Malone and Malone - [2010] FMCAfam 210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALONE & MALONE

[2010] FMCAfam 210

FAMILY LAW – Parenting – parental responsibility for parties eldest daughter [X] aged 16 and living arrangements for their youngest son [Y] aged 11 and a half – because of parent’s long-standing conflicted relationship, ordered sole parental responsibility for the wife in relation to [X] who lives with the wife and spends limited time with the husband – ordered [Y] live with the husband for a block period of five nights and otherwise that he live with the wife – further ordered parents attend therapeutic counselling to try and improve their communication.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Child Support (Assessment) Act1989

Applicant:

MS MALONE

Respondent:

MR MALONE

File Number:

MLC 10028 of 2009

Judgment of:

Bender FM

Hearing date:

4 March 2010

Date of Last Submission:

4 March 2010

Delivered at:

Melbourne

Delivered on:

11 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr Hannan

Solicitors for the Applicant:

Peter Baker & Associates

Solicitors for the Respondent:

J A Middlemis

ORDERS

BY THE COURT:

All previous parenting orders be discharged.
The wife have sole parental responsibility for the parties’ daughter [X] born [in] 1994 (“[X]”).
[X] live with the wife.
[X] spend time and communicate with the husband as agreed between [X] and the husband.
The parties have equal shared parental responsibility for their son [Y] born [in] 1998 (“[Y]”).
[Y] live with the husband as follows:
(a)from after school Wednesday to before school Monday, commencing 12 May 2010 and each alternate week thereafter;
(b)from after school until 9.00pm Wednesday, commencing 19 May 2010 and each alternate Wednesday thereafter; and
(c)as otherwise agreed between the parties.
[Y] otherwise live with the wife.
The parties do all things necessary to obtain a referral from their treating General Practitioners to either of [names omitted] and if either [names omitted] are unable to accommodate the parties then such other counsellor as is recommended by them, at the parties’ joint expense, to seek assistance in developing a better way to communicate with each other in relation to their parenting of [X] and [Y].
To better assist the counsellor the parties attend pursuant to order 8 herein, they shall provide such counsellor with a copy of Trevor Holland’s report and the judgment in this matter.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school lives of [X] and [Y], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party shall keep the other appraised at all times of their current residential address and telephone contact details.

BY CONSENT:

The husband and wife shall each spend time with [Y] (with [X] being invited to attend but such attendance being subject to her discretion) on each of the following special days:
(a)for half of each of [Y] and [X]’s birthdays or if their birthdays are on a school day for at least three hours after school at times to be agreed;
(b)with the husband from 10.00am to 4.00pm on his birthday or if his birthday is on a school day for at least three hours after school at times to be agreed;
(c)with the wife from 10.00am to 4.00pm on her birthday or if her birthday is on a school day for at least three hours after school at times to be agreed;
(d)if the husband would not otherwise spend time with [Y] and [X] on Father’s Day, with the husband from 10.00am to 4.00pm on Father’s Day or otherwise as agreed;
(e)if the wife would not otherwise spend time with [Y] and [X] on Mother’s Day, with the wife from 10.00am to 4.00pm on Mother’s Day or otherwise as agreed;
(f)for half of Christmas Day at times to be agreed or in the absence of agreement:
(i)     in 2010 and each even year thereafter:
A.   with the husband from 6.00pm Christmas Eve until 3.00pm Christmas Day; and
B.   with the wife from 3.00pm Christmas Day until 6.00pm Boxing Day
(ii)    in 2011 and each odd year thereafter:
A.   with the wife from 6.00pm Christmas Eve until 3.00pm Christmas Day; and
B.   with the husband from 3.00pm Christmas Day until 6.00pm Boxing Day; and
(g)in alternate weeks during the school term and Christmas holidays at times to be agreed between the parties and in the absence of an agreement for the first week of each holiday period and alternating thereafter.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BENDIGO

MLC 10028 of 2009

MS MALONE

Applicant

And

MR MALONE

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves the parties’ competing applications relating to their children [X] born [in] 1994 (“[X]”) and [Y] born [in] 1998 (“[Y]”) in circumstances where the parties have very different personalities, parenting styles and have a highly conflicted relationship.
[X], who is 16 years of age, is a troubled child whose behaviour has been and can be very challenging. Since September 2007 she has lived with her mother and spent very limited time with her father. The parties agree that given [X]’s age and behavioural challenges, [X] should continue to live with her mother and spend time with her father as agreed between herself and him.
The live issue between the parties in relation to [X] is whether the parties should have equal shared parental responsibility for her, as is sought by the husband or whether the wife should have sole parental responsibility for [X], as is sought by the wife.
[Y] who is 11 and a half years of age, currently lives with his father each alternate weekend from after school Friday to before school Monday and overnight each Wednesday. Otherwise [Y] lives with his mother.
The wife is seeking orders that the current arrangements for [Y] continue or, in the alternative, that orders be made as recommended by the Report Writer Trevor Holland that [Y] live with his father in a single block of five days each fortnight from after school Friday to before school Wednesday and otherwise live with her.
The wife initially sought an order that she have sole parental responsibility for [Y], but having read the Family Report and after hearing the evidence of Trevor Holland, she did not pursue this application and indicated to the court she would agree to orders that she and the husband continue to have equal shared parental responsibility for [Y].
The wife also advised the court that in the event orders are made that accord with Mr Holland’s recommendations, she would agree to a further order that enabled the husband to continue to take [Y] to his sporting training commitments each Wednesday evening.
The husband is seeking orders that [Y] live equally with each of his parents on the basis [Y] live with him from after school Friday to before school Thursday in each alternate week and from after school Wednesday to before school Thursday in the other week.
At the conclusion of the hearing, the parties were asked to discuss arrangements for [Y] in relation to holidays and special occasions. To their credit, the parties agreed to those arrangements and their legal representatives subsequently forwarded correspondence to my Chambers reflecting the parties’ agreement to those arrangements for [Y].
There has been ongoing acrimony between the parties in relation to Child Support. On 25 July 2007 Magistrate Gibb ordered by consent at order 22 that pursuant to Part 7 of the Child Support (Assessment) Act1989 neither parent be required to pay any future child support to the other parent regarding the children with such order to:
“have effect regardless of where the children may from time to time reside”.
This order was made at a time [X] was living with the husband and the current arrangements for [Y] were in effect.
Shortly after these orders were made, [X] returned to the wife’s care where she has since resided.
The wife sought to have order 22 of the orders of Magistrate Gibbs dismissed.
At the final hearing of this matter the husband consented to orders discharging order 22 of the orders of 25 July 2007.

Background

The wife was born [in] 1965 and is 45 years of age. She is employed as an [occupation omitted]. She is in a long-term relationship but does not live with her partner.
The husband was born [in] 1964 and is 45 years of age. He is employed as an [occupation omitted]. He remarried after the breakdown of the parties’ marriage. He is separated from his second wife. The husband is in a new relationship but he and his new girlfriend do not live together.
The parties commenced cohabitation in 1992 and married [in] 1993. The parties separated in June 2001 and divorced in 2002.
On 7 August 2002, orders were made by consent in the Bendigo Magistrates Court which provided that [X] and [Y] live with the husband each alternate weekend from 6.00 pm Friday to 6.00 pm Monday, each week from 6.00 pm Wednesday to 6.00 pm Thursday and for special occasions, and otherwise that they live with the wife. Final property orders were also made.
As set out earlier in this judgment, [X] has had ongoing behavioural issues in relation to her relationships with her parents and with her school. In March 2007, after a falling out with the wife, [X] commenced residing full time with the husband.
On 25 July 2007 further consent orders were made in the Bendigo Magistrates Court which discharged all previous children’s orders and provided for the parties to have equal shared parental responsibility for [X] and [Y], for [X] to live with her father each week from after school Friday to before school Monday and from after school Wednesday to before school Thursday, and otherwise for [X] to live with her mother.
The 25 July 2007 orders also provided that [Y] live with his father each alternate week from after school Friday to 3.30 pm Monday,

3.30 pm Wednesday to 3.30 pm Thursday in each week, for half school holidays and special days, and otherwise for [Y] to live with his mother.
In September 2007 [X] had a falling out with her father and returned to live with her mother on a full time basis. She has spent very limited time with her father since that time.
In 2009 [X] attended counselling with a psychologist and was referred to a psychiatrist in early 2010. The psychiatrist has recommended [X] attend upon a psychologist for cognitive behavioural therapy. [X] has refused to recommence counselling at this time.
[X] has had ongoing issues with her schooling and ‘failed’ Years Nine and Ten. She commenced Year 11 at [omitted] School this year.
The living arrangements for [Y] have, generally speaking, continued in accordance with the 25 July 2007 orders. He currently attends [omitted] Primary School and is in Year Six.
[Y] is a keen sportsman who plays football and is a good swimmer. On Wednesday nights it is his father who takes [Y] to football training and to squad training for his swimming. The husband’s involvement in [Y]’s sporting activities is very important to both [Y] and his father.
The parties concede they have very different parenting styles and personalities. The wife is more ‘laid back’ and negotiates arrangements with the children. The husband has a much more linear personality and is more disciplined in his parenting. Both parties conceded they have enormous difficulty in communicating. Theirs has been a conflicted relationship over many years.

Evidence

The wife’s proposal

As set out earlier in this judgment, the wife is seeking orders that she have sole parental responsibility for [X] and that otherwise [X] live with her and spend time with the husband as agreed between [X] and the husband.
It was the wife’s evidence that there have been long-standing issues with [X] acting out and that she has struggled to contain [X]’s behaviour at certain times in recent years.
The wife describes [X] as being a strong and determined young woman who has very strong views, particularly in relation to what is right and wrong.
The wife agreed that in 2007 [X] moved to live with her father after she and [X] had fought, but that [X] returned to live with her in September 2007 and since that time has only spent limited time with her father.
When cross-examined as to what she had done to positively encourage [X] to re-connect with her father, it was the wife’s evidence that whilst she can encourage [X] to re-ignite that relationship, she can not make her have that relationship. It was the wife’s evidence that in more recent times [X] had been meeting her father for coffee and at the gym, and that she encourages [X] in these interactions.
The wife conceded that [X] was aware of the long-standing issues between the parties in relation to Child Support matters and that [X] resented that her father had not provided better financial support to her mother. Further [X] resented that her father does not buy her things she needs without ‘conditions’ being attached. Under cross-examination the wife had to concede that the husband had bought [X] a laptop, shoes and in recent times sport shoes.
It was the wife’s evidence that [X] developed a positive relationship with the husband’s second wife and was most upset with the breakdown of that marriage. [X] became particularly judgmental of the husband when she ascertained the husband had developed a new relationship with a woman much younger than he.
It was the wife’s evidence that she has considerable difficulty in communicating with the husband as they have quite different personalities and parenting styles.
The wife argued that in these circumstances, and in the circumstances that [X] spends limited time with the husband, it would be in [X]’s best interests that an order be made that she have sole parental responsibility for [X].
It was also the wife’s evidence that given [X]’s age, it would be appropriate that orders be made for [X] to spend time with her father as agreed between them.
In the Family Report prepared by Trevor Holland, there was a recommendation that both parents engage with [X]’s counsellor in a conjoint interview to discuss their parenting approach to [X].
The wife gave evidence that at this time [X] was resisting counselling, but that she was willing to encourage [X] to re-engage with counselling and to attend upon that counsellor with the husband in an endeavour for them to better communicate and assist [X] into the future.
In relation to the arrangements for [Y], it was the wife’s primary position that the long-standing arrangements for [Y] continue into the future as she believed this is what [Y] wants. She indicated this would enable [Y] to continue to have the positive relationship he has with his father but would also provide him with the home base that he has had since separation.
As a secondary position, the wife was agreeable to orders being made as proposed by Mr Holland, being that once [Y] starts high school in 2011 his time with the husband be in a single block.
The wife agreed that the husband has always been actively involved in [Y]’s sporting pursuits and that he takes [Y] to his training on Wednesday nights. The wife indicated that she would be agreeable to orders being made for that arrangement to continue into the future.
As with [X], the wife conceded that in relation to their parenting of [Y], she and the husband have very different parenting styles. The wife believes that the husband is much more direct and controlling of the children’s behaviour where as hers is a much more consultative and cooperative approach.
The wife conceded that she and the husband do ‘push each other’s buttons’ and that it would be beneficial for the children if she and the husband were able to develop a much more cooperative communication style so that the children were protected from their ongoing conflict.
As noted earlier in this judgment, the wife initially sought orders that she have sole parental responsibility for [Y] because of the difficulties in the parties’ communications and parenting styles, but having had the benefit of the evidence from Trevor Holland, both in his Report and at the final hearing of the matter, the wife indicated through her Counsel that she was not pursuing this application and agreed to orders being made that equal shared parental responsibility for [Y] continue.

The husband’s proposal

In relation to [X], the husband was in agreement that because of her age, it would be appropriate that orders be made for [X] to spend time with him as agreed between themselves.
The husband agreed that since [X] returned to live with the wife in 2007, he has spent limited time with her and this has been particularly so since the breakdown of his second marriage.
It was the husband’s evidence however that he communicates with [X] more often than the wife gives him credit for and that he believes their relationship is slowly improving.
In relation to the issue of parental responsibility, it was the husband’s evidence that he had taken on board the recommendations of

Mr Holland (which are that the wife have sole parental responsibility for [X]) but was of the view that if he and the wife were able to actively improve their communication and level of cooperation, this would send a positive message to [X], and in turn assist her with the challenging behaviours that she has exhibited in the past.
The husband gave evidence that he would never ‘give up’ on his daughter and his responsibility for her and that to have orders that took away his parental responsibility would send a message to [X] that he had given up on her.
It was the husband’s evidence that he did not believe that the wife having sole parental responsibility for [X] would result in any better parenting for [X] or that it would be in her best interests.
In relation to [Y], it was the husband’s evidence that he believes that it is in [Y]’s best interests that he live equally with both of his parents. The husband also conceded that this reflects his desire for more time with his son, something that he says he has always sought.
The husband gave evidence that he is actively involved in [Y]’s sporting activities, taking him to football and swimming training every Wednesday night and that they also like doing ‘blokey things’ like camping and other outdoor activities.
In his interview with Trevor Holland, [Y] indicated quite strongly that he wished for his current living arrangements to continue. The husband was questioned in relation to this and it was his evidence that he did not believe that that discussion truly reflected what [Y] wanted or felt, and that with “all due respect to Mr Holland”, he was of the view that he had a better understanding of his son than Mr Holland would get in a 30 minute interview.
The husband confirmed that he seeks orders that [Y] live with him from after school Friday to before school Thursday in week one and from after school Wednesday to before school Thursday in week two. This arrangement would enable him to continue his active involvement in [Y]’s sporting and training commitments.
The husband’s evidence is that he would participate in any counselling that would assist in improving the parties’ communication and help them to better parent both [X] and [Y].

Mr Trevor Holland

Trevor Holland is a social worker who prepared a Family Report in this matter, which was made available to the parties on 26 February 2010. Mr Holland also provided oral evidence at the final hearing of this matter.

In his Report at page 12, Mr Holland made the following recommendations:
1. The children [X] and [Y] to live with Ms Malone and both parties to have joint responsibility for [Y]. Ms Malone to have sole responsibility for [X].
2. [X] to exercise her discretion as to when she spends time with her father.
3. Mr Malone to spend time with [Y] in 2010, each alternate weekend from Friday pm to Tuesday am, each alternate week from Wednesday pm to Thursday am and half of all school holidays.
4. Mr Malone to spend time with [Y] in 2011, each alternate weekend from Friday pm to Wednesday am, and half of all school holidays.
5. Both parties to engage with [X]’s counsellor in a conjoint interview to discuss their parenting approach to [X].
6. Upon resolution of the financial issues both parties to engage in mediation with an agreed counsellor in an effort to resolve their parenting differences, with a view to providing more consistency and balance for the children.
7. The parties use a communication book to co-ordinate [Y]’s arrangements and needs, and [X] to engage in her own negotiations with Mr Malone.
Mr Holland was questioned as to why he had recommended the wife have sole parental responsibility in relation to [X].
Mr Holland described [X] as a strong-minded girl who has made the decision to live with her mother, who is taking direction from her mother and is currently spending very little time with her father. It was Mr Holland’s evidence that he can’t see [X]’s interests being served by her parents having joint responsibility for her and was concerned that it may lead to further ‘splitting’ for [X], a concern he has in relation to [X] because of the ongoing conflict between her parents.
It was Mr Holland’s evidence that he thought [X] was at an age and of a gender where she needs to have a single decision-maker and that there was the potential if an order was made for shared parental responsibility that that would lead to further conflict between her parents.
In relation to his concerns as to ‘splitting’, in paragraph 43 of his Family Report, Mr Holland deposed as follows:
“Prolonged exposure to parental conflict leads to a variety of dysfunctional coping strategies in children which change and evolve over time. The signs of this are apparent in both children. [X]’s behaviour is indicative of “psychological splitting”. Splitting is a psychological phenomenon which is best described as a failure to integrate positive and negative interpersonal experiences, and is often identified in the genesis of mental health difficulties later in life.”
Further in paragraph 44 of his Report, Mr Holland deposed as follows:
“In adolescence this (sic psychological splitting) can change as the child meets resistance from one parent or the other. Over time it becomes the organizing principle that the young adult bases their relationships on and frequently leads to symptoms of anxiety, depression, and conduct disorder in adolescence.”
When asked that if these issues for [X] were not addressed and dealt with would it cause her difficulties into the future, it was Mr Holland’s evidence that there was a real potential for this as she would not be able to deal in a more sophisticated way with her adult relationships.
Further, it was Mr Holland’s evidence that a legal solution is not the way forward for [X] and that she should be allowed to exercise her discretion in the spending time arrangements with her father.
In relation to [Y], Mr Holland indicated that it was [Y]’s preference to remain living with his mother and continue the current spending time arrangements with his father.
It was Mr Holland’s evidence that initially [Y] was anxious in expressing this view and he saw that as [Y] not wanting to upset either of his parents because his way of coping with the parental conflict is to try and keep the peace.
It was Mr Holland’s evidence that the long-standing history of antipathy and conflict between the parents was a contra-indicator to shared care.
Mr Holland was very strongly of the view that [Y] needed to identify with the home base that he has had since the parties’ separation some nearly 10 years ago.
Mr Holland gave evidence that if one was to take a ‘snapshot’ of the arrangements that would best suit [Y] now, one of the main features would be the importance for [Y] to spend a single block of time with each parent so that when he starts high school he will be in a structure that gives him a degree of safety in that he will know when he is to be with his mother and when he is to be with his father.
Mr Holland was cross-examined as to whether a move to a more shared care arrangement would be appropriate once [Y] started high school. It was his evidence that because of the conflictual parental relationship, a shared care arrangement would not be in [Y]’s best interests.
Mr Holland was questioned about the importance of the husband’s involvement in [Y]’s sporting life and that whether, in those circumstances, the proposal Mr Holland was putting that [Y] live with the father from after school Friday to before school Wednesday be extended to before school Thursday, Mr Holland’s evidence was that it was important to get the structure correct and that issues such as sports training and other factors could be accommodated once that correct structure was in place.
When discussing the parties, Mr Holland described the husband’s personality style as being quite concrete, mathematical and linear and further described the husband as someone who could be quite dogmatic and assertive which in turn could impede communication.
In relation to the wife, Mr Holland described her as being more laissez-faire who, when dealing with the husband’s more assertive and dogmatic communication style, withdraws which in turn engenders frustration in the husband. These competing personality styles limit the parties’ ability to communicate with each other in relation to their children.
In his Report, Mr Holland indicates that he brought the parties together with a view to teasing out a possible way forward in relation to an issue that had arisen between them about [Y] wishing to discontinue at after school care and, instead, start taking the bus home. The husband was opposed to this whereas the wife was of the view that this was a step [Y] was ready to take, particularly in circumstances where he was in Grade Six and after school care would not be available to him when he started high school in 2011. Mr Holland was able to assist the parties in agreeing to a possible way forward which involved trialling [Y] catching the bus home two nights a week. To their credit the parties have successfully put this trial into place.
Mr Holland was encouraged to hear that the parties had been able to act on the agreement brokered during the Report writing process.
In his Report, Mr Holland also noted that the long-standing financial tensions between the parties regarding Child Support was a contributor to their ongoing conflict. He was further encouraged when advised that the parties had been able to resolve that matter between themselves by consent.
In relation to the recommendations around counselling, it was put to Mr Holland that at this time [X] was resistant to ongoing counselling. It was his evidence that [X] was not someone who would do something if she didn’t want to and that a proposal that all three parties attend counselling would not work if [X] didn’t want to attend.
It was Mr Holland’s recommendations that in those circumstances, the best way forward to assist the parties in improving their communication styles, and in turn in assisting [X] and [Y], would be for the parents to attend counselling, for them to tell [X] what they were doing and have that counsellor invite [X] to attend.

Best interests of the child

Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, 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.
2. 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:
(a)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
(b) family violence.
As noted previously, the parties are in agreement that they have equal shared parental responsibility in relation to [Y].
The parties however are not in agreement as to parental responsibility in relation to [X].
The wife seeks orders that she have sole parental responsibility for [X] and the husband seeks that the existing orders for equal shared parental responsibility remain in place.
The wife argues that because of the long-standing conflicted relationship between herself and the husband, because of the limited time that [X] spends with the husband and because of the reality that she is the decision-maker for [X], orders should be made in the terms that she seeks.
The husband resists orders in these terms as he sees them as being indicative that he has given up on [X] and his responsibility for his daughter. He was also of the view that he and the wife could work on improving their communication and level of cooperation so that they could make decisions more cooperatively and jointly in relation to [X] in the future.
The husband was also concerned that [X] could again have a severe falling out with her mother, return to live with him and orders in the terms sought by the wife would preclude him from making decisions about the major long-term issues for [X] notwithstanding she was in his full-time care.
Mr Holland supported an order that the wife have sole parental responsibility for [X] on the basis he thought it was age and gender appropriate and that the potential for ongoing conflict between her parents could further engender the psychological splitting that [X]’s behaviour to date was indicating had occurred as a result of that parental conflict.
An order by this court in relation to parental responsibility for [X] will be specifically directed as to who should make the decisions in relation to the major long-term issues about [X]’s care, welfare and development. Section 4 of the Act defines ‘major long-term issues’ to include the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements.
Section 65DAC of the Act sets out that where an order has been made for shared parental responsibility and the exercise of that responsibility involves making a decision about a major long-term issue in relation to the child, then those parents are required to consult the other in relation to the decision and to make a genuine effort to come to a joint decision about this issue.
Where parties have a long history of entrenched antipathy and conflict, as are the circumstances here, particularly in relation to [X], the parties’ inability to consult and reach agreement can have a serious negative impact on their child.
That this is the case for [X] has to be acknowledged and Mr Holland’s concerns about the psychological splitting that [X]’s behaviour is indicating have already been well documented in this judgment.
Any order by me that the wife have sole parental responsibility for [X] would be made so that [X]’s exposure to further conflict between her parents could be minimised with a view to assisting her to move forward in her own development.
Such an order however would in no way diminish the parental responsibility that the husband will have for [X] now and for the rest of her life. Nor would it or could it be seen to be in any way a sign that the husband is giving up on or abrogating his responsibility for his daughter
Section 61DA(4) of the Act provides:
4. The presumption (sic of equal shared parental responsibility) may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In all the circumstances as have been set out in this judgment, and particularly the serious impact that the long-standing parental conflict has had on [X], I am satisfied that it would not be in her best interests for an order to be made that the parties have equal shared parental responsibility for [X].
In relation to [X], the parties are in agreement that the only other orders the court should make for her are that she live with the wife and spend time with the husband as agreed between herself and her father.
In relation to [Y], the parties are in agreement that they have equal shared parental responsibility for him.
Hereinafter, this judgment will be focusing on what are the best living arrangements for [Y].
Where parents have equal joint parental responsibility for a child, as is the circumstances here in relation to [Y], section 65daa of the Act requires the court to consider the child spending equal time, or substantial and significant time, with each parent.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The husband is seeking orders that [Y] spend equal time with himself and the wife.
The wife is seeking orders that [Y] live with her and spend significant and substantial time with the husband.
When determining what arrangements should be put in place for a child, whether it be equal time, significant and substantial time or some other arrangement, the Act quite clearly sets out that the orders the court must make be in the best interests of the children. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters that are set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

It is common ground that [Y] has a close, loving and meaningful relationship with both of his parents.
Despite their disparate parenting styles, neither party makes allegations that they have concerns about the quality of care that [Y] receives when he is living with either of them.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will consider each of these in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

In the Family Report prepared by Mr Holland, he indicates that it is [Y]’s preference to remain living with his mother and to continue to spend the current amount of time that he does with his father.
Mr Holland indicates that [Y] told him he would miss his mother too much if he lived full-time with his father and that such a significant change would be hard for him to adjust to (It should be noted that the husband’s initial application was for [Y] to live with him and spend time with his mother).
Mr Holland deposes that he put a number of options to [Y], including shared care or converting his time with the husband to a single block format. He indicated that [Y] was very firm in wanting the current arrangements to continue and was most uncomfortable contemplating any change.

Mr Holland indicates that [Y] told him that he did find it difficult to say what he thinks and feels to his father, who he loves, and expressed concern as to how things would appear in the Report.
In cross-examination it was Mr Holland’s evidence that [Y]’s views were strongly held and that it was quite clear that he did not want an alteration to his current living arrangements.
The husband challenged this aspect of Mr Holland’s evidence and was of the view that he had a better understanding of [Y] than Mr Holland. He did not accept [Y]’s comments that he had difficulty in saying what he thinks and feels to him. It was the husband’s evidence that he talks to [Y] on a deep level about a number of things and that he has told [Y] that there is nothing that he and [Y] can’t talk about.
I am satisfied that the discussions that [Y] had with Mr Holland are an accurate reflection of his views and that given his age of 11 and a half, I should give considerable weight to those views.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

As set out earlier in this judgment, [Y] has a close, loving and meaningful relationship with both of his parents.
I am satisfied that [Y] sees his mother as his primary carer and the provider of his home base. This accords with Mr Holland’s views. In paragraph 47 of his report, Mr Holland states:
“The developmental history indicates that the primary attachment of [Y] lies with Ms Malone.”
[Y] and his father share in [Y]’s love of sport and both parties agree that the husband’s ongoing involvement in [Y]’s sport should continue into the future. To her credit, the wife has indicated that whatever orders are made, they should include provision for the husband to continue to take [Y] to his sporting commitments and training.
[Y]’s relationship with his sister [X] is not without it’s difficulties.
Mr Holland reports in paragraph 37 of his Report that [Y] felt his mum was doing a good job with [X]:
“considering how hard she is to handle.”
[Y] added:
“It’s hard to be her brother she teases me and calls me gay.”
Considering the age and gender difference between [X] and [Y], together with the acknowledged issues that [X]’s behaviour has caused the family, [Y]’s description appears to be fairly accurate.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Despite their acknowledged difficulties and ongoing conflict, the parties have been able to keep in place arrangements for the care of [Y] for many years.
It was the husband’s evidence that whilst the parties have a history of conflict between them, he did not perceive them as having a history of conflict about parenting [Y].
Earlier in this judgment, I set out the circumstances where the parties were able, with the assistance of Mr Holland, to reach a compromise to enable [Y] to move forward to being able to take the bus home from school.
Mr Holland gives evidence that to date [Y] has dealt with the parental conflict by trying to keep the peace.
In paragraph 49 of his Report, Mr Holland deposes as follows:
“[Y] has, to date, avoided the “splitting defense” of his sister. He impresses as a somewhat anxious and cautious child overly sensitized to the needs of his parents and his own need to be shielded from the parental conflict. He appears stuck between the cautious and value oriented parenting of his father and the laissez-fair approach of his mother. This leads to feelings of anxiety and distress for [Y] and is potential (sic) psychologically damaging over the long term and in his lead up to high school and adolescence.”
Mr Holland in paragraph 50 of his Report then comments:
“If [Y] is to successfully individuate from both parents and avoid future psychological harm the parties will need to significantly change their parenting styles.”
In these circumstances, it will be vitally important for [Y] that both his parents take on board the potential damage that their ongoing conflict could have on [Y] and endeavour to put in place arrangements that enable [Y] to continue to have the close and loving relationship he has with both his parents at this time, particularly as he moves into adolescence.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Both parents live in the Bendigo area and neither is proposing to move away from there.
Whether the wife’s proposal, the husband’s proposal or Mr Holland’s recommendations are put in place, there will be no alteration in [Y]’s circumstances such that it would impact on his capacity to have an ongoing relationship with his parents.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are no practical difficulties in relation to [Y] spending time or communicating with either of his parents.
Mr Holland however suggests that one of the benefits of moving to [Y] having a block of time with both his parents would be to reduce the interactions between them. I note however that neither parent gave evidence to this having given rise to any issues between them in the
10 years since separation.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

I am satisfied that both parents have the capacity to provide for [Y]’s physical, emotional and intellectual needs most of the time.
However, as has been set out in this judgment, there is a real risk of potential psychological damage to [Y] if the parents are unable to address their long-standing entrenched antipathy and conflictual relationship.
In the final paragraph of his Report, Mr Holland noted the following:
“In conclusion, [Y] and [X] are at an age and stage where varying degrees of negotiation and limit setting are an appropriate parental response. The reality for the children is they need both, but unfortunately the parental responses are polarized and there is no balance for the children as they transition between the households. If the parties fail to remediate their parentings (sic) practices and achieve some level of co-operation and balance they are at risk of damaging the children’s psychological and emotional health further.”
Whilst it was pleasing to see the parties finally resolve the long-standing tensions around Child Support, as well as negotiating a way forward in relation to the after school arrangements for [Y] with the assistance of Mr Holland and for them both to agree to engaging in some kind of therapeutic intervention to try to address their long-standing inability to communicate, both parents must accept responsibility for their own behaviours and take positive steps to try and improve how they parent their children.
Mr Holland noted in his Report, when discussing [X], that both parents were resistant to accepting their share of responsibility for [X]’s circumstances. This was also apparent in the evidence that they gave.
Unless both parents take responsibility, and most importantly take on board the potential harm that they could do to [Y] and have done to [X], there must be concerns for these children into the future.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Not relevant.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Both parties are committed, loving and responsible parents.
The reality however is that because of their disparate personalities and parenting styles, and their long-standing antipathy and conflict, significant psychological damage has been afforded to [X] who has developed long-standing and quite severe behavioural issues that have caused both her parents (and [X]) considerable distress and difficulty.
Their son [Y] appears to have avoided the same level of distress as has been accorded his sister. However, as [Y] approaches adolescence, unless the parents accept responsibility for their behaviours and actively work to alter the way in which they interact, there must be concerns as to [Y]’s psychological well-being into the future.
Both parents must take on board their responsibilities as [Y] and [X]’s parents to do everything in their power to ensure that they do their best to address their own issues in order to ensure that their children are not damaged any further by their issues.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

This is the third occasion that the parties have instigated proceedings in relation to the arrangements for their children since their separation some 10 years ago. On the previous two occasions, to their credit, they were ultimately able to resolve matters between themselves by consent.
On this occasion, that outcome has not been achievable in relation to all the arrangements for their children.
Whilst the court can never be sure that its’ orders will finalise matters between parties, the willingness of these parties to engage in therapeutic intervention to assist them in improving their ability to communicate and co-parent, together with the positive steps taken to resolve some long-standing issues between them can only give some hope that into the future the parties will be able to resolve any differences that come up between them through mediation rather than court processes.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

As noted earlier in this judgment, to their credit, the parties reached agreement in relation to the arrangements for [Y] on holidays and special occasions.
Also to their credit, the parties were in agreement that they would look to therapeutic interventions to try and assist them to better communicate and co-parent.
Further, to the wife’s credit, she recognises the importance to [Y] and the husband of their mutual pleasure and enjoyment in [Y]’s sporting endeavours and she has agreed that any orders made should ensure that the husband’s involvement with [Y]’s sport continues into the future.

Conclusion

This is a case that involves two parents who, because of their very disparate personalities and parenting styles, have a long-standing entrenched history of conflict and antipathy.
Their children [X] and [Y] have been caught in the crossfire of this conflict, to their detriment.
[X], who is 16 years of age, has been and is a troubled adolescent whose acting out at school and home has caused real distress to her parents and to [X].
[Y], who is 11 and a half years of age, has cast himself in the role of ‘peacemaker’ and is described by Mr Holland as a somewhat anxious young man who is cautious and overly sensitised to the needs of his parents.
Since 2007, [X] has lived with her mother and spent limited time with her father. Her exposure to the parties’ conflict has resulted in what Mr Holland describes as ‘psychological splitting’.
The wife has sought orders that she have sole parental responsibility for [X] and as set out earlier in this judgment, I am satisfied that such an order should be made in [X]’s best interests.
I reiterate however my earlier observation that this should not be seen by the husband to in any way ameliorate his responsibilities as [X]’s parent now and into the future.
The parties have agreed that they will continue to have equal parental responsibility for [Y] and I am more than satisfied that such an order is in [Y]’s best interests.
The living arrangements for [Y], whereby he lives with his father each alternate week from after school Friday to before school Monday and every Wednesday night have been in place now for many years. [Y] has strongly indicated that he wishes for those arrangements to continue.
The wife proposes that those arrangements stay in place in accordance with [Y]’s wishes, whereas the husband is seeking orders that [Y] live with him from after school Friday to before school Thursday in week one and overnight Wednesday in week two.
Mr Holland does not support that [Y] spend equal time with each of his parents because of the conflicted relationship that the parties have, because [Y]’s primary attachment is with his mother and because of the necessity for [Y] to maintain a secure home base in the circumstances of the parents’ conflicted relationship.
Mr Holland is proposing that the existing arrangements for [Y] be altered in 2010 so that he spends from after school Thursday to before school Monday in each alternate week with his father and an overnight on the Wednesday in the alternate week, and that from 2011 this move to a five day single block period in each fortnight.
The wife indicated that she would agree to orders in the terms as recommended by Mr Holland if that was what the court determined was in [Y]’s best interests.
I am satisfied that it would not be in [Y]’s best interests for orders to be made as sought by the husband.
The parties’ highly conflicted relationship, the reality that [Y]’s primary carer to date has been his mother and [Y]’s strongly held views that he does not wish for there to be a dramatic alteration in the existing arrangements all convince me that orders should be made that he continue to live nine nights a fortnight with the wife and five nights a fortnight with the husband.
The only issue that remains is how such an arrangement should be configured. Mr Holland’s suggestion is that for the remainder of the year, arrangements be adjusted so that [Y] spends four nights in week one and one night in week two with his father. From 2011, Mr Holland recommends that this arrangement be further adjusted so that [Y] spends a single block of five nights with his father in each fortnight.
Mr Holland believes that this will give [Y] a structure that is known and simple and will give him a safety net in the context of his parents’ conflicted relationship.
The husband has been heavily involved in [Y]’s sport for many years and it is common ground that that involvement should continue into the future. That involves training every Wednesday night.
The existing arrangement allows for that involvement to take place.
I have formed the view that if orders are put in place that continue to provide for the husband to be involved in [Y]’s sport, the necessity for a transition to the block period becomes less compelling. [Y] is in Grade Six, he’s due to start high school next year and I am of the view that he is sufficiently mature for the long-term arrangements for him to be put into place forthwith.
In these circumstances, I intend to make orders that [Y] live with his father from after school Wednesday to before school Monday each alternate week and from after school until 9.00 pm on Wednesday in each alternate week. The days for the block period differ from those recommended by Trevor Holland. This is to enable [Y] to be with his father on Wednesday night to enable his father to take him to training.
I also believe that it will be vitally important for [X] and [Y] that the parties engage in therapeutic counselling to assist them in developing appropriate strategies to better communicate and parent their children and orders will be made for them to engage in that therapeutic intervention.
Finally, orders will be made by consent that reflect the arrangements the parties have agreed to themselves in relation to parental responsibility for [Y], the living arrangements for [X] and the arrangements for [Y] in relation to holidays and special occasions.

I certify that the preceding one-hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 11 May 2010