Lindsay and Piper

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDSAY & PIPER

[2019] FCCA 358

Catchwords:
FAMILY LAW – Parenting – Two year power struggle over parenting arrangements for three young children – orders made for the children to live with the mother and spend time with the father culminating in four nights per fortnight – poor parental relationship and children with some health needs – mother to have sole parental responsibility for decisions about the children’s health and the parties otherwise to share parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:

Mazorski & Albright (2008) 37FamLR 518
Gravis & Major [2010] FamCAFC 239

Applicant:

MS LINDSAY

Respondent:

MR PIPER

File Number:

NCC 35 of 2017

Judgment of:

Judge Terry

Hearing dates:

26 July, 12 October & 5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Newcastle

Delivered on:

16 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

Hunter Family Law Centre

Counsel for the Respondent:

Mr Rugendyke

Solicitors for the Respondent:

Burke & Mead Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Gorton

Solicitors for the Independent Children’s Lawyer:

Todd Street Lawyer

ORDERS

The children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 (“the children”) shall live with the mother.
The mother shall have the sole parental responsibility for decisions concerning the children’s health.
The mother and the father shall otherwise have shared parental responsibility for the children.
The children shall spend time with the father as follows:
(a)During School Terms
(i)Commencing on 18 January 2019 and each alternate weekend thereafter from 5.00pm on Friday until 5.00pm on Saturday.
(ii)Commencing on 15 March 2019 and each alternate weekend thereafter from 5.00pm on Friday until 5.00pm on Sunday.
(iii)Commencing on Tuesday 29 January 2019 and each alternate Tuesday thereafter from 9.00am or the commencement of school until 5.00pm.
(iv)Commencing in 2021 each alternate weekend from 5.00pm or the conclusion of school on Friday until 9.00am or the commencement of school on Monday.
(v)Commencing in 2021 each alternate Tuesday from 5.00pm or the conclusion of school until 9.00am or the commencement of school on Wednesday.
(b)During School Holiday Periods
(i)2019
(i)In the Term 1 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Thursday.
(ii)In the Term 2 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Friday.
(iii)In the Term 3 school holiday period from 5.00pm on the first Monday until 5.00pm on the following Saturday.
(ii)2020
(i)In the Term 1 and 2 school holiday periods from 5.00pm on the first Monday until 5.00pm on the following Saturday.
(ii)From Term 3 and continuing for each of the Term 1, 2 and 3 school holiday periods thereafter from 3.30pm or the conclusion of school on the last day of school term until 5.00pm on the following Saturday.
(c)During Christmas School Holiday Periods
(i)2019/2020
(i)From 5.00pm on Monday 30 December 2019 until 5.00pm on Friday 3 January 2020; and
(ii)From 5.00pm on Monday 13 January 2020 until 5.00pm on Friday 17 January 2020.
(ii)2020/2021
(i)From 5.00pm on Saturday 2 January 2021 until 5.00pm on Saturday 9 January 2021.
(ii)From 5.00pm on Saturday 16 January 2021 until 5.00pm on Saturday 23 January 2021.
(iii)2026/2027 and each alternate year thereafter (even numbered years)
(i)From the conclusion of school on the last day of Term 4 until 5.00pm on the day which is the midpoint of the school holiday period.
(iv)2027/2028 and each alternate year thereafter (even numbered years)
(i)From 5.00pm on the day which is the midpoint of the holiday period until 5.00pm on the last Saturday of the holiday period prior to the commencement of the new school term.
Notwithstanding any other order the children shall spend time with the father:
(a)Christmas Period
(i)In even numbered years from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
(ii)In odd numbered years from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
(b)Father’s Day Weekend
(i)From 5.00pm on Saturday until 5.00pm on Sunday.
(c)Father’s Birthday
(i)From 5.00pm on the day prior to the father’s birthday until 5.00pm on the day of his birthday.
Notwithstanding any other order the children shall spend time with the mother:
(a)Christmas Period
(i)In odd numbered years from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
(ii)In even numbered years from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
(b)Mother’s Day Weekend
(i)From 5.00pm on Saturday until 5.00pm on Sunday.
(c)Mother’s Birthday
(i)From 5.00pm on the day prior to the mother’s birthday until 5.00pm on the day of her birthday.
For the purpose of implementing these orders, unless otherwise agreed between the parties:
(a)The father or his nominee will collect the children from the mother or her nominee at the BP Service Station at Town A at the commencement of the children spending time with the father;
(b)The father or his nominee will return the children to the mother or her nominee at the BP Service Station at Town A at the conclusion of the children spending time with the father.
Both parents may communicate with the children at all reasonable times whilst the children are in the care of the other parent and, for this purpose:
(a)Communication will be implemented by the parent who is not caring for the children at that time telephoning a number or otherwise initiating electronic communication with a source to be provided by the other parent, such telephone number or sources to be provided to the first-mentioned parent in writing within 7 days from the date of these orders.
(b)The other parent will make the children available for such telephone or other electronic communication and will afford the children privacy for the duration of any such telephone call or other electronic communication.
Both parents are restrained by injunction from:
(a)Denigrating the other party within the presence or hearing of the children and from permitting any other person to do so.
(b)Allowing the children to come into contact or remain in contact with:
(i)Mr B.
(ii)Mr C.
(iii)Any person under the influence of illicit substances.
(c)Consuming alcohol when the children are in their care.
Each party is at liberty to attend significant school and extra-curricular events for the children that each parent would ordinarily be expected to attend including, but not limited to, award presentations, performances, sporting games, competitions and parent teacher interviews.
Each party is to notify the other as soon as is practicable on the happening of any of the following of the children:
(a)Any serious medical problems or serious illnesses suffered by the children whilst in their care.
(b)The children being hospitalised.
(c)Any medication that has been prescribed for the children.
(d)Any social, school or religious functions which the children are to attend.
(e)Being involved in an accident or emergency warranting hospitalisation.
Each party will provide the other with an operable telephone number and their current residential address for all periods when the children are in their care, and advise the other parent in writing of any changes within 7 days of the relevant change.
For all purposes the children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 shall be known henceforth as, [X] Lindsay-Piper, [Y] Lindsay-Piper and [Z] Lindsay-Piper.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the children [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 to [X] Lindsay-Piper, [Y] Lindsay-Piper and [Z] Lindsay-Piper.
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 14 above is to do all acts and things to register the change of names of [X] born … 2013, [Y] born … 2015 and [Z] born … 2017 to [X] Lindsay-Piper, [Y] Lindsay-Piper and [Z] Lindsay-Piper pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 35 of 2017

