Lincoln & Dallas

FAMILY COURT OF AUSTRALIA

LINCOLN & DALLAS

[2008] FamCA 1000

FAMILY LAW – CHILDREN – With whom a child lives – Whether equal shared care is in the best interests of a child where there is significant animosity and communication difficulty between the parties – Final Orders made providing for the children to live with the mother and spend substantial and significant time with the father, namely 5 nights per fortnight.

FAMILY LAW – PROPERTY – Matter referred back into court on the basis of the potentially significant fluctuation in the property market.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Lincoln

RESPONDENT:

Ms Dallas

INDEPENDENT CHILDREN’S LAWYER:

Marshalls & Dent

FILE NUMBER:

MLF

1574

2006

DATE DELIVERED:

24 November 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

12, 13, 14 and 17 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Grice & Grice

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska

SOLICITOR FOR THE RESPONDENT:

Murphy’s Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hoult

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marshalls & Dent

Orders

IT IS ORDERED THAT:

All previous parenting orders in respect of the children H born … August 1997, B born … December 2000 and O born … March 2004 (“the children”) be and are hereby discharged.
The mother and father have equal shared parental responsibility for the long term care, welfare and development of the children.
Each party have sole parental responsibility for the day-to-day care, welfare and development of the children whilst they are in their respective care.
The children live with the father:
(a)during term time, in each alternate week from the conclusion of school, crèche or kindergarten on Thursday (and if a non school, crèche or kindergarten day, 3:00 pm) until the commencement of school, crèche or kindergarten on Tuesday (or if a non school, crèche or kindergarten day, 9:00 am), commencing on the first Thursday of term one 2009;
(b)during all school holiday periods, as agreed between the parties or, failing agreement:
(i)for H and B each alternate week commencing with the first week in 2009 and each alternate year thereafter and commencing with the second week in 2010 and each alternate year thereafter;
(ii)for O (until she reaches the age of six years) for three consecutive nights in the week that H and B are living with the father as agreed, or failing agreement, for the first three nights in which H and B are living with the father;
(iii)upon O reaching six years of age she live with the father in accordance with paragraph (4)(c)(i) hereof;
(c)on Father’s Day, if it falls on a day on which the children are living with the mother, by agreement or failing agreement from 10:00 am until 5:00 pm; and
(d) as may be otherwise agreed between the parties from time to time.
The children live with the mother at all other times, save for the provisions of these orders.
If Mother’s Day falls on a day when the children are living with the father, the children spend time with the mother by agreement on that day, or failing agreement from 10:00 am until 5:00 pm.
On each of the children’s birthdays, save for B’s, the children spend time with the parent they are not living with as agreed between the parties or, failing agreement:
(a)in the event that the child’s birthday falls on a weekend or a non-school day from 1:00pm until 5:00 pm;
(b)in the event that the child’s birthday falls on a school day from the conclusion of school until 7:00 pm that day
All changeovers for the purposes of the children spending time with the parents in accordance with these orders shall take place at the children’s school, crèche or kindergarten, or if changeover occurs on a non-school, crèche or kindergarten day the parent who is about to commence spending time with the children, or their nominee, shall collect the children from the residence of the other parent.
The children communicate by telephone with the parent they are not living with, when the children request such telephone communication or at reasonable times. When that parent telephones the children, and should that parent leave a message on the telephone answering machine or on voicemail, the parent with whom the children are living shall ensure that a return telephone call is made by the children within a reasonable period of time.
Both parents be and are hereby authorised to obtain all reports, photographs and like documents from any school, kindergarten or crèche attended by any of the children.
Both parents be and are hereby authorised to attend all the children’s school, crèche or kindergarten functions and activities ordinarily attended by parents, including, but not limited to, parent/teacher interviews, sports days, open days and school concerts.
Both parents forthwith inform the other of any serious illness or injury sustained by any of the children whilst in their care and further provide the other with full particulars of the name, address and contact telephone number of any medical practitioner or hospital from whom or at which the child has or will receive treatment.
For the purposes of communicating with respect to the children’s welfare, the parties shall:
(a)In the event of any emergency or immediate issue, telephone the other and leave a message on the answering machine or voicemail message, if necessary; and
(b)if for non-immediate and long term care, welfare and development issues, use a “Communication Book” to travel with the children, such Communication Book to be used only for matters including, but not limited to, medical appointments, schooling issues, proposed holiday dates, proposed changes to the parties’ respective residential addresses, and telephone contact numbers, provided however.
Both parents be and are hereby restrained by themselves, their servants and agents from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, other parent’s partner or family member, to or in the presence or hearing of the children or any of them.
The parties do all acts and things, sign all necessary documents and instruct all necessary professionals to engage the child, O, in speech therapy or any other therapy reasonably recommended by any medical or like specialist to deal with her developmental delay.
Within seven days, the mother and father, through their legal representatives, make written submissions to be forwarded to Justice Mushin’s associate with respect to matters of valuation of the former matrimonial home known as and situate at K, Victoria, in accordance with paragraph 168 of the reasons for judgment delivered this day.
All extant Applications under Part VII of the Family Law Act be otherwise dismissed and removed from the list of active pending cases.
The Order for the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
General liberty be reserved to both parties to apply.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1574/2006

MR LINCOLN

Applicant

And

MS DALLAS

Respondent

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders pursuant to Part VII of the Family Law Act 1975 (“the Act ”) and alteration of property interests pursuant to Part VIII of the Act. The originating application was filed on behalf of the father prior to 1 July 2006 and accordingly, the applications for parenting orders have not been conducted pursuant to Division XIIA of Part VII of the Act.
The parenting issues, which dominated most of the trial, concern the three children of the marriage: H aged 10 years at trial and presently aged 11 years, B presently aged 7 years and O presently aged 4 years. The parties agree to equal shared parental responsibility but have competing applications with respect to the proportions of time which the children should spend with each parent. The father seeks that the children spend equal time with both parties. The mother seeks that the children primarily live with her and spend substantial and significant time with the father.
The parties presently live approximately 900 metres apart. Their relationship since the separation has been characterised by animosity, mistrust and difficulties in communication, although the father asserts that these is no longer a significant problem. Accusations have been made by each parent against the other with regard to their ability to properly care for the children.
With respect to property issues, this is a case with a disputed pool of assets that lies somewhere in the vicinity of $850,000 including superannuation in which the mother seeks a 65%:35% division in her favour and the father seeks an equal division. Their proposals with regard to alteration of property interests largely reflect proposals with regard to the children. There are disputes between the parties in relation to each step of the property determination.

The Parties

At trial, the father was aged 41 years. He is employed within the public service. At trial, he lived with his parents as he had done since separation. He seeks an order that he retain the former matrimonial home as part of an alteration of property interests. Alternatively he proposes to find other accommodation.
At trial, the mother was also aged 41 years. She is employed on a part time basis at a Community Health Service and also works from time to time in private practice from her home. The mother gave evidence that her working hours are flexible with respect to caring for the children and this evidence was not disputed by the father. At trial, the mother lived in the former matrimonial home with the three children. She also sought an order that she retain the former matrimonial home.
It was agreed that the mother had a history of depression, including post-natal depression. The evidence established that the mother suffered from poor self-esteem and a clear susceptibility to feeling threatened and intimidated by the father. That finding is supported by the evidence of the family consultant, Ms L. To my mind this issue is deeply entwined with the father’s character and his behaviour towards the mother throughout the marriage and since separation. I will address this issue further in due course.

The Children

At trial, H was 10 years old and in grade 5. He is described by the mother and the family consultant as a “sensitive child” and by the father as “intelligent”. The mother has previously had concerns that H was displaying obsessive-compulsive behaviour and has taken him to a specialist paediatrician, Dr J. Dr J’s assessment was that H displayed “mild range obsessive compulsive symptoms” which were not “of sufficient severity to warrant a diagnosis of Obsessive Compulsive Disorder” but more likely reflect “underlying anxiety”. Dr J stated:
It may be that the tension surrounding the current family circumstances are contributing to some of [H’s] symptoms, and that stabilisation in family circumstances will reduce tension within him and help him be more settled.
Ms L similarly did not believe H exhibited Obsessive Compulsive Disorder. H has also seen a school psychologist.
B is aged 7 years and is in grade 2 at the same primary school as H. B was described by Ms L as being a “resilient child who is coping reasonably well” with his parents’ separation. However, in her first report Ms L noted: “He may be engaging in some simple denial of unpleasant experiences”.
O is aged 4 years and, at trial, attended kindergarten and child care several times per week. O has some delay in her speech development and on the evidence of the mother, as supported by Ms L and Dr J, she is at least some 9 months behind in that respect. It is expected that her speech development will catch up with her peers and will not present any long-term problems. However, she has regular appointments with a speech therapist and regularly does speech exercises with the assistance of her parents.

Credibility

While I will make individual findings on factual issues in dispute between the parties as necessary, it is useful to make general findings on the credibility of each of them. The father presented as intelligent, articulate, assertive and very much in control. He hardly missed an opportunity to justify his own behaviour and criticise the mother. I did not regard him as having sufficient insight into his own behaviour to understand the degree of criticism which he makes of the mother on a regular basis. There is no question about his love for the children. It is perfectly natural for a party in hard fought proceedings to put his or her case at its very highest. However, in doing so the father demonstrated a lack of balance which I found concerning. Accordingly, I am wary about his general credibility in these proceedings.
By contrast, the mother was timid, cautious and very anxious. At times, she was genuinely emotionally overwhelmed. While she demonstrated a significant antipathy towards the father on a number of occasions, she also demonstrated a greater overall balance towards him than he did towards her. At times I formed the view that she was exaggerating her evidence which causes me to be similarly wary of it as I am towards the father’s evidence. However, I note that to my mind the father’s behaviour represents a more serious and largely unnecessary attack upon the mother’s character and a distinct lack of insight into his own behaviour which leads me to have more concerns about his credit than that of the mother.

