Knowles and Knowles

[2011] FMCAfam 604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KNOWLES & KNOWLES [2011] FMCAfam 604

FAMILY LAW – Father seeking more time with two children – mother uncontested primary parent – mother resistant to children spending more time with the father – sustained allegations of poor parenting by father – mother’s parenting strives for perfection – impossible for father to address all of the mother’s unfolding and continuing concerns – children enjoy time with the father – best interests of children to spend time during the week and on week-ends with the father – each parent has much to offer the children – mother fails to acknowledge the father’s positive attributes and searches for complaints.

Family Law Act 1975, ss.13C, 60CC, 61 DA, 65DA, 65M

Mazorski and Albright [2007] FamCA 520
MRR v GR [2010] HCA 4

Applicant: MS KNOWLES

Respondent: MR KNOWLES

File Number: BRC 6396 of 2008

Judgment of: Willis FM

Hearing dates: 2 & 3 December 2010

Date of Last Submission: 3 December 2010

Delivered at: Cairns

Delivered on: 1 August 2011

REPRESENTATION

Counsel for the Applicant: Ms Frizelle

Solicitors for the Applicant: Sempre Vero Lawyers

Solicitors for the Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms McArdle

Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland

ORDERS

1. That all previous Orders be discharged.

2. That except as otherwise stated, each of the parties are to have equal shared parental responsibility for the major long term issues of each of [X] born [in] 2003 and [Y] born [in] 2004 (“the children”) including but not limited to:

   (a)A child’s education (both current and future);

   (b)A child’s religious and cultural upbringing;

   (c)A child’s health;

   (d)A child’s name; and

   (e)Changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with each parent. 

3. The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They will inform the other parent about the decision to be made;

   (b)They will consult with each other by providing the details of any proposal, and the intended date the proposal is to be implemented, they have to the other parent in writing at least 3 months prior to the date when the proposal is to be implemented (unless the proposal relates to an acute or life threatening illness or injury when the time frame will be dictated by the medical needs of the child;

   (c)If the other parent does not agree with the initial proposal, they are to provide details of any proposed variations in writing within seven (7) days to the first parent;

   (d)If the other parent responds to the initial proposal with variations, the first parent will respond to the variation in writing within seven (7) days advising whether they agree or otherwise;

   (e)They will make a genuine effort to come to a joint decision prior to the date the initial proposal is due to be implemented.  

4. The process to be used for resolving disputes about the terms or operation of these Orders will be as follows:

   (a)The parents will consult with a Family Dispute Resolution Practitioner (“FDRP”) to assist with resolving any dispute or reaching agreement about changes to be made;

   (b)The parents will pay the costs of the FDRP equally;

   (c)In the event the parents cannot agree on a Family Dispute Resolution Practitioner, the mother will nominate three practitioners and advise in writing details of their fees, experience and availability;

   (d)The father shall choose one of the listed practitioners within seven (7) days of receipt of the list;

   (e)If the father fails to choose in the time provided, then the mother may choose one. 

5. If a parent does not respond to the other parent’s proposal in writing or does not engage in the dispute resolution process referred to in Orders 3 or 4 hereof, then the parent making the proposal is at liberty to implement the proposal at expiration of end of the 3 month period referred to in Order 3.

6. Each of the parents have sole parental responsibility for decisions regarding the day to day care, welfare and development of the children for such periods that each child lives with or spend time with her or him respectively. 

7. That the children live with the mother.

8. That the children spend time with and communicate with their father at all times as agreed between the parties but unless otherwise agreed then as follows:

   (a)During school terms:

   (i)On each alternate weekend from after school on Friday to the commencement of school on Monday (such time to be extended to commence after school on Thursday or to conclude at the commencement of school on Tuesday if either the Friday or the Monday is a public holiday or non-school day); and

   (ii)On each alternate Wednesday, being the Wednesday immediately following the weekend time referred to in Order 8 a) i) above, from after school until the commencement of school on the next day.  

   (b)For a period of one week in each of the children’s Easter, June/July and September/October school holidays each year, for the first half of each such school holiday period in 2011 and each alternate year thereafter, and for the second half of each such school holiday period in 2012 and each alternate year thereafter;

   (c)For the Christmas school holiday period December 2011/January 2012;

   (i)From 9am on Sunday immediately following the end of school term to 5pm on the following Saturday;

   (ii)From 9am on 26 December 2011 to 5pm on the following Saturday; and

   (iii)From 9am on Sunday 8 January 2012 to 5pm on the following Saturday. 

   (d)Commencing with the children’s Christmas school holiday period in 2012, for the second half of that school holiday period and in each even numbered year thereafter, and for the first half of each Christmas school holiday period in each odd numbered year thereafter. 

   (e)Thereafter, notwithstanding any above Order save for the provisions set out in above Orders 8 d), during the Christmas period each year (Christmas Eve to Boxing Day), the children will spend time:

   (i)With the father from 4pm Christmas Eve until 4pm Christmas Day in odd numbered years, and will be returned by the father to spend time with the mother from 4pm Christmas Day until 4pm Boxing Day in those years; and

   (ii)With the father from 4pm Christmas Day until 4pm Boxing Day in even numbered years, and will be returned by the father to spend time with the mother from 4pm Christmas Eve until 4pm Christmas Day in those years. 

   (f)On each of the children’s birthdays (and on [Z]’s birthday) with both children, from 3pm to 6pm, if they are not otherwise with the father;

   (g)On Father’s Day if the children are not otherwise with the father, from 9am to 5pm;

   (h)By telephone during school terms each Wednesday that the children are not in the father’s care between 6:30pm and 7:00pm, and once each Wednesday during school holidays that the children are with the mother, with the mother to facilitate this call;

   (i)In addition to the set times, by telephone at any time as either child reasonably requests with the mother to facilitate this telephone call;

   (j)By telephone on the father’s birthday between 6:30pm and 7:00pm.  

9. Notwithstanding Order 8 above, the children are to spend the following time and communicate with their mother as agreed between the parties and in particular:

   (a)On Mother’s Day the children will spend time with the mother between 9am and 5pm;

   (b)On the children’s birthdays, with both children, between 3pm and 6pm;

   (c)Communication by telephone on the mother’s birthday between 6:30pm and 7pm; and

   (d)Communication by telephone once each Wednesday during school holidays (facilitated by the father) when the children are with the father. Additionally, at any time either child reasonably requests to ring the mother, the father will facilitate this phone call. 

10. For the purposes of these Orders, school holidays for the children are deemed to commence after school on the last day of the children’s attendances at school in the outgoing Term, and that school holidays for the children are deemed to end at 5pm on the final Sunday prior to which the children’s attendances are required at school for the incoming Term.   

11. That the number of nights in a school holiday period for the children be used to calculate half of the school holidays, and that if an uneven number of nights, then the father retain that night in the first instance, with the parents thereafter alternating the retention of that uneven night, and that any changeovers halfway during the school holidays occur at 5pm.

12. That the father’s time with the children pursuant to Order 8(a)(i) above recommence after a school holiday period for the children on the first weekend after a new school Term begins in the case that the children have spent time with the father for the first half of the holiday period, and on the second weekend after a new school Term has begun in the case that the children have spent time with the father for the second half of the holiday period.

13. For the purposes of communication by telephone between either parent and the children, the parent with whom the children are living or spending time at the time the phone call is to be made is to ensure the children make the call to the other party and each parent is to provide the children with privacy during the course of the phone call and a speaker phone facility is not to be used in either household. 

14. Unless otherwise agreed, all changeovers are to take place to and from the children’s school. The mother is to absent herself from the handover area when the children are being collected or delivered by the father. If changeover is to occur on a non-school day, all changeovers are to occur at [shopping centre omitted] on the Gold Coast. 

15. Each party is to:

    (a)Keep the other parent informed in writing at all times of their residential address and landline telephone contact number and a mobile telephone number to enable compliance with these Orders and provide details of any changes to these details within 24 hours of such change.

    (b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners that treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children;

    (c)Inform the other parent as soon as reasonably practicable of any medical condition (excluding common childhood or other common illnesses such as coughs or colds), significant health issue or illness suffered by the children and this Order authorises any treating medical practitioner to release the children’s medical information to the other parent; and

16. Inform the other parent any medical emergency involving the children (or either of them) immediately by SMS or phone call to the Parent’s mobile phone number and include information as to where the children can be located at that time.

