LOFFLER-WINGROVE and WINGROVE
[2015] FCWA 55
•30 JUNE 2015 (Ex tempore)
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LOFFLER-WINGROVE and WINGROVE [2015] FCWA 55
CORAM: WALTERS J
HEARD: 24, 25, 26, 29 & 30 JUNE 2015
DELIVERED : 30 JUNE 2015 (Ex tempore)
FILE NO/S: PTW 2440 of 2013
BETWEEN: MS LOFFLER-WINGROVE
Applicant
AND
MR WINGROVE
Respondent
Catchwords:
FAMILY LAW – PARENTING ISSUES – Where parties had implemented a day about arrangement – Where the day about arrangement has been destructive and destabilising for the children – Where equal time is not in the best interests of the children – Where father highly critical of mother – Where father is antagonistic towards mother's new partner – Where father's proposals involve separation of siblings – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr F. Castiglione QC
Respondent: Mr M. Rynne
Solicitors:
Applicant: Leach Legal
Respondent: Carr & Co
Case(s) referred to in judgment(s):
Champness & Hanson (2009) FLC 93-407
Collu & Rinaldo [2010] FamCAFC 53
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242
Jets & Maker (No 2) [2011] FMCAfam 1473
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92‑667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404
Re G Children's Schooling (2000) FLC 93-025
Taylor & Barker (2007) FLC 93-345
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
EX TEMPORE REASONS FOR JUDGMENT
Introduction and general observations
1Before the Court are the parties' competing applications relating to parenting orders for their children [Child A] and [Child B]. I propose to deliver ex tempore reasons. They will be inelegant for that reason. Also, they may not be comprehensive, but I will do the best I can in the time available to me. I reserve the right to revisit these Reasons and amend them if I see fit, although the law says that I cannot change the substance of the determinations I am about to make.
2I have elected to deliver ex tempore reasons because, in my view, it is imperative that these proceedings be brought to an end as soon as possible. I commented when the matter came before me immediately before the commencement of the trial that the day-about shared care arrangement currently in place is clearly not in the best interests of these children. I was assured by the father's solicitor that the arrangement was no longer in effect, and that it had ceased in February 2015. However, I was later advised by letter from the solicitors for the father that, in fact, it had not been terminated and the day-about arrangement was continuing to operate. Indeed, it continues to operate to this day.
3During the course of the trial, and during closing submissions, I made comments about the absurdity of that arrangement. In my view, both parties are equally responsible for the fact that it has not yet been discarded. Both were represented throughout these proceedings by experienced practitioners within well-regarded law firms. They could have raised the matter directly with the Court at any time, and sought a ruling, if they felt that it was not in the children's best interests for the day-about arrangement to continue.
4Neither party did that. I do not know why they did not make the effort, but the bottom line is that no application was made. It seems that both parties were content for their children to continue to suffer an arrangement which they and their lawyers have now conceded was an absurd arrangement: one that was never and is not now in the best interests of the children.
5The evidence is very clear that the day-about shared care arrangement has been destructive and destabilising – particularly for Child A. There can no doubt, on the evidence before me, that Child A’s true wishes are to live with her mother. To his credit, the father has recognised the strength and validity of those wishes in the orders he seeks.
6As Mr Rynne (for the father) has said, the father accepts that Child A desires to live with her mother (notwithstanding that he would prefer that the reality were otherwise). The father also accepts that a day-about arrangement, or even a week-about arrangement, is not in Child A’s best interests. That such is the case is also clear from the evidence of the two experts who gave evidence during the course of the proceedings – namely, the single expert, Ms Cherubino, and the children's therapist, Dr Basson.
7Dr Basson was a very impressive witness, and I accept, without hesitation, the truth of the factual matters she conveyed to the Court. Obviously, what she has been told by the children may or may not be the truth, but I accept without hesitation that she has accurately conveyed what she has been told – by the children and by others. I accept, as well, that the single expert, Ms Cherubino, has accurately conveyed to the Court that which she has been told by the parties and by the children.
8Mr Castiglione of Senior Counsel (for the mother) argued from the outset that the report from Ms Cherubino was out of date. There can be no doubt that he is correct in that regard. It is regrettable that efforts were not made to obtain an updating report from Ms Cherubino prior to trial. During the trial, and during the course of submissions, I referred to the manner in which it came about that Dr Basson was asked to report to the Court on certain matters just before the commencement of the hearing. There is no need for me to revisit those comments in any detail. I accept that it was wholly appropriate, and in the children's best interests, for her to have been involved in this way.
9Suffice it to say that, at the interlocutory mention immediately before the commencement of the trial, the father's legal representative advised the Court that an urgent situation had arisen because Child A had expressed certain strong views – which needed to be conveyed to somebody who was willing to listen to them. As a result, the father had made arrangements for Child A to see her therapist, Dr Basson, urgently, so that she could tell her of her wishes.
10The appointment with Dr Basson was to occur on the very afternoon that the matter came before this Court. I formed the view that an updated expression of the children's views would be of assistance to the Court and I therefore made orders for Dr Basson to see both children and for her to report on certain matters. Her report is now in evidence. It was tendered by consent. I accept it, and the observations within it, without hesitation.
11The background to that event (namely, the father arranging for Child A to see Dr Basson) bears revisiting.
12The evidence of both the father and his sister-in-law, [Ms Lingrin-Wingrove], seemed directed to downplaying the significance of Child A’s expressed wishes, notwithstanding the importance placed on them at the interlocutory hearing held immediately before the commencement of the trial. According to Ms Lingrin-Wingrove, she had a conversation with Child A some weeks prior to the hearing to which I have referred. They were in a coffee shop in IKEA. Ms Lingrin-Wingrove said that Child A spoke of a proposal whereby she would spend something like two days with her father.
13Regrettably, Ms Lingrin-Wingrove’s evidence was less than clear. In my opinion, she was a very poor witness. She was garrulous, overly assertive and dogmatic. Her comments were anything but balanced. I am not minded to give any significant weight to her evidence. In any event, when she described her conversation with Child A, it was clear that Child A was not expressing a preference for an arrangement that would mean she would be living primarily with someone other than her mother. She seemed to be saying no more than that she wanted to spend time with her father.
14Indeed, that summarises the views of these children. Throughout the proceedings, they have consistently expressed a wish to spend time with both their parents. The questions for the Court, of course, include: what should that time be and how should it be structured? The father also gave evidence about how Child A’s suggestion of "two days" came about, but the evidence was vague and unsatisfactory in many respects. I do not accept it. In all the circumstances, I find that the father himself raised the issue with Child A, and that he placed pressure on her – directly or indirectly – to change her long-standing view that she wished to live primarily with her mother.
15It was very difficult for Child A to promote the "two day" arrangement because she had consistently stated that it was her earnest desire to live with her mother on a full-time basis. The story the father had encouraged Child A to tell ultimately became garbled, and when it was conveyed to Dr Basson there was simply some general talk of "two days" (or, perhaps, a "two day about" arrangement). However, it is clear from the evidence of Dr Basson, who knows these children extremely well, that she did not accept for one moment that these were Child A’s true wishes. Dr Basson's evidence was very clear: she said that Child A’s wishes had not changed at any stage, and that she wishes to live primarily with her mother.
16The Court's role is not to punish one party or the other; nor is it to reward one party or the other. There is no need to use pejorative terms in describing the actions of the father and, arguably, his sister-in-law, in speaking with Child A in the manner he or they did. Suffice it to say that it is most unfortunate that the conversations with Child A took place. I reiterate that I do not accept the father's evidence as to the manner in which the subject allegedly arose; nor do I accept Ms Lingrin-Wingrove’s evidence as it relates to the spontaneity of Child A’s alleged statements at IKEA.
17As is common with proceedings in this Court, the trial had a life of its own, and the parties' papers for the judge do not appear to have identified and dealt with all of what might be considered the real or primary issues in the proceedings.
Background
18The father was born [in] 1960; the mother was born [in] 1970. It follows that the father is now 55 and the mother is now 44. The parties separated in December 2011, after the mother formed a same-sex relationship with [Ms W] (who was born [in] 1959 and is now aged 56).
19In her affidavit, the mother traces the commencement and development of the relationship in intricate detail. She goes on to explain how she ultimately formed a decision to terminate her relationship with the father and pursue the relationship with Ms W. Nothing else needs to be said, save that the marriage did not survive. Put another way, the "glue" holding the parties together did not hold.
20This Court does not deal with fault in the context of a relationship breakdown. Moreover, it does not assist either the Court or the parties to restate and analyse their allegations and counter-allegations about why the relationship did not work the way they had hoped. It is enough to say, then, that the relationship commenced in 2000 and that the parties separated some 11 years later. There are two children of the relationship: Child A (who was born [in] 2003) and Child B (who was born [in] 2006.).