Background Facts

The parties commenced cohabitation in approximately 1989 and married in October 1991. At that time they were both in paid employment.
Over the course of the marriage, the parties purchased several properties. The father asserts that the paternal grandparents made significant contributions to the purchase prices of these properties and made additional cash contributions to the parties, for example on the births of the children. The sums and even the existence of many of these contributions are disputed by the mother. I will outline my approach to the property issues in due course.
In 1993, the mother ceased her employment and commenced full time tertiary study, during which time the father took on at least a greater financial burden. The mother subsequently gained qualifications in health services.
From 1995 to 1998 the parties relocated to several places interstate for the purpose of employment opportunities, first for the mother and later for the father.
H was born in August 1997 when the parties were living in Queensland. Shortly thereafter the parties moved to Canberra and B was born there in December 2000.
It is agreed that the mother was not happy in Canberra. The father asserts that the mother was not happy living in rental accommodation, that she began to show “signs of agitation and nervousness”, became “erratic, violent” and that she was not coping with the full-time care of the two young children and “showed symptoms of undiagnosed postnatal depression”. The mother swore that there were tensions between the parties over raising the children and that she objected to the father’s disciplinary methods and his lack of support and assistance with parenting. As recorded in Ms L’s first report, the mother stated that during this period she had “no support and felt like a sole parent”.
The father swore that during the marriage he was significantly involved in the day to day care of the children. The mother denies that, stating that she has always been the primary carer and that the father had a very “traditional outlook” with respect to marriage and believed it was the mother’s role to care for the children. Given that the father has worked in paid employment outside the home on a full-time basis for the duration of the marriage and the mother has mainly worked in that capacity on a part-time basis and taken several periods of maternity leave, I find that the mother generally performed the primary parenting and homemaker role and the father the primary breadwinner role. However, the father made significant contributions to parenting and homemaking at times, particularly when the mother was unwell. Likewise, while the father was the primary breadwinner, the mother made significant contributions in that role.
The mother alleged that throughout the marriage and since separation the father has often been away for work interstate or in regional Victoria for significant periods. The father disputed this saying that his work required him to be away for two days per month as a standard (an arrangement to which he says the mother consented) and that there was one period in June – July 2007 when he was finishing a project and undertook additional travel during times the children were not in his care, and that this level of travel has now come to an end. I will consider this dispute when I assess contributions in due course.
The mother alleged that during the marriage the father verbally abused the boys and used inappropriate disciplinary methods. The father denied this and said that the mother left it to him to discipline the children. Examples of the father’s conduct, as alleged by the mother, include:
·Locking the boys outside the house in the dark, from the age of 3 years in H’s case. Through Ms L, H corroborated this allegation, stating that it happened “heaps of times”, that he “was very scared” and that he “screamed”. In his viva voce evidence the father initially conceded that he had done this once. When referred by counsel for the mother to the fact that he had previously acknowledged doing so on two occasions, he said it could have been “two or three times” but denied that the children have ever been scared of him. That evidence is one of the bases for my concern with regard to the father’s credit.
·Locking the children in their rooms, removing the door handle and leaving the children there for half an hour. The father conceded doing this but said it was an agreed “time out” method between the parties and that they both did it. The mother was not cross-examined on her role. I do not accept that it was agreed as alleged.
·Excessive corporal punishment. The father conceded that he occasionally smacked the boys but stated that he regrets doing so and further that the mother also did so. The mother was not cross-examined on this issue. Again, I do not accept the father’s evidence in this regard; and
·Shouting at and denigrating the children. The father denied this.
Given the concessions of the father, as discussed above, I find that the father did engage in the behaviour outlined in the first three points above. However, the weight of the evidence, which I accept, indicates that this behaviour has now ceased. I will discuss any ongoing impact it has upon the children’s best interests in due course.
The mother further alleges that the father perpetrated domestic abuse upon her throughout the marriage, including “Physical, emotional, financial and sexual abuse”. She stated in her affidavit material that there was mainly emotional abuse “but there is however always the underlying threat of physical violence”. Examples of the abuse alleged by the mother included:
·after O’s birth at which time the mother was suffering from post-natal depression, the father regularly called her “stupid”, “frigid” and a “stupid Australian” and said that her family was “hopeless” and her father was “weak”;
·pressuring her for sex and writing a letter “explaining that it was his right to have sex on demand because he was [her] father”;
·aggressively throwing her on the bed and demanding sex in the presence of the children;
·regularly forcing her to perform oral sex;
·pushing her against the wall and demanding sex; and
·being “intimidating” and “controlling” of her and “regularly [putting] his face directly in front of [the mother’s] in a threatening and aggressive manner”.
The father “vigorously denied” ever having abused the mother in any way. However, he conceded pushing her out of the bathroom on one occasion when they were having an argument while he was washing O and he was concerned that O may slip in the bath and get hurt.

At trial, counsel for the mother submitted that whilst violence had been an issue in the past, the problem continuing in the present was the ongoing intimidation of the mother by the father rather than explicit violence. The father continued to deny that he was intimidating in any way and expressed disbelief that the mother could perceive him that way. Counsel did not choose to examine each of the specific allegations of the mother during this trial. Accordingly, I am unable to make any finding with regard to individual incidents as alleged by the mother. However, that does not prevent me from making general findings in respect of the parties' conduct towards each other in the areas of violence, intimidation and lack of support.
I will detail certain findings with respect to the personalities of each of the parties in due course. At this stage, it is sufficient to find that the totality of the evidence, including that from Ms L, together with my own observations of the parties during the trial, satisfy me to a high degree of probability that the father has a very dominant personality. By contrast, the mother's personality is very subservient and in those circumstances, the general tenor of the mother's allegations are consistent. Further, again without making specific findings on detailed allegations, I find that the mother's allegations against the father with regard to his attitude towards the children, and particularly their discipline, are correct. I find it very concerning that the father does not have any real insight into the consequences of his behaviour.
In 2002, the parties returned to Melbourne. Around this period the father moved briefly to employment in the private sector then subsequently returned to the public sector. In an affidavit the father stated that the mother “complained bitterly” about him being in private employment as he “was not able to return to the home by approximately 5pm each evening” and, he says, that she “demanded that [he] return to the public sector to assist her in caring for the children, as she was clearly not coping despite the assistance of [the paternal grandmother]”. However, through cross-examination the father conceded that “[the mother’s] request was reasonable” and that his private employment placed demands on them both.
In 2003, the mother twice became pregnant and had terminations. The parties’ evidence conflicts in relation to both the reasons for the termination and each party’s input and agreement with the decision to terminate the pregnancy. The father referred to these events as causes, or at least catalysts, for the mother’s depression. I do not believe it necessary to make any findings in relation to this issue.
Later in 2003, the mother became pregnant with O. She was admitted to hospital shortly before O’s birth. The circumstances surrounding this event and the manner in which the parties each portrayed it was also an area of conflict. The father in his affidavit stated that the mother:
was committed to the psychiatric ward of the … Hospital suffering from depression. She remained hospitalised for approximately two to three weeks as the Doctors feared for her safety and that of the unborn child. [emphasis added]
At trial, counsel for the mother cross-examined the father on this statement and it became clear that the mother was in fact not committed but rather was voluntarily admitted for treatment. The father maintained that the use of the word “committed” was simply a mistake. Further, counsel for the mother asserted that the latter part of the father’s statement was exaggerated given Ms L’s evidence. Ms L spoke with the mother’s treating doctor, Dr C, and obtained his report in relation to the mother. Ms L recorded Dr C as stating that the mother’s parenting of O was “always safe and appropriate”. Ms L concluded with regard to the mother that at the time of her report it “[d]id not appear her mental state or her depression was significantly impacting upon her decisions or her parenting”. Whilst the observations of Ms L and Dr C relate to a different time period to the father’s statement, I find that in these circumstances the father’s statement is a further example of his hyper-criticism of the mother and lack of insight into his behaviour.
After O’s birth, the mother was treated for post-natal depression by Dr C and prescribed anti-depressant medication. There was significant tension between the parties as to the appropriateness of the mother taking this medication. The mother’s evidence was that the father was unsupportive of her during the period of depression. Further, he discouraged her from seeking help and taking the medication to the extent that the mother had to hide it to prevent him from throwing it out. The father denied this, maintaining that he did “everything possible to assist” the mother with her post-natal depression, including taking time off work in order to care for her and assist with the children and the domestic tasks. He concedes, however, that he was concerned about her taking Zoloft but says this was because she was breastfeeding O and he feared it may harm the child. The father’s words in describing these circumstances were that the mother “made a unilateral decision to breastfeed and concealed from me the fact that she was taking anti-depressant medication”.
Ms L, in her first report, noted that Dr C had reported that the mother complained to him that the father was controlling and that the father had spoken to Dr C about the mother’s antidepressants and whether he could take legal action to prevent her from taking them. The father concedes he made such an enquiry of Dr C. I prefer the evidence of the mother to that of the father with regard to her wider psychological state and his lack of support of her at this time.
In the mother’s early affidavit material the mother made comments about the father excessively washing O and stated that “[O] got into the habit of excessively rubbing her genital region for long periods of time when in bed. On other occasions she would climb on top of [B] and continuously rub herself on his groin region. She would get very upset when I removed her.” The mother maintained in this affidavit and through cross-examination that she was not trying to allege or insinuate sexual abuse of O by the father but that she was simply stating what she had observed. I am not persuaded that the mother did not intend to deprecate the father by this evidence and criticise her for doing so.
On 24 June 2005, the parties temporarily separated. The circumstances of this separation are contested. The mother’s evidence is that the separation was the result of domestic violence perpetrated by the father and that the father left the former matrimonial home following a “police directive”. The father denies that the separation was caused by domestic violence. He says that on 23 June 2005 the parties had an “argument regarding the mother’s request for separation” and that the following day the mother hit him and screamed at him for the way that he was washing O and the fact that he had taken a day off work, he asserts, to spend time with the children. The father claimed that the police were called but that they left after assessing that there was no domestic violence to be investigated. In any event, on 28 June 2005 the mother was granted an ex parte interim intervention order and filed an application for a final intervention order. I prefer the mother’s evidence on this conflict.
Some two or three months later, the parties reconciled and the mother withdrew her application for a final intervention order on the condition that the father attend an anger management course. The father completed that course. However, he maintained that he could not understand why the mother wanted him to attend the course, aside from one argument he could recall, and that he did not believe that the mother had any fear of him. In affidavit and viva voce evidence, he variously stated his reasons for completing the course as: firstly, because it was the mother’s prerequisite for the reconciliation; secondly, because he believed it may assist him in his work; and thirdly because he thought it might help him “identify behaviour patterns presented by [the] mother”.
The parties finally separated on or about 2 March 2006 and on 16 March 2006 the mother again obtained an interim intervention order. The father left the former matrimonial home and moved to live with his parents, continuing to do so until trial.
The circumstances of this final separation are disputed. The mother’s evidence is that two particular incidents of sexual assault precipitated her desire to separate from the father and to seek a further intervention order. The first incident was on 28 February 2006 when, according to the mother, the father aggressively threw her on the bed and demanded sex. The mother states that the children witnessed this incident. She states that several days later a further incident occurred in which the father threw her on the bed, held her down and repeatedly demanded sex. In responding to these allegations in his affidavit material the father did not explicitly deny these events. Rather, he stated that “the mother raised these matters at the hearing of the Intervention Order. The Magistrate held that they were exaggerated and inconsistent.” It is unclear which hearing the father is referring to. A transcript of proceedings from the Intervention Order hearing on 28 June 2005, together with the order and complaint and summons were evidence in these proceedings. The father's assertion is not corroborated by any of that evidence. The transcript of the 28 June 2005 proceedings records the Magistrate as having said that “… excluding a parent from their children and their home in their absence is not a thing done lightly but I’m satisfied that that needs to be done.” On that basis, I prefer the mother's evidence.
The issue of the father’s sexual assault, if any, denied by the father, was not pressed at trial. Therefore, I am unable to make any finding on that issue.
Following separation, the time that the children spent with the father and with the paternal grandmother significantly decreased. The father did not have overnight time with O until at least May 2006. Facilitating such time to be spent and communicating about the children has been fraught with difficulty and each party largely blames the other for this. The father alleges that the mother made deliberate attempts to minimise his time with O. The mother disputes this, saying that she offered reasonable time during the day but refused overnight time because she thought O was too young and would be distressed to be away from the mother for a whole night. Further, she alleges that the father had had limited experience in caring for O independently. She also had concerns with respect to the frequency with which the father washed O during the marriage, as I have discussed.
The father also criticises the mother for putting the children into child care rather than continuing to have them cared for by the paternal grandmother at times when the mother could not be available to look after them. The mother acknowledged the paternal grandmother’s desire to care for the children and her positive relationship with them but said she chose not to have the children cared for by the paternal grandmother as she had concerns about her abilities. Further, the paternal grandmother had previously told her she was too old to be looking after the children. I share the mother’s concerns with regard to the paternal grandmother and will outline these concerns in due course.
The mother previously alleged that the father and paternal grandmother attended the children’s schools and child care during class time which was disruptive for the children. The paternal grandmother conceded one such occasion when she visited O. The father, in his affidavit evidence, conceded that he attended the boys’ school twice during a four month period and thought this was appropriate to show them he loved and cared for them. In any event, it appears that such visits have now ceased and it is therefore unnecessary to make any finding on this issue.
Since these proceedings commenced the father has repeatedly and unsuccessfully sought an order that the mother be psychiatrically examined. That included an application made after the release of the family report in which Ms L stated that it “did not appear [the mother’s] mental state or her depression was significantly impacting upon her decisions or her parenting”. At the time of making that statement, Ms L had before her a report from the mother’s treating psychologist. At trial, the father was cross-examined on this issue. He maintained that he still thinks the mother is unstable and will cause the children “behavioural dysfunction”. When pressed on whether his criticisms and allegations of the mother’s “psychiatric instability” were unfair or goading in the context of the mother’s prior post-natal depression and, as counsel for the mother submitted, the mother’s consequent confidence problems, the father simply responded by saying: “I’d say [the mother] has confidence. I’m not sure how much or how little but she can stand up for herself”.
In early May 2006, O fractured her arm. In his affidavit material, the father criticised the mother for not seeking treatment for O until ten days after the event and then failing to advise him. The mother gave evidence that she had not immediately realised that O had broken her arm. Upon realising this she immediately sought treatment and advised the father soon afterwards. Through cross-examination of the father, it emerged that during this ten day period O had spent time with the father and he had noticed nothing untoward. It is hardly surprising that in those circumstances, the mother had not found anything untoward either. I find that once again, the father was being unreasonably critical of the mother's parenting.
Around this same period the father called the director of O’s Child Care Centre and asked to speak with O. The father says he did so because he “wanted to hear her voice and let her know that [he] was there for her”, having not seen her for some time. He was distressed as O was not as responsive as usual and her speech was different to normal. The father says that he was informed by the Director of the Child Care Centre that O had a middle ear infection. The mother says that O did not have a middle ear infection but rather she had fluid in her ears which was affecting her speech. Further, the mother’s evidence is that she had taken O to various doctors about this and that on some occasions the father had been present.
The following day, the paternal grandmother visited the Child Care Centre to see O as she was worried about her health. The paternal grandmother’s evidence is that O was at first distant and silent but she later cuddled the paternal grandmother and would not let her go. The paternal grandmother said that O was screaming when she left and that she returned again later in the day to check that O was all right. The mother’s evidence is that she was told by the staff that the paternal grandmother was uncontrollably crying and clinging to O and that this had distressed O. The mother said that she believed O would have thought she was being picked up and taken home by the paternal grandmother, as this regularly occurred throughout the marriage, and that she would have been upset at being left twice in one day. In her viva voce evidence the paternal grandmother conceded that she cried in front of O.
On 29 May 2006 the mother’s application for a Final Intervention Order came on for defended hearing at the Magistrates Court at Heidelberg and was dismissed.
At some time after the parties’ final separation, the mother commenced a relationship with a man named N. The father has directed much criticism towards the mother with regard to this relationship and is, to my mind, very troubled by it, notwithstanding that he admitted during cross-examination that he had never met N and knew nothing negative about him. Examples of the father’s conduct and concerns with respect to N are:
·referring to N as “him”, “a certain individual” and “that individual” in correspondence with the mother;
·wanting the “respect” of being introduced to N and to be “involved” so he can feel “safe and secure” in relation to who his children see. However, in cross-examination the father conceded that he had attended several events at which N was present and had chosen not to introduce himself. He appeared to blame the mother for his not having spoken to N and placed the responsibility entirely upon her to approach the father and facilitate his communication with N;
·berating the mother through email, text messages and communication book entries about N, including sending the mother a text message saying “I hope you know what to tell the children, as after seeing you with [N] they have lots of questions” and sending an email containing the following:
I have reasons to believe that you are not coping with the care of the children given the amount of time they spend in the care of other people, institutions and not to mention the continued association (an issue significant with the breakdown of the marriage) with a certain individual, a matter to which [sic] is raised by the children, evident to myself and expressed by many others however, is not apparent to yourself, which is causing all three children to feel anxious, confused and destabilised.
[O] particularly appears to have suffered most, given this association. One can only imagine the company to which she was exposed and the places she was taken during the time she was forcibly removed from my care by your dishonesty, deception and cunningness to secure financial gain and control using the children as your passport.
In addition, the father responded to the mother’s entry in the communication book with respect to agreeing on a regular sleep routine for O by saying:
If you haven’t been putting [O] down to sleep during these times it can only mean that she is not being looked after by you whilst in your care. … You should think carefully about how you treat the children and that also includes you taking her to “his” place and trying to fit her into a new family life. She is my child & I am the father. … If you continue trying to avoid me as the children’s ([O’s]) father – you will confound sever [sic] psychological problems in the children. … [Referring to the father’s proposal for equal shared care] I would like to finalise this matter first and then discuss who the children are associating with as they tell me on almost every occasion that they are not happy with your “him” friend being involved in their activities and lives. I want to know more about his person, his background etc… before he is involved with my children.
…
You need to take a look at your(self) [sic] actions and behaviours in order to help the children. … bringing other men into their lives as a substitute to their father are reasons why [O] (and boys) have not only sleeping problems, but anxiety and stress and tension in their little lives. You have done a horrible thing to many people, even your own flesh and blood.
The father asserts that, of their own accord, the children do not like N. The father states that he never spoke ill of N in front of the children and that they do not know how he feels about N. However, during cross-examination he gave evidence that the children had asked him about N and he had responded by explaining that “there was nothing [he] could do” about the mother being in a relationship with N.
After separation the father commenced a relationship with a woman named X. The mother has not criticised X, nor has she criticised the father for initiating a new relationship. She states that the father never consulted her about X or introduced her to X, which the father concedes, and that she would never have expected him to. Interestingly, in the very same email quoted above where the father criticised the mother about having a relationship he stated:
My care of the children and my life and lifestyle is no longer a matter for your regard. This was the choice you made when you chose to destroy what was our beautiful family, in the fashion you did. …