MS LINDSAY

Applicant

And

MR PIPER

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Ms Lindsay and Mr Piper are in dispute about parenting arrangements for their children [X], 5, [Y], 3 and [Z] who is 1 ½.
The parties separated in December 2016 and the proceedings commenced in January 2017 prior to [Z]’s birth. The gulf between them when the hearing commenced was wide indeed and it did not narrow very much during the hearing.
When the trial began the mother’s proposal was that the children live with her and spend time with the father during the day only indefinitely. The father was seeking a fairly quick progression to equal time for all three children.
The mother’s position fluctuated during the proceedings. In the amended application she filed in February 2018 she proposed that overnight time on weekends commence when [X] commenced school but she resiled from that at trial. Her proposal at trial was that until the start of 2019 [X] and [Y] should spend time with the father each Tuesday and Sunday from 9.00am to 4.00pm and that it should then be each alternate Saturday and Sunday from 9.00am to 4.00pm and that [Z] spend time with the father in increasing amounts but of shorter duration than his sisters until he was older.
The mother’s case was that the children would be at risk of harm if they spent overnight time with the father on the Town A Mission where he lives.
The father’s proposal for much of the proceedings was for equal time but during closing submissions he proposed that [X] and [Y] spend time with him from Friday to Sunday each alternate week progressing to Friday to Monday with a Monday to Tuesday in the intervening week; and then after four months to Friday to Monday in one week and Monday to Wednesday in the other week. The father’s proposal in other words was a fairly rapid progression to five nights per fortnight with [X] and [Y]. He sought a slower introduction of time with [Z] but a much quicker introduction of extensive time with him than the mother proposed.
The mother sought an order for sole parental responsibility and the father an order for equal shared parental responsibility.
During final submissions the Independent Children's Lawyer’s position was that the mother should have sole parental responsibility providing that she first consulted with the father, what is sometimes called a hybrid or a Murphy order.
He proposed that the children live with the mother and spend time with the father. I will not set out his proposal about time in detail, it is just too complicated, but he proposed a fairly rapid expansion of time until the girls were spending four nights per fortnight with the father and then the introduction of school holiday time and he proposed that [Z]’s time with the father gradually increase commensurate with his age.
This difficult matter was not helped by a couple of things. One was that the parties took such polarised positions, with the father pressing until final submissions for equal time with very young children one of whom had spent limited time with him, and the mother proposing, with one change to that which she later withdrew, limited day time only until the children were 18.
Another was some overblown submissions by counsel for the parties.
The mother’s counsel submitted that the father was a stalking horse for the paternal grandmother, in other words that he did not really want time with the children and was presenting as a straw man in order to get time for the paternal grandmother.
There is no evidence to support that submission. I am satisfied that the father is very keen to spend time with his children.
The other overblown submission made by the mother’s counsel was that during the relationship the parties lived in a household of alcohol, violence and gambling. To put the matter in those broad, sweeping terms is simply inaccurate and is not supported by the evidence.
The father’s counsel submitted that the mother was proposing minimum time to punish the father. The mother’s counsel called that down on his head to an extent by his submission that the mother had gone back on her previous suggestion that there be some overnight time because she had heard the father lie in the witness box. However I do not accept that the submission by the father’s counsel is accurate and that this is all about the mother wanting to punish the father.
The case has a strong flavour of being a power struggle. I will have to examine all the evidence about risk and parental capacity but those kind of submissions by the parties’ counsel suggest that the parents are to an extent at least engaged in a power struggle and that neither of them are making completely child-focused submissions.
The mother’s counsel and to an extent the Independent Children’s Lawyer suggested that the mother was the weaker party in that struggle. I do not accept that. The evidence suggests that she is perfectly capable of holding her own in disputes with the father and his family. She stopped time with the paternal grandmother for months in 2016 when she had some concerns. She has prevailed in terms of the amount of time the children have spent with the father for the last two years.
It may cost the mother some effort and cause her some stress to prevail but she has prevailed in terms of the battle between the parties.
The mother said that she should continue to prevail and that it would be in the children’s best interests for me to make the orders she was seeking and I will have to determine on all the evidence whether that is appropriate in other words whether it is appropriate for the father to have such a limited role in the children’s lives.

The evidence

The mother relied on her affidavit filed on 10 July 2018 and the affidavits of the maternal grandparents Ms D and Mr E filed on 17 July 2018.
The maternal grandparents were necessary witnesses because of allegations the father made about their relationship and about the behaviour of the paternal grandfather but those issues died away during the trial and were not referred to at all during submissions.
The father relied on the affidavits of himself and his mother Ms F which were filed on 6 July 2018.
A family report was prepared by Ms G and an expert report was prepared by Mr H. Mr H was asked to give an opinion about whether attachment theory applied to Aboriginal children.
All of the witnesses save for Mr H were cross-examined. Following cross-examination of Ms G it became clear that Mr H’s evidence was not be a critically important element in the case. No criticism of him; it is just the way it all played out when the evidence was given.
I have concerns about the evidence of both parties. As with many people in this Court they both tended to present glowing evidence about their own attributes and were very negative about the other party.
However I have some particular concerns about the father’s evidence. Even his counsel conceded in submissions that his answers during cross-examination about his gambling were somewhat evasive and not accurate.
One of the problems in a case like this where there is high conflict and a bit of a power struggle is that people can so easily misinterpret things that happen, place their own interpretation on things and then present evidence which is not accurate. There are examples of that in the mother’s evidence but one in the father’s affidavit is the paragraph where he talks about [Y] being diagnosed with an ear and chest infection.[1]
[1] Father’s affidavit paragraph 105
The father said that [Y] was prescribed antibiotics and that the mother told him that she mixed the antibiotics with cordial and gave it to her in a sippy cup to drink. He then said:
I was concerned that Ms Lindsay had given [Y] her medication in this way rather than at the dosage prescribed.
There is nothing to suggest the child was not given the medication at the dosage prescribed, it was just mixed with cordial to help her ingest it. Those sort of misconceptions and misstatements so easily creep in when parties are in high conflict.
I had some concerns about the father’s evidence and about him minimising issues of gambling and perhaps alcohol consumption and that will have some relevance to the findings I make but I am concerned that because of their conflict and what I consider to be a power struggle both parties had a tendency to interpret things that were said and done through the prism of their position in the case and their views of the other party and that leads to all sorts of problems with misinterpretation and increases distrust.

Background

The mother is 24. She lives with the children in Town J and is currently living with her parents and her sister Ms K. The mother works part-time as a public servant.
The father is 33 and lives in what the Independent Children's Lawyer called an Aboriginal kinship community at Town A but which both parties consistently called the Town A Mission. He shares a house with the paternal grandmother and at least two and possibly three children of around teenage age who are in the paternal grandmother’s care as a result of a kinship placement.
The mother and father are both Aboriginal. The mother is of the M people of Region N, New South Wales. The father is of the O people. To the best of my knowledge he is living on his traditional land although I stand to be corrected if that is not right.
The parties had a fairly brief relationship. It commenced in late 2012 or early 2013 and they began living together in the second half of 2013 when the mother was 19 and the father 28.
[X] was born on … and [Y] on … 2015.
The parties separated on 23 December 2016 when these children were three and one. The mother was pregnant with [Z] and he was born on … 2017. It is not relevant for the purposes of this decision for me to descend into minutiae such as when the mother discovered she was pregnant. The fact is she was pregnant then and [Z] was born on ….
The mother made allegations about the father being violent, drinking to excess and engaging in problematic gambling during the relationship. The father alleged that the mother was violent and that she used cannabis and was a neglectful parent. I will examine all those claims in more detail a bit later on.
On any view the mother was the children’s primary carer while the parties lived together. She either did not work or worked part-time. The father was working full-time. I accept his evidence that he assisted with the children but the mother was there more of the time.
The father said that the paternal grandmother cared for the children every Thursday and Friday and helped out when the mother went back to work. I accept that the paternal grandmother did provide some assistance with the care of the children but I am nevertheless satisfied that overall the mother was their primary carer.

The parties came into conflict about the children almost immediately they separated. They reached an agreement for [X] and [Y] to stay overnight with the father on 3 January 2017 but he refused to return them to the mother the following day and sent her a text message along the lines of:
If we can't work this out, I'm not going to be nice any more.
The mother spoke to the paternal grandmother. She said that she knew where the children were but she was not going to tell the mother.
The father decision to refuse to bring the children home turned out to be an extremely poor one because it set the matter up to be a very difficult one from that point on.
On 10 January 2017 the mother filed an application seeking a recovery order. That was made and the children have lived with the mother and spent time with the father ever since.
Initially the time was each Sunday from 10.00am to 3.00pm, noting that I am referring to [X] and [Y] because [Z] was not then born.
On 31 October 2017 that was extended to be from 9.00am until 4.00pm on Tuesday and Sunday and orders were also made at that stage for the father to spend some fairly brief time with [Z].

The children’s best interests

Any orders I make about children must be determined by treating their best interests as the paramount consideration and the matters I have to take into account in order to determine the children’s best interests are set out in s. 60CC(2) and (3) of the Family Law Act.
I will deal with those considerations but I want to stress to the parties something that I have become increasingly conscious of as I have sat here making these decisions. I am asked to make decisions about children that I do not know, often children I have never seen although sometimes I see photos of them because I ask to but usually they are children that I could walk past in the street and would not recognise.
I am conscious of the fact that every child is different. Some children are shy and clingy. Some children are outgoing from a very young age and happily go off with any number of people. I do not know the children in this case. I have to make a decision about them though by applying the provisions of the Family Law Act and that is the best I can do. That is the only way our community has to resolve disputes when the parents who know their children as I do not are not able to resolve them.
Turning to the matters in the Family Law Act, I am going to start with the additional considerations.
The first of those is the views of the children and the weight to be given to their views.
The children are too young to have a view about parenting arrangements. They might say on one particular day or occasion, “I want this or I want that” but children’s views are very transient in that regard. I cannot place weight on them saying “I want to live with this parent rather than that parent.” They are too young for that.
I cannot place weight on transient views children may express about where they want to be at a particular time. If they are happy in a situation, for example because they have been given an ice block or they are doing something enjoyable they may say, “I want to stay here and I do not want to go home.” If they are at the other parent’s house and they are happily engaged in playing some game on the phone or on the iPad they might say, “I do not want to go to Dad’s today.”
They do not necessarily mean it and they are easily diverted. Those are not the kind of views that I can place weight on in terms of determining what should happen for children in the long term.
I must consider the nature of the relationship between the children and each of their parents.
The father does not accept that the mother was the primary carer during the relationship. I have found that she was but even leaving that aside, for the last two years the children have been in her primary care and [Z] has been in her primary care for his entire life, so I am satisfied that she is the children’s primary attachment figure.
That is borne out not only by the sheer fact of her having the primary care but by what was observed by the family report writer about the nature of their relationship with her.
Primary attachment is important for children. They usually bond with an adult. They do not have much concept of time when they are very young and if an adult goes away, walks into another room, goes away for the day, the children do not have much idea about when the person is coming back, and it is usually important when children are young to make sure they do not have an extensive separation from their primary attachment figure. It can mean they have what is referred to as disrupted attachments. They can become very distressed. They can end up not properly attached to anyone.
The thinking is that the period during which the children need to be primarily with one parent in order to form a strong bond with them and therefore have a strong basis to go out and explore the world and form strong bonds with other people is until the age of three and [Y] is now three and [X] is over three.
That does not mean however that a child of three should be suddenly separated for lengthy periods from their primary carer. It just means that by the age of three they are likely to be developing some concept of time and some concept of sleeps such as “In one or two sleeps I will be back with Mum”, and that means that longer time away from a primary carer is likely to be tolerated without causing the children any distress.
Mr H was asked to prepare a report about whether the concept of primary attachment applied to Aboriginal children. He said that it did but perhaps more relevantly what emerged from the evidence was this. There is no doubt that Aboriginal people had a different way of raising children, a different belief about the importance of children having a relationship with a number of people surrounding them. That is valid in a situation where the children are living in a group with both their parents and other adults around them all in one location. These children are not living in that kind of situation. Their parents are separated and live in different places and are not on good terms. The children cannot run back and forth between houses so the children’s primary attachment to their mother is an important matter.
[Z] is still in that primary attachment phase, the phase where he needs to be primarily with the mother. [Y] has just emerged from it but the fact that the mother is their primary attachment figure is an important issue in this case.
It does not mean that the children do not have a good relationship with their father, and I accept that they do, and the criticism by the father’s counsel that during the trial the mother tried to resile from what she said earlier about that has some validity.
The mother and father both said on more than once occasion in various parts of the evidence that [X] and [Y] enjoyed spending time with the father and it is clear that they have no issue spending time with their paternal grandmother. The family report writer referred to their interaction with the father and paternal grandmother and said as follows:
[X] and [Y] were observed to be pleased to be in the father and grandparents' company and [Y] who had just woken up from a nap sought out close physical affection from the father for some time, before she felt comfortable leaving him to play with the toys. The paternal grandparents sat on the lounge chairs and watched the girls play and on occasion, held [Z] while the father engaged with [X] and [Y] in play. The father was observed to not comfortably be able to join the children in play on the floor, due to his obesity and he was seen to kneel on one knee, rather than sit on the floor or on a child's chair, in order to directly engage in play with the girls.[2]
[2] Family Report paragraph 100
The father acted very appropriately with [Z] at the family report interviews and there is nothing in the evidence to suggest that he is not also developing a bond with [Z].
The mother may be the children’s primary attachment figure but they have a positive bond with their father and their paternal grandmother. There is nothing to suggest that they fear them or do not want to spend time with them and that is another very important aspect of the case.
I must consider the financial support of the children.
There was some cross-examination about this and a suggestion that the father was not paying child support commensurate with his income but that is not a critical issue when it comes to me determining the amount of time that children should spend with the father. The fact that people do not pay the child support they should is what I sometimes call a burr under the saddle issue. It does not improve people’s relationship but it is often not a determinative factor when it comes to the time the child should spend with the other parent.
I must consider the likely effect of any change in the children’s circumstances.
The children will benefit from having a meaningful relationship with their father.
They will have a very limited relationship with him if from now until they turn 18 or some point in the distant future they only spend time with him during the day. It can still be a meaningful relationship insofar as a meaningful relationship is one which is significant, important and valuable to the children[3] but the father will not be an important figure in their lives, he will be a diminished figure.
[3] Mazorski & Albright (2008) 37FamLR 518
He will not be taking part in a variety of things like their bedtime routines, caring for them at night and taking them away on holidays. Absent issues of risk there is a benefit to the children in having more extended time with their father than the mother proposes and I will have to consider later on whether there are risk issues, either to do with the father’s parenting capacity or the mission or otherwise, which mean that this should not happen.
The mother’s counsel said that I should take into account the possible impact on the mother of me making orders for more extensive time.
I accept that the mother was emotional and distressed in the witness box when giving evidence about her life with the father. However I am not satisfied that it is going to have a detrimental effect on the mother’s parenting capacity if I make orders for the children to spend more time with the father than they are at the moment.
The mother seems to me to be a quite robust person. It is the mother who has prevailed in terms of time over the last two years. She may have suffered some postnatal depression in the past but she has no current mental health issues. She stands up for herself when the need arises and an example of that was when she became upset about a paternal family member taking [Z] off at the clinic to photograph him. The mother stood up for herself, demanded [Z] be returned and put in a letter of complaint.
I am not convinced the mother is going to be overborne by any orders I make about the children spending more extensive time with the father than she proposes nor am I convinced that it is going to impact on her parenting capacity.
There are other issues in respect of the likely effect of a change in the children’s circumstances but I will discuss them later on.
I must consider the practical difficulty and expense of the children spending time with a parent.
The parents live about 10 minutes driving distance apart so that is not an issue.
I must consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs.
The mother was a young mother when [X] was born but the evidence suggests that she overall did a very good job parenting her and has continued to do a very good job parenting her children. She has taken the children to playgroup. She is engaged in support groups.
The mother did struggle a little bit after [X] was born. She may have suffered from postnatal depression. She was young and she certainly felt overborne by the paternal grandmother. The paternal grandmother may have been just trying to help but the mother did not take too kindly to some of her criticisms.
Currently the mother is parenting the children very well. They are happy, healthy children. The mother is living with the maternal grandparents in Town J. There is nothing to suggest that is not appropriate accommodation.
The father’s affidavit contains quite extensive criticism of the maternal grandparents. It is alleged the maternal grandmother is an alcoholic and that they were cruel to small animals in the context of hobbies … . There was an allegation that there might be physical abuse between them.
The case that there were serious issues with the maternal grandparents was always going to be a difficult one for the father to maintain because there were no police records to support it and he was also proposing week-about but in any event the father did not pursue it and I have no reason to believe the children are at any risk of harm as a result of anything to do with the maternal grandparents.
The mother has a number of interests. At the time of trial she was working part-time as a public servant. She said that she had ambitions to study … . She plays sports which is a good social outlet. The children were attending day care or preschool and the girls were doing hobbies … .
The mother has no convictions that I was told about and I was not told about any COPS event she featured in, leaving aside anything that might have happened in relation to the father.
The mother does not have mental health issues. There is no suggestion she has an alcohol problem. There was an allegation that she used cannabis during the relationship with the father but no evidence that that had occurred since [X] was born.
The father and his family particularly in recent times have made a number of complaints to the Department of Family & Community Services about the mother’s parenting. This is borne out by the subpoena material and letters from the Department which were tendered. Those complaints were not substantiated by the Department.
During the proceedings there were letters from the father’s solicitors to the mother’s solicitors complaining about mosquito bites, rashes and colds. The father and paternal grandmother still cling to the view that the mother deliberately hurt [X] by bending her fingers back.
The father and his family have made a number of complaints about the mother as a parent but the evidence supports the fact that the mother is doing an excellent job parenting the children and the sooner the father and the paternal grandmother accept that, the sooner relations between these parties, if they are capable of improving, are going to improve.
The father was asked in cross-examination about what he thought of the mother as a person and a parent. On every occasion he answered, “Dunno.”
The father’s counsel said that I should not hold that answer against the father because he really did not know; he was not there to see how the mother was parenting the children.
I responded that he did know because he was seeing the girls and [Z] every week and he could see that they were happy, healthy little children. For someone to say in those circumstances that they do not know how the other parent is parenting the children is a bit of a cop out and the answer was also directed to the question of what sort of a person the mother was. I am concerned about what that says about the father’s attitude to the mother.
The father is living with the paternal grandmother in a five-bedroom house on what the parties referred to as Town A Mission.
Referring to something as the Town A Mission makes me a little bit uncomfortable. I spent a long period of my life in the Northern Territory and to refer to something as the mission seems almost derogatory but that was the description the parties were comfortable with.
There are some other children in the home as a result of kinship placement. The mother was critical of that whole situation and of the paternal grandmother’s care of those children and/or other children who had been placed in her care in the past as a result of kinship placement but some proportion needs to be kept about this.
There have been a couple of instances over the years where there have been issues between the paternal grandmother and children placed in her care. However the police records do not necessarily provide a complete picture of what went on at that time.
Children who are removed from a parent and placed in someone else’s care often have problems. There were a couple of those instances over quite a lengthy period of time. There was no suggestion that the Department stepped in and decided the paternal grandmother was not an appropriate kinship carer. I am not satisfied that I can draw an adverse conclusion against the paternal grandmother based on a couple of instances in the records about her interaction with children who themselves no doubt had a lot of problems.
The paternal grandmother is to be greatly commended for being available to take on the care of children whose parents for one reason or another are not able to look after them.
The father intends to remain living in that area. He said that if another house on the mission became available he might take it but he said he enjoyed having people around him who provide him with support and that was where he would continue to live.
The father assisted in the care of the children during the relationship and [X] and [Y] and to a much lesser extent [Z] have been spending time with him since separation two years ago.
It tells its own story that [X] and [Y] relate well to the father. The family report interviews tell me that. The mother agreed that that was the case and that they enjoyed their time with him and it tells its own story about his capacity to look after them.
The children are not coming back from the father’s with their hair unbrushed or covered in mosquito bites or starving hungry. I am entitled to find that the father is capable of providing for the children’s needs on a day-to-day basis insofar as he has been providing for them.
I have concerns about the father’s parenting capacity because of some issues arising out of the evidence principally about his gambling and to a lesser extent about his alcohol consumption. They do not necessarily mean that he cannot provide for the children on a day-to-day basis at least insofar as it has been happening and perhaps more extensively. They do concern me though in terms of his proposal for extended time with the children.
The father did not mention his issue with gambling in his trial affidavit and as the mother’s counsel rightly pointed out he was evasive when questioned about it in the witness box.
The subpoena material suggests that the father still owes about $7,000.00 in unpaid fines and that his attempts to put an arrangement in place about paying the fines off or having them written off has been impeded by evidence in his bank statements about his gambling.
The father has been referred to counselling in relation to gambling in the past and there is reference in the subpoena material to the mother telling someone that the parties could not pay their rent because the father was not contributing as a result of having no money because of gambling. That complaint predated these proceedings so I place some weight on it.
The father has just told me he has paid off his debt to the State Revenue; that is good, but the fact that the father has had that problem causes me a little bit of concern in case it resurfaces. It could impact on his capacity to provide stable housing for the children in the future.
The mother also raised an issue about the father’s alcohol consumption. She alleged that he consumed alcohol almost every day during the relationship; that he went to the pub and came home smelling of alcohol; and that he would invite people over and play loud music and drink.
The father denied that he had any sort of an alcohol problem. I suspect that there is probably more to it than the father is asserting but less than the mother is asserting. There is a considerable risk the mother might be overstating what happened during the relationship but I also suspect the father probably drank more and drank more often than he is willing to admit, and that the mother felt very let down, as people often do, being required to care for young children while the other parent went off and partied and drank.

The reason I think the father may be understating the evidence about his alcohol problem is that from the subpoena material the father’s drinking has got him into trouble on a number of occasions in the past. There was an incident involving an assault charge that may have arisen when the father had been drinking. It is historic but it was an assault outside a club in 2005.
There was an occasion in 2002 when the father was moved on as an intoxicated person in the street and in 2005 he was found walking in the street highly intoxicated. He was not necessarily a reliable witness when it came to making admissions about his problems and I expect that he probably did drink during the relationship more than he is now willing to admit.
The father did a CDT test during the course of these proceedings. It showed a fairly high CDT level but the comment on the result was that that it did not indicate excessive alcohol consumption. He had raised GGT in a liver function test but he said that was due to fatty liver.
However the issue of the father’s alcohol consumption needs to be kept in perspective because the parties have been separated for two years. This is not a case where the mother has come along and said, and I had one of these within the last 12 months, “I turned up at changeover and the father smelt of alcohol. He got out of his car and a couple of beer cans fell out on the ground.” There have been no evidence of any police involvement with the father in the last two years due to alcohol consumption.
I am concerned that the father may be understating his drinking during the relationship but I cannot find on the state of the evidence that he has an alcohol problem which means the children would be at risk if they spent more time with him than the mother proposes and to be frank, the mother did not even go so far as to make that claim. Her primary concern was about where the father lived.
The mother gave some evidence about the father not putting the children in child restraints. I have no reason to disbelieve her evidence but it was not raised during submissions.
I accept that the father wants a relationship with his children and that he is not here because he is a front man for the paternal grandmother. My other slight concern about the father though is in terms of his parenting capacity is his capacity to provide for the children’s emotional needs.
The father has had a longstanding view that the children should live in an equal time arrangement. He tried to arrange for an agreement to be written up along those lines in 2014 when the parties were having some relationship problems and [X] was less than one. When he was challenged about that in cross-examination he said he could not see anything wrong with it.
After separation in late 2016 he withheld the children and his intention on the evidence was to try and achieve equal time. He withheld them for 10 days and told the mother he was not going to be nice any more. That did not show much focus on the children’s emotional wellbeing either.
The father was asked in cross-examination if he had considered that issue from the girls’ perspective. He said that he had and that he considered it was an appropriate thing to do.
The father persisted in wanting equal time right to the end of the trial and although he has changed his position in the final orders he sought, it seems almost be a tactical change. I am not sure that the father concedes even now that equal time is not appropriate for these children and that concerns me in terms of the father’s capacity to provide for the children’s emotional needs.
There is another aspect to that as well. The mother was not challenged about the content of a text message she said the father sent her on 19 December 2017. The parties were arguing about time and the text message ends with the father saying:
When the kids are older and they want to know why they were not allowed to spend time with their father, I will tell them everything. I will show them everything; how you stopped them from being a part of my life.
That was not a child-focused response and another concern I have is the evidence he gave about the issue of [X] attending a hobby rehearsal.
[X] needed to attend a rehearsal with other children. The rehearsal fell on a day that she would normally be spending time with the father. Those are circumstances where parents should accommodate the child’s situation and not think about their own in terms of time. There is a classic passage from a case that I often refer to about children have lives and interests of their own[4] and in this particular case [X] was doing hobby and she needed to attend the rehearsal with the other children.
[4] Gravis & Major [2010] FamCAFC 239
Ultimately the mother took her to the rehearsal and did not provide her to the father. The father complained about that and said that he understood she was at the rehearsal but he did not consent to any change in the time.[5]
[5] Father’s affidavit paragraph 106
The father needs to think about his attitude in that regard. Many things are going to arise in relation to all of the children which mean that there will need to be some change to arrangements so that they can attend concerts, hobbies and family events in relation to both families. As I said in another judgment recently, sometimes life just gets in the way or orders and people really need to be flexible for children’s sake.
I have some concerns about the father’s capacity to focus on the children as individuals with needs of their own in terms of his decision-making about them.
I must consider the children’s maturity, sex and background.
[X] has mild asthma and she has a heart murmur which does not seem to be causing her any particular problems at the moment.
A greater concern though, and I will come back to it the parental responsibility section, is that [Y] has had some problems. She has been referred to speech therapy and also to a psychologist.
The issue of the proper management of the children’s health concerns me because the father at some point disputed the asthma diagnosis. He said it was a self-diagnosis by the mother.
I have no reason to believe the mother is making poor decisions about the children’s health and the fact that the children have some health problems and that the parents are in some dispute about them causes me some concern.
The next issue I have to consider is that the children are Aboriginal children.
The Act says that is very important but both the parties and all of the children’s extended family are Aboriginal and proud to be so. I do not need to ensure that the children spend more time with one parent or one family than the other to ensure that they are spending time with people who share and value their Aboriginal heritage.
The father is from this area. He wants to share his culture with his children but he does not need to have a particular amount of time with them to do that.
The mother also values her Aboriginal culture. The children’s Aboriginality is not a determinative factor in this case.
I must consider issues of family violence.
I need to go into this in a little bit of detail because although for reasons I am going to come to at the conclusion of this section I do not consider this to be a determinative factor in the case it is important to make clear how the evidence about it plays itself out.
I deal with many cases in this Court in which there are allegations of family violence. Anybody who appears in front of me knows that I have no hesitation in making findings about perpetration of family violence. I have no hesitation, if the evidence supports it, in making findings that there has been coercive and controlling violence. I am sometimes forced, and I have actually had to do it twice in the last month and it makes me very sad, to make no time orders because of family violence.
However I have to consider allegations of family violence in the context of each particular case and the evidence in this case suggests that both parties perpetrated family violence.
The mother agreed that when [X] was little she threw a baby bottle at the father and that it missed him and struck [X]. The mother made that seem somewhat benign in her affidavit. A letter from the health centre dated 16 May 2014 suggests that it may have been a little more concerning, because the letter was prepared at a time when the mother had no reason to present herself as other than she actually was and it included the following:
The mother described herself as having brain snaps and said when she did she threw things at Mr Piper and punched him and destroyed furniture. Last Saturday, she threw a baby bottle and it –
Well it says “hit him on the head” but I think it actually struck the baby on the current view of the case.
The mother said that the father was violent and she gave some examples of that in her affidavit. She described an incident which happened at Property P, an incident at Ms Q’s house and one that happened over the 2016 long weekend, and she alleged that on one occasion the father pulled her by the hair and pushed her into a wall, on another occasion punched her and on another occasion punched in the back of the head.
What is embedded in the mother’s evidence about those incidents however is evidence of the mother being violent. She admitted that the start of the incident at Ms Q’s house was that she became upset with the father because he would not take her home and she reached over and deliberately scratched a record with a needle.
The mother also admitted throwing a small plastic boomerang at the father.
The mother alleged the father punched her and pushed her and dragged her by the hair and I do not accept the father’s denials that those things occurred. I accept the mother’s evidence about what occurred but I do not accept that the mother was innocent in relation to the family violence that occurred during the relationship. There is the evidence of her deliberately scratching the record and throwing the bottle. We have the evidence of what she actually said to a health worker in May 2014.
The family report writer said this about the family violence issue in her report and this opinion is strongly founded in the evidence:
The parties’ allegations regarding family violence appear to be consistent with what is generally referred to as conflict instigated violence. If the parties engaged in this form of violence, it does not automatically follow that either will engage in such behaviour with new partners, however, there is a risk, if conflict arises, that they will both revert to this way of dealing with conflict.[6]
[6] Family Report paragraph 92
I am not satisfied that there is any evidence that the father engaged in coercive and controlling family violence. Both parties were violent during the relationship and there is strong support for the opinion of the family report writer that it was “conflict instigated violence”. It is sometimes called “couple violence”, so it is violence which happens in that particular relationship but it is not necessarily going to recur in another one, and there is a strong flavour of that in the evidence about what both parties did during the relationship.
There are one or two violence issues in the father’s past. He has been charged with assault but that does not alter my view that on the totality of the evidence given in this case by both the father and the mother I have a situation where both parties on occasion were violent. It may be that on one occasion, one party started it, on the other occasion the other did, but they were both involved in that violence.
Where that also takes me is that the family violence issue is not determinative of what should happen in this case as it might be in case where I made a finding about controlling and coercive family violence.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.
My concern in that regard mainly arises from what I said at the beginning about the submissions that were made to me and what might be the real underlying reason why the parties are in dispute but I will not repeat that here.
I must consider any family violence orders.
There has been one to protect the mother. She applied for an ADVO after the father retained the children. Ultimately that was listed for hearing and an ADVO was made after a hearing.
The mother’s counsel said I should place considerable weight on the fact that it was made and accept that it was made because the mother felt intimidated. The problem is that I have no evidence of the findings that were made. It would be dangerous for me to draw a conclusion about why the order was made and I cannot do it. In any event the family violence order expired in December 2017.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
There is a likelihood of further proceedings in this matter if I make the kind of orders the father is asking me to make, even for the five nights, and the mother becomes concerned about the care of the children.
There is a high likelihood of further proceedings if I make the restrictive orders the mother is wanting, daytime only, because these children are extremely young. They have a good relationship with their father. They are not going to understand as they get older, unless the father does something very wrong, why they are spending such restricted time with him, and they also have a bond with their grandmother.
They may want more time with that family and not understand why they are not having it which might mean that the matter comes back to Court.
There is a risk of further proceedings in this case no matter what order I make.
I then come back to the primary considerations and the first of those is the benefit to the children of having a meaningful relationship with both of their parents.
There is clearly a benefit to these children in having a meaningful relationship with both of their parents. This has never been a no time case. The children will benefit from having both of their parents involved in their lives in a significant way.
The second primary consideration is the need to protect the children from harm and a central plank of the mother’s case was that the children would be at risk of harm in the father’s care because he was living on the Town A Mission.
As I understand it from the evidence the Town A Mission is a group of 26 houses which is regarded as an Aboriginal community. The father is living there with the paternal grandmother and said that he intended to remain there. He said that if a house became available on the community for him he would live in his own house, but he said he had no intention of moving away; that was where he help and support was.
I cannot be sure that the father will never move away. He did not live on the community when he lived with the mother. They lived in Town P and he has contemplated some greater involvement with his father who does not live on the mission, but that was what he said at trial.
The mother said that she was strongly opposed to the children spending any extended time on the mission. She said as follows in her affidavit:
As an aboriginal woman I am aware of the complexities of our culture and will always be respectful of the needs of the Piper family. However, it is my view that an Aboriginal mission does not reflect “Aboriginal culture” it reflects a cycle of disadvantage forced upon Aboriginal people and a generation of government dependence and ongoing social, emotional and cultural barriers.[7]
[7] Paragraph 12 of the mother’s affidavit.
…
When I was in a violent relationship with Mr Piper, I felt like it was normal because everyone I knew and spoke to at the mission were in similar situations or worse. I feel like there is a culture of silence on the mission, where people choose to forget about issues rather than face them.
I worked for community organisations that assisted Aboriginal people and women in violent situations and I knew that most of the people at these organisations would help Ms F and Mr Piper before me and had seen violence on the mission and ignored it like everyone else.[8]
[8] Paragraphs 14 and 15 of the mother’s affidavit.
It is difficult to glean from the mother’s affidavit the extent of her knowledge of life on the mission. It appears that at some points the parties spent some time there but it is very difficult to work out how much it was, because the parties mainly lived in their own houses in Town P.
The mother said that from her knowledge of it the Town A Mission was not a positive place. She referred to an occasion when she went next door and saw a lady who she believed had been assaulted by her partner Mr B. She referred to the fact that a man called Mr C, who lived on the mission, had been charged with abusing his girlfriend’s daughter, and she felt that the paternal grandmother had not kept him sufficiently at bay. She expressed concern about whether the paternal grandmother would cover up things that were happening on the mission and also about the lifestyle on the mission and she expressed concern about the children being exposed to incidents such as she described and perhaps forming some view about how life should be lived.
It is very difficult to place a lot of weight on the mother’s evidence about the mission. Some of the concerns are very general. She picked out concerns about Mr B and Mr C but people like that live in any suburb in Australia. They live next door or down the street from many of us. The fact that those people are living in this particular area does not necessarily make the whole area a dangerous or undesirable place. What it comes back to is the kind of care and protection that the father and the paternal grandmother, because she is going to be part of this mix, are going to provide for these children.
Another aspect of it is that to the best of my knowledge the father largely grew up there and it was not suggested that he was sexually abused or beaten up as a child. I have to be very careful not to place too much weight on little aspects of evidence and a whole lot of supposition by the mother.
There is merit in the submission by the father’s counsel that I have to be very conscious of the fact that the mother’s concern is not about the father but about the environment, in other words the mission, and that I do not have any evidence to support a finding that the mission is a “dangerous badland”.
There are no COPS records suggesting regular callouts to houses which make up the mission. The mother referred to are a couple of isolated incidents involving particular people but this Court relies on evidence and it is simply not open to me on the evidence to find that the mission, the 26 houses that might make it up, is a dangerous place for children to be, especially in circumstances where it is not open to me to find that the father and the paternal grandmother would not be concerned about the children and would not provide them with proper care and supervision.
One of the other problems with the mother’s case that I should find that the children needed to be protected from living on the mission is that an order that they spend daytime only with the father would not necessarily protect them against risk. Children can come to harm from sexual predators or perpetrators of violence during the day as well as at night. But I cannot find on the state of the evidence that the children need to be protected from going to this place for extended periods of time. The evidence is not there. I have to focus on is the father’s parenting capacity and I do not accept that he or the paternal grandmother would place the children at risk.
The fact that nothing has happened to the children in the past does not mean that it could not happen in the future but it is a relevant consideration that the girls have been spending time with their father for two years now and there is nothing to suggest that they have been exposed to anything unfortunate during that time or have not been properly supervised by whichever adult it is who has been supervising them.

They have not come home to Mum talking about things they have seen or things they have done which suggests inappropriate supervision or exposure to anything unfortunate.

Parental Responsibility

I then move on to the issue of parental responsibility and like so many things in this case it is a somewhat difficult and conflicted issue.
I have to deal with parental responsibility before I deal with the amount of time the children will spend with the father because as the lawyers will understand depending on the order I make about that either s. 65DAA is engaged or it is not.
S. 61DA of the Family Law Act provides that it is presumed to be in children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that one of the parties has engaged in abuse of the child or family violence.
The presumption does not apply because both parties have perpetrated family violence. I can still however make an order for equal shared parental responsibility if I consider it to be in the children’s best interests and the father sought that. The mother sought an order for sole parental responsibility.
Parental responsibility is not about the amount of time children spend with a parent. It is about decision-making about big matters such as what school the children attend and what medical treatment they have.
The Independent Children’s Lawyer proposed what is sometimes called a hybrid order. He proposed that the mother have sole parental responsibility but before she made any decision she be required to tell the father what decision needed to be made and seek his input about it and take that input into account. However ultimately the final decision would be hers.
The Independent Children’s Lawyer said that an order of this kind was justified because the parents had a very poor relationship, the father had no respect for the mother, the mother had made good decisions about the children in the past, there was a risk of conflict or of decisions not being made if I made an order for equal shared parental responsibility and finally, the mother was not likely to misuse the order because she was a good mother making good decisions for her children.
The father proposed equal shared parental responsibility and the arguments which can be marshalled in favour of that are that this is not a no-time case and the father will be continuing to have a meaningful involvement in these children’s lives no matter what order I make. He is a different person to the mother. Parents have different views about things and it is usually in children’s best interests that the views of both parents are taken into account before a decision is made.
The other thing is that although it does not look as if there are too many big decisions that might need to be made about these children in the future unexpected things can happen. The children are very young and if I make an order for sole parental responsibility I am taking away from the father for the rest of these children’s childhood and adolescence a right to have a say about issues that might arise.
I have heard family consultants say that parental responsibility should lightly be removed from a parent when shared parental responsibility has never been tried and it has never really been tried in this case because these parents came into very high conflict within weeks of their separation
The parties have been on bad terms ever since the father withheld the children and the mother had to apply for a recovery order but these proceedings will finish and this is arguably a case where the parents should not be absolved from trying to make equal shared parental responsibility work.
It will not be easy because they do not talk to each other but big decisions do not come along very often. They can communicate by email and they should at least make an attempt to see if equal shared parental responsibility would work before I take away such an important thing from one of the parents.
I am quite conflicted about what to do and there is merit in an argument that the parents should not at this stage be absolved from trying to see if equal shared parental responsibility would work because not too many big decisions are going to come along. They agree about the school [X] will attend. The mother would prefer she went to a Catholic school but she admitted she could not afford it. The child will be enrolled at Town A Public. There are not too many other issues that will need to be decided.
The thing that causes me some concern is that a problem which can arise if people have equal shared parental responsibility and are not able to reach a decision is that sometimes things do not happen for children when they should and that takes me back to what I was saying about the children having some health issues.
There was an issue with [X]’s asthma and the father not really accepting the diagnosis. There is the fact that [Y] has recently been engaged in speech therapy and that it has been suggested that she see a psychologist.
It would be detrimental for the children if a decision was not made about a health issue because the parents could not agree about it. The parents have come into conflict about health issues in the past and they have also come into conflict about who the health provider should be, with the mother forming the view that certain people were in the father’s camp and therefore not wanting to take the children there and the father continuing in the view that they are appropriate people to treat the children.
I do not want to take parental responsibility away from the father generally and I am not going to do it but I am going to make an order that the mother have sole parental responsibility for decisions about the children’s health because it is critically important that decisions are made about the children’s health.
I cannot afford to have a situation arise where decisions are not made or where there should be conflict about who the doctor is going to be or whether there is an asthma diagnosis or whether the child should see a psychologist. That would not be the right thing to do for the children. I am going to make an order that the mother have sole parental responsibility for decisions about the children’s health but apart from that I am going to make an order for shared parental responsibility.
If the parents come into high conflict in the future as a result of that it might need to be reconsidered but that is the order I am going to.