21Sadly, between the births of the two children, the parties had another child who was stillborn. I need not dwell on that subject either. It was, of course, a tragedy for both parties, and each dealt with it in a different way. The mother's view is that the father was insufficiently supportive of her, and did not fully comprehend the grief she felt. I am satisfied that the father also grieved, but that he dealt with his grief in a different way. In my view, nothing turns on the manner in which the parties (individually or as a couple) dealt with that very sad and unfortunate event.
22The parties married [in] July 2000.
23The mother was born and educated in Germany. She is a person of strong character. She gave her evidence in a forthright manner. She did not hesitate to speak over cross-examining counsel and, from time to time, to endeavour to speak over the presiding Judge. She has judged the father harshly, and is able to identify a great many faults that she associates with him and with his behaviour.
24The father is a different type of person. He was neither as forthright nor as credible as the mother. I was concerned by his reluctance to answer a number of questions. His responses were vague at times. At other times, they were evasive, and demonstrated a lack of insight. He spoke (in some of the correspondence, and even from time to time in court) about "his" children – the expression he used was "my" children – and he seemed to adopt something of a possessive attitude towards them. He was frequently garrulous, and his speech was pressured.
25I accept, of course, that the father was nervous, and that he felt under some pressure during his cross-examination, but I am satisfied that those factors do not explain the deficiencies in his evidence. There were times when he was – to use a colloquialism – all over the place in his evidence; at other times, he was more direct. Overall, however, he was less than frank with the Court. He often appeared to be rather literal in the way he responded to questions. Sometimes he indicated that he did not understand questions asked of him when it was clear that he simply had discomfort with them. In my view, that was a tactic on his part to delay or to avoid answering questions.
26At other times, the father was simply evasive or argumentative. As the cross-examination progressed, he persisted in endeavouring to second guess senior counsel for the mother. In spite of the Court explaining to him the importance of not doing so, he continued to do it. Further, the father demonstrated that he could be obtuse, and that he was prepared to feign lack of knowledge or lack of comprehension when it suited him. He presented as guarded, un-forthcoming and enigmatic, and he gave the impression of being both circumspect and secretive. It short, he was a poor witness.
27Mr Rynne submitted, however, that, by and large, the father has been a very good parent. I accept that submission, but as a witness he had many shortcomings, and where there is conflict between his evidence and that of the mother, I have no hesitation in preferring the evidence of the mother. That is not to say that the mother could not be criticised as a witness or, indeed, in other respects. She could be argumentative and, as I have indicated, she could speak over both counsel and the Court at times. Further, she found it difficult to give credit to the father where credit was due. At times, she too was vague; when that happened, however, it was very noticeable – because the mother was typically very precise in much of what she said. Indeed, she was usually over-inclusive and somewhat directive in the responses she gave to cross-examination questions.
28As I have indicated, the parties separated in 2011. There had been problems in the relationship before then. Those problems did not all relate to the gradually blossoming relationship between the mother and Ms W.
29The mother said that the father developed a drinking problem and suffered from, in a lay sense, some form of depression. These problems commenced some time before the final breakdown of the relationship. It is to the father's credit that he seems to have dealt positively with his difficulties with alcohol. In relation to depression, however, and whilst recognising that I am certainly not a mental health professional, it must be said that he presents – unambiguously – as an unhappy and dissatisfied man. As Mr Rynne observed, it is fair to say that not everybody knows that he or she is in need of professional assistance when things go wrong in life.
30I am more than satisfied that the father would have benefited greatly from professional psychological or counselling assistance, and that he should have sought such assistance long ago. The children would also have benefited if he had obtained assistance of this nature. It would have assisted or enabled him to look more fairly and honestly at the problems that had arisen and persisted in the relationship – and to recognise that, although he was not solely to blame for those problems, to the extent that they did stem from his attitudes or behaviour, it was necessary for him to address those issues.
31To the mother's credit, she saw fit to obtain professional assistance from Dr Basson when she felt she needed it. Some time later, Ms W went to see Dr Basson (although to deal with different issues, namely workplace concerns). At different times, the children also went to see Dr Basson, and she became their therapist. Initially, the father objected to Dr Basson seeing the children; but eventually, and to his credit, he agreed to them seeing her. Unfortunately, he did not avail himself of the offer that was made by the mother for him to speak with Dr Basson himself until some months after the children had begun to see her as their therapist. Even then, the father spent a comparatively short amount of time with Dr Basson. Thereafter, he had no significant contact with her. In my view, if the father felt uncomfortable about continuing to see Dr Basson, it would have been preferable for him to have obtained a referral to another psychologist. That way, he could have obtained assistance with the difficulties he was obviously experiencing – which difficulties arose from the breakdown of his relationship with the mother and the circumstances in which that occurred, and also from the perceived loss he felt in relation to his children.
32I have no doubt that it is in the children's best interests, and in the father's own interests, for the father to see a psychologist or other mental health professional as soon as practicable. In due course, I will ask counsel to draft appropriate orders directing the father to obtain such professional assistance as is necessary to help him deal with the consequences of the breakdown of the relationship and the implications of the orders I propose to make.
33As I have indicated, and for reasons that seem very difficult to comprehend, the parties put in place a day-about shared care arrangement for the children. This arrangement commenced very shortly after separation. I have already commented on the unsuitability of that arrangement, and noted that, in my opinion, it was due to both parties that the arrangement was never abandoned. I reject any suggestion that the arrangement was child-focused; it was put in place to suit the parties (and to indulge their insecurities).
34The mother is a strong-willed person. Had she wanted to change the arrangement, I have no doubt she could have done so. If necessary, she could have sought assistance from the Court. However, such is the strength of the mother's character, and such is her determination to have things as she wants them to be, that she adopted the view that unless the father agreed to the specific alternative arrangements she wanted to put in place, no change to the day-about equal shared care arrangement would be permitted.
35Unfortunately, exactly the same approach was adopted by the father, who (as was apparent from his correspondence with the mother, and from his evidence during cross-examination) adopted a tit for tat approach in many respects. If he felt the mother acted unreasonably, then he resolved to act just as unreasonably. Like the mother, he adopted the approach that unless the mother's proposals in relation to an alternative shared care arrangement for the children were entirely to his satisfaction, he would not agree to any changes. Both parties well knew the day-about arrangement was not in the best interests of their children, but neither was prepared to back down or lose face.
36That the parties' respective attitudes are as I have described them is most unfortunate. It reflects poorly on them as parents. Their approach to this issue indicates and underscores their immaturity, and it is something they will need to address in the future.
37Still, it is clear from material annexed to the mother's affidavit that her early correspondence with the father was temperate and measured. She wrote tactfully about certain concerns she had regarding the children's cleanliness and health.
38In an email to the father, dated 2 August 2012 (being annexure J to the mother's trial affidavit), the mother raised issues regarding the father's viewing of pornography, and his use of marijuana. That email bears revisiting – in particular, the following passage:
I also have to talk about another topic. I was happy to hear that you've connected the Internet to the kids' computer, because I have been worried that especially [Child B] was tempted to secretly get onto your computer. I'm hoping you've also, in addition to giving the kids Internet access, come to the decision that it is necessary to lock your computer with a password and move all X-rated material like discs with X-rated movies and pictures as well as your smoking utensils and drugs out of the kids' reach, which means literally locked away, not just in a room that is "out of bounds". It is one thing if the children are little and under constant supervision by 2 adults in the house, another if they are at the age where they get more adventurous, you can't be sure what they are up to when you're outside teaching but they know for sure you'll be busy for a while. I'm saying that because [Child B] told me that he "sneaked" into your studio to eat some nuts you are keeping there. I know that this, as such, is an insignificant incident, but it confirmed once again what I have noticed in him, that he wants to explore and doesn't stop at the boundaries you or (I) set him. If you're set-up is still the same as when I left I'm very concerned that [Child B] and [Child A] are exposed to your drugs and smoking utensils and possibly to the X-rated material from your computer. I have no interest in judging your habits, those are none of my business. They only concern me if there is a real potential danger for the kids to be exposed to illicit and/or adult material and/or if you are legally unfit to look after the children (it is obviously not acceptable for you to be under the influence of drugs while you're in charge of the kids).
I'm sure you share my concerns, as I know that the safety of our kids is important to you too.
I do understand that you've got a lot on your plate, but if we are to share the kids' custody 50/50, both of us have to be able to attend to their daily needs. …
39In my opinion, the mother's email makes a great deal of sense. The suggestions contained in the email were made in a positive and balanced manner. I also note, in passing, that the email reveals that the mother was aware, at that stage, that arranging the children's care on an equal shared basis would require some significant adjustments and compromises on the part of both parties.
40Notwithstanding that the mother spoke of equal shared care as if it were something akin to a gift for her to bestow, the reality is that she was well aware that difficulties could arise with such an arrangement and that the father would need to improve some of his parenting skills if it was ever going to work successfully. I have no doubt that the father was less experienced than the mother in parenting the children. Although it was suggested (indeed, it was firmly pressed) during the trial that the father may have been the children's primary caregiver at some stage or stages in the relationship, I have no hesitation in finding that such was not the case. The mother was the children's primary caregiver at all relevant times.
41I accept that government departments were advised – for purposes which need not be dwelt upon in these Reasons – that the father was the primary caregiver. I also accept that he spent a great deal of time with the children, and that he frequently supervised them, but there can be no doubt that the primary caregiver for these children was their mother. She continued to be their primary caregiver until the day-about shared care arrangement commenced.
42Even after the day-about shared care arrangement began, the mother endeavoured to continue in her role as the children's primary caregiver. In this regard, she was resisted by the father, who adopted a different style of parenting to that employed by the mother. The father's style of parenting was described quite vividly by Mr Rynne during the course of his closing address: in essence, it was suggested that the mother fussed and worried unnecessarily about all aspects of the children's health and wellbeing and that it would have been better for the children to "toughen up" (to adopt the expression used by Mr Rynne).
43Different parents have different views in relation to matters of this nature. As senior counsel for the mother has said, sometimes errors are made by parents who ignore what may ultimately turn out to be a serious illness or medical problem suffered or experienced by a child, and often it is better to be safe than sorry. On the other hand, sometimes parents are overly protective. That can also be problematical.
44This Court does not have the power to turn an unreasonable person into a reasonable person, or to turn a person who has concerns into a person who does not. The Court can only deal with the evidence before it. At the end of the day, if these parties had continued to live together, they would have had to balance their respective views and make compromises but they did not continue to live together.
45It is a cause for regret that the parties were unable to strike such a balance during the years they compelled the children to move backwards and forwards between them on a daily basis.
46The father's immediate response to the mother's email of 2 August 2012 (see above) was brief in the extreme. He wrote:
Dear [M],
Thanks for your email. I have taken note of your suggestions. Cheers.
47The mother then wrote back on 3 August 2012, doing her best to try to reinforce the need for the father to do a little better in relation to looking after the children's cleanliness and health. She then received a more full response from the father, in which he began to explain his approach to health and similar issues, and how he has changed sheets and tried to keep the children clean. The mother then thanked the father for his email. Nothing further needs to be said about the email exchange at that time, save that it reveals that the communication between the parties – although somewhat tense and unduly formal, and although revealing the father as being somewhat defensive – was relatively constructive: the mother was able to raise a concern she had with the father, and he responded in a positive fashion.
48By the end of the year, however, the tensions between the parties had increased markedly. The father was cross-examined at length about an email exchange from the end of 2012 which reflects extremely poorly on him, and which demonstrates his immaturity: see the father's email to the mother of 22 December 2012 (in which he listed seven conditions for the mother to meet before he would allow the children to travel to Germany with her).
49There seems to have been a lot going on at that time. The parties were represented by solicitors, between whom correspondence was passing. The mother was preparing to take the children to Germany. The father conceded that the children were looking forward to going to Germany, that they had been there many times before, and that there had never been any suggestion during these proceedings that they should not continue to visit their family in Germany.
50Notwithstanding those facts, the father saw fit to send an offensive email to the mother. Although the mother's communications with the father had been measured and restrained to that point, the father's response was intemperate, and disproportionate to the issues it purported to deal with. I am satisfied that the father wanted to punish the mother – for reasons that are less than clear. When it was put to the father that his expressed concerns were contrived and amounted to a form of "payback", he conceded that his correspondence could be interpreted in that fashion.
51I do not accept that the father's concerns as expressed in his email were genuine concerns. The father was using the email exchange, and the threats he made during the course of that exchange, for no other reason than to place undue pressure on the mother at a time when he well knew that she was about to travel to Germany. He also knew that it would be very difficult logistically for the mother to file an application (and to get a hearing date for such an application) seeking appropriate orders allowing her to travel.
52The father said in evidence that he always assumed the mother would respond positively to his email request, and that he did not believe it would ever be necessary for him to carry through on his threat. One wonders, then, why he chose to write in the fashion that he did. The image that comes to mind is of the father, filled with bitterness and regret, sitting alone in his double-locked study late at night, and eventually giving voice to his frustration by drafting indignant and combative emails to the mother.
53The father's email to the mother of 22 December 2012 is a most unfortunate item of correspondence from the father's point of view. I do not accept his evidence in relation to its purpose or intent.
54During his evidence, the father demonstrated that he often lacked understanding, empathy and insight. For example, he seemed to regard the mother's current partner as being the cause of the breakdown of what had been a successfully functioning relationship and to believe that the parties would still be together if Ms W had not come on the scene. There can be no doubt, however, that serious difficulties in the parties' relationship had been apparent from a relatively early stage.
55Similarly, the father's implausible excuses for his reluctance or unwillingness to be in the same room as Ms W indicated, among other things, a lack of insight or self-awareness on his part. I have no doubt that the father bears considerable animosity towards Ms W – and probably towards the mother as well (because of her decision to leave the relationship).
56These are issues which the father must address as soon as practicable – for his own and for the children's benefit. If he does not, the likelihood is that the children will soon begin to display more troubling behaviours. It is also likely that the children will suffer more than they do already from the breakdown of their parents' relationship and their parents' inability to arrange a care arrangement that minimises the acknowledged pressures on the children.
57I referred to the locked room in the former matrimonial home during closing addresses. The mud map tendered during the trial reveals that the home is a small one: see exhibit W6. It is a three-bedroom house. The father occupies one room, which was not originally a bedroom. Child A sleeps in the room that was formerly the parties' bedroom. Child B is in another bedroom. The study itself, which I assume was once a bedroom, is closed off and locked and, as I understand it, there is also a shed that is locked.
58I made all the comments I need to make about locked rooms earlier, when I was being addressed by counsel. Mr Rynne submitted – possibly with some merit – that the father is damned if he does and damned if he doesn't. In that regard, I refer again to the mother's email to the father dated 2 August 2012, in which she writes about the room and the need to keep the children out of it and/or to put a lock or a password on the computer. In all the circumstances, however, I have great discomfort with the fact that the father locks himself in the study, and that he feels the need to use two locking mechanisms to ensure that entry to the room is prevented when he is not present. Given the children's ages, it is not difficult to imagine that they will soon want to know exactly what is in the study and, indeed, that they will eventually make efforts to find out what is in there.
59As I observed during closing addresses, it matters not whether the father's hobby or interest is pornography or archery or philately, or collecting ancient weapons or model trains. Nothing turns on any finding I may make in that regard. Further, it is not the role of the Court to assess or comment upon the parties' sexuality or scrutinise their sexual proclivities. It is the Court's role, however, to give serious consideration to determining what is in the children's best interests. It is also the Court's role to endeavour to protect children from psychological harm and to do its best to ensure that children receive adequate and proper parenting to help them achieve their full potential. Ensuring that parents fulfil their duties and meet their responsibilities concerning the care and welfare of their children is also one of the Court's objectives: see s 60B(1). From the point of view of parenting in the broadest sense, it is inimical to the best interests of children for a parent to lock himself or herself in a room when his/her children are present in the house, irrespective of whether he or she is reading the news, playing with model trains or, for that matter, working on affidavits for a Family Court trial.
60When a parent has the care of children, he or she needs to give them appropriate attention, and supervise them at all relevant times. I do not accept the father's evidence that he has not accessed pornography when the children have been with him. I do not know whether he has an "addiction" to pornography, and the Court heard no expert evidence about the subject – either generally or specifically in relation to the father. Similarly, the Court heard no expert evidence about cannabis and whether the father might have an addiction to it. However, if the father feels unable to refrain from the use of pornography, or to refrain from smoking cannabis when the children are in his care, then, quite clearly, he has a problem that needs to be addressed, whether or not his inability to desist from these activities comprises an "addiction" in the true sense.
61It goes without saying that when children are in the care of a parent, he or she must remain focused on their needs. That does not mean that a parent is required to smother children; nor does it mean that a parent is required to be present with children at every moment that the children are with him or her – but parents must be physically and emotionally available to their children when a need arises. A parent who feels unable to avoid using a drug or to suspend its use when his children are with him, or who feels unable to refrain from or leave off looking at whatever he may be viewing on a computer screen or whatever he is engaged in while he is viewing it, is not physically or emotionally available to his children, and that is especially the case when there is a locked (or perhaps double-locked door) between where the parent is ensconced and wherever the children may be.
62In my opinion, the father needs to think long and hard about his behaviour. It is in the best interests of the children for him to seek and obtain assistance for the problems he clearly has. To say as much is not a gratuitous criticism of the father. It is, however, a comment on his parenting capacity and attitude.
Parenting Orders
63The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
64Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Pt VII of the Family Law Act 1975 ("FLA").
65The Full Court carefully analysed the structure and effect of Pt VII in Goode & Goode (2006) FLC 93-286 ("Goode"). It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
66Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child" [s 64B(3)]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ even though such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent): see the definition of "major long-term issues" in s 4(1).
67If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision [s 65DAC]. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent [s 65DAE].
68As has long been the case, the child's best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:
69In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
70The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are:
… to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
71The principles underlying these objects are set out in s 60B(2). They are:
… that (except when it is or would be contrary to a child's best interests):
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
72Given that all the expressed objects of Pt VII are directed towards ensuring that a child's best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
73The primary considerations are set out in s 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
74The additional considerations are set out in s 60CC(3). They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child's relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child;
e)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
f)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
g)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
h)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
i)in the case of an Aboriginal or Torres Strait Islander child, the child's right to enjoy his or her indigenous culture;
j)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
k) any relevant family violence, or family violence order;
l)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
m) any other fact or circumstance that the court considers relevant.
75The long list of additional considerations makes it clear that the court is required to focus on – among other things – each party's "track record" as a parent.
76Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FLC 93-407 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):
…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
77In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents": see McCall & Clark (2009) FLC 93-405 at [119]. The Full Court described this as "the prospective approach". Depending upon the circumstances of the particular case, a slightly different approach (which the Court described as "the present relationship approach") may also be relevant. The present relationship approach suggests that a court should consider the benefit to a child of having a meaningful relationship with his/her parents by examining the nature of the relationship as it exists at the date of the hearing and proceeding to make orders which reflect its findings in that regard: see McCall & Clark (supra) at [117] to [122]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
78Notwithstanding what was described in McCall & Clark (supra) as the "preferred" approach, the Court is not obliged to ensure that a child maintains a meaningful relationship with both parents; its obligation is to make orders most likely to promote the child's best interests. In seeking to discharge that broader obligation, the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship: see Mulvaney & Lane (2009) FLC 93-404 at [89] and Champness & Hanson (supra) [103]. As the Full Court said in Jurchenko & Foster (supra) at [123]:
… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.
79What then is a "meaningful relationship"? In broad terms, it is a relationship which is "important, significant and valuable to the child". In McCall & Clark (supra) at [121], the Full Court "accepted as appropriate" the following comment by Brown J in Mazorski & Albright (2007) 37 Fam LR 518 at [26]:
… [When] considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. …
80It should be borne in mind, as well, that "what the legislation aspires to promote is a meaningful relationship, not an optimal relationship": see Godfrey & Sanders [2007] FamCA 102 and Moose & Moose (2008) FLC 93-375 at [70].
81In Goode, the Full Court summarised the above process at [10]:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
82Despite the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay & McLay (1996) FLC 92‑667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the Court may make such parenting order as it thinks proper [s 65D(1)].
83When making a parenting order, the Court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility [s 61DA]. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
84The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.
85In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the Court that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility [s 61DA(4)].
86Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the Court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is both of these things, then the Court must consider whether it should make an order to that effect: s 65DAA(1). If the Court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).
87In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
88The same principles apply to s 65DAA(2) where its pre-conditions are satisfied: see, for example, Hamish & Brighton [2014] FamCAFC 242.
89The sequence in which the Court should consider the various provisions discussed above (and other relevant matters) is not clear from Pt VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said at [62]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Pt VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
90The Full Court in Taylor & Barker (supra) added that failure to follow the above approach, which it clearly regards as the logical approach, does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to 'the matters which the legislation requires must be considered'.
91In Mazorski & Albright (supra), Brown J dealt with the 'additional considerations' (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (supra), Boland J, with whom May J agreed, approved of such an approach, saying that, in certain cases, it may help to focus the Court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53 at [335].
92Having summarised the effect of Pt VII in Goode at [65], the Full Court then described at [82] "legislative pathway" that "must be followed" in interim proceedings. There seems to be no reason, however, why a similar pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S (2007) FLC 93-313 at [36]; see also Sayer & Radcliffe [2012] 48 Fam LR 298, citing Starr & Duggan [2009] FamCAFC 115.
93The relevant steps, as modified for a final hearing and taking into account the High Court's decision in MRR v GR (supra), are as follows.
a)Identify the parties' competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 60CC factors and, if possible, make findings about them.
e)Decide whether the presumption in s 61DA applies.
f)If the s 61DA presumption applies, then consider whether it has been rebutted because its application would not be in the best interests of the child.
g)If the s 61DA presumption applies, and has not been rebutted, then consider both of the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable for the child to spend equal time with each parent?
h)If both of the above questions are answered in the affirmative, then consider making an order for equal time (although the court is not obliged to make such an order).
i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider the two following questions:
i)Is it in the best interest of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable for the child to spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent (but, again, the Court is not obliged to make such an order).
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the Court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the default position under the FLA. Instead, the Court must concern itself with the reality of the situation of the parent and the child; it must make a practical assessment as to whether equal time, or, alternatively, substantial and significant time, is both feasible and in the child's best interests.
l)If the s 61DA presumption does not apply or has been rebutted, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are 'at large and to be determined in accordance with the child's best interests' (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC): see Goode at [65.8].
94Throughout the entire process, the Court must bear in mind that the child's best interests "remain the overriding consideration", and that those interests are to be "ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC": See Goode at [65.11] and [65.9].
95Notwithstanding the dicta discussed above, the question of an appropriate "legislative pathway" to provide guidance through the intricacies of Pt VII has continued to trouble judges at first instance. In Cox & Pedrana (2013) FLC 93-537, however, the Full Court said at [31]:
Whilst reference to a "legislative pathway" is, of course, an accurate descriptor of what individual sections within Part VII of the [FLA] require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided.
Discussion
96The statement of issues for determination in the mother's papers for the judge is not dissimilar to the statement of issues appearing in the father's papers for the judge.
97The issues for determination as listed by the mother were these: firstly, whether the children should live with the mother and spend time with the father (on the mother's case) or live equally with the mother and father (on the father's case). It is to the father's credit that he ultimately conceded that Child A should live with the mother – notwithstanding that the decision was made at a relatively late stage of the proceedings. Thereafter, the focus of the father's case comprised the parenting arrangements for Child B and the amount of time he should spend with each parent.
98The father's case is that Child B should spend a week-about arrangement with each of his parents; the mother's case is that he should live with Child A and the mother, and spend more or less the same amount of time with the father as Child A spends. The mother accepts, however, that there might be a need for Child B to spend a little more time than Child A with the father.
99The next issue for determination – according to the mother's statement of issues – comprises a summary to the effect that equal shared time has become too disruptive and unsettling to the children's day-to-day lives and schooling routine. There is overwhelming evidence and, indeed, a concession on the part of the parties that equal shared time, as it is currently organised by the parties, has become too disruptive and unsettling for the children.
100In my opinion, the situation would be no different if the changeovers were every two days or every three days: it is a disruptive and unsettling arrangement for the children, and the evidence before me clearly supports a conclusion that both children need stability in their lives.
101The next matter raised by the mother is that the relationship between the parties is such that co-parenting is difficult, if not impossible, and that the difficulties they are presently experiencing in that regard are unlikely to change in the foreseeable future.
102The evidence presented during the trial demonstrated that the co-parenting arrangement has been a stressful one for the parties; more importantly, it has demonstrated that the arrangement has been extremely stressful for the children. In that regard, one of the most stressful issues for the children has been the father's request that certain matters he deems "personal" (or his own private business) must, in effect, be kept secret by the children. He conceded during his evidence that asking the children to keep his "private affairs" confidential is the same as asking them to keep secrets (in particular, from the mother).
103When the father's request for confidentiality is added to the existence of the double-locked room and the father's secret or secretive life occurring within that room (and that is exactly how the children would perceive the father's activities in the study), then the father's behaviour becomes a matter of grave concern to the Court. I do not necessarily accept, however, that such behaviour is likely to continue beyond the foreseeable future. As I have indicated, I propose to direct the father to obtain professional assistance, and to order both parties to attend and complete an appropriate post-separation parenting course.
104Both parties are intelligent and capable, although rather inflexible, people. It is to be hoped that if the father obtains the assistance to which I have referred he will begin to understand that it is not in the children's best interests to direct them to keep secrets, and to expect them to "respect his privacy" by, for example, declining to tell the mother that the father has obtained new or different employment. The father's behaviour in this regard reflects a significant degree of immaturity and irresponsibility on his part.
105The next matter raised by the mother is as follows: if the children are to live with the mother, she will be able to monitor their care, welfare and development, including their emotional wellbeing, school attendance and overall health, and provide the stability they need. Although the father lacked the mother's experience in caring for the children in the early stages of the separation, I am satisfied that – subject to the comments I have already made regarding his availability – he now has the capacity to care for and physically supervise them. He also has the capacity to promote their welfare and development – including in relation to their school attendance and their overall health. However, there can be no doubt that the mother has been the parent primarily responsible for issues relating to the children's health.
106On the other hand, the father's ability to attend to the children's emotional and psychological health and welfare, and to provide a stable environment for them, is less than satisfactory. I find that he is likely to improve in these areas if he undertakes and completes the type of counselling or psychological therapy that I have suggested is appropriate. Notwithstanding the deficiencies to which I have referred, he appears capable of caring for the children adequately during holiday and spend time periods. I am not satisfied, however, that it would be in the best interests of the children to spend equal time with each of the parties.
107The next issue raised by the mother is that the children have ongoing behavioural and emotional issues that the father does not recognise or accept. I have already indicated that the father's ability to deal with the children's emotional and psychological welfare and development is less than satisfactory, and this represents an example of that shortcoming. Regrettably, the father seems to devalue the importance of psychology as a discipline that could assist either him or the children. He has no cogent reasons for his attitude in this regard, which appears to be capricious.
108The evidence reveals that the children have indeed had behavioural and emotional issues from time to time since separation. The father has had difficulty recognising these problems and seems to have been unable to deal effectively with them – although my finding in that regard is not without qualification. As Mr Rynne submitted, when Child A was bullied at school, the father stepped in and was able to deal with the problem effectively (and the mother accepted that the father had dealt with the problem properly and effectively). The correspondence attached to the mother's affidavit reveals that the mother was also involved in dealing with issues relating to Child A being bullied, but I do not wish to diminish the role played by the father: he should be given credit for what he did in relation to trying to overcome Child A’s problems stemming from the bullying.
109Nevertheless, the handling of other issues by the father has been deficient – including, for example, the manner in which he dealt with what was described as sexualised behaviour on Child B’s part. Instead of accepting that a genuine problem may have arisen, the father appears to have simply "cross-examined" Child B about the incidents. More accurately, he saw fit to put words in Child B’s mouth – for the primary purpose of raising a suggestion that nothing untoward may have occurred or, if it did, that there was some innocent explanation for it. I accept that there may have been an innocent explanation for Child B’s behaviour, but the manner in which the father chose to approach the issue was regrettable, and not in Child B’s best interests. The father's attitude was bizarre and ill-conceived: he seemed to think that, by raising the issue with him, the mother was making an accusation of some sort against Child B, and that the father's role should be to exculpate him.
110Child B was a very young child at that time. He needed support and understanding – not to be cross-examined by his father (who had clearly prejudged the issue and was determined to justify or rationalise Child B’s actions and absolve him of responsibility for any perceived aberrant behaviour). The whole issue should have been put in context, and resolved calmly and responsibly – without undue pressure being placed on Child B or additional friction arising between the parties. The father's manner of dealing with issues of this nature has not always been child-focused and reinforces the conclusion I have reached to the effect that the father demonstrates a significant degree of immaturity in dealing with certain aspects of his role as a parent.
111The next issue raised by the mother reflects her submission that the orders she seeks will allow the children to spend substantial time with the father and, at the same time, enjoy greater stability. I agree with that submission, although I am not persuaded that all the mother's proposals are in the best interests of the children.
112Finally, the mother submitted that detailed parenting and spend time orders would allow both parents to make plans around the children's time with them, including during holidays, at Christmas and when special events occur. Although that may be true, one of the orders sought by the mother is that details of holiday arrangements be left to the last minute, and then be the subject of a flurry of communication between the parties (with a view to working out some form of plan acceptable to each of them). In my opinion, such an arrangement is not in the best interests of the children. They are entitled to know – at the earliest possible opportunity – when they are going to be spending time with each parent. Given the parties' personalities, and their inflexibility, leaving such arrangements to the last minute will simply invite disaster.
113According to the mother's statement of issues, the next matter relates to the primary school Child B should attend for the remainder of 2015, and 2016; and what high school he should then attend.
114There was very little evidence presented to the Court in relation to this subject. Relevantly, there was no evidence as to whether [School A] is to be preferred over [School B] for Child B, and apart from what amounted to little more than a throwaway line from Ms Cherubino, there was no evidence as to the effect on Child B of changing schools now, at the end of the year or at some other time. In an ideal world, it would probably be best for Child B to continue at his current school, School B, but there is a significant distance between where the mother lives and where the father lives. That comprises a very relevant consideration in all the circumstances: see, for example, Re G: Children's Schooling (2000) FLC 93-025.
115The next issue identified by the mother is the children's attendance at extracurricular activities whilst in the other parent's care. During closing addresses, I made reference to a passage in the mother's papers for the judge, which appears at p 12, under the heading s 60CC(3)(d). The passage refers to what the mother describes as "enriching the children's lives with higher end activities such as singing, choir and music". The passage says much more about the mother's rather intransigent attitude to this subject than it says about what might be in the best interests of the children. All children are different. Some have talents in one direction. Some have talents in a different direction. Some children enjoy certain activities. Some children enjoy other activities. Some children do not enjoy activities which their parents think are very good for them and believe they should undertake. Suffice it to say that the mother's view that music, choir and singing are "higher end activities" is not necessarily shared by the Court. There was certainly no objective evidence presented as to what activities might reasonably be perceived as being in the children's best interests. In this regard, there is no reason why the father's views regarding appropriate activities for the children should not be given the same weight as the mother's views.
116Well prior to the commencement of the trial, the parties agreed to orders pursuant to which they will have equal shared parental responsibility for the children. The Court did not impose such an order on the parties. Indeed, this Judge was given no say as to whether equal shared parental responsibility is in the children's best interests. In those circumstances, it is wholly inappropriate for the mother to decide the activities in which the children should participate, without reference to the father. Even less appropriate is it for the mother's partner to seek to direct the children in relation to the activities in which they are to participate. Indeed, during the trial I observed that one of the most difficult roles to perform in a parenting context is that of a step-parent. Although, Ms W may not be defined as a step-parent in a formal sense, she is certainly regarded as a step-parent by the children – and that is the role that Ms W sees for herself, and that the mother sees for her. The children love and respect Ms W, but she is not a parent of the children, and she will need to understand when it is necessary to step back and leave the parenting to the parties. By all means, she can be and should be supportive of her partner, but she is not the children's mother. Without endeavouring to minimise Ms W's role in the children's lives, it is in the best interests of the children for her to acknowledge and accept the limitations inherent within that role.
117I turn now to what are described as child welfare issues.
118The first reference is to the presumption of equal shared parental responsibility. In this case, both parties concede that it is in the best interests of the children for there to be equal shared parental responsibility. Indeed, the parties consented to orders to that effect about a year ago.
119The next matter flows from the order for equal shared parental responsibility: the Court must consider whether it is in the best interests of the children, and reasonably practicable, for them to spend equal time with each parent. If it is not both of those things, then the Court needs to look at whether it is in the best interests of the children, and reasonably practicable, for the children to spend substantial and significant time with each parent. I am firmly of the view that it is not in the best interests of these children to spend equal time with each parent. They have done that to date, and there is no dispute that the arrangement has been less than satisfactory, and not in their best interests.
120For parents to make an equal time arrangement work for the benefit of their children – and that is the case whether it is a day-about arrangement, a three-day-about arrangement, a week-about arrangement or any other equal time arrangement – the parents need to be, in some respects, quite special people. They must be able to ease the children's transition from one household to the other. They must be sensitive to the needs of the children, including the stresses upon them and the anxiety they feel. In this case, and principally because Child A clearly has a desire (and, it would seem, a need) to live with her mother, it is clearly neither practicable nor in her best interests for her to spend equal time with each parent.
121The question then arises as to whether Child B should spend equal time with each parent. He is, of course, a different child to Child B, and he has his own needs. He has expressed a wish to spend equal time with his parents, but that is only one of a number of considerations the Court must take into account – raising, as it does, the issue of separation of siblings. In that regard, I need do no more than make reference to the evidence of both Ms Cherubino and Dr Basson that, ultimately, it is not in the best interests of these children to live in different households. Put another way, it is not in the children's best interests to be separated in the manner proposed by the father.
122There is no clear evidence, and certainly no persuasive evidence, that Child B will not be able to cope with an arrangement whereby he lives primarily with his mother and his sister, and sees his father regularly. Dr Basson said that she is more than happy to assist the children (and the parties) with the transition to any new arrangements the Court may consider are in the children's best interests. In all the circumstances, I am satisfied that Child B will be able to cope – indeed, I am satisfied that he will cope well – with a changed arrangement.
123I accept that Child B has said that he wants to share his time equally between his parents. I have not ignored his expressed wishes. However, given his age now and his age when the day-about arrangement began, I am satisfied that little weight should be given to those wishes. In my opinion, other factors are of greater significance, including, for example, the Court's lack of confidence in the father's ability to care for the children on a full-time, extended basis (notwithstanding that he has been moderately successful at looking after them on a day-about basis).
124There is clearly a close relationship between Child A and Child B. They are supportive of each other and enjoy spending time together. I can see absolutely no benefit, to either of them, in separating them. To do so would not be in their best interests.
Section 60CC factors
125Before proceeding further I remind myself that I must regard the children's best interests as the paramount consideration in this case. It is for the purpose of determining which proposals are in the children's best interests that I must consider the matters set out in s 60CC.
126The headings I have used below are simply a "shorthand" way of referring to each relevant consideration in s 60CC.
Meaningful relationship
127Each party accepts that it is in the children's best interests to have a meaningful relationship with the other parent. That does not mean, of course, that the children must have equal time (or anything close to equal time) with each parent. A meaningful relationship means one which is important, significant and valuable to a child. In other words, it implies little more than a good and constructive relationship. The law recognises that children can have a meaningful relationship with a parent who lives in another city, or in another country. Fortunately, that is not an issue in this case.
Protection from harm
128The next factor is the need to protect the children from physical or psychological harm. The mother refers to her continuing concerns about the father's use of pornography and the effects of such use on the children. This includes concerns as to the quality of the environment in which the children live. As I have said, it seems unhelpful to look at the issue from the point of view of the advisability or acceptability of using pornography or, indeed, illicit drugs; the overriding consideration is the impact on the children of the father's physical and emotional unavailability at times – for example, when he locks himself in the study to view and "use" pornography (whatever that may mean) and, perhaps, use illicit drugs (relevantly, cannabis). From the Court's perspective, the concerns about the father's behaviour in that regard are serious, and they must be given significant weight.
Children's views
129The next factor under the general heading of additional considerations comprises the wishes of the children. I am satisfied that Child A wishes are to live with her mother on a full-time basis, but to spend as much time as is practicable with her father. Child B’s wishes are to spend equal time with each parent – but he is a young child and I am not satisfied that significant weight should be attached to those wishes. Further, I do not accept that Child B has a full understanding of what it would mean to be separated from Child A in the manner envisaged by the father's proposed orders.
Nature of the relationship
130The next factor is the nature of the children's relationship with each of their parents and anybody who is close to them. I note that, in his papers for the judge, the father speaks of the children having a close and loving relationship with both parents. The father says:
The father has a close and loving relationship with both of the children. He has been a continual presence in the children's lives since they were born. He has been significantly involved in the ongoing care for the children, both after their birth and post-separation, and developed a strong attachment with the children.
131He then says:
The father does not dispute that [the mother] has a similar relationship with both children.
132The father also adds:
The single expert witness confirms the strong relationship that both parties have with the children.
133I accept the father's comments in that regard and find that the children have a close and loving relationship with both parents. What is noticeably absent from the father's papers for the judge – but is, of course, present in the mother's papers for the judge – is an acknowledgment that the children also have a close relationship with the mother's partner, Ms W. It says a great deal about the father that he apparently could not bring himself to make reference to that factor in his papers for the judge. The children's relationship with Ms W is clearly a relevant factor: the law defines it as being a relevant consideration, and it was referred to in the evidence at trial and the affidavit evidence that was presented to the Court prior to trial.
134In my opinion, the father's failure or refusal to acknowledge the strength of the children's relationship with Ms W is a further indication of the father's inability to accept what has happened in his life, including that the mother has moved on and formed another relationship. This inability highlights his immaturity.
Willingness to facilitate close relationship with other parent
135The next factor is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent. This is clearly a reference to s 60CC(3)(c) as it read prior to the amendments to the FLA that came into effect in June 2012. The provision was repealed at that time, but I shall deal with the subject because it was referred to by both parties.
136The mother says, and I accept, that she is willing and able to facilitate and encourage a close and continuing relationship between the children and their father. She queries, however, if the father is willing to facilitate and encourage such a relationship between the children and her. On the father's papers, one would have thought that he was indeed willing to facilitate and encourage a close, loving and continuing relationship between the children and their mother.
137Regrettably, during the course of his evidence the father became distracted by what he described as various "concerns" – which he was unable to fully elucidate. I am left in some doubt, therefore, whether the father is indeed willing to facilitate and encourage a close and continuing relationship between the children and the mother. It seems that the father only willing to do that on his terms. The father's attitude in this regard is not the most important consideration in the case, but is certainly a factor which the Court has noted.
Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the children and to have contact with the children
138The mother did not deal with this consideration in her papers for the judge.
139In his papers, the father submitted that, since separation, the parties have continued to discuss and agree upon long-term decisions affecting the children. By way of example, he referred to the parties' agreement to the effect that Child A should apply to be accepted into [C High School], and their subsequent agreement that she should attend the school. He also referred to the parties' agreement to the order for equal shared parental responsibility.
140Unfortunately, the parties' disagreement about the primary school to be attended by Child B undermines some of the more positive aspects of the cooperation outlined in the father's papers.
141Still, there can be no doubt that both parties have had extensive contact with the children since separation and that, subject to their communication difficulties, each has endeavoured to participate in decisions about the children's long-term interests.
Extent to which each parent has fulfilled obligations to maintain the children
142Again, the mother did not deal with this consideration in her papers for the judge.
143The father's papers contain a single sentence under this heading:
Post separation the parties have both cared for the children and maintained their obligation to parent the children both emotionally and financially.
144As I have indicated elsewhere in these Reasons, I have discomfort with the manner in which the father has dealt with the children's emotional needs. It does not appear to be significantly in dispute, however, that both parties have fulfilled their obligations to maintain the children since separation.
145Overall, this does not appear to be a consideration to which any significant weight should be given.
Effect of changes in the children's circumstances
146The next factor referred to in the mother's papers for the judge is the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from a parent or a sibling or anybody else with whom the children have been living. The mother argues that the changes to the living arrangements she proposes are substantial, but that they will have a positive impact on the children as the changes will bring some stability into their lives. Unfortunately, she then added the words to which I have already made reference:
… enrich their lives with higher-end activities such as singing, choir and music.
147As I have explained elsewhere in these Reasons, I do not necessarily accept the last dozen or so words of that paragraph, but I do accept that the changes in the living arrangements the mother proposes are significant, and I accept that they will have a positive impact on the children. That said, the note in the mother's papers for the judge does not deal directly with the factor itself. Clearly, the Court needs to take into account the likely effect of changes on the children – where those changes relate to some form of separation.
148As I have said, there is no clear evidence to the effect that Child B would not be adversely affected by being separated from his sister in the manner proposed by the father. The potential separation of Child A and Child B is a very important consideration. I am satisfied that it would not in Child B’s best interests to be separated from his sister in the way the father proposes. Such an arrangement is untested, and clearly contrary to the parenting practices adopted by the parties at all times since separation (which practices reflected an almost obsessional focus on causing the children to spend as little time as possible away from each parent, and incidentally cast the children in the roles of "fellow travellers", as it were).
149The question arises, therefore, how the children would cope with changes that flow from not spending equal time, or daily time, with their father. In my opinion, Child A will be able to deal with the changed arrangements with minimal difficulty, but Child B is likely to experience some initial difficulty with the changed arrangements, and the transitional arrangements will therefore need to be handled delicately. I am satisfied that with positive, principled and sensitive input from both parents, and professional assistance from Dr Basson, both children will adjust to the changed circumstances without any adverse consequences. I am satisfied that both the mother and Dr Basson are capable of providing the type of support I have described. I am also satisfied that, with the form of psychological and/or counselling assistance I have described elsewhere in these Reasons, the father, too, should be able to minimise any negative effect of the proposed changes on the children or either of them.
150There is no reason for the Court to think that the children will not be able to cope with the changed arrangement. After all, they have spent extended times away from their father – on a regular basis – during their trips to Germany, and there is no evidence to the effect that they have not been able to cope successfully at such times.
151Suffice it to say that there is no evidence that the children will not be able to manage the change successfully – with the input of their mother, their psychologist and, hopefully, their father.
Practical difficulties and expense associated with contact
152The next factor is the practical difficulty and expense of a child spending time with and communicating with a parent. The mother says that there are no difficulties or expenses that would substantially affect the children's right to maintain contact with both parents. I agree with that proposition.
Capacity to provide for the children's needs
153The next factor is the capacity of each parent and anyone else to provide for the needs of the children, including their emotional and intellectual needs. As explained above, I am satisfied that the mother has the capacity to provide for the children's emotional and intellectual needs. I am not satisfied, however, that the father currently has the capacity to deal with the children's emotional needs. I have already given my reasons for that comment.
154It is to be hoped that, as time passes and he confronts and addresses his own issues, the father will be able to better provide for the children's emotional and psychological needs. I accept that he is capable of dealing with their intellectual needs, even if the mother suspects that he is not.
Maturity, lifestyle and background of the children and the parties
155The next factor is the maturity, sex, lifestyle and background of the children (and the parties). The mother speaks of the children being of German descent, and argues that it is important for them to be exposed to their culture and have contact with the mother's family in Germany. It is not in dispute that the children will benefit from spending time with the mother's family when visiting Germany, and it appears that Child A is already bilingual in German.
156That Child A is bilingual is a very positive consequence of arrangements both parties have made over the years. I have no doubt that both parties will be supportive of the matters referred to by the mother under this heading.
Aboriginal or Torres Strait Islander children
157The next factor relates to whether the children are Aboriginal children or Torres Strait Islander children. That is not a relevant factor in the circumstances of this case.
Attitude to the children and to responsibilities of parenthood
158The next consideration relates to the attitude to the children and to the responsibilities of parenthood demonstrated by each parent. Under this heading, the mother argues that she has demonstrated a positive attitude towards the children and the responsibilities of parenting, and I find that this is the case. I find that the father has not always behaved responsibly in relation to these roles, as I have discussed above – and I refer to, among other things, "the locked door" (to use Mr Rynne's description), the father's inept approach to dealing with Child B’s sexualised behaviour and the father's correspondence with the mother, which has been somewhat unrestrained at times, and disproportionate to the requests made by the mother. To a large extent, the father has also taken too much of a back step (as it were) where the day-to-day needs of the children are concerned. A helpful example given by Mr Rynne – and, at the same time, a matter for regret – is that the father did not avail himself of the opportunities afforded him to speak with Dr Basson and to obtain her input and/or assistance. Why he was unwilling or felt unable to do that is unclear, but, it seems to me that it has much to do with his immaturity.
Family violence
159The next factor is family violence. Fortunately, neither party suggests that that is a relevant factor.
Orders least likely to lead to the institution of further proceedings
160The final matter raised in the mother's papers for the judge is the question of whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
161While I accept that it would be preferable to make orders that are least likely to lead to further proceedings, it is not always possible to identify what those orders should be. Obviously, if parties wish to communicate with each other in inflammatory or intemperate tones, then irrespective of the care arrangements that may be put in place by a trial judge, there are likely to be further proceedings. Such behaviour reflects parties' inability or unwillingness to overlook past grievances or perceived grievances and refocus on the best interests of their children. Regrettably, the evidence reveals that both parties in this case are stubborn. The Court can only hope that each of them will eventually acquire or discover the capacity to compromise.
162In my opinion, there are no orders that the Court can make in the particular circumstances of this case that would serve to avoid the institution of further proceedings. I am satisfied, however, that the orders I propose to make will minimise the possibility of that occurring.
Any other fact or circumstance that the Court thinks is relevant
163There are no other facts or circumstances that I wish to make reference to at this point in time.
Equal time, substantial and significant time and the parties' proposals
164Given that an order for equal shared parental responsibility has been made, I am obliged to consider whether the children spending equal time with the father and the mother would be in their best interests (and related questions) and, if it is not, whether the children spending substantial and significant time with the father and the mother would be in their best interests (and related questions).
165As indicated above, I am not satisfied that it is in the children's best interests to spend equal time with each of their parents. Neither party pressed for such an arrangement in relation to Child A. The father sought an equal time arrangement for Child B only. I am not satisfied that the arrangement proposed by the father could be made to work effectively and in the children's best interests. The parties' communication is less than satisfactory, disputes between them are relatively frequent and their relationship has been strained (due largely to the father's immaturity and resentment towards the mother) since at least the date of separation. I have already described the father's attitude and personality. They are not conducive to a close and constructive relationship with the mother, whom he does not seem to respect and whose input in relation to certain issues he devalues.
166At first blush, the comments I have made in the previous paragraph may appear to conflict with the existence of an order for equal shared parental responsibility. The perceived conflict can be explained, however, by recognising that an order for equal shared parental responsibility requires the parties to consult with each other and make a genuine effort to come to a joint decision about major long-term issues affecting their children. Such consultation is not required in relation to issues that do not fall within the purview of "major long-term issues" – such as what children eat or wear or what their daily activities should be when they are spending time with the parent with whom they do not live. An order to the effect that children are to share their time equally between their parents requires the parties to consult and cooperate with each other in relation to a myriad of issues that cannot be categorised as major long-term issues. In other words, the consultation and cooperation associated with an order for equal shared care of children is more frequent and, in many senses, more intimate, practical and immediate than consultation and cooperation associated with an order for equal shared parental responsibility. It is not unusual for parents to fail comprehensively at the former, but to put aside their differences and make a genuine effort to succeed at the latter.
167It is also relevant to have regard to the fact that the mother was the children's primary caregiver throughout their lives, until the parties adopted the day-about care arrangement after separation. The mother did a very good job in that regard, which fact was recognised by the father in his concession that the mother should continue to be Child A’s primary caregiver.
168I am satisfied, however, that it would be in the children's best interests to spend substantial and significant time with each of their parents. Such an arrangement would allow them to have regular contact with both parents during school terms and holidays, as well as allowing the parents to be involved in the children's' daily routine and occasions and events that are of significance to them. There is no suggestion that such an arrangement would not be practicable.
Conclusion as to most satisfactory proposal
169In all the circumstances, and –
a)bearing in mind that the children's best interests remain the overriding consideration;
b) taking into account the objects and principles set out in s 60B; and
c) having regard to my discussion of the s 60CC factors above,
I conclude that it is in the best interests of the children not to be separated, and to live primarily with the mother.
170In reaching the above conclusion:
a)I have done my best to evaluate the broad proposals advanced by the parties;
b)I have not considered myself wholly bound by the parties' proposals;
c)I have done my best to follow the legislative pathway (to the extent that such a term adequately describes the relevant process) as I understand to be; and
d)I have recognised that neither party bears any relevant onus of establishing that one proposal better promotes the children's best interests than does the other.
Orders relating to parenting issues
171Having regard into account the matters discussed above, it is apparent that orders should be made to the following effect:
1In these orders:
(a)"the children" means the parties' children CHILD A born [in] 2003 and CHILD B born [in] 2006;
(b)"the agreed orders" means the Minute of Agreed Orders for Trial signed by or on behalf of the parties on 24 July 2014 and filed on 30 July 2014;
(c)"Easter" means after school the Thursday before Good Friday until 3.00pm Easter Monday;
(d)"Christmas holidays" means the long summer (Christmas) school holiday period;
(e)"the term holidays" means the first, second and third term school holidays;
(f)all school holidays (including the term holidays and the Christmas holidays) shall be deemed to commence immediately after the end of school on the last day of school in each term and conclude at 5.00 pm on the Sunday immediately prior to the commencement of the next school term;
(g)unless otherwise indicated, the expression "after school" means –
(h)immediately after school on any school day; and
(i)3.00 pm on a pupil-free day or any day that is not a school day; and
(ii)the expressions "in writing" or "written" include, but are not limited to, email, SMS text message and the messaging feature in family wizard com (in the event of the parties agreeing to communicate regarding via IT IS NOTED THAT:-
•paragraphs 2, 3, 8 -18 (inclusive), 24 – 26 (inclusive), 29-32 (inclusive) are made by the parties by consent in the same terms as the agreed orders; and
•paragraphs 1, 4-7 (inclusive), 19-23 (inclusive), 27-28 (inclusive) and 33 are made by this Honourable Court following the Trial of these proceedings conducted on 24 to 30 June inclusive.
Parental responsibility
2The father and the mother have equal shared parental responsibility for the children.
3Unless contrary to the children's immediate welfare, the father and the mother must, before making any major long term decisions about the children:
(a)consult with each other in writing setting out any major long term decision making proposal and the reasons for that proposal;
(b)give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and
(c)in the event that any dispute is unable to be resolved, the parent making the proposal shall consult with a Family Dispute Resolution Practitioner and invite the other parent to attend in an effort to resolve the dispute.
Live with arrangements
4 The children live with the mother.
Spend time arrangements
5 Subject to the agreed orders, the children spend time with the father as follows:
Alternate Mondays
(a)Subject to (b) below, each alternate Monday from after school to 7.30 p.m., with the father to collect the children from school at the commencement of the spend time period and return them to the mother's residence at the completion of the spend time period - such contact to commence on Monday, 20 July 2015.
(b)Each child is to attend the spend time period referred to in (a) above in accordance with her/his wishes.
Alternate weekends
(c)Each alternate weekend from after school on Friday to the commencement of school on Monday (or the commencement of school on Tuesday in the event of the Monday being a Public Holiday or a pupil-free day for either of the children), with the father to collect the children from and deliver the children to school at the commencement and completion of the spend time period - such contact to commence on Friday 24 July 2015.
Alternate Thursdays
(d)Each alternate week from after school on Thursday to the commencement of school on the following day (Friday), with the father to collect the children from and deliver the children to school at the commencement and completion of the spend time period - such contact to commence on Thursday 30 July 2015.
School holidays
(e)The first half of each of the term holidays in 2015 and each alternate year thereafter, with handover to occur at 3 p.m. on the middle Saturday of the holiday period.
(f)The second half of each of the term holidays in 2016 and each alternate year thereafter, with handover to occur at 3 p.m. on the middle Saturday of the holiday period.
(g)One half of the Christmas holidays in each year, being the first half in the 2015/16 Christmas holidays (and in each alternate year thereafter) and the second half in the 2016/17 Christmas holidays (and in each alternate year thereafter), with handover to occur at 3 p.m. on the middle Saturday of the holiday period.
(h)The father's time spent with the children pursuant to (a), (b), (c) and (d) above be suspended during all school holiday periods (being the term holidays and the Christmas holidays), and do resume after such holidays in an unbroken cycle as if such holidays had not occurred.
Further or other contact
6Subject to paragraph 15 and 29, the children spend time with or communicate with the mother at such further or other times as shall be agreed upon by the parties from time to time in writing, and the father must give favourable consideration to the children travelling to Germany and associated destinations with the mother for a minimum of three weeks during the Christmas holidays in each year - provided that any time the father may miss with the children due to such overseas travel should be made up during the school term or the following term holidays as agreed between the parties.
7The children spend time with or communicate with the father at such further or other times as shall be agreed upon by the parties from time to time in writing.
Special occasions
8For the purposes of special occasions, the time the parties would ordinarily spend with the children be suspended and the parties spend time with the children as follows:
(a)with the father from 5pm the day prior to Father's Day until 5pm on Father's Day;
(b)with the mother from 5pm the day prior to Mother's Day until 5pm on Mother's Day.
(c)on the children's birthdays with the parties, with the time to be agreed in writing and to be no less than 2 hours in the event of a school day and no less than 4 hours in the event of a non-school day;
(e)at Easter with the parties to spend time with the children each alternate year, as mutually agreed to in writing no less than 7 days prior; and
(f)with the father from 10am on 24 December until 1pm on 25 December in 2014 and each alternate year thereafter and from 1pm on 25 December until 4pm on 26 December in 2015 and each alternate year thereafter and with the mother from 10am on 24 December until 1pm on 25 December in 2015, and each alternate year thereafter and 1pm 25 December until 4pm on 26 December 2014 and each alternate year thereafter, unless otherwise agreed between the parties in writing.
Handover
9For the purposes of handover, when handover does not occur at the children's school, the parent whose time with the children is ending, shall deliver the children to the other parent's residence.
Communication
10The parties shall communicate in writing regarding issues pertaining to the children and their immediate needs and the parties will use their best endeavours to use the messaging feature on parties otherwise exchange information in relation to any significant issues relevant to the care of the children, such as issues regarding either child's general wellbeing, health, education, special events and extra curricular activities.
12The parties shall keep each other informed at all times of their current residential addresses, contact telephone numbers and email addresses and promptly inform each other of any changes thereto.
13Both parties shall, promptly after receipt, give to the other details of any invitation to attend a birthday party or other special occasion or social event that will occur during a time when the children will be with the other party.
14While the children are not in their respective care, including times when the children are outside of the Commonwealth of Australia, each party be at liberty to contact the children via telephone on a weekly basis, at:
(a)6.00pm Australian Western Standard time; or
(b)as is mutually agreed between the parties in writing.
15The children be at liberty to contact the parent with whom they are not living with at the time, in accordance with their own independent wishes, with both parties to facilitate such contact.
Health
16Each party advise the other party in writing of the name and address of any and all medical practitioners who are involved in treating or caring for the children.
17In the event of either child becomes seriously ill, injured or hospitalised whilst in the care of one party, that party shall notify the other party as soon as practicable.
18In the event either of the children being prescribed or given medication, or a particular form of treatment which is required to continue into a period when the other parent will be caring for the children:
(a)Any prescribed medication or materials required for such treatment will be sent with the children, as well as a description in writing of the condition for which it is required and the appropriate dosage or method of treatment; and
(b)the party who is caring for the children shall facilitate the administration of such medication and/or treatment described in order 18(a) hereof.
School functions and extracurricular activities
19The mother be restrained by injunction from causing or permitting the children or either of them to enrol in, register for or participate in any non-school based sport, program, course or other extracurricular activity (including musical and choir activities), save and except for the children's current choir commitments, without the prior written consent of the father having first been obtained - unless such sport, program, course or extra curricular activity occurs wholly within the mother's time with the children.
20The father be restrained by injunction from causing or permitting the children or either of them to enrol in, register for or participate in any non-school based sport, program, course or other extracurricular activity (including musical and choir activities), save and except for the children's current choir commitments, without the prior written consent of the mother having first been obtained - unless such sport, program, course or extra curricular activity occurs wholly within the father's time with the children.
21Notwithstanding paragraphs 19 and 20 above, and with a view to ensuring that the children remain active and healthy in body and mind, both parties must use their best endeavours to -
(a)agree upon; and
(b)ensure that the children participate regularly in,
non-school based activities which satisfy those objectives and which the children find or are likely to find enjoyable.
22The parent with whom the children are living or spending time must ensure that the children attend all school functions and performances, school camps, agreed extracurricular activities, performances and sporting events and must notify the other parent of such activities or events in a timely fashion, giving the other parent ample time to attend such activities or events if he or she is minded to do so.
23If the children are unable to attend the activities or events referred to in paragraph 22 above (or any of them), then the parent with whom the children are living or spending time must notify the other parent of such inability as soon as practicable.
Child A’s Schooling
24From the commencement of the school year in 2015 the Child A shall attend C High School
25 Both parties shall:
(a)do all acts and things, and sign all documents necessary to authorise the school at which the children attend to provide each party with copies of all school reports, and access to any portfolio work of the children, reports on behavioural issues, school circulars or notices concerning functions, parent/teacher nights and other school activities to which parents are invited; and
(b)promptly after receipt, give to the other party:
(i)a copy of any school report, circular or other significant document provided by the children's school; and
(ii)a copy of any circular, fixture or other significant document provided concerning the children's extracurricular activities.
26The parties have liberty to attend all and any schooling events and extracurricular activities attended by the children.
Child B’s schooling
27Both parties must sign all such documents and do all such acts and things as shall be necessary to cause and permit Child B to be enrolled at and attend School A from the commencement of Term 1, 2016.
28Both parties must sign all such documents and do all such acts and things as shall be necessary to cause and permit Child B to attend one of the following schools for his secondary education -
(a)C High School as the first choice;
(b)[M High School] as the second choice; and
(c)[L High School] as the third and final choice.
Overseas travel
29If either party wishes to travel with the children outside of the Commonwealth of Australia, the departing party be at liberty to do so and the departing party shall provide the non-travelling party no less than 30 days prior to the travel, the following:
(a)the dates of departure and return;
(b)a copy of any itinerary, or any other documentation evidencing the proposed destination(s);
(c)copies of return air tickets; and
(d)all addresses, telephone numbers or other contact details where the non-travelling party can contact the children during the travel period.
30The time the children would otherwise spend with the non-travelling party during that travel time shall be suspended, with the non-travelling party to spend time with the children in lieu of that suspension as is mutually agreed in writing between the parties.
Injunctions
31Without admission as to need, both parties be restrained by injunction, and an injunction be granted restraining the parties from:
(a)smoking marijuana and from consuming alcohol in excess of the legal blood alcohol consumption limit for driving in Western Australia while the children are in their care, respectively, or within 12 hours prior to when the children are in their respective care;
(b)discussing any court proceedings with or in the presence of the children, or showing the children any Court documentation;
(c)discussing with or in the presence of the children, the relationship between the parties;
(d)denigrating the other party, their spouse or extended family, to or in the presence of the children, or speaking negatively about the other party, their spouse or extended family to or in the presence of the children.
32 Without admission as to need, the parties do all acts and things necessary to:
(a)ensure that all pornographic and sexually explicit material at either party's residence is locked in a filing cabinet or cupboard within a room locked with keys which the children are unable to access;
(b)maintain a computer protection programme equivalent to McAfee total protection or Net Nanny so that customised user accounts may be established for the children to prevent their accidental viewing of pornography and other age inappropriate and adult material during internet access.
Post-separation parenting course
33 Both parties must:
(a)attend and complete, as soon as practicable, an appropriate post-separation parenting program or other appropriate course or service (such as the "the Mums and Dads Forever" Program) at an organisation as nominated by the Director of the Family Court Counselling and Consultancy Service or his/her nominee;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the said program;
(c)pay and otherwise be responsible for all costs associated with the said program; and
(d)provide an appropriate certificate of completion of the said program to the other party.
Counselling
34The father shall attend upon a general practitioner to obtain a referral to attend upon a recommended clinical psychologist.
35The father shall attend upon the recommended clinical psychologist in accordance with the recommended clinical psychologist's recommendation.
36In the first instance, the mother explain the court orders to the children, not in the presence of Ms W, and thereafter take the children to see Dr Basson at 9.00am, Friday, 3 July 2015, to counsel the children and the parties (at Dr Basson's discretion, and in such manner that she considers appropriate) and for this purpose the mother provide Dr Basson with a copy of the orders (even if not yet extracted) and for the sake of clarification the father be at liberty to attend the appointment with Dr Basson at 9.00am on 3 July 2015.
General
37Each party have liberty to apply in relation to the implementation of these orders upon giving the other party 14 days' notice.
38The parties do all acts and things and sign all documents necessary to obtain a subscription on and the parties shall do all acts and things and sign all documents necessary to renew their subscription as and when required.
I certify that the preceding [171] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
28 August 2015
0
8
0