I find the father’s behaviour and attitude with respect to N to be hypocritical and a further example of his excessively critical attitude toward the mother. It demonstrates a further lack of insight into his own behaviour.
The mother gave evidence that she was concerned to learn that when the boys spent overnight time with the father they had slept in the same bedroom with the father and X. The father conceded that this had occurred but said that they only did so because it was what the children wanted. I note that at trial the father was no longer in a relationship with X.
Pursuant to interim orders made on 1 June 2006 by Senior Registrar Fitzgibbon, face to face changeovers have occurred at a particular McDonald’s Restaurant. Both parties gave evidence about these changeovers being difficult. The mother asserts that the father frequently brought the paternal grandmother with him to changeover, that they were both very hostile towards her and she frequently felt intimidated by the father at changeover. She further claims that at a changeover on 17 June 2007 the father struck her. The father denied this. He asserted that he brought the paternal grandmother with him because the mother had made false allegations about his conduct and he wanted to have a witness present.
On 27 July 2007, there was a particularly unfortunate changeover during which a “stand-off” situation ensued to the extent that it took two hours and the assistance of police for the children to be successfully transferred from the father’s care to that of the mother. The father says that the mother was inside McDonalds with N and refused to come outside. He said he encouraged the children to go in but they did not want to because N was there. The mother concedes that she refused to come outside, but says that this was because she was afraid the father would hit her again. The mother says that the father refused to let the children come in and that he sent her an SMS text message saying that the children did not want to come in and that he would take them home with him unless she came out. Eventually, the police arrived and escorted the children into McDonalds to the mother.
The parties have also exchanged allegations with respect to stockpiling the children’s clothing and refusing to let the children take certain items with them to the other parent’s home. For example, this dispute manifested itself in the children being sent home from the father’s care to the mother’s on Christmas Day 2006 in their school uniforms. I find it unnecessary to make specific findings in relation to this issue. It is one of numerous examples of the proposition that the parties have an extremely dysfunctional relationship with each other, a matter which I will consider further below.
Difficulties in relation to the children also include tension between the mother and the paternal grandmother. On 19 August 2007, there was an incident at H’s football grand final at which the family, including the paternal grandmother and other members of the paternal family, were present. The father’s account of the incident was that H left certain medals he had received that day with his paternal grandmother who put them around her neck. According to the father, the mother requested that the paternal grandmother give her the medals and when the paternal grandmother refused there was a physical altercation in which the mother forcibly removed the medals. The mother did not challenge this allegation. I am critical of the mother’s behaviour in this regard. However, I note her evidence referred to above that since separation the paternal grandmother has been particularly hostile towards her. That was corroborated by my observations of the paternal grandmother’s viva voce evidence to which I will refer in due course.
In 2007 the father took several actions which appear to be unnecessarily excessive responses, if not provocative or vindictive, including:
·sending correspondence to the mother saying, “I have instructed [my work place] to commence legal action against you [the mother] for recovery” of a several-year-old mobile phone previously purchased by the father’s employer for work purposes and then given to the mother by the father;
·telling the mother he had informed VicRoads and the Police that she was driving an unregistered car, after requesting that she pay the registration fee for the car she drove (which is registered in the father’s name);
·following the mother paying the car insurance for the above mentioned car the father cancelled the insurance and kept the refund causing the mother to pay a further sum to reinsure the vehicle; and
·removing the mother from the family health insurance policy without informing her.
Counsel for the father submitted that in the months leading up to this trial communications between the parties have been largely unremarkable and that the parties are now able to communicate appropriately. The mother denies this and asserts that the father’s demonstrated derogatory attitude towards her persists.

1. PARENTING

The Parties’ Proposals (Parenting)

The mother seeks orders that provide for equal shared parental responsibility, that the children live with the mother and that they spend substantial and significant time with the father comprising, during term time, five nights per fortnight and, during school holidays, such time as agreed or failing agreement that the boys’ time be structured by way of a “week about” arrangement and that O spend three nights with the father corresponding with the time which the boys are with the father.
The father also seeks equal shared parental responsibility and a shared care arrangement. Initially he effectively sought orders providing for a “week about arrangement”. However, he later amended his proposal to seek orders which would provide for what I consider an unusual configuration, namely a division of nights between the parties following the pattern 5:5:2:2, that is that the children spend 5 nights with the father then 5 nights with the mother followed by two nights with the father and two nights with the mother. The reason for this unusual proposal is the father’s concession that O’s age and attachments mean that it is not in her best interests to spend extended time away from the mother. This proposal was suggested by Ms L and, after some diversion, was supported by the Independent Children’s Lawyer.
The father sought a “week about” arrangement for school holidays and that changeovers not occurring at the children’s school or child care take place at the parties’ residences. In his Amended Application for Final Orders, the father also sought additional special issues orders and an order restraining the mother from moving with the children outside of a ten kilometre radius from the town of K. Counsel for the father did not press this issue at trial and the mother gave evidence that should she need to move from the former matrimonial home she would remain in K provided she could afford to.
As I have mentioned, the father’s proposal also involves his paternal grandmother in that he submits she will assist him with his parenting and will care for the children during periods when he is at work and the children are living with him.

The Expert Evidence

Two Family Reports were prepared by Ms L, a Clinical and Forensic Psychologist in private practice. No issue was taken with regard to her qualifications to conduct the relevant interviews and write the two reports which are evidence before me. Because I am in fundamental disagreement with Ms L’s ultimate recommendations, it is appropriate for me to set out her evidence in some detail.

Ms L’s first report

In preparation for her first report dated 14 August 2006, Ms L separately interviewed the father and the mother for approximately two hours each, conducted psychological testing of them and observed each of them with the children for approximately half an hour. She also spoke with H and B individually on two occasions each, with her time with H totalling 45 minutes and with B 20 minutes. Ms L also interviewed the paternal grandmother alone for approximately half an hour and observed her with the father and the children for approximately 15 minutes. In addition, Ms L had conversations of 5 to 10 minutes duration with a staff member at each of O’s child care centre and at the boys’ school. Ms L later made further contact with staff at the boys’ school and with the father to ascertain what accommodation the father could provide for the children in line with his proposal to spend more time with the children (although she did not discuss the fruits of these further discussions in her report).

The father

With respect to the father, Ms L stated that he was “emotional and tearful as he recounted the history and expressed distress at the breakdown of the relationship, incredulity at what [the mother] was alleging, but still hope of reconciliation”. Strangely however, the father was recorded as describing the mother as “grasping, manipulative and nasty”; stating that he feared for the children in her care; that she was “always changing her mind and always blaming him”; and that there had “been a lot of misunderstandings [between himself and the mother] and he would apologise form [sic] his part in it, but [the mother] is unapproachable”. Further, the father is recorded as saying that the mother has been “making up lies” and that this behaviour is not typical and may be “orchestrated”. Ms L recorded that the father remarked that “the mother had been associating with a group of women he did not know who dressed in an alternative way and who came to the Magistrates’ Court the second time [for the Intervention Order proceedings]. He said they may have been coaching her.”
When discussing the mother’s post-natal depression, it is recorded by Ms L that the father “mentioned that in the media there had been stories of mothers killing their babies”.
The father was recorded as saying that there had only ever been arguments between the parties and “that there was nothing physical”. However, he admitted to pushing the mother in the days leading up to separation, saying that he went to wash O as he normally did but that the mother came up to him “snorting and grunting and shoved him out of the way” which made him fear O would slip in the bath so he pushed the mother out of the bathroom.
In relation to the children, Ms L records the father as saying “there had been some yelling, for example if the boys were hitting everyone with sticks” but that after yelling at them he would “explain to them the risk of harm in their behaviour”. He maintained that the mother had a problem disciplining the children and that throughout the marriage she had called on him to do so.
Ms L conducted various psychological tests on the father, the purpose, content and execution of which were not explained. She reported that:
When [the father] responded to the Child Sexual Behaviour Inventory in relation to [O] for the 6 months prior to separation, he obtained normal average scores for a girl of her age. On the CAPI – IV he obtained sound scores on the Validity scales and a low average score for child abuse risk. He acknowledged problems with family and obtained average scores on the other subscales.
Ms L concluded in relation to the father that he appeared “distraught and confused by the breakdown of the marriage and [the mother’s] actions over recent years” and that he:
seemed to lack insight into how his own behaviour has impacted upon [H] and [the mother] or how he could be regarded as controlling at times.
Ms L observed that when seen with the father:
the boys were a little disruptive in their behaviour at first, but [the father] gradually gained their cooperation and more constructive play took place.
She concluded that there was nothing to suggest there was “anything untoward about [his] relationship with [O]” and that his account of his level of involvement with the children was supported by the school report.

The Mother

In her interview with Ms L, the mother described her concerns about the father’s disciplining of the children during the marriage in line with what I have already described above. In addition, she said that throughout the marriage the father called H “stupid” and said he didn’t have a brain when he could not do his reader. Ms L records the mother indicating that “[H] would sit up listening to the parents’ arguments at night and check that [the mother] was alright”. The mother said that H did not like to be left with the father and that he had asked her whether she thought the father would hurt him for what he told Ms L. Ms L also records that the mother said the “children tell her that she’s a bad mother for having kicked their father out” and that “[H] accuses her of writing mean letters” to the father.
The mother reiterated her allegations about the father’s sexual abuse during the marriage stating that the father “argued that he cannot help her in the home if she does not have sex with him” and that he “would press her to have sex every night and would push her against the bench in the kitchen in front of the children”. She said that the father had said to O “Your mother won’t give me affection but you can”. When the issue of the mother’s concerns about the father washing O arose, the mother denied that she was insinuating that the father had sexually abused O. Ms L recorded that the mother “said all that she said was to describe [O’s] actions, but that this had been twisted to be her making allegations”.
The mother said that she was concerned about the father’s ongoing ability to care for the children and his methods of discipline. Ms L recorded that the mother “said she is concerned that when he gets stressed he has a temper and she would not be there to help the children with this.”
The mother also discussed her concerns about what she perceived to be H’s obsessive-compulsive behaviour. Ms L recorded that:
[The mother] claimed that [H] washes his hands 20 times a day saying he had touched something or that [O] or [B] had touched him. She said he would have 3 or 4 showers a day. She claimed he takes all his clothes off to have a bowel motion and then has a shower even if it makes him late for school. … She claimed his class teacher referred [H] to the school psychologist because [H] would get upset easily if his work was not perfect.
Ms L asked H “about showering” when he was brought to interview by the father and recorded that “he said he has a shower in the morning and at night and that there is no need for any more. He said he washes his hands if they are dirty. He denied feeling unable to stop any behaviours or having any pre-occupying thoughts”. Ms L did not ask H about this issue when brought to interview by the mother.
With respect to the mother, Ms L concluded that:
It appears that [the mother] has behaved in inconsistent ways and that she may be prone to exaggeration. She too has attempted to exert control over the situation and the children and has not shown insight into how a sudden loss of contact with the Father and the paternal grandmother may impact upon the children…
In relation to the mother’s mental health, Ms L concluded that it:
[d]id not appear her mental state or her depression was significantly impacting upon her decisions or her parenting. Rather, qualities of impulsivity, chronic discontent and manipulativeness [sic] may have done so on occasion. However, her relationship with the children seemed to be a normal parental one in which she was able to share her attention appropriately between the children, providing them with emotional security.
Ms L conducted psychological testing on the mother (presumably the same tests that were conducted on the father). Ms L states that the mother received “normal scores for developmentally related sexual behaviours but a slight elevation for sexual abuse related items” and that on CAPI, she received:
high validity scale scores which suggested that while trying to present an unrealistically favourable impression, she was also ‘faking bad’, reporting many uncommon feelings and experiences. The total abuse score was very low and she only acknowledged unhappiness but no other problems except a single item for loneliness, but owing to the unsatisfactory validity scales these results cannot be relied upon. She obtained an absolute maximum score for Ego Strength which very probably reflects an unrealistic exaggeration of positive self confidence, given her validity results, her history and her presentation in the assessment.
As noted earlier, Ms L’s report did not explain the purpose, process or reliability of these tests or the significance of the results obtained. She was not cross-examined on this issue. Accordingly, I find I must attribute limited weight to the test results both of the father and the mother. (I note that no counsel made reference to these results or sought to rely on them in submissions.)

The Paternal Grandmother

Ms L observed that the paternal grandmother was appropriate and displayed good parenting when with the children. She recorded the paternal grandmother as stating that the children need more discipline. She recorded that the paternal grandmother apologised for being emotional when visiting O at Child Care and said that she rang the mother to say that O was not well but then the lawyer’s letters began. She said that the father asked her to attend changeovers but that she had not wanted to be in the middle.

The Boys

Ms L recorded H and B as both separately expressing the view that they wanted the parenting arrangements to remain as they were. Both children were consistent in this view across their two interviews.
Both children corroborated the mother’s evidence about them being put outside at night by the father as punishment but both boys stated that the father no longer did so. B reported that when this had happened to him “it felt bad”. H said “I was very scared” and that it happened “heaps of times”. H also divulged that when he got in trouble during the marriage the father “would yell at him or lock the door of his room and take the handle off and this would be for half an hour”. When asked about his father in general, Ms L records that H “said he is scared of his father and that [B] was scared too” but that later he indicated “he is not really scared any more”.
When asked about the present, H expressed, as recorded by Ms L, that there is “nothing that worries him” at the mother’s home. When asked about being at the father’s home Ms L recorded that H “was hesitant” and then “said it was OK but said it was fun with [the mother]”. Ms L records H as saying that the father could look after them but that “if [O] stayed as well they would probably not get any sleep because she would probably scream all night, although he modified this to one hour”. H said that “it was good to be minded by the paternal grandmother”.
B said that he gets on well with both parents and that there is nothing either of them does that he does not like and that the paternal grandmother “looks after them nicely”.
Both boys corroborated that there had been arguments between the parties but to varying degrees: H said that during the marriage the parties argued every night whereas B said that they had not argued much. In relation to violence, Ms L stated that H “denied that there had been any physical hitting or pushing”. B appears to have made potentially inconsistent statements, first indicating, as recorded by Ms L, that “he did not see [the parties] hit or push each other and added ‘they didn’t do it’.” Later however Ms L records that:
He said he would want his parents to be back together and be nice to each other and for there to be no hurting. He said by this he meant pushing and shoving and said that [H] does it sometimes.
Ms L concluded:
while there does appear to have been a level of domestic violence including frequent argument between the parents and undue punishment of the boys, which has caused [H] fear, it also seems that the cessation of this following separation has already reassured him.

The children’s teachers

Ms L did not give much detail on her discussions with the director of O’s Child Care Centre and I note that this conversation lasted only for 5 minutes.
Ms L also spoke with the principal of the boys’ school who Ms L recorded as being impressed by both parties’ “interest, concern and involvement with their children’s welfare and education” and noted that the paternal grandmother had also been involved at the school. Ms L had a separate conversation with another staff member of the boys’ school who said that the school psychologist reported no specific needs of either H or B and that both were well adjusted. Notably, Ms L records that this staff member “said that both of the parents are inclined to try to get the school on their side”.

Ms L’s recommendations

Ms L recommended all three children should spend time with the father every second weekend and each Wednesday night in the alternate week. This represented no great change to the boys’ time spent with the father but represented an increase in O’s time with the father from several short day-time periods only to three nights per fortnight. Ms L stated that this recommended arrangement importantly incorporated O’s crèche hours, meaning that on those days when the children were in the father’s care the paternal grandmother could collect O from crèche and spend time with her as she used to before separation. Ms L stated that the paternal grandmother’s time with O should not be considered a disruption to O’s routine but rather a part of it.
Ms L recommended that each parent should have authority when the children are in their care and that the mother should not be permitted to stipulate that the father be in substantial attendance when the children are in his care. Ms L stated that such an order would “reduce the dynamic of one parent controlling the other”.
I note that these recommendations were reflected in the interim orders (with respect to the children’s living arrangements during school term time) made by consent before Senior Registrar Fitzgibbon on 2 October 2006 and have remained in place up to trial.

Ms L’s second report

Ms L completed a second updated report on 24 October 2007. In preparation for this report, Ms L again interviewed both the father and the mother and observed each of them with the children. She also interviewed H and B each on their own for about 15 minutes.

The father

Ms L recorded that the father maintained that he still did not have enough input into the children’s lives and that he would now like “half time and that it will work and that the children come first”. Ms L records that the father said “he enjoys being a single father now” and is on “the management committee of [O’s] crèche and on the school council at the boys’ school as well as on the football club” and that “he went on school camp”.
Ms L records that the father “complained that [the mother] tends to regard the children as being exclusively hers. He said she does not seem to want the children to have a positive relationship with other children in the extended family” and that the mother “acts as though it is about power and control”. Ms L further records the father as saying that “sometimes he rings to speak to the children, but [the mother] argues with him and then hangs up and does not tell them he has rung”.
The father told Ms L that the children hate having changeovers at McDonalds. He said that at these changeovers he puts the children’s bags in the mother’s car because they are heavy but that she complains and tells him to go inside McDonalds. He cited negative examples of problematic changeovers, the first being the one necessitating the involvement of Police, to which I have referred above, and the second being an occasion on which he believed the mother was 30-45 minutes late, sent her a text message and received no reply and ultimately drove off whereupon the mother said she had a witness to his driving off and had been waiting inside McDonalds the entire time.
The father also raised as an issue the mother’s new partner, N, and discussed his belief that N may have been instrumental in the breakdown of the marriage. He said that the boys did not like N.
The father also expressed frustration and annoyance that O’s speech therapy commenced without him and that “he had to negotiate to attend it”. Ms L recorded that the father thinks the “trauma of having been summarily taken from contact with [the paternal grandmother] contributed to [O’s] speech delay”. He said that O had a three month delay in her speech and that the mother told the crèche it was a 9 month delay. Ms L recorded that “he claimed that since [O] has had regular contact with himself again she has accelerated in her speech development…” Ms L recorded that the father “said he is still deciding whether [O] should go to 4 year old kindergarten next year”, that he had made applications to two kindergartens and tried to involve the mother but she did not reply.

The mother

Ms L stated that the mother told her that her solicitor “had assured her he was sending documents to the writer” but that none were received. She also noted that she had experienced some difficulty in setting appointments with the mother, due to both Ms L and the mother’s clashing unavailability. In affidavit material there has been some criticism of the mother by the father in relation to these circumstances and subsequent objection by the mother. I find that such dispute is irrelevant to my determination of the matter at hand.
Of her interview with the mother, Ms L recorded that the mother “began by expressing her love for her children and her desire to be their primary carer” and “said she wanted to provide them with a safe home free from violence” and “a stable environment”. Ms L recorded that the mother “acknowledged that the children need a relationship with [the father] and his family”.
Ms L recorded that the mother “complained” about the father’s behaviour towards her, including sending her “abusive SMSs and voicemails”, using the communication book “to abuse and intimidate her” and exercising “financial control over her”. The mother provided some examples to Ms L. Ms L recorded that the mother “complained that the father had sent the police to check on the children and has threatened to do this” and that “She claimed that [the father] called her at work about changeover and told her ‘You’ll pay for this’.” Ms L recorded that the mother “complained that [the father] had been at the appointment with [Dr J] and yet he filed a Contravention Application because [H] was at the appointment too. She said [the father] was constantly threatening to bring more Contraventions [sic] Applications if the children did not telephone him.”
In relation to the children’s time with the father, the mother told Ms L: that O was clingy when she returned; B was aggressive when he returned and complained about why he had to be away from the mother for so long; and that H told her the father had tried to video him saying he wanted more time with his father. The mother also said the children had told her they can get Foxtel at the father’s house if they tell Ms L they want half time, but that they don’t know what this means. Later in the report, Ms L recorded that “[the mother] said [B] comes to her bed having had nightmares and that [O] wakes every two hours”.
Ms L records that “[the mother] said her parents live two hours away so it is difficult to see them at Christmas with the current orders” and that the mother suggested that there be a week about arrangement over the Christmas holiday period until the children are older. I note that such an arrangement would include B’s birthday.

In H’s interview with Ms L, he said that the current arrangement was going well but that he wanted more time with the father “because I don’t get to see him much”. Ms L states that H “outlined the current pattern readily” which would appear to indicate that he had an understanding of the current parenting arrangements in operation. Ms L recorded him as saying “[h]e would prefer to have one week with each parent. He said otherwise they could possibly have one or two nights with their father in the other school week”. He said having one week with each parent would be good because they could do more things. H said that it would be “ok” to alternate spending Christmas and B’s birthdays with the one parent one year and the other parent the following year rather than splitting up the days. Ms L recorded that H maintained the same views when brought to interviews by each parent and that he said no one had told him what to say.
Ms L recorded that H said there was nothing either of his parents did that he did not like and that when with one parent he can telephone the other parent when he wants to.