17. Each party is to confirm by email message to the other any appointment for the children with any specialist medical practitioner, counsellor or other health practitioner, along with the name and contact details, including a contact telephone number for the practitioner, at least 14 days prior to appointment, unless it is an emergency appointment in which case this information will be given as soon as possible but prior to the appointment taking place (excluding appointments relating to common childhood or other common illnesses such as coughs or colds), noting the restraints in Order 29. 

18. Each parent is at liberty to regularly contact the child’s treating medical practitioners to discuss the children’s medical needs and any prescribed treatment at least once every 6 months and in any event within 2 business days of any appointment with the practitioner notified under Order 16 hereof. 

19. Each parent is to ensure that they comply with the treatment prescribed for either of the children, including the administration of any prescribed medication, whilst the children are in their respective care.

20. Each parent hereby authorises any school attended by the children from time to time to give to the other parent information about the children’s educational progress and other school related activities and supply each parent with copies of school reports, photographs, certificates and awards obtained by the children (at the cost of requesting party), and each parent is hereby authorised to attend at student functions at any school attended by the children.  Each parent is to do all acts and things to ensure that the other parent is included on all school enrolments as the child’s other parent and emergency contact. 

21. During the time the children are with either parent that parent will:

    (a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

    (b)Speak of the other parent respectfully; and

    (c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other do no denigrate or insult the other parent in the hearing or presence of the children.

22. Each parent will use their best endeavours to ensure that, whilst the children are in their respective care, the children are not exposed to any tv program, DVD or video game that is not listed as age appropriate for each of the children.

Make up time

1. In the event that make up time is necessary, the make up time is to be taken at the first available opportunity (being the next weekend or the following Wednesday as the case may be) and the time missed is to be made up precisely in the manner in which it was to occur pursuant to these Orders, unless agreed otherwise. 

Photographs

1. That neither party make arrangements for the sale of any photographs of the children or either parent without the written consent of the other parent.

2. That within 48 hours of the date of these Orders, the father remove all photographs of the children and the mother and other members of both the mother’s immediate and extended family from the websites in his control, including but not limited to those on the websites [omitted] and from the date of these Orders the father is to cease from placing any further such photos on such websites and further, that the father cease selling such photos through the websites over which he exercises control.   

Counselling

1. For a period of up to 12 months, each party is to do all acts and things to ensure that they attend counselling sessions with Relationships Australia on the Gold Coast for the purposes of ongoing joint or separate counselling, as recommended by the said service, to assist the parents with their communication and the development of their skills to learn to co-operate and collaborate in their role as parents for the children, in accordance with these Orders.

2. That leave is thereby given to the Independent Children’s Lawyer to publish to Relationships Australia the Family Report by Mr C filed on 19 November 2010, for the purposes of assisting that service with the provision of counselling as set out in above Order 26.

3. That the Independent Children’s Lawyer be and is hereby discharged.

4. Each party is restrained from enabling the children to attend at a counsellor, psychologist or psychiatrist without the prior written agreement of the other parent.

5. If there are any applications for costs thrown away on a previous hearing (or any other Applications) the Applicant is to file and serve written submissions within 21 days of today’s date, and the Respondent is to file and serve written submissions within 21 days of being served.  Each party should indicate precisely the Orders sought, including the quantum.  The matter will be determined on the papers unless the parties are otherwise notified.   

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 6396 of 2008

MS KNOWLES

Applicant

And

MR KNOWLES

Respondent

REASONS FOR JUDGMENT

1. The parents in this matter separated in August 2006.

2. They have two beautiful children, [Y] born [in] 2004 aged 6 and [X] born [in] 2003, almost 8.  The mother is a [occupation omitted] and the father is a [occupation omitted].

3. They are unable to agree about the future parenting arrangements of [Y] and [X], though to their credit, they are able to agree on some of the arrangements. 

4. After negotiating for a large part of the day on the first day of trial, the parties appeared and informed the Court that they had agreement on some issues and disagreement on others.  After hearing the issues involved and having further discussion with the parties, the issues narrowed somewhat.

5. Very helpfully, the Independent Children’s Lawyer (ICL) Counsel

   
   

   Ms McArdle prepared overnight a draft Order containing the matters agreed (“the draft Consent Order”) and a further set of individual documents setting out the ICL’s draft Orders for the specific issues which remain (“the specific issues documents”). 

6. There is at the outset, no disagreement that the children live with the mother, who has been their uncontested primary parent post separation and the parties each seek an Order for equal shared parental responsibility.

7. The father is seeking time with the children each alternate weekend from Friday after school to the return of school on Monday. The mother is opposed to that and wishes the children to be returned Sunday afternoon. 

8. The father seeks an Order that he spend time with the children in the off week, from after school one day to before school the next day.  The mother is opposed to that and seeks an Order in similar terms to the current arrangement and that is that the children spend one afternoon each week with the father from after school until 6.30.

9. The mother was represented by Miss Frizelle of Counsel who submits that the overnight periods as sought by the father will represent too much of a hurdle for the youngest child [Y] who misses his mum.

   
   

   Ms Frizelle submits that the evidence points to [Y] being a young and sensitive child, and that there are many issues about the fathers house which may present too much of a challenge for the [Y]. Miss Frizelle points to the number of children who would live in the father’s house, being 5 given that the father’s partner has 3 children and points to what the father himself has said: That at times the household is chaotic.

   
   

   Miss Frizzelle contends that the children going to and from school from the father’s house will require the father to have the children in their proper uniforms, with the correct shoes and hats.  The mother is concerned that if the children take up a musical instrument again and the lesson is on the father’s day, the instrument will have to be remembered. The mother has criticisms of aspects of the father’s parenting and the level of financial support provided for the children of $22.00 per week as the father is assessed to pay to the mother. The mother pays for the children’s private school fees and that the father makes no contribution and the mother queries how it is that the father could even support the children for the extra nights given his net income is $5,000.00 per annum from his [omitted] business and that he receives support from Centrelink. 

10. It is the mother’s position that the children’s interests would be advanced by seeing the father one afternoon each week after school, but returning to their mother at 6.30.  Although this requires the parents to meet at handovers, both afterschool and on Sunday afternoons,  the mother rejects the father’s position that there is benefit to the parties of not having to meet at handovers, and instead doing handovers to and from school, given their on going communication difficulties.  The mother contends that that there is no evidence that the children have ever raised with the report writer that they were aware of the conflict and further that it would be a positive experience for the children to see their parents getting along at handovers.

1. The parties are agreed that they share the holiday periods, however they disagree as to how that should occur over the Christmas school holidays.  The mother seeks an Order that the children spend the first week of the holidays with the father, then spend the last two weeks of the school holiday period with the father.  She says that the children will miss out on going to church for too many Saturdays in a row if the father is to have one half taken as one period.  The mother says that the children have friends and are part of the Seventh Day Adventist church community and that she would like to see them continue this during the holidays as much as possible.

2. The father, who was self represented, submits that that it is time the children were given the opportunity to have sufficient time with him to experience a meaningful relationship with him and that should involve the children spending from Friday to Monday with him each alternate weekend.  He submits that it would benefit both himself and the children if he was given the opportunity to go with the children to and from school and to be properly involved in that part of their lives. The father submits that whilst he considers the mother to be an excellent mother, he believes that the children would benefit from being able to experience life in his house where they will be given opportunities to make their own decisions and live in a routine with more fluidity about the day to day arrangements. 

3. Much time was spent at the trial on the issue of photographs and whether or not photographs of the children ought to be placed on public web sites.  The mother is strongly opposed to the father placing photographs of the children on any public web site or the father’s own business web gallery used to promote his [omitted] business. The father resists a restraint on him placing the children’s photographs on the web saying that there are opportunities for the children which will be missed if he has this restraint.  Whilst the father has proposed that the parties could deal with this issue on a case by case basis, he concedes and acknowledges that the mother is totally opposed to his proposals at this time and will likely object to all his future proposals in this regard.

4. The Independent Children’s Lawyer whilst not initially supporting the extra time sought by the father, submits through her Counsel

   
   

   Ms McCardle, that it is a matter for the Court and that there are benefits in the children spending time with the father as outlined by him.

5. The position of the ICL in relation to the photographs is an order that neither parent, without the other parent’s express permission be permitted to put photographs of the children on any website and that if any photographs have a been placed on any website, that the relevant parent make immediate arrangements for their removal.

Background

1. At the time of trial the mother is aged 41 and the father is aged 39.

2. They lived together from 1994 to August 2006, a period of 12 years. They married and lived on the Gold Coast, moved to Canberra and returned to the Gold Coast by the end of 2007.

