Long and Long
[2014] FCCA 1734
•25 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONG & LONG | [2014] FCCA 1734 |
| Catchwords: FAMILY LAW – Final parenting orders – limited issues to be determined – considerations as to parental responsibility (initially sole parental responsibility for a limited period, then moving to equal shared parental responsibility) – agreement by Counsel (for the Mother and the ICL) that the Court has jurisdiction to make an order initially for sole parental responsibility but which later moves to an order for equal shared parental responsibility. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC(1) & (2), 60CC(3)(a) – (k) |
| Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Slater v Light (2012) 45 Fam LR 41 |
| Applicant: | MR LONG |
| Respondent: | MS LONG |
| File Number: | PAC 4450 of 2012 |
| Judgment of: | Judge Neville |
| Hearing dates: | 23-24 June 2014 |
| Date of Last Submission: | 24 June 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 25 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Fowler Predny, Morisset, NSW |
| Counsel for the Independent Children’s Lawyer: | Ms M Neville |
ORDERS
Parental responsibility
For a period of eighteen months from the date of these orders, the Mother is to have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 ("the children").
During the period in which the Mother holds sole parental responsibility, the Father is hereby authorised to obtain access to:
(a)all school reports and educational information in relation to either child ordinarily available to a parent; and
(b)all medical, dental and other allied health information pertaining to either child
During the period in which the Mother holds sole parental responsibility, she is required to:
(a)Consult with the Father prior to making any decision as to education, medical or dental treatment for either child including informing the Father of any advice received and the names of any service providers or treating professionals consulted;
(b)Inform the Father of any decision taken as to education, medical, dental or other allied health treatment for either child within a reasonable period of taking such decision;
(c)Do all acts and things necessary to facilitate the Father's access to the information referred to at order 2 above as may be required by the children's service providers or treating professionals.
These orders are sufficient authority for any educational, medical, dental or other professional providing services to or treating the children to communicate with the parties and to provide to parties at their request any information that would ordinarily be provided to a parent.
At the expiration of order 1 the Mother and the Father are to have equal shared parental responsibility for the children.
Live with
The children are to live with the Mother.
Time with
Subject to any other agreement in writing between the parties, the children are to spend time with the Father in a fortnightly cycle as follows:
From the date of these orders until 7 October 2014:
(a)From 9:00am Sunday until 3:00pm Monday in the first week; and
(b)From 9:00am until 3:00pm Monday in the second week.
From 7 October 2014 until X commences school or until 27 January 2015 whichever is the soonest:
(c)From 9:00am Sunday until 3:00pm Monday in the first week; and
(d)From 9:00am Monday until 9:00am Tuesday in the second week.
From the time X commences school until 13 July 2015:
(e)From 4:00pm Saturday until the commencement of school Monday in the first week; and
(f)From after school Monday until the commencement of school Tuesday in the second week.
From 13 July 2015 and thereafter
(g)From 4:00pm Saturday until the commencement of school Tuesday in the first week; and
(h)From after school Monday until the commencement of school Tuesday in the second week; and
(i)Any additional time that may be agreed between the parties.
Commencing from the school holiday period falling at the end of term 1 in 2015, the time referred to above is suspended during all school holiday periods and instead the children will spend time with the Father as follows:
During the school holiday periods falling at the end of terms 1, 2 and 3 in 2015;
(a)For a block period of four (4) days in each of the school holiday periods on dates as agreed and failing agreement during the first week of each of those holiday periods.
During the school holiday period falling at the end of term 4 in 2015:
(b)For a block period of 10 days on dates as agreed and failing agreement during the first 10 days of the school holiday period.
During all school holiday periods thereafter
(c)For half of each school holiday period on dates as agreed and failing agreement the children to spend the first half of the school holiday period with the Father in even numbered years and the second half of the school holiday period with the Father in odd numbered years.
The Court notes for the sake of clarity that it is intended by Order 8(c) that the children will spend Christmas Day with the Father in even numbered years and with the Mother in odd numbered years.
Changeovers
For the purpose of implementation of orders 7 and 8:
(a)Until the X commences at school, all changeovers are to occur at (omitted) or in the event of inclement weather, at (omitted) Shopping Centre with the Mother to send an SMS text message to the Father to confirm the changeover point;
(b)Once X commences at school the school will be the changeover point for all time that commences at the end of school or concludes at the beginning of school and for all other periods, changeovers are to occur at (omitted) or in the event of inclement weather, at (omitted) Shopping Centre with the Mother to send an SMS text message to the Father to confirm the changeover point.
Special events and dates
If Mother's Day falls on a weekend when the children would otherwise be spending time with the Father, the Father's time is suspended for that weekend.
If Father's Day falls on a day when the children would otherwise not be spending time with the Father, the children are to spend time with the Father from 9:00am to 6:00pm each Father's Day.
If the children are not otherwise spending time with the Father on X’s birthday, they will spend time with him for 2 hours on her birthday.
If the children are not otherwise spending time with the Father on Y’s birthday they will spend time with him for a period of up to 2 hours on her birthday unless the children are travelling overseas in which case the children are to spend 2 hours with the Father on a day during the week prior to departure.
If the children are not otherwise spending time with the Father on the Father's birthday, then the children will spend time with him for 2hrs on his birthday.
Commencing from 7 October 2014, once in every three month period the Father is permitted to travel to Queensland with the children for a block period of up to 5 days upon the Father giving at least 28 days’ notice of the date of travel to Mother.
Any travel authorised by order 15 above is to occur at a time including a day or days on which the Father is already spending time with the children.
For the purpose of implementing order 15 above the Father is to provide to the Mother the address and contact details of any place where he and the children will be staying throughout the period of travel.
The Mother is permitted to travel to (country omitted) with the children as follows:
From the date of these orders until X commences school:
(a)For a block period of up to two (2) weeks upon giving the Father at least 28 days’ notice of the date of travel to the Mother with the Father's time with the children to be suspended during the period of travel.
From the date X commences school:
(b)For up to half of each school holiday period.
For the purpose of implementing order 18 above at least two (2) weeks prior to departure the Mother is to provide to the Father a copy of the children's return travel tickets together with a copy of any itinerary that she may hold and the address and contact details of any place where she and the children will be staying throughout their travel.
Unless the children are travelling as allowed by orders 15 or 18 above, they are to communicate with the Father each Thursday night between the hours of 6:00pm and 7:00pm by either telephone or Skype or equivalent with the Mother to initiate the communication to the Father.
During any period of travel allowed by order 15 above, the children are to communicate with the Mother by telephone or Skype or equivalent no less than every second day with the Father to initiate the communication to the Mother.
During any period of travel allowed by order 18 above the children are to communicate with the Father by telephone or by Skype or equivalent no less than every 3 days with the Mother to initiate the communication to the Father.
Requirements during the period of sole parental responsibility
Attendance at children's activities
Each parent is to keep the other informed as to all sporting, religious, cultural and educational events involving or relating to the children and any invitations extended to either child such as children's birthday parties.
That each parent be entitled to attend all events involving the children including but not limited to:
(a)sporting fixtures;
(b)extra-curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation
and the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children's transportation to and from the event unless otherwise agreed upon between the parents.
Restraints and requirements
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either of the children and that he will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either of the children.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either of the children and that she will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either of the children.
Within 28 days of the date of these orders each party is to do all acts and things necessary to enrol in a parenting after separation course run through Unifam or equivalent service provider.
Communication between the parents
That the Father shall ensure the Mother is kept informed of the following matters as soon as is reasonably practicable:
(a)any medical problems or illness suffered by the children, whilst in his care;
(b)any medication that has been prescribed for the children whilst they are in his care;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)any social, school or religious functions which the children are to attend;
(e)his residential address;
(f)a contact telephone number;
(g)any other matter relevant to the welfare of the children.
That the Mother shall ensure the Father is kept informed of the following matters as soon as is reasonably practicable:
(a)any medical problems or illness suffered by the children, whilst in her care;
(b)any medication that has been prescribed for the children whilst they are in her care;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)any social, school or religious functions which the children are to attend;
(e)her residential address;
(f)a contact telephone number;
(g)any other matter relevant to the welfare of the children.
Dispute resolution
In the event the parents cannot reach a joint decisions about:
(a)a major long-term issue involving the children following the commencement of the period during which they hold equal shared parental responsibility; or
(b)the interpretation, implementation or enforcement of these orders in relation to issues involving the children
each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act unless the person so authorised declines to provide such a service.
Before an application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties, each of the parents is to:
(a)do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act; and
(b)participate in Family Dispute Resolution with a person authorised under the Family Law Act
Unless the organisation recognised or person so authorised declines to provide such a service.
NOTATIONS:
A.The Court notes that in the event the Father's work commitments preclude him from spending time with either or both of the children he intends to request the Mother care for the children as a first option.
B.The Court notes the Father's intention to move to (omitted) and thereby make the time with arrangements more practicable in the future.
The Order made on 20 November 2012 placing the children X (born (omitted) 2009) and Y (born (omitted) 2010) on the Airport Watch List be discharged.
The ICL’s application for costs is refused.
IT IS NOTED that publication of this judgment under the pseudonym Long & Long is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4450 of 2012
| MR LONG |
Applicant
And
| MS LONG |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was heard by me over two of the scheduled three days in late June [2014] whilst sitting in Parramatta. On the day following the conclusion of the trial I delivered extensive oral reasons for the orders that were then pronounced. I also reserved the Court’s position to revise the reasons in the event that written reasons were required.
Unfortunately, the Mother did not attend the delivery of reasons and the making of orders. Her solicitor attended by telephone. The self-represented Father attended, as did the Independent Children’s Lawyer (“the ICL”). Upon the Orders being made, written reasons were then requested. What follows are those reasons, as revised from the transcript.
This parenting matter concerns three discrete issues that involve two young girls, X aged five and Y aged three and a half. Their parents were married for some nine years or thereabouts.
Early in the trial, the Father conceded that he would not press his application for a change of residence for the children. In my view, contrary to the submissions made by Counsel for the Mother, this showed insight. It is not to the point that such a concession was made at the outset of the trial. Whenever it comes, insight is to be welcomed. It is clearly better than no insight or, worse, intransigence.
The three issues for determination are (a) parental responsibility, (b) the duration and frequency of the children’s time with their Father, and (c) the duration and frequency of the Mother’s visits to her family in (country omitted). The orders sought by the parties and by the ICL in their revised form in the light of the submissions articulated by Counsel for the ICL at the conclusion of the trial are set out later in these reasons.
It should be recorded promptly here, as I did in the course of the hearing, that the breakdown of the parties’ relationship continues to cause them understandable and still very obvious pain, if not unremitting grief. It was palpable in the course of the hearing. The nature and volume of detail in the affidavits filed could also reasonably be said to manifest the ongoing anguish and unhappiness of all involved. One hesitates to attribute other emotional and psychological distress, such as guilt and striving to give a coherent account of the cause or causes of the breakdown and its continuing effects.
In this regard, both parties should take some comfort from the assessment provided by the Part 15 expert, Dr S, whose report became exhibit B, who found there was essentially nothing untoward in the psychological profile of either of them. Indeed, it is important to set out those parts of Dr S’s report that deal with the summary and psychological profile of the parents, as well as her recommendations. They too are found later in these reasons.
I would also suggest – it is not a Court order – that both parties seek out assistance for themselves both for support generally and to assist in dealing with the continuing angst from their broken relationship. They are both still young and have a significant future which doubtless can and will be fulfilling with their children, as well as in their chosen professional pursuits. As painful as the present time is, time too will allow various forms of healing to take place provided they give each other and themselves reasonable opportunity to seek salve and support.
Grief and pain, in their many forms, provide a very dark and difficult prism through which parents struggle to see history, the present and the future with proper clarity. In my view, this pall or fog of heartache and distress continues to inform the parties’ accounts of (a) the history of their relationship and (b) the perception of what is and what is not in the best interests of their children.
I should also record here the submission by the Mother’s Counsel to the effect that this was a very unusual case because there are no issues in relation to drugs, alcohol or allegations of abuse or violence involving the children. In general terms, I agree with this submission. It is relevant generally for context not least because, as I have already noted, the issues for determination are very discrete, and extraordinarily narrow, particularly when compared to many (if not most) of the cases that come before the Court.
By way of general reference in making parenting orders, however discrete their scope or compass, the Court must have regard to the best interests of the children in accordance with section 60CA of the Family Law Act 1975 (“the Act”), and have regard, to the degree that they are applicable to the facts of each case, the legislative scaffold in Part VII of the Act.
These reasons proceed in the following order: (a) orders sought; (b) outline of jurisprudential principle; (c) summary of evidence; (d) summary of views of expert (Dr S); (e) consideration and resolution.
Orders Sought
The Applicant Father sought orders in the following terms:
1. That the children X born (omitted) 2009 and Y born (omitted) 2010 live with the father.
2. That the children’s names remain on the Airport Watch.
3. That commencing on the weekend immediately after the making of these Orders, the children spend time with the mother from 5pm Friday until 8am Monday; and each weekend thereafter during school terms once X commences school.
4. That for the purposes of handover, the father shall deliver the children to the mother at the commencement of her time with the children, and the mother shall return the children at the conclusion of her time with the children, to the father’s residence in Sydney.
5. That prior to X commencing school, the mother shall be at liberty to spend extended periods of time with the children, to a maximum of 5 days in each block period, on two occasions each year, with the mother to notify the father in writing 28 days prior to exercising such contact.
6. That upon X commencing school, the children shall spend time with the Mother, for one week of all school holiday periods, with the mother to notify the father in writing 28 days prior to the commencement of each holiday period as to which week she shall spend with the children.
7. That the children spend time with the mother on these other occasions;
a) from 2pm on Christmas Day until 2pm on Boxing Day.
b) from 3.00pm until 6.00pm on the children’s birthdays, unless otherwise agreed.
8. That the children communicate with both parents by telephone at any reasonable time, such communication to be initiated by either the child or the parent.
9. That each party will notify the other party of any change to his or her residential address and/or telephone contact details within 48 hours of such change taking place.
10. That each party will notify the other party as soon as practicable of any serious illness, injury or medical emergency in respect of the children.
11. That each party shall consult the other concerning current and future schooling and education and any changes to the children’s schooling not be made without the prior written consent of the other party.
The Respondent Mother sought the following orders (with original formatting and other matters as set out in the Mother’s ‘Further Amended Response to Initiating Application’ filed 2 June 2014):
1. That the children of the relationship, namely X born (omitted) 2009 and Y born (omitted) 2010 live with the mother.
2. That the mother have sole parental responsibility for the children.
3. The children spend time with the Father:
3.1. until X commences school:
3.1.1.from 9.00am Sunday to 3.00pm Monday in each alternative week;
3.1.2.From 9.00am until 3.00pm on each other Monday;
3.1.3.That the mother be at liberty to take the children to (country omitted) for a period of up to three (3) weeks upon her providing travel details/itinerary to the Father; and
3.2. After X commences school:
During School term
3.2.1.On alternate weekends from 4.00pm Saturday until 9.00am Monday; and
3.2.2.On each other Monday, from after school until 6.00pm;
During School vacation
3.2.3.During X’s first year of school, for a block period of four (4) days in each of the school holidays, at the end of the school terms 1, 2 and 3 and as agreed and failing agreement, during the first week;
3.2.4.Week about during the December 2015 to January 2016 school holiday period with the mother to be at liberty to take the children to (country omitted) for a period of up to two (2) weeks upon giving the Father not less than two (2) weeks prior notice and the Father’s time to be suspended during the period the children travel to (country omitted);
From the start of the 2016 School Year
3.2.5.For one (1) week during each of the school holidays at the end of terms 1, 2 and 3, as agreed and, failing agreement, for the first half in even years and the second half in odd years;
3.2.6.For one half of each Christmas School vacation;
3.2.7.That the mother be at liberty to take the children to (country omitted) for a period of up to two (2) weeks in one of the school holidays at the end of term 1, 2 or 3;
3.2.8.That the mother be at liberty to take the children to (country omitted) for a period of up to three (3) weeks during each of the Christmas school holiday periods;
3.3. That the children’s time with the Father be suspended during any period the children travel to (country omitted) with the Mother.
4. Changeovers
4.1. When the father’s time commences or concludes on a school day, changeovers to be at the children’s school at (omitted).
4.2. On Saturdays, Sundays or during school holidays the changeovers be at (omitted) unless it is inclement weather, in which event, at (omitted) Shopping Centre; and
5. That the children have telephone communication with the non-resident parent each Thursday between 6.00pm and 7.00pm with the non-resident parent to initiate the call to the telephone number provided by the resident parent and for the resident parent to make the children available to speak to the other parent.
6. The parties do all acts and things necessary to cause the children to be enrolled at (omitted) School.
7. That the parties be at liberty to attend occasions relating to the welfare, education, religious education, sporting activities or other significant event in relation to the welfare of the children where it is reasonably to be expected that neither or both parents would be in attendance.
8. That each parent keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the children are from time to time involved (or which relate to activities of the children although they might not be involved, for example parent/teacher interviews) and any invitations extended to any of the children for events such as children’s birthday parties.
9. That these Orders be sufficient authority for any medical or other professional treating or involved with the children to provide to the parties at their urgent request any information that a parent would normally be provided within the normal course of events and to enable both parties to communicate directly with any treating professional in relation to the children.
10. That each parent at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the children and the identity of the treating professionals.
11. That each parent shall inform the other, as soon as it is practicable to do so, if either child becomes ill or injured or requires admission to a hospital.
12. That neither party shall speak of the other in a negative manner in the presence or hearing of the children or permit any other person to do so and shall remove the children from the presence of any other person doing so.
13. That each party keep the other informed at all times of his or her current address and telephone number.
Outline of Principle
Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”.
Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[1] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[1] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[2]
[2] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that 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 quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Summary of Evidence
In relation to the evidence, I note the following by way of summary only. I recall again that the focus of the evidence was necessarily very narrow in the light of the extremely limited range of issues before the Court.
First, the parties gave their evidence as frankly as circumstances allowed. I do not accept the submission put many times to the Father that (a) his evidence showed that he was very difficult to deal with or (b) his invariable modus operandi was that during the relationship and perhaps since it was ‘his way or nothing else’. Difference, for example in parenting styles or even in daily living, is not of itself opposition or, worse, defiance or antagonism to the other parents. Difference is simply difference.
Secondly, I accept that, from the Mother’s perspective, during the relationship and perhaps to some degree since separation, she perceives and sometimes experiences the Father as difficult to deal with. At the same time, as noted by Counsel for the ICL, the Mother confirmed that with the use of SMS and email, she now has time to pause in her deliberations before responding to the Father in relation to any parenting matter; this assists her.
Thirdly, I also accept the submission from Counsel for the ICL that the reality is that for the next little while, absent any emergency, the major decisions regarding parenting matters have actually been agreed between the parties. Those decisions relate to the girls’ schooling and whether they should be immunised.
Fourthly, I accept, as recorded by Dr S, that the girls have a good and close relationship with both parents. Likewise, I accept that both parents love and care for the children intensely. The contested issues, fundamentally, concern the parental relationship, not the children.
Fifthly, notwithstanding submissions to the contrary on behalf of the Mother regarding (a) the Father’s obstructionism, as well as (b) his control of finances and the like during the latter part of the relationship, such as the timing of his consent or agreement in providing the Mother with further funds to the tune of $60,000 only in more recent days (this was – I was assured by Counsel for the Mother – effectively a payment akin to a Strahan order), in my view, such matters were more finely balanced, or should be perceived or understood in a more nuanced way. Indeed, while I accept, as I have said, that the Mother’s perception of the Father’s behaviour was difficult or controlling in the latter part of the marriage, it was and remains in my view very much a matter of perception. Whatever the history, I have little doubt that in time and with further assistance the Mother’s independence and self-confidence will continue to return and ultimately flourish.
It is not uncommon that, in a relationship that once was one of mutual support and care, upon its breaking up – perhaps especially if the rupture is in fact, as it was here, a slow gradual corrosion of trust and cooperation – it will be perceived by one or both parties as antagonistic and controlling. Such was and is the case here.
It might also be noted as little more than an aside and without further comment that at trial the Father was self-represented while the Mother had a legal team of three. Whether she was paying for all of them, of course, the Court cannot and does not know. The juxtaposition was curious, particularly in the light of (a) the unusually large size of the Mother’s legal team and (b) the questioning of the Father, based on documents from the CSA, about him seeking to have the CSA take into account not insignificant sums provided to the Mother by her parents.
In noting these things, I make no formal criticism or accusation against anyone. It might also be noted that I do not accept the further submission on behalf of the Mother that the Father was disingenuous about his knowledge and/or understanding of either orders or demands and requests, particularly when he was legally represented.
In addition to the Father explaining, for example, that he would get a call from his solicitor asking for instructions as to whether or not he would consent to the watch list order being removed, without more information from the solicitor, the submission that the Father was disingenuous has a number of problems.
First, to rely, as the Mother’s Counsel did, on a selection of correspondence between the parties’ solicitors, exhibit A, is by definition selective. It may also be quite out of context. The Court does not know the circumstances surrounding the correspondence and in such circumstances it would be, in my view, dangerous for the Court to draw any inference one way or the other.
Secondly, properly to explore the Father’s understanding of orders and the like would have been challenging; so too would it have been problematic to seek to go behind the legal professional privilege that applies to the advice given to the Father by his former legal representatives. Such would not have been permitted, absent the waiving of privilege. The detail of his legal advice, or generally that he had received such, was not canvassed with the Father. There is some circularity of argument in this regard.
In any event, the Father’s understanding of orders at any one time was canvassed with him. Generally, I accept the Father’s evidence that he did not properly or fully understand the import of what was being asked of him at the hearing in relation to his earlier understanding of orders then in place and, likewise, when instructions were earlier sought. I accept his evidence that he was not always, or at all, apprised of the legal detail or significance of what was happening and what the legal import was of what he was being asked to provide instructions about.
While the Court may assume that the Father was properly advised in general terms, as a matter of evidence, as I have just said, I accept that the Father was not fully or always apprised of the effect or import of the legal events and/or processes then in train. I should note here that in any event I do not think anything much turns on it for the purposes of the issues before the Court.
Evidence of Dr S
In relation to the Mother, at par.30 of her Report, Dr S said:
Mrs. Long offered that she was treated in hospital over about a one week period in or around July 2012, although the cause of her illness at the time is unclear. Specifically, Mrs. Long complained of being seriously unwell, including suffering with a very high fever, ‘rattles’ in her lungs, thrush in her mouth, ear and bladder infections and tachycardia. Moreover, her liver and kidney functions were apparently ‘deranged’ and her blood pressure was unstable. Mrs. Long believes that she suffered with a ‘physical breakdown’, as well as being ‘on the edge of a nervous breakdown’, which she attributed to the stress and fatigue she was experiencing in the context of marital difficulties. Mrs. Long reported that she was treated with rest, antibiotics and fluid replacement. She was apparently unwell overall for several months and even though she has recovered considerably since then, Mrs. Long still does not feel she is ‘100% yet’.
Then at par.37 of the same Report, Dr S noted:
Mrs. Long believes that she suffered with an ‘anxiety attack’ on the night after she left her marriage. Specifically, she complained of feeling a ‘terrible knot in the pit of (her) stomach’, as well as feeling ‘really stressed’, ‘a bit panicky’ short of breath and tearful. This happened only once apparently and Mrs. Long denied any persistent symptoms of anxiety or indeed, any other mental health condition or form of psychopathology.
Generally in relation to her current circumstances (broadly defined), Dr S noted (Report, par.42):
Mrs. Long acknowledged that it was quite difficult for her socially after the breakdown of the marriage, as she was not living in her home country and she moved away from the community in which she had lived with Mr. Long. However, Mrs. Long claimed to be living in a ‘really lovely environment’, within a strong faith community, where she has made friends and enjoys the support of others. Moreover, Mrs. Long believes that this has been good for her because she has had to do this independently, which has challenged her confidence, self-esteem and assertiveness skills.
Then at par.48, she recorded:
As a result of the aforementioned difficulties and Mr. Long’s apparent unwillingness to work on the marriage, Mrs. Long described how she felt like ‘a hamster in a box’ and the marriage became increasingly untenable for her. After Mrs. Long was discharged from hospital with the aforementioned unexplained illness, she returned home to (country omitted) to recuperate for a period of about two months. Mrs. Long acknowledged that she had promised her husband that she would return to Australia but she did so still ‘undecided’ about the future of the marriage.
Still in relation to her general effect now, par.50 of the Report records:
Mrs. Long suggested that since leaving her marriage, she has ‘gone from strength to strength’ and she is reportedly ‘much happier’, more self-confident and she feels like a stronger person without Mr. Long’s influence. Further to this, Mrs. Long commented that having some geographical distance from Mr. Long has also assisted her. She maintains communication via text message with Mr. Long in relation to the children but Mrs. Long noted that she finds face-to-face or phone conversations with her estranged husband ‘too intimidating’, albeit less so over time.
In relation to parenting, Dr S said (at par.56):
Mrs. Long demonstrated a satisfactory understanding of the roles and responsibilities of parenthood. Specifically, she identified that as a mother, she is responsible for the care and nurture of her children, as well as giving them ‘an opportunity to flourish’ by developing their confidence, resilience, talents, and knowledge. She also made comment about the importance of providing the children with a safe and positive home environment. Mrs. Long was able to describe her average daily routine, which was appropriate and child focussed, in addition to being sensitive to the girls’ needs and stages of development. Further to this, the routine she described balances the children’s need for stimulation, play, learning, rest time and participation in household activities. In addition, as noted above, Mrs. Long enjoys having routine, although she acknowledged the need to be flexible in this as well.
In relation to parenting and living situation generally, Dr S recorded (at pars.59-61)
59. Mrs. Long reported that she is happy for Mr. Long to have contact with the children, although she wants for him to be ‘consistent’ with the children and she does not want ‘any sudden transitions’ with respect to the visitation arrangements, so as to minimise any difficulties for the children. Mrs. Long added that she has resisted overnight contacts up until now due to the children’s ages but she acknowledged that overnight contact should occur at some point. Ideally, she claimed that she would like the children to remain in her residence and to have contact with their father on alternate weekends after Mr. Long's (employer omitted) responsibilities have concluded, in addition to building up over time so that the girls spend half the school holidays with their father, as well as his birthday, special occasions and the like. Mrs. Long added that phone contact between Mr. Long and the girls is also important.
60. Mrs. Long stated that she wants sole parental responsibility for X and Y and she attributed this to concerns about Mr. Long’s inflexibility and resistance to negotiating with her. Mrs. Long added that she is opposed to a shared care arrangement because of Mr. Long’s history of limited involvement with the children and in domestic responsibilities. In addition, she believes that her relationship with Mr. Long is not amicable enough for the pair to be able to communicate effectively in relation to the children and Mrs. Long also expressed concern about Mr. Long’s lazy and isolated nature generally, which she believes will limit the activities that he engages in with the children. Further to this, Mrs. Long complained that Mr. Long has been inflexible with her since separating and he apparently refuses to negotiate around the children, which will make ongoing co-parenting very difficult.
61. Mrs. Long would like to stay in (omitted) and she claimed that both she and the girls are settled in their current residence. Mrs. Long’s employment is stable, the children reportedly enjoy their day care and Mrs. Long has a great deal of support from her local faith community, in which she is an active member.
Finally, at par.73 of her Report, Dr S said:
Mrs. Long impresses as a dedicated and caring mother, who is committed to her children, as well as being aware of her parenting role and responsibilities and her children’s developmental needs. She claims to have been the children’s primary caregiver throughout their lives and she described having appropriate routines for the children, as well as possessing sound parenting skills.
In relation to the Father, Dr S noted the following.
First, at par.86, the expert noted:
Mr. Long has been a (occupation omitted) for approximately 15 years now and he has served in three different (omitted) regions during that time, although this apparently involves (employment omitted). Mr. Long has been in his current role for the last five years and he described a strong investment in and commitment to his work, which has apparently been his ‘only stability’ since the breakdown of his marriage. Mr. Long added that he has reasonable stability in his employment generally and in his current (employer omitted) particularly and he can expect to remain in this (employer omitted) for the foreseeable future. He acknowledged that his work can be stressful at times but Mr. Long enjoys it and has no plans to change either his current work location or his career generally. This is especially the case as his work is very flexible and this will allow Mr. Long to be available to his children if they were able to spend more time in his care.
Then on more specific matters, at par.95, Dr S observed:
Given Mrs. Long’s claims of her estranged husband’s excessive gaming and internet use, I questioned Mr. Long about his use of the internet to this end. Mr. Long acknowledged being a long-term user of the Internet, especially for gaming and although he described periods when he was perhaps over-invested in such activity, he denied any dependence or obsession with the internet and abjectly denied spending up to nine hours a day on this activity, as asserted by Mrs. Long. Mr. Long stated that there have been times when he has played online games more regularly and at other times, he has not played at all. Ideally, Mr. Long commented that he would like to play online games about once per week but at most, he has played these games on five nights per week, with up to a maximum of four hours. Mr. Long added that he does not use the internet for social reasons and rather, online gaming is a means of him ‘looking to kill (his) mind’. Mr. Long acknowledged that his online gaming activities caused problems in his marriage and although Mr. Long denied any addiction in terms of his online gaming, it certainly seems as if this activity has had a self-medicative component in that he played online games previously to avoid his wife and more recently, he has returned to gaming again after hearing of his mother’s terminal illness.
In relation to the marital relationship, Dr S recorded (at par.98):
According to his account, Mr. Long noticed a ‘big change’ after the couple was married, whereby he described Mrs. Long becoming increasingly volatile and angry, as well as being overly tearful and emotionally changeable. To this end, he commented that she always seemed to be angry or upset. Within this context, Mr. Long stated that he could not work out what was wrong with his wife or how to make her happy and he acknowledged that he dealt with this by withdrawing from Mrs. Long further both emotionally and physically. Mr. Long added that he felt physically sick around his wife and avoided spending time with her as much as possible. He acknowledged that Mrs. Long suggested that they attend counselling to work on the relationship but Mr. Long stated that he did not want to do this, which he attributed to a general reluctance to talk to someone about personal matters, including a resistance to telling someone else ‘what (he) thought of (his) wife’. Specifically, Mr. Long disclosed that he thought something was wrong with Mrs. Long’s mental health and he was seemingly somewhat embarrassed about this.
In relation to parenting, Dr S said (at par.103):
Mr. Long demonstrated a sound understanding of the roles and responsibilities of parenthood. Specifically, he explained that in addition to nurturing his children, a parent should provide security and love, as well as meeting the children’s needs and stimulating their development. Further to this, Mr. Long offered that he considers that it is important for him to provide ‘a balance’ for the children in contrast to Mrs. Long, such that he needs to provide the children with an opportunity to learn ‘gentleness’, as he does not consider their mother to be gentle as a parent.
Still in relation to parenting specifically, Dr S noted (at par.106):
Mr. Long has been separated from his wife and children for about 18 months now and he was not the children’s primary caregiver prior to that time. Therefore, his understanding of an appropriate routine for the children is somewhat hypothetical. However, he described his understanding of such a routine and this was generally appropriate, albeit slightly “busy’ for such young children. Mr. Long spoke of fondness of the life his children had when the family were living together and they were living in Sydney and he was tearful and visibly upset in describing his distress that Mrs. Long removed the children from ‘everything good’ by moving away. Mr. Long added that it is difficult for him to be apart from the children and separation times (at the ends of visits) are apparently distressing for both him and the children, although this was no so evident on the occasion of my observation for the present assessment.
In relation to the Father’s proposals (excepting primary residence for the children which, as already noted, changed at the outset of the hearing, thereby obviating the need to consider Dr S’s comments in this regard), the following was noted (par.112):
Mr. Long acknowledged that Mrs. Long was the children’s primary caregiver but he claimed that this was in the context of her not working and him being employed on a full-time basis, even though much of his work occurred from the family home. Even so, Mr. Long believes that he will be able to provide for the children’s needs adequately and he would be willing to adjust his lifestyle, including his work commitments, accordingly.
In relation to more particular comments and observations of Dr S in relation to the Mother and the children, at pars.144 & 145, she noted:
I make the following comments based on the observation of the contact between Y, X and their mother:
· The children played actively with their mother and the games they played were age-appropriate,
· Y and X appeared to be comfortable both with each other and with their mother,
· Mrs. Long was able to balance the demands of both children well, even when both of them sought her attention,
· The children and Mrs. Long were more focussed on each other rather than me,
· Both children sought physical proximity to their mother at times and Mrs. Long responded to this,
· The children asked their mother questions during play to which she responded appropriately,
· Mrs. Long sought to engage the children’s interests but she also responded to their direction in play,
· Mrs. Long was able to settle the children and assist them in maintaining their focus,
· Y played more actively than X and was also generally more talkative and more distractible,
· Mrs. Long sat on the floor to play with the girls,
· Mrs. Long asked the children questions to engage their interests and encourage their learning,
· Mrs. Long praised the children well and was able to set limits on the children as needed,
· Y tantrummed at one point when she wanted her own way and Mrs. Long intervened in this situation appropriately prompting Y calmly to ‘use (her) sweet words’,
· Mrs. Long encouraged the children to play together,
· Mrs. Long recognised when Y was tired,
· Y was easily calmed and redirected by her mother,
· Y was more demanding of her mother’s attention when compared to X but this was age-appropriate,
· Mrs. Long did not set active or specific limits on the children,
· The children were respectful of their mother,
· Mrs. Long was able to prioritise between the children as needed,
· The children tended to parallel play, which is age-appropriate and both demonstrated that they could play independently for brief periods of time,
· Mrs. Long encouraged the children to be gentle in their play,
· Y took her direction from X.
145. In sum, the observation of contact between Mrs. Long and the children was unremarkable in the sense that all parties appeared comfortable with one another and interacted in a light hearted and comfortable manner, demonstrating what is an obvious bond between mother and her daughters. Further to this, the observation demonstrated that Mrs. Long has sound parenting and child management skills and that the attachments between Mrs. Long and her children is secure and such that the children are responsive and respectful to their mother.
In relation to the children’s time with their Father, Dr S said (pars.146 & 147):
The children expressed their joy at being able to spend time with their father during the assessment. There was no distress at separation from their mother and the children willingly and excitedly went to spend time with their father. The following observations are based on this contact:
· Mr. Long did not attend the contact visit prepared with any food or activities,
· The children ran excitedly to see their father but only X ran to her father for a hug, whilst Y ran to show her father some toys,
· Both children were animated in talking to their father and sharing with him what they had been playing,
· Both children sought some proximity with their father, for example by sitting on his lap,
· Mr. Long engaged immediately in play with his daughters and showed an interest in what they were doing,
· Mr. Long directed the children’s play more than Mrs. Long,
· Mr. Long referred to his daughters with the terms of endearment ‘sweetie’ and ‘beautiful’,
· Mr. Long encouraged the children to tidy up after they finished playing with something,
· Y tripped at one point and Mr. Long did not notice,
· The interactions were generally fun, light-hearted and involving laughter and the parties seemed more focussed on one another than me observing,
· The interactions between Mr. Long and his children were age-appropriate,
· Y light-heartedly hit her father in play and Mr. Long did not set limits on this,
· The play between Mr. Long and the children was more physical than with Mrs. Long,
· Both children vied for their father’s attention,
· Mr. Long capitalised on opportunities to teach his children things,
· Mr. Long encouraged the children in turn-taking,
· Mr. Long was somewhat mindful of risks around the office space,
· Mr. Long was particularly child focussed and I note that his communication was generally calm and measured,
· The children responded to their father’s direction but not as quickly as with Mrs. Long,
· Mr. Long responded appropriately to questions his children asked of him,
· The girls showed Mr. Long their new shoes and he praised Mrs. Long in front of the children for always dressing the children in a lovely manner,
· Mr. Long discouraged Y from snatching from X,
· Mr. Long’s attention seemed to be fairly divided between the children,
· Mr. Long recognised Y’s fatigue,
· The children asked if they could go home with their father (they usually attend his house on Wednesdays, which was the day of the assessment) and Y asked if Mr. Long would be sad that they could not go with him. Mr. Long responded by saying that he always misses his children,
· Mr. Long acknowledged that it was Mrs. Long’s birthday to the children and he encouraged them to say happy birthday to their mother,
· Mr. Long responded to Y’s need to attend the toilet,
· There was no distress or discomfort when the visit came to an end and I note that X went to her father for a hug but Y merely said goodbye to her father and walked out of the room to her mother.
147. Observation of the contact between Mr. Long and his daughters indicate that there is a clear bond, where the children feel comfortable and are able to interact with their father in a fun and light-hearted manner. Mr. Long demonstrated ostensibly sound parenting skills, although I note that the play with the children was more physical and directed than with Mrs. Long and the children were also slower to respond to their father’s direction. The bond appears to be closer between X and Mr. Long but this is understandable given how young Y was when the relationship between her parents ended. Overall, there were no areas of notable concern in the observation.
Dr S ultimately recommended, at par.157 of her report, the following:
I make the following recommendations and these are based on the assumption that Mrs. Long remains living in (omitted) with her well established lifestyle and community relationships:
· That X and Y’s primary residence remain with Mrs. Long,
· That the children spend every second weekend with their father from Saturday afternoons after his work responsibilities are completed until Sunday evening so that the children are home the evening before school (as they will be attending school in the future),
· That the children spend periods of up to three days, including two overnight stays with their father during any holiday periods, such as Christmas, Easter etc, building up to half of all school holidays as they age. Any blocks of overnight stays longer than this should not occur until the children are older and able to handle a longer separation from their mother, say at age seven,
· That the children spend Father’s Days and Mr. Long’s birthday with their father, as well as half of Christmas Day and Easter. This contact should occur at an area near where the children live in (omitted), as it will too far to drive for the children to only spend several hours,
· That the responsibility for the day-to-day decisions about the children’s wellbeing be discharged by Mrs. Long but that responsibility for significant decisions, such as that pertaining to medical care and education, be shared between Mr. and Mrs. Long,
· That both parties refrain from denigrating one another in the presence of the children,
· That both Mr. and Mrs. Long have telephone contact with the children when they are not in their care.
Dr S was not required for cross-examination. Having regard to this fact and given the very narrow range of issues to be determined, in general terms I have no issue with any of the comments or recommendations made by Dr S.
Consideration & Disposition
I turn specifically to the issues and the submissions. In doing so, I should be taken to follow the legislative scaffold sequentially (primarily in s.60CC(3)) by way of reference point without necessarily naming each sub-paragraph. I make no criticism, formal or otherwise, that no one appearing before the Court referred to any relevant part of Part VII of the Act. Doubtless, this was because of the narrow confines of the issues at hand.
At the outset here I note one curious aspect of the submissions on behalf of the Mother. On the one hand (and as noted earlier in these reasons) her Counsel went to not insignificant lengths to note that the case was unusual and rightly so because there were no issues relating to drugs, alcohol or family violence which are otherwise basic staples of many, if not most, cases that come before trial courts such as this.
At the same time, Counsel also submitted that because of (a) certain attitudes, (b) correspondence between the parties and other matters, and (c) in view of the definition in section 4AB of the Act – although there was no specific reference to the relevant section – there in fact was family violence that the Court should take into account in framing the orders that are in the best interests of the children. The logical inconsistency between the submissions is patent. Moreover, Counsel for the ICL said nothing about family violence in her submissions to support the Mother’s submissions in this regard.
I accept the necessary inference from the ICL’s submissions that, in the light of the Court’s findings in relation to the evidence generally, the definition of family violence has no application here. Concern on the part of the Mother as a matter of history – yes; family violence, respectfully – no.
In sum, it is not appropriate to make a submission that there was/is no family violence in the matter and then proceed to make a contradictory submission that there was/is such family violence relevant to the proceedings.
It properly falls to the Court to have regard to part VII of the Act. Thus in relation to the considerations in s.60CC(3), I note and find – summarily - the following.
First, given their ages, any views expressed by the children must be given appropriate weight. Given their ages, it might best be the case that their views are no more than indicative, at one level, of their desire to continue to live with their primary carer, their Mother, about which there is no dispute that she has been their primary carer, as well as their genuine desire to continue to spend regular time with their Father.[3]
[3] Generally, see the comments by Dr S about the children and their views at pars.124-135 of her Report.
The Court can and should, in my view, also infer that such indications confirm that there are no untoward matters as viewed by the children that would militate against the Father having regular time with them. It is only really matters of logistics in relation to “time with”, such as “how much”, “frequency” and “when.”
Secondly, as I have said and as Dr S noted, the children have a good and close relationship with their parents. It would also seem undisputed that the girls have a good and close relationship with extended families of both parents.
Fortunately, it was agreed at trial that the Father could take the children to visit their paternal Grandmother in Queensland who is not well. As it was supported that the girls could and should visit their Mother’s extended family in (country omitted), again, matters of logistics are the sticking points. It may also be properly or reasonably inferred that the children have good and close relationships with their Grandparents generally.
I do not understand the evidence to support any contention that either parent has not or will not fulfil their parental obligations to the children. Indeed, although there remains mistrust between the parents, the Father acknowledged that he trusted the Mother properly to care and provide for the girls. These matters also relate to subparagraphs (f), (g) and (i) of s.60CC(3).
The matters contemplated by subparagraphs (d), (e) and (f) of the same section (obviously with some overlap to subparagraphs and other parts of Part VII to which I have already referred), particularly in relation to matters of distance, practical difficulty and the like, are of no major moment here given that (a) the parties currently live approximately one hour apart; (b) the Father has been spending regular time with the girls, in any event, without much difficulty; and (c) the Father has confirmed that he intends selling the former marital residence with a view to moving closer to the girls which will facilitate even further his capacity to be engaged and involved in the girls’ schooling.
By way of summary and conclusion, in terms of the submissions, I should be taken generally to accept the submissions of Counsel for the ICL. In relation to each of the particular issues for determination, I note the following.
First, regarding parental responsibility, the ICL said in oral submissions that an order for equal shared parental responsibility should be made. I inquired of all if the Court had power to make an order initially for sole parental responsibility as sought by the Mother but for it to change at a specific period of time later to equal shared parental responsibility.
Counsel for both the Mother and Counsel for the ICL said that there was no jurisdictional impediment to such a course. In the revised version of the ICL’s orders, perhaps rather curiously in the light of his Counsel’s submission at the conclusion of the trial, the ICL sought an order for sole parent responsibility for the Mother for a period of two years at the expiration of which there should be an order for equal shared parental responsibility.
On the Court’s view of the evidence, there should be an order for sole parental responsibility in the Mother’s favour but for a shorter period of time and with very clear additional orders for consultation with the Father at all times. The period for such orders, before it reverts to equal shared responsibility, shall be 18 months. In my view, this will be more than sufficient time for the Mother to undertake any further remedial course, counselling or other assistance that she feels is required to help her recover from the failed marriage. Such an order precludes the necessity to consider section 65DAA. In any event, for reasons already given, in my view the orders to be made otherwise satisfy the terms of 65DAA(2) and (3) that relate to substantial and significant time.
I accept in making such an order that the Father will likely feel aggrieved. I understand such a perception. However, in making such an order, again, the primary touchstone is and must be the best interests of the children. It should certainly not be taken as any slight against the Father. I have no doubt that both parents seek the best interests of the children and these best interest considerations should, I suggest (in accordance with authority) be seen in a longer term perspective rather than just in terms of the next 18 months or so.
Finally, in relation to the remaining two issues of travel to (country omitted) and the girls’ time with the Father, I accept the submissions by the ICL. I agree with the minute of orders provided by the ICL in the light of those submissions in relation to these matters. Orders in accordance with that Minute will be made.
Finally, I note the ICL’s application for an order for costs. I do not propose to make any order for costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 23 August 2016
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