In B’s interview with Ms L, he demonstrated some, albeit perhaps limited, understanding of the current parenting arrangements: Ms L records “He said they would be going back to their mother’s on Friday and that they have a weekend with each parent” and, further, when brought to interview by the father, B “said he wants half time with each parent and that currently his mother has more time with them.” When brought to interview by the mother, Ms L asked B how he would like to spend one week with each parent and in response “he expressed a little doubt saying he did not know. However he reiterated that he wants half time with each parent”. When asked about alternating spending Christmas and his birthday with each parent in different years he said that this “would be ok”.
It appears that Ms L did not ask B, or indeed H, how he would feel if he did not spend more time with the father.
B said that there was nothing either parent does that he did not like. Ms L recorded that “He said that things are good at his mother’s house and that [N] comes over as a friend and that [N] does not see his children.” Ms L also recorded that B expressed that he “does not get on with [N] very well and that he does not like him coming over all the time. He said [N] talks a lot and it gives him a headache.” Ms L recorded no detail about any comments made by B about the father’s home or his partner and it is unclear whether questions were asked to this end.
Ms L recorded that B “said he wanted to stop going to McDonalds for changeover and said it is better to change over at school, but he said if a parent has to drop them off they should go to that parent’s house.”

Ms L’s conclusions

Ms L acknowledged that her report “may be limited if there have been documents not seen on the Mother’s side”. She then stated that the “remark made by [B] that [N] does not see his children raises concerns in the light of the Mother’s statement that [N] does not have any children and this matter should be further explored, especially as [B] expressed discomfort in his relationship with [N]”.
Ms L observed that “[e]ach parent demonstrated satisfactory parenting in the family observations, attending to safety for [O], providing educative guidance, giving physical comfort and responding to their needs for attention or consumption.” Ms L stated that “[i]t seemed a little unfortunate that [the father] chose to allow the children sucker lollies during the assessment” but otherwise found he showed good parenting ability with the children and that “[h]is parental relationship with the children appear to have improved since the last assessment”. By contrast, Ms L found that the mother “seemed slightly less secure in her parenting, having difficulty in showing any relationship with [H] or including him in the interactions, taking the easier option of distracting [O] rather than requiring [B] to wait to have the puzzle [they were playing with] and sometimes failing to assist [O] to follow through with the meaning of her verbalisations”.
However, in relation to a dispute between the parents about O’s education for the following year (the father “seeming to want her to go to 4 year old kindergarten and the mother wanting her to attend the 3 year old kindergarten program and continue with some crèche”), Ms L ultimately concluded that the mother’s suggestion was the most appropriate and in O’s best interests given the “significant delay” in her speech which Ms L had observed. Ms L stated that O “would be disadvantaged in a 4 year old programme at present and will develop better by mixing with children more tolerant of limited speech from peers.” Ms L’s evidence confirms that in this area of dispute between the parties the mother’s concerns about O and her views about the action to be taken with respect to these concerns were legitimate and appropriate.
Ms L stated that “[t]he boys have changed their expressed wish” from their previous desire that parenting arrangements remain the same and that “[e]ach of them has now asked for equal time with each parent”. Ms L recorded that “[H] has said he would like this to be on a week about basis as it is in the school holidays, but [B] was unsure about this while still wanting an increase in time with his father”.
Ms L concluded with respect to [O’s] time with the father that:
Although [O] may have shown adaptation to a full week with each parent during the holidays, it is considered that it would be detrimental to her relationships with each parent for this to be the basis of time spent with each parent continually at this stage of her development. [B] may also still find such an arrangement somewhat stressful. However, it is considered that more equal time with each parent may now be beneficial for the children.

Ms L’s recommendations

Ms L ultimately recommended that equal care should be ordered but specifically recommended that this not occur via a “week about” arrangement in keeping with her view of O and B’s interests as demonstrated in the quotation in the previous paragraph. Ms L stated that a “pattern of care to be considered” was a regime whereby during the year the children’s nights in each fortnight are divided between the parties as follows 5:5:2:2 (“the 5:5:2:2 pattern”) and that they follow a “week about” arrangement during Christmas school holidays.
In her affidavit evidence and via oral submissions from her counsel, the mother objected to the focus upon N in this second report stating, “In any event [Ms L] did not ask the children about their father’s partner or partners and how they get on with her or them.” She further objected, again reasonably in my assessment, to Ms L’s expressed concern about the discrepancy between the comments made by the mother and B as to whether N had children. The mother said: “I was disappointed that [Ms L] appears to be casting doubt on my veracity here… Perhaps [B] misunderstood…” To my mind, it would appear far more probable that a child of seven is confused about a fact than that an adult would lie about such an easily discernible fact. Additionally the mother stated in her affidavit in chief that “A number of [her] concerns were not addressed and I attempted to raise them with Ms [L], but we had limited time. My concerns do not seem to be reflected in her report or her recommendations”.

Ms L’s viva voce evidence

In cross-examination by counsel for the father, Ms L agreed that the boys presented as “fairly happy, healthy, well-adjusted children”. However, she confirmed her earlier evidence with respect to the children’s temperaments saying that H “has a sensitivity in his nature”; B “seems to be moderately resilient, and happy and healthy”; and that “[O], has difficulties, particularly with her speech development… but she seems comfortable with different people, so, yes, she’s also moderately happy and healthy”. Further, she agreed that O was “fairly closely attached to both parents”. She also agreed that all three children were close to the paternal grandmother and enjoyed her role in their lives.
Specifically with regard to H, Ms L said “I see him as having a sensitive temperament. It’s almost easier sometimes to describe the opposite and say he’s not bold in his confidence and he’ll notice smaller things. Maybe prone to anxiety or having anxiety by certain experiences”. Counsel for the mother put to Ms L that such a sensitivity may entail being “much more attuned perhaps than the other two children to people around him, how they’re feeling, their expressions and so forth” and Ms L agreed that it “might entail that”. In my view, given the history of conflict between the parents and particularly the father’s demonstrated difficulty in controlling his residual feelings of blame and resentment towards the mother as demonstrated by the various examples of correspondence discussed above, it is highly probable that H is aware of the father’s feelings both towards the mother and towards N.
Ms L stated that “It seems that each parent is well capable of the day-to-day routines with the children”. However, through cross-examination, it became clear that Ms L had an additional concern which was not highlighted in either report, that the mother had greater difficulty than the father in appropriately facilitating O’s speech development. Ms L said on this factor alone she might have recommended that O spend more time with the father, however she stated that “there are many things to be considered” such as “[O’s] attachments and so on” which weigh against recommending more time with the father. That evidence concerns me. Ms L had approximately half an hour within which to make this assessment of the mother's ability to facilitate the development of O’s speech and without further evidence, her opinion is of little probative value. I note, in addition, the Ms L is not a speech therapist or speech pathologist.
In relation to the father’s parenting, Ms L stated that his relationship with the children has “distinctly improved” and that he has “come along leaps and bounds as a parent” since the time when he had used punishments such as putting the boys outside in the dark. However, she said that the father “tended to either deny or minimise” his inappropriate treatment of the mother, aside from the one incident he acknowledged of pushing the mother out of the bathroom.
Ms L was cross-examined for a significant period about the parties’ abilities to communicate and parent cooperatively. Ms L refused to agree with counsel for the father that the “level of criticism” between the parties was “at a fairly minor level in comparison to a lot of cases” instead saying that she thought it was “rather high”. Further Ms L did not agree with counsel for the father that communication difficulty was a more critical issue at the first interview as opposed to the second, stating:
I think it was still active at the second [interview], although it might have been less in the sense that in the second assessment, [the mother] said that [the father] had been writing in the communication book in an intimidating manner, and presented two pages of it to me, and indeed, what was written in the book was highly critical of her and was in the tone of, you know, he was lecturing her as to what she must do and so on, all of which I considered inappropriate and not the right use of the communications book. I guess that showed that the communication was still very conflicted and troubled, but it may have been less because it was now in a written form rather than face-to-face and so on.
I find it difficult to accept that communication which is otherwise "very conflicted and troubled" might be considered to be less so because it is written rather than face-to-face. Apart from anything else, the permanency of a written communication must give the conflict a greater significance than it might otherwise have.
Notwithstanding Ms L’s assessment of the high level of conflict and the “still very conflicted and troubled” communication between the parties, Ms L said she believed the imposition of orders limiting communication between the parties to only that which relates to the children’s care would ameliorate this problem. Counsel for the mother put to Ms L that given the parties have had ongoing communication problems since their separation almost three years ago this family will not suddenly become functional in a matter of weeks upon the making of orders as recommended by Ms L. Ms L could not accept counsel’s proposition and stated that such orders could produce a “marked improvement in quite a short time… because the behaviours then get suppressed”. To my mind, given what I find to be the entrenched animosity between the parties, and particularly from the father, I find it improbable that the communication problems between these parties can be so easily solved. Further, I find that in this case the level and frequency of communication required between the parents is higher than in many cases given the particular needs of the children, for example their specialist appointments and the cooperation necessary with regard to facilitating O’s intensive and ongoing speech therapy.

It became apparent through Ms L’s evidence that she initially set different standards for each of the parents. Ms L said that the mother’s “hypersensitivity” is “her business” and she needs to “become more resilient” to the father’s behaviour. However, by contrast, whilst she acknowledged that the father “lacks insight into his haranguing, into his lecturing, into his high level of criticism”, she stated that his “behaviours need to be controlled” by external forces such as more specific and direct orders, rather than be his responsibility to amend. Further, she effectively excused his misuse of the communication book, saying there is no “… evidence that he has defied the intention of the order, rather that he didn’t know that he wasn’t allowed to do what he’s been doing.” Ms L says, on the one hand, that one cannot expect lay people to understand the purpose of a communication book but then, on the other hand, says that the orders in place which clearly set out examples of what the communication book is to be used for may not be clear to the father because they use the phrase “not limited to”. To my mind, it is contradictory and illogical to say that a lay person could not understand a simple description of everyday activities appropriate for a communication book but then that they would attribute particular meaning to the legal phrase “not limited to”, particularly in circumstances where there is also a non-denigration order in place. That is particularly pertinent to the father. However, to her credit upon prompting from counsel for the mother, Ms L did acknowledge that whilst she put the onus on the mother to seek therapy to address her own behaviour it may be similarly appropriate for an order to be put in place requiring the father to undertake counselling in order to understand his own behaviour and its effects.
In relation to the boys’ expressed wishes for equal time with each parent, counsel for the mother cross-examined Ms L about the possibility that the children’s expressed views had been influenced by the father. Ms L had difficulty responding to this line of questioning, stating that “the children have had both influences [from the father and the mother]… we can try to read a little too much into, you know, the convolutions of how an expressed wish comes about.” She then said:
Look, if it is as [the mother] has reported [with respect to comments made by the children that the father told them to “tell the lady they wanted half time”], and if it was spontaneous from the children, one would have a sense that the father has attempted to influence the children in that direction. That would be most undesirable. However, at the end result, that doesn’t necessarily mean that they’re saying what they’re saying because of the father’s influence, even if it’s occurred.
Ms L also gave evidence that if equal time was not ordered the children’s relationship with their father would “probably not” deteriorate. However, she added that “if they had the same [parenting arrangement] as they’ve got now continuing after they’ve expressed wishes for equal or half time, their relationship with their mother might deteriorate because of a feeling that she has, you know, overridden their wish…” Ms L said that she had observed some difference in H’s relationship with the mother in her second assessment, in that H was less reliant and interactive with the mother, but noted that this will be due to age as well as the family interactions.
When questioned by me about alternate parenting arrangements such as moving to a pattern of the children spending 9 nights with the mother followed by 5 nights with the father, Ms L stated that she did not think this would represent enough of a change for the children, although I note that she did not appear to have put that, or indeed any, alternate option to the children. She maintained that a year-long week about arrangement was inappropriate as a full week away from the mother was too long for O and “would be emotionally detrimental” for her and additionally “[B] may also still find such an arrangement somewhat stressful” because of “his level of maturity and durations of time span in children’s minds”.
With respect to her suggested 5:5:2:2 pattern, Ms L stated that whilst at first blush this appears a bit complicated, it is easily recognisable and adjustable for children as there is a constancy of the days of the week so that the child can say “On Monday, I’m with mummy, Tuesday I’m with mummy, on Wednesday I’m with daddy” and so forth. Ms L said that “Anything which changes on a fortnight basis differently from one week to the other is a lot more complicated for a child to cotton onto”. In relation to the argument that there is the opportunity for higher levels of conflict in an equal time arrangement because it means there are more issues between the parties to be dealt with and, in her proposed arrangement, more frequent changeovers, Ms L said that “the pattern [she] proposed reduces that perhaps more than most other patterns because of the constancy of the two days with each parent within the week, and then only the weekends are alternating, so probably less conflict that [sic] other regimes that have been being [sic] considered.”

DISCUSSION

I now turn to a consideration of the merits of the respective applications in the context of the relevant law. In the first place, the best interests of the subject children are the paramount consideration in these proceedings. "Paramount" does not mean " sole "; it means "most important".
I must then consider the objects of the relevant part of the Act together with the principles underlying those objects. The objects seek to ensure that the best interests of children are met by ensuring that their parents have "a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child … ." Children are to be protected from physical or psychological harm or from being exposed to abuse, neglect or family violence. They are to "receive adequate and proper parenting to help them achieve their full potential". Duties and responsibilities are imposed on their parents requiring them to ensure "the care, welfare and development of their children." Children also have "a right to enjoy their culture."
The principles which underline those objects are expressed by the Parliament to apply "except when it is or would be contrary to a child's best interests." Children are granted certain rights by those principles. Those rights are to "know and be cared for by both their parents" and "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." Correspondingly, duties are imposed on the parents to "jointly share … the care, welfare and development of their children." Parents are encouraged to "agree about the future parenting of their children."
Fortunately, the respective proposals of the parties will enable me to determine these applications in a way which will give effect to the requirements of that object and the principles underlying it. The outcome of this matter will be that both parents will remain very actively involved in the upbringing of their children and in maximising their care, welfare and development. That arises out of the fact that the competing proposals are for an equal sharing on the part of the father and for a division of time as to nine nights to the mother and five nights to the father on the part of the mother.
I now turn to a consideration of the question of parental responsibility. The Act defines "parental responsibility" as being " … all the duties, powers, responsibilities and authority which, by law, parents have in relation to children." The Act also establishes 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." By virtue of the proposals of both parties, that is not an issue here. The parties have agreed that they should equally share parental responsibility for the children. Given the involvement and respective roles which each of them has played in the lives of their children and the nature of the proposals before me which, subject to the differences in those proposals, effectively continue those roles at least to a very large degree, that agreement is in the best interests of the children.
Having determined that the parties will equally share parental responsibility for their children, I am then required to "consider whether [the children] spending time with each of the parents would be in the best interests of [the children]" and whether spending such equal time is "reasonably practicable". If I determine both of those matters in the affirmative, I am required to consider making an order to provide for the children to spend equal time with each of their parents.
In the event that I determine that the children should not spend equal time with each of their parents, I am required to consider whether the children should spend "substantial and significant time with each of the parents" and whether it "is reasonably practicable" for them to do so. "Substantial and significant time" is defined by the Act as including "the days that fall on weekends and holidays" and "days that do not fall on weekends or holidays". The concept includes enabling the parents to be involved in "the child's daily routine" and "occasions and events that are of particular significance to the child". It also includes time which "allows the child to be involved in occasions and events that are of special significance to the parent."
I have set out the legislative framework providing for the children spending either equal time or substantial and significant time with each of their parents in the previous two paragraphs because these applications require a decision which will effectively apply one of those two alternatives. It is common ground that the mother's proposal enables the children to spend "substantial and significant time" with each of their parents. Accordingly, I turn to a consideration of the matters which I must take into account in determining that issue.
There are several categories of matters which I must consider in determining the best interests of the children. The first of those are the primary considerations which include "the benefit to the [children] of having a meaningful relationship with both of the [children’s] parents" and "the need to protect the [children] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." There can be no doubt that it will benefit all of the children who are the subject of these proceedings to have a "meaningful relationship" with each of their parents. I am confident that each of the proposals will result in that occurring.
The issue of protecting the children from harm or abuse is somewhat more complicated. The evidence of Ms L satisfies me to a high degree of probability that the parties' dysfunctional relationship has been experienced by the children which, by definition, cannot be in their best interests and is abusive of them. I am satisfied that both parties have understated the negative aspects of that relationship which has involved psychological and emotional violence, probably by each of the parties towards the other. However, in my view, there is a qualitative difference to that violence. By virtue of his dominant personality, I am satisfied that the father has, to a very large degree, been the initiator of that violence. I accept the father's evidence that the mother has retaliated but I do not accept that she has been the initiator.
Further, I accept Ms L's evidence that the father has acted quite inappropriately towards one or more of the children by such actions as --

locking the boys out of the house by way of punishment which obviously scared them; and
locking the boys in the bedroom and removing the handles.

However, despite my concern with regard to the father's conduct towards both the mother and children, it cannot be said that the issue of protecting the children will be influenced by accepting the proposal of the mother rather than that of the father. It does not impinge on the best interests of the children with regard to the distinction between the equal shared time and substantial and significant time which differentiate the two proposals. In my view, that issue of protection of the children is more relevant to other matters discussed below.
The second category of matters which I am required to consider in determining the children's best interests are referred to in the Act as "additional considerations." The first of those is the question of the children's wishes. The most reliable evidence in this regard is that of Ms L. As described above, there would appear to have been some degree of shift in the views of the two older children between the first report and the second report. The first report was, in my view, concerning insofar as the children's attitudes to the father were concerned. That report specifically contained corroboration by the children of the mother's allegations with respect to the father's treatment of both the mother and the children. There are significant negative views expressed by the older children with regard to the father's behaviour towards them. If not for Ms L's second report, in my view, this matter would be significantly more straightforward than it is.
It is clear from the second report that the children's views towards their father have moderated. There would appear to be some question as to whether the children were simply expressing a wish to spend more time with their father than at present or whether they wanted that extra time to go as far as being equal sharing. It is not possible to resolve that question, particularly given the children's ages. That is entirely consistent with those ages. The legislation requires me to consider any views expressed by them together with "… any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give the child's views." The children are very young, impressionable and involved in a highly dysfunctional family dynamic brought about by the antagonism of their parents towards each other. Accordingly, while I am prepared to accept that the two older children have expressed a wish to spend more time with their father, I do not regard their expression as being firmly in favour of an equal sharing. At best, they are prepared to see an equal sharing as an alternative.
I am required to consider the nature of the relationship of the children with each of their parents and "other persons (including any grandparent or other relative of the child)." There is no question that both parents profoundly love each of their children. I am confident that they have devoted themselves to the children's welfare and will continue to do so in the future. Likewise, I am confident that all three children love and adore each of their parents.
The only other significant person to be considered in this category is the paternal grandmother who gave evidence in these proceedings. I find that there is mutual love between the grandmother and the children. However, I will detail significant criticisms which I have of the grandmother below.
I am required to consider "the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent." In my view there is a significant difference between the parties in this aspect of my consideration. I will shortly detail reservations which I have with regard to the father's attitude towards the mother. His very high degree of antagonism towards her is most concerning. I am not at all confident that once these proceedings are over, he will be able to restrain himself from criticism of the mother, thereby negatively affecting his facilitation and encouragement of the children’s relationship with their mother.
I am then required to consider the likely effect of any changes in the children's circumstances. Essentially, this is a question as to whether a change of the status quo may affect their best interests. The status quo has, for some time, been the that the children have been in the primary care of the mother, the two older children spending four nights per fortnight with the father in two separate blocks. O has had less time with her father which has taken place at times when her two brothers are in his care.
Both proposals are put on the basis of a fortnightly cycle. The father's proposal is for an equal sharing of that time and the mother proposal is for her to have nine nights per fortnight and the father have five nights per fortnight. Accordingly, acceptance of either of those proposals will not, in my view, have a significant effect on the status quo. Therefore, I find this factor to be insignificant in my consideration.
I am then required to consider "the practical difficulty and expense of [the children] 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." The parents presently live very close to each other and are able to adjust their activities to accommodate either proposal. It was submitted on behalf of the mother that the father's employment requirements made it difficult for him to comply with his proposal. His proposal includes some assistance from his mother in the care of the children when they are living with him. Apart from my reservations with regard to his mother, there was some slight but insignificant question about his credibility as to his availability following evidence from his employer. I am not troubled by that matter.
I must then consider the capacity of each of the parents and any other person "to provide for the needs of the child, including emotional and intellectual needs." There is no question that each of the parents is able to physically care for the children. There is a significant difference between them in their attitudes towards parenting. The father is more controlling and less flexible. The mother might be criticised for being too flexible.
Ms L's first report contains disturbing material with regard to the father’s disciplining of the children referred to above. It would appear that his behaviour has improved significantly. He is intelligent and seems to have realised that he should not behave in those ways. However, that realisation has not extended to his developing perception and insight as to the significance of his behaviour. The father has a self-righteous belief in the correctness of virtually every position that he takes and has enormous difficulty in conceding any error. He finds it very difficult to restrain himself from being critical of the mother, as a result of which he has put her down constantly and there is no real sign of any genuine awareness that this is unacceptable behaviour. In my view, it is inevitable that that lack of awareness will spill over into his attitudes to the care of the children. He will find it very difficult to restrain himself from conveying his negativity towards the mother to the children, whether overtly or covertly. That difficulty has existed at least since the separation and was extremely evident during the trial.
Perhaps the most concerning example of the father's attitude towards the mother was that of his attitudes to her health and particularly to her postnatal depression. It is almost as though he blames her for that depression rather than understanding that it is an illness which needs to be treated, just like any other illness. While I accept that he was physically supportive of her in that he undertook a great deal of responsibility for the care of the children during her illness, his lack of support for her generally constitutes an attitude to her which is most concerning. The fundamental point here is that there has been a direct link between his unacceptable attitude to the mother and his attitude towards parenting of the children, particularly in so far as he has an obligation to promote the relationship between the children and their mother.

It is necessary to emphasise that in making the negative comments about the father above, I am not suggesting that the mother is beyond criticism. In the context of a highly dysfunctional relationship between the parents, in my view it is highly probable that both parties acted badly at times. However, my observations of the parties and the totality of the context of the facts in this matter satisfy me to a high degree that the father was the initiator. It is regrettable that to that extent, I must be critical of him.
As noted above, in my consideration of this factor, I am required to consider the capacity of any other person in those regards. It is therefore necessary for me to briefly refer to the paternal grandmother. The paternal grandmother swore an affidavit and gave oral evidence in these proceedings. Suffice to find that it is a long time since I have heard such a vitriolic, antagonistic and negative attitude by a grandparent towards the mother of her grandchildren. I have no doubt that the paternal grandmother has played a significant role in the upbringing of the children, something which is to be applauded. If she were able to put aside her antagonism towards the mother, she could retain a most positive and beneficial role in the lives of her grandchildren. However, her evidence persuades me that the grandmother has been, and probably will continue to be, disruptive of the relationship between the children and their mother, a factor which is totally contrary to the children's best interests. The grandmother did her son's case significant damage.
I note also the evidence in relation to the paternal grandmother’s advanced age, health difficulties and the competing care responsibilities she has to her husband, the paternal grandfather. At trial, the paternal grandmother was aged 76 years. Through cross-examination the paternal grandmother conceded that she suffers from hypertension, osteo-arthritis (which causes her difficulty in doing up [O’s] seatbelt in the car) and that she “gets confused about things sometimes”. She also conceded that she is the primary carer for her husband who suffers from dementia.
The legislation then requires me to consider questions of maturity, sex, lifestyle and background of the children including any indigenous background. Those matters are not relevant.
I must then consider "the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents." The findings and comments which I have made above with regard to the respective parenting abilities of the parties and the communication between them are equally applicable in my consideration of this factor. It is unnecessary to consider that further.
The legislation then requires me to consider issues of family violence. I have already made all the relevant findings in this regard and do not find it necessary to take the matter further.
The legislation then requires me to consider whether I should make final or interim orders. Counsel for both parties argue this matter on the basis that the orders which I should make are final. I agree with that completely.
Finally in my consideration of this category of factors in determining the best interests of the children, I am required to take into account "any other fact or circumstances that the court thinks is relevant." I will return to this question shortly.
The third category of matters to be considered with regard to the question of equal shared time as distinct from substantial and significant time concern the question of determining the reasonable practicality of the respective proposals. First, I must consider the question of how far the parents live from each other. I note already having made a finding that they live very close to each other. Secondly, in considering "the parents' current and future capacity to implement an arrangement for the [children] spending equal time, or substantial and significant time, with each of the parents …", I find that they both have that capacity in a physical sense. Surprisingly, despite the dysfunction of the relationship described above they have both been able to make the arrangements work in a practical sense. In that sense, I am confident that they will be able to continue to do so, no matter what my determination of the respective proposals may be. However, the findings in this paragraph refer only to the arrangements working in a practical sense and specifically do not refer to the findings above.
I am then required to consider "the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind." As previously referred to, the parties have great difficulty in communicating with each other and resolving difficulties which arise. One example of that is the totally unsatisfactory use of the communication book which should normally solve communication problems between them to the extent that parties do not then act to communicate on a face-to-face or voice to voice basis. That has not worked in this matter. It follows that the more that the parties have to resort to use of the communication book, the more the opportunity will arise for conflict. In my view, the more the parties need to come into communication with each other at times of change over, the more they may need to use the communication book.
Finally, I am required to consider "the impact that an arrangement of that kind would have on the child." My consideration of this factor is taken together with the last of the factors in the second category referred to above. In doing so, I refer to the specific proposals of each of the parties. Fundamentally, I have a strong view that if there is to be an order for equal shared time, the proposal put by the father as supported by the Independent Children's Lawyer and Miss L, and, I believe, initiated by Ms L, is contrary to the best interests of the children and particularly O. I now develop that proposition.
Ms L favours equal shared time. Normally, that would be on a week by week basis, at least in part to avoid multiple changeovers by the children between homes within short intervals. In my view, there are strong bases to question whether even a week by week arrangement is in the children's best interests. Factors in favour of a week by week determination are:
·the high level of the father's involvement with the children;
·the expressed wishes of a least the older children to spend more time with their father, perhaps to the extent of equal time;
·the fact that such an arrangement would involve very little travel for the children, no change of school and retention of their social networks;
·the apparent preparedness of the mother to make an equal shared time regime work if the Court so determines; and
·equal shared time, albeit not on a week by week basis, is strongly supported by both Ms L and the Independent Children's Lawyer.
Factors against a week by week determination are:
·the highly dysfunctional relationship between the parties and particularly their difficulties in communication;
·the attitude of the father towards the mother described above;
·the father's proposal to involve his mother in care of the children when he has employment requirements in circumstances of the findings against the grandmother made above;
·O and B’s young age and attachment to the mother as agreed between the parties; and
·the mother's resistance to such a determination.
However, while I would be at liberty to determine that there should be equal shared time on the basis of a week by week sharing, the father's proposal as supported by the Independent Children's Lawyer and Ms L contains a factor which, in my view, creates a further difficulty. That is the proposal by which the fortnightly equal sharing should not be on the basis of week by week but rather on the 5:5:2:2 pattern. Ms L’s reason for recommending that type of equal sharing is that O, because of her age and attachment to her mother, would find it too difficult to be away from her mother for a full week. It is common ground that my determination should apply to all three children and that they should not be separated. The difficulty with respect to O would therefore apply to her two brothers.
In my view, the specific proposal for equal shared time is strongly contrary to the best interests of all the children. Particularly in the dysfunctional relationship of their parents which exists in this matter, the constant changing between homes, despite the fact that those homes are geographically very close together, is likely to require more communication between the parties and be far too disruptive to the children. Regrettably, because of the difficulty with respect to O’s age and attachment to her mother, Ms L effectively rules out equal shared time on a week by week basis.
However, in my view there are further reasons for preferring the mother's proposal to that of her father. Those reasons go to the father's personality, his previous attitudes towards parenting and his highly negative attitude towards the mother. I have already found that the father is a controlling person. In my view, equal shared time runs the very substantial risk of giving the father more control than is in the children's best interests. By making the mother the primary parent, the factor of the father's control may be reduced and will provide a greater balance to the parties' respective roles and parenting of the children. Further and regrettably, if the father has less time with the children during the week and therefore is more available to care for them himself, the negative and destructive role of the grandmother towards the children's relationship with their mother might be reduced. In addition, if the children spend less time with the father throughout the week the paternal grandmother will receive less of an ongoing burden of care for the children which, to my mind, is positive given her age, health and competing responsibilities in caring for her husband.
Accordingly, I have determined that the mother's proposal whereby the children spend nine days in a row with her, followed by five in a row with the father is preferable and in the best interests of the children. The parties are agreed on the other aspects of the time which each is to spend with the children and order accordingly.

PROPERTY

In my consideration of the competing applications for alteration of property interests, I have had regard to the apparent fact that the values of real estate have plummeted dramatically in at least many areas of the Melbourne metropolitan area. During the trial, the parties agreed that the market value of the former matrimonial home was $620,000, as found by the single expert’s valuation. It is possible that that figure has changed significantly since the parties' agreement and it is accordingly appropriate to provide opportunities to the parties to reconsider that matter.
I have therefore decided to refer these applications back into Court for consideration of the question of valuation of the former matrimonial home. There are several options available. They are:
·to maintain the present agreement with regard to the value of the property;
·to have the single expert witness who previously valued the property update that valuation and proceed on the basis of that figure, either with or without further evidence; or
·to arrive at an alternative agreement with respect to value.
I will direct that the parties, through their legal representatives, advise my Associate within seven days as to which course they propose to take. I will then determine whether it is necessary to have a further hearing of the matter.
I also note that the parties had agreed that there should be a splitting order of their respective superannuation benefits so as to achieve equality of those benefits. The practical application of that agreement would be to provide for a splitting order in respect of a father's benefits. By the conclusion of this trial, I was not provided with evidence of the approval of that course of action of the trustees of the relevant superannuation fund. I now seek that proof together with a minute of the appropriate orders to be made to achieve that result.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.

Associate:

Date: 24 November 2008

[2008] FamCA 1000

24 November 2008

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