Langton and Langton

[2017] FamCA 774

FAMILY COURT OF AUSTRALIA

LANGTON & LANGTON [2017] FamCA 774

FAMILY LAW – CHILDREN – With whom a child lives – Where father ultimately seeks for the children to live with the parties on an equal shared care basis, either immediately or after 12 months’ time – Where mother seeks children live with her and spend 4 nights per fortnight with father – Where parties agree they should have equal shared parental responsibility – Whether there should be equal shared care either immediately or after 12 months, or significant and substantial time – Where parties and Family Report writer agree that equal shared care would be in children’s best interest if only the parental conflict could abate – Where parental conflict not likely to abate between parents – Where move to equal shared care after 12 months would continue litigation – Where equal shared care therefore not in children’s best interests or reasonably practicable – Where mother and father to have equal shared parental responsibility – Where children are to live with the mother and spend five nights per fortnight with father on a final basis – Where orders made for equal school holiday time.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431

APPLICANT: Mr Langton

RESPONDENT: Ms Langton

INDEPENDENT CHILDREN’S LAWYER: Ms Grainger

FILE NUMBER: BRC 1128 of 2013

DATE DELIVERED: 28 September 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Brisbane (by video link to Cairns)

JUDGMENT OF: Tree J

HEARING DATE: 7 and 8 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITORS FOR THE APPLICANT: Vincenzo Cateno Catanzaro Solicitors

COUNSEL FOR THE RESPONDENT: Mr Gordon

SOLICITORS FOR THE RESPONDENT: Gudkovs Power Settgast Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Christie

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

THE COURT ORDERS BY CONSENT ON A FINAL BASIS:

1. All previous orders are hereby discharged, save for the order of Forrest J made 7 August 2014 (which for ease of reference is repeated below as order 2).

2. The Father and the Mother shall have equal shared parental responsibility for the children of the marriage, B, born … 2009 and C, born … 2011.

AND IT IS FURTHER ORDERED ON A FINAL BASIS:

1. The children shall live with the Mother.

2. The children shall spend time with the Father at all times agreed between the parties and failing agreement, each alternate week from after school on the Wednesday until the commencement of school on Monday (or Tuesday if Monday is a public holiday or pupil free day).

Changeovers

1. Unless the parties otherwise agree, changeover is to occur at the children’s school on school days, or at D Street, E Town, on non-school days.

Telephone

1. The Father and Mother may communicate with the children by telephone or by Skype each Monday, Wednesday and Friday evening (unless the children are then in their care) between the hours of 5:30pm and 6:30pm, with the parent who has the care of the children to facilitate the call and to give the children privacy whilst the call continues.

2. The Mother and Father will facilitate telephone or Skype contact with the other parent at any such time as the children reasonably request.

Special days

1. That, for the purposes of special occasions (if they do not fall during nominated contact periods pursuant to these Orders) then contact periods are to be rearranged to accommodate the special occasions, and the children shall spend time with the Mother and Father as follows:

   (a)With the Father on Father’s Day weekend from 5:00pm on the Saturday immediately preceding Father’s Day to 5:00pm on Father’s Day;

   (b)With the Mother on Mother’s day weekend from 5:00pm on the Saturday immediately preceding Mother’s Day to 5:00pm on Mother’s Day;

   (c)With the Father on the Father’s birthday for a minimum of two hours, with both children to attend;

   (d)With the Mother on the Mother’s birthday for a minimum of two hours, with both children to attend;

   (e)During Christmas as follows:

   (i)With the Father from 9:00am on 23 December 2017 to 9:00am on 26 December 2017 and each alternate year thereafter;

   (ii)With the Mother from 9:00am on 23 December 2016 to 9:00am on 26 December 2018 and each alternate year thereafter;

   (f)On the children’s birthdays as follows:

   (i)With the parent whom the children are not living at the time if the birthday falls on a holiday, public holiday or weekend then from 9:00am to 1:00pm with the children to be together;

   (ii)With the parent with whom the children are not living at the time if the birthday falls on a school day then from 3:00pm to 6:00pm with the children to be together;

   (g)On other family occasions such as a party or function of a member of their family, friends or relatives, as agreed between the parties.

School Holiday Specification

1. That the children spend time with the Father for one half of the Queensland gazetted school holidays, being the first half in odd years and the second half in even years.

2. That for the purposes of changeover of School Holiday time save as that mentioned herein:-

   First half of School Holidays

   (a)To commence at 5.00pm on the first Friday in the final week of the School Term;

   (b)To conclude at 5.00pm on the mid Saturday half way through the School Holidays;

   Second half of School Holidays

   (c)To commence at 5.00pm on the mid Saturday half way through the School Holidays;

   (d)To conclude at 5.00pm on the last Sunday before commence of School Term.

Exchange of information

1. That the Mother and Father shall:

   (a)Keep the other parent informed in writing of his/her current residential address and contact telephone number and of any change thereto within forty-eight (48) hours of any such change;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners 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, significant health issue or illness suffered by the children.

2. That the Mother and the Father by these Orders authorise all Health Care Providers, Educational Experts and Extra-Curricular Activity Providers involved with the children from time to time to liaise directly with them at his/her request and at his/her expense and the Mother and the Father immediately provide the full names/addresses and contact telephone numbers of such Health Care Providers, Educational Experts and Extra-Curricular Activity Providers to each other by text message.

3. That the Mother and Father be at liberty to attend all School functions and extra curricular activities which parents are invited including, but not limited to, Sports Days, Carnivals, Concerts, Plays, Fetes, Parent/Teacher Meetings and the like.

Other

1. That during the time the children are with either parent, that parent shall:

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

   (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 others do not denigrate or insult the other parent in the hearing or presence of the children.

2. The Independent Children’s Lawyer is forthwith discharged upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

IT IS NOTED:

A.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders - obligations, consequences and who can help” and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE VIA VIDEO LINK TO CAIRNS

FILE NUMBER: BRC1128/2013

Mr Langton

Applicant

And

Ms Langton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to the parties’ two children, B (born in 2009, and hence presently 8 years of age) and C (born in 2011, and hence presently 6 years of age) (“the children”).  The parties are agreed that they should equally share parental responsibility in relation to the children, but cannot agree upon the living arrangements for them.  Mr Langton (“the father”) seeks orders for equal shared care, such that the children would live between the parties on a week about basis.  His primary position is that those orders should be made now, but in the alternative, submitted that the children should, for 12 months spend five nights per fortnight in his care, and at the conclusion of that time, move to equal shared care.

2. For her part, as ultimately formulated, Ms Langton (“the mother”), sought orders that the children only spend a block of four nights per fortnight with the father, and that there should be no progression thereafter (although she accepted that there should be an equal split of holiday time).  The Independent Children's Lawyer supported the mother’s position, but indicated that he would not be adverse to the number of nights the father spends with the children being set at five per fortnight.

3. Therefore as ultimately distilled, the real dispute between the parties is whether there should be equal shared care either now or in 12 months’ time, and if not, then whether the children should spend four or five nights per fortnight in the father’s care.

BACKGROUND FACTS

The father

1. The father was born in Brisbane in 1968 and hence is presently 48 years of age.  He attended school in Brisbane until grade 4, before moving with his parents and sister to E Town, where he completed grade 12 and went into an apprenticeship with his father.  At the conclusion of that four year apprenticeship, he continued to work with his father for a few years, but then worked elsewhere in E Town for a further two years, until moving to Western Australia.  There he formed a relationship which culminated in him marrying, however he separated from his wife in 1999.  There were no children to the marriage.

2. It seems as though he then moved back to the E Town area, and in either 2000 or 2001, when he was in his early 30’s, met the mother and formed a relationship with her.

The mother

1. The mother was born in E Town in 1979, and hence is presently 38 years of age.  It appears as though after leaving school, she has always worked in administration.  She told Ms F, the Family Report writer in these proceedings, that she met the father when she was aged 19 or 20, and formed a relationship which saw them engaged in around 2000.

The relationship

1. Notwithstanding that the parties became engaged, after some time the relationship faltered, and they separated in 2004.  However in January 2007 they reconciled, and the relationship again commenced.  The parties married in 2008.  B was then born in 2009, followed by C in 2011.  However little more than a year later, on 14 July 2012, the parties finally separated.

Post separation

1. Separation was effected by the mother and children moving out of the matrimonial home, in which the father remained, and indeed still lives.  From the outset there was difficulty with the father spending time with the children, which the mother insisted she supervise.  It appears as though the mother’s insistence on supervision, at least in some part, was related to the father having overdosed on valium in about July 2012.  The father accepts this occurred, but denies that it was a serious attempt at self-harm.

2. Nonetheless the supervision remained, albeit from between September 2012 and December 2012 it was undertaken by an organisation in E Town, until the father resumed spending time with the children at his home, albeit supervised by family and friends.  That prevailed for some short time, before the mother again insisted upon more formal supervision, which again was undertaken in the E Town region.

3. These proceedings commenced in February 2013.  Shortly afterwards, the father’s time with the children again resumed at his home, but with formal supervision.  On 3 May 2013, consent orders were made in the Federal Circuit Court that the father was to have unsupervised time with the children at his home three days per week.  Three days after that consent order was made, B made a disclosure of sexual abuse to the mother.  Notwithstanding that disclosure, the father continued to have unsupervised time with the children.

4. On 15 July 2013 B made a second disclosure of sexual abuse to the mother, who then reported the matter to Queensland Police.  On 2 August 2013, the mother suspended the father’s contact with the children and notified the Department of Communities, Child Safety and Disability Services shortly thereafter.

5. By order made 22 August 2013, the father resumed spending time with the children, but supervised at the G Town Contact Centre.  The matter transferred to this Court and was designated Magellan in September 2013.

6. By then the police investigation into the alleged sexual abuse of B had concluded, with the investigating officer opining that it was likely that the offences had occurred, but a prosecution was unlikely to be successful.  The father was not charged.

7. The matter came on for trial before Forrest J on 7 August 2014.  At the commencement of the hearing, and before any evidence was received, the police interviews of B were played in open Court.  It seems common ground that the interview technique used by the investigating officer with B was appallingly hopeless, and the disclosures of the child therefore completely unreliable.  That led to the trial not in fact proceeding on that occasion, but rather consent orders were made, which remained the orders in place as at the time of trial before me.  Interestingly, a final order was then made by consent for equal shared parental responsibility, and consent interim orders were made, which saw the father reintroduced to both children, initially again supervised at the G Town Contact Centre, but then moving to unsupervised time, culminating in the children spending four nights per fortnight with the father. Those nights were such that there was a block of three nights each alternate weekend, and then the Monday night in the alternate week.

8. However, after the father first spent unsupervised time with the children under those orders, on 1 November 2014 C made a disclosure of sexual abuse by the father to the mother.  Again, the child was interviewed by Queensland Police, and the father’s time with the children was again suspended on 8 November 2014.  The children were thereafter interviewed by departmental officers, but in January 2015 the Department concluded that the allegations were unsubstantiated.  Thereafter the father recommenced spending time with the children in accordance with the 7 August 2014 consent orders.

9. On 19 November 2015 the first Family Report interviews were undertaken by Ms F (albeit there were earlier Family Reports in 2013 and 2014, which were not part of the material before me).  The father told Ms F in his interview, in relation to the sexual abuse allegations and investigations, that “we’ve been to hell and back.”  He plainly then – and likely still – believes that the mother overreacted to the disclosures, and may harbour a suspicion, given their timing, that there was a strategic aspect to their generation.

10. The mother says that the parties’ relationship was an acrimonious and conflictual one, and the father appears to agree, although each blame the other for the source of the conflict.  Further, the conflict appears to have continued post-separation, and plainly the sexual abuse allegations did nothing to ease the tension between the parties. 

11. It seems likely that the parties are incapable of conducting a civil face-to-face conversation with each other.  At both of the Family Report interviews, Ms F caused the parties to be jointly interviewed, and on both occasions arguments ensued.  I shall discuss the parties’ conflict and the prognosis for change in due course.

Current situation

1. As at the time of trial before me, B was in year two and doing well at school.  It is said that he is a happy, bright, sociable boy who enjoys sport and outdoor activities.

2. C is presently in prep, and likewise seems to be doing acceptably well.  Like his brother, he enjoys sport and outdoor activity.

3. Both the mother and father have re-partnered, and both of those partners gave evidence before me.  No children have been born to either of those new relationships.

4. For his part, the father has partnered with Ms H, who is employed at the children’s school.  Ms H has been employed there for many years, and apparently was so employed when the mother attended that school as a child.  The father remains self-employed as a tradesman but also derives income from restoration work.  The father and Ms F do not cohabit.

5. For her part the mother has re-partnered with Mr J.  He is a labourer, and has two children to a previous relationship, with whom he has a good relationship, although they do not live with him.  He and the mother cohabit.  The mother remains in employment at the E Town Hospital.

THE ISSUES

1. At the Trial Management Hearing on 3 April 2017, with the assistance of the parties, the following issues were identified as likely to substantially determine the outcome of these proceedings:

   1.What is the nature of the relationship between the children and each parent.

   2.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   3.What risk, if any, does each parent pose to the children, and what means are available to mitigate any such risk.

   4.What would be the impact upon the children of each party’s proposal.

   5.Could the parties’ communication adequately support equal shared parental responsibility.

   6.Could the parties’ relationship support equal time or significant and substantial time.

2. After I have discussed relevant legal principles, but in advance of determining the appropriate orders in this case, I will discuss those issues together with any residual relevant s 60CC factors.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

2. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides 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 its parents to have equal shared parental responsibility.

3. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

4. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

NATURE OF RELATIONSHIP BETWEEN CHILDREN AND EACH PARENT

1. Ms F’s uncontradicted evidence was that the children have a good relationship with both of their parents.  She said that the father is a very practical and creative man, and the children engage well with that side of him.  They particularly enjoy him taking them fishing and undertaking other outdoor activities, for instance visiting his sister’s farm in Western Queensland.  That said, based upon her second Family Report interviews with the children, she was troubled that the children felt somewhat pressured by the father, particularly in relation to their engagement with his new partner at their school.  She thought that the children felt worried about displeasing the father, although she conjectured that either any inadvertent pressuring by the father, or even the children’s perception of it, could have been influenced by the looming trial.

2. The mother’s relationship with the children was said to be a good one, and one from which the children likely derived more nurture than they do from the father.  She said an illustration of that was B’s recent hospitalisation, and the comfort which he derived from his mother’s presence there.

3. That said, she agreed that the relationships which the children have with both of their parents complement each other, and the children derived different things from each of them which are of great value to them.  I accept all that evidence.

BENEFIT OF MEANINGFUL RELATIONSHIP AND BEST MEANS OF FACILITATION

1. Again it was uncontroversial that the children would benefit from a meaningful relationship with each parent, and it would be best facilitated by the children spending regular face-to-face time with both of their parents, and them being involved in all areas of the children’s lives.  Ms F’s evidence – which was uncontroversial – was that the benefits which the children obtain from the parents and their relationship with them, are proportional to the amount of time that they spend with that parent.

2. She agreed that being boys, during adolescence, the children will likely obtain great benefit from their relationship with their father, because they will identify with him being male, and likely formulate their own roles based upon him.  She noted that they tend to copy the sorts of things their father does, and speculated that it may well be that one or both boys may follow him into the building industry, noting that the father had followed his own father into that business.  On the other hand, she noted that the mother contributes greatly to the children’s emotional wellbeing.

3. None of this evidence was in anyway challenged, and I accept it.

RISK EACH PARENT POSES TO THE CHILDREN AND MEANS AVAILABLE TO MITIGATE IT

1. The mother did not assert that the father posed any risk of sexual or physical harm to the children.  However Ms F was concerned about the father’s anger and hostility towards the mother, and opined that the children’s exposure to that could emotionally harm them.

2. She gave several examples of the father’s anger, which were also noted by her in the second Family Report, particularly during the joint interview of both parents.  For instance the father told her, in the mother’s presence, that the mother was “a compulsive liar, I want week about to get the boys away from your manipulation, my family values are not your family values.”  Later still he said “I don’t believe a word that comes out of her mouth.”  A little later he said that this matter was “going to trial and everybody is going to be held accountable for their actions and you [the mother] you put me down all the time to the boys.”  He then said “I want the kids out of this toxic environment, the bribing and the manipulation.”

3. At [111] of the second Family Report Ms F said:

   [The father] appeared very emotionally heightened, he was breathing rapidly and had difficulty initially organising his thought stream.  He did eventually become calmer.

4. Later she continued:

   [133] Impression The father appeared rather angry and unpleasant towards the mother.  He spoke repeatedly about justice being done, and how the mother needed to be made accountable for what she had done to him particularly around the allegations, and the manner in which she had left him taking the boys with her.

   …

   [136] The father appears single minded and determined to have his day in Court whatever the costs or consequences to the children.  He appears angry with the mother and he appears more focussed on his angry feelings and wanting to work in a conciliatory and reasonable manner. 

5. In her oral evidence, Ms F said that if the father was experiencing anger, he needed to talk about it to somebody else, rather than exposing the children to it.

6. In response to an inquiry about the harm which exposure to anger and conflict can cause to children, Ms F said the problem is that children get caught in the conflict, and feel guilt arising from the pressure which they experience.  She opined that this can lead to psychological problems for the children, which could manifest themselves as an inability to concentrate properly, and diminished school performance.  She said that if the children’s exposure to anger were to increase, it could result in them losing a relationship with the angry parent, although their reaction to anger would depend on their resilience and any opportunity to receive counselling.

7. The father in his oral evidence did indeed present as a somewhat rigid individual.  In the course of the trial, I suggested that perhaps he could be described as “black and white” in his approach to things.  It was plain that he had little time for, or good opinion of, the mother.  Perhaps a good illustration of this related to an occasion when the children were to spend time with him on what transpired to be Mother’s Day of this year.  Although he realised that him taking the children for an activity he had planned would clash with the mother’s expectations of spending time with the children on Mother’s Day, he did not tell her about that, because he was convinced that would only lead to her not making the children available to spend time with him at all.  Another instance is the father’s habitual recording of all of the telephone conversations he has with the children, not for any pleasure he derives from being able to replay them, but solely so that he can record the mother’s interference in those calls.

8. The father’s anger is likely not helped by two additional matters.  The first is his revulsion and disgust at the mother having made the allegations which she did, about him sexually abusing both boys.  The second is his strong rights-based insistence upon a regime of equal time with the children.  No doubt he found the mother’s original position in these proceedings – which until the second day of trial, was that he should only spend weekends, and half of alternate school holidays with the children – confronting and challenging.

9. As to the means of ameliorating the risk which the father’s anger poses to the children, there were three mitigatory matters to which Ms F pointed.  The first was that counselling of the children may reduce the prospect of them suffering emotional harm.  The second was that the parents could engage in post-separation parenting courses, for example a triple P course.  She also said that the parties would likely benefit from engaging in counselling – if needs be, joint – to try and improve their communication.  Finally she identified that the risk of harm to the children was proportional to the amount of time they are exposed to it, and therefore the reduction in the length of time with the father would proportionately reduce the risk of them suffering harm.  As to that, she said that it was the length of time of exposure to the father’s anger that was more important, rather than the virulence of his adverse view of the mother.

10. Unfortunately she did not appear to have an optimistic prognosis of the likely benefits that the parties would in fact gain from the second mitigatory measure of courses and counselling.  Particularly, she pointed out that the father’s suspicions of the mother were unlikely to change, as he has had them since separation in 2012.  Whilst she accepted that the trial may have exacerbated the father’s suspicion of the mother, she nonetheless concluded that it is unlikely to change.  She said that although not doing it deliberately, the father’s anger tends to “spill over”, and causes him to say things which he shouldn’t.

11. Bringing all of that evidence together, ultimately I am satisfied that the father does have low opinion of the mother, does believe that she has behaved badly towards him, and is angry towards her.  I am satisfied that the children are, from time to time, inadvertently exposed to that anger, because the father cannot conceal his anger in their presence.  It follows therefore, that the father does pose some risk of emotional harm to the children.  Nobody contended that that risk was unacceptable, in that appropriate means for mitigation are available, including controlling the amount of time which the children spend with the father, and hence managing the risk of them suffering emotional harm in consequence of that exposure.

12. No party asserted that the mother posed a risk of harm to the children.  Although the father’s material did tend to suggest that she may be coaching the children, that case was not advanced by him at trial.

IMPACT UPON THE CHILDREN OF PARTIES’ PROPOSALS

1. Ms F’s evidence in this respect was again uncontroversial.  She opined that if the children were to move immediately into an arrangement of shared care, as proposed by the father, their anxiety would likely increase, and in consequence, their behaviour deteriorates.  She thought that the children may start to refuse to go to school, or do their homework, or that other difficult behavioural issues would likely become manifest.  She thought that problems could well develop at changeovers, in that the children may be resistant into going into the father’s care.  Particularly she was troubled that there may be an increase in the children’s exposure to parental conflict, and their exposure to adult issues.  She was plainly troubled by that prospect.

2. At the time Ms F gave her evidence, the mother’s proposal was that the children should only spend alternate weekend time with the father, together with half of school holidays.  Ms F was critical of that proposal.  Particularly she was troubled that the father would have little, if any, involvement in the children’s schooling or weekday lives, which she thought was important.  She was not in favour of the reduction of the father’s time as then proposed by the mother, but rather opined that the present arrangements, which saw the father spend one overnight in the second week with the children, should be stopped, and that night added on to the present block time that the father spends with the children.

3. I explored with Ms F the benefits and disadvantages of a block of four or five nights (a block of four nights ultimately becoming the mother’s proposal).  She particularly identified that the children would benefit from the father’s involvement in the children’s education, and thought that the children would cope sufficiently well with spending Wednesday, Thursday, Friday, Saturday and Sunday night with the father.  Later in cross-examination by counsel for the mother, she said that the benefits of a Monday morning changeover at school were that the parties did not need to come into contact with each other to effect the changeover.

4. None of this evidence was in any way substantially challenged in the parties’ cross-examination of Ms F.  I am therefore satisfied that the impact upon the children of the father’s primary proposal of immediately going to equal shared care, would be to increase the children’s anxiety, and to run a significant risk of them suffering emotional harm, manifesting itself, in the short term at least, as anxiety, and likely leading to poor behavioural outcomes.

5. The mother’s proposal as at the time of cross-examination of the Family Report writer would be an adverse one to the children, in that it would almost wholly remove the father from the children’s weekday lives, particularly their schooling.  Given that this father has much to offer these children that would be most unfortunate.

6. The impact upon the children of what proved to ultimately be the Independent Children's Lawyer’s and mother’s proposal, of four (or in the case of the Independent Children's Lawyer, perhaps five) nights per fortnight is a compromise between the two parties’ positions.  It would manage the risk of the children suffering emotional harm from the father’s anger to an acceptable level, and would benefit them by allowing him to be involved in their weekday lives, particularly their schooling.

CAN PARTIES’ COMMUNICATION ADEQUATELY SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. This issue evaporated during the course of the trial, as the mother conceded that there should be an equal shared parental responsibility, either as a continuation of the order made by consent by Forrest J in 2015, or for other reasons.  In any event the evidence of Ms F supported an order for equal shared parental responsibility.  Particularly she pointed to the fact that the parents have been exercising equal shared parental responsibility for the last three years, and although not without issues, it had, in substance, been working.  She particularly pointed to the recent hospitalisation of B, during which both parties were ultimately able to work together.

2. True it is that the parties cannot communicate other than by text message, but as counsel for the father said, there are some benefits to that, including that the need for economy of words means that it is less likely to descend into an argument.

COULD PARTIES’RELATIONSHIP SUPPORT EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME

1. Ms F’s evidence – which was not seriously challenged – was that the parties’ relationship can support substantial and significant time, but not equal time.  She only contemplated that there could be a move to equal shared care if the parties’ issues of communication and conflict resolved.  Particularly, she was troubled about the lack of adaptability that the parties had, in that the father was particularly adamant that orders needed to be adhered to precisely.  She did not think that the father had demonstrated any flexibility in relation to the co-parenting of the children.  She said that the view of the father is black and white, which could be a by-product of his depression, which was not helped by the recent loss of both of his parents.  Although she hoped that the father would be able to move on, his bitterness towards the mother seems to have been long lived, and he was rather be stuck in the past.

2. In cross-examination by counsel for the father, she was pressed as to the prospect that one could commence with substantial and significant time, require the parties to undertake courses and counselling, and then move to equal shared time.  Whilst she was clearly of the view that the parties should undertake such courses, she was sceptical that they would in fact lead to a resolution of the parties’ conflict and acrimony.  She emphasised the need for the parties’ to be able to be open in their communication, and flexible in their dealings with each other.  The father’s personality issues necessarily loom large in that matter.

3. I am satisfied that the parties’ present relationship could not support equal time, however I am satisfied that it presently could support substantial and significant time orders.

SECTION 60CC FACTORS

1. It will be appreciated that in discussing the issues, I have already dealt with both of the primary considerations, and a number of the additional considerations.  However I make the following further observations in relation to the additional considerations.

2. The children have expressed views that they wish to reduce the amount of time which they spend with the father.  In view of their ages, I give those wishes little weight.  Moreover, I am satisfied that the children are well aware of the conflict between their parents, and likely experience anxiety in relation to that.  It remains possible that they may have been pressured by one or both of these parties, whether advertently or otherwise.

3. Both of these parents have been determined to be fully involved in their children’s lives.  The father has evidenced his commitment to them in the face of real adversity.

4. It appears as though the mother may owe the father some small amount in child support.  It is of no bearing in this case. 

5. Both parents live close by to each other, so there is no practical difficulty or expense in the children spending time with both parents.

6. There have been family violence orders between the parties, and the father has been convicted, on his plea of guilty, of a breach of the order.  That breach comprised him photographing the mother and children on one occasion when it transpired they were both in the same shopping centre.  I give that little weight.

1. These parties have now been litigating in relation to these children for nearly five years.  The prospect of further litigation is very troubling.  Plainly it would be preferable to make an order which is unlikely to lead to further litigation.

PARENTAL RESPONSIBILITY

1. The parties are agreed that there should be an order for equal shared parental responsibility. I am satisfied that such an order is in the children’s best interests.

CHILDREN’S LIVING ARRANGEMENTS

1. As ultimately formulated, the mother contended that there should be an order that the children live with her, and spend a block of four nights per fortnight with the father, whereas the father’s primary position remained that there should be an immediate order for equal shared care.  That, however, was not strongly pressed by his counsel, who rather focussed his submissions upon there being an order for a five/nine split for 12 months, and it moving to equal shared care thereafter.

2. Because there is already a final order for equal shared parental responsibility, s 65DAA is engaged, and I am obliged to consider firstly, equal time, and if it is not in the children’s best interests, or not reasonably practicable, then consider substantial and significant time. In that respect, I have already discussed many of the matters enumerated in s 65DAA(5).

3. I identify the points in favour of the father’s primary proposal of immediate equal shared care include as follows:

   ·It would provide the best opportunity for the children to develop and/or maintain a meaningful relationship with both parents;

   ·It would provide the best opportunity for the children to obtain maximum benefits from their relationship with both parents (especially noting that in adolescence, children obtain particular benefit from their relationship with the parent of their gender);

   ·It would appease the father, and hence may lead to reduced tension and parental conflict;

   ·It mirrors both parties school holiday proposals;

   ·It may minimise the risk of the children’s absenteeism from school.

4. On the other hand, the points against the father’s proposal include:

   ·It may lead to the children living in two parallel worlds, especially given the parties conflict, poor communication and lack of trust;

   ·It may increase the parties’ conflict, and if so, the children will likely be exposed to it to some degree, with likely adverse effect on them;

   ·It would disrupt the longstanding arrangement of the mother being the primary carer;

   ·It may be difficult to fit in with father’s work commitments;

   ·It satisfies few of the indicators outlined in T & N [2001] FMCAFam 222, and hence may not practically work;

   ·It may not reflect the children’s wishes (noting their ages would suggest little weight should be given to them in any event);

   ·It does not accord with the expert’s recommendation.

5. Weighing those matters in the balance, to my mind strongly tells against an immediate order for equal shared care as being in the children’s best interests, or being reasonably practicable.

6. Leaving aside for one moment whether the block time be four or five nights, the significant points in favour of a regime of substantial and significant time are as follows:

   ·It would provide a good opportunity for the children to develop and/or maintain a meaningful relationship with both of their parents;

   ·It would provide a good opportunity for the children to obtain the maximum benefit from their relationship with both parents (especially noting in adolescence children obtain particular benefit from their relationship with the parent of their gender);

   ·It may, to some degree, appease the father, and hence lead to some reduction in his resentment, and anger and the parental conflict;

   ·It would provide a reasonable opportunity for the father to be involved in the children’s weekday lives (especially schooling) as well as weekend time;

   ·It would give children a primary place of residence;

   ·It may be practically achievable, notwithstanding parties’ poor communication and conflict.

7. On the other hand the points against such a proposal are as follows:

   ·It is likely to see the children continue to be exposed to parental tension and conflict (noting that it is, in varying degrees, likely on either party’s proposal);

   ·It might see the father unhappy that he is still not “equal” with the mother, and hence maintain, (or less likely, increase), his resentment and anger, and thus the parental conflict, or even lead to continued litigation;

   ·It may exceed what is practically achievable, given the parties’ history of poor communication and conflict;

   ·It may not reflect the children’s wishes (noting their ages would suggest little weight should be given to them in any event);

   ·It sees different regimes, depending on whether it is a school week or holiday week.

8. Weighing those competing considerations, I am satisfied that such a regime of substantial and significant time is both in the children’s best interests, and reasonably practicable.

9. That therefore leaves two matters necessary for me to resolve.  The first is whether it should be a block of four or five nights which the father spends with the children.  The second is whether or not that order should be pronounced on a final basis, or whether there should be a further increase in the children’s time with the father to equal shared care after 12 months.

10. Dealing firstly with the issue of whether it should be four or five nights, I am strongly of the view that it should be five.  I am of that view because it will enable the father to spend two ordinary school nights with the children (accepting that Friday night is not an ordinary school night) and hence see him meaningfully involved in their schooling and homework.  In my view, to only afford him one such night per fortnight would be to unduly minimise his opportunity to engage with the children’s education.

11. I do not overlook the fact that that increase of one extra night also therefore increases the opportunity for the children to be exposed to the father’s angry views of the mother, and his bitter attitude towards her, however in my view, the benefit of the extra night outweighs that risk.  There will therefore be an order that the children spend time with the father from after school Wednesday until before school on Monday on each alternate week.

12. That then brings into focus whether that should be a final order, or whether there should be a move to equal shared care in 12 months’ time.

13. As to this, the mother and Independent Children's Lawyer’s submissions coincided.  They emphasised that the parties’ poor communication is not something that will be easily cured, in that improved communication habits is a difficult thing to teach, and learn.  Counsel for the Independent Children's Lawyer emphasised that these parties have not been able to communicate face-to-face, or even via phone, for a long time.  She emphasised that the father is indeed a black and white person, with a limited capacity to consider the mother’s view.  There is not any demonstrated history of give and take, and importantly, neither party has, in the five years since separation, done anything to try and remedy that.

14. Further, she emphasised that the father appears incapable of trusting the mother, even to the point of him recently having forewarned police and DoCS of the looming trial and the prospect that the mother would make further false allegations against him.  She emphasised that the father simply cannot trust the mother at all, as evidenced by his behaviour around him spending time with the children on Mother’s Day in 2017.  He was so convinced that the mother would not be flexible, and would act to thwart his time with the children, that he did not communicate with her at all.  Further she emphasised the father’s focus upon “justice,” and that the mother be made accountable for her past misdeeds.  She noted that the father is deeply bitter towards the mother, and I accept that is the case.  Finally she argued that on a practical level, equal shared care would require the parties to be actively flexible in accommodating the children’s needs from time to time.  She underlined that there was no history of that – at all – since separation.

15. To like effect were the submissions by counsel for the mother.  He emphasised that it has been more than five years since separation, and hence the most likely prediction is that the conflict between the parties will continue.  He described it as entrenched conflict, and that shared care would run the risk of heightening it.  Further, he said that the father lacks insight into how his views and conduct towards the mother impact upon her and the children.  He also relied upon the decision of T & N (supra), and emphasised that many of the criteria discussed by Ryan FM (as her Honour then was) are not met in this case.

16. Counsel for both the Independent Children's Lawyer and the mother also relied upon the risk of further litigation which the mechanism for moving to equal shared care necessarily entailed.  As to that, it was contemplated by the father that the Independent Children's Lawyer would remain engaged for a further 12 months, during which time the parties would attend to the necessary courses and counselling, and that although the orders would provide for the move to equal shared care at the end of 12 months, it would be open to any party to seek to have the matter listed pursuant to a liberty to apply.  The difficulty with that, of course, is the prospect that the parties would continue to behave with a view to obtaining tactical advantages at any resumed litigation pursuant to the liberty to apply, and hence the litigation would not really be at an end.  Moreover, the risk of one party seeking to re-list the matter at the end of the 12 month period is real.

17. Ultimately, although with considerable regret, I accept that not only would orders providing for a move to equal shared care likely be the triumph of hope over experience, but further, it would see the parties continue in litigation mode for at least another 12 months.

18. The sad fact is that the father’s views and attitudes are deeply entrenched, and as much as one might like to hope that courses and counselling would assist him, it could not be concluded that that is more likely than not to occur.  Central to my thinking is the fact that the father has shown no desire to engage in those sorts of courses or counselling to date, and therefore presumably does not genuinely identify that he has any difficulty which such courses could help remedy.  He believes that his position is the correct one, and sees no reason to modify it.

19. Further, the prospect of these parties continuing in a litigious mode for another 12 months, and then perhaps returning to court, cannot be countenanced.

20. Therefore unfortunately – because plainly all parties, including the Family Report writer, agree that equal shared care would be best for these children if only the parental conflict could abate – I conclude that the prospect of the parties ever getting to the position where equal shared care could function effectively is slim. Therefore such an order would be neither in the children’s best interests, nor reasonably practicable.

21. I will therefore make final orders for the children to spend five nights per fortnight with the father, being from after school on Wednesday to before school on Monday.

OTHER ORDERS

1. There is a slight dispute between the parties as to how the Christmas Holidays should be structured.  It is said by the father that it should be week about. The mother wants to have a two week period for each party initially, followed by a one week period, and the Independent Children’s Lawyer proposed two three week blocks.  I can readily accept that the parties may wish to travel, including internationally, in that time, and a three week block would enable that to occur.  I am therefore satisfied that the arrangement for Christmas holidays should be a three week block with each parent, alternating each year.

2. Otherwise there will be orders as sought by the Independent Children's Lawyer.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.   

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 September 2017.

Associate:

Date:  28 September 2017