Lynwood and Lynwood
[2019] FamCA 313
•17 May 2019
FAMILY COURT OF AUSTRALIA
| LYNWOOD & LYNWOOD | [2019] FamCA 313 |
| FAMILY LAW – CHILDREN – Parenting orders – Where the court satisfied the children would benefit from a meaningful relationship with both parents – Where the children are content with the current arrangements – Where the court considers the mother’s and Independent Children’s Lawyer’s proposal for living arrangements as being in the children’s best interests – Where the court not satisfied the parties could discharge their obligations under s 65DAC if there was an order for equal shared parental responsibility – Where based on the findings of a Magistrate, the court is satisfied that both parties engaged in family violence towards each other – Where presumption of equal shared parental responsibility therefore does not apply – Order for sole parental responsibility with an obligation to consult. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZX Evidence Act 1995 (Cth) ss 140 |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 K v R (1997) 22 FamLR 592 Bloomberg & Rod [2010] FamCAFC 112 T v N [2001] FMCAfam 222 |
| APPLICANT: | Ms Lynwood |
| RESPONDENT: | Mr Lynwood |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 296 | of | 2016 |
| DATE DELIVERED: | 17 May 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 29 and 30 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams |
| SOLICITORS FOR THE APPLICANT: | Newman Family Law |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Susan Gray |
Orders
IT IS ORDERED ON A FINAL BASIS:
All previous orders are discharged.
Living Arrangements
The children X born … 2005 and Y … 2008 (‘the children’), shall live with the mother.
The children shall spend time with the father at all times as agreed between the parties in writing but failing agreement as follows:
a) During school terms, from after school on Friday (or from 3pm if Friday is a non-school day) until the commencement of school on Monday (or from 9am if Monday is non-school day) each alternate weekend, with the father to collect and deliver the children to and from their respective schools.
b) For the first half of the Easter school holidays in odd numbered years and the second half in even numbered years.
c) The whole of the September / October school holidays in odd numbered years and the whole of the June / July school holidays in even numbered years.
d) For the first 4 weeks during the Christmas school holidays in odd numbered years and the fifth and subsequent weeks in even numbered years, with changeover to take place at 5pm on the Sunday at the end of the fourth week.
e) Where the children are spending time with the mother during the Christmas school holidays in even numbered years and the children are in J Town, from 12pm on Christmas Day until 12pm on Boxing Day.
The children’s time spent with the father shall be suspended so that the children spend time with the mother:
a) For the second half of the Easter school holidays in odd numbered years and the first half in even numbered years.
b) The whole of the September / October school holidays in even numbered years and the whole of the June / July school holidays in odd numbered years.
c) For the first 4 weeks during the Christmas school holidays in even numbered years and the fifth and subsequent weeks in odd numbered years, with changeover to take place at 5pm on the Sunday at the end of the fourth week.
d) Where the children are spending time with the father during the Christmas school holidays in odd numbered years and the children are in J Town, from 12pm on Christmas Day until 12pm on Boxing Day.
School holidays are deemed to commence at the conclusion of school on the last day of school term for the child whose last day falls latest, and shall conclude at 5pm on the Sunday immediately preceding the new school term. For the Easter school holidays, the middle of the holiday period is deemed to be 1pm on the Saturday falling closest to the middle.
For the purposes of the father’s time with the children each alternate weekend resuming after a holiday period, those arrangements shall resume on the basis that where the father did not have the children in his care on the weekend prior to the start of the school holidays, he shall have the children spend time with him on the first weekend of the new school term, or vice versa.
Changeovers that do not take place at the children’s schools shall take place at McDonalds Suburb A.
Parental Responsibility
Save for decisions relating to the children’s names, or which might make the exercise of the father’s time with the children under these orders substantially more onerous, the mother has sole parental responsibility for the children, including but not limited to matters concerning:
a) Any medical or health matters concerning the children;
b) The children’s education;
c) Disciplinary matters other than of a trivial nature;
d) The children’s social development and sporting activities; and
e) The children’s religious upbringing.
In exercising sole parental responsibility for the children:
a) Before making any decision the mother shall first inform the father in writing of the decision that needs to be made.
b) Within 7 days (or sooner as the circumstances require) the father is at liberty to provide to the mother in writing his views on the decision to be made.
c) The mother will consider the father’s views in making the decision.
Overseas Travel & Passports
10.Both parents are at liberty to travel overseas with the children during periods that the children are in their respective care pursuant to these Orders, on condition that:
a) The travelling parent provides the other with 60 days written notice of the intention to travel;
b) At least 28 days prior to the intended travel, the travelling parent provides the other with:
i.A copy of the children’s return travel tickets and travel itinerary as provided by the travel service provider;
ii.Details of where the children will be staying during the period of travel; and
iii.Emergency contact telephone numbers for the period of travel.
11.In addition to Order 10 of these Orders, in the event of a medical emergency involving a member of the children’s extended family in Country K facing a life-threatening illness or death, the mother is permitted to travel with the children to Country K for the purposes of the children spending time with that family member or attending a funeral, conditional on the mother providing the father as soon as practicable prior to departure the same information as is required to be provided in accordance with Order 10.
12.Both parents are at liberty to apply for / renew the children’s Passports. The parent wishing to obtain the Passport shall provide the other with the necessary Passport application / renewal documents for the other parent to sign, which that other parent shall sign and return within 7 days. Where no response is received, the requesting parent is at liberty to apply for the Passport/s without the written consent of the other parent.
13.Where a parent has not signed a child’s passport application / renewal in accordance with Order 12 of these Orders, upon the requesting parent making application without the other parent’s written consent the children’s Passports (including Passport renewals) shall issue notwithstanding that the other parent has not signed the relevant application documents.
14.The children’s Passports shall be retained by the mother. Where the father travels with the children the Passports are to be returned to the mother at the time of the children returning to the mother’s care.
Telephone Communication
15.During school holiday periods, the parents shall facilitate the children communicating with the other parent by telephone, Facetime or Skype once per week at times to be agreed.
16.The parent having care of the children on their birthdays shall facilitate the children telephoning the other parent on their birthdays.
17.The parent having care of the children on the day of the other parent’s birthday shall facilitate the children telephoning the other parent on that day.
Other
18.Both parents shall forthwith enrol and attend the post separation parenting courses as provided by Relationships Australia and within 6 months provide to the other parent a copy of the Certificate of completion.
19.The mother shall continue to attend upon personal counselling as is recommended to her by her current counsellor and any subsequent counsellors.
20.The parties shall communicate with each other in relation to issues concerning the children via text message or email.
21.These Orders are Authority to the children’s schools and medical practitioners to provide to both parents any and all documents pertaining to the children that is ordinarily provided to parents.
22.Both parents shall inform each other as soon as practicable of any injury or illness to the children that requires hospitalisation or emergency medical treatment.
23.During the time that the children are with both parents, the parent having care of the children shall:
a) Not question the children about the personal life of the other parent;
b) Speak of the other parent respectfully; and
c) Not denigrate or insult the other parent or the other parent’s family members or friends in the presence of the children and remove the children from the presence of others who may be doing so.
24.Neither parent shall physically discipline the children or allow any other person to do so.
25.The Independent Children’s Lawyer is forthwith with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
26.Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lynwood & Lynwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC296/2016
| MS LYNWOOD |
Applicant
And
| MR LYNWOOD |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Although when Ms Lynwood (“the mother”) commenced these proceeding on 8 May 2018, the primary issue was whether she should be permitted to relocate the parties’ two children, X, presently 13 years of age and Y, presently 10 years of age (“the children”) back to Country K, in February 2019 she abandoned that claim, leaving the only issues of substance in dispute between the parties being the allocation of parental responsibility for the children, and their living arrangements.
For her part, the mother sought orders that she have sole parental responsibility for the children, who would live with her, but spend alternate weekends and one half of school holidays with Mr Lynwood (“the father”). For his part, the father sought orders for equal shared parental responsibility, and that the children live equally between the parties on a week-about basis.
The Independent Children's Lawyer supported the position of the mother, with some minor variations.
On 30 April 2019 the trial before me concluded, and I reserved my decision. This is that decision and the reasons for it.
BACKGROUND FACTS
The mother
The mother was born in Country K, in 1970, and hence is presently 48 years. Initially she lived on a farm, and whilst doing so, as a very young child, she was savagely attacked by a dog just prior to her second birthday. It is said that something like 200 stitches were required to her face. Then, when she was eight years old, she and an older sister were left to care for two young twins while their mother attended a barn a little way away. Tragically, when the mother and her sister were distracted, one of the twin girls drowned in a swimming pool. Whether it was in consequence of legal action arising from that death or otherwise, when the mother was 12, her family’s farm was sold, and they moved into town. She told Dr B, a psychiatrist who examined her for the purpose of these proceedings, that her education at school was “fine” and thereafter she spent two years studying media, and worked in that industry for about 10 years. She then moved to Australia on a working holiday and obtained employment. It was at that time of her life, on New Year’s Eve 1995, that she met the father when she was 24 years of age.
The father
The father was born in New South Wales in 1965 and hence is presently 53 years of age. At an early stage he and his family relocated to Town C in Victoria, where he grew up. He told Dr B that his experience of school was good, which he finished at grade 10, and thereafter completed an apprenticeship. Upon concluding that apprenticeship, he travelled around Australia for four years picking up work as he went. He ultimately settled in Town J, where not only he remained, but gradually some other members of his family also moved to. In either 1987 or 1988 he formed a relationship with one Ms D, which lasted for some three to four years. A little unusually, Ms D was called as a witness by the father, although not required for cross-examination.
At some stage which is not altogether clear, the father commenced working in fly-in fly-out situations, not only in Australia, but all around the world. In fact, he told Dr B that he had worked in Africa, Europe, South Pacific countries, and even Antarctica. It was at this stage of his life, whilst working in Country F, and 29 years of age, that he met the mother during time off in Town J.
The relationship
The mother described her reaction to meeting the father to Dr B as “love at first sight.” However it does not seem as though the parties then formed a relationship, although they kept in touch. At some stage the mother returned to live in Country K. In 1999 the father went to Country K, and moved in with the mother, although shortly thereafter, she ceased her employment, surrendered the lease on her apartment, and the parties toured South America. The father says (and it does not appear to be denied) that whilst in South America, the mother had an angry reaction to discovering that there was meat in a vegetarian dish which she had ordered. The father says that she started screaming and yelling, to the point where they had to leave the restaurant. Later, when they returned to their accommodation, the mother started assaulting the father, albeit ultimately she ended up in a foetal position on the ground.
The parties then returned to Country K, and the father thereafter returned alone to Town J, with the mother staying in Country K. It appears as though the relationship then ceased for about 12 months until the father telephoned the mother, and the parties resumed communication. In that call the father advised the mother that he was going to be working in Africa, and since his employment included free travel for a partner, he invited her to attend, and she agreed. After some time in Africa, she returned to Country K, but they remained in a relationship. At some stage she returned to live in Town J.
The parties married in 2000. Apparently from the outset, the paternal grandfather came to live at the same address as the parties, albeit in self-contained accommodation under their house.
Throughout the relationship the father continued to work for periods overseas. It seems clear that the father was able to earn considerable income from his work, and acquired substantial assets.
In September 2000, the mother alleges that the father physically assaulted her, and she engaged with domestic violence supports. The father denies that he was ever domestically violent to the mother, but says it is the mother who has periodically assaulted him. I will consider that dispute, later in these reasons.
X was born in 2005.
In 2006 the mother obtained employment working for a government agency.
Y was born in 2008.
Throughout the marriage the mother would travel alone with the children to Country K every two years, for about two weeks.
In 2011 the maternal grandmother was terminally ill with cancer, and the mother went to live in Country K with the children for two months so as to be with her.
In 2014 the mother resigned her employment with the government agency. It appears as though, by then, the parties’ relationship was in some degree of trouble, and the father commenced to bank his wage into his own account, rather than one which was accessible by the mother.
On Christmas morning of 2015 there was, according to the father, an unpleasant event at the parties’ home, in which the father says that the mother abused him and the children for disturbing her sleep by opening their presents.
It is conceded that the parties finally separated on 31 December 2015, although for some period of time they remained living together under the one roof, until the father moved out on 13 February 2016. The mother and the children remained living in the former matrimonial home.
Post separation
Somewhat unusually, for about a year post separation, although the father was no longer living at the former matrimonial home, the paternal grandfather remained living underneath it. That saw the father and other members of his family regularly attend upon the former matrimonial home. On occasion, the children’s cousins would also attend to visit their grandfather, but it is said that during such visits the mother would not allow the children engage with their family members.
In March 2016 the parties agreed a parenting plan which saw the father having day time visits with the children during the week, and on alternate weekends.
On 24 May 2016 final property orders were made. The father says that there was a side agreement between he and the mother that, notwithstanding the terms of the orders, he would be able to retrieve his private possessions from the former matrimonial home. He did so, and on other occasions attempted to do so. That saw the mother accuse him of stealing, and indeed the father was charged with stealing certain items. Ultimately the father was not convicted in relation to those offences.
In June 2016 the mother re-commenced employment with the government agency.
In February 2017 the children commenced spending time with the father each alternate weekend, including overnights.
Some time in 2017, the mother sought a protection order in relation to the father’s alleged harassment of her. On … November 2017 a Magistrate, following a three day hearing, made five year orders which are due to expire on … November 2022. I will deal with her Honour’s reasons in due course.
In December 2017 the father ceased employment.
On 12 February 2018 the mother commenced these proceedings seeking, amongst other things, international relocation to Country K.
In April 2018 interim consent orders were made which permit the father to spend alternate weekends and half of school holidays with the children. Those orders remained in place as at the date of trial, and indeed, these reasons.
Current situation
As at the time of the trial before me, the father had recently resumed employment as a tradesman, on a week-on, week-off basis. The mother remains employed with the government agency, and remains living in the former matrimonial home.
The father’s living arrangements are a little fluid, given his week-on, week-off fly-in, fly-out employment. It seems as though he splits his time off work between living with his sister in Town J, and spending time at a liveable shed on land he owns in Town G. The children’s time with him is also split between those two places.
The father does not pay child support to the mother, as she has never registered for assessment. On the other hand he does make contribution to the children’s costs, including when they are in the mother’s care.
Both of the children appear to be doing well at school, and save for the eldest child X being a fussy eater, no medical issues of any note arise in relation to either children.
THE ISSUES
At the Trial Management Hearing, with the assistance of the parties, I identified a large number of issues which this matter generated. However ultimately, in view of the mother’s abandonment of her application for international relocation, those issues reduced to the following:
1.What is the nature of the relationship between each parent and the children.
2.What risk, if any, does each parent or their household pose to the children and what, if any, means are available to mitigate such risk.
3.Would the children benefit from a meaningful relationship with each parent and their respective families, and if so, how might it best be facilitated.
4.Would the parties’ communication be sufficient to support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.
Once I have discussed the relevant statutory provisions and legal principles, but in advance of a traverse of any residually relevant s 60CC factors, I will discuss those issues and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Family violence
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
Adopting findings of fact made by other Courts
Section 69ZX(3) of the Family Law Act provides:
The Court may, in child-related proceedings:
a.Receive into evidence the transcript of evidence in any other proceedings before:
(i)the Court; or;
(ii)another Court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
b.Adopt any recommendation, finding, decision or judgment of any Court, person or body of a kind mentioned in any of the paragraphs (a)(i) to (iii).
That provision was considered in passing by the Full Court in Bloomberg & Rod [2010] FamCAFC 112, in the context of an appeal from a Judge who, at first instance, described the language of s 69ZX(3) as “permissive and unrestrained.” The Full Court at [34] said: “His Honour considered the provision could be of particular utility in a case such as this where historical issues were mirrored in current issues before the Court. His Honour considered that the findings upon which he would place reliance were consistent with the evidence which was before him in his own assessment of the parties in their evidence.”
Equal time arrangements
In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] outlined the circumstances in which her Honour thought equal shared care could operate, as follows:
The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
Whilst the statutory regime has changed since that decision, there is no reason to think that, as a matter of logic, those matters do not still inform the practicability of an equal shared care arrangement.
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND THE CHILDREN
In his Family Report filed 17 April 2019, Mr H, a forensic psychologist by profession, said:
The children are primarily attached to [the mother] but are also attached to [the father]. The children are enjoying living with [the mother] and spending time with [the father]. [The mother and father] love the children and are providing them with “good enough” parenting.
He was not cross-examined by reference to that opinion, and I unhesitatingly accept it. Particularly I am satisfied that the children’s primary attachment is with the mother, although they derive comfort, nurture and support from each of their parents. Further, I am satisfied that the best means of the children obtaining benefit from their meaningful relationships is by the parents being involved in as many areas of the children’s lives as is possible.
ISSUE 2 – WHAT RISK IF ANY DOES EACH PARENTS HOUSEHOLD POSE TO THE CHILDREN AND WHAT MEANS ARE AVAILABLE TO MITIGATE IT
The mother did not contend that this was a case in which the father presented an unacceptable risk of harm to the children, or indeed that the notion of risk informed the outcome in any material way. That was notwithstanding her allegations that there had been protracted physical, and other forms of, family violence during the course of the relationship, directed towards her and the children.
Mr H said in relation to this issue:
I considered that [the mother and father’s] lack of cooperative co-parenting, their fear of each other, and their mutual disrespect, could lead to the children’s exposure to further conflict situations.
There was a low risk for further family violence.
These risks could be mitigated by [the mother and father] being required to attend and complete post-separation parenting programs and [the father] being required to attend and complete a family violence program. This then could perhaps lead them to participate in conciliation counselling which would assist them to remove the impasse between them.
Again he was not challenged by reference to that evidence or opinion, and I accept it.
ISSUE 3 – WOULD THE CHILDREN BENEFIT FROM A MEANINGFUL RELATIONSHIP WITH EACH PARENT, AND IF SO HOW IT MIGHT BE BEST FACILITATED
In the end neither party contended that the children would not benefit from a meaningful relationship with each other. That view was supported by Mr H whose evidence was:
I considered the children would benefit from a meaningful relationship with both their parents and their respective extended families. I considered that the above-reported recommendations regarding child arrangements would best facilitate those relationships.
Again Mr H was not challenged by any party in relation to this. I accept his evidence.
ISSUE 4 – WOULD THE PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY OR SOLE PARENTAL RESPONSIBILITY WITH AN OBLIGATION TO CONSULT
Mr H’s view expressed in the updated Family Report was:
I didn’t consider [the father and mother’s] communication to be sufficient to support equal shared parental responsibility. It could perhaps be sufficient to support sole parental responsibility with an obligation to [consult] the other parent.
Mr H was cross-examined by counsel for the mother in relation to this view, particularly in light of the father’s alleged protracted history of family violence towards the mother, and the prospect that having to engage at all with the father would, in effect, re-traumatise her. Mr H did not accept that. He thought that email communication, or at least communication other than face-to-face, was unlikely to be beyond the mother, notwithstanding any allegations of family violence. No doubt responsive to that questioning, the mother thereafter changed her proposal to include an obligation to consult in relation to sole parental responsibility.
Mr H made it plain in his oral evidence that family violence did not inform his recommendation for there to be sole parental responsibility to the mother. Rather he solely supported that recommendation on the basis of the parties’ inadequate communication.
For his part, the father asserted that material annexed to his affidavit, comprising email communications between the parties over some eight or so months, demonstrated a capacity to communicate. He enquired of Mr H whether he had seen that material. Mr H indicated that he had, and that it made no difference to his opinion. Particularly he said that although the parties are able to exchange information via email, albeit in a somewhat hostile way, what they cannot then do is to in fact negotiate towards a compromise or other agreed outcome via that means, but rather simply continue to restate their positions. Indeed the father appeared to basically concede that, by indicating, both in his evidence and in submissions, that his approach was to try and engage with the mother, but because she generally refused any suggestions he proposed, ultimately he would capitulate.
I have considered the material annexed to the father’s affidavit. It is frequently hostile and conflictual. To my mind it does not speak to the parties’ ability to communicate in a child focussed way that is likely to progress negotiations to an agreed conclusion. I am not satisfied that these parties could discharge their obligations under s 65DAC if there were to be an order for equal shared parental responsibility.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already addressed most of the primary considerations when discussing the issues, and a number of the additional considerations. However by reference to the additional considerations I make the following further observations.
The children have, to several parties, consistently expressed the view that they are content with the present arrangements. For instance, most recently in their interviews on 19 March 2019 with Mr H, X said that “I like it how it is now” when asked about the child sharing arrangements. Y said that the present arrangements “were ok” and that spending time with the father was “good.” Similar observations have been made to their counsellor and school guidance officer. As but one example, as early as 27 May 2016 Y is recorded as having told the school counsellor that she regularly saw her father and “that she likes spending time with her father and with her mother.”
Mr H was of the view that the children have sufficient cognitive development to be able to appreciate the consequences of their decisions, and accordingly that their wishes should be given weight.
On the other hand, the father contended that the mother is likely to have influenced the children’s views, and noted that Mr H was persuaded that the mother had likely influenced the children’s earlier expression of wishes to relocate to Country K. Indeed that appears expressly at paragraph 123 of the first Family Report, but I do not read that report as suggesting that the children’s views more generally have been influenced by the mother, and I do not accept that they have been.
The children have good relationships with family on both sides of their parentage. The father’s family is very close, and seem particularly keen to maintain connection with the children. A difficulty, however, is that there is no evidence that the mother has in any way, shape or form, sought to support the children’s relationships with the broader paternal family during the time the children are with her, but rather, seemingly relies upon the father doing so when the children are with him. In part, that may be explicable by the fact that she was, until February of this year, anxious to return to Country K with the children, and perhaps may have perceived that fostering such relations may have been contrary to her case. However that was not her evidence, and it was not her submission as advanced.
I am satisfied that the children do have significant relationships of great meaning with the paternal family, which are mutually beneficial and appreciated.
The father has always sought to be engaged in decision making in relation to the children, and to spend time and communicate with them.
Criticism can be made in relation to the father’s failure to provide financial support of any significance to the mother for the children whilst they are in her care, but, by the same token, the mother has not sought a child support assessment, ostensibly because she does not wish to be required to engage with the perpetrator of family violence against her. However the simple fact is that the father has made some contribution towards the costs of the children, although I doubt it would be anywhere near the sum he would be obliged to pay in the event that he was subject to a child support assessment. Nonetheless, because the mother has not sought assessment, and the unchallenged evidence is that the father had been paying money to a bank account in the mother’s name which she then closed without providing a substitute, it is difficult to be particularly critical of the father in this respect.
There was no evidence led from Mr H as to the likely effect on the children of the father’s proposal for equal time. The effect therefore is unknown, and at best, can only be the subject of conjecture.
There is no practical difficulty or expense in the children spending time and communicating with both parents.
The capacity of the parents to provide for the children was not seriously questioned in this case. To the extent that is was, it is the fact that the children have been exposed to the parents’ arguments and other forms of conflict.
Family violence is a factual issue in this case, but as I have already indicated, other than in relation to parental responsibility, was not relied upon by the mother, or indeed the Independent Children's Lawyer, as informing the appropriate parenting orders.
In this context it is educative to consider some of the findings of the Magistrate, consequent upon the conclusion of the parties’ three day hearing before her Honour in relation to the mother’s application for a family violence order. Amongst her Honour’s relevant observations are as follows:
The impression of all the evidence of all the parties is that both [the father and mother] on occasion acted on what .. can be described as domestically violent and controlling behaviour. Unsurprisingly, on occasion both became angry, and both said things and used language that was unpleasant and demeaning.
…
I am satisfied, once you analyse properly her evidence, [the mother] is not an unreliable witness. She does tend to record and then re-record and then re-record, but the gist of her evidence has been consistent throughout. I am satisfied that the acts of domestic violence have been perpetrated as [the mother] has set out. That finding does not mean that she, at times, has acted perfectly. She may well, as I have said, I have made findings, have lashed out at him, [the father]. At times she was emotional; at times demanded and controlling and scathing and probably verbally abusive to him.
Although Mr Williams, counsel for the mother, did not ask me to adopt those findings under s 69ZX of the Family Law Act, it is difficult to see why I would not do so. The sole issue before her Honour, litigated over three days in 2017, was the existence or otherwise, of historical family violence between the parties. The proceedings before me took only two days, and whilst family violence was one theme, there were many other issues explored as well.
There are good reasons why there should be consistent findings between Courts in which the same parties are litigating, in relation to issues as significant as family violence. Particularly, adopting findings of other Courts in relation to such issues, assuming that the parties had an opportunity for a fair hearing, would minimise the need for alleged victims to be further cross-examined by reference to the allegations, would ensure a more efficient use of judicial resources (in that the same issue would not be being litigated twice) and would alleviate the prospect of two Courts reaching inconsistent verdicts on the same evidence.
There is no suggestion that there was some deficiency in the hearing before the Magistrate, or that there is any additional material which the parties now seek to ventilate in re-agitation of the issue of the historical family violence.[3] In a sense therefore, all that the father is seeking to do in these proceedings is to have a “second go.” Whilst in some circumstances there may be a legitimate justification for re-litigation here, particularly given that domestic violence does not directly inform the outcome of the living arrangements for the children, this does not seem to me to be one of those cases.
[3] Much attention in the proceedings before me was given to an episode in January 2019 when both parties and the children were at the same movie theatre, but it cannot affect the findings of the Magistrate about events preceding then.
I am therefore satisfied, based on the findings of the Magistrate, that both parties have engaged in family violence towards each other, and that it arose out of escalating tension between them which had, at its heart, as I assess it, their fundamental differences in personality.
A particularly florid example of the father’s personality was in evidence, being a recording of an argument between the parties which, in my view, justifies the epithet of family violence on the part of the father. In it, he roundly berated the mother, was assertive, angry, loud, highly insulting, demeaning and regularly swore. It was all the more telling an example because the father denied that he had ever so behaved, but when confronted with irrefutable evidence of his behaviour, then raised the defence that only one half of the argument was being played. That is undoubtedly correct. I have little doubt that the mother was also, if not giving as good as she got, then certainly not adopting a placid demeanour. However in a sense the father was seeking to justify his family violence as being an appropriate response to the mother’s conduct.
A further example of the father’s personality traits was vividly demonstrated during the course of cross-examination when counsel, with great restraint, repeatedly and calmly asked the father to stop answering a question, given that his answer had strayed off the topic, but the father steadfastly and overbearingly refused to do so. There is no reason to think that demonstration, when the father was in Court before me, presumably trying to give a good account of himself as possible, is not a telling indicator as to how he might conduct himself in a domestic situation, without any form of independent observation.
In this regard the father led evidence from his former domestic partner, who gave, in effect, a glowing reference for him; he also led evidence from his two siblings. Although his sister, with whom he resides, was not prepared to concede that the father ever showed an unpleasant aspect to his behaviour, interestingly his brother, who stayed with the parties on several occasions during their relationship, was much more prepared to conceded fault on the part of the father, although he too indicated that misbehaviour was in response to the mother’s erratic and difficult behaviour.
PARENTAL RESPONSIBILITY
I am satisfied that there are reasonable grounds to believe that there was family violence between these parties. The presumption of equal shared parental responsibility therefore does not apply. The question then, is what order in relation to parental responsibility is in the children’s best interests. In this respect the father seeks an order for equal shared parental responsibility, the mother seeks an order for sole parental responsibility with an obligation to consult, and whilst the Independent Children's Lawyer primarily sought an order for sole parental responsibility without an obligation to consult, ultimately, as I understood it, did not oppose an obligation to consult if sole parental responsibility were ordered.
With the assistance of the parties during the course of the hearing I identified that the points in favour of an order for sole parental responsibility, or contrary to an equal shared parental responsibility, were as follows:
(a)Sole parental responsibility (with an obligation to consult) is, in reality, what has taken place to date;
(b)The parties’ communication does not lend itself to child focussed negotiation leading towards a sensible compromise or agreement;
(c)The mother’s decision making in relation to the children has been good enough to date, and is likely to continue to be;
(d)Equal shared parental responsibility is likely to continue the parental conflict (including the real prospect of further litigation), from which the children are unlikely to be adequately shielded;
(e)To require the mother to engage with the father may emotionally affect her such that her capacity to negotiate as an equal is lost or reduced, and her life is generally impacted.
On the other hand, the points in favour of equal shared parental responsibility, or contrary to an order for sole parental responsibility, were identified as follows:
(a)Equal shared parental responsibility would maximise the opportunity for decision making in relation to the children to have the benefit of both parties’ life experience;
(b)Equal shared parental responsibility might, to some degree, appease the father, and hence reduce the parental conflict and disharmony;
(c)Sole parental responsibility could be used by the mother in a way to practically exclude the father from the children’s lives, other than when they are in his care;
(d)If the mother is stressed, decisions made in the exercise of sole parental responsibility may not be optimal.
Weighing those matters in the balance tells strongly in favour of an order sole parental responsibility, albeit with an obligation to consult. I have noted that Mr H certainly did not think that an obligation to consult, providing that it was undertaken by email or similar means, would be beyond the mother, and indeed she herself sought such an obligation. I am satisfied that such an order will afford the father an opportunity for input in relation to the children’s decisions, but ensure that the parties are not forever bickering in relation to such matters, or constantly at an impasse.
There will therefore be an order for sole parental responsibility[4] with an obligation to consult.
[4] Albeit not in relation to changing the children’s names, or moving away from the J Town area, as I shall shortly discuss.
CHILDREN’S LIVING ARRANGEMENTS
Because I do not intend to pronounce an order for equal shared parental responsibility, it is not incumbent upon me to thereafter comply with the obligations of s 65DAA, albeit in this case I am practically obliged to do, so as the father nonetheless seeks an order for equal shared care. If he is unsuccessful in that, then he nonetheless seeks orders which would qualify as substantial and significant time.
Again, with the assistance of the parties during the course of the hearing, I identified the following points as being in favour of the Independent Children's Lawyer/mother’s proposal, or contrary to the father’s proposal:
(a)The Independent Children's Lawyer’s proposal is the status quo since 16 April 2018, under which regime both children are flourishing;
(b)The father’s proposal is untested, and the impact of it on the children unknown;
(c)The father’s proposal might see the children going to school from three quite different homes, and indeed, worlds;
(d)Few, if any, of the matters listed in T & N are satisfied in this case, which suggests that the father’s proposal is unlikely to prove a success;
(e)If the father’s proposal were ordered, but not to prove a success, then further litigation would almost inevitably ensue;
(f)The father’s proposal may be more about his perceptions of fairness and his wishes, than the best interests of the children;
(g)The Independent Children's Lawyer’s proposal conforms with the children’s consistently expressed wishes (noting that I do not accept that the mother has influenced those views);
(h)The Independent Children's Lawyer’s proposal accords with the expert recommendations;
(i)It is possible that during puberty and early adolescence, the children might benefit from primarily living with the parent of their gender.
On the other hand, the following points were identified as being favouring the father’s proposal, or being contrary to the Independent Children's Lawyer/mother’s proposal:
(a)The father’s proposal may optimise the children obtaining benefit from their relationship with him, and the paternal family more generally (which represents an extremely broad and valuable resource which is unlikely to be fostered when the children are in the mother’s care);
(b)The father’s proposal may see the parental conflict reduce;
(c)The Independent Children's Lawyer’s proposal may carry the risk of further litigation, if the father continues to press for increased time with the children;
(d)The father’s proposal may enable the children (especially Y) to access better schools if they reside significantly with him, and he lives in the catchment area for a “better” state school;
(e)The father’s proposal matches his work roster, and would give the mother greater time and flexibility in her own work;
(f)The father’s proposal might minimise any unfortunate habit of Y co-sleeping with the mother from becoming further entrenched than it presently is.
Weighing those matters in the balance again tells strongly in favour of the mother’s and Independent Children's Lawyer’s proposal as being in the children’s best interests. Particularly I place weight upon the fact that there has been no trial of anything like equal shared care, or indeed even substantial and significant time during school terms, and the impact of that upon the children is unable to be determined. I also give real weight to the children’s wishes. It is plain that they have a good relationship with the father under the present regime, and enjoy spending time with him. It is not they who are agitating for an increase in time, but rather the father.
It might be unfortunate that an interim regime of substantial and significant time was not trialled in this case, but the simple fact that is that it was not. To now order an interim regime to gauge the effect of such orders, would see these parties locked in further litigation. That cannot possibly be in the children’s best interests, as I am satisfied that the children have not been properly shielded from the litigation to date.
I am satisfied that the form of orders should be as contended for by the mother, and will so order.
OTHER ORDERS
The father sought that the parties should each retain one set of the children’s passports. The mother proposed that she should retain them. Given that she has sole parental responsibility, I am satisfied that the mother should retain them.
The father proposed an order that the children remain living in the Town J area. Whilst I do not propose to make such an order in those terms, I do propose to restrict the mother’s sole parental responsibility, so that she cannot change the children’s surnames or move the children to a location which would make the exercise of the father’s time with the children substantially more onerous.
Both parties proposed that they should undertake a post separation parenting course. I am satisfied that is indeed a good suggestion and will so order. On the other hand the mother sought an order that the father enrol and attend a family violence education program. I do not accept that the father recognises any need to attend such a program, and absent such an acknowledgment, I am not persuaded that such an order is likely to be of any benefit to him. Of course it would be sensible were he to do so, but the proper starting point does not appear to exist here.
There was a slight difference between the mother and the Independent Children's Lawyer as to what communication regime should be ordered between the parents. The Independent Children's Lawyer proposed using a particular App, whereas the mother proposed text message or email. Whilst the use of the App may well be a sensible step forward, given that neither party seeks such an order, I do not intend to impose it upon them.
Otherwise I am satisfied that the orders as sought by the mother are in the children’s best interests and will pronounce them.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 May 2019.
Associate:
Date: 17 May 2019
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