3. The mother is a [occupation omitted]. [Extended family details omitted]. The mother has increased working from 2 days a week to four days a week. She [occupation and locations omitted]. This results in [Y] being in care at least two days a week and up to five days a week.   

4. The father has a [omitted] degree and has worked or majored in [omitted].  To do that work, the parties moved to Canberra.  They left Canberra and returned to the Gold Coast.  Since that time the father hasn’t been able to obtain work in [omitted].  He says he needs to be living in Canberra for that to occur.

5. It seems to be that the children have by Consent always lived with the mother post separation.

6. The children spending time with the father has been a slow process post separation and included a period of supervision.  This appears to have been requested due to the father’s alleged poor parenting skills and issues about which the mother expressed or held fears in relation to the father’s parenting.  The mother refers to incidents of the father falling asleep with his arm over a doona under which one of the children as a baby was sleeping, which the mother refers to as the father almost suffocating the child.  The father denies any knowledge of such an incident. Other incidents range from poor hygiene, inadequate bedding, lack of feeding the children properly or enough, inappropriate discipline including hitting [Y] over the head once, too much television and DVD watching and inappropriate DVD selection, inability to acknowledge when one child needs hydration, losing shoes, hitting children on the legs. The mother also alleges past family violence on two occasions, which is denied by the father

7. At the time of trial, the father had moved through long periods of supervision, attended as requested to anger management, to progressing to day visits only unsupervised and finally to seeing the children on an unsupervised basis from Friday to Sunday each alternate week-end and for one afternoon each week for three hours after school.  The father has completed a Focus on Kids course as has the mother. The mother in the past requested changes to the place of handover from one shop to another shop at a shopping centre, and a change of day for the mid week contact.  The mother has filed a contravention application and then discontinued it.

8. The mother lives alone with the children and is working, it seems, full time.  At the time of trial she had finished [work omitted] over two weeks and told the Court that she would not let this demand of her employment occur again. 

9. The father has re-partnered. His partner, Ms W, has three children of her own, aged approximately 4, 9 and 13.  The father and Ms W now have a baby of their own, [Z] born [in] 2010.  Ms W’s children live with the father and herself as part of their family circle.  The eldest goes to high school and the two younger children go to the same school as the father’s children.  These children see their father about three days a fortnight as organised between Ms. W and her children’s father.

The evidence

1. The mother and father each gave evidence and were cross examined. 

2. The mother relied on the material in her list of documents shown in the case outline, noting that the affidavits which were obtained by the ICL were removed from that list. The mother did not require the father’s partner for cross examination.

3. The father relied on his material as read into the record being his affidavit filed on 29 October 2010 which included an annexure of his partner Ms. W. No objection was taken to the annexure and Ms. W was not required for cross examination.

4. The Independent Children’s Lawyer relied on the material set out in the case outline.

5. At three different stages, a single expert Mr C, a psychologist with Legal Aid with many years experience, prepared a comprehensive Family Report.  Those three reports were all relied on at the trial by the ICL and referred to by the mother and father. Mr C was cross examined. 

6. I understand that the matter was set for trial on a previous occasion and that the trial did not proceed.  This matter has had a long procedural history as set out in the ICL’s chronology which I adopt.  The issue of the costs thrown away on that occasion is yet to be determined and I have made directions in relation to the filing of written submissions.

7. I have read all of the material of each of the parties and noted their submissions.

8. Statements of facts in these reasons will represent findings, unless otherwise stated.

The Witnesses

The mother

1. The mother presented as stressed and fragile on the day of trial.  She wept quietly and frequently during her cross examination.  When expressing her current opposition to the father having in the past placed photographs on the web of herself in a dishevelled state following child birth and not removing them when she requested him to, she cried deeply.  The mother said she was very stressed, not only with the litigation, but with the strain of having to [occupation omitted] over the past two weeks.  Later in the day when the mother was recalled to the witness box, she retained her composure for most of the time.  Mr C, the family consultant, said that the mother was not as tearful or upset during the interviews with himself.

2. In my view the mother is an overly anxious parent, thoroughly conscientious and a most loving mother who is attempting to cater for every need the children might have.  In addition to having the financial burden of supporting the children and providing them with a home and organising almost every aspect of their day to day lives, she is attempting to solely provide a private school education for each child and has taken on extra work to assist in coping with the fees.

3. Her routine with the children is structured and controlled and most aspects of their day to day routine show that thought is given to the smallest details of the children’s care. All contingencies are contemplated and planned for and I had the impression it was difficult for the mother to entrust the micro detail of the children’s day to day care to the father, let alone anything more serious.  The mother’s oral evidence when contemplating what difficulties would occur if the children stayed overnight during the week with the father on a week night, included the necessity of the father to have to re-iron a school uniform that she would have packed and already ironed.  This level of minute attention to every aspect of the children’s lives was indicative of the mother’s expectations of the father’s parenting.  I am not sure if the mother holds a similar expectation of doctors and teachers and others who are involved in the care of the children but my overwhelming impression of the mother is one of her being a perfectionist in every aspect of every task that she approaches to do with mothering the children.  I have no doubt she is a committed [occupation omitted] with absolute dedication to her task and it seems she has worked very long hours this year. 

4. Her answers to the hurdles preventing the children from having a mid week overnight with the father during the school week, indicated to me that her fears or speculations were more imagined than real.  Her initial answer that if [Y] had to take a violin to school coming directly from the father’s house, would mean that he would have to have the violin sitting on his desk all day, was not only inaccurate, it gave me the impression that the mother was consciously or unconsciously, thinking up fanciful reasons why this could not occur, instead of sensibly working out there was no difference where the violin would be stored regardless of whose home the child had come from that morning.  The mother being a [occupation omitted] herself, I considered this answer was quite non-sensical. This was the overarching theme of the mother’s approach to the children’s time with their father. The mother was inclined to put up imagined obstacles instead of solutions, to highlight the negative and ignore the positives. 

5. It seemed to me that the mother’s anxieties come to the fore when the children are unwell.  She regards the children having conjunctivitis together with a sore throat and temperature as being seriously ill.  The mother called a private doctor to do a home visit on three occasions over three days when the children were unwell with conjunctivitis and sore throats.  The mother did not have confidence in her own thermometer and said that she trusted the doctor’s thermometer better than her digital one and that she had their temperatures taken each time she called the doctor through a service that did home visits. 

6. The mother is striving to be the perfect parent and it seems to me that the seriousness and intensity with which the children’s care is regarded, for issues both significant and insignificant, places the mother under much pressure in her own parenting role.

7. Whilst the mother presented as devoted to the children, I considered that her vigilance to make sure every aspect of the children’s life happened according to the way she wished it to happen, resulted in her being very controlling of the children’s lives and hyper critical of the father’s endeavours to parent.  Having read the mother’s material and watched her in the witness box I was left with the strong impression that as far as the mother is concerned, her parenting standards are the gold standard, and that unless those standards are adhered to with precision, problems will ensue both in her accepting anything less and in her being able to allow the children to accept the differences. 

The Father

1. The father was self-represented and in my view, he clearly and articulately presented his case.  The father has tertiary qualifications, being [omitted], and he has worked in [omitted].  I consider that overall he has been patient in his desire to achieve regular unsupervised and meaningful time with the children.  I consider that he gave his evidence honestly and openly, though on one or two occasions he showed signs of arrogance in his answers to Counsel.  

2. The father appears to have a more relaxed attitude to parenting than the mother, which is not a criticism. I do not regard him as being neglectful.  He holds an interest in artistic pursuits and has his own style of parenting.  The father left me with the impression that he was genuinely motivated to spend time with his children and that he has much to offer the children in giving them opportunities to express themselves in ways that the mother would not.  I accept that he is keen to involve the children as part of a blended family with his new partner and their young son [Z].

3. His material shows the level of antagonism that exists between himself and the mother and how he feels hard done by through the mother’s conduct towards him.  I consider that largely he has had reason to be frustrated, however, from time to time such as with his recurring lateness, I consider the father was intentionally thoughtless and failed to show even basic courtesy to the mother who was waiting at the handover point. I accept that the father genuinely believes that the mother is an excellent mother and that his criticisms are restricted to the mother attempting to control the time the children spend with him. I believe the father has much to offer the children. 

The Report Writer

1. The recommendations of the Family Report were:

   a)Mr and Ms Knowles have equal joint parental responsibility.

   b)[X] and [Y] live with Ms Knowles.

   c)[X] and [Y] spent time with their father every second weekend from after school Friday until commencement of school Monday morning.

   d)[X] and [Y] spent time with their father on one occasion during the school week each fortnight either shortly before or shortly after the non-visitation weekend, from after school until the commencement of school the following morning.

   e)[X] and [Y] spend time with their Father during school holiday periods, but initially for no more than seven continuous days.

   f)Further arrangements be made in consideration of Christmas, Mother’s day, Father’s Day and the children’s birthdays.

   g)The parents jointly attend counselling for the purposes of improving the level of communication, co-operation and collaboration in their parenting roles.

2. I note the mother’s Affidavit prepared in response to Mr C’s report listing out her opposing views.  I note with concern the suggestion of possible alignment in the mother/son relationship and that Mr C is not able to discount the possibility that [Y] is developing an enmeshed relationship with his mother. [1]I have found the observations of Mr C very helpful. 

   [1] Paragraphs 92 onwards of the Family Report 19 November 2010. 

The Law

1. This application is governed by the provisions of Part V11 of the Family Law Act1975 (Cth). In making parenting Orders, the best interests of the child are paramount. The primary considerations embody the principle of the Act, the two primary considerations in s.60CC(2) being that the Court must make Orders which enable these children to have a meaningful relationship with both parents whilst also protecting them from violence, abuse, neglect or expose to family violence. Mazorski and Albright [2007] FamCA 520.

2. Section 61DA contains a presumption of equal shared parental responsibility which can be rebutted in the event of evidence of child abuse or family violence. When I make Orders for equal shared parental responsibility, I must consider equal time and then significant and substantial time pursuant to s.65DAA. I also need to consider the issues referred to in s.65DAA(5) of best interests and reasonably practicability in regard to equal time and/or significant and substantial time. MRR v GRR [2010] HCA 4.

3. This matter is about time spent with between the children and the father.  I note that neither parent is seeking an Order for equal time. I will now turn to consider the relevant s.60CC factors.

Section 60CC – (3)  (a) Any views expressed by the child and any factors such as the child’s maturity and level of understanding that the court thinks are relevant to the weight it should give to the child’s views.

1. The parties’ daughter [X] is aged 8 is described as co-operative and confident. She has expressed a view to the report writer that in terms of having more or less time with either parent, she likes the time she is currently having. The report writer Mr C said that this could mean that the child does not wish to take sides in this dispute and would prefer not to express any other view.  I note in the Family Report of

   
   

   30 January 2009[2] that [X] and [Y] both made statements that suggested they appeared to reflect their mother’s position at that time which included [X] saying that overnight contact was opposed because “mummy said it wasn’t okay” and [Y] added a comment at that stage about their father that, “He was naughty because he came to our house with the supervisor”.  Mr C said that in his view the children were well and truly aware of the ongoing conflict of the parties. This seems to be reflected in the comments of [X] when she said that her parents were getting  “A little bit better” and that made her life easier, and that  “they don’t usually argue any more”[3] 

   [2] Paragraph 73 and 74.

   [3] Paragraph 53, Family report filed 19/11/10.

2. The children have a strong attachment to their mother according to the oral evidence of Mr C.  It seems to me that it is likely that the daughter is not wishing to upset either parent and in particular the mother.

3. I do not regard [X]’s views as expressing anything other than she is content with the arrangements and I do not assume that such a statement means that the child does not wish to spend any more time with the father.  I am also mindful that at aged 8, the issues regarding the benefits in the long term of spending more time with the father would not be upper most in her mind or more likely, even understood

4. The children’s time with the father is currently limited.  Three hours on an afternoon and an alternate weekend Friday to Sunday.  

5. In relation to the parties’ young son [Y], he is 6 and any wishes he expressed would receive the appropriate weight of a pre-schooler. I am mindful that it is the view of Mr C that when [Y] is away from his mother, he misses her.  [Y] has told the report writer that he misses his mother when he is at school. Whilst he says he doesn’t cry when he goes to school, he sometimes does cry when he is thinking of going away for the week-end to the father’s. This was confirmed by [X] who said he is sometimes upset, but overall she thought her brother did have fun at the father’s.  [Y] is a little boy who was only around two years of age when the parties separated.  Mr C described him as being restless and somewhat sullen.  He has always lived with his mother with whom he has a strong attachment and he has had limited time with his father.  When he goes to school or away from his mother, he misses her.

   
   

   I accept that.

1. Given all of the evidence, I do not consider that because the child misses his mother, that it is axiomatic that he does not like being at his father’s.  As Mr C opined, the child may simply be missing his mother due to seeing less of her, given her heavy work commitments and that he is spending less time with her. 

Section 60 CC (3) (b) Nature of relationship with each of the parents and other significant persons (including grandparents).

1. I have no doubt at all that these two young children are much loved by their parents and that such love is returned. 

2. The independent expert evidence is that the children have a close and loving relationship with the mother and father.  They have always lived with their mother and it is to be expected that they each have a strong attachment with her. 

3. [Y] has a good relationship with his father, and he is most strongly attached to his mother.  Mr C gave evidence that [Y] has a strong attachment to his mother, as he is at an age where is able to have multiple attachments, as opposed to a younger child who may have a primary attachment.  Mr C considered that [Y] was a fragile and sensitive boy who realizes the conflict that occurs and he is more troubled by the conflict at his age.

4. [Y] has spent time with the father pursuant to the Orders and that has progressed. [Y] misses his mother when he is away from her whether it is at pre-school or contemplating heading off for a weekend with the father.  Mr C also expressed what he called a “hunch” that there may be some enmeshment in the relationship between [Y] and his mother.  The basis of this concern is reflected in the final Family Report.  I concur with Mr C’s concerns[4]. 

   [4] Page 12, Family Report November 2010. 

5. The mother does not believe that this is the case. She says as a [occupation omitted] she was aware of the concept and meaning of enmeshment. She admits that in her own private counselling, enmeshment with [Y] had been raised by her counsellor. 

6. Mr C considered that the mother was an intelligent and competent mother and that she would likely follow up on this if it truly started to manifest itself. The father was concerned regarding possible enmeshment and raised his concern that orders should be made for an assessment of this to occur.  Mr C considered that a course, such as Children First might appropriate in the circumstances, however, unless both parents wanted the children to engage, an order to do so would be ineffective as there would be resistance from one parent.  I agree with Mr C, that it is important for [Y] in the long term to consolidate his relationship with his father now.

7. Whilst I do not consider that there is sufficient evidence that the mother is in an enmeshed relationship with the [Y] at present, there are however early indications of this.  It is therefore in the contemplation of the Report Writer and the mother’s own counsellor.  I am not sure whether the mother can be objective enough to acknowledge or concede that this may be occurring, if it was.

8. With this issue in mind and the other factors referred to elsewhere in these reasons, I regard the prospect of [Y] spending more time with his father than he currently is as being in his long term best interests.

9. [Y] misses his mum when he is at preschool and when he is heading off to his father’s for a weekend, each alternate week.  There is no suggestion by the mother that she will reduce his time at pre-school and in fact she has through 2010 increased his time away from her.  If the mother considers that [Y] is missing her, noting that he is already living with her and she organises his day to day arrangements for that time, it seems to me that the mother can herself change the amount of time he is in care and away from her if she regards his fretting for her as anything more than a loving sensitive little boy in a separated family might be feeling. The mother has taken on extra work, she admits to being exhausted by the quantity of work she did in the weeks leading up to her trial. The mother also commented to the report writer that she has had a very busy year and at times has felt overwhelmed with her work, but nonetheless enjoys her [occupation omitted][5]. 

   [5] Family Report 19/11/10  paragraph 16.

10. There is no evidence that spending extra time with the father as proposed will be detrimental.  

11. Given that at this stage the enmeshment is a “hunch” I do not intend to make Orders in that regard.  I would, however, strongly encourage both parents to agree to the children attending the course recommended.  I consider it would benefit the children if the parties agreed.  If they don’t agree, I am mindful of Mr C’s evidence, that, in the absence of a mutual desire to send the children to this particular course, it is likely to create further difficulties.  The mother has not attended joint counselling as recommended in the past.  The court hopes that the mother will consider the wisdom of the advice on this occasion, given that her own counsellor has also contemplated the issue of enmeshment.

12. I consider that it is important for [Y] to be able to spend significant and substantial time with his own father as a male role model in his life and to enable his relationship with his father to properly and fully develop.  Whilst the mother has extended family including it seems at least two brothers, I consider that it is important for [Y] to be exposed to the presence and influence of his own father.  Whilst his maternal relatives no doubt enhance his life, I do not regard the mother’s relatives as in any way being substitutes for [Y]’s own father.

13. The father and his new partner have a child of their union, [Z].  [Z] is a half sibling for each of the children.  The family Consultant Mr C, has observed that [X] is extremely fond of her younger brother and that she enjoys the time spent with him.  I consider the children’s relationship with their little half brother to be a significant issue and that it is in the children’s best interests to be able to spend time nurturing that relationship.

14. The children do not live with [Z], and extending their opportunity to stay over at their father’s house for the mid week and the Sunday nights allows the children to be a part of their blended family including particularly [Z].  That sibling relationship is a life long relationship and it is important that the children be given an opportunity to bond with him in the setting of a normal family circle, having meals, bath time and waking up in the morning.  I consider it is important for [Y] to be able to spend regular and more lengthy periods with his little brother as well as [X]. This is an advantage to the proposal of the father.

Section 60 CC (3) (c) The willingness of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. Whilst I consider the mother is intelligent and articulate and highly motivated to provide every opportunity for the children, I consider that she has a blind spot when it comes to their relationship with their father.  It was clear from her testimony that she regarded most other aspects of the children’s social, religious, extra curricular activities and educational lives as having a higher priority than their relationship with the father.  Telling the father that the children are not well enough to come for the week-end on 21, 22 and 23 August 2010 is an example of the mother determining that the children were too tired or unwell to see the father, but well enough to continue with their planned social activities with the mother.  On this occasion, though the children were not well enough to attend the father’s, they were well enough for the mother to proceed to hold a fund raising party to raise funds for [Y]’s sponsored child on the Sunday. 

2. It seemed to me that the mother regarded the children’s time with the father as something akin to a visit with a relative and that it has to be scheduled in subject to the arrangements she made for herself and the children’s other activities and commitments.  I had the impression that the mother and children were a tight knit family unit and that the father was very much on the outer.  This was particularly evident when the father has encountered difficulties trying to organise make up time for days missed with the children when they have been unwell according to the mother.  The mother’s explanations that the children are tired need a rest and weren’t rested enough to go the fathers, gave me the impression that the time with the father has the lowest priority of all their activities.  The mother seems to regard make up time as something that she arbitrarily will decide if and when it is to be offered to the father.  This aspect of the mother’s parent has been cavalier and high handed and shows a lack of acknowledgment of the children’s right to spend time with their father and for the obligations imposed upon her by the Orders of this Court.  From the evidence available to me, the mother’s explanation that the children were too tired to go to their father’s because they had been doing a range of other activities and had some more to go, would in no way meet the definition of having a “reasonable excuse” for not complying with Court Orders.  The mother should be on notice, that section 65M places obligations on her as a primary parent to ensure that the children are ready to attend and to actively ensure that they attend pursuant to Orders.  The father has recounted an occasion where [Y] has been placed on the phone to say that he doesn’t want to come to the father’s.  This behaviour on the part of the mother is entirely inappropriate.  Not only is the child being placed into the midst of a dispute, it also contravenes her legal obligations under parenting orders.

3. The mother’s suggestion that the children’s annual Christmas holiday with the father should be broken up to one week, then three weeks with her, then two weeks with the father on the basis that it would allow the children to spend several Saturday afternoons doing craft and other activities with other children from the church and would mean they would not have to be away from their church community for too long, overlooks the opportunity and benefits that the children would gain from having an unbroken holiday time with their own father and half brother and their blended family consisting of the father’s partner and her three children.  I do however note Mr C’s recommendation to break up a long block period initially to week on/week off for the next Christmas break to accommodate [Y] missing his mother. 

4. I am troubled by the mother’s inability to appreciate and genuinely accept the significance to the children of spending time with their father. I consider that the mother down played the children’s understanding that their father is a car thief.  The mother appeared to me in the witness box to distance herself from any responsibility on her part that a child or the children had gained the impression that because the father retained the family car at separation that the father was in the child’s eye, a car thief.  The mother was aware that the children knew the father had taken the car at separation. She was unable to offer any evidence that she had attempted to disabuse the children of believing or having the impression or belief they might hold that the father had done the wrong thing by the mother or their family unit.  Generally I was not satisfied that the mother has been actively and positively promoting the children’s relationship with the father.  To the contrary, I consider that the mother makes statements to the effect that she appreciates the children have a right to enjoy a relationship with the father, however, given her conduct and ongoing criticisms of the father’s parenting, I regard those statements as rather shallow.  I note also Mr C held concerns in relation to the mother making statements about appreciating the father’s role in the life of the children, but there being little evidence to back it up.  I agree with this observation. 

5. As to the father promoting the mother’s relationship with the children, I saw no evidence that he has attempted to undermine the mother’s primary role of parenting the children or their relationship with the mother nor did I consider that he would do so in the future.

6. It was clear to me that the father was frustrated at what he perceived to be the mother’s attempts to be obstructionist at times in relation to the children spending time with him, and over various issue that he considered her behaviour to be contradictory such as allowing the children to engaged in a modelling assignment for a sports clothes brochure distributed in the UK, without consultation with him, whilst objecting to him placing their photographs on his own website to advertise his [business omitted].  I considered though that the father had kept the adult issues and his frustrations with the mother’s conduct between the adults and that he had not attempted to engage the children directly or indirectly in the parents’ difficulties in dealing with each other.

7. I am satisfied that the father’s time with the children will not be used by him to undermine their relationship with the mother and that he is and always has been willing to promote their relationship with their mother.  In addition I consider that the father’s partner Ms. W has played a fairly diplomatic role in relation to her commencing a relationship with the father and herself and her children living with the father, and at times, with [X] and [Y].  Ms. W appears to have stayed out of the dispute between the parents and to acknowledge the role of the mother in the lives of the children.

Section 60 CC (3) (d) Likely effect of any changes in the child’s circumstances, including the likely effect on the chid of any separation from either or his parents or any other child or person (including grandparent)

Section 60CC (3) (e) 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

1. The Orders sought by the mother represent no change.

2. The father’s proposal means that the children will spend an extension of the time with their father.  I have already commented on the opportunities which these extra occasions give rise to.  I accept that the mother and father will have to be vigilant to ensure whatever the children require on the weekday they are to go to school from the fathers travels with them.  This will occur only one weekday per fortnight and ought not be a barrier to overnight time with the father.  Musical instruments (if the children take up music again) can travel with children to and from school regardless of what house they come from or go to.  I am surprised that given the mother is a [occupation omitted]. 

3. In relation to the mid week time, the father whilst seeking an Order for overnight, is abandoning the weekly visit.  In this respect, his Orders mean fewer handovers each week and in addition they reduce the number of occasions that the parents are physically in each other’s presence as the handovers will occur to and from school.

4. The father wishes to change handovers to occur at school, as part of his overall plan.  In my view, given the difficulties with handovers and the simmering tension that appears to occur at handovers due to lateness or other parental issues which have been evident during this litigation, the reduction of frequency and interpersonal contact at changeovers is a positive benefit for the children as they are exposed to less conflict, as is each of the parents.  The mother has referred to numerous occasions in her affidavit material where she has been left waiting, where the father has been ten minutes to 50 minutes late and where she has been left sitting wasting time waiting for the father.  I note that the hand over locations have had to be changed to accommodate the mother’s wishes.  There is evidence of much tension including an incident where the mother and father had a short struggle over a bag, at handover. The mother says she generally takes someone with her as she feels the tension.

5. I am surprised that the mother, therefore does, not support handovers happening to and from school.  The suggestion that it would be good for the children to see the mother and father “getting on” at handovers as the basis for continuing to have the parties coming into contact with each other is quite naïve, given the ongoing difficulties that have happened with late arrivals and ongoing underlying tension. My impression is that the mother’s resistance is more to do with not wanting the children to go overnight with the father.  Apart from the actual place of handovers, the parties each have their own transport and live on the Gold Coast and there are no other issues of difficulty or expense. 

6. In relation to the Christmas holidays, during the Christmas holidays the children may miss some Saturdays with their church mates who also engage in the afternoon craft activities. To the extent that this represents a change, I do not regard it as a negative change as the time is to be replaced spending holiday time with their father, half sibling [Z] and blended family.  The children are entitled to spend an extended holiday with each of their parents, and the mother is at liberty to take the children to Church or church craft activities whenever she chooses whilst the children are in her care, which is a significant period.

7. In final submissions the mother through her Counsel suggested for the first time that Orders could be made that provided for [Y] to spend time with the father as the father requests, but in 3 years time.  The mother’s case was not conducted on this basis.  The only other reference in the trial to this was a question directed to the Family Consultant Mr C, who said that he did not know if things would be any different or better for [Y] in three years, and in fact, they may well be worse as his position may have become very entrenched.

