on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.
That notwithstanding the foregoing two paragraphs, neither party shall unreasonably withhold their consent to a request on 60 days notice by the other parent, to remove the children from the Commonwealth of Australia for the purposes of attending an overseas holiday during periods that the children are entitled to spend with that parent pursuant to these orders and, to give effect to this order, each party shall execute minutes of consent orders at the appropriate time to enable the injunctions pursuant to paragraphs (27) and (28) hereof to be appropriately suspended.
That save as to any issue of costs as between the parties and any claim for costs by the Independent Children’s Lawyer, the applications of the husband and the response of the wife in respect of all outstanding parenting issues are dismissed.
That in respect of any issue as to costs as provided for in paragraph (30) hereof, those issues shall be determined on written submissions to Justice Cronin and such submissions shall be:
(a)Filed with the Associate to Justice Cronin by 4.00pm on 31 January 2008; and
(b) Served on the other party by that date.
That any party receiving a submission as to costs as provided by paragraph (31) hereof, shall have until 15 February 2008 to reply, such written reply to be provided to the Associate to Justice Cronin.
That any issue as to costs be determined in chambers.
That all parenting proceedings be otherwise removed from the list of cases awaiting a hearing.
That after 1 February 2008 all exhibits be returned to the practitioner producing them.
That all material produced pursuant to subpoenae in relation to the parenting proceedings be returned to the recipient of the subpoena.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2903 of 2003

MR KENDLING

Applicant

And

MRS KENDLING

Respondent

And

PENELOPE KENDLING

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Mr Kendling and Mrs Kendling would appear to have very little in common with each other except for their two sons David who was born in September 1996 and Marc who was born in January 1999.
The dispute between the parties is such that they require parenting orders to determine most issues about their children.
There are also financial matters outstanding between them of some complexity. Those matters are being managed by O’Ryan J.
Although the marriage of the parties has come to an end, I propose to refer to them as husband and wife.

The husband

The husband was born in 1932. He came to Australia in 1950. He describes his occupation as Managing Director. Although the financial proceedings involve a number of other respondents, the husband has a significant involvement in a public company known as B Ltd. He was at pains to point out that it is a public company in which he is just a shareholder but during the proceedings, a variety of correspondence was produced on the B Ltd letterhead, signed by the husband and it was clear to me that he was writing on his own behalf. The husband is a wealthy man.
The marriage union which gave rise to the birth of David and Marc is the husband’s third marriage. From his first marriage there are two children. From his second marriage, there are two children. The youngest child of that marriage was a witness in these proceedings. She is significantly involved in the business enterprise of the husband.
In the final part of the cross-examination of the husband, notably by counsel for the Independent Children’s Lawyer, the husband indicated that he had a girlfriend of some months who had met the boys. This woman had not been mentioned in any of the proceedings nor had she been interviewed by the single expert. The husband’s view was that she was simply a girlfriend and that it was not as if she was his “partner”.
When his daughter was cross-examined in October about a woman in her father’s life, she could not tell me that person’s name; she said she had not met her. She was also unaware that her father had travelled to Queensland with the two boys and a female companion. She added that she could not say anything about a current “girlfriend” because she did not “interfere” in her father’s personal life.
Just what the future holds for the husband’s current relationship is unknown. I know nothing of the relationship that the two boys have, or might have, with this woman.
The husband was at pains to point out that he proposes to remain residing in the area where he currently lives because he has a five to six year project that he has undertaken.

The wife

The wife is 39 years of age. She too has been married previously. Her first husband died in 1994. There is one child of that relationship, JH, who is now 19 years of age. JH was only about seven years of age when the relationship between the husband and the wife commenced. He was therefore a significant child in the relationship throughout his formative and teenage years.
The wife describes herself as a homemaker but she too has corporate interests set up during the marriage. Her entity runs a private service facility business.
Subsequent to the breakdown of the marriage, the wife commenced a relationship with Mr M. In January 2007, the wife gave birth to a child, Vivian. Mr M is Vivian’s father.
In October 2007, I was informed that the relationship with Mr M had broken down. I shall deal with that in more detail when dealing with the wife’s evidence and that of Mr M because I am not entirely sure about the future of that relationship.

The relationship and extended family

The relationship between the husband and the wife began sometime in 1994 and probably about August that year.
Not much turns on the point but the wife maintained that she and the husband did not live together prior to the marriage whereas the husband’s version was that they commenced living together for about one year prior to the marriage.
The marriage occurred in September 1995.
There was a breakdown of the relationship in early 2003 culminating in the husband issuing an application for parenting orders. David was then aged six and Marc four.
I shall deal with the chronology in greater detail but it shows that even in 2003, the parties were deeply divided about what should happen to their children to the extent that on 2 April 2003, Judicial Registrar Johnston ordered that the children be separately represented. Further, Judicial Registrar Johnson made an order that the wife submit to a psychiatric examination. Almost immediately after that, the proceedings were withdrawn and the parties reconciled.
The relationship broke down again in about March 2005 and the parties remained living under the same roof. It was not until 28 November 2005 that these proceedings were ultimately commenced.
Since then, the parties have had a number of hearings; most if not all have been contested in relation to the children. Various orders have been made based on affidavit material, much of which now appears of limited relevance other than as a reflection of the way in which the parties have treated one another and their children.
The complexities of the families on both sides compound the difficulty in this case. The children have siblings who are old enough to be their parents and grandparents and then there is the baby, Vivian. Evidence has been given of the nature of some of those relationships and each party’s desire for those relationships to be fostered.

What each party sought

In the mixture of these complex and at times dysfunctional family dynamics, each party commenced the proceedings seeking that he and she respectively have the sole care on a day to day basis of the two boys and that the other parent have time with the children on weekends, mid-week meal times and a sharing of holidays. That is, each sought the role of predominant parent.
In opening the case on behalf of the husband at the commencement of the hearing, his counsel indicated that as an alternative to that position, the husband would advocate for a week-about arrangement if the Court was not positive in finding that he should have the primary caring role for the children.
When pressed during cross-examination by counsel for the Independent Children’s Lawyer, the husband candidly acknowledged that his preferred position was that the children live with each parent on a week-about basis. He said that the reason he had sought the full-time care of the children was that the wife had done so. He acknowledged that in his view, the week-about arrangement was “fair” for the boys.
At the resumption of the hearing in October, the wife proposed a change from her initial position so that she alone had responsibility for major decisions about the future of the children. She also suggested that orders should be made that if the children had a sporting engagement or other activity at the time that they were to spend with the husband, it should be a condition that the husband take the children to those activities.

The wife did not accept that the husband had any interest or commitment to the sporting activities of the children but she was content for an order to be made to that effect.
Both parties have said that they propose to remain living within kilometres of each other and at least in the primary school years, the children will continue at their current school. Both parents stressed their desire to see the children educated properly, pointing to its importance. The issue of where the parties intend to live and what the husband’s intentions are about future education is an issue in the proceedings and I shall return to it.
Each parent leads a significantly different life from the other because of age, wealth, business acumen and general philosophy about life. Some of those differences along with the lack of respect and trust for each other have made communication between them in respect of the children not only difficult but sadly unlikely to change in to the future.
The husband espoused that he was willing to talk but said that his wife was the one who would not communicate. On the third day of the hearing, having been cross-examined for two and a half days, the husband volunteered that there were signs of improvement in the communication levels and that he and the wife had begun to talk. Not only did the wife dispute this but the subject was reopened by further cross-examination through her counsel. It was put to the husband and I accept it to be the case, that between January 2007 and July 2007 there had only been one day upon which any form of communication of a civilized nature could be said to have taken place. It occurred with the wife initiating the call offering to talk about resolving matters. The wife’s version was that the husband told her that he had had legal advice that there was a new regime in the law that gave mothers and fathers equal time with their children and that he expected that he would be successful. It takes little imagination to understand that the conversation did not last very long and the communication lines thereafter went down.
With a break of almost three months in the hearing, one might have expected to see the “signs of improvement” blossom into something tangible. No change occurred. The wife referred to an incident where she realised that Marc did not have his vest. She telephoned the husband and he apparently handed the telephone to Marc with whom the wife made an arrangement to drop off the vest. The wife would not enter the husband’s premises so the husband took Marc down to the entry to collect the article. I asked the wife whether she saw a prospect of improved communication in the future and her response was that there was no prospect ever of any such solution.
This subject was of considerable concern to me as a result of the husband’s concession that his desired position was a week-about arrangement. I commented that I had great difficulty in seeing how such an arrangement could work having regard to the communication levels but also the respect that each parent had for each other and the two totally different households in which these children were living. Counsel for the Independent Children’s Lawyer put a number of propositions to the husband about alternatives to the week-about arrangement. He asked why these combinations would not be good for the boys but it was clear from observing the husband and his responses that he approached the matter from a mathematical point of view. He saw equality as “fair” to the children. Counsel suggested that if a combination of a long weekend from a Thursday through to a Monday and then one other night was put in place, it would be good for the boys. The husband responded that that was only “30 per cent”. Leaving aside the mathematical error, the response indicated to me that the husband’s focus was on what he saw as fair rather than what was good for the boys.
Ironically in this case, numerically, the wife was proposing that the children spend time with the husband during five days out of every fourteen whereas the husband was seeking seven. The wife was certainly not proposing five nights because her suggestion was that the children have a meal on the Wednesday evenings for a number of hours with the husband but even that was rejected by the husband as not “fair to the children”.

The background to the disputes

Notwithstanding the fact that the proceedings began in 2005 and as I mentioned earlier, there was a short period of separation in 2003, the majority of the relationship between the husband and wife has been one of constant dispute. Subsequent to separation, the lack of respect and trust has become worse.
It was the husband’s case and certainly alleged in the various interlocutory proceedings to which I have referred earlier, that the wife had mental health issues, failed to fulfil a protective parenting role in respect of the children, had serious difficulties with alcohol which at times culminated in police prosecutions for driving offences and from the beginning of the relationship, been involved in the abuse of illicit substances such as marijuana and Ecstasy. Whilst the wife conceded some early use of marijuana and the consumption of alcohol at times, she strongly disputed the general allegations of the husband.
The wife accused the husband of being domineering and violent towards her. Her view was that he had a limited parenting role because of his business interests but that in later years, did everything within his power to be destructive of the relationship between she and the children. The husband for his part, was vehement in his denials of any domestic violence or domineering conduct. He said that he had always had a shared parenting role and in more recent times, was capable and willing to be a devoted full-time parent.
Much of the evidence abut what happened during the relationship prior to about 2003 was of limited significance in the present determination of the parenting issues. Whilst each party wanted to have a predominant parenting role, each was acknowledging that the other should continue to play a significant part in the future lives of the two boys. The relevance therefore of some of this earlier conduct was that it highlighted the traumatic background into which these children were born and raised but it also became important in relation to the factors that I have to consider in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
As I have pointed out, much of the evidence of the husband related to the behaviour of the wife.
He set out in his affidavit some examples of his early concerns about the wife. On 21 September 1995, the wife appeared before the Local Court and was convicted of a drink driving offence. It is interesting to note that it was the husband who instructed the solicitors to lodge an appeal against the conviction. In 2001, the husband said that he received a telephone call from the wife who told him that she had tried to kill herself. He went home to find the wife bleeding from the wrists with a gas barbeque bottle beside the bed and the gas turned on. He then drove the wife to the Hospital where she was admitted. The wife was later discharged into the care of the husband.
In June 2002, the wife appeared before the Local Court in relation to driving offences including exceeding the prescribed concentration of alcohol. She was convicted but again, the husband said that he instructed his solicitors to lodge an appeal and ultimately, the matter was dealt with on the basis that the wife was suffering from some form of mental incapacity. She was ordered not to have a motor vehicle driver’s licence made available to her until her social worker indicated her readiness to reapply for a licence.

The wife’s evidence about the attitude of the husband

The wife in turn, gave evidence about a number of incidents which highlight not only the husband’s behaviour but his attitude generally. I shall deal with two.
The first relates to an incident whilst the parties were holidaying overseas. The wife said that as the parties drove past a cemetery, the husband used the words: “A dead Jew is a good Jew. The only good Jew is a dead Jew”.
The husband denied making any comments derogatory of Jewish people. But his own language as indicated in his own written words (see Annexure “H” to the wife’s affidavit) indicate that he holds very strong views and speaks his mind. I accept that he did say the words as described by the wife.
The second incident relates to the period around Christmas 2001-2002. The parties apparently had pet rabbits and because they had multiplied, the wife alleged that the husband let the dog into the courtyard with the rabbits, permitting the dog to maul them. According to the wife, the children were aware that this was happening. According to the wife, the husband finished off the rabbits by killing them with a hammer. When this incident was put to the husband, he denied that he would ever do such a thing. I accept the version of the wife.
Each of the two incidents to which I have just referred may not necessarily be significant in the determination of a parenting dispute. Even in respect of the issue of the credibility of the parties, they make little difference in this case. Their importance however lies in the fact that in the first incident, accepting that the husband holds the views that I have found he expressed, it does not auger well for the children having a tolerant view of other races and cultures if the husband is the role model adopting those attitudes.
The second incident is of more concern because on any view, the finding that I have made indicates an unacceptable level of violence witnessed by children who again look up to their father as a role model. There is a very strong view in the community that children exposed to violent conduct whether in their home or simply on television can accept it as the norm.

The husband’s evidence about the wife as a parent

It is hard to know exactly what the husband perceived and believed about the wife’s parenting capacity. In his affidavit of evidence, he documented a long history of abuse of alcohol including on their wedding day in 1995. At paragraph 52 of his affidavit, he refers to the fact that between September 1995 and February 1996, the wife “continued on a regular basis” to have binge drinking episodes about once a week and that from time to time she admitted in response to his questions that she had been smoking marijuana and taking “pills”. The husband was tested in cross-examination about this wide and vague assertion. The paragraph to which I have just referred was read to him. His response was “It’s wrong if I said that”.
The husband acknowledged that he was unaware that the wife was smoking marijuana at that time and acknowledged that he knew nothing about her using “pills”. The affidavit of his daughter Penelope Kendling was put to the husband about an incident in which the wife exposed Penelope to the use of “Ecstasy” and the husband in cross-examination acknowledged that he knew nothing about that and said that his daughter had never brought it to his attention. That statement was rather odd having regard to the fact that the affidavit of his daughter was filed on his behalf.
The affidavit evidence goes on to detail not only binge drinking but motor vehicle accidents and prosecutions for drink driving. He described the wife’s travel on overseas flights where she was so drunk she often laid in the aisles in a dishevelled state. To confuse the picture however, in cross-examination, the husband acknowledged that he and the wife dined out sometimes three times and other times four, during the week. He said that they had a pre-dinner drink and shared a bottle of wine. I found that rather odd having regard to his concerns about binge drinking.
In respect of the marijuana use, the husband would have had the Court accept that it was a constant and serious problem. The wife’s version about her drinking in recent years was that between January 2005 until the middle of 2006 she estimated that she consumed alcohol in the form of one or two glasses of wine or beer on a few social occasions but since learning of the pregnancy of the child Vivian she had “tended” not to drink alcohol at all. In respect of marijuana, she acknowledged that she smoked it as a teenager and had “occasionally” smoked marijuana since then but certainly not since Christmas 2002/2003. The wife was adamant that she had never smoked marijuana in the presence of the children nor ever used other illicit drugs.
When pressed as to his concerns about the wife’s companion Mr M, the husband detailed an elaborate list of orders that he would like to see made. He wanted restrictions on smoking and discipline by Mr M through to a requirement that the wife not provide the children with excessive Chinese food. Given an opportunity to obtain instructions after the cross-examination was complete, the husband’s counsel indicated that no such orders were actually going to be sought.
During the break between July and October, the husband changed solicitor and counsel. Again, no orders were sought against Mr M. The husband’s position had not changed.

The husband’s view about the wife now

Notwithstanding the allegations and the behaviour of the members of the dysfunctional family both before and after separation, the husband conceded, again under cross-examination, he really had no concerns about the level of care to be provided by the wife for the children.

Credibility

Notwithstanding the concession made by the husband about the wife’s parenting capacity and his recent lack of concern for the children in her care, the entire relationship was put under the microscope in cross-examination by both parties as a consequence of which, I propose to deal with the facts put before me and to make findings accordingly. Before doing so however, I have to express some concern about the husband’s memory. There was a suggestion by him that he was “a morning person” and did not “perform” well at the end of the day and that at times his memory was faulty. It would not be unkind to say that a very large number of answers that the husband gave in cross-examination were that he could not remember. This dilemma creates a difficulty in circumstances where credit is in issue. As I shall point out, there were a number of matters asserted by the husband in his affidavit material about which he had no recollection and I have carefully endeavoured to distinguish matters about which I am satisfied that the husband’s memory was just faulty from those about which his evidence was plainly unsatisfactory.
Having regard to the faulty memory of the husband, his retraction of statements sworn in his affidavit and the emphatic evidence of the wife, I accept her version about the use of alcohol, marijuana and other illicit drugs.
As will be evident from what I am about to set out, predominately, I have accepted the evidence of the wife.
It is important also to point out that unless I have otherwise stipulated, I have made findings on the balance of probabilities. In circumstances where a serious allegation has been made, I have applied the standard as set out in s 140(2) of the Evidence Act 1995 (Cth). In so doing, I am comfortable in saying that I have little hesitation in making the findings in relation to those serious issues particularly in relation to matters of domestic violence to which I shall turn.
As an example of the blurred boundary between failing memory and deliberate dishonesty, the cross-examination of the husband commenced with a request that he advise what he had written on the palms of his hands. It was suggested to him that he was using his hands as “cheat sheets” as might be used by someone sitting for an exam. On his left hand, the husband had written:
Mr [M].
He provokes.
He lets kids sleep on floor.
He deals in drugs.
On his right hand, he had written:
My ex-wife loves boys.
She assists them with homework.
She prepares good lunches.
She is a good cook.
She can be a nice person.
When asked about the left hand, the husband indicated that he had written these things to remind him to say things if he was asked. Sadly, because of the dichotomy of the concepts, it looked remarkably like he was being prepared for the ordeal of cross-examination in the context of acknowledging his poor memory. As a general rule, the evidence of the husband was vague and misleading.
The wife gave evidence over a number of days. She was forthright, articulate, at times tearfully distressed but generally adamant about what had historically happened. She gave cogent explanations for events as to why she had not reported and obtained assistance after a serious assault. She impressed as having a clear recollection of all events put to her. When challenged about her truthfulness and accuracy of events, she stood firmly by what she had previously said in affidavit form. I found her evidence believable. As I have said, where there is a conflict in the evidence, I accept the wife’s version.

The years after the birth of the children

David was born in 1996. Between then and the first separation in 2003, the parties’ relationship was not good.
The wife had bouts of what she called “binge drinking”. I accept her evidence that she managed to care for the children during the day and began drinking after the children were in bed. That was not always the case however. The wife was not working outside of the home whereas the husband was. The wife’s drinking at times got her into trouble. She was charged by police and brought before Local Courts. In her evidence, the wife conceded she was not only chronically depressed but also saw a variety of health professionals.
The relevance of this period prior to the first separation goes to the current nature of the relationship between the husband and the children. The husband says that the wife was not available to parent the children. His case, as developed by his new counsel in October 2007, was that this was a critical time in the lives of the children for the purposes of them developing an attachment. Apart from explaining the closeness of the relationship between the husband and the children and in particular, Marc, counsel for the husband developed a theme that taking the husband out of the lives of the children as they currently know it, would be very difficult for the children to accept. With the husband’s approach to things, his argument was that anything less than shared care of these children will be difficult to see succeeding.
I do not accept however that the wife was not involved in the daily lives of the children during this period despite what seemed to be clear handicaps. She was unable to drive a car as a result of which she was taken by the husband to her therapist and various medical practitioners. At one point, she contracted hepatitis and had to be taken to the hospital for regular injections. Much of this seemed to have abated shortly prior to the 2003 separation. The wife was adamant in her denials that her drinking and depression affected her parenting. She pointed out that she was not drinking whilst affected by hepatitis and was later able to obtain the return of her driving licence. In relation to her depression, she pointed to the lack of support from her husband and his behaviour towards her during the period as an explanation. She gave evidence that he was not interested in her therapy notwithstanding he drove her there and in relation to the hepatitis, said he was too ashamed to go into the hospital with her for her injections. The wife referred to a number of incidents about which she was not specifically cross-examined in which the husband denigrated her. All of these occurred after the birth of Marc. The husband’s own counsel, in cross-examination of the family report writer, described the husband as having a strong personality. He asked Dr M about whether this early period explained Marc’s current close attachment to his father. Dr M said that the attachment issues were very significant. This was a time in which there were a number of people caring for the children and that would have had a significant impact with regard to the evolving personality of the children. He went on to say:
I would agree that these factors would be likely to have a significant impact and certainly create an environment ripe for vulnerability in the context of the development of the relationships that were very observable at the time that I saw him.

The first separation in 2003

The first period of the parties’ separation occurred in 2003. The wife’s evidence was that there was a series of assaults up until late 2002 as a result of which she considered the marriage at an end. It has always been the husband’s case that no assault ever occurred. I propose to deal with the issue of violence separately. The wife said she sought legal advice in February 2003 about which the husband was aware but the parties remained together under the one roof. It was in March 2003 that the husband told the wife about some embarrassing photographs of her. The circumstances under which the photographs were taken do not matter; it is the sinister use by the husband which is of concern. Later in these reasons, I shall find that the husband’s reason for taking the photographs as expressed to me was unacceptable.
At this time, the husband issued an application in this Court. Disputes within the legal process immediately occurred. I accept that at the Local Court on 25 March 2003, the parties gave mutual undertakings about their conduct towards one another.
The wife’s evidence was that under the one roof, the husband harassed her by following her around with a dictaphone pointed to her face.
The wife asserts that in 2003, the husband denigrated her in front of the children involving them in the court process. In her affidavit, the wife set out a litany of statements and incidents. In his evidence in chief, the husband’s position shifted from an absolute denial to one of absence of recollection. The wife asserted that notwithstanding the state of the relationship, she continued her parenting role and her working life. The husband’s evidence was a complete contrast. He said that the wife did not get out of bed until 10.30 or 11.00am and never drove the children to school. I find that the wife was very much involved in the daily care of the children. I have already indicated that where there is a dispute about most issues, I have accepted the wife’s version. I do so in respect of this period.
The importance of this period is highlighted by my acceptance of the wife’s evidence that she was resigned to do what the husband wanted and that was how the parties became reconciled in 2003. The husband in his 2003 application, portrayed to the Court that the children were at risk in the care of the wife. He contended then that they should live with him and to assist in his contention, he engaged a nanny to care for them. Notwithstanding those concerns, the husband reconciled with the wife in May 2003 and the proceedings were stopped. The parties were still under the one roof.
The wife in her affidavit said that she felt she had no option other than to return to the marriage. She claimed the husband would try to destroy her relationship with the children and there were the photographs to humiliate her. The wife said she had concerns about the husband’s relationship with the children describing it as “unnatural” by which she meant that at the ages of three and five, the children were acting like their father and developing his characteristics.
In cross-examination, the husband’s counsel probed the wife’s view about the reconciliation. The wife went further than her affidavit, saying that the husband said he would show the photographs to the newspapers and the children. She pointed out that he had shown a court counsellor as well as her father these same photographs. She described receiving hate mail and threats from the husband’s employees. Her distressed condition when explaining all of this had a ring of reality about it. What I found telling was the fact that for the proceedings leading up to the May reconciliation, the husband engaged the nanny yet promptly discharged her after the reconciliation. The husband said it was at the wife’s request. The point was lost on him that even he did not need to have someone other than the wife caring for the children. That strongly suggests that he was not concerned about the wife’s parenting capacity as he had otherwise portrayed to this Court in the first proceedings.
Counsel put to the wife that there was a distinct inconsistency between this air of resignation about the marriage and reconciliation and the fact that she had soon afterwards found an expensive property that was to become the parties’ new home. That home cost about $3.5 million. At the time of desiring to buy it, the wife conceded she did not know its price tag. Her explanation for the house purchase was that she wanted to get a long distance away from the area where all of the troubles with the relationship had occurred. That is an explanation that I accept.
The period between May 2003 and the end of 2003 was uneventful. The wife worked in her service facility business and cared for Marc and the husband was running his businesses as usual. David attended G School in Year 1. For all intents and purposes, domestic life seemed to have returned to normal. At the start of 2004, the parties moved to the new home in R and the children were both commenced at their present school. The wife was significantly assisted by her mother in that period who cared for the children when the wife was back in G running the business. The children became adept at travelling because each weekend they returned to G only to be driven back again to R on the Sunday evening to resume school on the Monday morning. What is abundantly clear during this period of time is that the wife was primarily responsible for the care of the children. Insofar as she was provided assistance, I find that it was by her mother.

The second and final separation

According to the wife whose evidence I accept, the husband’s attitude towards her deteriorated in 2004 and although no particulars were given, she alleged that he assaulted her on a monthly basis. The husband’s response was simply to deny that any such assault occurred.
The parties separated under the one roof in September 2004. Both properties in G and R were maintained.
In March 2005, both children were attending school in R so their weekend time in G was limited. There was much argument about who cared for the children during the period from March 2005 to October 2005. The wife’s evidence was that agreement was reached to trial a shared arrangement in the home in R. To do so, the wife rented a flat in G. She cared for the children during one week and her mother occasionally came and assisted her. At the end of her week, the wife went to the flat but her mother remained in the R home. During the second week, the husband came to the home but not each day. Although the husband maintained that it was a week-about arrangement, I reject that and find that during his week, the wife’s mother was predominately caring for the children.
In this same period, as an indication that the parties were leading totally separate lives, a holiday occurred in Malaysia where the wife took the children. The parties disputed exactly what occurred but my finding reflects poorly on the truthfulness of the husband generally. In September 2005, whilst the husband was organised to travel to Europe for business, the wife took the children to Malaysia and Hong Kong. After she arrived in Malaysia, she went to the airport after two days only to find the husband waiting for her in the departure lounge. In addition to Marc and David attending, JH had also gone along. The husband’s position was that he had convinced JH to go along as a “safety valve”. This is the same child whom the husband had claimed in his affidavit material throughout the 2006 proceedings was an inappropriate person to be in the presence of the two children. Not only that, the husband said that JH telephoned him to indicate that the wife was not coping with the children as a result of which he diverted his holiday and travelled to Kuala Lumpur where he met the wife in the lounge of the airport. However, when one examines the itinerary of the supposed Europe trip, it becomes abundantly clear that the husband was never going direct to Europe but had always intended to travel to Kuala Lumpur and then to Hong Kong on the same flights as those of the wife. Accordingly, I reject the suggestion that he persuaded JH to go at all and that any telephone call from JH was received complaining about the conduct of his mother.
On 31 October 2005, during the period that the parties were sharing the R property, the wife was handed a letter by the husband indicating that he would no longer continue the arrangement and that he would not be leaving the house in the following week. The only conclusion one could draw was that the wife was no longer welcome in the home nor acceptable to the husband as caring for the children.
On 1 November 2005, the wife received a telephone call from David in which he indicated at 6.30pm that he was left alone and that the husband and Marc had gone out for dinner. The wife went over to the property and found David alone. She waited there until the husband returned at about 7.45pm. David was nine years of age. The husband did not see anything inappropriate in that. I accept the wife’s version of what occurred.

Litigation resumes

In the first week of November 2005, the previous arrangement came to an end. With the assistance of the local police, arrangements to change over at the police station were put in train. The scene at the police station was calm but unpleasant and the husband indicated that he was returning to court.
In that same week, the wife obtained an apprehended violence order which came back before the Local Court on 15 March 2006. The court made an order for a period of two years. The husband appealed against the decision but his appeal was dismissed.
In early December 2005, only days away from a hearing in this Court, the wife found a plaque attached to the kitchen wall which read:
[Mr Kendling] (Father) of [David] and [Marc] [Kendling] anything relating to welfare, care, access inquiries contact: Phone: […] (24 hours) office: […]
The wife was quite distressed about this. It was clearly intimidatory, unnecessary and reflects poorly upon the husband. That is particularly so having regard to his concession that the children were not in danger from their mother, a position he said that he had held for some 18 months prior to July 2007. It is inconceivable that his position could change so radically between December 2005 and February 2006.
The parties had obviously reached a point at which court intervention was necessary.
On 14 December 2005, Registrar Messner ordered that the children live with the husband from after school on Friday until before school on Monday for three weekends out of four and half of each school holiday period. The children were to live with the wife at all other times. Various orders were made for changeover. Each parent was restrained from consuming alcohol or any illicit substances whilst the children were in their respective care. Each party was also restrained from denigrating the other to or in the presence of the children or from discussing the proceedings with the children or in their hearing. Furthermore, each party was restrained from permitting any person to stay in their residence overnight without the agreement of the other party whilst the children were in their respective care other than an employed nanny or the maternal grandmother.
Even the hearing on 14 December 2005 was not without drama. During the hearing, the husband audibly used the words: “I’ll kill the cunt” but when challenged about it in the courtroom, denied that the statement was directed to the wife or Mr M. He said that it was intended for a business associate as a consequence of receiving an SMS message on a particular telephone. His explanation had a ring of reality about it until the telephone records of that number were produced under subpoena to indicate that no such telephone call was received. Having been confronted with that information, no further explanation has been given by the husband. That particular incident might have been viewed as an isolated one were it not for the husband’s subsequent behaviour with Mr M to which I shall refer and which reflects poorly upon the husband. Accordingly, I find that the husband did utter the words directed to Mr M and that his explanation is not acceptable.
The Registrar ordered a pre-trial conference take place some nine months later. It would appear that the Registrar thought that the matter would settle down and the children would have some certainty in their lives.
The orders of Registrar Messner started on 15 December 2005 and the children were then handed to the husband by the wife where they remained until Christmas Day 2005.
Despite a specific order that the wife was able to speak to the children by telephone on a daily basis, she said that the husband did not make them available. She was able to speak to them about once every third night.
On Christmas Day 2005, the wife collected the children according to the orders of Registrar Messner. She was to have them for two weeks until 8 January 2006.
During this period, the husband had the wife under surveillance by some private detectives. This was ostensibly for the purposes of seeing whether the wife breached the orders of Registrar Messner.
The children were handed back to the husband on 8 January 2006 and he was to retain them until 22 January 2006. On that day, the husband refused to hand the children back to the wife. It must be remembered that this is around the time that the husband now says he had no concerns about the wife’s capacity to care for the children. Instead of the husband complying with the orders of Registrar Messner, the parties returned to court.
On 1 February 2006, Judicial Registrar Johnston made an order for the children to be separately represented and noted in the order that each party alleged that there was some risk to the children in the care of the other. Notably, the Judicial Registrar ordered that pending further order, the children were to remain in the care of the husband. This was a significant order because it substantially reduced the wife’s involvement in the lives of the children. Orders were also made for the wife to undergo blood and alcohol tests.
In those proceedings before the Judicial Registrar, the husband relied upon 13 affidavits. Many of those affidavits were from private inquiry agents and I shall turn to their involvement below. The wife’s affidavit in that same hearing and which I have not read, ran to 337 paragraphs.
The orders of Judicial Registrar Johnston on 2 February 2006 required the wife to undergo blood and urine testing. The first of those would have been on 20 February 2006. The Court had imposed these orders as a safeguard for the children based upon the assertions of each party at the hearing. At that hearing, the wife was permitted to have two and a half hours with the children. The wife says that after the orders were made, she made inquiries of local practitioners in R to try and comply with the orders and to have the relevant screenings performed. It transpires that the medical practitioners were unable to assist. As a consequence, the day after the first test should have been taken, the lawyers for the husband wrote to the lawyers for the wife asserting wilful breaches of the orders of 2 February 2006 and then asserted:
Our client formed the view that as a result of your client’s continued actions in breaching the Court orders from which there could only be one possible inference drawn, the children continue to be exposed to an acceptable (sic) risk of harm in having contact with your client.
The letter went on to say that as a consequence, the husband collected the children early from school that day and intended to retain them pending determination of an application that was then made to the Court.
Having regard to the fact that the orders of Judicial Registrar Johnston did not make the contact conditional, the fact that the contact was for two and a half hours and the children had not seen their mother for some time, the attitude of the husband was high-handed but more importantly, ignored the need for the children to have some relationship with their mother.
It was brought to the husband’s attention that at this time, the children had not seen their mother for almost a month and yet he pulled them out of school early on a day that she was to spend limited time with them. His response was that he did not pull them out of school early at all. This is an area in which his memory was clearly faulty as the very issue was documented by his own lawyers.
Notwithstanding the perceived concern about the wife’s use of alcohol and drugs, it is important to remember that orders were made on 14 December 2005 by Registrar Messner that each parent was restrained from consuming alcohol whilst the children were in their respective care and that order was later modified on 7 April 2006 by Lawrie J to restrain the parties from consuming alcohol to such an extent that their blood alcohol level would reach .05. At a time when the husband was asserting that the wife had breached the order by drinking beer, the wife entered a restaurant at which the husband and one of the children were dining and photographed him drinking red wine. It was put to the husband that he had acted hypocritically having regard to the fact that he was the one who had urged for the order to be made and had in fact accused the wife of breaching it. His response to the question that the photograph shows him as being shocked at being caught was that he was shocked about the fact that someone might take a photograph in the middle of a restaurant but then he added that he was concerned about the way that his wife was dressed because she “looked like a tramp”.
The question of the hypocrisy was pressed and the husband’s response was that he had not pursued the wife for breaching the order based on alcohol but rather because of the use of drugs. That was certainly not the only basis upon which the application was put before the Court. Alcohol featured prominently.

Private investigators

During the period before Christmas 2005, the husband engaged a number of private investigators as well as an employee of his own to keep the wife under surveillance. There can be little doubt about all of this because the husband ultimately filed several affidavits in the earlier proceedings, setting out just what these men had seen. The wife was unaware that she was being followed.
None of this evidence was led in the proceedings before me, nor could it have been having regard to the concession by the husband about his absence of concern.
The orders made in February 2006 directed the husband to cease surveillance of the wife. There can be little doubt that the husband engaged these people to follow the wife and watch her every move. He spent a huge sum of money on this exercise. What I found disconcerting was the husband’s involvement of the children in the exercise. Although the husband described Senior Counsel’s assertion about involving the children as “nonsense” and “crap”, I find that he spoke to the children on the telephone and obtained details of the wife’s movements which he passed on to these investigators. The notes of the investigators provide no alternative explanation.
Rather than complying with the order to cease surveillance, the husband instructed the agents to pursue Mr M. The husband had no qualms about this, fully knowing that it would indirectly involve surveillance of the wife. The husband’s actions give me little comfort that he will carry out what he is ordered to do.
The wife filed an application to review the orders of the Judicial Registrar made on 1 February 2006 limiting her time with the children.
Whilst waiting for the return date of the review, the husband filed an application seeking that any contact between the children and the wife pursuant to the orders made on 2 February 2006 be suspended. The wife sought that the position as outlined in the orders of Registrar Messner in December 2005 be reinstated with one exception.

The matter came before Lawrie J on 7 April 2006 and her Honour delivered an extempore judgment at the end of the day. Her Honour ordered that until further order, the children live with the husband from the conclusion of school on Thursday until the commencement of school on the following Monday for two weeks out of every three block period and for one night in the third week of the three week block. Her Honour also ordered that the children spend one half of the school holidays with the husband and that otherwise the children live with the mother at all other times.
Lawrie J also made other orders in relation to each parent being restrained from consuming alcohol to such an extent that their blood alcohol level would reach .05 or from consuming illicit substances whilst the children were in their care as well as the similar orders that were made by Registrar Messner in relation to denigration and discussion of proceedings.
Other orders were made including that the husband was to provide an itemised inventory of “particulars of all places at which the children proposed to stay” during a trip to Holland in April 2006.
The orders were specific about the provision of the itinerary. The reason behind that ought to be obvious. It transpires that the husband did provide an itinerary nominating the hotels at which he intended to stay but then did not follow it. When challenged about this, the husband said that he did the best that he could. In respect of the hotel in Amsterdam, his explanation for not staying at the hotel to which the itinerary referred, he said that the children did not want to stay and then “you don’t stay in Western Europe willy nilly”. When the question of the orders was drawn to his attention, his response was that they were simply a guideline. When pressed further about the fact that he did not tell the Court that, he added the guideline was subject to certain conditions. I am convinced that he did not see the dilemma that the orders were intended to overcome.
There were regular visits to the Court over the ensuing year involving procedural hearings as well as the substantive financial interlocutory disputes. On 8 December 2006 Cohen J made orders in relation to travel by the children in Europe between 28 December 2006 and 28 January 2007. The Court ordered that the children be returned to Australia by on or before 28 January 2007 and again an order was made that the husband provide an itemised inventory of the trips including “particulars of all places at which the children are to stay” prior to their departure.
On 22 December 2006, the husband filed proceedings seeking specific orders about the wife and children attending upon the single expert Dr M. Those proceedings were listed on 10 January 2007. On 9 January 2007, the husband filed a Form 4 Notice of Child Abuse or Family Violence alleging that the children had told him that they had been assaulted by the wife’s partner Mr M. The matter was listed for hearing on 24 January 2007 before Judicial Registrar Johnston who in turn listed the matter for hearing on the following day and on that day, the matter was listed before Le Poer Trench J. Orders were then made by his Honour that:
1.The mother […] is not to physically discipline or allow any other adult to physically discipline either of the children [David Kendling] born […] September 1996 and/or [Marc Kendling] born […] January 1999.
2.The mother is to be physically present or have another adult known to the children to be physically present with the children when they are in the presence of [Mr M].
3.The mother is restrained from allowing the children to be present at any residence or place at which she is aware or she suspects illicit drugs are being consumed.
Those proceedings have to be seen in the context of two important concessions to which I have already referred but are worth repeating:
(a)in cross-examination, the husband did not believe that the wife was using drugs or was not capable of caring for the children; and
(b)at the adjourned hearing on 20 July 2007, at the request of the wife, the husband consented to the second of the three orders referred to above being discharged.
In July 2007, I had to adjourn the proceeds part heard. Even after that, the parties had to return to court. There was a hearing before O’Ryan J in relation to financial matters at which the husband sought orders to enable him to travel with the children overseas. O’ Ryan J. was unable to hear the matter. As a consequence, the parties arranged for a telephone hearing before me. At that point in time, the husband had changed lawyers. I made a ruling that the husband could not travel overseas for the impending holidays having regard to the lack of confidence that I had about the evidence and about what had occurred historically.
The number of attendances at Court, in a very short space of time about the parenting issues, have had significant court attention. There are two troubling aspects to that. The first is that as will be seen from the various orders made based upon assertions in affidavits by the parties, the children’s lives have been subjected to considerable upheaval. The second is that notwithstanding the various assertions of illicit drug taking by the wife and incompetence as a parent, in just over 18 months all of those problems seem to have evaporated to the extent that the husband was content to have the children live with her at least on a week about basis.

Family violence and family violence order

In her affidavit of evidence, (paragraphs 53-62) the wife gave a number of examples of family violence. When cross-examined, it was put to the wife that the husband had never been violent towards her. She maintained her position. The wife was not specifically cross-examined about every one of the issues in the paragraphs to which I have referred and that was the subject of some comment by Senior Counsel for the wife in final address. It is not necessary in a trial for every incident alleged to be trawled through and challenged. The general proposition put to the wife was sufficient. However, the absence of specific cross-examination means that the evidence is generally untested and I am left to make findings based on what I have read and heard. The allegations of violence are important because in this case, there is a dispute about equal shared parental responsibility. Furthermore, s 60CC requires me to consider family violence. To some extent, it is not necessary for me to go into great detail because s 60CC also requires me to consider any family violence order and in this case, there is such an order in existence.
The wife alleged that in about 1998 after a dinner together, whilst she was expressing a different opinion from the husband he struck her with a closed fist in the face. Whatever was the basis behind such an incident, there can be no justification for a violent response. In circumstances where the evidence is not tested, I can only determine the matter on the balance of probabilities and as I have already said, if ever there is a dispute between the parties about the evidence, I accept the version of the wife. Accordingly, I accept that the husband did hit the wife in or about 1998 after that dinner incident.
The wife went on to say that on a number of occasions during the marriage, the husband had lashed out and kicked at her as she walked by in circumstances where she had “disobeyed” him in any matter. There were no dates, details or circumstances alleged and accordingly, I propose not to make any finding in respect of that particular allegation.
The wife alleged that in 2000, after a dinner out together, the husband began yelling at the wife as she was getting into the car. He reversed the car quickly and whilst her door was still open, the car door slammed into a pole shattering the window all over the wife. This is one example where the evidence was not tested but it has such a simple ring of reality about it that I accept the version of the wife.
Of some significance was an incident in 2001 in which the police were called during an argument between the husband and the wife. The wife alleged that the husband kicked and slapped her and pulled her hair. The husband was cross-examined about the attendance of the police at the family home and he indicated that there was one day during one year that they attended. He subsequently changed that position but it matters little. The husband’s position was that the attendance of the police was as a result of the inadvertent triggering of the house alarm. That was clearly not what the records of the police showed (Exhibit W18). The husband’s explanation was implausible. The police were clearly there as a result of a domestic incident. The explanation of the husband combined with the police records convinces me that the evidence of the wife is an accurate version of what occurred. I accept it.
At the end of 2002, whilst the parties were away overseas together, another incident occurred. According to the wife, the children were not present. The affidavit version of the wife was that the husband accused her of “smoking dope” and she said that she had denied it. When this incident was tested under cross-examination, it seems that it was much wider. The wife had expressed concern about an item that had been stolen or was missing from the home in circumstances where the husband’s extended family were present. Whatever precipitated the argument or discussion, the wife said that the husband pushed her on to the floor in the lounge room and started kicking her in the head. She made no reference in the affidavit to the injuries she received but gave evidence that she was quite severely injured. Like the other incidents of violence, this incident is shrouded in evidentiary mystery but again, I accept the version of the wife whose general evidence I find to be more believable.
The importance of this evidence is that in s 4 of the Act, family violence is defined as conduct whether threatened or actual that causes a person reasonably to fear for or be apprehensive about his or her personal well-being or safety. The provision goes on to provide for the reasonable person test. Having heard the whole of this case over a number of days and in particular, watched carefully the wife’s reaction to cross-examination, I accept that any reasonable person would fear for or be apprehensive about his or her personal well-being or safety based upon the evidence to which I have just referred.
On 8 November 2005, the wife obtained an interim apprehended violence order and despite litigation about that issue, the order still exists. It expires in March 2008.

Future living circumstances

The husband said that he had rented accommodation at BD. This is part of a development being undertaken by one of the entities with which the husband and his daughter are connected. He maintained that this was an address of some permanence and that he now had a project in the area which would require him to be in that area for between five and six years. The children were attending a local primary school and he proposed that that situation would continue and that he would drive them to school and collect them at the end of each day. He said that David had previously attended G School before the change to the local primary school and importantly, the children had told him that they wanted to go back to that School as well as to live at G rather than where they were currently living. The husband gave that as the reason for seeking orders for the children to attend G School. He continued to make the payments for the school fees to secure that enrolment. He was asked in cross-examination whether he had made inquiries about Marc attending G School in 2008 and he maintained that he had not made those specific inquiries or requests. He was shown file notes of that school which clearly indicate the contrary. Those inquiries were made only weeks prior to the commencement of this hearing. I do not accept he could have forgotten that issue notwithstanding his memory problems.
As long ago as 1998, the parties had contemplated K School as a future education facility for the children and signed an application to enrol. The school recently contacted the husband presumably to see whether the interest was still there and the husband contacted the wife. The wife showed no interest in sending the children to K School because she wanted to remain at the local primary school.
As an indication of the level of communication between the parties, notwithstanding the wife’s assertion that she was not interested in K School, the husband took David and arranged for him to participate in an examination process at the K School. One of the contentious issues in this case has been the wife’s assertion about the inappropriateness of the husband discussing various issues with the children. It came out in the cross-examination by the Independent Children’s Lawyer of the husband that he had to tell David that he would not be able to go to K School because he had not passed the test. Sadly none of these facts appear to have been discussed between husband and wife and the various events became a revelation in the hearing itself.
The husband had sent to the wife a bundle of documents that he had completed. He wanted her support for his application (notwithstanding her clear opposition) for David attending K School. On 9 March 2007, the husband wrote to the head of the preparatory school and indicated that if David was successful in the proposed entry exam, he wanted him to attend K School in 2008. The husband invited the school to confirm that approval so that it could be placed before this Court in these proceedings. Whilst there might not be anything sinister in that, the husband clearly knew the opposition of the wife. The applicant information form however shows that it was sought that David be considered as a boarder. It was suggested that the husband had altered the form to add the “boarder” clause after sending it to the wife. The husband’s response when asked whether he preferred David to be boarding rather than living with the wife was that he did not change the form but that somebody else had done so. Although no expert evidence from a handwriting person was given in respect to the document, the sequence of events and the correspondence attached to the copy of the form clearly suggests to me that it was the husband who changed the form. Notwithstanding the fact that he did not answer counsel’s question about his preference between the wife and boarding school, I am left with a very strong impression that he meant that he would have been quite comfortable with a child living in a boarding school environment rather than with his mother.
It is also disconcerting that the husband at this time told Dr M that he accepted as a fact that his children would continue to attend school in R. The only inference I can draw from the husband’s conduct is that he saw Dr M as a person to be manipulated so that he could achieve his own ends. His conduct was consistent with the view which the wife complained about as being the way the husband dominated her life. What is of concern is that the husband sees that way of doing things as normal and appropriate and for his children to follow. The evidence in this case is that the husband is a successful businessman who mixes with people such as members of parliament. He may be successful because of the attitude he has about achieving his preferred outcomes but a responsible parent needs to lead by example so that children become responsible adults in society.
On the same general topic, the husband was challenged about the fact that he was indicating an intention to stay in the rented accommodation. He was asked whether there was any record to show that he had changed his address to BD and his response was that he had changed that on the electoral roll. On the second day of cross-examination, the husband was invited to reconsider the evidence that he had given about changing his address on the electoral roll and his response was that he had “requested” that change. A web search of the electoral roll was shown to the husband and tendered as Exhibit W9 clearly indicating that at least from the record point of view, the husband had not changed his electoral address. This issue was not revisted in re-examination. The troubling aspect was his emphatic statement in the first place followed by his equivocal statement that he had “requested” the change.
Just what the husband’s position is about his future residence is therefore uncertain notwithstanding his indication about the project for the next five to six years. I do not accept that he was being honest when he told me that evidence of his future stable base at BD could be seen in the electoral roll.
On this issue, it was put to the husband that if he was successful in obtaining an order for the full time care of the children, he would effectively find a reason to move pointing out the desire to change schools. By virtue of the orders that I propose to make, that will not be a problem now but it is an example of how much reliance I can place on the word of the husband.

The photographs

As an indication of the lack of respect that the husband has for the wife, he referred in his evidence to the fact that during the period subsequent to 2000, when he asserted the wife would consume alcohol and become badly drunk, she removed her clothes and was verbally abusive towards him as a consequence of which he took photographs on two occasions for “record purposes”. The wife’s version was that she became aware of the photographs in early 2003 when the husband told her that not only would she not want their son to see the photographs but that it would be very embarrassing for the children if the photographs ended up in the newspapers. The wife said she was unaware of how or when the photographs were taken but that on numerous occasions, she requested the husband to return them but he indicated that he did not know where they were. The husband maintained that position when cross-examined. It was put to him that he did it to humiliate the wife and he denied that. When asked why he had taken the photographs, he said that after a long period of his wife being drugged out, totally binged out and drunk, he took them so that if ever he had to prove it was happening, he had that record. That explanation might have been plausible save that, in a letter written to the wife’s mother in November 2005 which is marked as Annexure H, the husband makes reference again to many people having a “field day” “particularly the papers” presumably if the proceedings continued. Leaving aside the question of respect that the husband might have for the wife, I do not accept that the husband took the photographs just for the record nor do I accept that they have simply vanished.

Other witnesses

MrS HM

Mrs HM swore an affidavit on 18 July 2007 setting out that her children were in classes at school with the Kendling children. She said the husband had not been to her home at R to deliver the boys. She was cross-examined by telephone. She confirmed that she met the husband when she introduced herself to him at a sporting event for Marc. She could not remember any situation where the boys told her at home that the husband was at Marc’s sporting event. It seems that the boys regularly dropped into her home to play with her children. It is also clear that Mrs HM had little to do with the husband and that her connection with the parties was with the wife.
The evidence of Mrs HM indicates that the husband’s weekend involvement in activities with the children involved in their sport and with their friends was limited.

DR M

Dr M swore an affidavit on 14 December 2006 (although his affidavit says 2007). He is the wife’s obstetrician and gynaecologist. He delivered Vivian. He confirmed the wife had told him during her pregnancy about her previous depression and “on occasion”, “overuse” of alcohol. He saw nothing of concern. He was cross-examined by counsel for the husband by telephone about alcohol use during the Vivan pregnancy and noted that the wife told him that she was not drinking. This evidence supports the wife’s case that in so far as that there were issues of alcohol and drug usage in the past, the problem had evaporated.

MR M

Mr M gave evidence. He had sworn an affidavit on 7 December 2006 and was required for cross-examination. In his affidavit, he set out the nature of his relationship with the wife and the details of his four children. He had been married and had a good working arrangement with his former wife about their children. The husband had given evidence about Mr M’s instability as one thing that concerned him being around David and Marc. I could not see anything that would give rise to any such concern.
Mr M’s children have successfully weathered the storm of their parents’ marriage breakdown. More importantly, those children have achieved distinction at their private school. As for his relationship with David and Marc, Mr M described the children as initially reserved but not so now. Mr M was questioned about his own developing relationship with his daughter Vivian. He sounded confident and positive that the wife was working responsibly with him in relation to parenting issues. He was not challenged about his relationship with Marc and David save that, given an opportunity to describe it, he said that David was a very independent boy who was quiet, analytical and not physical yet it was David who came and put his arm around Mr M. He described similar interests to David. In summary he said, David “likes my company”.
Mr M described Marc however as more outgoing but he too had expressed comfort with Mr M by calling him “Dad”. Rather than there being something sinister in all of that, Mr M was sufficiently concerned to get some professional advice about it.
Where Mr M and the wife differed was concerning their personal relationship. Whilst the wife said that the intimate relationship was ended albeit that they were still good friends, Mr M said that it was not “broken down” but rather changed. I saw nothing inconsistent in the evidence of the wife and Mr M.
Mr M came across as an intelligent, articulate and gentle man. He seems very much parent-focussed. I was impressed by him to the extent that I would have no concerns about David and Marc being around him and importantly that he would not be destructive of the relationship between the husband and the two children. I make these latter points because it is clear on the evidence that the attention of the husband on Mr M during the litigation was unnecessarily obsessive. In his affidavit evidence, Mr M set out all of the initial problems he encountered with David and Marc. I am satisfied that those issues have abated but that having regard to the husband’s nature and behaviour, it is not really surprising.
I further add that I am satisfied that the following incidents did occur. The first, on 29 March 2006, the husband yelled out to Mr M “I’ll fucking get you, you fucking cunt”. Secondly, that Mr M was told by David that he had been to prison and that such a statement sadly, could only have come from the husband. Thirdly, that on 22 May 2006, he did hear Marc take a telephone call from a person whom the child identified as his father and that Marc said that the family was going out to the movies.
One significant and serious traumatic drama for Mr M was that on the night to which I have just referred, he was seriously assaulted by a person or persons unknown. Whilst the insinuation was that the husband was responsible for orchestrating the assault, it is not necessary or possible in this case for me to make any such finding. While I may have an uncomfortable feeling about the sequence of events and even the husband’s propensity to orchestrate what occurred, the evidence does not permit such a finding.

Penelope Kendling

Penelope Kendling is the daughter of the husband and she gave evidence for him. She filed an affidavit and was required for cross-examination. In July 2007, I queried the necessity for her evidence having regard to the husband’s concession that he no longer had concerns about the wife’s parenting capacity but senior counsel representing the husband then, told me that her instructions were to call Ms Kendling. That statement was reiterated in October when senior counsel for the wife offered that the husband could withdraw that affidavit, a suggestion that was rejected.
Ms Kendling gave evidence initially in July and then her cross-examination continued in October. She is 29 years of age. She has tertiary qualifications and described herself as a managing director. She has an intense dislike of the wife. When pressed, she described the wife as a horrible person.
In the evidence in her affidavit, Ms Kendling said that she met the wife in September 1994 on her 16^th birthday in Europe. She said about eight months later, she returned to Australia and stayed in her father’s home for about one year. This was during an engagement period of the husband and the wife. She said that at about three to four months later, the wife took her to a nightclub. She asserted that the wife had been drinking alcohol and produced some tablets which she said the wife described as “Ecstasy”, offering to get her some. She went on to describe a party in 1997 when the wife was affected by alcohol and was seeking marijuana. She then made what I thought was a rather poignant comment:
When I have seen [the wife] become abusive she swears at people. She swears at anyone and everyone present using the word “fuck” in her speech continually.
As I have said, the relevance of this evidence was of little significance after the husband’s concession about the wife’s parenting and his view that the wife had changed her habits. However it soon became apparent that Ms Penelope Kendling was very much a supporter of the husband and I find that she has a similar personality to him.
In July 2007, when tested about having got her dates all wrong about the nightclub incident as well as where and with whom she was living in 1995, Ms Kendling said that she had “had enough” and left the witness box. As it now transpires, when she did so, she uttered the words “you fucking bitch” directed to the wife. Her evidence in October was that the wife “looked at her” and “murmured” the words “sucked in”. She described that as having provoked her into a response.
It is clear on the evidence that Ms Kendling was not in Australia at the time she alleged the nightclub incident occurred. She said that she was in error about the year but the more she was challenged, the less convincing she became. Her defence was that the incident occurred when her father and the wife were engaged. This evidence is now of so little probative value that it does not matter but I am convinced that Ms Kendling was neither honest nor objective.
Her credibility was further damaged because of the assertion in paragraph 20 of her affidavit to which I have referred in which she took what I could only conclude was the high moral ground. Her utterance towards the wife as she left the Court in July, even if provoked, highlights the statement about people in glass houses not throwing stones.
Having watched the wife over a number of days, I was able to determine something about her personality and demeanour. I have already described my observations. I cannot imagine the wife being anything less than shocked at Ms Kendling’s departure from the courtroom in July. In so far as it is necessary for me to do so, I find that the wife did not utter the words of provocation alleged.

The expert evidence

Dr M

Dr M is a child and family psychiatrist who was appointed as a single expert witness.
Dr M saw the children and the husband and wife in May 2006 and then again in July 2006. At that later time, he saw Mr M and the wife’s son JH.
Dr M then said that initially, both children had a strong alliance with the husband and wanted to predominately live with him which in effect also meant relocating to G and to attend G School. But then in July 2006, David said he wished to stay with the wife and not change schools.
Dr M found that there was a close interaction between the children and their significant attachment figures.
The evidence of Dr M was that the lives of the boys had been subjected to significant upheaval. They had been exposed to an ambivalent and conflictual relationship between the husband and the wife which had involved periods of parental separation and more importantly, direct exposure to parental conflict.
Dr M said that he found both parties genuine in expressing and maintaining their respective views. The wife emphasised a desire for a normal home life focussing on moral and social development while the husband desired that the children be well provided for materially, emotionally and educationally.
Dr M found neither party suffering from any psychiatric disorder but the husband was observed to have a narcissistic personality structure. That personality was consistent with the husband’s high profile and level of achievement in the local community. He found the husband highly frustrated and angry in his dealings with the wife whom he regarded as a threat to the integrity of his family and to the “empire” that he had created. Dr M expressed concern that the husband lacked the ability to critically evaluate his own actions and justified his own behaviour. Conversely, Dr M found the mother emotionally vulnerable and dependent. Most importantly, Dr M said that it was evident that both parents in their respective field had shown themselves to be competent and successful.
It was not surprising therefore that Dr M said that it was important for the children to be protected from the ongoing conflict between the parents and that they would benefit from maintaining the stable environment then provided by their mother in R. He found that at that stage, 2006, the developmental needs were being attended to by the wife.
Dr M saw the parties and the children again in February 2007 and this time, read numerous affidavits.
Dr M quoted the wife’s concerns about the husband’s capacity to parent the children. In October 2007, the wife’s position had not changed. Dr M described the husband as remaining “highly concerned with regard to his children’s welfare whilst in the mother’s care”. This it must be remembered, was February 2007.
Dr M noted that the husband had read the 2006 family assessment as a result of which he said the husband supported the current retention of the children at their school in R. I have already commented upon the inconsistency of the husband’s views as expressed to the Court and to Dr M only five months apart.
Most importantly, Dr M reported the husband’s emphasis of his “ongoing concerns” about the wife’s history of depression, and abuse of alcohol and marijuana. The husband told Dr M that the wife was using substances such as marijuana and “Ice” and his basis for those allegations was that that was what the children told him. Dr M was cross-examined about these particular issues having regard to the evidence that the husband had given and he described the husband as having a “contemptuous view of the wife”.
In February, David’s view had not changed. Dr M said that Marc was still strongly aligned to his father. As to their views, it was David who suggested a week-about arrangement and Marc agreed.
Interestingly, Dr M observed the interaction between the boys and the husband and in particular, the husband’s questioning of the children. That evidence clearly indicated that the subjects about which the husband was questioning the children had been well discussed between them.
Of the children with the wife, Dr M only said that they were “comfortable”. He said the boys were settled but very much aware of their parents’ wishes. It was those wishes that led to confusion as to what the children themselves wanted.
Dr M opined:
It remained my assessment that [the husband] had narcissistic personality traits which impacted upon his parenting capacity. His dominating approach to the children during the assessment process was of concern. This was consistent with the concerns raised by the mother both during the assessment and in her affidavit material.
Dr M was cross-examined by telephone. I found his evidence very helpful. For a shared care arrangement to be a viable option, Dr M said that conditions had to be met. It is worth setting them out. They were:
(a)geographic proximity;
(b)the ability to parent together along in a business-like or working relationship;
(c)arrangements had to child-focussed;
(d)the children had to be kept out of the middle;
(e)arrangements needed to focus on activities to be included in the parenting schedule;
(f)a commitment by all parties to make shared care work;
(g)some financial independence for each party;
(h)a degree of competence in relation to caring for the children.
When this check list was put to Dr M, he conceded that apart from the geographic proximity, none of the other indices was present.
As to David’s views and in respect of his level of maturity, Dr M said that there was a sense of confusion and uncertainty and that David would have like to have spent time in G because that was his understanding of where he had spent the time with his father. He reiterated that David had said that he wanted to spend equal time with each of the parents but David found that that was really confusing.
As for Marc’s view, Dr M opined that he was highly influenced by who the person was that was with him in the room and that he had been very strongly influenced by his father’s views and wishes.
About the husband’s parenting capacity, Dr M said that the husband had great difficulty setting any normal boundaries around what would be normally regarded as acceptable behaviour. He gave an example. If a child was struggling in a particular educational area, whilst concerned about that, rather than look at how the child might achieve differently, the husband’s response was to be critical of the wife, the teachers, and the education system. Dr M quoted the husband as using a words such as “confront” the educational staff. This in Dr M’s view, was an indication of the lack of normal guidance and limit-setting around normal day to day issues.
The lack of boundaries concerned Dr M because he said it did not allow the children to develop their own unique individual identity. The husband was highly demanding in terms of his expectations of the children’s language and behaviour requiring that they be consistent with his views and his approach. This is remarkably consistent with the wife’s description of the “unnatural relationship” she expressed concern about when she was cross-examined.
As for the wife, Dr M opined that she was approaching her parenting role of the children in a stable manner.
Dr M was questioned about simply continuing the existing shared care arrangements as had been previously set by the Court. His response was illuminating. It was:
The primary difficulty at present of substantial shared care is as indicated in an earlier line of questioning, that there is a lack of mutual respect, there is a lack of communication, there is a lack of the parties to problem-solve the issues as they arise, and the difficulty for children in the context of such dramatic circumstances is they continue to be placed in the middle between their parents.
Dr M was concerned about the parents providing basic stable environments for the children if the arrangement was to continue.
Dr M was asked about the wife’s proposal and he said that he was concerned about substantively reducing the time between the husband and the children because of their obsession to identify with him. That would cause them concern if they were unable to be with their father. That in turn would create a situation in which the father would become even more “idealised” in the eyes of the children. Dr M’s solution was one in which the children would be able to maintain their relationship with their father whilst at the same time limiting the problems of the checklist to which I have referred. His suggestion was to work on an alternate week basis with a Thursday through to Monday in one week and Thursday into Friday in the other week but most importantly of all, to end the proceedings.
Dr M was also questioned about the parental responsibility issue and in particular, the matters of parental decision making. He had little hesitation in saying that authority needed to be vested in one parent.
I found Dr M helpful. He was asked many questions about various hypothetical as well as philosophical issues but his fundamental premise was that for a shared parenting arrangement to be in the best interests of a child, the preponderance of parenting attributes has to favour respect for one another, a common approach to parenting and at least a modicum of communication. There were others mentioned, but these underpin the successful sharing regime. Sadly, they are lacking here and a shared parenting arrangement is not in the best interests of these children. Just what is in their best interest is a balancing of factors which will enable them to have a meaningful relationship with both parents whilst prosper educationally and socially. The matters set out in s 60B and s 60CC are an index of those factors that need to be considered.

Discussion about the law

The parties do not agree that there should be an order for equal shared parental responsibility. The wife seeks sole responsibility.
Section 61DA(1) says:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA)
Although in this case, I am asked to make orders both in respect of the allocation of parental responsibility and time, I propose firstly to deal with the allocation of responsibility. Because the parties do not agree on responsibility, the presumption applies.
Section 61DA(2) says:
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
On the evidence to which I have referred, I find that there has not only been family violence but that there has been a family violence order as well. I have already found that the family violence is such that the wife has a reasonable fear and an apprehension of family violence in the future.
In this case, I am satisfied that it is appropriate to rebut the presumption. However, even if that was not necessarily right, s 61DA(4) says:
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
On the evidence, I find it would not be in the best interests of these children for there to be an order for equal shared parental responsibility. Accordingly, the presumption could be said to be again rebutted.
Because the presumption has been rebutted, I am at large in relation to the determination of what is in the best interests of the children.
Section 65DAA relates to time as distinct from parental responsibility. It only applies if parents are to have equal shared parental responsibility pursuant to an order. Here, with the presumption rebutted, s 65DAA does not apply but it is a useful guide to enable the determination of the allocation of time between the parents.

For time to be equally shared, the Act looks at not only the best interests of the children but also what is practicable. Here, for the reasons I have set out, whilst it might be practicable in a geographic sense for the parents to have equal time, there are many reasons why it would not be practicable. Used in the sense of the words “reasonable”, “viable”, “achievable” and “possible”, it could not be said that equal time for these children is practicable. In that respect, I refer to the evidence of Dr M.
The section goes on to talk of substantial and significant time but again, it also refers to the best interest principle and practicability. The intention of parliament was that substantial and significant time include weekday routine and special events as well as leisure time. Leaving aside the issue of practicability, involvement in those weekday and special events, requires a modicum of civility and communication for a working arrangement not so much to work smoothly but to positively be in the best interests of the children. The evidence indicates that it is not in the best interests of these children for there to be time spent with their father in such a way where a substantial portion of time is shared with the wife. In those circumstances, the appropriate way to determine what parenting order should be made is to subjectively assess what is in the best interests of the children based upon the factors set out in s 60CC.
Section 60CC says:
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
The two primary considerations need to be considered first.
I find that the children do have a meaningful relationship with both parents. They benefit from the time they spend with their mother because they have a strong and loving relationship with her. In my view, they will benefit from spending time with their father but that benefit will be enhanced if the existing role is refined and confined to leisure time and a modest amount of time where the husband has to participate in their daily routine. That routine must include their sporting activities.
To reduce the time these children will spend with the husband will not diminish the benefits they receive from their relationship with him. If anything, the orders I propose will give some stability to the lives of the children. This is not about “fairness” as the children would see it but rather about what is best for their development and welfare. As Professor Parkinson[1] wrote:
…courts cannot by order create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible.
[1] Decision-making about the best interests of the child: the impact of the two tiers, (2006) 20 AJFL 2
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about things like self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be a part of a family albeit in two households where they have a feeling of being wanted and appreciated. All of these issues can be learned by the children from their father in the time that I propose that he spend with them. If he is constructive about the development of the relationship rather than destructive as I have found him to be until now, these children will turn out to be happy and responsible adults.
The second primary consideration relates to the protection of children from being embroiled in, or a part of, family violence. To a large extent, the orders I propose will reduce the opportunity for conflict.
The Act then sets out the additional considerations.
I have taken into account that the boys have fervently expressed their views. David’s position is confused but consistent. Marc’s is consistent and undeniably pointing to wanting to be more with his father. However, each view has to be considered in the context of what they have been through and how their parents have reacted and behaved. I am confident that neither child fully understands the adult concepts and in particular, those articulated by Dr M. Accordingly, I propose to take their views into account but they are not determinative of the parenting order issue.
The nature of the relationship between the children and the many other significant people in their lives complicates matters. Apart from their parents, the boys have siblings (in the wider meaning of that term) and Mr M. They are close to both parents but in my view, it is their mother who has been and I find, will be in the future, responsible for the daily needs. The relationship with their father is more associated with leisure activities and that is not only recognisable, it is also important. The children have a limited relationship with the husband’s adult children and that has been more of a social nature including dinners and holidays.
The children have a closeness to Vivian with whom they will grow. That is a relationship which is important to foster because they will learn skills and responsibilities about Vivian’s position in their lives. They have a good relationship with JH to whom they can turn as a role model. JH seems to have settled down into adulthood now that the trauma of the relationship between the husband and the wife is at an end.
For all practical purposes, the strongest relationship needs to be with their mother as she will have the predominant parenting role. All indicators are that since separation, despite the confusion created by changing court orders, the wife has fulfilled a responsible role in the care of the children.
The willingness and ability to encourage and facilitate the relationship with the other parent is problematical. I find that there is no evidence that the wife has been destructive of the relationship of the husband and the children. I cannot say the same about the husband.
I have dealt with the impact of these orders as a result of the changes to the children’s way of life. I find that the children, to use the wife’s words, “Will cope”.
There are no practical difficulties about the children spending time with either parent. The G/R issue is something to which the children have become accustomed but there is agreement that the children will spend time in R on the night before they go to school. The children will also attend sporting commitments.
Each parent has the capacity to provide for the material needs of the children but on the evidence, I find that the wife has a much better capacity to deal with the children’s emotional and intellectual needs.
The children have to learn to adapt to the ways of their parents if those ways are unlikely to change. The husband’s lifestyle is one of affluence and competitiveness. The children will watch and enjoy the fruits of that but they also need to balance that against the simpler things of life such as spending time together as a family doing creative things, playing together and learning about earning respect and being responsible. Those characteristics came through the wife’s evidence as her way of raising the children. I have commented about the attitude of Mr M with whom I was impressed.
The orders I propose will hopefully give impetus to the simpler things of life.
The attitude of the parents as demonstrated has been set out above. In my view, this issue strongly favours the wife being made the person predominately responsible for the care of the children.
I have dealt with the issues of family violence and need say no more.
This is a case where the children have been unfortunately embroiled in an unnecessary struggle between their parents. It has clearly adversely affected them. It is important to finalise things for their sake and I propose therefore to make final orders.
I have taken into account all of the matters in s 60CC(4) and 4(A). I shall say no more about those matters other than what I have already set out above.
In my view, it is in the best interests of the children that these orders be made.

Parental responsiblity

For all of the findings I have made, it is obvious that the parties could not reach consensus on issues important for the long term benefit of the children. It was said by the husband that notwithstanding the problems, things got done and decisions had been made. I do not agree. In this case, with the husband’s dominating personality and his autocratic approach to decision-making, I cannot conceive there will ever be discussion and agreement about education and sadly, health. The husband has high ambitions for his children which are commendable but there is more to education than simply handing the responsibility for the care of children to teachers. The husband’s attitude about the teachers as conveyed by Dr M, epitomises the problem. The husband needs to be involved as well as informed but I propose that the wife have the control or the organisation of the children’s future education. That will not be without restrictions and those will be reflected in the orders that I propose to make to ensure that the husband is at least aware of what is going on and can participate in decision-making.
The same applies in respect of health matters. I have not referred to an incident which gave me serious concern. It is appropriate that I do raise it now. Whilst the children were overseas with the husband pursuant to an order made on 8 December 2006, Marc underwent an operation to remove his appendix. This occurred on 14 January 2007. It was the child David who telephoned the wife to tell her of the operation having been undertaken. The husband saw it as appropriate for that to occur rather than for he to explain what had happened. Thankfully the operation was a success. The inability of the husband to communicate to the wife such a significant problem leads me to think that he does not value her role in significant issue such as health. It is more than just a lack of communication.
In respect of health however, there is a second matter that convinces me to give the wife sole responsibility for health issues. It is clear on the evidence that the parties have differing views about treatment of health issues. The wife’s view is unashamedly orthodox and in so far as she obtains medication, I accept that it travels with the children even though I have reservations about the fact that she will not speak to the husband to explain what the medication is all about. To some extent that criticism can be explained away by the fact that the wife has the reasonable apprehension about how the husband will adversely react. However, I accept on the evidence that the husband’s approach to medical matters is that he is more likely to attend upon a pharmacist. Whilst there is nothing necessarily wrong with that, when cross-examined, the wife indicated that it is that the pharmacist is a colleague of the husband that gives rise to her concern about the objective and professional treatment of the children in health matters. Whilst that may also be unfair to the pharmacist, it leaves me with the clear picture that the parties do not have a unified approach to the treatment of even the simplest of illness of the children and on that basis, having regard to the fact that the wife will have the greater responsibility for the care of the children on a daily basis, I propose to give her the responsibility for taking the children to medical appointments but on the basis that she provides the necessary information to the husband. I also propose that the husband not obtain any treatment for the children whilst they are in his care without first consulting the wife. Difficult as that consultation will be having regard to the current relationship between the parties, it is clear that the husband will have significant period of time with the children in his care and accordingly, he will have to learn to communicate with the wife.
Accordingly, I propose to set out in the orders the division of responsibility in relation to those matters but otherwise, the parties will share the responsibilities for other major long term decisions in relation to the lives of the children. That may not be all that significant because issues such as religion do not appear prominent in the lives of these children.

I certify that the preceding Two Hundred and Fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 21 December 2007

[2007] FamCA 1530

21 December 2007

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Family Law

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Jurisdiction

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Injunction

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