Conclusion

Against that background I have to decide what to do about time, bearing in mind the mother wants it to be day time only forever, the father wants the five nights a fortnight and the Independent Children’s Lawyer proposes four.
The family report writer recommended that subject to any other findings the Court might make, it should consider five nights once that became age appropriate for the children so I have to bear that in mind but family reports do not determine a matter. I have to determine it based on the evidence that I have heard.
Some cases are easy and the solution immediately presents itself. This case is not. I have some concerns about both parties’ evidence. I am concerned about the fact that the mother has understated her problems with some impulsive violence and some post-natal depression during the relationship. I am concerned that a lot of her evidence about things that might happen in the future was based on supposition.
Overall though I accept that the mother was the children’s primary carer. I accept that during the relationship, the father drank more than the mother felt comfortable with and that this caused some problems in the family. I accept that his gambling caused some financial difficulties for the family. I accept that he was occasionally violent, just as the mother was.
However the parties have been separated for two years, the father is settled with the paternal grandmother and the older two have been uneventfully spending the day time with him during that period.
There is no evidence that he has had problems with alcohol abuse during that period. There is no evidence the children have come to any harm during that period. The evidence strongly supports a finding that they have a very good relationship with their father. They need to continue to have that relationship.
Their relationship with their paternal grandmother is also important. The fact that she has been a kinship carer and has taken on the care of other parents’ children, children with problems, is greatly to her credit. There are things the children can benefit from in being strongly connected with their paternal family.
The mother’s argument for why the father should continue to have day time only was based on concerns about the mission but as I have already indicated I cannot be satisfied that the mother’s concerns have merit and the important thing is that I will be making orders placing the children with the father and there is nothing in the evidence to suggest that he does not have a capacity to provide for their needs.
There is no question in my mind that the mother is the better primary carer for these children. Even absent the issue of the children’s age, this is not a case in which I would have been attracted to any idea of shared care.
The mother has no criminal convictions and she does not have mental health issues. She is caring for the children extremely well. They are primarily attached to her and even if they were older and were of an age when I might be having a look at equal time, I would not be going there because the relationship between the parties is too poor for me to consider that kind of outcome.
Regrettably the father has not reached a point where he has a great deal of respect for the mother or is willing to step back and consider his children’s situation and accept that she is a good carer for them. The parties do not talk to each other. Any sort of equal time, even if children were older, would not be indicated, and even extensive time like five nights a fortnight is going to be challenging for these parties to manage given their relationship.
[X] is about to start school. She will need to be organised for school. She will need to have her books, her uniform, her lunches, her water bottle, her hat and shoes. These parents do not have a good capacity to negotiate with each other, to discuss arrangements for the child, to swap things around if there are problems with the child leaving things behind in one household. [Y] is not quite of that age, but she is getting there.
There is no justification for a continuation of day time only. The father is capable of caring for the children for more extensive time. However five nights a fortnight is too much. It will create a situation where the parents are going to need to cooperate a lot more than they are currently able to do and it is not likely to be in the children’s best interests.
Part of the reason I am not willing to rush into it for [X] and [Y] is because the sooner these children who are five, three and one and a half are able to travel together as a sibling group the better, and it will be quite a while before [Z] is ready and able to spend five nights per fortnight with the father.
I am not going to go with the five nights per fortnight and I am not even going to go with the four nights per fortnight very quickly as proposed by the Independent Children’s Lawyer.
I am going to make an order for the children to spend weekend time with the father and a day in the other week, because at this particular age it is better if they are spending more frequent time with the father.
The other reason too why the children living primarily with the mother and spending less than five nights per fortnight with the father and less immediately than even four is to be preferred is that there is still an extremely high level of distrust between the parties.
The father does not accept that the mother is a good mother to the children, which she is, and the sooner he comes to accept that the sooner things are going to become easier in the parties’ lives. The more time the children spend with the father the greater the risk of complaints and I do not want a situation to arise where there is complaint and distrust by the mother and complaint by the father and the orders break down.
I do not want that to happen because these parties have been in the Court system for two years. They need to be out of the Court system, the sooner the better, and then maybe things can improve and change for them.
In terms of the orders [X] is about to start school and sometimes family consultants say that a change should not be made coincident with a child starting school but unfortunately in this particular case there is really no way to avoid that.
The Independent Children’s Lawyer and the father’s counsel proposed that there be an initial stage where the children spent time with the father from 5.00pm on Friday to 5.00pm on Saturday and I am going to make an order for that commence immediately.
The proposal was that this would happen for a couple of months and then there would be another change and I am going to make that other change one where the time becomes two nights from Friday to Sunday.
I am however also going to make an order that the time happen for a day in the alternate week. I intend to order that from when [Y] starts school, so that is in two years’ time, it will be from Friday to Monday and Tuesday overnight to Wednesday in the other week. Hopefully by then the parties will have done something about their communication and their view of each other and by that stage will be in a better position to manage that four nights a fortnight.
The sooner [Z] starts going as part of the sibling group the better. He is approaching 19 months old and I am going to order that [Z]’s time with the father be from pretty much now the same as the time for the other children.
That will mean that [Z] will commence spending the overnight with his sisters on the alternate weekend. He will spend the day with [Y] when she spends the day with the father while [X] is at school. It will enable him to fairly rapidly form a good bond with his father. It will mean that the children are travelling as a sibling group so there is not rivalry or dissension between the children. [Z] is young but he will be travelling with siblings.
There is simply no rationale for refusing to make orders for the children to spend some holiday time with the father. That gets a little trickier, because I am not necessarily convinced that having [Z] go off for a lengthy period away from his mother is a good idea.
I am just going to have to indicate to you what I am proposing to do, and then draft up the orders in chambers. It will be three nights for [X] and [Y] in Term 1. We are talking holiday time when children are away from school and they can be engaged with a parent doing some fun things so they are not worrying too much about what is going on at home.
I am going to make that four nights for [X] and [Y] in the school holidays in the middle of the year and then five nights in term 3.
I do not want the girls going off for too much time without [Z]. It is better if they are a group so I am thinking for the Christmas school holidays this year, because [Y] will still be young, perhaps two five-night blocks.
The Independent Children’s Lawyer proposed half-half, week-about in the shorter school holidays the following year. [Y] will still only be four and sometimes what happens for the older child has to be pegged back a little bit because you need to make sure that things are all right for all of the children.
I am going to leave it at five nights a fortnight until mid-2020, so the term 1 and 2 school holidays. Term 3 will start the week-about in the term 1, 2 and 3 school holidays and that will continue to be week-about from that point on.
That then means that the logical thing is that for Christmas 2021 it will be two one-week blocks and after that week-about for at least a couple of years. When [Y] is 10 [Z] will still be younger, but by the time [Y] is 10, perhaps half-half.
The question then is what I do with [Z] in the holidays, bearing in mind that in my view he ought to be travelling as part of the sibling group, but he is very young. One of the problems with making [Z]’ time different to the girls as well is that it creates a problem for the paternal family if they want to take the children away up the coast or camping because they have to come back to bring one child back.
Given that I have staggered it out the way that I have I am going to make [Z]’s time during the holidays the same as the girls. The advantage of that is that the family as a group will be able to go away on a holiday. That is an advantage to [Z] as well as the older girls. I am satisfied that I should do that because I have made the holiday time quite small in amount initially.

The children’s surnames

The final thing I have to deal with is the children’s surnames.
At the moment I have two children called Piper and one called Lindsay and regardless of the fact that I do not have any particular evidence addressing that topic it is just not good for the children that they have the different surnames. I indicated at the end of submissions that I felt that I would have to deal with it and I am going to deal with it.
The mother’s proposal was that they should become Piper-Lindsay. In my view the appropriate outcome is that they should become Lindsay-Piper so all the children have that name, Lindsay-Piper. The reason I am going to do that is because the older children are Piper. The mother took some exception to the way the paternal grandmother registered [X]’s name but she did not take any exception to the surname. It was more to do with the middle names and the fact that she did not call her [X].
Those children were registered as Piper. They have been known as Piper to this time in their lives. [Z] is [Z] Lindsay because he was born after the parties separated but the children are not going to understand when they are at school, and ultimately they will all be attending the same school, why two of them are Piper and one of them is Lindsay.
It would not be justifiable to give the mother’s surname predominance given that the older two children were registered as Piper so the appropriate solution, unless somebody wants to be heard against it, to make them all the same is to make them all Lindsay-Piper.

I certify that the preceding two hundred and thirty three (233) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 18 February 2019

[2019] FCCA 358

16 January 2019

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction