Lawson and Moloney
[2014] FCCA 805
•12 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
LAWSON & MOLONEY [2014] FCCA 805
Catchwords:
FAMILY LAW – Parenting – competing proposals – where mother leads an alternative lifestyle – whether mother should prioritise the needs of her children over the needs of other children or the needs of other people – whether equal time or substantial and significant time.
Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII
MRR v GR [2010] HCA 4
Applicant: MR LAWSON
Respondent: MS MOLONEY
File Number: WOC 904 of 2012
Judgment of: Judge Altobelli
Hearing dates: 13 and 14 March 2014
Date of Last Submission: 14 March 2014
Delivered at: Wollongong
Delivered on: 12 May 2014 REPRESENTATION
Counsel for the Applicant: In person
Counsel for the Respondent: In person
Counsel for the Independent Children’s Lawyer: Ms Humphreys ORDERS
(1)The Children the subject of this Order are:
1.1X born (omitted) 1998;
1.2Y born (omitted) 2000.
(2)The parents the subject of this Order are:-
2.1 Ms Moloney
2.2Mr Lawson
Orders for Parental Responsibility
(3)That the mother and father are to have equal shared parental responsibility for the children and: in relation to the care, welfare, and development of long term nature involving the children to include but not limited to issues about:
3.1The education of the children both current and future;
3.2The children’s religious and cultural upbringing;
3.3The children’s health;
3.4The children’s names;
3.5Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
AND in the event that the parents are not able to reach an agreement then the decisions shall be made by the father.
(4)That the father is to have responsibility for making decisions as to the children’s day to day care, welfare and development during the periods when the children are living with him.
(5)That the mother is to have responsibility for making decisions as to the children’s day to day care, welfare and development during the periods when the children are spending time/communicating with her.
(6)That both parties are to refrain from making critical or derogatory remarks about the other party or members of his or her family in the presence or within the hearing of any of the children and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the either party or members of his or her family in the presence or within the hearing of any of the children.
(7)That each parent is entitled to attend all events involving the children, but not limited to:
7.1sporting fixtures;
7.2Extra curricular activities that allow for parental attendance or participation;
7.3School functions and events that allow for parental attendance or participation.
AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
Orders for Parental Communication
(8)That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:
8.1Any medical problems or illnesses suffered by the children whilst in each parent’s care;
8.2Any medications that have been prescribed for the children;
8.3Any specialist medical appointments with any medical doctors. Psychologists, counsellors or therapists regarding the children;
8.4Any significant social, school or religious functions which the children are to attend;
8.5The details of any school(s) attended by the children;
8.6The details of any sporting body(ies) that the children are involved in;
8.7the residential address of each parent and particulars of others who may reside with the children;
8.8Any other important matter relevant to the welfare of the children.
(9)That each of the parties is to provide full particulars of any medical practitioners, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.
(10)That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporing bodies to facilitate this.
(11)That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
Orders for Lives With/Spending Time with each Parent
(12)That the children live with the father.
(13)The children are to spend time/communicate with their mother as follows:
13.1During school terms, in each alternate weekend commencing at 6:00pm on Friday overnight and through and until Sunday at 6:00pm; and
13.2During school terms, in relation to Y, each Wednesday during school term from the conclusion of school until the commencement of school on Thursday.
13.3In respect of the shorter school holidays for the first half of each school holiday period commencing from the conclusion of school until 6:00pm on the middle day of such school holiday period.
13.4In respect of the Christmas school holidays, for two separate periods of seven (7) consecutive days, the commencement of such times as agreed between the parties, but in the event that no agreement occurs then the first period of seven (7) consecutive days shall commence on 1st January in each year and the second period of seven (7) consecutive days shall commence on 15th January in each year, the commencing and concluding times shall be at 6:00pm.
13.5In respect of Christmas, in 2014 and each even numbered year thereafter commencing from 2:00pm on Christmas Day (25 December) until 6:00pm on Boxing Day (26 December), and on each odd numbered year from 2:00pm on Christmas Eve (24 December) until 2:00pm on Christmas Day (25 December)..
13.6That should Mother’s Day not already coincide with a period of time that the children are spending with the mother, then time on that day shall commence at 9:00am and conclude at 6:00pm.
13.7To give effect to these orders, then that period that the children are to live with the father coinciding with the times specified above are suspended.
13.8Such further and other times as agreed.
Orders for communication
(14)That the children are to communicate with the parent they are not then living with/spending time with by telephone at any reasonable time and each parent is to facilitate that communication.
(15)That the parents be restrained from discussing with or showing to the children any document relating to these proceedings.
Orders for Transportation
(16)To give effect to these orders the father shall deliver the children to the mother’s residence and collect them from her residence at the commencement and conclusion of each period of time, unless otherwise agreed by the parties in writing.
Orders for Dispute Resolution
(17)In the event that the mother and father cannot come to a shared decision about a major long term issue as set out in Order 3, the mother and father will do all things necessary to participate in a Family Dispute resolution with a person authorized under Section 10G of the Family Law Act.
(18)The process used for resolving disputes about the interpretation, implementation or enforcement of these Orders is as follows:
18.1The father and mother shall do all things necessary to attend counselling or mediation with an organisation recognized under the Family Law Act or by the Commonwealth Attorney General; or
18.2The father and mother shall participate in Family Dispute Resolution with a person authorized under s 10G of the Family Law Act
Other orders
(19)On a without admission basis, during any periods of time that the children are spending with the mother the children are not be brought into contact with Mr R.
(20)Apart from these orders, all previous orders are discharged.
IT IS NOTED that publication of this judgment under the pseudonym Lawson & Moloney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIAAT SYDNEY
WOC 904 of 2012
MR LAWSON Applicant
And
MS MOLONEY Respondent
REASONS FOR JUDGMENT
Introduction
1.These reasons for judgment explain why the Court has made the orders that it has made. The case relates to two children, X who is 15 years old, indeed will be 16 in (omitted), and Y who is 13, and will turn 14 in (omitted). The applicant is their Father. He is 47 years old and lives with the children in a suburb of (omitted), in the (omitted) area. The children’s mother is the Respondent. She is 42 years old, and lives in another suburb in (omitted). The children currently live with their Father and spend time with their Mother each Wednesday overnight to Thursday, and each alternate Saturday and Sunday, as well as during the school holidays.
2.Both the Father and Mother represented themselves. The children were represented by an Independent Children’s Lawyer, Mr Michael Davies. Counsel appearing for the children at the hearing was Ms Humphreys.
3.The Father’s proposed orders at the hearing are contained in a document entitled Final Orders Sought, which has been reproduced in the first schedule to these reasons. In short, he seeks a continuation of the existing arrangements in relation to the children.
4.The Mother’s proposal at the hearing was somewhat unclear. The handwritten document that she provided, entitled Proposed Orders, has been typed out and reproduced in the second schedule to these reasons. During the course of the evidence it became apparent that what the Mother in fact wanted was that the final determination of orders relating to the children be postponed until certain Centrelink issues had been resolved, presumably in her favour. More will be said about the Mother’s proposed orders in due course.
5.The Independent Children’s Lawyer’s proposal is contained in the Minute of Proposed Orders that is reproduced in the third schedule to these reasons. The Independent Children’s Lawyer proposed that the children live with their Father, and spend time with their Mother in each alternate weekend commencing at 6 pm on Friday and concluding Sunday 6 pm, together with school holidays.
6.As will become apparent below, the Family Consultant, Ms M, suggested a slightly different proposal as being in the best interests of the children in this case.
Background
7.Matters of background are adequately set out in the Family Report, and are uncontentious. The parents initially met in Adelaide in 1993, went their separate ways, and then met again in September 1997. By (omitted) 1998 they were married. They separated in December 2005. The Father lives with his de facto partner, Ms H. He is a self-employed (occupation omitted) who works from home. His partner is an (occupation omitted) employed on a contract basis at the (employer omitted).
8.The mother lives in Department of Housing accommodation. She is the carer for Mr B, who lives in her home, though is not otherwise in a relationship with him. The mother has a child, Z, living with her. Z (known as Z) is 9 years old. Z’s father is Mr R, and both the Father in these proceedings, and the Independent Children’s Lawyer, seek orders that the children not be brought into contact with Mr R. As it turns out the Mother is pregnant to Mr R and expects to give birth in a few months. She is not in a relationship with him and her evidence is that she has no intention of having a relationship with him. Another member of the Mother’s household is Ms T. Ms T is 17 years old. She is not biologically related to anyone in the Mother’s household. At one stage Ms T’s brother, Mr T, had lived in the Mother’s home as well.
9.The current arrangements for the children to spend time with the Mother were the result of consent orders made on 15 November 2012.
10.Both parents are intelligent and articulate people. It was far more difficult for the mother to stay focused during the hearing on matters pertaining to the children than it was for the Father.
11.The child, X, suffers from Asperger’s syndrome.
12.It would be fair to say that whilst the Father’s lifestyle would be considered to be a conventional one, the Mother’s is not. The Mother’s description of herself to the Family Consultant, as recorded at paragraph 14 of the Family Report dated 3 June 2013 is, based on the Court’s observation of the mother, unquestionably correct. She described herself “as someone who embraces others who are less fortunate than she is.” The Mother has a passion for social justice issues, particularly Indigenous issues. She is broadminded, community conscious, inclusive in her thinking and with the people with whom she associates, and passionate about the causes she embraces. Her heart is, figuratively speaking, huge.
The Evidence
13.The Father relied on his affidavit filed 28 February 2014, together with the affidavit of his partner Ms H, also filed on that date. Ms H was not required for cross-examination, but the Father was.
14.The Mother relied on her affidavit filed 30 January 2013. The Mother chose not to file further material at the hearing.
15.A Family Report was prepared by Family Consultant Ms M, and is dated 3 June 2013. Ms M was cross-examined.
16.During closing submissions counsel for the Independent Children’s Lawyer submitted that where the evidence of the Mother and Father differed, the Father’s evidence should be preferred. This was based on the manner in which the Mother gave evidence, in contrast to how the Father gave evidence. She submitted, and the Court accepts, that in evidence the Father was calm, reflective, and made appropriate concessions. By contrast, the Mother was unresponsive and evasive in questioning. The Court agrees with the Independent Children’s Lawyer’s submission, but notes that this is not a case where credit issues will play a definitive role. It could not be said, for example, that the Mother was deliberately evasive in her evidence, or that she had lied. The Court’s impression of the Mother is that she is unconventional and unorthodox, if somewhat alternative, in terms of her lifestyle and view of the world. This Court case is not about judging her for being who she is, but rather trying to establish what is the order that is in the best interests of the children. Nonetheless, to the extent that it is relevant and necessary, where the evidence of the Mother and Father contradict, the Father’s will be preferred.
The Applicable Law
17.In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
18.The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
19.At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
20.If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
21.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
22.In MRR v GR [2010] HCA 4 the High Court said:
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
23.A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Family Report
24.The Family Report indicates that as at May 2013 the dispute between the parents appeared to be whether the children ought to continue to live in the current parenting arrangement as proposed by the Father, or return to the Mother’s preference of an equal time arrangement.
25.It is helpful to set out the issues that the Family Consultant identified during the assessment:-
a)The father’s concerns for the children’s stability and general welfare, if there are any changes to the current arrangements, as a result of his belief that, in the past, the mother has failed to prioritise the children’s needs over those of other, and non-related, members of her household as well as his concerns that the mother is not able to provide adequately for the financial needs of the children.
b)The impact on the children as a result of the different parenting styles in each home.
c)The mother’s dismissive attitude towards the father and also Ms H and her negative attitude to the parenting approaches in the father’s home.
d)Potential negative impact on the children as a result of their mother’s highly volatile nature and aggressive attitudes.
e)The impact on the mother’s parenting capacity in relation to the subject children as a consequence of her involvement in a range of disputes with various government departments, community agencies and her on-going disputes with Z’s father.
f)Uncertainty as to the composition of mother’s household and the stability of her current accommodation should Mr B move to the Sydney area and/or Ms T move from the household.
26.The Family Consultant’s experience of engaging with the two parents was quite different. For example, she found the Father to be a supportive and concerned parent who was genuinely concerned with how best to ensure the children are supported in continuing their relationship with their Mother, whilst giving them some stability, predictability and consistency across all areas of their lives. Whilst he was concerned about some of the alternative aspects of the Mother’s household his focus was on the potential adverse impacts on the children of her very different approach to parenting.
27.The Family Consultant’s encounter with the Mother was quite a contrast. Paragraph 12 of the report states:-
Ms Moloney (aged 41 years) failed to attend her interview at the appointed time. Her solicitor was contacted. Ms Moloney, on her arrival, asserted that her appointment had been for 11 am not 9 am. She attended alone and angrily informed the writer that she was the “spokesperson” for the other members of her household who, Ms Moloney said, were either too ill to attend or did not wish to attend. She said that she did not understand why Z would be required to attend as “he is too little to be interviewed”. Ms Moloney was agitated and emotionally volatile during her initial interview. Her focus was on: issues in relation to Mr B’s health and an upcoming meeting of all his medical and allied health supports at the Aboriginal Medical Centre the next week in relation to his longer term care (it seems that Mr B requires hospital treatment in Sydney and in this event his daughter, who lives in Sydney, will replace Ms Moloney as his carer); Ms T’s educational and emotional needs (she has apparently not attended school for “over two years” and is resistant to seeing a counsellor); and Ms Moloney’s difficulties with Z’s father, the local indigenous community (of which Z’s father is an Elder) and various government departments and community services. There was also a substantial focus on the alleged undermining of her parenting of X and Y by Mr Lawson and Ms H. Ms Moloney’s attitude towards Ms H was dismissive and coloured
by Ms Moloney’s belief that Ms H has a lack of understanding of Australian cultural norms (Ms H was born in (country omitted)) particularly in relation to parenting. Ms H was described by Ms Moloney as “venomous”. Ms Moloney eventually agreed to return to her home and encourage both Mr B and Ms T to attend later in
the day. She was advised, however, that in any event, she needed to return with Z. Her second interview was scheduled for 2 pm. Ms Moloney arrived at approximately 2.25pm as the writer was suggesting to Mr Lawson that no further interviews would occur that day. Ms Moloney was accompanied by her youngest and Ms T. Mr B did not accompany her.
28.The Court records that over the two days when this matter was heard, the Mother was never observed to be angry, agitated or emotionally volatile. She was, for the most part, polite and appropriately deferential. She found it hard to focus on the relevant, as do most self-represented parents.
29.Paragraph 13 of the Report reflects her views about parenting arrangements at the time:-
Ms Moloney is adamant that the parenting arrangements for X and Y ought to revert to an equal time parenting arrangement. She denies that there was any reason for Mr Lawson to apply to the Court to change that arrangement. Ms Moloney is adamant that the only reason for Mr Lawson seeking the change to the equal time arrangement was that he was, and continues to be, “judgmental” and “prejudiced” in relation to her lifestyle and parenting approach. Ms Moloney said that Mr Lawson and Ms H ought to have approached her directly with any concerns that they had for the children in her home instead of filing an Application. She said that she would have arranged for them to meet Mr B, Mr T and Ms T so that any concerns they might have could have been more appropriately addressed.
30.The Family Consultant interviewed X, who was nearly 15 at the time. The Family Consultant records in this regard at paragraphs 18-20:-
18. From X’s perspective, even though he knows that what his parents’ arrangements will be will be either agreed to between his parents or decided by the Court, he “feel[s] like I am in the middle…anything I say will have an effect on…” the outcome. X described himself as feeling as if he is “a ghost in purgatory…nowhere to go”. He said that he wants to grow up quickly so that he can leave home. Given his experience of the conflict between his parents he said that, if his parents visit him in his home when he is older, he would not allow “any rows or bickering”. If there was, he said, he would “usher them out” of his home.
19. X continues to experience his father’s home as quieter and more structured than his mother’s home where there is, he said “lots of commotion” adding that he is, however, always able to find “a place where I can be by myself”. Despite all these comments, X “ideally” wishes that he and Y could live in an equal time arrangement but seems to understand that would not be the best arrangement for him.
20. X made comments about Mr B and Z, indicative of his accepting their presence in his mother’s home. He said that, while he and Ms T are polite to each other, they have very limited interaction. Despite his comments about a mere acceptance of Z, X went on to described how he enjoys injecting more fun and creative dimensions into games which plays with Z and his friends.
31.The Court observes that based on this evidence, as well as the evidence that each of the parents gave about X, he is clearly intelligent and insightful, and had a remarkable capacity to see things from multiple perspectives.
32.Y was nearly 13 at the time of the interview. The Family Consultant records at paragraph 22:-
As he did during the Child Inclusive Conference, Y spoke positively about his relationship with all the members of his mother’s household, particularly with Z whom he described as being “awesome”. Y also said that “ideally” he would like to return to live in an equal time arrangement commenting wistfully, “but it wasn’t working”. He also commented on the quieter and more structured approach in his father’s home compared to the noisy atmosphere at his mother’s home. Y commented on the number of people who are often in and out of his mother’s home and indicated that he prefers his father’s home “with less people in and out”. Y said that he is “sometimes” concerned that, from his perspective, his mother does not seem to have sufficient food in her home to feed all the people who are there.
33.Y also is intelligent and insightful.
34.The observation of the parents and the children is contained at paragraph 24:-
During the observation of the children with their father and Ms H, there was much discussion about an overseas holiday they had gone on and the planning for a future one. The children were relaxed and made appropriate eye contact with their father and Ms H. Overall there was a cohesiveness and quietness to their interactions. With their mother, Z and Ms T the children were also relaxed. This group was, of course, much busier with much animation and laughter. While X pursued his own activity, Ms Moloney was able to engage him in such a way that he was included in the activity of the larger group. There was animated discussion between X and Ms T about a musical group they both enjoy. Y and Ms T were both attentive to Z and the whole group applauded X’s construction which he hoped would (and did) fall in a domino-effect pattern. There were affectionate farewells between the children, their mother, Z and Ms T at the end of the observation.
35.Clearly, from this evidence, indeed all other evidence before the Court, there are few concerns about the nature of the children’s relationship with each other, and each parent.
36.Ms M’s evaluation is contained at paragraphs 28-32, inclusive. These children are loved by their parents and love each of their parents. In her professional view, the Family Consultant believed that the Father had always promoted the children’s relationship with their Mother and supported regular contact. His concern was about the lack of structure in the Mother’s home. At paragraph 30 Ms M observes:-
Despite what each parent might think of the other and the other’s past actions in relation to the parenting matter, their respective parenting of the children has led to their being parents of two confident, articulate and caring adolescents. This is evidenced by both children acknowledging that “ideally” they would both like to return to an equal time arrangement. It is an indication of both children’s level of maturity that they are now able to reflect on their own individual needs, particularly in terms of understanding the need for structure in their lives during school terms, and balance this view and need against their respective wishes to return to an equal time arrangement.
37.Moreover at paragraph 31 she observes:-
It is recommended that the parents have equal shared parental responsibility for X and Y.
38.Ultimately Ms M recommended that the parents have equal shared parental responsibility, that the children live with their Father and continue to spend time with their Mother in accordance with the existing consent orders.
39.When counsel for the Independent Children’s Lawyer cross-examined Ms M she did so with the benefit of instructions from Mr M who had met with the boys much more recently than the Family Consultant, and had a more contemporaneous understanding of the children’s views. Thus, the Family Consultant could see the benefits of slightly different orders in relation to Y and X if, for example, Y preferred to spend Wednesday nights at his Mother’s, whereas X did not. Indeed, the obvious benefit that the Family Consultant noted was that the prospect of the Mother spending one on one time with each of her sons was something that would be valued by the boys.
40.The Family Consultant also agreed that when she recommended sharing of school holidays, she did not mean that in the December/January school holidays it should be taken as a three week block. She agreed with the proposition that it should be two one week blocks during the summer holidays.
41.Ms Moloney challenged the Family Consultant in cross-examination about the inadequate weight that she had placed on the importance of, and the nature of the boys’ relationship, with Z. The Family Consultant explained that there was no question about the emotional connection between the boys and Z but there were practical considerations having regard to significant age differences. Her opinion was that the boys already have a strong and positive attachment with Z which won’t change by either increasing, or decreasing the amount of time that they spend with Z. She emphasised that the reason for supporting the Father’s proposal, and being against equal time, is that the boys enjoyed a predictable, stable and calm environment in their Father’s home, something which wasn’t present in their Mother’s home. The Family Consultant explained to the Mother that the boys felt it was to their detriment to be spending equal time with her and that they felt as if they were merely one location on a map in the Mother’s household, instead of being the centre in the Father’s household.
42.The Court accepts the evidence of Ms M, as Family Consultant. Nothing was put to her in cross-examination that would contraindicate the Court accepting the recommendations that she has made, subject of course to any further evidence, as will be discussed below.
Meaningful Relationship
43.The children enjoy a meaningful relationship with both their Mother and Father. There is no proposal before the Court which, if accepted, would have the effect of changing that. This consideration is not a relevant one in the present case.
Protecting the Children from Harm
44.If the children were younger than they are, and thus had less self-protective capacity, some of the evidence in this case would raise real issues of risk relating to the children, whilst in their Mother’s care, and of their Mother’s capacity to protect them from this risk. The Court therefore concludes that, because the children are, in effect, old enough to protect themselves, there is no issue about protecting them from any risk or harm. However, it is convenient to discuss the evidence here because it informs the Court’s conclusion about other considerations, shortly to be discussed.
45.Until the closing moments of the case the Mother opposed the order sought by the Independent Children’s Lawyer that, on an without admissions basis, during any periods of time that the children spend with the Mother, they are not to be brought into contact with Mr R. Mr R is Z’s father, as well as the father of the Mother’s unborn child. It seems as if the Mother has had a past relationship with Mr R, but the Court accepts her evidence that she has no relationship with him at the moment. Mr R is facing charges of child sexual abuse. That is an uncontested fact in this case. Before then, the Mother took objection to the need for an order, telling the Court that, “I have kept them safe in the past.” The Mother’s concern was that she didn’t need an order to keep the boys away from Mr R, because it is something she would do anyway. In cross-examination the Mother admitted that she was aware of “private” allegations concerning possible paedophilic activities involving Mr R. She acknowledged that the allegations had now become “public” as a result of the charges laid against Mr R. She agreed in cross-examination that not only “have there been concerns for many years” about Mr R but that she had been “extra-communicated due to the expression of my concerns about him.”
46.The Court concludes that there is no risk to harm to the children from Mr R and that the mother has shown sufficient insight to be trusted to protect them from him. Her objection is about not being trusted to do this. At the end of the day the Court interprets what she said as an indication that she doesn’t oppose the order. Her concern about Mr R’s possible absence from the boys’ lives, both directly and indirectly, is that he was a link between the boys and Indigenous culture, which link the Mother greatly values. The reality is that Mr R is both the father to Z and to the Mother’s unborn child and, by virtue of this, thus has a possible future role in the Mother’s life. The Court will make the order proposed, out of abundant caution, but this should not be interpreted by the Mother as any lack of confidence in her ability to protect all of her children from Mr R, should there be a need to do.
47.The Mother was extensively cross-examined about Mr B, a member of her household, though unrelated to her. He has been a member of her household since mid-2012. In cross-examination the Mother explained that Mr B had been homeless for a few months so she took him in, at about the same time as taking in Ms T. When cross-examined about the extent to which she was aware of Mr B’s criminal history she agreed that “snippets” came out over time and that he had referred to his “dubious youth” including a charge for bank robbery, as well as Mr B mentioning to her an incident with his son-in-law involving a bullet. The Mother was then presented in cross-examination with Mr B’s criminal history, according to police records. The criminal record starts in 1969, and ends in August 2012. Apart from an extensive juvenile criminal history Mr B has adult convictions relating to drugs, alcohol, assault, malicious damage, resist arrest, possess prohibited weapon, possess unauthorised firearm, possess loaded firearm, discharge loaded firearm, various driving offences, custody of knife in a public place, assault occasioning actual bodily harm, intimidate police, and resist police. The police records indicate that his latest offence, involving high range prescribed concentration of alcohol, occurred whilst he was in the Mother’s home, and resulted in a suspended 16 month period of imprisonment. If the Mother was surprised by this information, she most certainly did not visibly manifest this in the witness box. She explained that she “didn’t do a criminal check, he seemed a gentle person, with a disability. I was very sensitive to this.” When pressed about whether she knew that Mr B had an alcohol problem the Mother explained that, yes, she believed he did have a problem, but that he was a “quiet drunk” who kept to himself in the back shed.
48.The Mother agreed that Mr B was still a member of her household. She explained that he is “not a threat to the children”. Counsel for the Independent Children’s Lawyer put it to the Mother, however, that his extensive criminal record questions the Mother’s ability to judge his character. The Mother disagreed, explaining that she is his carer for Centrelink purposes. When pressed again about the issue of her judgment, particularly in view of Mr B’s extensive criminal record, the Mother commented to the effect that “he must be selective about who he assaults, as it is not us.” When asked whether, now that she is fully aware of his past criminal history, it would change anything, the Mother indicated that from her perspective it would not. She explained that if there was a problem with Mr B, she would call the police and indeed added, “We have called them a couple of times.”
49.Unlike Mr R, who is not in the home and who is unlikely to be in the home, Mr B is a member of the Mother’s household and could present a risk to the children but for the fact that they are old enough to protect themselves. The issue that is raised by these facts is not about protecting the children from the risk of harm, but about the Mother’s attitudes and insight.
The Children’s Views
50.The views of the children have been discussed in the context of what they told the Family Consultant, and which is recorded in the Family Report, together with the Family Consultant’s observations about the weight that ought to be put on those views. Clearly the boys are mature and sophisticated and can themselves see that their views for equal time are idealised and impractical.
51.There are two documents in evidence that are also relevant to the children’s views. Exhibit ICL 2 is a document entitled Statutory Declaration (but not declared as such) in the handwriting of X. It is dated Sunday, 2 March 2014. It is an uncontested fact that this was prepared whilst X was in his Mother’s care, with his Mother’s facilitation. The document states as follows:-
I have not had my voice heard as I saw no mention of the children staying over at mum’s Friday evening to Sunday 6 pm and dropping Wednesday altogether as it is stressful to pack just for one night in the report. On the other hand I am aware that my mother was not supposed to disclose this information with me, but in my defence, did not know until reading about said (word indecipherable) in said report. However, reading the report has awoken me to a fact that the independent children’s lawyer has mis-wrote what my wish was.
The significance of this document, the Court accepts, is that it evidences X’s desire to drop midweek contact in favour of alternate weekend contact, due to the stress he experiences in packing just for one night. The Court accepts this. The document, and the circumstances of its preparation however, raise concerns about whether X has been inappropriately involved in this case by his Mother.
52.The second document is exhibit A1, an email dated 4 March 2014 from the Father to the Independent Children’s Lawyer. It purports to have been sent to the Independent Children’s Lawyer by the Father on behalf of the children. It is too long to reproduce in its entirety so only an overview will be given. According to the Father both boys were upset when their Mother informed them that she was pregnant again to Mr R. Y was so upset that he declined to spend the weekend with his Mother, but X did go. The email states:
You are probably not aware that since Ms Moloney started asking the boys to write letters to the Court and Housing Department and Centrelink on her behalf back in October – Y hasn’t stayed at her house for a weekend. She picks him up and then he goes to a family friend’s house.
There was an incident outside the Father’s home when the Mother came to collect X but Y declined to go. The Father asserts in the letter, presumably based on what X told him, that the document called Statutory Declaration signed by X was the product of the Mother’s haranguing him. In this email the Father agrees that there was benefit to X in not spending midweek time with his Father.
53.Exhibit A1 seems to corroborate X’s desire not to have midweek time with his Mother. Likewise, however, it does raise issues about the extent to which the Mother has inappropriately involved the boys in advocacy on her own behalf, not just in this case, but generally. These are insight and attitudinal issues, rather than issues that go to the views of the children.
54.It should be recalled that the Family Consultant’s evidence was that even if the midweek time for X was dropped, it should not be for Y and that this, in any event, created the opportunity for one on one time between the Mother and each of the boys.
55.The Court concludes that X has expressed the view not to spend midweek time with his Mother, a view that should be given weight to and accommodated, provided there are no countervailing considerations.
Nature of Relationships
56.These boys are blessed with good relationships with their Mother, Z, their Father, and their Father’s partner. There is no reason to expect that that will change, unless the Mother allows it to change. The boys’ relationship with their Father is different to their relationship with their Mother. The boys perceive that in their Father’s household they are at the centre. The Mother’s household is far more egalitarian and alternative. The boys are part of a household that includes the Mother, Ms T, Mr B, and Z. She feels obliged to provide for each and every one of them, giving no priority to one over the other. In cross-examination it became quite obvious that it was inconceivable to the Mother that she would provide in a material sense more for her children than any other member of her household. The Court will not judge her for this. The children love her just as much, notwithstanding this. In another case, where the children were younger and thus had less self-protective capacity, there might have been concerns about the Mother in the Mother’s relationship with the children being inappropriate. There might be criticism if it were the case, for example, that she had used the boys to advocate for themselves or for her in this case, or for the Mother in any other context. In this case, all that matters is that the boys enjoy a good loving relationship with their Mother despite what some might regard as her eccentricities, and they enjoy a different and equally good relationship with their Father. This will not change unless one of the parents allow it to change.
Parental Involvement in Decision-Making
57.A theme that emerged from the Mother’s evidence and submissions is that she has always felt controlled by the Father in terms of her relationship with the boys. Without actually articulating this, the Court senses she felt excluded from decision-making in relation to them. There is no evidence to suggest this, however. Indeed, despite the two parents being very different, particularly in their parenting styles, and obviously experience communication problems, there is no evidence about how this has worked to the detriment of the boys.
Extent to which a Parent has Fulfilled their Obligation to Maintain the Child
58.Clearly the Mother has been on Centrelink benefits for many years and has thus not been in a position to provide financially by way of child support. The Father makes no criticism of this. It is not an issue in this case.
Likely Effect of Change in the Children’s Circumstances
59.The Independent Children’s Lawyers and the Father’s proposal provide for minimal change, even if the Court were to accept that X does not want midweek time with his Mother. It is much more difficult to say, as regards the Mother’s proposal. Her response filed 30 January 2013 proposes equal time. What she told the Family Consultant during the course of the Family Report interviews suggest her desire to have equal time. The minute that she provided to the Court does not articulate this. Indeed, there is a less than subtle hint in the document provided by the Mother entitled Proposed Orders that the father should accept full care of the children until she has resolved her Centrelink issues.
60.If the Mother’s real proposal is equal time, that would be a substantial change in the children’s lives and one that they clearly do not want. If the Mother’s proposal is that the children live permanently with the Father, even on an interim basis, whilst that is a change they could cope with, it is also a change they would prefer not happen.
61.The most realistic scenario involves a continuation of the existing arrangements, with some modification, and which would see the children continuing to spend regular time with their Mother.
Practical Difficulty and Expense
62.There are no issues in this case about practical difficulty and expense associated with spending time with or communicating with either parent.
Issues of Parental Capacity
63.The Mother was critical of the Father in the sense of seeking to control the boys, but there is no evidence to validate her concerns. What the Mother interprets as control really is a manifestation of the different parenting styles of the parents, and the different households in which they live. What she perceives as controlling is probably no more than authoritative parenting which involves setting clear but appropriate boundaries for the boys, particularly in their adolescence. There is simply no evidence to suggest issues of capacity to parent on the Father’s part, or in his household, and the Independent Children’s Lawyer certainly did not suggest this.
64.The focus turns to the Mother’s capacity to provide for the children’s needs. Both the Father and the Independent Children’s Lawyer raised concerns about this. To be fair to the Father, however, he did not actively raise these concerns in his case. He felt that, provided the children were primarily in his care, any concerns about the Mother’s capacity to provide for the boys was a manageable concern during the time that the boys spend with her. It was the Independent Children’s Lawyer who, quite appropriately, ventilated these issues.
65.This is one of those rare cases where there is a clear issue about the Mother’s ability to provide for the children’s physical needs, in a financial sense. At the very least, implicit in the concerns about her Centrelink benefits, is a recognition that she is struggling financially in her household, having regard to all the members of it, and irrespective of her legal (as opposed to perceived moral) obligation towards them. That is the only logical interpretation of the Mother’s proposal which suggests that, until her Centrelink issues are resolved, the Father accept the full care of the boys. She herself refers to the boys not having to “suffer with the rest of our household further disadvantage…while awaiting for appropriate pay…”.
66.The Mother is clearly struggling financially, so much so that even she recognises that, at least temporarily, she won’t be able to care for the boys. The precise nature and extent of these issues is not clear. But for the Mother herself raising this as an issue, there wouldn’t have been the basis for the Court commenting on this issue in these reasons.
67.The Independent Children’s Lawyer submitted that the documents produced on subpoena by the Department of Family and Community Services suggested that, certainly as at 2011, the Mother’s household was a chaotic one. Whilst the Mother had been offered assistance through the Brighter Futures program, the records suggest she struggled to work cooperatively with them. The Court does not accept her evidence in cross-examination that she was not offered the services. The more likely scenario is that the Mother would not accept the nature of, and the terms on which the services were provided to her. One of the records suggests, for example, that the Mother’s dealings with those seeking to assist her were:
Confrontational, threatening and demanding…She also expects a greater service from Brighter Futures than can be offered…
68.Whilst the Court did not observe the Mother to be confrontational, threatening or demanding, the Court has little doubt that the Mother would be a formidable advocate of her own cause, in any setting. The Independent Children’s Lawyer submitted that there was no evidence to suggest that the Mother’s household in 2014 was any different to that depicted in the business records of the Department in 2011. The Court chooses not to use the word “chaotic” in describing the Mother’s household. It is different, unorthodox by reference to common community standards and somewhat alternative. The present issue is to what extent, if at all, that reflects on the Mother’s capacity to provide the children’s needs. She herself admits that she struggles financially, and this extends to meeting the children’s financial needs. There is, however, no evidence to suggest that their emotional and intellectual needs are not being met by her, in her household. There is evidence to suggest that homework is perhaps not as prioritised as it may be in the Father’s household. The Mother has other priorities such as instilling in her boys attributes of inclusiveness and generosity of spirit.
Maturity, Sex, Lifestyle and Background Issues
69.The differences between the personalities, parenting styles, lifestyles and households of the Mother and Father has already been the focus of these reasons. These children have been exposed to a range of experiences which many other children have not. They have met people and been to places that many other children have not. This has not endangered them and now they are of a capacity to protect themselves anyway. The Mother describes herself in her affidavit as:
A social and environmental activist which is driven by my desire to make things better in my local community.
From the children’s perspective, not only is that a good thing, but the Family Consultant believes that it is an aspect of their Mother’s character that the boys greatly admire. This case is not going to be decided by reference to this consideration.
Aboriginal and Indigenous Issues
70.Based on the evidence before the Court the children do not have a biological connection to the Aboriginal or Torres Strait Islander culture, but their Mother has introduced them to this culture, something that will only enrich their life experience. Provided the boys have a relationship with their Mother, there is every indication that this will continue.
Parental Attitudes
71.In many ways the focus of the Father’s case and the Independent Children’s Lawyer’s case is that the Mother, by virtue of who she is and what she does, is unable to prioritise the boys over other important things in her life and that this is, therefore, irresponsible parenthood in the circumstances. There is substance to this, on the evidence. The Court is satisfied that, during cross-examination, the Mother was given ample opportunity to demonstrate to the Court that she prioritised her children’s needs, over the needs of others in her household to whom she had no relationship. For example, she was asked questions about her family tax benefit and which members of her household received the benefit of it. She seemed somewhat affronted by the question. Her response was to the effect, “I get what I get.” She then said words to the effect, “My boys’ needs have to eat into the needs of others in the household.” Later on it was suggested to her that by reducing the number of people in her household she would be able to greater provide for the children. She replied words to the effect, “I am never going to kick anyone out over anyone else.” Yet another example is in relation to Mr B, with his long criminal history and current alcohol problems. Even after the Mother was fully apprised of his extensive criminal history, she indicated that it made no difference whatsoever to her.
72.It is in this context that both the Father and the Independent Children’s Lawyer submit to the Court that the Mother’s attitude in not prioritising the children casts concerns about her responsibility as a parent. The Court agrees. The Mother’s altruism and generosity of spirit towards others is one of her finest attributes, but in the statutory context of this decision there is no doubt that the statutory scheme set out in Part VII of the Family Law Act 1975 prioritises parental responsibility over community responsibility where those two responsibilities might otherwise clash. Thus, for example, section 60B(1)(a) explains that an object of Part VII is to ensure that the best interests of children are met by 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. The Act uses the word “maximum” not “minimum” or even “minimalist.” Paragraph (d) refers to ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children, and not someone else’s children, or other adults. The principles set out in subsection (2) are consistent with subsection (1). The focus of section 60CC is primarily duties owed by parents to their children.
Family Violence
73.There are no issues of family raised which inform the outcome of this case.
Order Least Likely to Lead to the Institution of Further Proceedings
74.The Mother’s proposal suggests some form of interim arrangement whilst she resolves issues she is having with Centrelink. It is not in the best interests of the children to further postpone the resolution of this case. The proceedings were commenced in 2012. The Centrelink issues are not central to the determination of this case, though not wholly irrelevant either, and it is hard to discern how the resolution of whatever the issue is will significantly impact the final determination of this case. There is no reason to make further interim orders.
Parental Responsibility
75.Both the Father and the Independent Children’s Lawyer proposed equal shared parental responsibility. That is what the Mother sought in her response filed 30 January 2013. There is no suggestion in the Mother’s proposed orders to the contrary. There is no evidence before the Court which would suggest that the statutory presumption in favour of equal shared parental responsibility should not apply. An order for equal shared parental responsibility will be made. The rider is that if the parents are unable to agree, the father should decide. The Court agrees that this is appropriate in the sense that it may be needed, and the father can be trusted not to abuse the privilege.
Equal Time or Substantial and Significant Time
76.Section 65DAA requires the Court to consider equal time if it is in the children’s best interests, and if it is reasonably practicable. The reasons set out so far indicate why it is not in the best interests of the children to consider equal time. That is not what they want. It is further contraindicated by the Mother’s inability to prioritise the boys’ needs over others’ in her household. In any event, it is not reasonably practicable because of the problematic current and future capacity of the parents to communicate, a need which would be accentuated, the Court believes, in an equal time arrangement.
77.The effect of the orders sought by the Independent Children’s Lawyer and Father is that the children will spend substantial and significant time with their mother. The Court concludes this is both in the children’s best interests and reasonably practicable.
Orders in Best Interests of Children?
78.For the reasons set out above it is neither in the children’s best interests for there to be an order for equal time, nor for these proceedings to be postponed. To the extent that the Mother’s proposal implied that the children live with their Father permanently, and not spend time with her, that too is not in the children’s best interests. It is not what the children want and the Court doubts that it is what the Mother really intends.
79.There remains a difference between the proposals of the Independent Children’s Lawyer and the Father. The Independent Children’s Lawyer’s proposal makes no distinction between the two boys and simply provides for alternate weekend contact from Friday night until Sunday night, as well as school holidays. The Father’s proposal, however, differentiates between Y and X, with Y spending each Wednesday overnight Thursday, together with each alternate weekend with the Mother, but X only spending each alternate weekend. The Father’s proposal, to this extent, better reflects the views of the children and will be preferred by the Court.
80.There is a slight difference in proposals in relation to school holiday time, only insofar as it relates to the Christmas school holidays. The Independent Children’s Lawyer proposes two separate periods of seven consecutive days whereas the Father proposes one fixed period between Boxing Day and 14 January. The Family Consultant, in cross-examination, did express some concern about how the boys would fare spending three weeks with their Mother. In the circumstances, particularly taking into account the boys’ growing autonomy, it may well be that they wouldn’t cope with last three weeks in their Mother’s household. To that extent, therefore, the Independent Children’s Lawyer’s proposal will be adopted.
81.The evidence raised no further issues relating to the details of the orders. To the extent that there is a difference between the Independent Children’s Lawyer’s proposed order, and that of the Father, the former will be adopted simply because of the more explicit drafting.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 12 May 2014
Schedule One – Father’s Proposed Minute of Order
Final Orders Sought
1.That parties have equal shared parental responsibility for the children, X (DOB (omitted)) and Y DOB ((omitted))
2.That the children live with the applicant father
3.That the children spend time with the applicant mother as follows:
a) Y spend each Wednesday during school term from conclusion of school until commencement of school Thursday.
b) Y to spend each alternate weekend (but excluding the summer holidays) commencing the 15th of March from Saturday 10am until Sunday 17:00.
c) X to spend each alternate weekend (but excluding the summer holidays) from Friday 16:30 to Sunday 17:00.
d) For Autumn, Winter and Spring holidays from the first Monday at 9:00 until the following Sunday of the holidays at 17:00.
e) For the summer school holidays from 10:00 Boxing day until 14 January.
f) In alternate years commencing 2014 from 14:30 Christmas Day until Boxing Day.
g) In alternate years commencing 2015 from 16:00 Christmas Eve until 14:30 Christmas Day.
h) That time pursuant to order 3 (a) to 3(c) recommence, (following the conclusion of the Summer school holidays) from the first day on which the children are required to attend school at the commencement of the school year.
4.That for the purpose of the children being transported between the residence of the father and the residence of the mother (where time does not commence or conclude at school) the mother is to collect them from the fathers residence at the commencement of time, and the father to collect the children from the mothers residence at the conclusion of time.
5.That the children have the right to not attend access visits to the mother without pressure from either parent.
6.That both parties ensure that they have adequate and appropriate bedding for the children.
7.That both parties be restrained by injunction from denigrating the other party, or members of the other parties family, to the children, or in the presence of the children, or at all.
8.That both parties and members of the their households be restrained by injunction from using any prohibited drugs during the time the children spend with each other, or in a period 12 hours prior.
9.That both parents ensure the children attend school, and on time, except in cases of genuine illness, in which case the parent who has care of the child shall notify the other of such illness by text message.
10.That each party encourage, supervise and facilitate homework, home study and practice during the periods the children are in each parties respective care.
11.That each party inform the other of changes to any living arrangements including adults or children who may be living with each party.
12.On a without admission basis, during any periods of time that the children are spending with the mother the children shall not be brought into contact with Mr R “Mr R”.
Schedule Two – Mother’s Proposed Minute of Order
Proposed orders
Defer final orders until the Centrelink issues over Family Tax benefit have been resolved and/or Centrelink/DOCS issues of Ms T’s allowance/foster care pay are resolved.
ØI expect this could take anything from 2 weeks to 2 months
In the interim, Mr Lawson attempt to pay the missing Family Tax Benefit portion that he has been receiving from Centrelink, that should be in my hand – at least ensure that the boy’s costs are covered this weekend and subsequent visits, until Centrelink does its job …
Failing which, accept the full care of the boys until Centrelink has done its job …
So that the boys don’t have to suffer with the rest of our household/further disadvantage my other charges, whilst waiting for appropriate pay …
Once this matter has been helped, I propose that Mr Lawson cease his bid to take control of the boys and my lives, and the ICL meet with the boys once more to discuss access, once each term, until all parties are satisfied that further monitoring/orders are no longer needed. (Aim: for the boys to decide, not Mr Lawson or myself).
Schedule Three – Independent Children’s Lawyer’s Proposed Minute of Order
(1)The Children the subject of this Order are:
1.3X born (omitted) 1998;
1.4Y born (omitted) 2000.
(2)The parents the subject of this Order are:-
2.1 Ms Moloney
2.3Mr Lawson
Orders for Parental Responsibility
(3)That the mother and father are to have equal shared parental responsibility for the children and: in relation to the care, welfare, and development of long term nature involving the children to include but not limited to issues about:
3.6The education of the children both current and future;
3.7The children’s religious and cultural upbringing;
3.8The children’s health;
3.9The children’s names;
3.10Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
AND in the event that the parents are not able to reach an agreement then the decisions shall be made by the father.
(4)That the father is to have responsibility for making decisions as to the children’s day to day care, welfare and development during the periods when the children are living with him.
(5)That the mother is to have responsibility for making decisions as to the children’s day to day care, welfare and development during the periods when the children are spending time/communicating with her.
(6)That both parties are to refrain from making critical or derogatory remarks about the other party or members of his or her family in the presence or within the hearing of any of the children and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the either party or members of his or her family in the presence or within the hearing of any of the children.
(7)That each parent is entitled to attend all events involving the children, but not limited to:
7.4sporting fixtures;
7.5Extra curricular activities that allow for parental attendance or participation;
7.6School functions and events that allow for parental attendance or participation.
AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
Orders for Parental Communication
(8)That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:
8.9Any medical problems or illnesses suffered by the children whilst in each parent’s care;
8.10Any medications that have been prescribed for the children;
8.11Any specialist medical appointments with any medical doctors. Psychologists, counsellors or therapists regarding the children;
8.12Any significant social, school or religious functions which the children are to attend;
8.13The details of any school(s) attended by the children;
8.14The details of any sporting body(ies) that the children are involved in;
8.15the residential address of each parent and particulars of others who may reside with the children;
8.16Any other important matter relevant to the welfare of the children.
(9)That each of the parties is to provide full particulars of any medical practitioners, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.
(10)That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporing bodies to facilitate this.
(11)That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
Orders for Lives With/Spending Time with each Parent
(12)That the children live with the father.
(13)That the children are to spend time/communicate with their mother as follows:
13.9In each alternate weekend commencing at 6:00pm on Friday overnight and through and until Sunday at 6:00pm.
13.10In respect of the shorter school holidays for the first half of each school holiday period commencing from the conclusion of school until 6:00pm on the last day of the conclusion of the first half of each school holiday period.
13.11In respect of the Christmas school holidays, for two separate periods of seven (7) consecutive days, the commencement of such times as agreed between the parties, but in the event that no agreement occurs then the first period of seven (7) consecutive days shall commence on 1st January in each year and the second period of seven (7) consecutive days shall commence on 15th January in each year, the commencing and concluding times shall be at 6:00pm.
13.12In 2014 and each even numbered year commencing at 6;00pm on the last day of the first half of such school holiday period concluding on the last Sunday of that school holiday period at 6:00pm.
13.13In respect of Christmas Day, in 2014 and each even numbered year commencing from 2:00pm on Christmas Day (25 December) until 6:00pm on Boxing Day (26 December).
13.14That should Mother’s Day not already coincide with a period of time that the children are spending with the mother, then time on that day shall commence at 9:00am and conclude at 6:00pm.
13.15To give effect to order 1.7, then that period that the children are to live with the father coinciding with the time specified in that Order is suspended.
13.16Such further and other times as agreed.
Orders for communication
(14)That the children are to communicate with the parent they are not then living with/spending time with by telephone at any reasonable time and each parent is to facilitate that communication.
(15)That the parents be restrained from discussing with or showing to the child/ren any document relating to these proceedings.
Orders for Transportation
(16)To give effect to these orders the father shall deliver the children to the mother’s residence and collect them from her residence at the commencement and conclusion of each period of time, unless otherwise agreed by the parties in writing.
Orders for Dispute Resolution
(17)In the event that the mother and father cannot come to a shared decision about a major long term issue as set out in Order 3, the mother and father will do all things necessary to participate in a Family Dispute resolution with a person authorized under Section 10G of the Family Law Act.
(18)The process used for resolving disputes about the interpretation, implementation or enforcement of these Orders is as follows:
18.3The father and mother shall do all things necessary to attend counselling or mediation with an organisation recognized under the Family Law Act or by the Commonwealth Attorney General; or
18.4The father and mother shall participate in Family Dispute Resolution with a person authorized under s 10G of the Family Law Act
(19)On a without admission basis, during any periods of time that the children are spending with the mother the children shall not be brought into contact with Mr R.
Key Legal Topics
Areas of Law
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Family Law
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