Lautner and Lautner
[2013] FCCA 46
•18 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAUTNER & LAUTNER | [2013] FCCA 46 |
| Catchwords: FAMILY LAW – Children – poor co-parenting relationship – children’s views. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA |
| Goode & Goode (2006) FamCA 1346 |
| Applicant: | MR LAUTNER |
| Respondent: | MS LAUTNER |
| File Number: | ADC 432 of 2012 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 17 and 18 December 2012, 29 January 2013 |
| Date of Last Submission: | 29 January 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 18 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Boehm |
| Solicitors for the Applicant: | Catherine Hicks & Co |
| Counsel for the Respondent: | Ms V Lee |
| Solicitors for the Respondent: | Georgina Parker Lawyers |
ORDERS
The parties share equally in parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2003.
For the period concluding 5 July 2013
The children attend the [F] School.
The children live with each of their parents as follows:
(a)with the father:
(i)for one half of the April 2013 school holidays at times to be agreed between the parties;
(ii)during school term time on each alternate weekend from 6.30pm Friday until 5.00pm Sunday (or 5.00pm Monday in the event of a public holiday).
(b)with the mother at all other times.
All handovers take place at the [omitted] Railway Station (unless otherwise agreed between the parties).
For the period commencing 5 July 2013 and ongoing
The children attend the [N] School commencing third term 2013.
In the event both parents are living within a 20 minute drive from [N] School, the children [X] and [Y] live with each parent on a week about basis as follows:
(a)with the father:
(i)during the July 2013 school holidays from 6.30pm Friday 5 July until 5.00pm on Saturday 13 July 2013;
(ii)from 5.00pm Sunday 21 July 2013 until the conclusion of school Friday 26 July 2013;
(iii)thereafter in each alternate week from the conclusion of school Friday (or 5.00pm if a non school day) until the conclusion of school or 5.00pm Friday one week following, commencing Friday 2 August 2013.
(b)with the mother:
i)during the July 2013 school holidays from 5.00pm Saturday 13 July until 5.00pm Sunday 21 July 2013;
ii)thereafter in each alternate week from the conclusion of school Friday (or 5.00pm if a non school day) until the conclusion of school or 5.00pm on the following Friday, commencing Friday 26 July 2013.
(c)liberty to the parties to vary the week about care regime during school holiday periods, as may be agreed between them from time to time.
In the event the mother is not living within a 20 minute drive from [N] School, then the following orders shall come into effect:
(a)The children live with the father save as otherwise specified in these orders.
(b)The children live with the mother as follows:
(i)each alternate weekend from the conclusion of school or 5.00pm Friday until 5.00pm Sunday (or 5.00pm Monday in the event of a public holiday);
(ii)for one half of each short school holiday period at times to be agreed between the parties;
(iii)for one half of each Christmas school holiday period at times to be agreed between the parties.
Notwithstanding any other parenting orders, the children spend time with each parent on special occasions as agreed between the parties and in the event the parents are unable to reach agreement then as follows:
(a)on each of the children’s birthdays for a period of at least two (2) hours if the birthday falls on a school day or four (4) hours if the birthday falls on a weekend day;
(b)with the father for Christmas each year as follows:
(i)from 5.00pm on 24 December until 1.00pm on 25 December in 2013 and each alternate year thereafter;
(ii)from 1.00pm on 25 December until 6.00pm on 26 December in 2014 and each alternate year thereafter;
(c)with the mother for Christmas each year as follows:
(i)from 1.00pm on 25 December until 6.00pm on 26 December in 2013 and each alternate year thereafter;
(ii)from 5.00pm on 24 December until 1.00pm on 25 December in 2014 and each alternate year thereafter;
(d)with the mother from 5.00pm on the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day;
(e)with the father from 5.00pm on the Saturday prior to Father’s Day until 5.00pm on Father’s Day;
(f)for the Easter weekend as follows:
(i)with the father from the conclusion of school or 5.00pm Easter Thursday until 5.00pm on Easter Monday in 2014 and each alternate year thereafter;
(ii)with the mother from the conclusion of school or 5.00pm Easter Thursday until 5.00pm on Easter Monday in 2015 and each alternate year thereafter;
PROVIDED that if the Easter period falls during the April school holidays then any time spent with either parent over the Easter weekend shall form part of the children’s half school holiday time in that parent’s care.
Handovers take place with the relevant parent collecting the children from school on Friday and if a non school day at a neutral location as agreed between the parties.
Each parent is at liberty to speak with the children regularly by telephone while [X] and [Y] are living in the other parent’s care.
Each parent will facilitate any request from the children to speak with the other parent by telephone.
Each parent is at liberty to communicate with any school at which the children are enrolled and to attend all school events to which parents are usually invited.
Each parent shall:
(a)speak politely and respectfully to each other in the presence of [X] and [Y];
(b)speak politely and respectfully about each other in the presence of [X] and [Y] and ensure that all extended family members also do so;
(c)ensure that all written communication between them is polite and respectful;
(d)refrain from criticising, denigrating or undermining the other parent in the presence of the children;
(e)ensure that all extended family members refrain from criticising, denigrating or undermining the other parent in the presence of the children.
IT IS NOTED that publication of this judgment under the pseudonym Lautner & Lautner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 432 of 2012
| MR LAUTNER |
Applicant
And
| MS LAUTNER |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is 11 years old. His younger sister [Y] is 10 years old. Their parents separated in August 2011 but remained living together in the family home at [N] until January 2012, when the mother left with the children and took up other accommodation in the northern suburbs of Adelaide.
[X] and [Y]’s parents have been unable to reach agreement about the children’s living arrangements since that time. Their father,
Mr Lautner, says that the children should return to live with him in [N] where they can return to the [N] School. The mother, Ms Lautner, says the children are settled in her care and should continue living with her and attending the [F] School.
As the parents have been unable to reach any agreement about the children’s living arrangements, it now falls to the Court to determine these matters.
Background
The father was born [in] 1967 and is 45 years old. The mother was born in Ecuador [in] 1974 and is 38 years old. The parties met in Ecuador and eventually married there in 1999. The father returned to Australia later that year and the mother emigrated early in 2000. The parties settled in Sydney. [X] was born [in] 2001 and [Y] was born [in] 2003.
The father worked full time during the marriage. Upon arriving in Australia the mother was also successful in obtaining employment and worked full time as a [omitted] until she became pregnant with [X]. When [X] was approximately nine months old, the mother returned to part time employment as a [omitted] before giving up that employment in mid 2002, when she became pregnant with [Y].
The wife re-trained as a [occupation omitted] and commenced part time employment in 2004 eventually resuming full time employment when [X] commenced school.
Both parties consider that they took on the primary parenting role at this stage of the children’s lives. I am satisfied that both parents were actively involved in the children’s day to day care, and managed their parenting and employment responsibilities co-operatively. It is clear that the parties’ relationship came under increasing pressure as they struggled with the demands of full time work and full time parenting responsibilities.
The wife also felt socially isolated during her early years in Sydney, before eventually establishing friendships within the Latin American community there. She enjoyed a level of cultural connection through attending at Latin American clubs and dances. The mother’s social activities became a further source of conflict between the parties.
Both parents accuse the other of drinking alcohol to excess, using illegal drugs and neglecting their parenting responsibilities. The mother alleges the father assaulted her in September 2007 following an argument when both parties were affected by alcohol. She also called the police for assistance on a further occasion in November 2007.
The tensions within the home were further exacerbated by financial pressures and the parties’ relationship continued to deteriorate. Both parties eventually declared themselves bankrupt in 2009.
In March 2010 the parties agreed to separate but continued living together in the family home, as neither party could afford to establish a new home at that time. They agreed to reconcile in late 2010 and in February 2011 moved to South Australia. The husband’s sister had moved to live in [N] some years earlier and the family moved to the same area. The mother was reluctant about the move to [N], but agreed in order to keep the family together and try a fresh start.
The wife transferred her employment from [F] in Sydney to the Adelaide [F]. The husband obtained employment and the children began attending [N] School. The wife does not have a driver’s licence and travelled by public transport from [N] to Adelaide each day, which was a lengthy journey.
Unfortunately, the pre-existing stressors within the relationship remained unresolved and by August 2011, the parties again agreed to separate. The mother resigned from her employment in October 2011 but continued living in the family home for a few months.
The mother moved out on 27 January 2012. She initially informed the father that she and the children were staying overnight with friends in Adelaide, before telling him the next day that she had moved out into independent accommodation.
The Court proceedings
The father reacted very quickly and filed an Application on 6 February 2012, which was first listed on 6 March 2012. On that occasion the Court left the children in the mother’s primary care and ordered that [X] and [Y] spend time with their father on alternate weekends and for one half of the forthcoming school holidays. Given the distance between the mother’s home at [F] and the father’s home at [N], additional mid-week time for the children in the father’s care was impracticable.
The parties and the children attended a child inclusive dispute resolution appointment on 3 May 2012. The parties were unable to resolve their parenting issues at that time and on the next hearing date the matter was listed for trial, with the existing arrangements to continue. The Court also ordered that a s.62G family report be prepared.
The father’s initial Affidavits were extremely critical of the mother’s lifestyle and her parenting. This hostility was further reflected in Affidavit material filed by his siblings, who also live in the [N] area. Not surprisingly, the wife’s answering Affidavit took an equally hostile and oppositional tone. Neither party seemed willing to say one good word about the other parent at that point in time.
The hearing
The trial proceeded on 17 and 18 December 2012. The hearing did not conclude within the two days allocated and was adjourned part heard to 29 January 2013.
The father relied upon the following documents:
a)His Initiating Application filed 6 February 2012;
b)His trial Affidavit filed 30 November 2012;
c)Trial Affidavit of his sister Ms B filed 10 December 2012;
d)The s.62G family assessment report.
The mother initially relied upon the following documents:
a)Her Response filed 2 March 2012;
b)Her trial Affidavit filed 29 November 2012;
c)Trial Affidavit of Ms R filed 3 December 2012;
d)Affidavit of Ms P filed 17 April 2012, annexing Statements from two potential witnesses, Ms D and Ms V.
The mother also issued a subpoena requiring the children’s school teachers and the Principal of [F] School to attend and give evidence.
The father did not require Ms R for cross examination. Ultimately the wife did not call Ms D or Ms V. The mother also chose not to call the children’s school teachers or school Principal. The father initially responded by insisting that the subpoenaed witnesses be available for cross examination, however it became clear that their evidence was unlikely to assist the Court to any great extent, and those witnesses were not called.
The s.62G family report was prepared by Mr B on 11 October 2012. Mr B attended and was cross examined by both parties. He gave his evidence in a professional, forthright manner and his evidence was of considerable assistance to the Court.
Both parties were cross examined, as was the husband’s sister Ms B and the Court had the opportunity to consider the parties’ evidence and assess their demeanour in the witness box. Both parents presented as very fixed in their views and each blames the other for the difficulties within their relationship. The father had a forthright style of communication and was not easily persuaded to adopt a different viewpoint. The mother was equally convinced of the rightness of her position and her recollection of past events.
As is so often the case in family law proceedings, each party tended to present their evidence so as to cast themselves in the best possible light and to cast the other party in the worst possible light. Accordingly, they recollect and describe the same sequence of events very differently. The same comment applies to Ms B. While she also gave her evidence honestly and to the best of her recollection, she was inclined to recollect past events in such a way as to support her brother’s position before the Court.
Notwithstanding these comments, I am generally satisfied that all witnesses endeavoured to give their evidence honestly and to the best of their recollection. Where their evidence is in conflict – for example, regarding events during their relationship – I am satisfied that those differences generally reflect each party’s personal recollection, rather than a deliberate attempt to confuse or mislead the Court.
The parties’ proposals
At the time the hearing commenced, the mother was seeking an order for sole parental responsibility but by the conclusion of the hearing both parties agreed that they would share equally in parental responsibility for [X] and [Y].
Both parties sought orders that the children live in their primary care and spend regular time with the other parent. Given the current distance that exists between the parties’ homes in [N] and [F], both parties were proposing the children spend time with the other parent on alternate weekends, for one half of school holidays and on special occasions and at such other times as may be agreed. The father also sought an order that the children recommence at the [N] School.
It is important to remember that the Court is not limited to the parties’ proposals when considering what parenting orders and arrangements would best support the children’s long term welfare.
Legal principles
Section 65D empowers the Court to make such parenting order as it thinks proper, subject to certain limitations set out in that section. When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B sets out the objects and principles which govern the Court’s decision making responsibilities. This section focuses on the importance of parents having a meaningful role in children’s lives, upon the need to protect children from harm, and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode[1] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. The two primary considerations are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) which must be taken into account. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)). The Court is also required to ensure that any parenting orders do not expose the children or either party to an unacceptable risk of family violence.
Section 61DA requires the Court to presume that it is in the children’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply, or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the children’s best interest to spend equal time, or substantial and significant time, with each parent.
The distance between [N] and [F] is approximately 50kms. I do not consider this distance is so great that the parenting dispute moves into that category of cases that are described as relocation matters. Clearly, the children can continue to spend meaningful time with both parents between [F] and [N], just as they can between two suburbs of similar distance anywhere across the greater Adelaide metropolitan area. However, the distance remains a factor to be taken into account in crafting parenting orders that will reflect the children’s best interests in the longer term.
Section 60CC – primary considerations
Both parties agree that [X] and [Y] will benefit from maintaining a meaningful relationship with the other parent, despite the criticisms they make of each other.
The mother says that the children are at risk of being exposed to violence or aggression whilst in the father’s care, given his past history of aggressive and violent behaviour towards her during their relationship. She further alleges that the children are at risk of emotional abuse in the father’s care, because of the ongoing hostility that he and his extended family show towards her. I will discuss these issues further when addressing the relevant additional considerations in s.60CC(3).
Section 60CC(3) – additional considerations
(a) the children’s views
[X] and [Y] have been interviewed twice during the Court proceedings. Their first interview took place during the child inclusive dispute resolution appointment in May 2012 and the second interview occurred during the family assessment in October 2012.
In May 2012 [X] expressed a strong desire to return to [N] School and concluded that the best arrangement would be that he and [Y] live equally with both parents. He noted that when his mother became angry she could be “very mean” and wished that his mother enjoyed living in [N] and liked the rest of his extended paternal family as much as he and his sister did.[2]
[2] Family Consultant Advice to Court, 3 May 2012, page 3
[Y] expressed a clear wish to live with her father but still see her mother. She also wanted to return to [N] School. [Y] described being scared sometimes when her mother was angry and yelled at her and saw her father as “a lot calmer than her mother”.[3]
[3] ibid, page 3
In October 2012 Mr B interviewed the children together. He reports that:
“Both children clearly articulated they would like the arrangements to be reversed, in other words, for them to live with the father and spend time with the mother on alternate weekends.”[4]
[4] Family Report, para.15
Certain aspects of the children’s interviews with Mr B are concerning insofar as the children appear to be “parroting” their father’s thoughts and views regarding their mother. For example, Mr B reports the children as saying:
“… they had enjoyed recently spending more weekends with the father, and volunteered that this has allowed the mother to go out partying and dancing more.”[5]
[5] Family Report, para.14
He then goes on and reports [Y] as saying:
“… ‘we use[d] to want her home a lot, but she would be out with friends.’ [X] questioned [Y] over this, stating the mother was out less than [Y] was inferring.”[6]
[6] Family Report, para.14
These comments add weight to the mother’s concerns that the children have been exposed to negative discussions and commentary about her lifestyle. However, I do not consider this influence (whether deliberate or inadvertent) undermines the strength of the children’s views. Mr B did not express any concern that the children had been coached or unduly influenced when expressing their thoughts and views.
The children have been very clear in their preference to return to [N] School. Both children clearly feel a strong connection with the [N] area, their school life there and with their sense of place within their extended paternal family. These comments reflect the children’s emotional reality and should not be lightly disregarded.
The mother says the children’s views have since changed. She says that they no longer want to leave [F] School, as they have established new friends and are settled there. It may be that the children have told their mother this, but I am inclined to place more weight on the comments [Y] and [X] have expressed to a neutral third party, such as Mr B.
(b) the nature of the children’s relationship with each of their parents and other significant people in their lives
Mr B observed the children briefly with each of their parents. He noted that the children appeared comfortable with their mother although there was minimal interaction. He also commented that there was no emotion or warmth shown when the mother left the room for the children to be interviewed alone. With respect, I am not precisely sure what demonstration of emotion or warmth Mr B was expecting from the children in such circumstances.
The children greeted their father warmly and Mr B clearly considered that the children’s interaction was warmer and more relaxed than observed with their mother.
I am satisfied that the children have a perfectly happy and meaningful relationship with each of their parents. The concerns that they expressed about their mother’s anger in May 2012 are not repeated in the October 2012 interviews. I consider it likely that the stress within the parents’ deteriorating relationship prior to separation may have had a negative impact upon the mother’s interaction with the children. Now that she is settled in her new life, away from the marital discord, those same concerns do not arise.
The children also clearly enjoy their time with their father’s family and should be able to enjoy these relationships into the future. This is a source of some concern for the mother, as she believes the paternal family denigrate her and undermine her role in the children’s lives. The tenor of the father’s early affidavit material adds considerable weight to the mother’s concerns. However, I am satisfied that all of the relevant adults in the children’s lives are now much more conscious of the need to protect [X] and [Y] from any hostile or critical commentary about either of their parents.
The mother’s extended family live in Ecuador. Financial constraints are such that she and the children are not easily able to travel back to Ecuador, nor are her family in Ecuador easily able to travel to Australia. Nonetheless, the children’s sense of connection with their extended maternal family is also very important, even if these relationships are not as immediately available to [X] and [Y].
c) the willingness and ability of each of the children’s parents to facilitate a close and continuing relationship with the other parent
Both parents are open to criticism in this regard. Mr B noted that in the course of the assessment that:
“Both children made comments to the writer that indicated both parents have been guilty of discussing the arrangements with the children which has caused the children some degree of distress.”[7]
[7] Family Report, para.12
I am particularly concerned that the father and his family have criticised or denigrated the mother and her lifestyle to the children, as indicated by the children’s reference to their mother “going out partying and dancing”. [Y]’s comment that she felt her mother “had lied to them when the mother left with the children”[8] is also reflective of [Y] repeating adult concerns.
[8] Family report, para.15
Both parents have failed to protect the children from their negative views of the other parent but equally, both parents are now well aware of the damage such behaviour can inflict upon their children’s emotional welfare. I am confident that both Mr Lautner and
Ms Lautner acknowledge the importance of the other parent’s role in the children’s lives and will act to support and encourage that ongoing relationship into the future.
The mother has demonstrated her goodwill in this regard by facilitating arrangements for the children to spend time with the father prior to the first Court hearing date.
(d) the effect of any changes in the children’s circumstances
The children have been living in the mother’s primary care since January 2012. The father acknowledges that the children have settled in well at the [F] School. While [X] and [Y] express a desire to return to [N] School and to live with their father in [N], the children themselves are unable to assess the impact of such a move or the disruption in their current living arrangements and their relationship with their mother.
The children retain a strong sense of connection with [N] School and their life in [N], including their relationship with the father’s extended family. If the children return to [N], this will be the fourth change of school for [Y] and [X] within 24 months. However, they clearly enjoyed their time at [N] School, which would ease any transition.
The impact of any change to the parenting arrangements could be reduced if the parties were living in closer proximity as the Court could then consider a shared care parenting arrangement.
(e) practical difficulty and expense
The parties presently live some distance apart but this has not interfered with their ability to ensure the children spend regular time with each parent.
At present the children’s time with the father is limited to alternate weekends and that situation would likely continue for one parent or the other while they each live in their current locations. The transport difficulties are further complicated by the fact that Ms Lautner does not yet have her driver’s licence. She has been in the process of obtaining her probationary licence and hopefully will have completed that process by the time judgment is delivered.
Clearly if the parents were living closer together then other parenting options, including a shared parenting option, become more achievable. The mother is settled in [F] and does not want to return to the [H], where she feels alienated by the father’s family. The father does not want to move from [N], where he enjoys family support and which is convenient to his employment.
(f) parental capacity; (i) the parties’ attitudes to the children and to the responsibilities of parenthood; and s.60CC (4) the extent to which each parent has fulfilled or failed to fulfil their responsibilities as parents
I will discuss these considerations together as they are interrelated.
While both parents raise a number of criticisms in relation to the parenting capacity of the other parent, many of their criticisms and allegations seem to reflect rather a difference in attitude, personality and lifestyle than any genuine belief that the other parent is unable to properly care for the children. I am satisfied that both parties are responsible, committed parents.
During the trial the father appeared to back away from the extraordinarily detailed allegations and criticisms he and his family made against the mother when these proceedings first commenced. He acknowledged the children were progressing well at school and in their mother’s care. He did not consider that [Y] or [X] showed any signs of being neglected or abused by their mother.
The mother continues to hold concerns for the children’s physical and emotional safety in the care of the father. She agrees that the alternate weekend care arrangement has been working smoothly but is worried that the children’s emotional welfare will be seriously compromised if they spend longer time in the father’s care, because they will be further exposed to the hostility the father and his extended family hold towards her.
Both parties conceded that their relationship was volatile and the children had been exposed to fighting and arguments within the household. In my view, these arguments were a feature of the parties’ failing interpersonal relationship and do not reflect the parties’ behaviour and interaction with the children.
I do not consider that the children are at risk of physical, verbal or other abuse in the care of either parent. It may be that the mother will raise her voice when disciplining the children, but this is hardly unusual parenting behaviour. Rather than being frightened of her, the mother says that the children, [Y] in particular, would seek her support and comfort when frightened by their father’s aggressive behaviour.
Both children told Mr B that they believe their father has a calmer personality whereas their mother is more likely to yell at them.[9] I consider these comments may reflect the children’s experience prior to separation, when tensions within the household were very high. They may also reflect the children’s sense of allegiance with their father and a need to provide Mr B with some explanation for their expressed views in favour of their father’s household.
[9] Family Assessment Report dated 11 October 2012, para.15
It is clear that the parties have very limited communication at present. The mother gave evidence that she and the father ‘can’t talk at all’. She agreed that she had not informed the father of her decision to enrol the children at the [omitted] programme and had certainly not discussed whether this was an appropriate counselling regime for the children.
At the same time, it appears that the parties have been able to negotiate arrangements for the children to spend occasional extra time with their father, or to vary the arrangements during the Christmas school holidays from time to time. While those negotiations were largely via text message, it does indicate some capacity for the parties to communicate effectively, at least about practical, pragmatic issues.
While Mr Lautner was less extreme in his criticisms of the mother during the trial, his trial Affidavit repeated many of the original concerns raised by him and did not give me any great comfort that he had moved on to a more positive view of the mother, her parenting, or the importance of her role in the children’s lives. I am concerned that [X] and [Y] will not receive the emotional support necessary to maintain a strong, connected relationship with their mother, were they to live in their father’s primary care.
(g) the maturity, sex, lifestyle and background (including culture and traditions) of the children and their parents
The mother is Ecuadorian and takes justifiable pride in her South American heritage. She has arranged for [Y] and [X] to attend Spanish classes and actively supports the children’s understanding of, and connection with, their Ecuadorian culture and traditions. Ms Lautner is concerned that the children will lose their connection with this rich cultural heritage, should they live in their father’s primary care.
The father denies this claim and says he would support the children’s connection with their Ecuadorian heritage and culture. The father conceded that he did not take the children to Spanish classes on Friday afternoons but said that it was never suggested to him. In any event, given the limited time the children spend in his care at present, he would prefer they spend the time with him rather than attending language classes.
I accept that the father would support the children’s sense of identity and connection with their Ecuadorian heritage, were the children to live in his primary care. He suggested the children would be able to attend Spanish classes in [M], for example. However, the mother is understandably more focussed upon the importance of the children’s cultural identity and I accept she is likely to be more pro-active in this regard than the father.
(j) any family violence involving the children or a member of the children’s family; (k) any family violence order that applies to the children or family members; and Section 60CG Court to consider risk of family violence
I have considered the parties’ affidavit material and heard their evidence given under cross examination. As already mentioned, the parties clearly have a volatile relationship which descended into physical aggression on at least one occasion.
Both parties say the other was the prime instigator of the incident that occurred in November 2007, when the police attended. It may be that the mother was intimidated by the father’s aggressive behaviour during such arguments. However, I do not consider that the past difficulties within the parties’ relationship indicate that the children are at risk of being exposed to family violence in either party’s household.
Nor do I consider that [X] and [Y] are at risk of being exposed to violent behaviour between the parties at handover. The parties have been conducting handovers for over 12 months without any significant problems occurring. Both parties now understand the importance of ensuring their children are not exposed to any aggressive behaviour, whether between their parents at handover, or at any other time.
I do not consider the remaining s.60CC considerations need further discussion.
Conclusion
Both parties are seeking an order for equal shared parental responsibility. I agree that this is an appropriate outcome for [X] and [Y] and reflects the level of commitment and love that both parties bring to their parenting responsibilities. However, the parties will need to further improve their co-parenting communication in order to effectively share in decisions about the children’s care and welfare.
In accordance with s.65DAA, the Court must then consider whether an order for equal time is in the best interests of the children and is reasonably practicable.
In light of all the evidence I have heard, I conclude that an order for the children to spend equal time in the care of their parents is very much in [X] and [Y]’s best interests. Such an outcome acknowledges the children’s wish to spend more time in their father’s care but will also ensure the children maintain a strong relationship with their mother and importantly, a strong sense of their South American heritage.
While the children have expressed a wish to live in their father’s primary care, I consider it likely that those views reflect that [X] and [Y] believed only two options were available: that is, they either live with their mother in [F] and spend alternate weekends with their father, or live with their father in [N] and spend alternate weekends with their mother. Given the strength of the children’s connection with the [N] area and [N] School, it was their father’s home they chose.
While I am satisfied that an order for equal time is in the children’s best interests, such an order can only be made if it is also reasonably practicable. It is difficult to see that it will be practical for the children to live half time between [N] and [F]. While the distance is not impossible, it would certainly make life much more difficult for the children. An order for equal time would become much more practical if the parents live closer together.
The mother is settled in [F] and has an established social network and community there. Although she does not want to move to the [H] area, there is no real barrier to her doing so. It is unrealistic to expect
Ms Lautner would return to live in [N], given the hostility she has experienced from the father and his extended family but she could live in a nearby regional centre such as [M]. While members of the father’s family work in [M], it is a large enough town that the mother would not necessarily encounter Lautner family members on a regular basis. I note the mother considered moving to [M] at the time of separation.
If the mother moved closer to [N], the children would then be able to live in alternate weeks with their father and importantly, they would be able to return to the [N] School. [X] and [Y] would also be able to live on an equal time basis with their mother, which will ensure they are able to maintain a strong and secure relationship with their mother, based on their own experience of her care, rather than any negative commentary from their father.
The other alternative is that the father moves to live in the [F] area. While this is an option, Mr Lautner would have a much longer drive to and from work which would mean that he would not be able to deliver and collect the children from school. He would not have the immediate family support that is available to him in [N]. More importantly, this outcome would not meet the children’s expressed wish to return to the [N] area and to [N] School.
In the event that the mother chooses not to return to live nearer to [N] then the question becomes: which parent should have primary care of the children?
This decision is finely balanced. The children have been living with their mother for the past 15 months. I am satisfied the children are well cared for by their mother and have settled comfortably into their new school. Nonetheless, the children have consistently expressed a wish to return to their father’s care in the [N] area and to return to their old primary school.
The mother says that the children’s views have changed in that regard, but I can only be guided by the independent information contained within the Family Report. I also note that the views expressed by [X] and [Y] have been consistent across 2012. On balance, I conclude that it is in the children’s best interests that they return to live in the [N] area and attend the [N] School.
I do not consider that it is in the children’s best interests that they live in their father’s primary care, given the concerns I hold about the lack of support for the children’s relationship with their mother. Nor do I consider it is in the children’s best interests that they remain living with their mother in [F], given the children’s views and the recommendations within Mr B’s report. However, in the event the mother is unable or unwilling to relocate closer to the [H] region, then I conclude that the children’s strong desire to return to [N], and to [N] School, should prevail and the children should move to live in their father’s primary care.
I know that Ms Lautner is devoted to her two children and I hope that she will decide to move closer to [N] School. Assuming that is the case, thereafter [X] and [Y] will live with each parent in alternate weeks on the basis that they attend the [N] School and that both parents live not more than 20 minutes drive from the school.
There are still practical issues to be considered. The mother may not yet have her driver’s license. Ms Lautner will need time to consider whether moving to live in or near a town such as [M] is a viable option for her and if so, she will certainly need time to make appropriate arrangements with respect to accommodation and so on.
The mother should be given sufficient time to make those arrangements. In order to limit the number of changes that the children experience in terms of their parenting arrangements I conclude the children should continue to live with their mother and attend [F] School until the end of second term 2013, or such earlier time as the mother chooses to relocate. Thereafter the children will live with each parent in alternate weeks
In the event the mother does not move to live in the [H] region then the children will move to live in their father’s primary care at that time, and spend alternate weekends with their mother. An alternate weekend regime ensures the children have ample leisure time in their primary home base, as well as with their other parent.
[X] is presently in grade five and [Y] is in grade four. Once the children move to High School, I would expect the parties to enter into sensible discussions about the choice of secondary school. I see no reason why the parties would be limited to high school options within the [H] area by that time. Both parents will need to demonstrate some flexibility with respect to their living arrangements and the children’s high school education arrangements.
Hopefully the parties will be able to negotiate for [X] and [Y] to spend time with both parents on special occasions, but it is appropriate to set out a framework in that regard, given the past history between the parties. I conclude it is also appropriate to set out clear guidelines to help improve the future co-parenting communication between
Mr Lautner and Ms Lautner, for the sake of their two young children.
I now make orders as published at the commencement of these Reasons.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Associate:
Date: 18 April 2013
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Family Law
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