8. This proposal was not suggested to the father.  It was simply raised after 7 pm during final submissions on the last day of a two day trial.  Whilst I appreciate that from time to time, the position of a litigant may change during a trial, that is generally done based on the evidence as it unfolds and often takes the form of abandoning a position and adopting a position recommended by either another party, or as recommended by an expert.  The mother’s proposal represents a significant shift from her amended proposal.  I do not regard the last ditch proposal of the mother, raised in the manner in which it was, as in anyway being an appropriate way of conducting litigation or providing procedural fairness to the other parties, in this case the ICL and the father.

9. In any event, there is no evidence at all to support this position of the mother and I am not minded to make Orders based on what might be a position in some arbitrary time in the future- in this case 3 years time.  It is pure speculation.  I intend to deal with the evidence before me at the time of trial, not speculate about what the situation might be in three years time.

Section 60CC 3(f) - The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

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

1. The mother has demonstrated an ability to provide shelter and food and to take primary responsibility for every aspect of the children’s lives including their education.  I accept that on a day to day basis of providing for the children, she is a most capable and dedicated parent.

2. The father does not criticise her for her parenting skills per se. The father is critical of the unwillingness of the mother to value his role as a parent and to allow and foster a meaningful relationship between the children and himself.  Those are the issues which trouble me and I refer to and rely on my earlier comments about the mother being an overly anxious and controlling parent.

1. In my view the mother lacks capacity in as much as she fails to accept the significance of the children having a meaningful relationship with the father.  In my view she has demonstrated little understanding there is value and benefit in the children being exposed to the father, in being parented by him, or in being exposed to a different style of parenting. The father, in my view, has much to offer the children and their ability to properly experience a different household and all the experiences that holds and that the father can offer including different parenting techniques are in my view all positive factors for the children. 

2. I make the observation that the mother’s case and her material consists of a litany of complaints about the father.  The issues about which the mother complains are canvassed in great detail.  I have seen little to no positive opinion of the father expressed by the mother. I saw begrudging acknowledgment by the mother that the children enjoy their time with the father.  Much criticism is made of incidents that have occurred whilst the children are with the father such as the children being out on a bushwalk with the father and family, and [Y] falling behind the others.  On the father’s evidence, as soon as he realized, the father spoke to him sternly and it seems gave him some sort of light smack across the head or flick.  This was explained by each of the children to the report writer.  As explained by the children, I do not consider that incident was worthy of the mother’s subsequent report to the police for investigation.

3. It seemed to me, that according to the children’s account, it was a fairly typical event that might happen on an outing with a parent frustrated with a child’s behaviour: A parent concerned to ensure that the parental message was understood.  The father’s conduct was not unlawful. The mother, however, describes the incident as the child being hit in the head and as I have already noted, she reported the matter to the police.  The mother’s behaviour in my view is a gross over-reaction.  The mother has seized on that incident and shown no acknowledgment that the father was providing a positive experience for the children, taking them out bushwalking.  I find the mother’s attempts to involve the police in such an incident to be quite troubling. The incident happened in March 2009, and there is no sign of the mother moving on.  It is still referred to in her affidavit material as “unresolved”[6].  Her conduct adds to my disquiet about the consequences of her being an overly anxious parent.  Similarly, the mother’s decision to take the children to the emergency section of the hospital when the children came home with temporary children’s tattoos on them, purchased from a toy department, is in my view quite an over reaction. 

   [6] Affidavit 16/111/10 paragraph 50.

4. It is clear from the litany of accusations on all manner of subjects from diet to television, DVDs, a messy house, inappropriate bedding and hygiene issues that the mother is closely questioning the children.  It brings into focus the evidence of Mr C who noted that when parents separate, children have a tendency to want to please each of the parents and that sometimes things are said which are exaggerated to one or other of the parents, in the belief that that is what the parent wants to hear.  I am troubled that the mother is putting the children under pressure asking for information.

5. I had the impression that the mother is looking for the negative aspects of the father’s parenting rather than the positives.

6. The father has been the subject of criticism by the mother for his failure to provide for the children financially. I accept that his child support assessment is low based on his current income and that the amount he pays may be in accordance with his income, but that is little benefit to the mother who is left to financially support the children primarily.

7. There was no evidence, though, that the father was deliberately avoiding his financial responsibilities, rather, he had been unable to work in his chosen field on the Gold Coast and had resorted to setting up his own business.  The father said he knew he would have to make amends to try and change his income. I certainly hope that this is possible. Although the father said he has never agreed to private school and that it was the mother’s wish that the children attend such a school, I make the observation that the current level of financial support, even without private school which is the mother’s preference, would be woefully inadequate to support the children without the mother paying the balance of the financial needs for the children.  No doubt the added cost of private schooling is a further burden for the mother.

8. As to the criticism of the father that he has not been vigilant in re-hydrating one child, I regard any lack of knowledge on the part of the father as being more indicative of not being informed of such matters in a meaningful way than any lack of awareness on his part.  The mother’s evidence that she attached a letter from a specialist to an affidavit, and therefore had told the father of the child’s condition, is to my mind, totally unsatisfactory.  The mother said she had sent an earlier letter to the father and he denied ever reading or receiving such a letter.  Even if she had sent such a letter, I do not regard that as in any way properly engaging in sharing this important information with the father and ensuring that he understands the alleged requirements of rehydrating. 

9. The mother gave evidence of an impending health issue regarding the blood cells of [X].  The mother said she gave the father the letter she had received the day before, to the father at court on the morning of the hearing.

10. Each of the parties in this matter seeks an Order for equal shared parental responsibility.  Issues to do with the children’s long term medical matters ought to be understood by each parent and it is vital to the wellbeing of the children that this is so.  I do not regard sending letters as fulfilling that requirement.  I find it curious that the mother is so highly critical of the father for not complying with either medications or treatment, yet she seems to deliberately withhold such information from him and then uses his lack of knowledge as a platform for further criticism.

11. I note also the mother has not included the father’s identity or existence in any way on the enrolment forms for the children’s school. [Extended family information omitted]. Any school that the children attends needs to be aware that the father has legal standing in relation to these children and I intend to make an Order that the mother and father each inform any school or day care facility that the children attend, of the identity of the other parent and include the other parent as an emergency contact.  It seems that she has taken the children to psychologists without informing the father or seeking his prior approval.  This conduct is dismissive of the father’s role in the lives of the children.  I intend to make an order preventing either parent from taking the children to a counsellor psychologist or any mental health professional, without the prior written agreement of the other party.

12. I am troubled by what I consider to be a passive resistance on behalf of the mother in relation to genuinely encouraging and facilitating a relationship between the children and father.  The mother has numerous complaints and what I consider to be artificial barriers to the children spending time with the father.  Considerations of whether uniforms will be re-ironed if the children spend overnight with the father during the week, would be such an example.  The mother has no confidence in the father’s ability to parent, and in my view, does not really intend for him to be genuinely involved with the children.  She has failed to include him in various decisions, has made appointments with psychologists and informed him after the event, he is not mentioned in the current school records at all.  I consider that it is therefore important that the children spend regular and meaningful time with the father, to enable the children to be properly fathered by him and for the relationship between the children and father to be consolidated and maintained.

13. I intend to make Orders that the parties properly engage with the medical practitioners, with authorities by each to enable each to attend and obtain information.  Ideally, appointments with specialists will be attended jointly.  This will save the parents arguing about what the specialist said which I am sure would be highly likely in the event that the mother and father attended separately.  This is particularly important if there are to be ongoing issues with the children’s health.

Section 60CC 3(g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. There have been no submissions advanced under this consideration. 

Section 60CC 3 (h) - If the child is an Aboriginal child or a Torres Strait Islander child – not applicable

Section 60 CC (2) (j) Any family violence  involving the child or a member of the child’s family: s.60 CC (2) (k) any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

1. The mother obtained a temporary order in September 2009 for the father to be of good behaviour.  The Order came up for renewal I am told, and the father says he missed the Court date, and the Order was renewed.  It expires in 14 September 2011.

2. I am not aware of the basis of the protection order (check the material, maybe its in there).

3. The ICL submits that there is nothing in the history of family violence that ought to affect the Orders being sought by the father.  Certainly the mother does not raise an issue in this regard, and it has not prevented the parties from meeting up each week as currently provided.  The mother’s evidence as to going to handovers with a friend was to provide a witness to what the father might allege and that she did not trust the father.  It was not because she felt she needed protection:  She said that she used to feel fear in the presence of the father but she does not any longer.

4. I consider that the issue of family violence, whilst not diminishing its importance, is largely historical and not at a level which would impact on the time that the children spend with the father.  The mother alleges that she once “gently poked” the father and that he kicked her.  He denies it.  There is another allegation that is alleged to have occurred back when the mother said she had a curette due to complications after [Y] was born, and that the husband kicked her in the stomach. This also is denied.  In my view, the mother is seeking to exaggerate the significance of alleged Domestic Violence in the past. 

5. I note that the fact of the DVO is evidence of their difficult relationship and the lack of harmony in their contact with each other.  To that extent, it supports my view that the less these parties see of each other, the more likely it is to introduce more calm to the handovers for the children.

Section 60CC3 (l) - Whether to make Orders least likely to lead to further litigation

1. The mother’s proposed Order will likely require further litigation, as she proposes yet another step before moving to a mid-week overnight.  Similarly, the half hearted suggestion at the end of submissions that the father’s Orders could be implemented in three years time would likely lead to further litigation, either now or then.  If each of the parties comply with these Orders in spirit as well as according to their legal obligations, it would be advantageous for these children to have litigation between their parents brought to an end.  This will require the mother to pay serious regard to Mr C’s lingering concern about enmeshment between herself and [Y], regardless of what Orders are made.

Section 60 CC (4) Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent including - make decisions about major long term issues - spend time with the child - fulfilled or failed to fulfil the parent’s obligation to maintain the child

1. I have already touched on the level of financial support, or lack of it, provided by the father.  It is to be hoped that the father can take steps to improve his level of financial support for the children.

2. There is little or no evidence to suggest that the father has been uninterested in perusing time with the children.  The mother has clearly assumed the role of primary carer and in that role has, almost solely, it seems, assumed responsibility for arranging all of the children’s appointments, medical and otherwise.  I do not regard the father’s limited involvement in these matters as any indication that he has not been willing to do so. Rather, I consider that his lack of involvement has occurred through the mother being unwilling to include the father or unable to engage with him meaningfully. 

3. The mother has made requests for the father to have anger management training, which he has done, to have supervision by a family friend of a long period which he has complied with:  And generally to adopt a slow and pragmatic approach to the children spending more time with him, which I consider he had done. He, like the mother, has attended at the Post Orders Parenting Program.  The father has at times tried to make arrangements to swap weekends to fit in with the nature of his work, which is sometimes [omitted] and similar events.  This has led to much negotiations and frustration for the mother and the father.

4. The father needs to appreciate that the mother works as well and the weekends are valuable to her.  Any changes to the Orders of the Court need mutual agreement.  I do not intend to make complicated Orders about either party having a right to change Orders, as was initially suggested, as to do so, in my view, will simply lead to further difficulties between the parties with the children being in the centre of another dispute and this is not in their best interests. 

Make-up time

1. In relation to the make up of time issue, I intend to make Orders simply that if the time is missed due to illness, the father is to be offered the next weekend available.  It is not up to the mother to unilaterally decide what if any make up contact will occur, and when it will occur.  A missed weekend is to be made up at the next earliest opportunity unless agreed between the parties otherwise.

2. In making this Order I am not in any way condoning the practice of the mother deciding that the children are too tired to attend. The mother as the primary parent has obligations under the Family Law Act and those obligations are explained fully in the material attached to the Orders pursuant to s.65M of the Act. A failure to comply with these obligations will result in contravention proceedings at which time the onus is on the mother to provide a reasonable excuse. I suggest the mother take her obligations seriously. If the children are tired, without anything further, they ought to be delivered to the father and the fact of their tiredness also conveyed, so that the father can structure their activities accordingly. The mother should also ensure that the children’s activities prior to spending time with their father are no so consuming or exhausting so as to leave the children not in an appropriate state to live with their father.

3. I do not intend to make Orders for what might happen if either parent wishes to change their weekend for their own purposes.  This can only occur if both parents agree.  There is no inherent right for the mother or father to change the other’s weekends and simply notify the other.  Similarly I have explained to the parties that if children are sick and don’t get to see the father on the weekend, if that weekend is not made up forthwith, the children are missing out on time with the father.  That make up time should be organised without delay.

4. In terms of the children being sick, I remind the mother that the decision that the children ought not go to their father’s pursuant to the Orders must not be taken lightly.  The father needs to exercise responsibility and develop the skills to manage the children whilst they have ordinary child hood ailments.  If the children are so ill that they are not to be moved from their home, I suggest that medical evidence be provided to this effect.  The mother’s past conduct in deciding that the children are too tired to spend time with their father, and then engaging the children in more activities planned by her, is entirely unacceptable.  A persistence of this cavalier attitude by the mother will surely result in contravention proceedings which are quasi criminal and can have serious ramifications for parents flouting their obligations.

Photographs on the world wide web

1. As to the issue regarding photography, I intend to make Orders restraining the father from posting images of the children on any public web site including his own [omitted] business websites. I find it compelling evidence that if the father were to put images of any other child on his web site, he would require the permission of the parents of the child.  If the father’s position is adopted, the mother it seems loses this privilege to object, simply because the father is also a [occupation omitted]. I also consider that the issue of children being photographed and their images being put on the internet for the public at large to view is an issue.  There are differing views amongst parents and the community.  I accept that the mother is genuinely concerned about the potential of the children being identified or something sinister occurring as a result of their photographs being posted on either the father’s own websites or web galleries, and the public web sites such as flickr. I do not consider that the mother’s request is unreasonable.  As to the father’s contention that there are benefits or advantages that the children might miss out on if a restraint was issued in this regard, there is no evidence before me of any advantages that would outweigh the anxiety and distress caused to the mother in the father doing so.

2. As to the father’s suggestion that it is a matter that the parties could negotiate on a case by case basis, I accept the submission of

   
   

   Ms McArdle for the ICL that this is an order that would inevitably lead to a further litigation, given the mother’s strongly held belief against the proposal of the father.

Equal shared parental Responsibility

Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

1. Section 61DA of the Act states that the court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. Section 61DA (2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Section 61DA (4) states that 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.

2. I am satisfied that the presumption of equal shared parental responsibility is not rebutted.  As to whether such an Order is in the children’s best interests, each of the parties ask for an Order for Equal shared parental responsibility which is a factor I will consider in determining whether or not to make such an Order.

3. I am mindful of Mr M’s evidence that the Order may have only symbolic significance but he considers in this family dynamic, the symbolism of equal parental responsibility is valuable.

1. Given the evidence of the mother organising the children to attend upon a psychologist without reference to the father and of the mother failing to properly inform the father of medical information in relation to the child, together with my concern that the mother does not properly acknowledge the role of the father in the children’s lives, and the mother’s heightened anxiety, it seems to me that an order for equal shared parental responsibility will ensure that the children have the benefit of their father being able to participate in the decision making for issues to do with the long term care welfare and development of these children.  There is no evidence of child abuse or family violence that would satisfy me that an Order for equal shared parental responsibility ought not to be made. 

2. I therefore intend to make an Order for equal shared parental responsibility. 

3. Once I intend to make such an order, s.65DAA stipulates that a Court must consider whether the child spending equal time with each of the parents would be in the best interests of the children and consider whether the children spending equal time with each of the parents is reasonably practicable. If each of these matters is answered in the affirmative, only then can I consider making an order to provide for the children to spend equal time with each of the parents. Pursuant to s.65DAA (2) if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time would be in the best interests of the children and reasonably practicable.  Only if those two matters are answered in the affirmative, should an order for significant and substantial time be ordered.

4. Significant and substantial time will be taken to include both days that fall on weekends and holidays and days that do not fall on weekends or holidays and the time that the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and parent, as indicated in s.65DAA (3).

5. Section 65DAA (5) states that in determining whether it is reasonably practicable for the child to spend equal time, or substantial and significant time with each of the parents the court must have regard to (a) how far apart the parents live from each other; and (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents and (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact that an arrangement of that kind would have on the child and such other matters as the court considers relevant.  MRR v GR 2010 HCA 4.

6. In this matter neither party seeks an order for equal time.  Given the position of the parties,  the history of this matter with the children’s time with the father slowly unfolding, the age of the children, their strong attachments to their mother and their history of spending fairly limited time with the father to date, together with the impact on each of the children of such a profound change, and in particular [Y]’s strong attachment to his mother, his age and the evidence that he misses his mother when he is away from her, together with my view that the parties do not have the capacity to resolve difficulties that might arise in implementing an equal time arrangement, I do not consider that it is in the best interests of the children to live with each parent on an equal time basis.  As to whether such an order is reasonably practicable I have considered this being mindful of the provisions of s.65DAA (5) and I have concluded that they do not have the capacity now or in the future to implement an arrangement for the children spending equal time with each parent, nor do I accept that they parents have the capacity now or in the future to communicate and resolve difficulties that might arise in implementing an equal time arrangement.

7. In terms of significant and substantial time, I consider that the mother has shown she is not genuine in wishing to promote a relationship between the children and their father. The mother’s capacity to parent is also overshadowed by her being overly critical of the father’s attempts to parent the children and her inability to acknowledge the significance of his role in their lives. I have considered all of the relevant section 60CC factors and I consider that significant and substantial time is in the best interests of these children. The parties’ geographical distance is not a barrier to significant and substantial time. As to the parties ability to implement such an arrangement I consider that the parties have an ability to implement such an arrangement and that they have the capacity to communicate now and in the future with each other to resolve difficulties that might arise in implementing a significant and substantial time arrangement. I believe that their capacity to communicate with each will be enhanced by the parties attending joint counselling. I intend to Order that pursuant to s.13C the parties attend a recognized agency for joint counselling (which can occur in separate rooms) to assist the parties in developing a joint approach to the future parenting of their children.

General Discussion

1. Without diminishing in any way the excellent parenting of the mother, in my view the children will ultimately benefit from having the proper opportunity to truly engage with each of their parents rather than living with the mother and being, as it currently appears to me, visitors at the father’s residence.  To be able to engage in a meaningful relationship with the father, the children should in my view be spending significant and substantial time with the father.  This means that the children should spend time on the weekends and holidays with the father, and days that do not fall on weekends or holidays, and that the time allows the father to be involved in the children’s daily routine and occasions that are of special significance to the children and days of special significant to the parent.

2. I have had regard to my findings in relation to each of the relevant section 60CC matters.

3. I do not regard the children spending time as proposed by the mother as satisfying the description of significant and substantial nor do I regard it as enabling the children to develop and meaningful relationship with their father.  The mother’s proposal for the children to spend time with the father does not enable the father to be involved in the children’s daily routine of school, homework, school friends and commitments.  Preparing children for school, taking them to and from school and spending a Sunday evening with children is in my view, all part of the real life parenting experience.  It is the essence of family life and on these occasions I consider it will enable the children to spend meaningful time with the father. 

4. I do not regard the mother’s proposals as enabling the children to have a meaningful relationship with the father.  The mother’s proposals provided very limited opportunities for this to occur whereas the father’s proposal allow the father to be involved on both school days and non-school days and to experience what is a fairly basic position, one whole week-end with the father.  I consider that the father’s proposal holds significant advantages for the children arising from the opportunity to spend more time with the father and also with their half sibling [Z].  I consider that the benefits given by this opportunity far outweigh any of the mother’s perceived problems (including storing musical instruments, having to re-iron school shirts and the number of children who live in the father’s home) with such an arrangement, particularly in the long term.

5. The suggestion that the parents can continue all of their handovers at the shopping centre and that it would be good for the children to see the parties positively engaging with each other is, in my view, too optimistic an outlook and does not have regard to the evidence of their difficulties in the past.  The father says the handovers have been, at most, cordial.  The mother says that she prefers to take someone with her as a witness as she does not trust the father not to make up some evidence about something that allegedly occurred at handover.  There is dispute and disagreement between the parties as to whether or not the father held on to the bag at the handover when he was 50 minutes late or whether the mother snatched the bag, she saying that the father would not let go for some reason. 

6. Having heard the testimony of each of the parties, my impression was that the handovers are a stressful event for each of them.  Mr C gave evidence that the children are aware of the ongoing stress between the parties and that any opportunity to avoid this occurring would reduce the children’s stress.  I accept that evidence.  The mother complains of the father being consistently late on occasion and her time being wasted waiting for the father.  She said if she had known on occasions that he was going to be late, she could have brought some work with her.  I regard it as inevitable that there will be occasions in the future when a parent will be late and that this is going to cause stress for the mother and future opportunities for the parties to exhibit their inability to have stress free handovers. 

7. I do not excuse the father being 50 minutes late when it seems that he simply forgot the time.  I also do not condone what sounded like a sharp response to the mother by the father as being appropriate in the circumstances.  If only the father had the decency to phone the mother to explain what was occurring, the resentment of the mother may have evaporated.  It is, however, indicative of the parents’ poor relationship and inability to properly communicate that this did not occur.  I am hopeful that some of their current inability to communicate appropriately may be addressed by an order for joint counselling as proposed in the Consent Orders.  In my view the less these two parents have to come face to face and be in a position where one party is waiting for the other, the better it is for the children.

8. In addition to removing a source of stress for the children and the parents at handovers which is required as part of the mother’s proposals, I consider that there is benefit to the children in spending an additional night in the off week with the father, in lieu of one afternoon each week.  Apart from being a less fragmented arrangement during each school week, it opens up opportunities for a meal time without the stress of eating at 5pm and returned by the current deadline of 6pm or any other deadline.  It means that the children and father can have the opportunity to spend the bedtime rituals of reading and quiet time together.  It means that the children and father get to engage in other regular parental activities such as being taken to school by their father and collected from school by their father and that the father can be more a part of their school life in this way.  It affords the children another opportunity to spend time with their baby brother.

9. Similarly Sunday night is another opportunity for the children to be cared for and loved by their father in a Sunday night routine in his household, not just their mother’s.  Again it provides an opportunity to be parented by their father and to engage in the normalities of life such as having breakfast and getting ready for school in their fathers household.  I consider that these occasions will enable the children to experience and engage in a deeper and more meaningful relationship with the father.  He will be in a much better position to be genuinely involved in their lives.

10. As to the fact that [Y] misses his mother when he is away from her,

    
    

    Mr C noted that the mother’s absence has become more acute this year as she has taken on extra work and this has resulted in him being in care 5 days per week.  The solution to that issue really lies with the mother.  [Y] spends most of his life in the care of his mother.  She has made arrangements to work for additional time and it seems she is working in her own family time.  The time the mother is spending working in her home time is entirely at her discretion and a matter for her and her employer.  I note her reference to waiting for the father and wishing she had taken some [work] with her and her evidence that she had taken on far too much this semester.  I consider that this is an issue to be addressed by the mother.  I had the impression that the mother is fully extended with little time left for herself, between her own increased work commitments and ensuring the children’s social, religious and educational activities are fulfilled to the standard that she wishes them to be.  In my view it is important for [Y] for his long term best interests to develop a loving and close relationship with his father, as well as his mother. 

11. I am not satisfied that the events that the mother raises as possible reasons why [Y] might be missing her such as the father not having purchased a special bed just for [Y], or having him sleeping on the floor, or the suggestion that life at the father’s might be “chaotic” given the number of children in the house are the cause of him missing his mother.  I accept the evidence of Mr C that it is likely that the fact that he is a little boy, who has been seeing less of his mother given her commitments, is the cause.  I note that the mother has been prepared to increase the child’s time away from her so that she can attend work, but she is resistant for [Y] spending time away from her so as to spend time with is father.  It illustrates to me the priority that the mother gives to the child’s time with the father.

12. In relation to the break up of the school holidays, I do not consider that there are any advantages in the mother’s proposal for the father having only the first week of the school holidays and then the balance with the mother and the last two weeks to be spent with the father.  I do not regard the need for the children to remain in touch with church friends for activities on a Saturday during the holidays as overriding the opportunities that having an extended holiday with their father would hold.  The father wants to be able to go away camping and give the children a holiday experience once a year for an extended period.  It may well be that many of the children’s friends at the church group are also away on holidays as the Christmas school holidays are typically the time when children do go with their parents on holidays.  I consider that [X] and [Y] ought to have these same opportunities.  It is also important that they have the opportunity to have some shared experiences such as holidays with their little brother [Z]. I accept the recommendation about the next Christmas school holiday period and will adopt it. 

13. Having considered all of the factors that I am required to, I consider that the father’s proposals in relation to time spend with the father, are in the best interests of the children and I intend to make Orders accordingly.

14. As to the issue of costs thrown away on a previous hearing, if there are any other Applications in relation to these Costs, I direct that the Applicant file and serve written submissions within 21 days of these Orders and the Respondent file and serve written submissions in response within 21days of being served.  Hopefully, the matter can be dealt with in Chambers based on those submissions. 

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Willis FM

Date: